ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-099-00M0
DATE: 20120619

B E T W E E N:

HER MAJESTY THE QUEEN

Jodi Whyte, for the Applicant

Applicant

• and -

R.M.

Michael J. Pretsell, for the Respondent

Respondent

HEARD: May 30, 2012

RULING ON APPLICATION TO ADMIT SIMILAR FACT EVIDENCE

Madam Justice Blishen J.A.

INTRODUCTION

[ 1 ] The accused, R.M. is charged with nine sexual offences as outlined on the amended indictment: sexual interference contrary to s. 151 (a) of the Criminal Code of Canada , R.S.C. 1985, c. C-46 (“ Criminal Code ”) , invitation to sexual touching contrary to s. 152 of the Criminal Code , and sexual assault contrary to s. 271 of the Criminal Code with respect to each of three complainants, J.S., A.F. and A.K-N.

[ 2 ] The three complainants were foster children of R.M. and his wife D.M. and resided in their foster home in Prince Edward County.

[ 3 ] The Crown seeks to introduce the evidence of the three complainants as similar fact evidence related to the central issue of the actus reus of the offences, in light of Mr. R.M.’s blanket denial of the offences and to refute any defence of fabrication. This necessarily raises the issues of the credibility and reliability of the complainants and Mr. R.M. as to the actus reus of all offences.

[ 4 ] As stated in R. v. Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908 at para. 55 , similar fact evidence is presumptively inadmissible.

55 …The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

[ 5 ] Although frailties in the evidence are normally left to the trier of fact, in this case, the jury, the defence argues that, as stated in R. v . Handy , supra , at para. 134 :

134 …where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration. Where the ultimate assessment of credibility was for the jury and not the judge to make, this evidence was potentially too prejudicial to be admitted unless the judge was of the view that it met the threshold of being reasonably capable of belief. [Emphasis added.]

[ 6 ] In this case, it is argued that the evidence of the complainant, A.F., is so frail and unreliable as to be incapable of belief. Therefore, the threshold level of proof by the Crown has not been met when that evidence is considered along with the defence evidence.

BACKGROUND

[ 7 ] Although defence counsel argues there are significant weaknesses in the evidence, he agrees with Crown counsel that, for the purpose of this application, the evidence with respect to the proposed similar facts is as outlined in the Crown’s Factum as follows:

1. R.M. and D.M. were foster parents in Prince Edward County. They had a number of foster children. Of those, three girls have alleged that R.M. sexually assaulted them.

J.S.:

2. J.S. was born on […]. In 2003, J.S. was in the care of the local CAS and resided with the M. in their home in Wellington. She and her sister commenced residing there July 3 2003 and stopped residing there on June 28 2004. Upon leaving the home she and her sister returned to live with their mother.

3. On February 2 2005, the CAS attended at J.S.’s home. They were there to discuss with J.S’s mother her intention to move. The CAS did not want Ms. S. to relocate. J.S.’ sister believed the CAS was there to apprehend the girls. She asked to speak to her mother in the house without the CAS present. She then told her mother, in J.S.’s presence, that they could not be returned to the R.M. household because R.M. was sexually abusing J.S. J.S. testified that she had told her sister about the sexual assaults by R.M. sometime after they left the R.M. home.

4. The CAS contacted the OPP. J.S. and her sister were interviewed by the OPP at the CAS offices on February 4 2005.

5. At trial, J.S.’s sister recounted the events of February 2 2005 saying she recalled driving to her mother’s home with the CAS but did not recall going to their lockers. She recalled being with her mother and J.S. and whispering in her mother’s ear that R.M. was touching J.S. J.S. recalled a CAS worker in the next room when her sister said out loud that R.M. was touching her.

6. J.S’s sister said that the time at the R.M. household was good for her and that she was closer to D.M.. She recalls going shopping with D.M. alone and at other times with J.S. She also recalled that in the TV room both she and J.S. sat on R.M.’s lap.

