ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-5008
DATE: 2014/03/10
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
Michael Grant Slater
Defendant
Lisa Miles and Sarah Fountain, for the Crown
Jill Copeland and Jessica Orkin, for the Defendant
HEARD: February 18, 2014 (Ottawa)
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the complainant J.R. may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
similar fact evidence ruling
PARFETT J.
[1] This matter is a historical sexual assault trial proceeding before a jury. The evidence of both complainants has been heard and the Crown now seeks to admit as similar fact evidence, the evidence of each complainant with respect to the counts on the indictment relating to the other complainant.
Background
[2] The accused, Michael Grant Slater, was a teacher at the Elizabeth Park Intermediate School. The school was on the property of the CFB Uplands military base and during the time periods in question, all of the students at the school came from military families. K.B., the first complainant in this matter, alleges that while he was a student of Mr. Slater in 1968-69, he was sexually abused. He went to police in 2009 and as a result of a press release, a second complainant came forward. J.R. alleges that while he was a student of Mr. Slater in 1983-84, he was abused by him.
Evidence of K.B.
[3] K.B. testified that his father was in the military and as a result he and his family were living on the base at CFB Uplands. CFB Uplands was like a small town except it had more amenities. For the most part, there was no need for the children living on the base to ever leave the base.
[4] He attended Elizabeth Park Intermediate School for grades seven and eight. This school was on the base and his teacher both years was Michael Slater. He indicated that initially he liked Mr. Slater. He found that Mr. Slater was personable, interested in helping him get better marks and a good teacher. He was not overly strict and never lost his temper. He does not have a clear memory of this, but he indicated that he believed that Mr. Slater took an active role in getting the male students to perform better in sports.
[5] Everything was fine until one day Mr. Slater asked him to stay after class and locked the classroom door. Mr. Slater led him over to a corner of the classroom and took out his penis and asked the complainant to masturbate him. Mr. K.B. refused so Mr. Slater masturbated himself and used a brown paper towel to clean up. Mr. K.B. stated that he was sexually inexperienced and Mr. Slater’s behaviour was unexpected. According to Mr. K.B. there were two further similar incidents in the classroom. The next occasion which he remembers clearly occurred when Mr. Slater invited him into his car and took him to a house that he indicated was his wife’s parents’ house. There was no one else in the house when they arrived.
[6] Mr. Slater gave him some alcohol to drink, and then Mr. Slater then took him to the bedroom. Mr. Slater undid the complainant’s pants and performed oral sex on him. He recalled that Mr. Slater’s teeth hurt him. Mr. Slater then laid him on the bed, stomach down and he spread the cheeks of his bottom and forcibly inserted his penis in his rectum. Mr. K.B. testified that he was crying and Mr. Slater removed his penis from his rectum. He recalled that there was blood in his underwear after this incident. Mr. K.B. indicated that there was at least one more incident of a similar nature at this house. He also stated that there may have been a third incident, but he has no clear recollection. On each occasion, Mr. Slater took him to his wife’s parents’ house in Alta Vista in his car, gave him some alcohol to drink and then performed anal intercourse. After each incident, Mr. Slater drove him back to the base.
[7] He and his family moved to Trenton sometime after these incidents. Mr. K.B.’s relationship with his family deteriorated and he left home at sixteen. He stayed briefly with the Slaters at their house in downtown Ottawa, but left when Mr. Slater allegedly made some sexual advances. He did not see Mr. Slater again until the court procedures started.
[8] Mr. K.B. was cross-examined extensively on his testimony, in particular on the accuracy of his recollection of the timing and location of events. The reliability of his memory was put seriously into question. Ultimately, he was unable to state with any degree of certainty whether the alleged incidents occurred in grade seven or eight. The best he could do was say that it occurred while he was a student of Mr. Slater’s and before he was hospitalized for a lengthy period of time for a liver disorder. However, he was adamant that the sexual abuse occurred and that Mr. Slater was the perpetrator.
Evidence of J.R.
