WARNING
The presiding judge directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT FILE NO.: 12-70000829-0000
DATE: 20131206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Corie Langdon, counsel for the Crown
Applicant
- and -
R.E.L.
Christopher Avery, counsel for the Defendant
Defendant/Respondent
HEARD: July 23-26, 29, 31 and August 1, 2013 at Toronto, Ontario
Michael G. Quigley J.
Reasons For Ruling
Re: Similar Fact Evidence Count-to-Count
Overview
[1] R.E.L., aka A.T., is charged with sexual assault with a person under 14 years of age and gross indecency. Initially there were three complainants, but the remaining charges now relate to only two remaining complainants, M.Y. and K.J.. When they knew him, the accused was known as A.T., but he has now reverted to his birth name of R.E.L.. In the case of M.Y., the accused is the second cousin, once removed, by adoption. The accused is an uncle to K.J. since he is the adopted brother of K.J.’s mother.
[2] On this application, Crown counsel asks the court to admit evidence of discreditable conduct of the accused as similar fact evidence on a count-to-count basis. I am asked to admit the evidence of M.Y. and K.J. as evidence of discreditable conduct of the accused (or similar fact evidence) in order to (i) demonstrate a pattern of behaviour, namely, that the accused has a situation specific propensity to sexually abuse young males; (ii) to negate a defence of fabrication, and (iii) to support the account of each of those complainants with the evidence of the other based on claimed similarities in the sexual abuse allegedly perpetrated by R.E.L. and the circumstances in which it happened.
[3] I have granted the Crown’s application to admit similar fact evidence on a count-to-count basis as between the charges. Applying the methodology of analysis mandated by the decision of the Supreme Court of Canada in R. v. Handy, and after considering the specific as opposed to generic similarities that exist between the evidence of those two complainants, I find that the evidence is admissible at R.E.L.'s trial on a count-to-count basis to demonstrate a pattern of behavior.
[4] It is also admissible to negate a defence of fabrication. Further, the governing authorities accept and I find that the similar fact evidence is admissible to confirm the veracity of the testimony of the complainants – and to be taken into account in a consideration of the credibility and reliability of their evidence. It is properly admissible to support the evidential account of M.Y. and K.J. of the sexual abuse that each of them alleges was perpetrated against them by the accused.
Summary of the evidence
Evidence of M.Y.
[5] M.Y. testified on July 23, 2013. He is related to R.E.L.. His grandmother, L.F. and R.E.L.’s adopted mother, V.T., were sisters. He was the son of R.E.L.’s oldest cousin, S.F.. He claimed to have been sexually abused by R.E.L. a number of times between the ages of 5 and 14 years. That correlates with the time period between 1969 and 1979. He is now 48 years old. R.E.L. would have been about 19 when the sexual touching and other conduct is alleged to have commenced.
[6] M.Y. recalled that the first time R.E.L. abused him occurred in Florida when he was 5 or 6 years old. He said he and his family were in Florida vacationing with M.Y.’s grandparents and R.E.L.’s family. They were all sharing a rented condominium. R.E.L. was left to babysit M.Y. and his sister while the adults went out. M.Y. recalled jumping up and down on a bed, but that R.E.L. pulled his blue patterned bathing trunks down and began to touch his penis with his hand and caress his buttocks. He remembered that the touching lasted for approximately two minutes, and that R.E.L. took a photograph of his naked genitals. He did not disclose this instance of sexual abuse at that time.
[7] After they returned from Florida, M.Y. recalled four separate locations where he was sexually abused. The majority of the sexual abuse occurred at his grandparents’ house at B[…] Drive in Scarborough, but he recalled three other locations where the abuse occurred: at R.E.L.’s address at P[…] Road, once at C[…] when R.E.L. worked there and once at Sibbald’s Point on Lake Simcoe when M.Y. testified that he and his family had been camping with R.E.L. and his family.
(i) The Abuse at B[…] Drive
[8] M.Y. did not have a clear recollection of the first time R.E.L. sexually abused him at his grandparents’ house after they returned from the Florida trip. However, M.Y. did specifically recall a number of specific instances of being touched sexually by the accused when he was between the ages of 5 or 6 and 14.
[9] He remembered that his grandparents’ house at B[…] Drive was a bungalow. When he was there with R.E.L., he recalled that they spent the majority of their time together in the basement, where he had specific recollection of a recreation room, a laundry room and a workshop. Whenever they were in the workshop and there was an opportunity to do so, R.E.L. would pull his pants down, either to below his knees or to his ankles, and touch M.Y.’s penis with his hand. There were also occasions when R.E.L. would remove his penis from his pants, lick his left hand and hold both his and M.Y.’s penises together to masturbate himself.
[10] M.Y. described a number of occasions when he would perform fellatio on R.E.L. or that R.E.L. would perform fellatio on him. Lastly, M.Y. specifically remembered that on almost every occasion when R.E.L. would perform fellatio on him, he would also lick his finger and attempt to penetrate M.Y.’s rectum with his finger. M.Y. testified that these instances of sexual abuse happened so frequently that he was unable to recall exactly how many times he was sexually abused at this address, but he was clear the instances were numerous when he was between the ages of 5 or 6 and 14. The adults were generally upstairs while this sexual abuse was taking place in the basement.
[11] When asked about specific instances, M.Y. testified that he recalled being in the shop and performing fellatio on R.E.L.. R.E.L. ejaculated in M.Y.’s mouth. He recalled that the ejaculate tasted salty and that he did not like the taste. He recalled spitting the ejaculate out on the floor of the shop. He testified that he cleaned his mouth out with Ajax cleanser when he got home that night to get rid of the taste. He recalled that he was about seven years old when this happened. Other than that one instance of ejaculation in his mouth, M.Y. testified that R.E.L. did not ejaculate frequently. He specifically recalled that was the only time that R.E.L. ejaculated in his mouth.
[12] M.Y. had another specific recollection of sexual abuse that he believed happened when he was eight or nine years old. M.Y. described that he was in the shop with R.E.L. and that they had been ‘playing with each other’. M.Y. testified that he recalled being bent over on some shelving when R.E.L. licked his hand and wet M.Y.’s rectum. R.E.L. then anally penetrated M.Y. with his penis. The penetration did not last long – only thirty seconds to one minute – because M.Y. explained that it hurt too much and he could not handle it. That was the only time that R.E.L. attempted to penetrate him anally with his penis.