7. J.S. recounted several incidences of sexual abuse. She testified about them in-chief in the following order:

a) She was sitting on R.M.’s lap watching television. He had a blanket over them. Her sister and D.M. were present. He touched her vaginal area over her clothing.

b) In the pool he twirled her around with his hand on her vaginal area. This was likely the first summer she resided there. Her sister was present and perhaps D.M..

c) On another occasion in the pool he pulled her bathing suit (blue one piece) aside and rubbed his penis on her vaginal area. This lasted for a couple of minutes.

d) In the television room in the basement he was on the couch with his pants down and she performed fellatio on him. She believed it was a leather couch. She was corrected in cross-examination. She does not believe anyone was home at the time. She did not recall if his penis became hard or erect. She did not like the taste of his penis.

e) The second time she performed fellatio on him was in her bedroom on the lower bunk bed. He came into the room with baggies over his penis. She was laying on her right side. She does not believe anyone else was home.

f) She and R.M. were in the television room in the basement and he put on a pornographic film. He asked her to let him perform oral sex on her and she said no, but he kept asking. This occurred on the same couch in the basement.

g) She and her sister attended at counseling sessions on the Tyendinaga Territory. On one occasion, while her sister was in a session, she and R.M. went for a drive and she masturbated him. She recalls two women walking down the road. They went to a store and she washed her hands because he ejaculated something – he seemed surprised by this and said it should not happen.

8. J.S. recalled no other specific incidences of sexual abuse.

A.F.:

9. A.F. was born […] 1994. She was in the care of CAS when she was placed in the R.M. household on July 30 2004. At the time they lived in Wellington. They moved to Bloomfield on November 1 2004 and she remained there with them until she was removed on February 3 2005 after she disclosed to her Children’s lawyer that R.M. was sexually abusing her. Her brother D.F. was with her in the home at all times.

10. A.F. was interviewed at the CAS by the OPP on February 4 2005 and the interview was video-taped. At the time she was 10 years old. The video was played pursuant to section 715.1 of the Criminal Code after a brief in-chief examination revealed that her memory of the events was poor.

11. In the brief in-chief examination at trial, A.F. recalled the following sexual abuse occurred:

a) She recalled swimming with R.M. and then being on the pool deck with him on top of her.

b) On another occasion, they were returning from the dump or going to the dump and he put her on the seat and held her arms down.

c) When the M. were moving to Bloomfield, she said she helped R.M. move some things to the house and she said “let’s go get more stuff” and he said he was not finished and brought her into a room and she recalls being disheveled.

d) Once in the Bloomfield house, he came to check on her in her bedroom and took his pants off and had sexual intercourse with her. She believed D.M. and D.F. were in the house and she did not recall that he got an erection.

12. She did not recall other events that were put to her from the preliminary hearing including a reported event of fellatio. She did recall that she knew for some reason he could not have children.

13. The original video of her interview was played in court. The video and transcript were filed as Exhibits. In the video, she told the CAS and Det. Sgt. Allison the following:

a) Two weeks after she moved to the home he came into her bedroom and put his hands on her vaginal area and then he laid on her. And put his penis between her legs. (p.7)

b) A few days later, he came to the bedroom and pretended to give her a hug and then laid on her and “did it” and then said “That was nice”. He kept his shirt on and she had her clothes on. She said “I am a good girl”. (pp.11 – 13)

c) The next day, he took her out of her brother’s room and to her room, he was wearing a “baggy thing”. She pushed him several times but he got on top her and went up and down. (p.18)

d) Last week of August, he asked her to kiss his penis and she said no and he had sex with her. He kept his clothes on.

