ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 028/11

DATE: 20121115

B E T W E E N:

HER MAJESTY THE QUEEN

Sharon Tysick, for the Applicant

Applicant

• and -

JOHN EDMOND FOSTER

Raymond Warman, for the Respondent

Respondent

HEARD: October 19, 2012

D E C I S I O N

WILCOX, J.

[1] INTRODUCTION

[2] John Edmond Foster stands charged with one count of sexual assault, two counts of sexual interference and one count of invitation to sexual touching, all against C.W., alleged to have occurred in 2006, to which he has pleaded not guilty.

[3] The Crown has brought this Application for an order allowing it to introduce the evidence of prior discreditable conduct of the accused against four other individuals who were allegedly sexually abused by him during their childhoods.

[4] Evidence that an accused has engaged in such conduct, more often referred to as similar fact evidence, is presumptively inadmissible. It is not permissible to infer that an accused is guilty because of evidence that he has a general propensity to commit such an offence. Evidence of a specific propensity of the accused, even if it also shows something about his general propensity, might be admissible, however. The rule that is used to decide when such discreditable evidence may be admitted is the “Similar Fact Evidence Rule”.

[5] The leading decision on this rule is that of the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 (SCC). It set out the rule at paragraph 55 as follows:

Similar fact evidence is thus presumptively inadmissible. 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.

[6] The court then set out an analytical framework for determining when such evidence is admissible. It involves:

(1) The assessment of the probative value of the evidence;

(a) The potential for collusion;

(b) Identification of “the Issue in Question”

(c) Similarities and Dissimilarities Between the Facts Charged and the Similar Fact Evidence; and

(i) Proximity of Time of the Similar Acts;

(ii) Extent to Which the Other Acts are Similar in Detail to the Charged Conduct;

(iii) Number of Occurrences of the Similar Act;

(iv) Circumstances Surrounding or Relating to the Similar Acts;

(v) Any Distinctive Feature(s) Unifying the Incidents;

(vi) Intervening Events; and

(vii) Any Other Factor Which Would Tend to Support or Rebut the Underlying Unity of the Similar Acts; and

(d) Strength of the Evidence that the Similar Acts Actually Occurred

(2) The assessment of the prejudice;

(a) Moral Prejudice; and

(b) Reasoning Prejudice; and

(3) The weighing up of probative value and prejudice.

[7] Counsel filed an agreed Statements of Facts summarizing the evidence of the four proposed similar fact evidence witnesses in lieu of having them testify viva voce at the voir dire. These are K.K., D.K., E.M., and M.A.

[8] EVIDENCE

[9] C.W.’s mother, D.W., testified. In summary, she said that she and C.W.’s father, A.W., and C.W. lived in a house trailer. Her drawing of its layout became Exhibit 1. She said it was 60 feet long with a living room and a combination kitchen/dining room at one end. A hallway led from the kitchen past C.W.’s bedroom, a laundry room and a bathroom to D.W.’s bedroom at the other end. W. had known the accused for several years. He would come for coffee and to shower and do his laundry, sometimes staying for a meal. This could be in the morning, afternoon or evening. She recalled him bringing gifts for and playing with C.W. The play would start in the living room and move into C.W.’s bedroom while D.W. and A.W. watched television in the living room. She thought C.W. had been left alone with the accused on two occasions, but said that he had not babysat her at other times. She trusted the accused with C.W..

[10] C.W. testified that she is now 14 years of age and in grade nine. Her evidence consisted of the videotaped statement given to police on January 14, 2011, followed by an oral examination. She alleged that the accused had sexually abused her about five or six times when she was eight years old. He would visit for three or four hours at a time. One or both of her parents would be in the home, in the living room. The accused would have coffee with the parents. He and C.W. would then “play house” in her bedroom. He took the role of the husband, and she the wife. He would have her pretend to make him coffee. Then he would say it was nighttime, undress the two of them, have her lie with him on the bed, and begin the sexual activity. After that, he would say it was morning and she would leave the bedroom to “go to work”.

[11] On the first occasion, the sexual activity was limited to kissing. On the second and the following occasions, he undressed both and, as well as kissing her on the lips, had sexual intercourse with her and had her fellate him and fondle his penis. He used a threat to get her to fellate him. On occasion, he showed her a magazine with pictures of naked people and sex in it. He also brought condoms which he unwrapped but did not use. He threatened to kill her parents or whoever else she told if she said anything.

[12] K.K.:

[13] The Agreed Statement of Facts regarding K.K. was filed as Exhibit 1 on the Voir dire and reads as follows:

1. K.K. was born on[…], 1978.

2. K.K. was sexually assaulted by John Foster and that resulted in a conviction for anal intercourse being registered against John Foster on November 5, 1990. On February 1, 1991, John Foster was sentenced in relation to this conviction to 18 months in jail and probation for 2 years.

