ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CR-13-2865
Delivered Orally: April 28, 2014
Between:
HER MAJESTY THE QUEEN
– and –
Jeffery Rafael
Defendant
Jane Magri, for the Crown
Susan M. Chapman, for the Defendant
Heard: April 24, 2014
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
ruling on similar fact
Pomerance j.:
[1] The accused, Jeffery Rafael, is charged with one count of sexual assault and one count of sexual exploitation. The charges arise out of an allegation that, in 2010, while he was teaching an auto body class at high school, the accused touched the complainant’s buttocks. The central issue at trial is whether this was a sexual touching, or whether it was for an innocent purpose. The Crown has closed its case and the defence has yet to be put to its election to call evidence. At this point, I must rule on the admissibility of evidence proffered by the Crown.
[2] The Crown seeks to introduce allegations of disreputable conduct falling outside the scope of the indictment. The accused is alleged to have made sexually inappropriate remarks to the complainant and another female student in his auto body shop class. These remarks consisted of him calling the complainant sexy, and stating that he wanted to take the complainant and her friend home with him. He is also alleged to have engaged in a sexually inappropriate gesture on one occasion when the complainant was vacuuming the interior of a vehicle. According to one of the Crown witnesses, the accused stood behind the complainant and moved his body in a “dry-humping” motion.
[3] The Crown, Ms. Magri, takes the position that the evidence is relevant to the determination of whether the touching giving rise to the charge was for a sexual purpose. It is part of the contextual narrative and defines the nature of the relationship between the parties. The Crown submits that the probative value outweighs prejudicial effect.
[4] For the defence, Ms. Chapman vigorously resists admission of the evidence. She argues that it is of little probative value given the lack of similarity between the similar fact allegations and the conduct underlying the charge. Ms. Chapman points to evidence of collusion between the complainant and the other two similar fact witnesses. Finally, she relies on the prejudicial effect of the evidence which is said to outweigh any potential probity.
[5] I find that, in the particular circumstances of this case, the evidence is not sufficiently probative to warrant its admission at trial. I have three related concerns:
The inference urged by the Crown involves general, rather than specific, propensity reasoning and therefore is not permissible.
The evidence of collusion strips the evidence of any probity that it might have had. The witnesses shared information with one another on various occasions. This occurred in a school setting that was, itself, rife with rumour and gossip about the events. The potential for contamination – deliberate or inadvertent – casts real doubt on the reliability of the witness’ evidence.
The evidence carries a significant degree of prejudice, that outweighs any probative value.
I will deal with each of these in turn.
1. THE INFERENCE INVOLVES GENERAL PROPENSITY REASONING
[6] Historically, the term “similar fact evidence” has been used to describe a broad spectrum of bad character evidence. The term has become a catchphrase for any evidence of disreputable conduct falling outside the scope of the indictment. However, it is not accurate to label all bad character evidence as similar fact evidence. Bad character evidence may fall into the category of similar fact evidence, or it may fall into the category of non-similar fact evidence. In both instances, the evidence must be carefully scrutinized and can only be admitted where probative value outweighs prejudicial effect. However, there is an important distinction between the reasoning employed in similar fact and non-similar fact cases.
[7] In similar fact cases, the probative value of the evidence flows from the similarity between the evidence and the charge; and what that similarity says about the accused’s disposition to act in a particular way. In true similar fact cases, the evidence is introduced to show that the accused has a specific propensity to act in a particular way, and that he or she acted on that propensity at the time of the offence.
[8] Beyond this narrow category, there is a broader sphere of evidence that concerns the accused’s character, but does not require any degree of similarity for admission. In these cases, similarity is not required, because the evidence does not require any inference to be drawn about the disposition of the accused. The evidence is relevant on some basis other than disposition or propensity.
[9] The distinction between similar fact and non-similar fact evidence may be illustrated by comparing two examples.
[10] In the first example, the accused is charged with armed robbery of a convenience store. The Crown leads evidence that, on a prior occasion, the accused broke into a home and stole the weapon used in the robbery. This evidence is relevant to identity. However, it does not require any inference about the disposition of the accused. There need not be any similarity between the break and enter and the robbery. This is bad character evidence, but it is not similar fact evidence.
[11] In the second example, the accused is again charged with armed robbery of a convenience store. In this case, the Crown wants to lead evidence that, in the past, the accused committed three other armed robberies of convenience stores. In this example, the evidence is relevant to identity, but only through an inference of disposition and only where there is a requisite degree of similarity between the robbery charged and the other three alleged by the Crown. In this example, the evidence is bad character evidence, properly described as similar fact evidence.