e) In Bloomfield, they were watching television and he put her on the floor and she was pushing him and he fell and hit his head on a chair. (p.23)

f) On the Saturday before the statement (January 29 2005), he gave her a hug and took her up to her room and started to have sex with her and she said no, that she did not like it and that she would tell. He went downstairs and watched television. The difference this time was that he went sideways. (p.24) A.F. said that her brother was at the table because he had peed his pants and that D.M. and her mother were shopping. Also on this date, he made her put his penis in her mouth and pee went in her mouth. (p.30)

g) On several occasions (January and February), he made her touch his penis by grabbing her hand and putting it on his penis.

h) In Wellington, he had done this and his penis was small and hairy and he made her get it hard and “slimy stuff and pee came out”. (pp. 28 – 30)

A.K-N.:

14. A.K-N. was born on […] 1995. She was placed in the care of the M. on July 28 2005 and remained there until June 20 2010. J.R. had been placed in the home two days before her and remained there for the same period of time. Anna’s sister L. entered the house with A.K-N. but left in April 2009. A.K-N. recalled five or six other children being placed in the home at different times.

15. A.K-N. testified to the following sexual acts occurring between she and R.M.:

a) A few months after she entered the home R.M. came into her bedroom in the morning and laid on her bed with her. He placed his hand between her legs under clothing. She pretended to be asleep while this was happening. She testified that this happened a number of times in the morning.

b) The progression she recalled was that he came into the bedroom and penetrated her with his fingers. She continued to pretend to be asleep.

c) The next different act was when he entered the bedroom and took her hand and put it on his penis and masturbated himself with her hand.

d) She testified that these sexual acts occurred weekly at first but increased over time to a few times a week.

e) After the first year or so, she performed fellatio on him two to three times a week.

f) She testified that eventually she had intercourse with him two to three times a week. This was around 2009.

g) On a cruise in which they changed ships in Miami, she and R.M. stayed behind while D.M., J.R. and L. went shopping. They had intercourse in the larger bedroom of the suite.

h) On the last cruise that she went on, Christmas 2009, she was the only child to accompany the M.. D.M. went to get popcorn and she performed fellatio on R.M. in the cabin they were all sharing.

i) On a shopping trip with R.M and D.M., A.K-N. helped R.M. unload the car while D.M. walked down the road to the shops. She had sexual intercourse with R.M. in the motel room.

j) A.K-N. recalled only one occasion when she felt forced. R.M. had been drinking in the afternoon and later that night he wanted sexual intercourse and she said no. He had intercourse with her anyway. She recalled it was late but still light outside. This occurred in the bedroom downstairs.

k) She recalled no more than two times that he performed oral sex on her. She did not like this and told him to stop. It was a matter of weeks between the events.

l) She was adamant that he could get an erection (although not always completely) and that he never ejaculated. She did recall however that once she performed oral sex on him and he urinated in her mouth.

LAW AND ANALYSIS

[ 8 ] There is a presumption that evidence relating to an accused’s disposition or propensity is inadmissible. However, exceptions to this rule arise when the probative value of similar fact evidence outweighs its prejudicial effect. See R. v. B. (C.R.) , 1990 142 (SCC) , [1990] 1 S.C.R. 717, R. v. Shearing , 2002 SCC 58 , [2002] 3 S.C.R. 33, and R. v. Handy , supra .

[ 9 ] The Supreme Court of Canada provides the following outline of considerations as to the admissibility of similar fact evidence:

a. The probative value of the evidence:

i. the strength of the evidence including the potential for collusion,

ii. identification of the issue in question,

iii. similarities and dissimilarities between facts charged and similar fact evidence considering:

a) proximity in time,

b) extent of similarities in conduct,

c) number of occurrences of similar acts,

d) circumstances surrounding or relating to similar acts,

e) distinctive features unifying similar acts and

f) intervening events.

iv. strength of the evidence that the similar acts occurred.

b. Assessment of the potential prejudice:

i. moral prejudice,

ii. reasoning prejudice.

c. Weighing up probative value versus prejudice.

