ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-SA5081
DATE: 2014/03/21
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Y.C.B.
Accused
Suzanne Schriek, for the Applicant
Russell Silverstein, Shannon O’Connor, for the Respondent
HEARD: February 10, 2014
DECISION ON SIMILAR FACT APPLICATION
An Order has been made in this proceeding directing that the identity of the complainant described in this judgment and any information that could disclose the identity of that person shall not be published in any document or broadcast in any way.
lalonde j.
[1] The Crown seeks admission of similar fact evidence in the trial of the accused, Y.C.B.
[2] There are five complainants and the Crown seeks to have the evidence of some complainants admitted as similar fact evidence to bolster the Crown’s case with respect to the other allegations. The accused opposes the admission of this evidence on the basis that the evidence does not meet the test for admission.
Issues
[3] Does the evidence meet the test for admission as evidence of prior discreditable conduct pursuant to R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57?
Background
[4] The prosecution alleges that five eight-year-old complainants were sexually molested and touched for a sexual purpose by the accused who was a long-term supply teacher at two different elementary schools where he taught most of the complainants in grade three.
[5] Following a first investigation at O. school, the police decided not to lay criminal charges against the accused. Later, following a complaint made by a student against the accused at the S.C. elementary school, the police used the media to ask any other students who had complaints that the accused molested them to come forward. As a result, charges were laid for offences that the Crown alleges the accused committed while teaching at the S.C. elementary school. Charges were also laid for offences the Crown alleges the accused committed while teaching at the O. school. The police had previously judged the alleged incidents at O. school as being “unfounded.”
Similar Fact Evidence
[6] The five complainants gave video statements to the police and testified at trial. Their evidence has been summarized below.
The S. 16 Canada Evidence Enquiry
[7] At trial, A.P. was eleven-years-old and attending E.E. primary school in grade six. H.T. was eleven-years-old and was in grade six at O. school. During the testimonial competence inquiry, the complainants were asked a series of questions by Crown counsel under the control of the Court on the authority of R. v. Peterson, (B) (1996) 1996 874 (ON CA), 89 O.A.C. 60 (C.A.) at 66.7 per Osborne J.A. and factual questions in a truth or lie format were answered accurately.
[8] When asked what would happen if she told a lie, A.P. replied that she would be punished and taken out of sports. On the subject of telling a lie in court, the complainant answered that she would get into trouble. A.P. understood the meaning of a promise and that it was important to keep a promise. In the circumstances, without objection by the defence, A.P. was allowed to testify on a promise to tell the truth.
[9] There was a testimonial competence inquiry made of the complainant H.T. She testified that she would be in trouble if she did not tell the truth. She also said that it was important to tell the truth in court and that a promise should always be kept. In the circumstances H.T. was allowed to testify on a promise to tell the truth.
[10] Testimonial inquiries were also made for the following complainants by the Crown and supervised by the court:
• A.T. who at trial was ten years of age and attending S.C. public school in grade five;
• H.T.2 who at trial was eleven years of age and attending R.A. public school in grade 6;
• C.D. who at trial was ten years of age and attending F. public school in grade 5;
• G.H. who at trial was 10 years of age and attending S.C. public school in grade 5 is not a complainant.
[11] In all cases, the factual questions in a truth or lie format were answered accurately by the complainants. When asked individually what would happen if they told a lie, each girl replied that she would be in trouble with her mother and would be grounded if she did not tell the truth. Each girl knew what a promise was, and that it was important to keep a promise to earn trust. They all said, in turn, that a promise made in court was very serious and important. In the circumstances, without objection from the defence, all complainants were allowed to testify on a promise to tell the truth.
Complainant A.P.
[12] A.P. is presently eleven years of age. She was eight years of age and was attending O. primary school in grade three at the time of the alleged incidents in December 2010 and January 2011. She testified under a promise to tell the truth. She appeared mature for her age and capable of distinguishing between the truth and a lie and of understanding the importance to tell the truth.
[13] A.P.’s video statement to the police was played in court to show an interview between herself and Detective Constable Marelic.
