COURT FILE AND PARTIES

COURT FILE NO.: 11-82
DATE: 2012/09/25
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. G.J.

BEFORE: Justice Rick Leroy

COUNSEL: Isabel Blanchard, Counsel for the Respondent

Ian Paul, Counsel for the Applicant

HEARD: September 13 th , 2012

IMPORTANT: CONTENTS CANNOT BE PUBLISHED OR BROADCASTED PURSUANT TO AN ORDER UNDER SECTION 486. INFORMATION REGARDING THE IDENTITY OF THE ACCUSED, WITNESS OR COMPLAINANT CANNOT BE PUBLISHED OR BROADCASTED

ENDORSEMENT ON SIMILAR FACT application

Similar Fact Ruling

[ 1 ] The crown submits that the entire body of evidence relating to the alleged offences against both JLB and LF should be assessed as a whole. Mr. Paul resists the application citing dissimilarities between the two sets of alleged offences and the evidence of inadvertent and possibly deliberate collusion between the sisters.

Legal Context

[ 2 ] Evidence of similar acts, whether of other counts charged in an indictment or of extrinsic misconduct, is presumptively inadmissible. The onus is on the prosecutor to satisfy the court, on a balance of probabilities, that in the context of the case being tried, the probative value of the evidence on a particular issue outweighs its potential prejudicial effect and thus justifies its reception: R. v. Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908, at para. 55 ; R. v. Arp , [1998] 3 S.C.R. 339, at paras. 42 and 51 .

[ 3 ] Probative value depends upon the nexus established between the evidence of similar acts and the offence that the evidence is offered to prove. The degree of similarity required to permit the introduction of evidence of similar acts is a function of the issues in the case, the purpose for which the evidence of similar acts is being offered and the other evidence adduced at trial: Handy at paras. 76, 78 and 79 ; R. v. Shearing , 2002 SCC 58 , [2002] 3 S.C.R. 33, at para. 48 .

[ 4 ] The legitimate force of similar fact reasoning depends on the improbability of coincidence, namely that GJ would be implicated not once but twice in markedly similar misconduct alleged by two independent sources. In those circumstances, evidence connecting him to one set of offences against one complainant could infer that he is also connected to the other set of similar offences against the other complainant. Collaboration destroys the force of the reasoning because it provides an alternative explanation for why there are two separate sets of allegations.

[ 5 ] The admissibility inquiry begins with a focus on the acts themselves. Do the acts have the high degree of similarity required to justify their reception? As similarity increases, so does probative value: R. v. Perrier , 2004 SCC 56 , [2004] 3 S.C.R. 228, at para. 21 .

[ 6 ] The countervailing consideration, prejudice, includes both “moral prejudice” and “reasoning prejudice.” Moral prejudice is concerned with the potential stigma of “bad personhood,” the prospect that the verdict will be based on prejudice rather than proof: Handy at paras. 42, 100 and 139 . Reasoning prejudice has to do with distraction of the trier of fact, especially a jury, from their proper focus on the offence(s) charged, aggravated by undue consumption of time by the introduction of evidence of similar acts: Handy at paras. 100, 144 and 146 .

[ 7 ] The practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment significantly reduce the concern for reasoning prejudice.

[ 8 ] To gain entry as evidence of similar acts, whether involving extrinsic misconduct or conduct that is subject of other counts on the same indictment, the evidence of similar acts must be appropriately connected to the facts alleged in an individual count. Similarities in character, proximity in time and frequency of occurrence are important factors: Handy at para. 81 .

[ 9 ] The similarity inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors including, but not limited to:

i. proximity in time and place;

ii. similarity in detail and circumstances;

iii. number of occurrences;

iv. any distinctive feature(s) unifying the various incidents;

v. intervening events; and

vi. any other factor that tends to support or rebut the underlying unity of the similar acts.

[ 10 ] Handy at para. 82 ; Perrier at para. 22 .

[ 11 ] Decisions about the admissibility of evidence generally do not involve evaluations of the probative value or weight of the evidence. The judge does not embark upon an appraisal of quality, weight or reliability of the evidence in deciding on admissibility: Arp at para. 47 . But, in deciding on the admissibility of evidence of similar acts, where the admissibility rule involves balancing probative value and prejudicial effect, the court must, to some extent, evaluate the evidence: Arp at para. 47 .