R. v. Shearing , supra

R. v. Handy , supra

R. v. B. (C.R.) , supra

PROBATIVE VALUE

[ 10 ] In R. v. B. (C.R.) , supra, the Supreme Court of Canada notes that Canadian jurisprudence rejects the category approach to the admission of similar fact evidence while at the same time maintaining an emphasis on the general rule that evidence of mere propensity is inadmissible, emphasizing the necessity that such evidence possess high probative value in relation to its potential prejudice. The Court states at para. 24:

24 …evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.

[ 11 ] The Court goes on to consider the 1982 Supreme Court of Canada decision in Sweitzer v. The Queen , 1982 23 (SCC) , [1982] 1 S.C.R. 949, where McIntyre J., speaking for the Court, held at p. 953 that “it would be an error to attempt to draw up a closed list of the sorts of cases in which the principle operates”, concluding that the admissibility of similar fact evidence “will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission whatever the purpose of its admission”. Subsequent cases have all affirmed the same approach.

[ 12 ] In R. v. L.B., 1997 3187 (ON CA) , [1997] O.J. No. 3042 (C.A.), Charron, JJ.A., as she then was, speaking for the Court noted at para. 43:

43 …

It is equally difficult to identify when evidence of discreditable conduct depends for its relevance on something other than the disposition of the accused. Perhaps this difficulty should not be surprising since, as seen earlier, the relevance of this kind of evidence usually depends on the proposition that persons tend to act consistently with their character, or, in other words, that persons have the propensity to act in the manner in which they have acted previously…

[ 13 ] After referring to the Supreme Court of Canada’s decision in R. v. B. (C.R.) , supra , Charron, JJ.A., as she then was, concludes that “it is clear from the above excerpt, and from many other cases as well, that propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission.” (para. 45). She goes on to say “it is propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence of discreditable conduct, which is prohibited.” (para. 46).

i. Issue in Question

[ 14 ] In the present case, the Crown argues for the admission of similar fact evidence to prove the actus reus of the offences which is necessarily connected to the credibility and reliability of the evidence of the complainants. In general, the defence is a general denial of the allegations of all three complainants. It is argued that the complainants have fabricated their evidence. This is not a case where consent or other defenses are raised. Therefore, it is not necessary to find “striking similarities” as would be required in an identification case. As was stated by Grange JJ.A. in R. v. Carpenter, 1982 3308 (ON CA) , [1982] 142 D.L.R. (3d) 237 (Ont. C.A) at para. 16 , “the degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.”

ii. Similarities / Dissimilarities

[ 15 ] In this case, it is argued the probative value may be derived from the relationship that exists between the alleged acts and the circumstances surrounding the acts. It is argued that the relationship is such that the evidence of one act will provide strong enough support for the other. This is not an identity case where the probative value of the similar fact evidence would depend on a high degree of similarity between the acts or the manner in which the acts were committed, as the similarity provides the only evidence of the identity of the perpetrator. See R. v. Arp, 1998 769 (SCC) , [1998] 3 S.C.R. 339, paras. 44 to 45 .

[ 16 ] It is still necessary to consider the similarities and dissimilarities in the circumstances surrounding the allegations of the three complainants and in the context of this case. In that regard, I note the following:

1. The allegations of the three complainants arise in the context of a foster home and a foster father/foster daughter relationship;

2. All three complainants were young girls age nine to ten when they were placed in the R.M. foster home;

3. All three complainants indicated that the incidents started a few weeks after their arrival and continued until they left the foster home;

4. All three complainants had one sibling residing with them in the foster home. All three complainants testified that their sibling often went out with D.M. shopping leaving the complainant in the home with Mr. R.M.;

5. The allegations are of incidents that occurred in and at a variety of similar locations – in the pool, on the pool deck, in various rooms in the homes in Wellington and Bloomfield and in Mr. R.M.’s van or truck;

6. All three complainants allege a myriad of similar sexual activities. The sexual abuse allegations are not all the same but the circumstances surrounding them are similar. For example, a number of the incidents were alleged to have occurred when D.M. was sleeping, out shopping or elsewhere;

7. All three complainants testified that the sexual abuse began with touching and progressed to other acts;

8. Each of the complainants was told that Mr. R.M. had an operation;

9. Both A.F. and A. K-N. related a discharge of urine while they were performing oral sex. J.S. related a discharge of some liquid on to her hand.