[9] Mr. R. stated that he lived on CFB Uplands because his father was in the military. He attended Elizabeth Park Intermediate School for grades five to eight and Mr. Slater was his teacher in grade eight when he was 13-14 years of age. As a teacher, Mr. Slater was strict, had high expectations, and ruled a tight ship. Mr. Slater was also popular and the students were able to connect with him. Mr. R. indicated that he liked Mr. Slater. Mr. Slater was involved in running dances at the school and was heavily involved in coaching hockey in the community. According to Mr. R., Mr. Slater often spoke about hockey and Mr. R. had friends who played on his team.
[10] Mr. R. testified that one day, he and some of his friends were discussing masturbation in class. They were using coded language. Mr. Slater asked Mr. R. to step outside the classroom. Mr. Slater wanted to know what the discussion in the classroom had been about. According to Mr. R., Mr. Slater took a keen interest in the boys’ discussion and asked a number of questions about masturbation. Mr. R. indicated that he was left with the impression that he was teaching Mr. Slater about this activity. He said that it created a connection between the two of them.
[11] Sometime after this incident, Mr. R. testified that he was invited to Mr. Slater’s house to watch a hockey game. His parents knew about the invitation and were fine with it because Mr. Slater had a good reputation. It was in the evening, probably on the weekend because Mr. R. indicated that he would not have been allowed to stay out late during the week. He was the only person invited. Mr. Slater picked him up from his home and drove him to a house in his car. Mr. R. indicated that he understood this house to be Mr. Slater’s house. There was no one else present in the house. Mr. R. testified that at some point during the evening, they went into a bedroom where they were having a conversation about penis size. They also talked about masturbation and Mr. R. indicated that they both began masturbating. During this process, Mr. Slater apparently proposed that they would each perform fellatio on the other. Mr. R. stated that he agreed with this proposal.
[12] Within that same year, he was again invited over to Mr. Slater’s house to watch hockey. On this occasion, he believes that he met Mrs. Slater. He only recalls seeing Mrs. Slater briefly at the beginning of the evening. While they were watching hockey, Mr. Slater provided him with a beer after which he was not drunk, but was feeling the effects of the alcohol. Mr. R. testified that they again engaged in mutual masturbation. Then he proposed to Mr. Slater that they attempt anal intercourse. Mr. Slater agreed and he inserted his penis into Mr. R.’s rectum. However, Mr. Slater stopped when Mr. R. indicated that it hurt. Mr. R. indicated that was the last occasion that there was actual sexual contact between him and Mr. Slater.
[13] There were two other incidents. The first involved Mr. Slater, Mr. R. and a friend of Mr. R. going out for a pizza. After the meal ended, Mr. Slater proposed that the three of them engage in a ‘circle jerk’ – mutual masturbation. When the friend was informed of this offer, he was quite upset. Mr. R. testified that this incident was the first time that it occurred to him that there was something wrong with his relationship with Mr. Slater. On the second occasion, the class was on a camping trip. Mr. R. stated that Mr. Slater invited him into his room in the cabin and asked him to perform fellatio. Mr. R. refused.
[14] When Mr. R. was in high school, he went to see a psychologist as a result of which he decided to confront Mr. Slater about their relationship. Mr. R. testified that he went over to the school shortly after the end of the school day and spoke with Mr. Slater in the stairwell. He indicated that Mr. Slater told him that he was a changed man, who was very involved in charity work. That was the last contact that he had with Mr. Slater.
[15] Like Mr. K.B., Mr. R. was extensively cross-examined on any and all differences between his statements to police, his preliminary inquiry evidence and his trial testimony. However, again like Mr. K.B. he held firm concerning the sexual abuse while accepting that there was a certain improbability associated both with his confrontation with Mr. Slater in the school stairwell and the abuse that occurred in the house where Mrs. Slater may or may not have been present.