[ 12 ] In some instances, as in this case, there is a controversy about whether the allegedly similar acts occurred. Such controversies may dilute the probative value of the evidence and enhance of the prejudicial effect of its admission. To the extent that the strength of the evidence that the similar acts occurred, and in a particular manner, is a factor of influence in the assessment of probative value ( Handy at paras. 133-134 ).

Similarity Inquiry

[ 13 ] The defence position is that the similar facts do not meet the test for threshold admissibility across complainants. He argues that the dissimilarities in the two allegations dispel prospects for sufficient connectivity to inform the propensity analysis and the improbability of coincidence, namely that GJ would be implicated not once but twice in markedly similar misconduct alleged by two independent sources.

[ 14 ] He argues that the events alleged are not proximate in time, the difference between the bedroom and any place any time undermines any connection and the complainants’ age differences at the time of the alleged offence are significant.

[ 15 ] The similarity between offences alleged here lies in the relationships and opportunity. JLB and LF were placed with their aunt and uncle, BJ and GJ in or about 1970 following the parents’ marital breakdown. The J household included cousins and suffice to say that sleeping arrangements were cramped. Three girls in one room, sometimes in separate single bunk beds and sometimes sharing a double bed. JLB and LF are separated by four years. JLB was ten on arrival in the J home and LF fourteen.

[ 16 ] JLB alleges relentless, indiscriminate and indiscreet assault. She describes all manner of sexual abuse save for penile vaginal penetration. She describes forced fellatio, manual masturbation, cunnilingus, digital vaginal and anal penetration and penile anal penetration. The abuse began shortly after her arrival in the home and continued for four years. She describes incidents in the bedroom, bathroom, living room, with others present and when alone with GJ, incidents in GJ’s workplace and in delivery vehicles and in the family car.

[ 17 ] LF relates two salient incidents. One, early on in the living room when JLB, DJ and BJ were present on a hot summer night, she alleges that GJ massaged her back, and fondled her breasts and buttocks. The second, after she is eighteen, middle of the night, following an evening of social drinking with a friend, she was awakened to GJ performing cunnilingus. She recalls that JLB and DJ were asleep on the same bed.

[ 18 ] GJ denies any form of sexual impropriety with either complainant. None of it happened.

Moral Prejudice

[ 19 ] He further argues that the application of JLB’s evidence to the counts involving LF raises serious issues of moral prejudice. The allegations by both women are serious; however JLB’s complaint is much more so.

Conclusion

[ 20 ] In the absence of evidence of collaboration and issues regarding LF’s credibility, the similar facts alleged here would be admissible across counts. Similar fact relevance lies in context. This is not a case of reliance on connective similar facts to establish identity. The salient similarities between the two sets of allegations lies in the suggestion that GJ has the requisite propensity to behave like a sexual predator in his home toward vulnerable females in his care and that he did so as alleged with his two nieces.

[ 21 ] I will leave the credibility and reliability assessment to my reasons for decision in the trial proper as it would be improper to make those determinations without assurance of having heard all of the evidence. Suffice to say, I would not feel confident in allowing a jury to assess JLB’s evidence with the support of LF’s evidence due to frailties in LF’s testimony. Similarly, because of the significant difference in magnitude between the two sets of complaint I would not be confident that a jury would be able to shed the danger of moral prejudice when applying JLB’s evidence to LF’s evidence.

[ 22 ] There is evidence of collaboration. Inadvertent collaboration arises when exposure modifies perspective, memory and sense of relevance. The genesis for JLB’s decision to report to the police grew from LF’s disclosures to her in September 2009, the details of which LF does not recall due to prescription drug impairment. JLB immediately delivered the audio recording to LF containing the message that he denied having ever touched LF. They talked a lot after the suicide attempt. JLB instructed LF to write her thoughts after advising of her immediate intention to report. They reported to police in the same time line.

[ 23 ] Those reasons undermine the legitimacy of similar fact reasoning. The allegations by these complainants are to be evaluated separately without allowing one to bolster the other through a chain of reasoning that depends on the improbability of coincidence.

Justice Rick Leroy

Date: September 25 th , 2012