[13] M.Y. also testified that he recalled at least one instance when he and R.E.L. watched a reel-to-reel film in the basement of B[…] Drive and following that, R.E.L. put a pornographic movie on for them to watch.
(ii) The Abuse at P[…] Road
[14] M.Y. testified that he was also sexually abused at R.E.L.’s home located at P[…] Road, in Toronto. That house was a bungalow and M.Y. recalled that when he was there, he and R.E.L. would spend most of their time together in the basement. Between the ages of 5 and 12, he and his family went there three or four times per year, mainly on holidays or for family functions. He remembered that on each occasion when there was an opportunity for him to do so, R.E.L. would sexually abuse him.
[15] M.Y. had a specific recollection of R.E.L. usually putting on a movie, either on reel-to-reel, beta, or VHS. The families would watch the movies together, but once the movies would end the adults would make their way upstairs while R.E.L. and M.Y. would remain in the basement. Then R.E.L. would either show him pornographic magazines or they would watch a pornographic movie and the sexual touching would commence. M.Y. did not have a clear recollection of how many times he was sexually abused in R.E.L.’s basement, but he was clear that it happened on a number of occasions from when he was between the ages of 5 or 6 years old to when he was 12 years old.
[16] M.Y. recalled that the sexual abuse would generally commence while he and R.E.L. were on the couch in the recreation room. R.E.L. would touch his penis and testicles and then either R.E.L. would perform fellatio on M.Y. or M.Y. would perform fellatio on R.E.L.. M.Y. indicated that while R.E.L. did not attempt to penetrate his rectum with his penis at this address, it was common for him to penetrate M.Y.’s rectum with his finger when he would be performing fellatio on M.Y..
[17] He was asked about and recalled a specific instance of sexual abuse taking place at this address where he and R.E.L. were sitting on the couch in the recreation room. R.E.L. was sitting to his left, but reached over and pulled M.Y.’s pants down a little bit and began to perform fellatio on him for about two minutes. He did not ejaculate. M.Y. indicated that he was between 5 or 6 and 12 years old when this occurred.
[18] M.Y. could also recall a second specific instance of sexual abuse that happened at P[…] Road. He recalled sitting on the couch in the basement with R.E.L. who was touching M.Y.’s penis with his hands but then pushed M.Y.’s pants down and stood up. M.Y. stood up as well. R.E.L. crouched down (which M.Y. demonstrated for the Court), spat in his hand and began to rub his penis against M.Y.’s penis to masturbate himself.
[19] M.Y. also recalled going to P[…] Road without his parents, either on his own or with his friend Ron Huntley, between the ages of 12 and 15 because R.E.L. would provide him and them with dark rum. During this time period, R.E.L. would show M.Y. movies, either pornographic or dramatic movies, which they would watch in the basement. And there would also be sexual touching, which M.Y. described as fondling and fellatio and he recalled instances where he ejaculated in R.E.L.’s mouth or on the carpet. During this time period M.Y. also recalled that R.E.L. successfully penetrated his rectum with his finger on a number of occasions. M.Y. testified that there were about thirty instances of sexual touching that occurred during this time period.
(iii) The Abuse at Sibbald’s Point
[20] M.Y. testified that there was also several instances of sexual abuse that occurred between him and R.E.L. at a camp ground near Sibbald’s Point, which is a Provincial Park on Lake Simcoe near Sutton Ontario.
[21] The first took place in the showers, which M.Y. remembered as a cinder-block type building. He testified that he was in the shower once and R.E.L. got into the same shower stall with him and began to wash him with soap. M.Y. testified that while in the shower R.E.L. touched him all over his body and stroked his penis. M.Y. had a specific recollection that this occurred when he was 7 years old because he remembered it as the summer when his father purchased a new boat.
[22] M.Y. also described another instance of sexual abuse which took place in the outhouses at Sibbald’s Point. M.Y. described that there were two stalls in the outhouse, separated by a partition. M.Y. described that R.E.L. crawled under the partition so that the two were in the same stall. Once in the same stall R.E.L. touched M.Y.’s penis and testicles with his hand, and performed fellatio on him. M.Y. did not recall specifically how old he was when this occurred, but when questioned in cross-examination indicated that it was sometime between when he was 5 to 10 years old.
(iv) The Abuse at C[…]
[23] M.Y. testified about one further instance of sexual touching, which occurred when he was a teen at the C[…] building located at McCowan Road and Highway 401. R.E.L. was employed there as a security guard and offered to take M.Y. and his friend on a tour of the building. During this tour M.Y. recalls being in a meeting room where R.E.L. touched his penis and testicles over his pants. M.Y. described this action as a grope. M.Y. could not recall where his friend was when this groping occurred.
(v) The End of the Abuse
[24] M.Y. testified that when he was 14 years old he began to experience some confusion about his sexuality. Upon starting to experience this confusion, he told R.E.L. that he was not ‘gay’ and that the sexual touching could not continue. M.Y. testified that there were no further acts of sexual abuse that occurred after this conversation took place.
(vi) The Photographs
[25] Finally, M.Y. testified that R.E.L. took many photographs of him during the time frame that he was being sexually abused. M.Y. testified that he recalled having photos taken of his genital region both clothed and nude at both B[…[] Drive and at P[…] Road. M.Y. specifically recalled that these photos were taken with a Polaroid camera, as he could see the photos coming out the front or with a 35 mm camera. M.Y. believed he was 10 years old when the photos were taken at B[…] Drive and 11 to 12 years old when his photo was taken at P[…] Road.
Evidence of K.J.
[26] K.J. was born in […], 1972 and he is related to R.E.L. through his mother’s parents. His mother, C.T., and R.E.L. were sister and brother. That makes R.E.L. K.J.’ uncle by adoption as K.J.’ maternal grandmother is R.E.L.’s adopted mother. K.J. is now 41. He had two older sisters, A. and H.J.. A. was five years older than K.J.. The abuse is alleged to have taken place starting about thirty years ago in or about 1982, commencing when K.J. was 10 years of age. R.E.L. would have been about 32 at that time.
(i) The Sexual Abuse in Florida
[27] K.J. testified that when he was about 10 years old, he travelled with R.E.L. to visit his grandparents in Florida. When cross-examined on his recollection of his age, K.J. indicated that ten was his best guess – that was what he recalled. He said that his grandparents had a trailer there and that he visited them one time over March break. The trailer was parked in a trailer park and it was about 23 feet long.
