ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17/13
DATE: 2013-09-26
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
Emily Roda, for the Crown
James Miglin, for the Defendant
HEARD: September 25, 2013
REASONS FOR DECISION
CROWN APPLICATION REGARDING SIMILAR ACTS
CONLAN J.
Introduction
[1] L.W. stands charged before a Judge and Jury in a multi-count Indictment alleging several sexual-related offences involving two alleged young victims.
[2] At the close of the Crown’s case, the Prosecution’s Application regarding similar acts evidence was argued.
[3] At the conclusion of oral argument by counsel, I indicated that the Crown’s Application was dismissed, with written reasons to follow.
[4] These are those written reasons.
[5] I am grateful to both counsel for their helpful oral submissions and to the Crown for the Factum and Book of Authorities.
The Positions of the Parties
The Crown
[6] The Crown submits that the Application ought to be allowed such that the evidence of S.W., one of the alleged young victims of the sexual-related offences, as to what happened to S.W. at the hands of Mr. W. (count 5 – invitation to sexual touching) be ruled admissible on the charges involving the other alleged young victim, P.E. (count 1 is sexual assault; count 2 is sexual interference; count 3 is invitation to sexual touching; and count 4 is making child pornography).
[7] Further, the Crown seeks to have the evidence of P.E. as to what happened to P.E. ruled admissible on the charge involving S.W.
[8] As can be seen, this is a similar acts Application across counts in the Indictment. It does not involve uncharged extrinsic conduct alleged on the part of the accused.
[9] The Crown submits that the proposed similar acts evidence is relevant to actus reus, the credibility of the complainants, to rebut the defence of innocent association, to prove motive on the part of the accused, and/or to show a pattern of behaviour exhibited by Mr. W..
[10] In support of the proposition that a valid purpose to admit similar acts evidence is to bolster the credibility of the alleged victims, the Crown relies upon the decision of the Supreme Court of Canada in R. v. B.(C.R.), 1990 142 (SCC), [1990] S.C.J. No. 31.
[11] Although the Crown acknowledged in oral argument that there are many things that are dissimilar between the allegations of the two complainants, the Crown stresses that they are nonetheless all alleged acts of a sexual nature and, thus, have in common a sufficient degree of similarity. R. v. L.B., 1997 3187 (ON CA), [1997] O.J. No. 3042 (C.A.) at paragraphs 34 and 37.
[12] In particular, the Crown stresses these similarities: (i) that the accused was in a position of trust and authority vis a vis both alleged victims, (ii) that both complainants are pre-teen girls, (iii) that both complainants were victimized in the same place – A.W.’s bedroom, (iv) that both girls had to pull their pants down and/or pull their shirts up, (v) that Mr. W. spoke inappropriately to both girls about sex-related issues, (vi) that the accused made both complainants watch pornography, (vii) that both alleged victims were promised material things in exchange for sexual favours, (viii) that Mr. W. was upset when each of the complainants refused to fulfill his sexual demands, and (viiii) that the alleged events complained of by both girls were proximate in time.
[13] The Crown submits that collusion among the complainants is not an issue.
[14] Finally, the Prosecution argues that any prejudice to the accused is minimal and can be adequately addressed through a limiting instruction to the Jury.
The Defence
[15] Counsel for Mr. W. asserts that there are no compelling similarities between the allegations of the two complainants.
[16] Further, the Defence argues that there would be a significant prejudicial effect if the Crown’s Application is granted because the evidence in support of count 5 (the charge related to S.W.) is substantially weaker than the evidence in support of counts 1 through 3 (the charges involving P.E., absent the child pornography count), and there is a material risk that the Jury will compensate for that weakness in count 5 through improper propensity reasoning.
[17] Counsel for Mr. W. disputes some of the alleged similarities in the allegations of the two complainants relied upon by the Crown.
[18] Finally, the Defence concedes that actual collusion among the alleged victims is not an issue. And, for the purposes of this Application, the Defence equally did not press that there is an air of reality to any argument that the two girls colluded with each other.
General Principles
[19] Evidence of similar acts is presumptively inadmissible.
[20] The onus is on the Crown to show on balance that (i) the evidence is relevant to an issue in the case and (ii) that the probative value of the evidence on the issue on which it is tendered outweighs its prejudicial effect.
[21] Similar act evidence may be relevant to issues like identity of the perpetrator, motive, credibility of the complainant (although the Courts have cautioned strongly that there is a danger of encouraging propensity evidence) and the actus reus of the offence.
