ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 280-11
DATE: 2014-04-15
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.B.
Guy W. Roy, for the Crown
George Florentis, for the Accused
HEARD: March 10, 11, 12 and 13, 2014
Ban of Publication pursuant to s. 486.4(1) and s. 539(1) of the Criminal Code of Canada
DECISION ON APPLICATION TO PERMIT SIMILAR ACT EVIDENCE
CORNELL J.:
[1] The accused, R.B., was originally charged in a four count indictment with two counts of sexual assault and two counts of touching a person under the age of 14 years for a sexual purpose. These four counts involved two separate complainants. The accused brought a successful application to sever the counts involving each separate complainant.
[2] The first trial proceeded before Hennessy J. on February 24, 25, 26 and 27, 2014. On March 6, 2014, Mr. R.B. was found guilty on both counts.
[3] This trial involving the second complainant began on March 10, 2014. The Crown has brought an application to permit similar act evidence from the first trial to be admitted as evidence in this trial. In my oral decision, I found that the Crown’s application should succeed. I now take this opportunity to provide the reasons for that decision.
Preliminary Issue
[4] Counsel for the accused has pointed out that the decision in the prior trial was only rendered on March 7, 2014. Counsel put it on the record that it is the accused’s intention to appeal the conviction. In view of this, the accused took the position that the similar act application should not proceed until all appeal rights have been exhausted.
[5] I reject this submission. It was the accused’s decision to seek severance of the counts in the full knowledge that if the application was successful, there would be two trials. The accused agreed to have both trials conducted in close proximity to the other. All of this was done in the full knowledge that if a conviction was rendered in the first trial, that it would be impossible to know the results of an appeal prior to the second trial.
[6] If the appeal makes its way to the Supreme Court of Canada, it may be four or five years before all appeal rights have been exhausted and a retrial held, if one were to be ordered. This case involves sexual assaults upon a child who was three years of age at that time. She is now seven years of age. To postpone the trial for any length of time might prove very problematic in terms of the complainant’s ability to recall events. Justice delayed, in most cases, is justice denied. That adage most certainly applies in this case given the age of the complainant.
[7] If the accused is found guilty in this trial, it is logical to assume that an appeal of this decision will be filed as well, particularly as it has been determined that the similar act evidence should be admitted. It goes without saying that it would then be open to the appeal court to deal with all of the issues raised in both appeals.
[8] For these reasons, I do not accept the preliminary objections which have been raised on behalf of the accused.
Factual Background
[9] In this case, the allegation is that the accused committed a sexual assault upon A.D. when she was three years old by forcing her to perform oral sex. The accused was known to the complainant as “Uncle R.”. The sexual assaults are alleged to have occurred in the bathroom of the accused’s basement apartment.
[10] In the previous proceeding before Hennessy J., the complainant was four to six years of age at the time of the sexual assaults. Two of the three incidents in the prior case consisted of requiring the plaintiff to perform oral sex. Two of those three sexual assaults occurred in the accused’s residence, one in a bedroom and one in a bathroom.
[11] The defence in both cases is that if the sexual offences occurred, they were not committed by this accused.
[12] It is against this preliminary factual backdrop that the Crown’s application is to be considered.
Use of Similar Act Evidence
[13] It is has been determined that if admitted, similar act evidence can be used for a wide variety of purposes.
[14] It has been held that similar act evidence is admissible to show a specific propensity to engage in sexual misconduct with certain types of complainants in certain types of situations: see R. v. R.T., 2004 BCCA 633, [2004] B.C.J. No. 2563, R. v. R.B., 2005 30693 (ON CA), [2005] O.J. No. 3575 (C.A.) at para. 11, and R. v J.A.H., 1998 14990 (BC CA), 124 C.C.C. (3d) 221, [1998] B.C.J. No. 725 (C.A.), at para. 18.
[15] A useful summary of the purpose for which similar act evidence can be admitted is found in R. v. R.E.L., 2013 ONSC 6292, [2013] O.J. No. 5683, where, at para. 42, Quigley J. had this to say:
It is well established that the evidence may be admitted for the purpose of showing the existence of such a common pattern of behavior (See R. v. M.B., [2008] O.J. No. 2358 (S.C.J.) at para. 39) 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 (see R. v. Finelli, [2008] O.J. No. 2242 (S.C.J.) at para. 27). 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 (see R. v Gelesz, [2002] O.J. No. 3883 (C.A.) at para. 2).