[28] During that trip to Florida, K.J. recalled that he and R.E.L. roomed together in the back room, which was the bedroom. K.J.’ grandparents also stayed in the trailer, but they slept on a fold out couch in the living room area of the trailer. K.J. remembered the distance between the bedroom and the fold out couch as approximately 20 feet.
[29] The first time that the abuse occurred, K.J. testified that he was sleeping on the side of the bed away from the wall. He recalled waking up in the middle of the night and discovering that R.E.L. was touching his penis with his hands over his pyjamas or track-pants.
[30] In addition to that first incident, K.J. described two other occasions where R.E.L. touched him sexually, both of which occurred while they were in Florida together. K.J. described one incident as follows: K.J. woke up in the bed to find R.E.L. touching his penis under his clothes. R.E.L. then performed fellatio on him. K.J. recalled that this incident happened at night and he felt as though it lasted for two hours.
[31] The next incident that K.J. described in his evidence involved fellatio and an attempt at anal penetration. He recalled waking up to R.E.L. touching him. R.E.L. was on the inside of the bed, or at the part closest to the wall. K.J. was on the outside of the bed. R.E.L. performed fellatio on him and then wanted K.J. to reciprocate. K.J. did not want to do that. He recalled that R.E.L. offered to pay him $10.00. Eventually, K.J. performed fellatio on R.E.L., who then attempted to anally penetrate K.J. with his penis. K.J. recalled that he was lying on his left side and R.E.L. was lying behind him. K.J. indicated that R.E.L. attempted to put his penis into his bum, but it would not go in. R.E.L. then placed his penis under K.J. genitalia, from behind and humped him. K.J. did not recall if R.E.L. ejaculated on that occasion.
[32] K.J. did not disclose this abuse to his grandparents while he was in Florida, nor did he disclose it to his parents when he returned home.
(ii) The Abuse at P[…] Road
[33] K.J. testified that the sexual abuse continued after both he and R.E.L. returned to their Toronto homes from Florida. K.J. not certain of how much time passed between the return from Florida and the next instance of sexual touching, but he said it was approximately three months later when R.E.L. started to touch him again sexually in Toronto.
[34] K.J. claimed to remember going to the P[…] Road the address where R.E.L. lived so that R.E.L. could watch him while his parents were otherwise engaged. K.J. did not recall that his grandparents were home when the instances of sexual touching took place. He testified that he would go to P[…] Road about twice a month.
[35] During his testimony, K.J. recalled two instances of sexual touching which occurred in the basement of P[…] Road. He said that he and R.E.L. would be sitting in the basement on these occasions and that R.E.L. would provide K.J. with a rum and Coke or a rye and Coke. They would watch a pornographic movie and there would be sexual touching. K.J. described that R.E.L. would fondle his penis over and under his clothes. K.J. did not recall that the abuse progressed past that form of touching on these occasions and he was unsure of his exact age, but he believed that those two instances of sexual touching occurred when he was between the ages of 10 and 14 years old.
(iii) The Photograph
[36] K.J. recalled one specific instance when R.E.L. performed fellatio on him. K.J. testified that he and R.E.L. were upstairs together in R.E.L.’s bedroom at P[…] Road. R.E.L. wanted to take a picture of K.J.. K.J. did not want to have his photograph taken, but R.E.L. talked him into it. It was K.J.’ evidence that R.E.L. took that photo using a Polaroid camera. R.E.L. took that photograph of K.J. with no clothes on. While they were in that bedroom, he said that R.E.L. performed fellatio him. K.J. indicated that this incident occurred when he was on the cusp of puberty, which was when he was 12 or 13 years old. K.J. also testified that he saw the photograph on one occasion and specifically recalled that the Polaroid camera was an old camera and that it was black with a white face.
(iv) The End of the Abuse
[37] As time progressed, K.J. also testified about a time when he started to feel nervous to go to R.E.L.’s home. He did not want the abuse to continue. On the one occasion, he said that he defecated in his pants in order to make himself repulsive to R.E.L. and thereby prevent himself from being sexually abused. R.E.L. realized what had happened when he tried to remove K.J.’ pants. But K.J. then testified that he and K.J. took a bath together. He did not believe that any sexual touching took place when he was in the bath with R.E.L.. K.J. testified that following the bath, he and R.E.L. returned to the upstairs couch. R.E.L. again attempted to pull K.J.’ pants down and K.J. said that this had to stop. He told R.E.L. that what was happening was not right and that he could not do it anymore.
[38] K.J. testified that he observed that R.E.L. looked very surprised at this statement, but that he did not persist and there were no further incidences of sexual touching following this incident. K.J. indicated that he was 14 when this occurred. K.J. testified that he did not tell anyone about the abuse while it was occurring. He said that he was too embarrassed and he was worried about whether he would be believed.
Principles of Admissibility
[39] Evidence of similar fact or prior discreditable conduct evidence of an accused person[1] is presumed to be inadmissible at trial. That presumption arises out of the concern that it may be founded on the propensity or disposition of the accused, and lead a trier of fact to the conclusion that it is more likely that the accused is guilty of a current offence simply because of having exhibited the same or similar conduct in the past.[2]
[40] However, similar fact evidence will be admitted where the Crown establishes on a balance of probabilities that the evidence is relevant and probative to a live issue at trial, and provided its probative value outweighs its prejudicial effect.[3] In order to be admissible, the quality of the evidence and its similarity to the current matter must be such that “it would be an affront to common sense to suggest that the similarities were due to coincidence”[4] in the absence of collusion.
[41] In this case, the events that are alleged occurred almost forty years ago in the case of M.Y. and thirty years ago in the case of K.J.. The defence is that the events alleged never happened, that the evidence of the complainants is not credible and that even if it is, the events happened too long ago for the complainants’ memories to be reliable. The Crown seeks to have the evidence of the two complainants admitted as similar fact on a count-to-count basis to counter this defence. Crown counsel argues that it is important evidence relative to credibility. It corroborates the evidence of both complainants, because it demonstrates a pattern of behaviour by the accused similar enough in its elements or in certain of its details in each of their separate cases to show a commonality to the actus reus of the offences against each of them based on a pattern.