[14] In her statement, A.P. said that she had been asked by Y.C.B. to come to his classroom at lunchtime to talk with him. Y.C.B. was not her grade three teacher as she was placed in another grade three class. All other students were in the school-yard during the lunch break and she said that she was alone with Y.C.B. She also said that it was before Christmas in 2010 as there was snow on the ground and she had been wearing snow pants.
[15] A.P. testified that H.T., a student in Y.C.B.’s class who is her friend at school, had relayed Y.C.B.’s message that he wanted to talk to her. Once in the classroom, A.P. said that the door was closed. She said that she does not remember what “stuff” they talked about. There was a long table at the rear of the class and A.P. said that when she arrived in the classroom, Y.C.B. was eating lunch. A.P. said that she was asked by Y.C.B. to sit on his lap which she did.
[16] A.P. testified that when she stood up, Y.C.B. put his hand in her pants and touched her bum. She said that his hand was not there for long but that it did not make her feel good. She did not tell anyone at school what had happened because students are not allowed to discuss private things. That night she said that she did not tell her mother about the incident because she was too nervous. At the preliminary inquiry, A.P. had testified that she was certain that Y.C.B. had touched her bum while she was sitting on his lap.
[17] According to A.P., there was another incident in which Y.C.B. pulled her dress upwards. This also occurred prior to Christmas 2010. This time her friend H.T. was with her and it was lunchtime. She said that they were in the classroom to discuss an issue about fighting although she maintained that she had done nothing wrong and did not understand why she was there.
[18] The words used by Y.C.B. in French were “veux-tu venir sur ma jambe?” A.P. demonstrated on the video how she had climbed on Y.C.B.’s lap by climbing on Detective Marelic’s lap. A.P. was asked what problem she had discussed with Y.C.B. and H.T. and she said that she did not remember.
[19] During her cross-examination she identified her friends at O. school as B., A., M., and N. She said the following:
• She received candy from Y.C.B.;
• She stood up and Y.C.B. lifted her dress. She agreed that her dress was bunched -up underneath her but she said that sitting on her bunched-up dress was comfortable and that Y.C.B. did not know that;
• Y.C.B. did not say that she had a nice dress;
• She denied that she had told her mother about Y.C.B.’s conduct with girls that she had heard from H.T.;
• She denied having talked with H.T. about the incident and she was adamant that H.T. “never told me anything;” and
• She did not remember that she had told her mother that Y.C.B. had pushed his privates towards her.
[20] A.P. maintained that she saw Y.C.B. close the door of the classroom. After further questioning, she agreed that she at least thought that Y.C.B. had closed the door.
[21] During re-examination, A.P said that she did not feel good once her dress was no longer under her bum. She repeated her testimony that it was Y.C.B. who had asked her to stand up.
Complainant H.T.
[22] H.T. is 11 years of age and her evidence was accepted on her promise to tell the truth. She testified in French. She viewed a video made on January 25, 2011, when she was questioned by Detective Marelic. During her examination-in-chief, H.T. adopted her statements made in the video as being the truth of what took place between Y.C.B., herself and A.P.
[23] During her video statement, H.T. recalled that when Y.C.B. had first attempted to place her hand on his private parts, she had blocked his hand and that she had shouted at him to stop when he had attempted to touch her bum. This took place in her classroom at O. school when the students were out for lunch.
[24] According to H.T., the touching of her bum occurred because she was punished for talking during class. Y.C.B. had called H.T.’s mother and it was agreed between them that H.T. would be kept in the classroom during the 40 minutes of recreation that the students enjoyed outdoors from Monday to Friday of one week. She recalled that one noon hour she was joined by A.P. and that A.P. was sitting on Y.C.B.’s thighs. Y.C.B. had lifted A.P.’s dress to see her underpants. Y.C.B. then offered both of them jujubes.
[25] H.T. told Detective Marelic that her punishment had occurred after Christmas and after the incident between Y.C.B. and A.P. had occurred. When Y.C.B. touched her bum she said that she was using Y.C.B.’s desk. That is when he placed his hand on her bum underneath her clothing. This happened approximately once a day for a total of five times. She said that she felt Y.C.B. wanted more time with her and that he would spoil her by giving her chocolate and telling her not to tell her friends. She told Detective Marelic that he touched her bum each day for the five days she was kept in at lunchtime to serve her punishment.