[16] This latter issue was also the subject matter of consideration by the Supreme Court of Canada in R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, 55 C.C.C. (3d) 1. In that case, it was alleged that the accused had engaged in sexual misconduct with his biological daughter when she was between the ages of 11 and 13. Crown sought to introduce evidence that the accused had past sexual relations with the 15 year old daughter of his common-law wife. In considering the use of similar act evidence with respect to corroboration and findings of credibility in cases of this nature, McLachlin J. stated at para. 41:
As noted earlier, the probative value of similar fact evidence must be assessed in the context of other evidence in the case. In cases such as the present, which pit the word of the child alleged to have been sexually assaulted against the word of the accused, similar fact evidence may be useful on the central issue of credibility.
General Principles
[17] It is well established that evidence of similar acts is presumptively inadmissible. It is necessary that the Crown indicate the issue to which the evidence may be relevant. The quality of the evidence and its similarity to the facts of this case must be such that “it would be an affront to common sense to suggest that the similarities were due to coincidence” (B. (C.R.) at para. 72).
[18] The Crown must show that on a balance of probabilities, the evidence is relevant and that its probative value exceeds its prejudicial effect: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.
Evidence
[19] A question arose at the outset of this application as to the nature of the evidence that would be used on the voir dire. Counsel for the accused took the position that viva voce evidence would be required. After some discussion, he took the position that a transcript of the complainant’s evidence from the first trial coupled with viva voce evidence would be required. The Crown took the position that all that was necessary was to provide proof of the prior conviction for similar offences as well as the reasons of the trial judge.
[20] It has been determined that where the similar act evidence consists of extrinsic conduct, there are a number of ways in which the evidence can be tendered on the voir dire. This includes an agreed statement of facts, will-say or actual witness statements, a transcript of the evidence provided at a preliminary hearing or other proceeding, or viva voce testimony. Viva voce evidence is not always required: see R v. Snow, 2004 34547 (ON CA), [2004] O.J. No. 4309, 190 C.C.C. (3d) 317 and R. v. Vernacchia, 1988 244 (QC CA), [1988] J.Q. no 29, 40 C.C.C. (3d) 561.
[21] In this particular case, the answer to the question as to what evidence is required on the voir dire can be found in R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716. In that case, the accused was charged with sexual assault. It was alleged that following a party, the accused removed a woman’s clothing after she had passed out from the consumption of alcohol and inserted a cork into her vagina. Eleven years earlier, the same accused had been convicted of sexual assault in similar circumstances where he was found to have inserted two plastic shopping bags into the vagina of a woman who was also unconscious as a result of the consumption of alcohol. The question arose as to whether the Crown was entitled to lead the appellant’s 1995 conviction on the similar fact voir dire. If so, was the appellant entitled to challenge his 1995 conviction on the similar fact voir dire? The appellant took the position that the facts were insufficiently similar and that the evidence linking him to the previous attack did not pass the “some evidence” threshold.
[22] In this case, the accused challenges the introduction of similar act evidence on the same basis. By doing so, the accused has put the Crown in a position where they are required to prove his involvement in the previous proceedings. In Jesse, Moldaver J. made the following finding with respect to the approach to be taken in such circumstances:
In my view, the appellant’s 1995 conviction constituted the best evidence the Crown had available to it to link him to the attack on J.S. In the context of a similar fact application, if an accused has been convicted of conduct that forms the similar fact evidence, the conviction may be tendered to establish an essential element of the prior offence where that element has been placed in issue.