[42] It is well established that the evidence may be admitted for the purpose of showing the existence of such a common pattern of behaviour,[5] or to demonstrate a specific propensity on the part of the accused, such as to use his status as a member of a family and the opportunity that may give him to molest underage family members in their own homes.[6] As well, however, similar fact evidence may also be used to bolster the credibility of a complainant witness, particularly in a case like this of historical sexual assaults allegedly perpetrated decades earlier.[7]
[43] In this case, as in R. v. M.B., the purpose of the proposed similar fact evidence is to prove not only the actus reus of the offences, that is, that they occurred, but also that they arise from a situation specific propensity on the part of the accused. In this case, as in M.B., Crown counsel concedes that if ruled admissible, the evidence will or at least may also have a secondary effect of bolstering the credibility of the complainant, especially in a case like M.B. and this case where concerns about the consent of the victims are not present. There is no concern here about whether they might be credible on a consent issue. That question is not relevant because both complainants were under 14 at the time the assaults commenced. As statutory minors, they were legally incapable of providing consent.
[44] The authorities show that these are both permissible purposes for which the evidence of prior discreditable conduct may be used – to prove the actus reus of the offences and to bolster credibility of the complainants, that is, provided the requisite degree of similarity is present and provided the probative value of the evidence exceeds its prejudicial effect.
[45] So what degree of similarity is required? Charron J.A., as she then was, addressed this issue directly at paragraph 34 and following of R. v. L.B.[8] The required degree of similarity will vary in every case according to the particular circumstances and the particular inferences sought to be drawn from the evidence. No general statement of the required degree of similarity is possible where the evidence is adduced to prove the commission of the offence. However, Charron J.A. refers to the House of Lords decision in D.P.P. v. P.(H.L.(E.))[9], where the court provides the following helpful guidance:
When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include striking similarity in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. [emphasis added by Charron J.A.]
[46] However, not every offence involving similar fact evidence will rise to the level of a signature criminal method used by the accused from which identity and association of one person to numerous crimes may be established. One immediately thinks of some of the horrific crimes that have been the stuff of criminal history and which have displayed this kind of unique and repeating identifying feature. However, the decision in L.B. also confirms that the degree of similarity need not be striking, and in circumstances where the question is whether a crime has been committed it would impose an unnecessary and improper restriction upon the application of the principle to insist on the presence of a signature or other unique special feature.
[47] Binnie J. emphasized in R. v. Handy that the trial judge must identify the degree of connection and similarity between the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence sought to be introduced have sufficient probative value to be admitted. In considering the degree of similarity that is present, he identified seven factors against which the evidence may be taken into account, including (i) proximity in time of the alleged similar events, (ii) the degree of similarity between them, (iii) the number of occurrences, (iv) the circumstances surrounding them, (v) the distinctive features, if any, underlying them, (vi) the existence, if any of intervening acts, and (vii) and other fact tending to support or rebut the underlying unity of the alleged similar facts.[10]
[48] At paragraph 78, however, he distinguished between circumstances where the issue is the actus reus of the offense rather than the identification of the accused. Binnie J. emphasized that where the actus reus is in issue, the issue is a different one and as he explained, in such a case the drivers of cogency in relation to the desired inferences will be different than those that are in play where the issue is identification.
[49] Thus, for example, at para. 67 of R. v. R.B.[11], Simmons J.A. reviews the list of connecting factors from Handy, and compared those factors to the similarities that were alleged in the circumstances of the case before her, but found the degree of similarity to be deficient. She concluded that apart from generic similarities, there were no distinctive unifying features of the discreditable conduct evidence and the complainant’s evidence. Further, the small number of incidents as well as their remoteness from the incident that was the subject matter of the alleged index offence diminished the probative value of the incident as evidence of a pattern of conduct. As she put it, the identified similarities “failed to establish a persuasive degree of connection.”
[50] In that case, the father of the 8 year old complainant was alleged to have blow-dried his daughter’s genitals and kissed them after they had been swimming together. The alleged similar fact evidence arose from two prior convictions, but the facts in those prior matters were plainly different than the case that was before the court. The similarities that were identified failed to measure up because the court saw them as generic. None of them was distinct. The alleged similarities claimed to be adequate to invoke the evidentiary rule in that case were (i) that the appellant had sexually touched children aged 10 years or under on two prior occasions, (ii) that the incidents all involved genital touching, (iii) that they all occurred in private, and (iv) that the appellant told one of the children that he was sorry and it would not happen again. Simmons J.A. concluded that apart from generic similarities, there were no distinctive unifying features of the discreditable conduct evidence and the complainant’s evidence sufficient to establish a persuasive degree of connection that could support the introduction of the prior discreditable conduct evidence.
[51] A better example of the kind of similarity and connection that is engaged in this case can be found in the decision of R. v. Cook.[12] That was a case, like this one, where the charges related to historic indecent and sexual assaults. In that case the complainants were former pupils of the accused between 1981 and 1984 when they were about 12 or 13 years of age. The Crown sought to admit testimony of students whose complaints were not the subject of the charges but as well, as in this case, sought an order that the evidence of each complainant was admissible on the counts relating to the other complainants. Admissibility was permitted but only on the count-to-count evidence of the complainants.
[52] At paragraphs 12 to 14, Trafford J. observed that in the case of sexual offences, it may not be the sexual aspects of the offences that are distinct as much as the circumstances in which they occur, the precise situation claimed by Crown counsel to be present here. The similarity must be capable of establishing an inference that the defendant has a specific propensity to commit certain acts. Where the evidence is tendered on the issue of credibility of the complainants and the rebuttal of the defence of innocent association, the similarities need not be striking, but neither can they be generic in nature if their probative value is to outweigh the moral prejudice that may result from their admissibility. Trafford J. continued at paragraph 14:
It is also important to determine which similarities are compelling. In cases of sexual assault, the similarities or dissimilarities between the alleged sexual acts are relevant, but usually not as important as the circumstances surrounding them because there is nothing unusual about the sexual acts themselves. It is their context that may, or may not, make them distinctive. See R. v. B. (L.), supra, at para. 37.
[53] Finally, relative to the issue of similarity, counsel for the Crown drew my attention to the 2009 Court of Appeal decision in R. v. Cresswell.[13] In that case, the accused had been convicted of five counts of indecent assault and one of sexual assault at a judge alone trial. The offences had been committed from 1974 to 1983 and all involved adolescent male victims. At trial, the judge had allowed the Crown’s similar fact evidence application as between counts but the appellant argued that the similarities the trial judge had identified reflected only generic details that one might expect to see in all types of sexual offences.