[26] H.T. recalled during the video interview that her friend M., “who is a timid girl,” came to see Y.C.B. in the class and that Y.C.B. had guided M.’s hand onto his private parts. During the same week, he tried to guide H.T.’s hand to his private parts, but H.T. pulled back her hand. H.T. claimed that she had seen M. place her hand on Y.C.B.’s private parts in class. Check this
[27] H.T. recalled an episode when Y.C.B. had sent a message to A.P. that he wanted to see her in his classroom. When A.P. arrived in the classroom, Y.C.B. asked her to sit on his lap, brought her closer on his thighs and lifted up her skirt when she stood up. A.P. left him, running away. H.T. stated that Y.C.B. said that he just wanted to see A.P’s waist. H.T. admitted that she did not know the names of the private parts of her body.
[28] In her video statement, H.T. said that she shouted often and in a loud voice at Y.C.B. to stop putting his hands on her bum, so much so that she had a sore throat. She stated that Y.C.B. told her that he wanted to give her a massage and that she told him that she was in good physical form and that she did not need a massage. She also said that Y.C.B. lifted A.P.’s dress to see her panties. During her examination-in-chief, H.T. explained that by saying to Y.C.B. that she was in good physical form she was conveying to him that she did not need a massage. His hands were under her trousers.
[29] During her video statement, she stated that Y.C.B. lied to her mother and to the school principal as she had not been in a dispute with A.P. She also recalled that she had spoken with her school principal, C.L., after the incident in which Y.C.B. lifted A.P.’s skirt. When she returned to class after seeing the principal, Y.C.B. questioned her about what she had told the principal. She told Y.C.B. that she had told the principal about the episode involving Y.C.B., A.P. and herself.
[30] During her examination-in-chief, H.T. stated that she did not know who had closed the door and locked it. She testified that she does not know the S.C. school students: A.T., H.T., C.D. and G.H.
[31] During cross-examination, H.T. agreed that she had off-and-on disputes with A.P. from September 2010 and January 2011. She also agreed that Y.C.B. was more physical with students than her former teachers. She said that Y.C.B. and her mother spoke often and that it was their joint decision to punish her for talking in class. She also said that she could not recall if she was mad or not about being punished. In any event, H.T. confirmed that she was not allowed outside during the forty-minute lunch hour. She also said that she knew that the classroom door was locked because someone knocked at the door and that it was Y.C.B. who opened it.
[32] H.T. said that when she reported that Y.C.B. had lifted A.P.’s dress to the principal, the principal asked if there was anything else that had gone on. She said at trial that she did not remember telling the principal that nothing else had gone on (see p. 332.) She denied coming back in the classroom after leaving the principal’s office and telling Y.C.B. that he was in trouble. She also denied jumping on Y.C.B.’s knee uninvited.
Evidence of A.T.
[33] A.T. is presently ten years of age and attending grade five at the S.C. primary school. I accepted A.T.’s evidence on a promise to tell the truth.
A.T.’s Video Statement
[34] A.T. gave a video statement to Detective Marelic. At trial, A.T. adopted her video statements and said that when she had been interviewed by Detective Marelic she had said the truth about the incidents.
[35] In her video statement, she stated that while practising a lockdown at her school (the lockdown incident) she had been told to lie down and hide behind her teacher’s desk. The teacher was Y.C.B. The students were assigned groups and there were two other girls in her group. She said that Y.C.B., R. and H. were on her right and she was lying down on her right side, spooning with the girls. Y.C.B. was behind her to her left. She explained that the group was covered by a blanket that was kept in the class. During the exercise, Y.C.B. put his hands in her pants and touched her bum. She also said that he had asked her if she liked it and that she had said no.
[36] A.T. demonstrated to Detective Marelic how Y.C.B. had touched her bum under her panties, touching her skin. As a parent/teacher meeting was coming up, A.T. recalled that Y.C.B. had asked her to tell her parents that he had only massaged her shoulders as otherwise he would go to jail.
[37] There was another incident that occurred during a science experiment that involved Y.C.B. touching A.T.’s bum (the science experiment incident). This, A.T. said, took place in front of the entire class to demonstrate stability. Y.C.B. stood behind A.T. and bent her over backwards. As he bent backwards, he placed his hands on her bum under her clothes. During the exercise both she and Y.C.B. faced the class.
