ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: P241/05
DATE: 20131010
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.A.T.
C. Harper, for the Crown
J. Rosen, for J.A.T.
HEARD: Oct. 7, 2013
REASONS FOR RULING
M. Dambrot J.
[1] The accused, whom I will refer to as JT, is charged with ten counts of sexual assault and related offences in relation to four sisters. I will refer to the sisters as RF, EF, MF and NF. The four sisters accuse JT, who was their mother’s common law partner, of sexually abusing one or another of them for nearly a decade. As a point of reference, it is worth noting that on September 1, 2001, around the time that the four sisters disclosed their complaint to the police, RF was 21, EF was 20, MF was 15 and NF was 13.
[2] The Crown has called all four complainants to give evidence, and has closed its case. Crown counsel now brings this application to permit the jury to consider the evidence of JT’s disreputable conduct in relation to each of the complainants on the counts alleging offences against the other complainants.
THE APPROACH
[3] The foundation on which admissibility of disreputable conduct or similar act evidence is sought is that the events described by the four complainants, testifying independently of each other, are too similar to be credibly explained by coincidence: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at p. 947. Admissibility on this basis is an exception from the rule generally excluding evidence of disposition or propensity. Evidence of disposition or propensity will only be admitted where its probative value in relation to an issue in question is so high that it displaces the prejudice that inures to an accused when evidence of prior immoral or illegal acts is presented to the jury. (See R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at p. 56.)
[4] In both Handy and Shearing, the Supreme Court applied the test for admissibility of evidence of disreputable conduct in the following way:
- Determine the probative value of the evidence by:
i. Identifying the issue or issues in question
ii. Assessing the cogency of the similar act evidence to determine if there is a persuasive degree of connection between the offence charged and the similar act evidence by examining their similarities and dissimilarities
iii. Examining the possibility of collusion
Assess the prejudice that would be occasioned by the admission of the evidence, specifically moral prejudice and reasoning prejudice
Weigh up probative value versus prejudice
[5] I will follow this rubric, and will elaborate on the considerations for each part of the test in turn.
ANALYSIS
1. PROBATIVE VALUE
i. The Issues in Question
[6] In essence, the similar act evidence in this case is proffered to advance the claim that the events described by the four complainants, testifying independently of each other, are too similar to be credibly explained by coincidence. Specifically, the Crown argues that the evidence is capable of demonstrating a pattern of conduct on the part of the accused when in a father-daughter relationship, establishing the accused’s system of control and violence that explains why complaints were not made earlier and to rebut a defence of innocent association.
ii. Similarities and Dissimilarities
[7] The degree of similarity required in any particular case depends on the purpose for which the evidence is tendered. As in Handy and Shearing, the purpose in this case is not identification. It is the actus reus of the offence. As a result, the evidence need not be strikingly similar to be admissible. There is a need, nonetheless, to pay close attention to similarities in character, proximity in time, and frequency of occurrence. For a more complete list of factors, see the list provided by Binnie J. in Handy, at p. 940-41.
[8] In this case, there is a sufficient degree of similarity amongst the allegations of the four complainants to satisfy the test of cogency, subject to a consideration of collusion. I need not examine this part of the evidence in detail. Counsel for the accused pointed out that the evidence of the four complainants falls most closely into two groups of two: a more violent approach with two of the sisters, and a gentler approach with the other two. But counsel made no serious argument that the evidence lacked sufficient cogency to be admissible.
[9] As a result, it is sufficient to say that the requisite degree of cogency is easily established because of the following circumstances: each of the four daughters living in the same household with their mother and the accused, who was in a father-daughter relationship with them and participated in the rule-making and discipline in the household, made a similar complaint. Each of them said that when they were entering or had just entered their teenage years, the accused exploited his position of authority and forced them to engage in a long series of sexual encounters with him involving vaginal, oral and anal sex. In each case the alleged activity began in the family home, but continued in the apartment of a friend. In each case the sex was frequent, and continued for several years. In each case he plied the complainant with alcohol at times; videotaped sexual encounters with three of them; had them watch pornography; frequently picked them up from school or from home to engage in sex with him; rarely used a condom; did not ejaculate in them, but instead did so on himself or them; sometimes used physical violence with them, their mother or their mother’s property when they tried to refuse to have sex with them; and introduced the idea of having sex with a friend of his in at least two cases. Admittedly these circumstances are not unique, and admittedly there are differences in the way the accused allegedly dealt with each of the complainants. But the fact remains that these accounts are too similar to be credibly explained by coincidence, again, subject to a consideration of collusion.