[54] The Court of Appeal rejected this proposition. The trial judge identified specific elements in the evidence that in his view rendered the evidence on each count admissible on all other counts. The appellant had engaged in the sexual contact with the complainants, one or more of them, over a ten year period with no gap. The sexual acts were all similar in their detail and all of them involved abuse of young males starting at age 14 or less.
[55] There were a large number of incidents sufficient to support a finding of situation specific behavior. Moreover, the similarities established a modus operandi that involved grooming and creating surprise sexual opportunities to molest young males. All five complainants had participated in weekend visits at the appellant’s farm and four of the five of them were sexually assaulted there. In each of the five cases, the appellant gained the trust of the complainants’ parents and it was through that connection that he arranged to have them entrusted to his care overnight. All five of them were assaulted late at night while sleeping and there was little or no discussion between the appellant and the complainants before during or after any of the sexual acts.
[56] The court concluded against that background that it was open to the trial judge to conclude that the similarities went beyond merely generic similarities that one might expect to find in relation to any sexual abuse. It did not make a difference that some of the complainants alleged single incidents of abuse while others alleged multiple occurrences. It did not make a difference given the other common features to each of the allegations. Importantly, the court also emphasized that admissibility of the prior discreditable conduct evidence is conditioned by the issue to which it is directed, and confirmed that where the evidence goes not to identity, but rather to whether the offences occurred and the actus reus, less cogent similarities may nevertheless render the evidence admissible.
[57] Finally, the analysis requires that the probative value of the evidence and its strength must be considered and I must consider the potential for collusion between the witnesses who provided testimony. In this case, given the difference in their ages and the fact they come from different sides of the same family, only one brief allusion was made by defence counsel to the possibility of collusion, but it was not pursued and he effectively acknowledged in argument that there was no urgent basis to conclude that collusion was present in this case. Even if it were, however, that would only curtail the potential admissibility of the evidence to the extent that it would impose an additional burden on the Crown to establish on the balance of probabilities that the evidence was not tainted by collusion.
[58] Collusion must be discounted and I must be satisfied on a balance of probabilities standard that it is not present since it undermines the objective improbability of coincidence that is the foundation for the probative value of the prior discreditable conduct evidence.[14] Here, based on the disconnections between the two complainants, in their ages and in the conduct of their lives, I am satisfied on the evidence to a balance of probabilities standard that there was no collusion here and would have so found had defence counsel not realistically and reasonably effectively dismissed the possibility.
[59] At the conclusion of this part of the analysis, Handy requires me to engage in an assessment of the potential prejudice that would be caused to the accused by the introduction of the prior discreditable conduct evidence, including both the possibility and potential for moral and reasoning prejudice. Finally, I am required to weigh the probative value of the evidence against its prejudicial effect in determining whether or not the evidence will be admitted.
Applying the Principles
(i) Is the evidence probative and relevant to an issue at trial?
[60] The first steps in the Handy analytical framework, requires me to focus on the probative value of the evidence. I must determine whether the purpose for admitting the evidence is relevant and probative to a live issue at trial. The issue in this case is whether the alleged incidents took place and the accused sexually abused these two complainants in the manner that they describe.
[61] However, the offences occurred many years ago. No forensic evidence or witnesses are available to corroborate their allegations. It is the core position of defence counsel that the complainants should not be believed and that the passage of time and other factors renders their evidence unreliable. Thus, one potential source of corroboration is the testimony that each of them gave on matters that were also testified to by the other. This is of importance given that they barely knew each other, and that there appears to be no cogent concern that they could have colluded in their evidence. In those circumstances, one of the permitted purposes for the proposed introduction of the evidence is to negate a defence that the complainants are fabricating their stories and to support the account of each of the complainants by means of the evidence of the other.
[62] Equally importantly, however, is the other purpose relevant in this case and for which Crown counsel seeks to have the similar fact evidence introduced. That is to demonstrate a pattern of behavior on the part of the accused who the Crown asserts has a situationally specific propensity to sexually abuse young preadolescent and adolescent males. In my view, the authorities make clear that both of these purposes are permitted and can serve as a foundation for the admissibility of the similar fact evidence on the basis of probative value relative to live issues at trial. The purpose of demonstrating a specific propensity on the part of R.E.L. to sexually abuse young preadolescent and adolescent males is virtually identical to the purposes that were found to be acceptable in R. v. M.B. and in R. v. Finelli.
[63] In M.B. the issue was framed as “whether the proffered similar fact evidence demonstrates a specific propensity on the part of Mr. B. to engage in sexual contact with young children within the family home and with whom he stands in a close familial relationship, as uncle.” In Finelli, the similar fact evidence was admitted “to demonstrate a specific propensity on the part of Mr. Finelli to exploit his status as a family friend and overnight guest in order to sexually assault prepubescent girls in their own homes by fondling them.”
[64] I find that the purpose for which it is sought to introduce similar fact evidence in this case of demonstrating a situation specific propensity on the part of R.E.L. to sexually abuse young preadolescent and adolescent males is an equally acceptable purpose relevant to the issues at trial. In my view the connectors are even stronger than was stated by Crown counsel since R.E.L. was a cousin by adoption to one of them, and an uncle by adoption to the other complainant. This emphasizes the point that his situational propensity for abuse would activate in this case entirely within a familial setting, in his own home, and other family homes including vacation settings, when other family members were visiting, and with complainants with whom he was “family.”
[65] Further, while I am mindful of the admonition in R. v. R.B., above, against permitting the issue to merely be framed merely as the “credibility of the complainant” it is plain that similar fact evidence can be supportive of the credibility of an allegation and has been accepted for that purpose. This is particularly so in cases which pit the word of a child at the time of the alleged sexual assaults against the word of an adult accused, where similar fact evidence may be useful on the central issue of credibility: see R. v. B.(C.R.) and R. v. Gelesz, both above. In conclusion on this point, I find that the purpose for which the Crown seeks to introduce the evidence meets the requirements of the first step in the Handy analysis.
(ii) Similarities and strength of the evidence
[66] Turning to similarity, I find that there are a number of strong similarities in this case between the occurrences testified to by M.Y. and those relayed in the evidence of K.J. on a number of specific grounds. These include their evidence relative to (i) their age during the time that the abuse occurred, (ii) the circumstances in which the abuse commenced and the manner in which it progressed, and (iii) that there are common locations where the abuse occurs, namely at the grandparents’ vacation home in Florida, at P[…] Road where R.E.L. lived with his adopted parents, and at the grandparents’ residence at B[…] Drive.
