COURT FILE AND PARTIES

COURT FILE NO.: 7191
DATE: 2012-02-09
SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, Applicant

and

Steven Boone and Noel Bowland, Respondent

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL:
A. Rajna, for the Crown

S. Reid, for the Respondent, Steven Boone

C. Fromstein, for the Respondent, Noel Bowland

HEARD: January 24, 2012

PRE-TRIAL RULING NO. 3

ADMISSIBILITY OF SIMILAR FACT EVIDENCE

[ 1 ] Steven Boone and Noel Bowland are charged with two counts of aggravated sexual assault on K.D. and C.S. on March 28, 2010. Mr. Boone faces an additional count pertaining to C.S. on March 27, 2010. The alleged offences are said to have occurred in the City of Kitchener.

[ 2 ] The defendants and the complainants are gay men. They engaged in consensual sexual acts. The defendants are diagnosed as HIV positive. The primary issues at trial, as I understand the case, will be:

a) whether the defendants disclosed their HIV positive status to the complainants in advance; and

b) whether the complainants would have participated in unprotected sexual acts had they been aware of the defendants’ status.

Application

[ 3 ] Crown counsel seeks a ruling as to the admissibility of certain evidence, described as similar fact, as hereafter particularized.

[ 4 ] The application pertains only to Mr. Boone. Counsel for Mr. Bowland takes no position.

[ 5 ] The initial application sought a preliminary ruling on admissibility should Mr. Boone call evidence such that it put his character in issue. In pre-trial ruling No. 2, I granted the defence application, permitting evidence related to the sexual activity of the complainants pursuant to section 276. In result, Crown counsel now seeks a ruling on the trial proper so as to permit, if granted, the introduction of certain evidence as part of the Crown’s case against Mr. Boone.

Hearing

[ 6 ] The application was heard on the date specified above. The evidence tendered consisted of preliminary hearing transcripts and transcripts of certain chat logs, the latter taken from Mr. Boone’s computer.

Proposed Evidence

[ 7 ] The proposed evidence, as I understand it, relates to the first issue; namely, whether Mr. Boone disclosed his HIV positive status to the complainants in advance.

[ 8 ] The evidence is briefly described as follows:

a) M.C. and D.S. are two young gay males who had unprotected sexual encounters with Mr. Boone in January and April 2010. These witnesses report making inquiry of Mr. Boone before the event and being told he was “clean”. M.C. and D.S. are two complainants in the Ottawa case that has not yet been scheduled for trial;

b) S.M. was Mr. Boone’s roommate in Ottawa in early 2010. He referred to conversations with Mr. Boone that suggest disclosure of health status was not always provided prior to sexual encounters; and

c) Similarly, the chat logs imply that disclosure was not made to sexual partners in every case.

Law

[ 9 ] Propensity evidence is generally excluded.

[ 10 ] In R. v. Handy , 2002 SCC 56 , [2002] S.C.J. No. 57 (S.C.C.), Binnie J., at para. 41, referred to the narrow exception where the “... evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse ...”.

[ 11 ] In determining whether probative value outweighs prejudicial effect, Binnie J. identified a number of factors, set out at paras. 76-84, namely:

i) proximity in time;

ii) similarity in detail;

iii) number of occurrences of similar acts;

iv) circumstances surrounding the similar acts;

v) any distinctive features unifying the incidents;

vi) intervening acts;

vii) any other factor to support or rebut the underlying unity of the similar acts;

viii) inflammatory nature of the similar acts;

ix) whether Crown can prove its point with less prejudicial evidence; and

x) potential distraction of the jury from its proper focus on the facts charged.

Analysis

[ 12 ] Generally speaking, the proposed evidence satisfies some of the aforementioned factors. There are shortcomings, including:

a) although M.C. and D.S. refer to non-disclosure by Mr. Boone, another witness, M.B., testified to the contrary;

b) much of the evidence pertains to the outstanding Ottawa charges;

c) the S.M. conversations focus on propensity;

d) mixed messages are revealed in the chat logs; and

e) obvious concern as to the reliability of the chat log statements.

[ 13 ] All of the proposed evidence is similar fact in nature. Crown counsel argues the evidence of S.M. is admissible on its own as it refers to Mr. Boone’s state of mind. I disagree. The key component is propensity.

[ 14 ] Reference was also made as to how Mr. Boone became infected. Although there was some confusion as to the purpose of such evidence, counsel agree it is not similar fact. Relevance, however, has not yet been established.

[ 15 ] I am not persuaded Crown counsel has met the requisite test. The evidence is highly prejudicial and the mixed, or inconsistent, nature of the evidence results in it falling short on probative value. Lastly, the evidence of S.M. deals with propensity and is characteristic of the basis for the original exclusionary rule.

[ 16 ] Accordingly, the proposed evidence is not admissible and the Crown’s application is dismissed. The ruling may be revisited during trial, dependant on the nature of evidence presented.

D.J. Gordon J.

Released: February 9, 2012