[ 17 ] This is a case where there is evidence of a pattern of conduct. The distinction between the types of sexual activity in this case does not detract from the significant probative value of the pattern of conduct similar act evidence.

[ 18 ] In R. v. L.B. , supra , Charron, JJ.A., as she then was, notes at paras. 37 - 39:

37 In cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents. This stands to reason, particularly where there is nothing unusual about the sexual acts in question. In most circumstances, the fact that one complainant was kissed as compared to the other being fondled may not have a whole lot of significance. The allegations all pertain to acts of a sexual nature. In the same way, and again depending on the circumstances, the fact that one assault occurred in the basement as opposed to the other in the bedroom may not be of consequence on the question of probative value. The different location may simply be attributable to a different opportunity for privacy. For example, in B.(C.R.), the similarities that the majority found to be sufficiently compelling essentially related to the context within which the assaults occurred and to what was distinctive about that context:

The fact that in each case the accused established a father-daughter relationship with the girl before the sexual violations began might be argued to go to showing, if not a system or design, a pattern of similar behaviour suggesting that the complainant's story is true.

38 The question really boils down to one of human experience and common sense.

39 It is therefore important to consider not only the acts themselves but all the circumstances in order to assess what similarities, if any, exist between the discreditable conduct and the alleged offence, and whether these similarities give the evidence probative value. Dissimilarities have to be considered in the same light in order to determine whether or not they detract from the probative value of the evidence.

The extent to which the matters the proposed evidence tends to prove are at issue.

iii. Collusion

[ 19 ] In this case, it is acknowledged by defence counsel that, although there is some evidence of direct or indirect contact between some of the complainants, and some evidence of opportunity for collaboration, that is insufficient to trigger the court’s gatekeeper function and to exclude the evidence from the trier of fact, in this case the jury, on the basis of collusion. In the absence of any evidence of actual collusion as opposed to the defence theory of fabrication, the decision lies with the trier of fact. It is clear that the jury must be cautioned about the reliability of the evidence when there is some evidence of the opportunity for collusion or collaboration, as in this case.

iv. Strength of the Evidence that the Similar Acts Occurred

[ 20 ] The thrust of the argument by defence counsel on this application is that the testimony of A.F. is so frail and unreliable as to be incapable of belief and therefore should not be considered as similar fact evidence. It is argued that the frailties in her testimony are amplified by the inability to effectively cross-examine her on her statements or on most of the underlying behaviour, as she testified that she has little memory of what occurred. There are inconsistencies in the evidence of A.F: in her videotaped statement introduced under s. 715.1 of the Criminal Code , in her testimony at the preliminary hearing and in her testimony at trial, where she had little recall of the alleged sexual misconduct. She did provide some evidence of sexual misconduct prior to adopting her videotaped statement.

[ 21 ] A.F. recalled while testifying, as she did on the videotape, the first incident of sexual activity with Mr. R.M. occurring on the pool deck in Wellington after they had been swimming. She stated they had sexual intercourse and that Mr. R.M. was lying on top of her on the pool deck. She was also to describe an occasion when she was with Mr. R.M. taking the garbage to the dump when he stopped the vehicle, laid her down on the front seat, held her arms and had intercourse with her. She provided evidence of other incidents, one while moving to the home in Bloomfield, one when she was in her bedroom in the Bloomfield home and another when she pushed Mr. R.M. off.

[ 22 ] In addition, as previously stated, she did adopt the contents of her February 4, 2005 videotape where she provides more detail as to the sexual abuse by Mr. R.M..