The fact that the appellant’s conviction stemmed from a jury trial, as opposed to a guilty plea, did not alter its cogency, and hence admissibility, as a means of establishing the narrow fact in issue, namely the issue of identity. In so concluding, I recognize that jury verdicts (and presumably verdicts rendered by judges alone) have in the past been characterized as a combination of hearsay evidence and opinion evidence, and for that reason, unlike pleas of guilty that constitute admissions, they ought not to be received for their truth. This view is attributable, at least in part, to the case of Hollington v. F. Hewthorn & Co. [1943] 1 K.B. 587, where the English Court of Appeal held that, on a subsequent trial, a conviction in a previous criminal trial was not admissible is it constituted irrelevant opinion evidence. The appellant relies on this case for the proposition that his prior conviction was inadmissible.
I reject that line of thinking. In my view, jury verdicts and verdicts rendered by judges alone are presumptively reliable and, when it comes to the issue of identity, they should be treated that way unless overturned on appeal or later shown to be wrong. To hold otherwise would be to call into question the integrity of our entire justice system.
Thus verdicts are not mere “opinion”; they are the considered result of informed deliberations and, as a result, carry a high degree of reliability. Were it otherwise, we would not and could not rely on them to deprive people of their liberty.
Against that backdrop, I find it counterintuitive and mechanistic to adopt a rule that automatically rejects trial verdicts for their truth on the basis that they constitute hearsay/opinion evidence of questionable value. In reality, they rank extremely high on the reliability scale and that is how they should be viewed when deciding whether they can be admitted for their truth. [Emphasis added.]
[23] I therefore find that it is open to the Crown to use the prior conviction as evidence on the similar act application. Counsel for the accused indicated that he was content that if I made such a determination, it would be appropriate for the Crown to submit a certified copy of the indictment in the prior proceedings as well as a copy of the trial judge’s decision. Out of an abundance of caution, the Crown chose to file a redacted version of the trial judge’s decision which confined itself to the issues raised in the previous trial that are relevant to the similar act application. These documents were marked as Exhibits 1 and 2, respectively, on the voir dire.
Analysis
[24] The central issue in this case is whether the sexual misconduct occurred. If it did, a further question arises as to whether those sexual acts were committed by the accused.
[25] The disclosure of the sexual activity by the child to her mother did not occur until sometime well after such activity had allegedly taken place. In view of this, there is no forensic evidence in support of these allegations. There are no witnesses who are available to corroborate A.D.’s version of events. The Crown proposes to use the similar act evidence as a source of corroboration of A.D.’s testimony. If admitted, the Crown intends to use such evidence to negate a defence that A.D. has fabricated her story.
[26] The Crown has also made it clear that it wishes to use the similar act evidence to demonstrate a pattern of behavior on the part of the accused described as a situation-specific propensity to sexually abuse very young females within the family home and with whom he stands in a close familial relationship. The previous case involved a sexual assault upon a step-daughter with two of the three assaults taking place within the family home. In this case, the accused was known to A.D. as “Uncle R.”, a title conferred by courtesy rather than by blood connection. In this case, it is alleged that the assaults took place while A.D. and her mother were sleeping over in the accused’s basement apartment that was occupied by Aunty K.K., the accused’s common-law partner.
[27] In making this determination, I am mindful of the finding in Jesse that such a decision “should not be taken as holding that prior convictions will always be admissible when similar fact evidence is tendered. Each case must be assessed on its own facts and circumstances” (para. 56). The prior trial and decision are quite recent. The accused was represented by the same lawyer at that trial. The accused had every opportunity to make full answer and defence with respect to those charges at that time. In that case, the assaults occurred when the complainant was four to six years of age. She was 18 years of age at the time of her testimony. There can be no doubt that testifying about such matters is a difficult and unpleasant task. The Crown made it clear in this case that he did not want the prior complainant to endure that ordeal again by calling her to provide viva voce evidence. I have therefore determined that based upon these facts and circumstances, it is appropriate that I receive the prior conviction and the redacted reasons of the trial judge as evidence on this voir dire.
Test to be Applied
[28] At this stage, the test that I am to apply is whether there is some evidence that the accused was the person responsible for the assaults in the prior proceedings. I am satisfied that the prior conviction is sufficient to link the accused to the prior sexual assault as the prior conviction is “presumptively reliable” and prior verdicts have “a high degree of reliability.”