[22] Probative value is determined largely by the connectedness between the similar acts and the actus reus of the offence in question. The degree of similarity required depends in part on the purpose for which the evidence is being tendered. Factors to consider are temporal proximity, similarity in detail, distinctive features which the acts have in common and collusion among witnesses.
[23] For any of the purposes for which it seeks to have the similar acts evidence admitted in this case, it is not necessary that the Crown demonstrate on balance the same high degree of similarity or striking similarity necessary in other instances, such as where the Crown seeks to admit the similar acts evidence to prove the identity of the perpetrator.
[24] Prejudice is determined by reference to factors like the risk of distraction by the trier of fact, the risk of a wrongful conviction and the risk that the trier of fact may infer guilt from general propensity.
Analysis
[25] I find that the Crown has failed to prove on balance that the similar acts evidence is admissible across the counts in the Indictment.
[26] First, I am entitled to make a preliminary assessment of the strength of the similar act evidence: R. v. Titmus, 2004 BCCA 633, 2004 B.C.C.A. 633 ().
[27] The evidence in support of count 5 is very weak. In the overall circumstances of what allegedly occurred in the bedroom between Mr. W. and S.W., there is no direct evidence and limited circumstantial evidence that what the accused allegedly asked the complainant to do and what she allegedly did (pull down her pants, turn around and pull up her shirt) was for a sexual purpose on the part of the accused. In fact, the wording of the charge in the Indictment does even allege so.
[28] Unlike the situation in R. v. L.B., supra, relied upon by the Crown, this is not a case where it can be said that the allegations of the complainants are at least all clearly of a sexual nature.
[29] Second, there is very little similarity in the actus reus underlying the charges related to P.E. and that underlying the offence involving S.W. P.E. alleges that she was made to touch Mr. W.’s penis; S.W. does not allege that she was forced to touch any part of the accused’s body. P.E. alleges that she was forced to suck Mr. W.’s nipples; S.W. does not allege that she was made to suck, lick, kiss or put her face or mouth on any part of Mr. W.’s body. P.E. alleges that Mr. W. touched her chest and vaginal area; S.W. does not allege that the accused touched any part of her body. P.E. alleges that Mr. W. himself forcibly pulled down her shorts and underwear; S.W. does not allege that the accused himself removed any of her clothing. P.E. alleges that Mr. W. sucked her chest and vaginal areas; S.W. does not allege that the accused sucked, licked, kissed or put his face or mouth on any part of her body.
[30] The material differences in the allegations of the two girls go on and on. Given the lack of connectedness between the acts complained of by the two alleged victims, the probative value of admitting the similar acts evidence is slight.
[31] Even taking in to account the overall circumstances, as emphasized by the Crown, there are few similarities.
[32] To use the same items argued by the Crown, I find as follows.
(i) The accused was in a much clearer, closer and longer position of trust and authority towards P.E. than he was towards S.W.
(ii) Both complainants are pre-teen girls.
(iii) Both complainants were allegedly victimized in the same place – A.W.’s bedroom.
(iv) Both girls were asked to remove their clothing.
(v) It is questionable whether Mr. W. spoke inappropriately to S.W. about sex-related issues.
(vi) S.W. was clear in her cross-examination that the accused did not make her watch pornography.
(vii) Both alleged victims were promised material things in exchange for favours.
(viii) Mr. W. was allegedly upset when each of the complainants refused to fulfill his sexual demands.
(ix) The alleged events complained of by both girls were proximate in time.
[33] On balance, the differences in the allegations of the two complainants are more material and markedly outweigh the similarities.
[34] Third and finally, the prejudicial effect of admitting the similar acts evidence would be significant and far exceeds the limited probative value.
[35] P.E. was undoubtedly a better witness at Trial for the Crown than S.W. The evidence in support of the charges related to P.E. is indisputably stronger than that in support of the charge related to S.W. (count 5). Yet, in my opinion, there is a significant risk that the Jury will engage in improper propensity reasoning and infer Mr. W.’s guilt on count 5 simply because of what P.E. says happened to P.E.
[36] In my view, there is a significant risk of a wrongful conviction on count 5. There is a significant risk that the Jury will find Mr. W. guilty of that offence on the basis that he has a general propensity to engage in inappropriate sexual conduct with young girls.
Conclusion
[37] For the above reasons, the Crown’s Application regarding similar acts is dismissed.
Conlan J.
Released: September 26, 2013
COURT FILE NO.: 17/13
DATE: 2013-09-26
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
REASONS FOR DECISION
Conlan J.
Released: September 26, 2013