[67] Defence counsel contends that the evidence relating to at least two of these topics is generic in nature. He argues that they cannot be considered similar for purposes of this analysis and that their generic nature precludes them from being probative of anything. However, as the paragraphs that follow show, while there are admittedly generic similarities present here in some respects, as frequently happens in sexual assaults given the nature of the offence, there is also a strong confluence of the two separate bodies of testimony provided on this trial by M.Y. and K.J.. They are two distantly related members of the same family but who essentially did not know each other, relative to the events that happened to each of them and the similarities of those events.
[68] As the court observed in Cook, above, it is not unusual to find generic aspects to the sexual conduct, but there are also specific similarities that are distinct relative to certain of the sexual aspects of the offences and how the conduct progresses, and the more compelling unique features relate to the confluence of similar circumstances in which that sexual conduct occurs, circumstances that seem incapable of being mere coincidence.
[69] Dealing first with age, the abuse commenced in the case of M.Y. at about age 5 or 6. That was earlier than in the case of K.J.. It started for him when he was 10 years of age. It is common, however, and its’ important aspect is that it commenced when both were pre-pubescent and continued for both through the onset of puberty and into their early teen years when it stopped. Each of them initiated the end of the abuse when they reached about 14 years of age and came to realize that the conduct they were engaged in with the accused was wrong.
[70] It is also similar that they each confronted R.E.L. in dramatic circumstances, and demanded that the sexual conduct with him must stop. In both cases they acknowledge that it does stop and there are no further occurrences. Neither complainant previously resisted R.E.L.'s advances. However once they did, he no longer pursued interactions with them and the sexual conduct stopped.
[71] From this circumstance it seems common that R.E.L. was prepared to pursue sexual interactions with each of them for so long as they were seemingly willing participants, even though in each case, each complainant was under the statutory age of consent when the alleged sexual activity occurred, and R.E.L. was presumed to know this.
[72] It is also common between them that there were no threats or fear on their parts, other than fear of embarrassment and shame. Each of them testified to their embarrassment which prevented them from disclosing the sexual conduct they were being subjected to their parents or other adults in the family, although that is plainly a generic feature to many circumstances of abuse.
[73] It is curious that the first time that R.E.L. is claimed to have made advances towards M.Y. and later K.J. was during two separate vacations in Florida, and in both cases, he took advantage of each of them when they were substantially younger than he was as soon as he was left alone with them or they were left in his care. The activity commences with surface fondling and only progresses on later occasions. M.Y. said there was one occurrence where R.E.L. touched him sexually in Florida. K.J. said there were three or four occurrences in Florida, which increased in their severity as the time passed. What is common is where it occurred, that it was a family vacation residence, and that the younger boys had been left in the care of their older cousin in M.Y.’s case, and uncle in K.J.’ case.
[74] More importantly, Crown counsel further contends that there is extensive similarity to the modus operandi of the abuse and the circumstances that accompany it as each of the complainants describes it in his testimony. A great deal of the abuse takes place at P[…] Road, where the accused lived when the complainants knew him, respectively, as their second cousin or uncle by adoption, A.T.. It was a common theme to the evidence of both complainants that a considerable amount of sexual abuse took place in the basement of that residence, although K.J. also said that he was sexually abused upstairs in that house.
[75] Both complainants testified that the accused played pornographic movies for them to watch with him in the basement recreation room of that house, and/or gave them pornographic magazines to read and view with him leading into the sexual activity. Both complainants described watching reel-to-reel and VHS movies with the accused, followed by him showing pornographic images for their consumption which then lead into the commencement of the sexual conduct itself. Both complainants provided extensive specific recollection in that regard. These were not generic descriptions – they are recollections of detail that defy the likelihood of being coincidental.
[76] It was also common for the accused to offer them alcohol as a part of the progression of the sexual acts. This did not occur in the early years for M.Y., but later as he was older, he recalled having been given dark rum. K.J. recalled drinking rye whisky or rum, but in both cases both complainants had a specific recollection of the alcohol being mixed with Coca-Cola. Perhaps that is not surprising given the prevalence of cola drinks in our society, but it is hardly generic to the offences themselves.
[77] As well, for both complainants, some of the sexual abuse takes place when other adults are nearby, typically upstairs partying together on the ground floor of the house at B[…] Drive or at P[…] Road, but some of the abuse takes place when there are no adults present. Defence counsel acknowledged the similarities between both of these aspects of the evidence of the complainants.
[78] The abuse is persistent and occurs on multiple occasions over a number of years in the case of both complainants. The sexual conduct occurred when the accused had an opportunity to be alone with either M.Y. in the late 1960s or early 1970s, or commencing a couple years later in the case of K.J., but in both cases it happened, as I have noted, when they were either pre-pubescent or adolescent males who interested him.
[79] It is important relative to the situation specific aspects of the abuse that it does not happen on every occasion. It happened when circumstances of family gatherings permitted them to be alone and after the initial encounters, after the accused had continued to effectively entice and groom them by playing some pornographic images for them.
[80] In the case of M.Y., the opportunities presented themselves because R.E.L. and M.Y. were in the basement playing together on the occasion of family gatherings, either in the recreation room area at B[…] Drive, in their grandfather’s workshop area located behind the recreation room. Similarly, in the case of the abuse described by M.Y. as having taken place at Sibbald’s Point, it occurs when R.E.L. has an opportunity, or creates an opportunity to be alone with him, either in the shower at the campground, or when M.Y. is alone on the toilet, but the accused comes underneath the divider in the toilet stalls and then engages in sexual conduct with him in the other stall. It is significant to me that this activity is alleged to occur when R.E.L. is about 19 to early twenties in age. Nothing quite so daring or public occurs in the abuse of K.J. that is claimed to occur when R.E.L. is in his early thirties.
[81] The fact that R.E.L. sought to engage in this conduct when alone with the complainants is generic – most sexual assaults occur when the parties are alone and others are not around who could discover that the abuse is occurring. However, in my view, the propensity of the accused to seek sexual gratification from relations with prepubescent and pubescent males is not generic. Rather it is reflective of an identified and specific set of individuals who are the focus of his attraction. It is gender, age and maturity or developmentally specific.