[38] A.T. told Detective Marelic that she had received preferential treatment from Y.C.B. in class. She recalled that Y.C.B. had announced to her whole class that she looked like a princess.
[39] At trial, A.T. testified that she knew C.D. and G.H., two students that attended her class. She did not know H.T., J.T. or A.P.
[40] During cross-examination, A.T. explained that she had had a falling out with C.D. because of her recounting annoying stories about ghosts. Although she had remained friends with G.H., they had never talked about the Y.C.B. incidents.
[41] There were two other practice lockdowns prior to the lockdown that involved the entire school on Thursday, November 18th, 2011. A.T. agreed that a class of 27 students would crowd around the teacher and other furniture to hide during the practice lockdowns. Some students were upset and Y.C.B. had encouraged the students to massage each others’ shoulders to calm down. She said that she did not remember who had decided that she would lie down in front of Y.C.B.
[42] A.T. agreed with defence counsel that the science experiment incident took place one week prior to the lockdown incident. She recalled that she did not tell her mother right away, but testified that she did tell her. She explained that it was hard for her to tell her mother about the incident. She denied that her pants might have been falling down and that they needed to be pulled up.
[43] Defence counsel suggested to A.T. that Y.C.B. had touched her to prevent her from falling down during the science experiment. A.T. agreed with this possibility, but said that Y.C.B. could have placed his hands on her back. She stated that she did not remember his hand on her back but could remember his hand on her bum. Concerning the lockdown incident, she maintained that Y.C.B. said quietly in her ear: “do you like it” and that it was said quiet enough that the other children lying close by could not hear Y.C.B. After the science experiment incident, A.T. testified that Y.C.B. had placed his hands in her pants. She also stated that she was unaware that other children had alleged that Y.C.B. had touched them.
[44] A.T. said that G.H., although friendly, is not one of her close friends. She also said that she could not recall having discussed Y.C.B.’s touching of her bum with G.H. She stated that if other girls had attempted to engage her concerning what Y.C.B. did to her, she would have denied it. She told defence counsel that she did not remember any girl asking her if Y.C.B. had touched her bum.
Evidence of H.T.(2)
[45] H.T.(2) testified on a promise to tell the truth. She said that she was born on […], 2002, and attending grade six at R.A. school. She has attended R.A. school for the past two years.
Video
[46] H.T.(2) did a video interview with Detective Marelic on December 5, 2011, at the Ottawa Police Station. At the time of doing the video interview she was in grade four at S.C. school. At trial, H.T.(2) adopted her video statements as being truthful.
[47] In her video interview, she said that Y.C.B. was touching her “all over” between her pants and her underwear. She also said that this took place while she was alone with Y.C.B. as classmates were in the hallway outside the classroom getting ready to go home. H.T.(2) recalled having told her mother and that her mother did nothing. She said that when Y.C.B. made the news, she had told her mother that Y.C.B. had put his hand between her underwear and her bum and rubbed her bum a bit. She further explained that the bum touching did not happen right away as Y.C.B. touched her head, rubbed her belly and eventually touched her bum. She also said that upon leaving school for the holidays she had so much fun that she had forgotten to tell her mother about Y.C.B. touching her bum.
[48] According to H.T.(2), Y.C.B. used many excuses to hold her back after class. She recalled putting play money in order in boxes after class. She said that she often “faked it” about having to get on the bus to get out of the class. She recalled that she had felt Y.C.B.’s hand on her bum and that she would “scoot back a bit.” She told Detective Marelic that Y.C.B. would call her, saying “come here I want to speak to you,” but then it ended up with him touching her instead of talking. She estimated that this happened 17 to 25 times; that he touched her a lot but not a hundred times. She told Detective Marelic that Y.C.B. had asked her not to tell her mom and dad because he did not want to go to jail or get into trouble.
[49] At trial, H.T.(2) testified that she did not know any of the other girls involved in this trial: A.P., H.T., A.T., G., or C.D.
[50] During cross-examination, H.T.(2) agreed that she did not remember everything that she had said in the video prior to viewing it. She explained that there are two bells rung in school at the end of the day; one bell to announce the end of the class and one bell to get students to board the bus. There is a ten minute interval between the bells. The grade three class had to wait for Y.C.B. to escort them downstairs to the bus.