Analysis
[16] The Supreme Court of Canada decision in R. v. Handy[1] sets out the framework for analysing whether similar fact evidence should be admitted. The starting point for any analysis of the admission of similar fact evidence is that such evidence is presumptively inadmissible.[2] 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.[3] The crucial purpose of similar fact evidence is that it serves to rebut the possibility of coincidence as it relates to a live and important issue in the trial.[4] As such it can be devastating evidence, but given the potential prejudice, it must be carefully assessed before it is admitted.
[17] 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 the proposed evidence to or distinguish it from the facts alleged in the charge? 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 jury 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.[5]
[18] In R. v. B.(C.R.)[6], the Supreme Court of Canada emphasized the fact that such evidence must possess a high probative value in relation to its potential for prejudice. The Court stated that:
…evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.[7]
[19] It has since been acknowledged by the Supreme Court of Canada that similar fact evidence is propensity evidence because its value lies in the proposition that people tend to act consistently with their character.[8] As noted by the court in R. v. L.B.,
It is clear (…) that propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission. (…) It is propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence of discreditable conduct, which is prohibited.[9]
[20] In assessing prejudicial effect, the Supreme Court of Canada has indicated the following:
The inherent prejudicial effect of similar fact evidence may be felt by a jury in three main ways. The first is that the jury, if it accepts that the accused committed the prior “bad acts”, may therefore assume that the accused is a “bad person” who is likely to be guilty of the offence charged. (…) The second effect on the jury might be a tendency for the jury to punish the accused for past misconduct by finding that accused guilty of the offence charged. The third danger is that the jury might become confused as it concentrates on resolving whether the accused actually committed the similar acts. The jury members’ attention is deflected from the main purpose of their deliberations which is the transaction charged. Having resolved the first matter, there is a danger that they will substitute their verdict on that matter for their verdict on the issue which they are in fact trying.[10]
[21] However, the impact of this prejudice is decreased where, as here, all the charges are contained in the same indictment. The jury must first find that each complainant is likely telling the truth before they can go on to apply the testimony of one complainant to any other count.[11] What is required therefore is a detailed assessment of similarities and dissimilarities, a careful balancing of probative value versus prejudicial effect, keeping in mind the issues to which the evidence relates. This task is more easily described than it is to carry out.
Application to the facts of this case
[22] Crown argues that the similar fact evidence in this case relates to several issues. They state that the critical issue at trial is whether the acts as alleged occurred. Consequently, the similar fact evidence would serve to support the credibility of each complainant and undermine the accused’s blanket denial.
[23] Collusion is not an issue in this analysis as Defence concedes that there is no evidence of collusion.
[24] The focus of the argument concerns the degree of similarity between the evidence of the two complainants. Crown argues that there is a substantial degree of similarity and little dissimilarity. Defence contends the reverse.
[25] The similarities that the Crown points to are the following:
• Both complainants were either 13 or 14 when the alleged abuse occurred;
• Both complainants were students in the accused’s class;
• The complainants were taken off school property to houses accessible to the accused where some of the alleged incidents took place;
• The complainants describe the accused as a good teacher who was personable and connected well with his students;
• The initial sexual contact occurred at the school. With respect to K.B., the contact involved a request for masturbation; in J.R.’s case, the accused discussed masturbation with him;
• Both complainants allege that they were given alcohol by the accused immediately prior to the sexual abuse that occurred in the houses;
• The sexual acts alleged are similar – masturbation, fellatio and anal intercourse;
• In both cases, when the complainant advised that the anal intercourse hurt, the accused stopped; and
• No threats or coercion were used to obtain compliance. Instead, the accused used his authority as a teacher to obtain compliance.
[26] Defence contends that while some of the similarities certainly exist, they are either too generic or insignificant. In my view, the similarities outlined by the Crown are supported by the evidence. However, some of the similarities are more significant than others.