[82] Moreover, this particular set of victims is attractive to him because he has ready access to them through the interconnections of his family. The opportunities are regularly presented to him with no knowledge on the part of the other adult members of the families. Family gatherings provide the occasions for the abuse to commence and continue. Moreover, that family connection provides an explanation for the gap of four years that appears to exist between the end of the sexual abuse of M.Y. and the commencement of the abuse of K.J.. There was no evidence of any other young boy in the family who came to any of those family gatherings.
[83] Crown counsel contends that the extent to which the acts are similar as testified to by both complainants informs the decision that they ought to be admitted as similar fact evidence on a count-to-count basis. Defence counsel argues that the actual sexual acts are generic and not specific, and that they cover a full range of potential types of conduct one might expect in a male same sex situation. That is true, but there is method and progression in the sexual conduct that is described, and both complainants describe very similar progressions.
[84] In the case of both complainants, the abuse initially involves the fondling of the genitalia, but then quickly moves to fellatio, both giving and receiving for M.Y., though K.J. said he did not give fellatio to R.E.L.. In the case of each of them, there is at least one attempt made by R.E.L. to have anal intercourse. In the case of M.Y., he is successful. In the case of K.J., he is not. However, it was a repeated behavior of an earlier incident. However, there is also a dissimilarity because unlike M.Y., K.J. had no recollection of R.E.L. using his finger to digitally penetrate his anus.
[85] The Crown acknowledges that M.Y. gave fellatio to R.E.L. but that K.J. did not, but I agree that that is a minor difference. What was common to the evidence of both was that it was uncommon for R.E.L. to ejaculate. M.Y. described only one instance where R.E.L. ejaculated in his mouth, an event that was so vivid in his mind that he recalled plainly that it caused him to go home and wash his mouth out with Ajax cleanser, but then there was no other occasion where R.E.L. ejaculated. K.J. said he simply could not recall.
[86] No threats were made to either of the complainants in either case and there was no discussion of what transpired between them in either case. Importantly, and of obvious similarity and probative value, both had recollections of pictures having been taken of them in the nude, using a Polaroid camera. Both recalled that it was a camera where the picture ‘came out the front of the camera and developed immediately,’ evidence that plainly described the process involved in the production of Polaroid photographs. K.J. specifically recalled the ‘white face’ of the Polaroid camera and M.Y. recalled having had numerous photographs taken of him. He said they were taken either on a Polaroid or a 35mm camera.
[87] There is relatively close proximity in time between the two periods of abuse perpetrated against the two complainants, although it is not without a gap. M.Y. was abused for about ten years from 1969 to 1979 and the abuse of K.J. commenced a couple or several years later in 1982 when he was 10 years of age and carried on until 1987. In M.Y.’s case, he recalled that the abuse commenced when he was 5 or 6 years of age but in both cases, it carried on until the victims were 14 or 15 years of age and took steps to let R.E.L. know it was at an end.
[88] In my view, the gap of two to three years that exists between the end of the abuse perpetrated against M.Y. and the commencement of K.J. being abused by the accused is insignificant when considered in the context of the similar fact evidence analysis in this case. The only other significant difference in the evidence between the two complainants is that the abuse of M.Y. also happened at a greater variety of locations than the abuse of K.J.. However, this strengthens the notion of opportunity based abuse by this accused, who it seems was always vigilant to look for an opportunity, particularly when he was younger. There would have been fewer opportunities for him to be alone with K.J. when K.J. was prepubescent but R.E.L. was in his early thirties. It is not surprising in that case that apart from the initial occurrences in Florida when he was being babysat by the accused, all of the abuse to K.J. is claimed to occur at P[…] Road. This is not surprising because that was the home of K.J.’s grandparents, Mr. and Mrs. T., insofar as their daughter, C.T. is K.J.’s mother.
[89] Continuing on the subject of opportunity, it is of significance here that the accused was related to both M.Y. and K.J.. The reason he had access to both of them was because of that familial relationship. These are not strangers. This abuse does not occur between this accused and people who are not known to him, or only incidentally. It allegedly occurs between him and young male pre-teens or teenagers to whom he is related, and it always occurs, with one exception, in the context of a family gathering, either at a family home or at a family gathering point for vacation or camping.
[90] Plainly, this significant fact plays strongly into the opportunity that was available to R.E.L. to sexually abuse both complainants. R.E.L. does not need to pursue his sexual preferences with strangers because he has all the candidates he needs within the safe and unquestioning environment of the family gatherings. Those gatherings cloaked his sexual conduct and permitted him to have access to M.Y. and K.J.. That familial relationship was guaranteed to provide him with the opportunity where he could repeatedly abuse both complainants without fear of interruption, albeit during two separate periods of time.
[91] On the basis of this evidence, I find that multiple aspects of the sexual abuse perpetrated against these two complainants displays extensive similarity, similarity which requires that the evidence be admitted as similar on a count-to-count basis. This is not generic evidence. It is detailed unifying circumstance that ties together the evidence related to the court by both of these complainants, and which causes the confluence of their testimony to become particularly compelling in light of the fact that the two complainants do not actually even really know each other.
[92] In my view, for all intents and purposes, albeit with differing degrees of recollection and detail, both complainants told very similar stories of sexual interactions with R.E.L. involving the same essential elements, some specific overlap of locations, and the same modus operandi of sexual abuse against each of them. As counsel for the Crown emphasized, the evidence is indeed compelling. I agree that the circumstances testified to by both complainants is so contextually similar that it does appear to defy logic or common sense to regard them as a product of coincidence.
(iii) Does the evidence pass the remaining tests?
[93] Having determined that the purpose for the introduction of the similar fact evidence in this case meets the requirements of Handy, and that the evidence sought to be introduced as similar fact evidence is not only strong, but also that it displays significant similarity that removes the prospect of coincidence, several points remain for consideration. First, looking at the actual testimony of each of the two witnesses, I must consider the strength of their testimony and the potential for collusion. I must then consider the risks of potential prejudice to the accused of either moral prejudice or reasoning prejudice, and finally, I am required to consider whether the probative value of the evidence outweighs its prejudicial effect.
[94] The first question requires me to determine having heard their evidence whether the testimony of M.Y. and K.J. is reasonably capable of belief and whether the strength of their testimony supports the inferences for which the Crown seeks to have this evidence introduced as similar fact evidence.