[51] H.T.(2) acknowledged that her mother had heard about Y.C.B. on the news. She recalled that her mother had asked her if anything had happened to her and that it was at that time that she had told her mother that Y.C.B. touched her bum. She denied having heard that Y.C.B. touched girls’ bums from other girls.
[52] Dealing with Y.C.B.’s touching, she acknowledged that he touched her in different ways: touched her head, rubbed her belly, touched her bum over her clothing more than once, touched her bum under her clothing, and on more than one occasion touched her between her underwear and her skin on her bum. She said that she was guessing at the number of times Y.C.B. had touched her bum: 15, 17 or 25 times. She recalled that she was mad at Y.C.B. because the touching made her feel uncomfortable.
[53] H.T. recalled that Y.C.B. used to twirl students around the classroom while holding them by the belt or by the waistband on their pants if there was no belt. Sometimes she said his fingers were inside and she could feel them against her skin.
[54] Once prompted by defence counsel, H.T.(2) recalled another episode that occurred the following year when she was in grade four. H.T.(2) was going to throw her sandwich away in the garbage at lunchtime. Y.C.B. was monitoring at lunch hour and he forced H.T.(2) to eat half of his sandwich. She agreed with counsel that Y.C.B. embarrassed her in front of the other students and that it did not make her like Y.C.B. very much.
[55] H.T.(2) had stated earlier that Y.C.B. had patted her friend S. on the bum over her pants. H.T.(2) maintained that with her it was different than with S. as Y.C.B. had touched her (H.T.(2)) with his hands inside her pants.
Evidence of C.D.
[56] C.D. is ten years of age and currently attending F. public elementary school in Ottawa, in grade five. At the time of giving her video statement she was 8 years of age and in grade three at S.C. school and Y.C.B. was her substitute teacher.
Video
[57] C.D. testified that Y.C.B. was a bad person because he touched girls in the wrong area. She said that he touched her during a lockdown at the school. The cameras showed it and the school janitor saw it. Later she said that Y.C.B. had not touched her as she was not close to him.
[58] C.D. recalled an incident when she was touched during a lever demonstration or a shovel demonstration. When asked which of her private parts Y.C.B. had touched, she said “not my bum, the other one.” She also stated that Y.C.B. did that by closing and opening his hand above her clothing in her crotch area. She recalled that Y.C.B., in demonstrating the shovel, had one hand on her leg that was up in the air and one hand on her private area.
Trial
[59] A drawing that C.D. made when she testified at the preliminary hearing was shown to her at trial and she quickly improved it. The drawing, filed as Exhibit 8, showed C.D. with one leg in the air held by Y.C.B.’s hand, while Y.C.B’s. other hand supported her in her crotch area. She said that her head was pushing down towards the ground. She also said that has now learned the word to describe her private parts.
[60] C.D. was asked when she first talked about Y.C.B.’s actions. She recalled that a friend had told her that Y.C.B. was on the news and that he was going to jail for what he did to little girls. Concerning the lockdown, she said that she missed the practice as she was off sick. but that she participated in the real lockdown involving the entire school. She remembered that the lights were off and the window blinds were closed during the lockdown.
[61] C.D. knows G.H. but she said that she did not discuss what happened to her concerning Y.C.B. with G.H. She also said that she knows A. too but that she did not keep seeing those girls. She stated that she did not know A.P., H.T., or H.T.(2).
[62] During cross-examination, C.D. agreed that the girls had discussed Y.C.B. She was asked if the girls had told her that Y.C.B. went to jail because he sexually abused girls. She replied “not sexually abused but because he touched the girls in the wrong place.” She agreed that her private part in front that she had referred to the in the evidence was called a vagina.
[63] C.D. agreed that she thought at first that Y.C.B.’s touching was just part of an experiment. However she said that the more she had thought about it, the more she was confused. She disagreed that things got clearer in her mind once her mother discussed the matter with her. She recalled that some of her friends had told her that Y.C.B. had touched them. She said that she did not remember which friend had told her about Y.C.B., and that a certain amount of time had elapsed before she had told her mother that Y.C.B. had touched her. The lapse of time happened because, she said, she did not want to accuse Y.C.B. if it was not true.