Relevance, Probative Value
[29] This now leads me to a consideration of relevance and probative value. In undertaking this exercise, it is necessary for me to consider the relevance of the similar act evidence to an issue in this case, the probative value of the evidence, the prejudicial effect of the evidence, and the balancing of the probative value against the prejudicial effect of the evidence.
[30] When conducting this analysis, it is necessary that I consider the following factors:
(1) Proximity in Time of the Similar Acts
The assaults on K. took place in 2001 and 2002. The assaults on A.D. are alleged to have occurred between November of 2009 and May of 2010.
(2) Similarity in Detail
There are many similarities. They consist of the following:
(a) both of the assaults involve females;
(b) the victims are of similar age. In this case A.D. was just under four years of age at the time of the assault. In the previous case, the assaults occurred when the victim was four to six years of age;
(c) with one exception, the sexual acts consisted of oral sex where the victims were instructed by the perpetrator to “suck it”;
(d) the assaults occurred on more than one occasion. In this case, it is alleged that the assaults occurred more than ten times. In the previous case, the victim could specifically remember three assaults as well as “other incidents”;
(e) in both cases, the perpetrator pulled down his pants or shorts;
(f) in both cases, the victims were told to swallow the “pee” or ejaculate;
(g) with one exception, the assaults both took place in the family home. In this case, all of the assaults are alleged to have occurred in the downstairs bathroom. In the previous case, the assaults occurred in a bedroom and basement bathroom of the family home as well as a public park;
(h) the assailant was known to both of the victims and was in a familial relationship in both cases. In this case, the accused was known to the victim as “Uncle R.”. In the previous case, the accused stood in a step-parent role;
(i) both young victims identified the accused as the perpetrator;
(j) during the course of some of the assaults, the perpetrator displayed visible anger. In the previous case, the complainant said the perpetrator became angry when she “sacked him” and he then took her to a private area of the park and required her to perform oral sex. In this case, the evidence indicates there was an element of anger each time an offence was committed. When she was giving her evidence, A.D. would attempt to mimic the accused at the time of the assault. She would adopt an angry expression on her face and an angry tone in her voice to indicate how the accused had acted when she recounted what the accused had said to her or instructed her to do; and
(k) the perpetrator “peed” or ejaculated in the mouth of both victims and required them to swallow it. The essential allegation made by A.D. in this case is that “Uncle R. peed in my mouth.” This is the statement that she has consistently used when she made the first disclosure to her mother, when she made the further disclosure to her stepfather and biological father, when she first spoke of this to the police, when her video statement was taken and during the course of her evidence at the trial. On two occasions during the course of her evidence, A.D. was asked what she did with the “pee” after it was in her mouth. On both occasions, she again attempted to mimic the accused. She prefaced her answer by adopting a very angry face. She proceeded to say in an angry tone of voice that Uncle R. told her to “swallow it, swallow it, swallow it.” Although she indicated that she wanted to spit it out, she complied with his request. The evidence in the previous trial indicates K. also wanted to spit it out, but that she was also required to swallow the substance. During the bedroom incident, K. was told not to spit it out but to swallow it. She said that she tried to go to the bathroom to spit it out but he followed her and from behind the door of the bathroom, yelled at her to swallow it.
(3) Dissimilarities
There are certain dissimilarities, but they are few in number. In this case, all of the alleged assaults took place in the basement bathroom. In the previous case, the assaults took place within the family home in a bedroom and a bathroom. The third assault occurred in a public park. In the previous case, the sexual assault which occurred in the bathroom consisted of digital penetration and not oral sex.
(4) Number of Similar Acts
In this case, A.D. has indicated in her evidence that although she cannot be certain as to the number of assaults, she believes that there were more than ten. In the case of K., the victim could specifically remember three assaults as well as “other incidents.”
(5) Circumstances Surrounding the Acts
It has already been noted that both of the victims knew the accused within a family framework. In the case of K., the accused was her common-law stepfather. In this case, the accused was known as “Uncle R.”. With one exception, the sexual assaults took place within the confines of the accused’s family home.
(6) Distinctive Features Unifying the Incidents
The distinctive features include the very young ages of the victims, and, with one exception, the fact that the sexual acts consisted of fellatio. In my opinion, however, the most telling fact is that although both victims wanted to “spit it out” they were instructed by the perpetrator to swallow.