[95] M.Y. was an amazingly strong witness, notwithstanding the obvious embarrassment he felt in providing the testimony he did. He was candid, direct and demonstrative, as on the occasion when he was challenged by counsel for the defence and so he jumped up out of the witness box to demonstrate the positioning of his body and R.E.L.’s body in one specifically recalled session of masturbation. In my view, not only was his evidence reasonably capable of belief, but had strength to it that added weight and credibility to his testimony. Notwithstanding some occasional problems with recollection, attributable to the events having happened so many years ago, I found M.Y.’s evidence to be reliable.
[96] K.J. is claimed to have been candid and truthful as well. I do not challenge or dispute his credibility, but plainly the alcohol problems he has endured in his life have affected his recollection of events. His inability to recall dates and times of events and specific details of events was evident. He changed his evidence in certain respects that defence counsel claims are significant, between when first told to the police, when testified to at the preliminary inquiry, and at this trial. Further, it was plain that there are many inconsistencies in his evidence given initially to the police when he provided a statement to them, compared to the evidence that he gave at the preliminary inquiry, and compared to the evidence he gave before me at trial.
[97] These differences inevitably raised issues in my mind about the reliability of his testimony, and I will address the issue of the reliability of his testimony in greater detail in my reasons for judgment on the charges themselves, consistent with the analytical process mandated by our Court of Appeal in R. v. Sanichar. But apart from that question of reliability overall in the context of the proof of the charges as compared to this application where the standard is a balance of probabilities, what seems significant to me is the extent to which several of the specific details that K.J. provides in his evidence, is virtually identical to the evidence given by M.Y. on the same points. These similarities related to watching pornographic films with the accused, the progress of the sexual abuse, the introduction of alcohol, and on other points of detail relative to surrounding circumstances and location. That is so notwithstanding that these two individuals barely knew each other.
[98] K.J. was virtually unshaken in his testimony about the actual sexual events themselves, even if he did have recollection issues beyond what he testified to, and he provided a vivid and detailed accounting of at least specific aspects of the abuse and the locations where it took place. That evidence tied in closely to the evidence provided by M.Y. his distant relative, third cousin once removed I believe, even though there is five years difference in age between them and that they did not really know each other.
[99] As noted previously, both M.Y. and K.J. testified that they had not spoken about the allegations that were before the court. There will always be a concern in circumstances like this that the witnesses have colluded in their testimony, but in the absence of actual evidence of collusion or collaboration, in my view the mere presence of an opportunity in past years for these two witnesses to have spoken to each other about their testimony is not enough to raise a realistic or cogent basis for a finding of collaboration.
[100] I specifically note that there is no significant evidence that they did collude or collaborate, and, the only foundation to the suggestion was that M.Y. was friends with K.J.’ older sister Ashley, but this was well before the alleged abuse was ever disclosed to anybody. I do not believe that this remote suggestion should cause me to reject their evidence as part of the gate keeping function I have in determining whether the evidence can be admitted for the desired purpose.
[101] Further, as I have noted above, while the issue of collusion cannot be allowed to effectively shift the burden of proof to the defence to show the presence of collusion or collaboration, rather than that burden continuing to remain where it must, on the shoulders of counsel for the Crown, that does not mean that Crown counsel has a positive obligation to produce evidence of an absence of corroboration or conclusion. It is sufficient in my mind that there was no evidence here that emerged from the testimony of the two witnesses of actual collusion or collaboration, or realistic circumstances where it could have occurred, and to the extent that they were not challenged in any way on that point, apart from having some common relatives and a wispy suggestion that some information may have percolated through the family, there was nothing to the collusion or collaboration point. Counsel for the defence effectively acknowledged that.
[102] Turning to the issue of risks of prejudice, under the Handy method of analysis, I am satisfied that I will be able to avoid the low risk of propensity or reasoning prejudice in this case as I evaluate the evidence and consider whether the Crown has met the burden of proof in this judge alone trial relative to each complainant, separate and distinct from the other. I have and will instruct myself as I am required to do and as acknowledged by the Crown, that the similar fact evidence itself cannot bear the burden of proving the Crown’s case on its own beyond a reasonable doubt with respect to the separate charges. Further, since the charges appear on a single indictment claiming offences against this accused relative to two separate complainants, inevitably the evidence with respect to each charge is being heard in any event and would have been heard on that basis.
[103] I believe that I am able to self-instruct and avoid the evils that induce the operation of the exclusionary rule – induces it except where the probative value of the similar fact evidence exceeds its prejudicial effect and value. Here, I find that the probative value of the accumulation of the two complainants’ evidence is high and that it outweighs the prejudicial effect. It seems to me that the prejudicial effect of this similar fact evidence, when applied as between counts, is substantially outweighed by the probative value of the thorough, complete and detailed aspects of the evidence of these two several complainants. It is compelling in the extent of it similarity.
[104] The evidence is admitted.
Michael G. Quigley J.
Released: December 6, 2013
COURT FILE NO.: 12-70000829-0000
DATE: 20131206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
R.E.L.
Defendant/Respondent
Reasons for Ruling
Re: Similar Fact Evidence Count-to-Count
Michael G. Quigley J.
Released: December 6, 2013
[1] R. v. L.B.; M.A.G., 1997 CanLII 3187 (ON CA), [1997] O.J. No. 3042 (C.A.)
[2] R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 (S.C.C.) at para. 31; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] S.C.J. No. 31 (S.C.C.) at p. 7.
[3] Handy, ibid., at para. 55.
[4] B. (C.R.), ibid, at para. 72.
[5] R. v. M.B., [2008] O.J. No. 2358 (S.C.J.) at para 39.
[6] R. v. Finelli, [2008] O.J. No. 2242 (S.C.J.) at para 27.
[7] R. v. Gelesz [2002] O.J. No. 3883 (C.A.) at para. 2.
[8] 1997 CanLII 3187 (ON CA), [1997] O.J. No.3042 (C.A.)
[9] [1991] 2 A.C.447 at 462 (H.L.).
[10] Handy, above, at para 82, R. v. R.B., above, at para. 67, R. v. Cook, below, at para. 11.
[11] 2003 CanLII 13682 (ON CA), [2003] O.J. No. 4589 (C.A.).
[12] [2006] O.J. No. 4701 (S.C.J.).
[13] 2009 ONCA 95, [2009] O.J. No. 363 (C.A.).
[14] See R. v. Cook, above, at para. 10.