The Applicable Law
[64] The Supreme Court of Canada decision in R. v. Handy, 2002 SCC 56, sets out the framework for analysing whether similar fact evidence of prior discreditable conduct should be admitted. The starting point for any analysis of the admission of similar fact evidence is the fact that such evidence is presumptively inadmissible. To be admissible, the prosecution must demonstrate on a balance of probabilities that in the context of the particular case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice. The crucial purpose similar fact evidence is that is serves to rebut the possibility of coincidence as it relates to a live and important issue in the trial. As such, it can be devastating evidence, but given the potential prejudice, it must be carefully assessed before it is admitted.
[65] The probative value of similar fact evidence can be assessed by reference to a number of factors as set out in Handy. Those factors can be summarized as follows:
The strength of the proffered evidence must be assessed. Is the proposed evidence capable of belief? Is there evidence of collusion and if so, has the prosecution shown on a balance of probabilities that the proffered evidence is not tainted with collusion?
What is the live issue at trial to which it is said the proposed evidence relates? Is that issue important to the trial?
What elements connect or distinguish the proposed evidence to the facts alleged in the accusations? What is the degree of similarity? Connecting factors may, but need not, include:
a) The proximity in time of the similar acts to the offence charged;
b) The extent to which the other acts are similar in detail to the offence alleged;
c) The number of occurrences of the similar acts;
d) The circumstances surrounding or relating to the similar acts;
e) Any distinctive features unifying the similar acts and the offence charged;
f) Any intervening events; and
g) Any other factor that would tend to support or rebut the underlying unity of the similar acts and the offence alleged.
Having examined the proposed evidence as set out above, is that evidence capable of supporting the inferences sought by the Crown? If not, the analysis need go no further.
If the evidence is capable of supporting the inferences sought by the Crown, then the potential prejudice to the accused must be assessed. The Court must consider the potential for moral prejudice against the accused – i.e. that he has committed the offence because he is a bad person. The Court must also consider the potential for reasoning prejudice against the accused – i.e. that the trier of fact may become confused or distracted by the evidence of prior discreditable conduct and that they may have trouble disentangling the subject matter of the charges from the other evidence.
[66] In this application, I am asked to answer eighteen questions and determine:
Whether the evidence of A.P. should be admitted as circumstantial evidence regarding the counts against:
Whether the evidence of H.T. should be admitted as circumstantial evidence regarding the counts against:
Whether the evidence of A.T. should be admitted as circumstantial evidence regarding the counts against:
Whether the evidence of H.T.(2) should be admitted as circumstantial evidence regarding the counts against:
Whether the evidence of C.D. should be admitted as circumstantial evidence regarding the counts against:
1.A.T.
4.A.T,
7. A.P.
11.A.P.
151.A.P.
2.H.T.(2)
5. H.T.(2)
8.H.T.
12.H.T.
16.H.T.
3. C.D.
6.C.D.
9. C.D.
13.A.T,
17. A.T.
10. H.T.(2)
14. C.D.
18. H.T.(2)
Analysis
Relevance
[67] Counsel for both parties agree that the central issue in this case is whether the sexual acts occurred, which in turn brings about credibility and reliability issues of the five complainants.
[68] Identification is not an issue in this case as it is admitted.
[69] I find that the evidence is discreditable to the accused because if proven, an ordinary person would disapprove of the accused’s alleged conduct.
[70] I find that there is an evidentiary link between the similar acts and the accused. Crown counsel has listed them as follows:
• All complainants were young girls in elementary school either taught by the accused or having known him as a friend’s teacher attempting to exercise some control over her;
• All were in grade three at the relevant times;
• All describe the accused as very physical and many describe incidents where touching is normalized: e.g.. students sat on is lap (A.P., H.T.), he lifted students up in the air (A.T.), he conducted physical experiments in class (A.T., H.T.(2), C.D.), he massaged complainants during lockdown (A.T.) or during lunch-break (H.T.);
• All complainants were singled out for attention, whether it was to help her integrate better (A.T.); to help her with her behavior/studies (H.T.); to get her help with the auction and cleaning (H.T.); or to assist in demonstrating experiments (C.D.,