[12] How ought one to categorize the evidence in this case?
[13] The Crown argues that the evidence is part of the contextual narrative, it defines the nature of the relationship between the parties, it speaks to the issues of the accused’s motive and/or intention; and it rebuts the defence of innocent association. At first blush, these bases for admission might not seem to involve propensity reasoning. Upon closer examination however, it is apparent that propensity reasoning is at the heart of the inference urged by the Crown.
[14] The Crown argues that the sexualized environment of the classroom increases the likelihood that the touching of the complainant was for a sexual rather than an innocent purpose. Stated another way, it is the Crown’s position that, because the accused made sexually inappropriate remarks to students, he is more likely to have sexually assaulted a student. This chain of reasoning requires an intervening inference of disposition. The Crown position amounts to an argument that, because he made sexual remarks to a student, the accused is a person of sexually questionable character, and is therefore more likely to sexually touch a student. The gap between the similar fact evidence and the charge can only be bridged by an inference that the accused is a person prone to act in a sexually inappropriate manner and therefore more likely to commit a sexual assault.
[15] There are various difficulties with this inference. First, it is not at all clear that it flows as a matter of logic. That is, one cannot say with any confidence that a person who makes sexually inappropriate remarks, or engages in a sexually inappropriate gesture (the dry-hump incident) is prone to commit a sexual offence. This involves an inferential leap that is difficult to sustain. Inappropriate verbal conduct is not necessarily equated with inappropriate physical conduct. The nexus between the two is weak at best. Even if I were to find that the accused did make inappropriate sexual jokes, and an inappropriate sexual gesture, this would not logically lead the conclusion that he is predisposed to commit a sexual offence.
[16] Moreover, if a court were to draw that conclusion, it would involve a prohibited chain of reasoning, based on notions of general bad character. As Binnie J. stated in the now seminal case of R. v. Handy, 2002 SCC 56, 2002 S.C.C. 56, in paras. 72 & 85:
Proof of general disposition is a prohibited purpose. Bad character is not an offence known to the law. Discreditable disposition or character evidence, at large, creates nothing but “moral prejudice” and the crown is not entitled to ease its burden by stigmatizing the accused as a bad person…
Part of the conceptual problem with similar fact evidence is that words like “disposition” or “propensity” are apt to describe a whole spectrum of human character and behaviour of varying degrees of potential relevance. At the vague end of the spectrum, it might be said that the respondent has a general disposition or propensity “for violence”. This, by itself, proved nothing of value in this trial. The respondent was not charged with having a brutal personality, and his general character was, in that sense, irrelevant.
[17] As Binnie J. held, similar fact evidence may well rely on propensity reasoning for its admission. But, to be properly admissible, the evidence must disclose a specific disposition to act in a particular manner, in support of the inference that the accused acted on that specific propensity when committing the offence. It is not enough for evidence to demonstrate that the accused has a general propensity to be dishonest, or to be violent, or to be sexually inappropriate. This is nothing more than evidence of a bad character.
[18] In some respects, this case is not unlike R. v. Pascoe, 1997 1413 (ON CA), [1997] O.J. No. 88 (C.A.). In Pascoe the accused was charged with sexual offences arising out of his touching of young boys. In one instance, he touched the boy on the upper thigh and back. On another occasion, he offered to lift one of the boys up. He grabbed him by the waist and squeezed his left side. The issue at trial was whether this was sexual touching. In support of that inference, the Crown sought to lead evidence that the accused had been diagnosed as a homosexual paedophile. Rosenberg J.A found the evidence to be inadmissible on several grounds. One concern was that the evidence tended only to show a general propensity. As Rosenberg J.A. explained in para. 46:
Finally, while I agree that the evidence was potentially relevant to prove intent or purpose, in my view, the evidence as presented on the voir dire and at trial tended only to show a mere propensity or disposition. In view of R. v. Morin, the evidence ought, on that ground alone, to have been excluded. The evidence adduced on the voir dire showed little more than that the appellant, as a homosexual paedophile, was the type of person who was more likely to commit this offence. Neither Dr. McDonald nor Dr. Turrall gave evidence on the voir dire to show that homosexual paedophiles as a group or any particular class of homosexual paedophiles can only have a sexual purpose in touching a young boy. Neither witness gave any evidence as to the characteristics of a homosexual paedophile. Nor did the witnesses provide any real basis for their opinion that the appellant had or might have had a sexual purpose in touching the complainants in this case, beyond the fact that he had been diagnosed as a homosexual paedophile over the last 20 years. To the contrary, Dr. Turrall offered a sexual purpose as only one of four possibilities for the touching.