[27] It is important to keep in mind that in cases of sexual assault, the similarities or dissimilarities between the sexual acts may be important; however, it is the circumstances surrounding the acts that may be far more compelling. In the L.B. case the court noted that:
In most circumstances, the fact that one complainant was kissed as compared to the other being fondled may not have a whole lot of significance. The allegations all pertain to acts of a sexual nature. In the same way, and again depending on the circumstances, the fact that one assault occurred in the basement as opposed to the other in the bedroom may not be of consequence on the question of probative value. The different location may simply be attributable to a different opportunity for privacy. For example, in B.(C.R.), the similarities that the majority found to be sufficiently compelling essentially related to the context within which the assault occurred and to what was distinctive about that context [i.e. the establishment of a father-daughter relationship before sexual abuse began].
It is therefore important to consider not only the acts themselves but all the circumstances in order to assess what similarities, if any, exist between the discreditable conduct and the alleged offence, and whether these similarities give the evidence probative value. Dissimilarities have to be considered in the same light in order to determine whether or not they detract from the probative value of the evidence.[12]
[28] In my view the fact that both complainants were 13 or 14 years of age and students of the accused is a fairly generic similarity. The accused is a teacher who taught grades seven and eight and most of his students would have been thirteen or fourteen. The significant similarities are the following: taking the students off school property and to a house; giving them alcohol as a preliminary to sexual activity; the similarity in the sexual acts; and the fact that when the complainants reacted negatively to anal intercourse, the accused stopped.
[29] There are of course a number of dissimilarities. They are:
• The sexual acts involving K.B. started in the classroom. While there was discussion of sexual activity in the school with J.R., the sexual activity only occurred off school property.
• While the same sexual acts occurred with respect to both complainants, they occurred in different ways. As an example, K.B. was a bystander while the accused allegedly masturbated; the accused and J.R. allegedly engaged in mutual independent masturbation.
• There was no ‘grooming’ behaviour that occurred with K.B. On the other hand, the accused allegedly sought out J.R., made him feel that he was ‘teaching’ the teacher, invited him over for hockey games, and took him out for pizza.
• K.B.was compliant, but not an active participant. J.R. was not only an active participant, but he also instigated or suggested some of the sexual activity.
[30] Of these dissimilarities, it is the last two that I find compelling. It is significant that there is a complete lack of grooming behaviour with respect to one complainant and obvious grooming behaviour with the other complainant. In addition, the fact that one complainant was effectively a non-participant while the other was an active participant is striking. These dissimilarities indicate that the accused used a completely different approach with each complainant. In short, these factors substantially undermine any unity resulting from the similarities noted above.
[31] Another factor that militates against the admission of this evidence as similar fact is the passage of time between the two allegations – fifteen years. In my view, there are insufficient unifying characteristics to justify admitting the evidence of one complainant on the counts relating to the other complainant. Given this finding, it follows that even if the evidence of one complainant is accepted by the jury, that evidence does not make it more likely that the incidents in relation to the second complainant occurred.
[32] Taking into consideration all the factors outlined above, I do not find that this evidence meets the requirements of admission as similar fact evidence. Consequently, the application is dismissed.
Madam Justice Julianne A. Parfett
Released: March 10, 2014
COURT FILE NO.: CR-11-5008
DATE: 2014/03/10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Michael Grant Slater
Defendant
SIMILAR FACT EVIDENCE RULING
Parfett J.
Released: March 10, 2014
[1] R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.
[2] Handy at para. 31.
[3] Ibid., at para. 55.
[4] Mr. Justice Marc Rosenberg, “Similar Fact Evidence” 2003 LSUC Special Lectures (Toronto: Irwin Law, 2004) at 391.
[5] Factors are drawn from R. v. K. (C.P.), 2002 23599 (ON CA), [2002] O.J. No. 4929 (O.C.A.) at pp. 495-497.
[6] 1990 142 (SCC), [1990] 1 S.C.R. 717.
[7] At para. 24.
[8] R. v. L.B., 1997 3187 (ON CA), [1997] O.J. No. 3042 (C.A.) at para. 43.
[9] At para. 45-46.
[10] R. v. D.(L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111 at pp. 127-128.
[11] R. v. Minister, 2012 ONSC 3506, at para. 27.
[12] Ibid., at paras. 37 & 39.