[ 23 ] Although there are obvious frailties in the evidence of A.F., I find that her evidence is reasonably capable of belief. The ultimate assessment as to her reliability and credibility should be left to the trier of fact, in this case the jury.

PREJUDICIAL EFFECT

[ 24 ] As on the severance application, defence counsel argues that the counts related to J.S. and A.F. are based on a weaker evidentiary foundation, are not substantiated and are not credible. It is therefore argued that if the jury hears the evidence surrounding the J.S. and A.F. counts, it is likely they will engage in forbidden propensity reasoning with respect to Mr. R.M..

[ 25 ] Moral and reasoning prejudice is not a primary consideration in a judge alone trial. However, when the trial is by judge and jury, the potential prejudice to the accused must be considered and assessed against the probative value of the evidence.

[ 26 ] In R. v. D. (L.E.) , 1989 74 (SCC) , [1989] 2 S.C.R. 111, Sopinka, JJ. noted that the prejudicial effect of the similar fact evidence may be felt by the jury in three main ways:

1. “The jury, if it accepts that the accused committed the prior bad acts, may therefore assume that the accused is a bad person who is likely to be guilty of the offence charged;

2. The jury might punish the accused for past misconduct by finding the accused guilty of the offence charged; and/or

3. The jury might become confused as it concentrates on resolving whether the accused actually committed the similar acts, and substitute their verdict on that matter for their verdict on the charge being tried.”

[ 27 ] In this case, the charges are all contained in a multi-count Indictment. Therefore, the three considerations listed in R. v. D. (L.E.) , supra , are of less concern, as the jury must first find that each complainant is likely telling the truth or is likely credible before they can apply the testimony of that complainant to any other count.

[ 28 ] In addition, as the conduct alleged is not past conduct but concurrent on the indictment, punishment for past conduct proved is not possible.

[ 29 ] Therefore, as this is a multi-count Indictment with respect to three complainants, if similar fact evidence goes the jury, the task is to provide an appropriate instruction in order for the jury to understand the role the evidence plays, the permissible reasoning and the manner in which the similar fact may be applied across counts in the indictment.

WEIGHING OF PREJUDICE AND PROBATIVE VALUE

[ 30 ] In balancing the probative value with the potential prejudice to the accused, the Court must in considering a similar fact application:

1. assess the tendency of the evidence to prove a fact in issue; in this case, the actus reus of the offences which necessarily includes the credibility of the witnesses, and determine the probative value of that evidence;

2. determine the prejudicial effect of the evidence due to its tendency to prove matters which are not in issue or due to the risk the jury may use the evidence improperly to prove a fact in issue;

3. balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury may use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

[ 31 ] In R. v. L.B. , supra , Charron JJ.A., as she then was, noted at para. 22:

22 It is important to define what is meant by prejudice in this context. In its widest sense, any evidence that tends to prove guilt can be said to be prejudicial to the accused since it is detrimental to his or her position. Obviously that is not the kind of prejudice that calls for special evidentiary rules. Professor Delisle defines the meaning of prejudice in this context succinctly as follows:

Prejudice in this context, of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly. The trier who learns of the accused's previous misconduct may view the accused as a bad man, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presently marshalled against him.

[ 32 ] In this case, there is no evidence of collusion. There are significant similarities in the facts alleged by the three complainants in the same context of a foster home and foster father/foster daughter relationship. The evidence of a pattern of conduct in this context provides probative evidence that when combined with an appropriate instruction to the jury, outweighs the potential prejudice. Therefore, I find, on a balance of probabilities, that in the context of this case, the probative value of the evidence of the complainants in relation to the actus reus of the offences charged and the credibility of the complainants outweighs its potential prejudice and it will be admitted as similar fact evidence.

Madam Justice J. A. Blishen

Released: June 19, 2012

COURT FILE NO.: CR-099-00M0
DATE: 20120619

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Applicant - and – R.M. Respondent REASONS FOR DECISION Madam Justice J.A. Blishen

Released: June 19, 2012