iii. Collusion
[10] Collusion, in lay terms, means a secret understanding between two or more persons to gain something illegally or wrongly. In similar act analysis, it means concoction or collaboration. Collusion is a factor in similar act analysis because the existence of collusion destroys the foundation on which admissibility is sought, namely that the events described by the complainants, testifying independently of one another, are too similar to be credibly explained by coincidence. As Handy teaches, cogency is derived from the improbability of coincidence, but collusion undermines that premise.
[11] As a result, where there is some evidence of actual collusion, or at least an “air of reality” to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar acts is not tainted with collusion. If the Crown fails, the similar acts cannot be admitted.
[12] It is here that counsel for the accused took his stand. While Crown counsel argued that there is no air of reality to the allegation of collusion, Mr. Rosen submitted that there is not only an air of reality to it, but that the Crown failed to establish, on a balance of probabilities, that the similar act evidence is not tainted by collusion.
[13] Mr. Rosen concedes, as one would expect, that there is no direct evidence of collusion. All four complainants deny any detailed review of their allegations together, far less any concoction or collaboration in fashioning their allegations against the accused. But, Mr. Rosen argues, the discussions of their allegations that they do admit, the forgotten details of the discussions, and the inconsistencies in their evidence, defeat the Crown’s showing of an absence of collusion.
What is that evidence?
The evidence of EF
[14] On July 24, 2001, EF and the accused each entered a peace bond arising out of a physical fight they had with each other in their residence on May 7, 2001. While there is some dispute about whether or not JT was living with the family in the interim, there is no doubt that he was there after July 24. At some point after July 24, EF decided to speak to the police about the accused sexually assaulting her. This came about as follows.
[15] On August 18 or 19, 2001, RF told EF that she found it strange that JT was always taking MF shopping, but she would come home empty handed. At the time, MF was in high school. EF testified that she had felt that JT wouldn’t do to MF what he had done to her, but she wanted to make sure that it wasn’t happening. Following this conversation, EF had trouble sleeping. The issue was really bothering her.
[16] As a result, on August 20, while their mother was at work, she called MF into her room and told her that she was going to ask her a personal question, and wanted her to be honest. She then asked MF if JT had been touching her. Initially, MF denied it. EF then told MF that he had sexually assaulted her, and that she was noticing symptoms of that in MF. Ultimately, MF admitted that he had done it to her as well. The two of them cried together. EF then made an appointment for MF to see their family doctor that Friday. She wanted the doctor to confirm whether or not MF was still a virgin.
[17] On the following Wednesday, when their mother came home from work, EF told her that JT was having sex with MF, and that she had made a doctor’s appointment for her. Later, when JT came home, EF heard him scuffle with her mother, and rush out of the house, never to return.
[18] On August 24, 2001, EF took MF to their family doctor. He told her to take MF to the Hospital for Sick Children (“Sick Kids”). He also told her that he would be calling the police. EF did take MF to the hospital, where they met with a SCAN unit nurse. After the hospital visit EF brought MF home.
[19] The following Monday, a police officer called EF and asked her to come in for an interview. On August 31, 2001, EF went to speak to the police. After the initial discussion with MF, EF had no further discussion with any of her sisters about her relationship with JT until they had a meeting in the garage. At some point after the doctor’s appointment but before her police interview, RF called the four sisters into the garage, and asked each of them if they had had sex with JT. They each said that they did, and nothing more. EF said that the meeting was short. In cross-examination EF agreed that during the meeting, one of her sisters told her that JT had told them that he had had sex with EF, that he had shown her a video of EF and her boyfriend making love, and that he had told her that EF had also slept with one of his friends. But she denied that they had ever tried to get their “stories” straight, or that they had discussed what they would tell the police. She said that they were not a close-knit family, and found the subject too embarrassing to discuss.