3. The details of that conviction are as outlined in the Court transcript to be filed including the facts that were agreed to by counsel for Mr. Foster and Crown counsel at the time.

4. John Foster was friends with the parents of the said K.K. and was renting the downstairs of the K. family home at the time of the offences.

5. John Foster occasionally babysat the K. children and may have been babysitting at the time of the offences.

6. John Foster bribed K.K. with candy and toys to get him to cooperate with the sexual assaults. “Does not recall”

[14] The entry “Does not recall” was printed by the accused on paragraph 6) of this agreed statement of fact, and paragraph 5) of the one regarding D.K., below. Counsel explained that, although the accused did not recall those points, he did not dispute them.

[15] The transcript referred to in 3), above, indicates that on two occasions when K.K. was nine years old, the accused had anal intercourse with him. On each occasion, the accused got K.K. to go to the barn on K.K.’s home property, where he had pulled down both their pants. On the second occasion, the accused had offered his skidoo to K.K. to take for a ride to induce him to cooperate. There was, however, no evidence of threats or inducements being made to keep K.K. from telling.

[16] D.K.:

[17] The agreed statement of facts regarding D.K. was filed as Exhibit 3 on the Voir dire. It states as follows:

1. D.K. was born on[…], 1981.

2. D.K. was sexually assaulted by John Foster when she was a young girl and charges were laid against him in relation to that sexual assault. By way of plea negotiation, the charge involving D.K. was withdrawn on November 5, 1990, but on the agreement of both counsel for Mr. Foster and the Crown, facts relating to that sexual assault were read into the record on a guilty plea in relation to a sexual assault on her brother K.K. also by Mr. Foster. The facts read in regarding D.K. were not disputed by Mr. Foster when read into the record on November 5, 1990.

3. The transcript of the facts read into the record are to be filed and the facts involving D.K. specifically can be located at page 11 of that transcript.

4. John Foster was friends with the parents of D.K. and lived with their family. At the time of the sexual assault on D.K., John Foster was babysitting her.

5. At the time of the sexual assault, John Foster told D.K. not to tell her mom and dad. John Foster sexually assaulted D.K. in her bedroom. He gave her candy before sexually assaulting her. “Does not recall”.

[18] Page 11 of the transcript reads as follows:

D.K. also indicated that sometime in the summer of 1988 while being babysat by the accused at the K. residence in M[…] Township that the accused had come into her bedroom, asked if he could touch her. She had said no, but he had touched her in the breast and genital area with his hands, in any event on that day while babysitting.

[19] E.M.:

[20] The agreed statement of facts regarding E.M. was filed as Exhibit 4 on the Voir dire. It states as follows:

1. E.M. (now M.) was born on[…], 1983.

2. In March, 1993, an investigation commenced regarding an allegation that John Foster sexually assaulted E.M.. On March 25th, 1993, a videotaped interview was conducted by the police with E.M. who was 9 years old at the time. A synopsis of that interview is attached to this statement and sets out what John Foster did to her in late 1992 and thereafter.

3. On May 5, 1993, John Foster plead guilty to one count of sexual assault on E.M. and was sentenced to six months in custody and three years probation.

4. John Foster was friends with the mother of E.M. and would routinely attend at E.M.’s house to visit her mother and spend time with E.M. and her brother. In January 1993, he moved into a rear apartment of E.M.’s house.

5. At the time of the sexual assaults on E.M., John Foster was babysitting her and her mother was not home. At times, her brother was present in the house when the sexual assaults occurred but was sleeping.

6. E.M. was 9 years old when sexually assaulted by John Foster.

7. At the time of the sexual assault, John Foster told E.M. that if she did not cooperate, he would do it to her brother. He also told her that if she told anyone, he would take her away from her parents.

[21] The synopsis reads as follows:

On the 25th March, 1993, at 1000 hours, writer met with Samantha Brandon of the CAS and the mother of the victim, C.M. and daughter, E.M., DOB: […] 1983. A video taped interview was conducted with E.M. at police headquarters.

E.M. appeared to be a bright 9 year old and was ready to disclose two incidents of abuse which had occurred on her.

E.M. stated that she lives with her mother C.M. and her younger brother J. at M[…] Street East and she attends D[…] School

A person known to her as John Foster who lives in the back apartment of the two apartment renovated house, began coming over to her mothers place in December of 1992. She states that John spent a lot of time with her, playing with her, reading her books and walking her home from school. E.M. recalls that on one occasion, sometime before Christmas of 1992, she was in her pyjama top and bottoms getting ready for bed and John was in the bedroom with her. She states that her mother was out somewhere, but she does not recall where.