[19] While the evidence in this case is of a different character, its effect is largely the same as that in Pascoe. In Pascoe, it was suggested that an accused who was a homosexual paedophile could only have a sexual purpose when touching a young boy. Here, it is suggested that an accused who had expressed a sexual interest in the complainant could only have had a sexual purpose when touching her. This is akin to saying that the accused is the type of person who is likely to commit the offence.
[20] As argued by Ms. Chapman, the decision of the Supreme Court of Canada in R. v. Handy has clarified the law of similar fact evidence, just as it has directed trial judges to employ rigorous and structured analysis of the admission of this evidence. In Handy, the court identified several factors to be considered in assessing whether there is a “distinct unifying feature” connecting the similar acts to the offence charged. These factors are notably absent in this case (see R. v. J.H., 2006 40664 (ON CA), [2006] O.J. No. 4832 (C.A)).
[21] In short, there is no permissible chain of reasoning that would imbue the evidence with the degree of probity necessary for admission.
2. COLLUSION
[22] The prospect of collusion is another reason to exclude the evidence in this case. The similar fact allegations were the subject of considerable discussion between the complainant and the two witnesses who have testified on the voir dire. These individuals spoke with one another, and sometimes spoke to teachers together about the very subject matter of the allegations. For example, there is evidence to indicate that, with respect to one of the alleged comments, the complainant had reminded her friend H.F. about the comment just before speaking to a teacher. The complainant and the other two witnesses were very close friends at the time of the allegations, and remain friends to this day. It is perhaps not surprising that they would have spoken about such matters to each other, and to school authorities. The difficulty is that at this point in time, it is impossible to determine the extent to which the evidence of one might have been influenced by the others. To the extent that the witnesses did discuss the substance of their evidence with one another, this would render any apparent confirmation to be worthless. The concern is not only one of deliberate concoction, but also one of inadvertent contamination. The witnesses, even if well meaning, might have been unwittingly affected by hearing the others’ accounts.
[23] The evidence also established that the allegation against the accused took on a life of its own within the school setting. It was the subject of considerable rumour and gossip. One witness who testified told the police that he had seen the incident giving rise to the charge, but testified at trial that he had only heard about it from others. This backdrop of unsubstantiated and salacious gossip may also have affected the recollections of persons who have come to testify at trial. There is a strong concern about collusion and I find that the Crown has not disproved the possibility beyond a reasonable doubt.
3. PREJUDICE
[24] Any slight probity that the evidence does have is outweighed by its prejudicial effect.
[25] The risk of prejudice is reduced when trial is before a judge alone, rather than a judge and jury (R. v. L.B, 1997 3187 (ON CA), [1997] O.J. No. 3042 (C.A.)). A judge may disabuse his or her mind of improper inferences. Nonetheless, the court should not be seen to receive evidence that has more prejudice than probity.
[26] In this case, the moral prejudice attaching to the evidence is self-evident. The evidence portrays the accused as a lecherous individual, taking advantage of his position of authority in order to sexually harass young students. It portrays the accused as someone who would use sexualized comments to humiliate and degrade female students in the presence of their male colleagues. The complainant and other witnesses frequently referred to the accused as “creepy”. This is the type of evidence that could lead a trier of fact to convict on the basis that the accused is a bad person, or on the basis that he should be punished for bad acts other than the charge before the court.
[27] Moreover, given the issues of collusion, and inconsistencies in the witness accounts, the evidence also gives rise to reasoning prejudice. It is not at all clear from the evidence that the similar facts even took place. Therefore, the introduction of this evidence has the potential to distract from the main issues in the case.
[28] The witnesses offered very disparate accounts of what was said by whom and who was present when. While some consistent allegations emerged, the discrepancies are troubling. The resolution of factual issues that do not materially advance the core allegations before the court is not in the interests of the administration of justice.
[29] Given the potential for prejudice and the dearth of probity, the evidence should not be introduced as part of the trial on the merits. I dismiss the Crown’s application to introduce the evidence of disreputable conduct at the trial.
Renee M. Pomerance
Justice
Delivered Orally: April 28, 2014
COURT FILE NO.: CR-13-2865
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Jeffery Rafael
ruling on similar fact
Pomerance J.
Delivered Orally: April 28, 2014