The evidence of RF
[20] RF testified that in the summer of 2001, she observed changes in the personalities of MF and NF. They were more inward, and seemed to have become more aggressive. They would go on the attack verbally when asked a simple question. Cousins of the family were visiting from Portugal at that time, and were staying in the family home. Conversations with her cousins heightened her concern about her two youngest sisters.
[21] Around this time, RF found two CD players in the garage. She asked MF and NF if these were theirs. They both told her that the CD players belonged to them, and that JT had bought them. This troubled her, because JT had purchased clothes for her, and had wanted sex in return. In the past she had told MF and NF that if they needed anything she would buy it for them, and not to ask JT for anything. She questioned why they were letting him give CD players to them when she had told them she would buy whatever they needed, and asked what they were giving back for these gifts. They both said they were not doing anything.
[22] Shortly after this meeting, as a result of her suspicions, RF asked her family doctor how she could know if any of her sisters was sexually active. He made an appointment for her to bring them to see him on September 8.
[23] Then sometime later RF came home and noticed that one of the accused’s computers was missing. When she asked EF about it, EF told her that his brother Paul had taken it. RF asked her why, and EF replied that MF and NF had been to the hospital and that JT was apparently doing things to them. She gave her no more details than that. That day or the next day, RF spoke to a friend about this conversation. She then came home and called her three sisters into the garage. She told them that she had a question, and not to be scared to answer. She said that when she was 15 and still a virgin, JT had sex with her. EF said that the same had happened to her, but she didn’t remember her age. MF and NF confirmed that the same had happened to each of them. RF said that she couldn’t believe it, was in shock and kicked all of the accused’s computers. No one provided any details of their sex with JT. RF did confirm that one of her sisters said that JT told her that EF had slept with his friend, and that mention was made of the video of EF and her boyfriend. RF said that she didn’t want to hear any more. She had enough to deal with of her own. She didn’t want them to think of her differently, and didn’t want to think of them differently. She pretended it didn’t happen.
[24] Ultimately, on September 4, 2001, RF went to speak to the police, and gave a statement. Since then, she has not spoken to her sisters again about these events, nor has she spoken to her mother about them. She said that they are not open people, and keep their problems to themselves.
The evidence of MF
[25] In August 2001, MF was still 14 years of age. EF called MF into her bedroom on a Wednesday morning (presumably August 22, 2001) and asked her why JT didn’t like it when she went to her aunt’s place and why she didn’t do what normal kids do. She then said that there was something she needed to know, and asked if JT was doing something to her, or touching her. MF broke down and told EF that JT was having sex with her. She also told her about JT showing her a video of EF having sex with her boyfriend. EF told her that it had happened to her and that she felt bad because she could have put a stop to it. After they cried together, EF told MF to get dressed, and took her to see the doctor that day.
[26] When MF saw the doctor, EF told him that she had just found out that MF had been having sex with their mother’s boyfriend for the last two years. The doctor told them that MF had to go to Sick Kids. When MF went to the hospital the first time, she didn’t want to be touched. She was very uncomfortable and shy. Someone spoke to her and tried to make her more comfortable, and she agreed to schedule a return visit. She had to cancel that because of the onset of her period, but ultimately returned and was examined.
[27] It was MF’s recollection that after she returned home from the doctor, EF told their mother what was going on. Their mother broke down and cried. MF never discussed this with her mother again after that day. She said that it was too painful. Her mother kicked JT out of the house that day.
[28] MF also recalled RF calling her into the garage to speak to her subsequent to her discussion with EF, and subsequent to her mother finding out. RF asked her what was going on, but MF couldn’t tell her. She just sat there, and RF told her everything would be all right. MF didn’t recall anyone else being present during this conversation.