(7) Intervening Events
There are no intervening events which need be considered in this case.
Collusion
[31] The evidence indicates that A.D. and K. have never met and that there is no family or social connection. As there has been no evidence of collusion, no consideration of this subject has been undertaken.
Strength of the Evidence that the Similar Acts Actually Occurred
[32] I am satisfied that the similar act evidence is relevant and highly probative of the issues raised in this case. I now turn to consideration of the strength of the evidence.
[33] The accused has denied his involvement in the case involving K. and has indicated that an appeal will be filed in connection with the convictions which have been registered in that proceeding. His counsel has made it known that the accused denies any involvement in the alleged offences in this case.
[34] The accused has been convicted on both counts in the K. trial. It has already been noted from the decision in Jesse that such a finding is highly reliable.
[35] In this particular case, the direct evidence of A.D. was provided by way of closed circuit television. She had the opportunity to review the video statement that she had given to the police during the course of their investigation. She then proceeded to provide evidence-in-chief and was subject to cross-examination.
[36] A.D. was a very impressive witness. During the course of her evidence, she indicated on two or three occasions that she understood how important it was that she told the truth. If she knew the answer to a question, she provided it readily. If the answer was not readily available to her, she would knit her brow, pause to consider the question, and then respond. Sometimes the answer would be forthcoming. At other times, she would indicate that she was “pretty sure that this is what happened.” At other times, she would indicate that she did not know or could not remember. There was nothing in her evidence or her manner which would suggest that she had been coached or rehearsed. To the contrary, at all times, she appeared to take to heart the fact that she was required to tell the truth.
[37] Although there were some inconsistencies between her preliminary and trial evidence, in the end, I am satisfied that she was a credible and reliable witness.
[38] I believe it was Binnie J. who said that “If you win the lottery once, you are congratulated. If you win the lottery twice, you are investigated.” These two complainants are complete strangers. The parents do not know each other. There is absolutely no suggestion in this case that there has been any collusion. In my opinion, the fact that the sexual acts complained of are virtually identical, and occurred in very similar circumstances where both of the young victims identified the accused as the perpetrator, removes the prospect of coincidence.
Prejudice
[39] It has been acknowledged that the introduction of similar act evidence necessarily involves propensity reasoning. This in and of itself is insufficient to preclude the introduction of similar act evidence.
[40] It is the moral prejudice associated with such evidence that is of concern, that is to say, that there is a potential for an inference of guilt based on “bad personhood”.
[41] Apart from that, reasoning prejudice can lead to confusion and distraction.
[42] This is a judge alone trial. As judges, we are often called upon to disregard evidence that may have been tendered or to use evidence for a limited or specific purpose. In view of this, I am satisfied that I will be able to avoid the dangers associated with moral and reasoning prejudice.
The Weighing Exercise
[43] The evidence in this case is highly probative of the main issue in these proceedings. As discussed, the similarities are significant including certain distinctive and unique similarities. We have the fact of a prior conviction which has established beyond a reasonable doubt the accused’s involvement in the prior proceeding. In this case, there is strong evidence as a result of my finding that A.D. is a reliable and credible witness. When I consider all of these factors and balance the probative value against the prejudicial effect of the similar act evidence, I am satisfied that the probative value of the evidence outweighs its prejudicial effect.
Conclusion
[44] I am satisfied that there is a sufficient degree of similarity between the acts and that they were likely committed by the same person. In making this determination, I have considered the manner in which the acts were committed and not the evidence of the accused’s involvement in each act. I have therefore reached the conclusion that the probative value of this evidence outweighs the prejudicial effect. Accordingly, I find that the similar act evidence is admissible.
The Honourable Mr. Justice R. Dan Cornell
Released: April 15, 2014
COURT FILE NO.: 280-11
DATE: April 15, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R.B.
DECISION ON APPLICATION TO PERMIT SIMILAR ACT EVIDENCE
Ban of Publication pursuant to s. 486.4(1) and s. 539(1) of the Criminal Code of Canada
Cornell J.
Released: April 15, 2014