John pushed her back so her head hit the headboard of the bed and then tried to touch her in the vaginal area. E.M. said that she said several times not to do that, however he did force her legs apart and did touch her vaginal area over top of her pyjama bottoms. E.M. stated that he did stop and her clothes did not come off. E.M. states that John said that it was okay to do that between friends, however if she ever told anybody he would take her away from her mother and she would never see her mother again.

E.M. also states that it was in the early part of January, because it was after New Year’s, she was back at school, John was again over at their apartment and he was putting her to bed again. She states that her mother was not at home and her brother J. was in bed already. John tried to pull her pyjama bottoms down, however she kept hanging on to them saying no not to do that. E.M. also states that he touched her vaginal area and she pushed his hands away.

[22] M.A.:

[23] The agreed statement of facts regarding M.A. was filed as Exhibit 5 on the Voir dire. It states as follows:

1. M.A. was born on […], 1981.

2. M.A. was sexually assaulted twice by John Foster when she was 6 years old and in grade one. Two counts of sexual assault were laid against John Foster in relation to this.

3. On June 2, 1995, Mr. Foster pled guilty to both counts of sexual assault and was sentenced to a 90 day intermittent jail sentence and 3 years of probation.

4. The details of the two sexual assaults are contained in a police report which is attached to this statement of facts.

5. John Foster was friends with the parents of M.A. and was living with them at the time of the alleged offences.

6. John Foster would periodically babysit the A. children.

7. During one of the sexual assaults, M.A.’s parents were in the residence at the time in a different room.

8. M.A. would testify that when John Foster sexually assaulted her, he told her not to say anything or she would never see her family again. If her evidence is admissible and she testifies in this trial, John Foster will dispute this point.

[24] The police report indicates as follows:

When she was in grade one, attending the K[…] School while her and her family were living in T[…] John FOSTER was staying at their house. One evening at approx 8:30pm M.A. was playing hide and seek with her sister Shannon, FOSTER was lying on a mattress and invited M.A. to hide under the covers which she did. FOSTER then proceeded to force her to touch his penis with her hand. M.A. went on to state that the next day after school at approx 4:30pm she had been outside playing and came into the house at which time FOSTER was on the couch with his pants down and had M.A. touch his penis again.

[25] ANALYSIS

[26] I have applied the analytical framework from R. v. Handy to determine whether to admit the Similar Fact Evidence.

[27] 1) THE ASSESSMENT OF THE PROBATIVE VALUE OF THE EVIDENCE

a) The Potential for Collusion

The defence indicated that there was no suggestion of collusion.

b) Identification of “the issue in question”

The Crown submitted that the similar fact evidence is relevant to the following:

i) whether the actus reas of the offence occurred

ii) the sexual intent of the accused on entering C.W.’s bedroom and the defence of innocent intent and association

iii) rebutting any defence argument that the allegations were improbable because of the proximity of others.

The defence did not dispute and I accept that these are the purposes for which the Crown wants the similar fact evidence.

d) Strength of the evidence that the similar acts actually occurred.

[28] Dealing with this point out of order because it can be disposed of quickly, the evidence that the similar acts occurred is strong. The accused pled guilty to the offences against three of the similar fact witnesses, and the facts regarding the offence against D.K. were read into the record on a guilty plea regarding K.K. as a result of a plea negotiation and were not disputed.

c) Similarities and dissimilarities between the facts charged and the similar fact evidence.

That leaves the similarities and dissimilarities between the facts charged and the similar fact evidence to be considered in assessing the probative value of the similar fact evidence.

[29] Defence counsel confirmed that identity was not an issue in this Application. Therefore, the degree of similarity required for the similar fact evidence to be accepted is less than if identity was a live issue.

[30] The Crown argued that the similar fact evidence regarding the circumstances and system that the accused employed to be able to carry out the sexual assaults is probative. Referring to the sexual fact evidence witnesses, she noted that:

• the accused befriended the parents in all situations

• the children were all pre-pubescent

• the accused gained the parents’ trust so that he could babysit or be alone with the children, even living with them in one instance

• the accused used that position to isolate the children on their own property for sex

• he used bribery or threats to secure their compliance or silence

• the offences were brazen, occurring on the victim’s own property, sometimes with others present in the home.

[31] The Crown allowed that the sex acts differed and that there was not a close proximity in time.

[32] Defence counsel compared the details of C.W.’s situation to those of the similar fact evidence witnesses, noting the similarities and differences. In general, he submitted, the similarities were:

• the accused is a friend of the family

• sexual assaults occurred

• sexual assaults occurred on the property of the victims.

[33] In general, the differences were:

-the accused had been in a position of trust against the others, but not C.W.. On this point, I agree with the Crown who argued that defence counsel was taking an excessively narrow view of what was a position of trust. The Crown noted that C.W.’s mother had trusted the accused.