[29] Ultimately, MF gave a statement to the police.
[30] MF admitted that she has discussed bits and pieces of what took place with JT with her sisters from time to time, but no more than that. She lived with her sister NF for two years beginning in 2005, but they never discussed what went on with JT.
[31] MF did not recall a second meeting in the garage with all four sisters present.
The evidence of NF
[32] In August 2001, NF was still 13 years of age. At some point during that month RF pulled NF aside in the garage and asked her if she knew what was going on with MF. NF nodded her head but didn’t know what to say and remained silent. RF asked her if he had done anything to her and she said yes, it had happened to her. NF was shocked and began to cry. RF then made an appointment for NF to see their family doctor.
[33] NF never went to see the family doctor, but some days later she went to Sick Kids with MF and EF. They did not discuss what had happened while they were there.
[34] NF also recalled going to see the police at a Catholic Children’s Aid Society (“CCAS”) office on August 29, with MF. She said that she was afraid of everything and wanted to run. She waited in the waiting room while MF was interviewed, but when she was taken in to speak to the police she said yes, something happened, but refused to give details and began to cry. She refused to give a statement, and told the police that “this is too weird”. The officers told her to think about it and call if she changed her mind. She then left. This was after the first talk with RF in the garage.
[35] After meeting with the police, NF recalled that there was a second meeting in the garage involving all four sisters. RF asked her how old she was when it started. In the course of the meeting, NF told EF that towards the end of the time that she was having sex with JT he pulled her aside and showed her a pornographic video EF had made with her boyfriend on the computer in the living room. JT told NF that he wanted her to move like EF. EF was shocked to hear this, because it was only for her and her boyfriend, and they had hidden it. NF also said that JT had also told her that he had taken EF to a black friend’s house where they got drunk and had a threesome. NF also told her sisters that JT had made a video of him with her, and had shown her photographs of her two older sisters and two cousins in lingerie. NF said that she was too embarrassed to mention anything else that happened to her.
[36] After these two meetings NF never again spoke to her sisters about what happened to her. She said that it would tear them apart to know more.
[37] On August 31, 2001, NF returned to the CCAS and agreed to be interviewed by the police. She said that after talking to her sisters, it made it easier for her to speak to the police.
Analysis of the collusion issue
[38] As I have noted, Crown counsel argues that there is no air of reality to the allegation of collusion, while the accused takes the position that there is not only an air of reality to it, but that the Crown has failed to establish, on a balance of probabilities, that the similar act evidence is not tainted by collusion. Mr. Rosen argues that having regard to the discussions of their allegations that the complainants admit, the forgotten details of these discussions, and the inconsistencies in their evidence, the Crown is unable to satisfy its burden.
[39] Among other things, Mr. Rosen said that:
The sisters cannot tell a straight story. The differences in their versions of the sequence of events prior to MF going to see the doctor is indicative of collusion, and makes their denials of collusion unbelievable.
The inconsistencies in their accounts of the meeting in the garage are also indicative of collusion.
The inconsistencies in what they say, and their vagueness about a great many details, makes a circumstantial case of collusion.
Their constant refrain that they never discussed the details or spoke about these events again because it was too embarrassing or hurtful is a case of protesting too much. Their going out of the way to assert non-collusion supports an inference of collusion.
[40] Based on the evidence I have heard, I go part way with Mr. Rosen, but no further. The fact that they discussed their allegations at least to some degree before making their complaints, together with the gaps in their recollections and the inconsistencies in their evidence makes collusion a live issue in this case. The allegation has an air of reality. As a result, the Crown is required to satisfy me that the evidence of similar acts is not tainted with collusion. But the Crown does not have to negate collusion to a criminal standard. The Crown need only satisfy me on a balance of probabilities that there was no collusion. I find that this burden has been met.