-The sexual assaults were dissimilar.

-The accused did not live with C.W., but had lived with others.

-C.W.’s parents were present at the relevant times, awake and close by. In the other cases, if other people were present, they were not always the parents (or adults), awake and close by.

[34] In summary, the similar fact evidence was very different from C.W.’s case and the similarities were generic or were only superficially similar, he submitted.

[35] i) PROXIMITY OF TIME OF THE SIMILAR ACTS

[36] The agreed statements show that the accused assaulted the similar fact evidence witnesses between about 1987 and 1992. The assault on E.M. post-dated his conviction and jail time regarding the K.s, and occurred while he was on probation. The allegations regarding C.W. relate to 1996.

[37] The Crown addressed this gap by noting that in R. v. Finelli at paragraphs 35 and 36 the court found such gaps were common and found instead that the events were temporally linked to times when the accused was staying as a guest of a family.

[38] Defence counsel submitted that the time lag affects the weight of the evidence, but that it was not a large factor which this case would turn on.

[39] ii) EXTENT TO WHICH THE OTHER ACTS ARE SIMILAR IN DETAIL TO THE CHARGED CONDUCT

[40] The details of the accused’s activity as alleged by the complainant were compared to the accused’s conduct towards the similar fact evidence witnesses to see the extent to which they are similar. Specifically, the conduct alleged by the complainant included lying together, undressing, kissing, her fondling him, her fellating him, vaginal intercourse, threats to obtain silence and possibly inducements to cooperate. At this level, little similarity was noted. The sexual offences alleged by the complainant are substantially more serious than those alleged by the others, with the arguable exception of K.K.. Threats were noted to have been used in some instances, and inducements were possibly a feature of the accused’s conduct towards the complainant as they were to some of the others, but these seemed to me to be too common and generic to be probative.

[41] iii) NUMBER OF OCCURRENCES

[42] Defence counsel submitted that there were “a bunch” of occurrences, but that they were generic and did not show that the accused had offended again.

[43] It seems obvious to me that, where the Crown is trying to show a specific propensity, having multiple examples strengthens that position moreso than fewer examples would. However, although the Crown has proposed four similar fact witnesses, whether the evidence of any one of them would count as an occurrence, and to what extent, would depend on whether they are similar in detail, circumstances or distinctive features with the conduct charged.

[44] iv) THE CIRCUMSTANCES SURROUNDING OR RELATING TO THESE SIMILAR ACTS

[45] In all cases, the alleged victims were pre-pubescent children, the accused was said to have been a friend of the children’s parents, the parents trusted him to be alone with the children, and the misconduct was said to have occurred on the children’s home property. However, whereas C.W.’s allegations against the accused are that he engaged her in a game which led to sexual conduct, in all the other instances, except arguably one involving M.A., there was no game. Rather, there was generally a degree of force used. That K.K. is a male who was taken to a barn to be assaulted makes his circumstances quite different from the others. In the case of M.A., the accused is said to have offended against her on one occasion when her parents were in the residence in a different room. Although that might at first appear to be similar to C.W.’s situation, I see the facts of the two situations as really being quite different. C.W. alleges that the accused was having sexual intercourse and other sexual activity with her on several occasions, while they were both naked and her parents were in the next room. The sexual activity in M.A.’s case was much less involved, was more fleeting, and lacked a similar degree of brazenness.

[46] v) ANY DISTINCTIVE FEATURES UNIFYING THE INCIDENTS

[47] Distinctive features alleged by C.W. are the accused’s showing her a magazine with sexual content and his unwrapping of condoms which he did not then use. No such conduct was reported by the others.

[48] 2) THE ASSESSMENT OF THE PREJUDICE

[49] Counsel agreed that neither moral prejudice nor a reasoning prejudice were of as much concern in this case as they would be in a jury case. The similar fact evidence is strong, arising as it does from the accused’s guilty pleas. The conduct is generally less reprehensible than are the allegations involving C.W., except perhaps for those involving K.K., so it is not excessively inflammatory. The accused has pled guilty and been sentenced, reducing the motivation to punish him further. Nevertheless, the proposed evidence is prejudicial in that it reveals a general propensity to offend against children.

[50] 3) THE WEIGHING UP OF PROBATIVE VALUE AND PREJUDICE

[51] The similar fact evidence has some probative value, but it is not strong. There are numerous factual differences among the individual situations. Each situation by itself is distinguishable from the case at bar. I find that the prejudicial effect outweighs the probative value of the evidence, and that it should not be admitted. Therefore, the Application is dismissed.

Justice J. A. S. Wilcox

Released: November 15, 2012