[41] It is undoubtedly true that it is difficult to be certain about how these allegations came to be made. There are inconsistencies and missing details in the accounts of RF and EF. But it seems probable to me that the story began with RF’s concerns about the behaviour of MF and NF, and her questioning of them about the CD players. I have no doubt that she then relayed her concerns to EF. While the accounts of what information was passed on to EF by RF differ, it makes little difference. I am satisfied that something was said that caused EF to become concerned. When she questioned MF and MF told her that JT had sexually assaulted her, the wheels were set in motion. The subsequent visit to the doctor resulted in disclosure to the police.
[42] The differences in the versions of the sequence of events, the inconsistencies in the accounts of the garage meeting, the vagueness in regard to many of the details and the loss of memory about many events all give cause for scrutiny.
[43] But what would one expect? The four complainants are being asked to recall at a distance of 12 years, from a time when they were all young, or very young, the details not of what they say happened to them at the hands of a sexual predator, but of what they said to each other and the authorities about what happened to them. Had they colluded in crafting these accounts, they surely would have done better. Far from being badges of collusion, I consider the inconsistencies, omissions, vagueness and the like to be consistent with an honest effort at restoring a frail recollection.
[44] As for the suggestion that they protest too much, I suppose this is a matter that is in the eye of the beholder. To me, the refrain that they have had limited discussions about these events through the years because they are so painful and embarrassing has the ring of truth.
[45] I have no doubt that the four sisters discussed some of their allegations before they made their statements to the police, perhaps more than they admit or remember. I do not doubt that the sisters shared bits and pieces of what took place with JT with each other from time to time, as MF admitted, but do not think they discussed more than that. In the end, I am satisfied on a balance of probabilities that the sisters did not concoct their complaints, did not collaborate in their creation and did not collude.
[46] As a result, I am satisfied that the similar complaints of the four sisters have significant probative value.
[47] I turn next to an assessment of the prejudice that would be occasioned by permitting the jury to make use of the similar act evidence from count to count, specifically moral prejudice and reasoning prejudice.
2. PREJUDICE
Moral Prejudice
[48] Put simply, moral prejudice is the danger that the jury may convict the accused based on “bad personhood” (see Handy, at p. 924) or as a result of “the potential stigma of ‘bad personhood’” (see Handy, at p. 946). More elaborately, as stated in Handy, at p. 957, moral prejudice is:
[T]he risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. [Emphasis in original].
[49] The usual concern about moral prejudice arises from the jury hearing evidence of multiple instances of wrongdoing, together with the fear about the effectiveness of the charge on the limited use that may be made of that evidence. In this case the jury has already heard all of the evidence, since it forms the very substance of the allegations in the indictment. The moral prejudice arising from the evidence of multiple instances of wrongdoing, if there is any, is essentially the same whether or not I grant this application. The only additional moral prejudice that could arise from the granting of this application would be moral prejudice flowing from the permission to use the evidence from count to count. However whether or not I grant this motion, the jury will have to be given a limiting instruction about the use they can make of the various allegations. I fail to see how the choice of limiting instructions can realistically contribute to moral prejudice one way or the other.
Reasoning Prejudice
[50] Reasoning prejudice arises from the danger that the jury may become confused by the multiplicity of incidents, and become distracted from their task of carefully deciding each charge separately by the cumulative force of so many allegations. No doubt this risk increases slightly if the motion is granted. The jury’s task is simpler if they are told that they cannot use wrongdoing alleged in one count to decide another. The risk of confusion is less than if the jury is given a similar act instruction. Nonetheless, I do not think that the similar act instruction will be terribly complicated, and the charge in this case will be relatively straightforward. This is, after all, a largely factual case, with one central issue predominating: are the jurors satisfied beyond a reasonable doubt that the accused did what the complainants allege. The risk of confusion is very small.
3. WEIGHING UP PROBATIVE VALUE VERSUS PREJUDICE
[51] For the reasons I have already explained, I am of the view that the probative value of the similar act evidence considered count to count is significant, while the prejudice is slight. As a result, the application is granted.
M. Dambrot J.
Released: October 10, 2013
COURT FILE NO.: P241/05
DATE: 20131010
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
J.A.T.
REASONS FOR RULING
DAMBROT J.
RELEASED: October 10, 2013