COURT FILE NO.: 12-5042

DATE: 2014/06/18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

M. S.
Applicant

Marie Dufort, for the Respondent Crown

Anne London Weinstein, for the Applicant

HEARD: June 2, 2014 (at Ottawa)

RULING ON similar fact evidence admissibility

LINHARES DE SOUSA J.

INTRODUCTION

[1] The indictment before the Court is a multi-count one. The accused, Mr. M.L.S., faces 22 counts of alleged offences pertaining to seven separate complainants. The alleged offences include three counts of sexual assault (counts 1, 9, 17), four counts of forcible confinement (counts 2, 8, 13, 16), five counts of failure to comply (counts 3, 7, 12, 15, 20), one count of interference of use of property (count 4), four counts of theft under $5,000 (counts 5, 11, 14, 18), one count of intimidation (count 6), one count of theft of a credit card (count 10), and three counts of criminal harassment (counts 19, 21, 22). Crown counsel brings an application to have admitted, as similar fact evidence, the evidence on one or more of the counts on the other counts.

BRIEF SUMMARY OF THE ALLEGATIONS OF EACH OF THE SEVEN COMPLAINANTS

[2] In order to put this application in its proper context and, without making at this time any findings of fact, I briefly summarize the allegations of the seven complainants, in the order of the counts as they appear on the Indictment.

E.C. (COUNTS 1, 2, 3, 4)

[3] E.C. testified that in the early morning hours of April 22, 2011, after a night of drinking with friends in a bar located in the market area of Ottawa, E.C., who also testified that she was inebriated, got into a car that she thought was an underground taxi that she had called to take her home. E.C. also testified that she had taken one puff of a marijuana joint given to her by a friend. It was her evidence that she began to be nervous and scared when she realized that the driver was not taking the route that she would have expected.

[4] It was her evidence that during the ride, she attempted to unlock the car door without success and attempted to use her cell phone, also without success as it appeared to have no power. At one point, she testified that she attempted to grab the steering wheel from the driver also without success.

[5] It was her evidence that she was subsequently sexually assaulted (attempted kissing, digital penetration and forced touching of the driver’s penis) by the driver before she lost consciousness in the car.

[6] She subsequently awoke alone in a parked Dynacare car near the General Hospital area of Ottawa, from where she called a friend. The police were also called to investigate. E.C. subsequently underwent a sexual assault kit examination.

[7] It was the testimony of E.C. that when she awoke, she was missing her cell phone, some money and cigarettes. It was the evidence of E.C. that her cell phone was used by someone other than herself in the days immediately following the incident before she terminated the service.

[8] E.C. participated in a photo line-up prepared by the investigating officer in this case, Detective Webster, and identified the photograph of Mr. S. as the man who had sexually assaulted her that evening. In her evidence she identified the individual as wearing jeans and a white striped shirt and looked like “Mr. Potato Head” with a big nose, ears sticking out and big lips.

[9] E.C. in her testimony also described the car she entered into as a sedan and not a modern model. K.L., a friend who had been with E.C. that evening had seen E.C. at the end of the evening, get into a bluish green car that was not a new model and driven by an African Canadian black male.

I.N. (COUNTS 5, 6, 7)

[10] I.N. testified that on the night of March 25, 2011, she had gone out drinking with friends to a bar in the market area of Ottawa. She became quite inebriated and eventually blacked out. I.N. testified that she recalls being in the McDonald’s in the market area of Ottawa. Her evidence was that her next memory was waking up in the front passenger seat of a car, alone and without her friends. She heard two male voices outside, which she did not recognize, one of which was inviting her to “go upstairs”. She testified that as the front passenger car door was opened by someone she attempted to keep it closed.

[11] It was the evidence of I.N. that her next memory was waking up in the hospital from where she was subsequently released later that day. I.N. testified that when her property was returned to her upon her release from hospital she was missing the two cell phones that she had taken with her the previous night.

[12] I.N. testified that she later attempted to call her lost cell phone which was answered by a male voice she did not recognize. She testified that she then began a series of phone texts, between March 31 and April 2, 2011, with an individual who was discussing with her the possibility of a meeting with her in order to return her phone to her for a money exchange.

[13] It was the evidence of I.N. that a meeting was arranged at the McDonald’s in the market on April 1, 2011 at which she attended with her friend, M.W.. She testified that her brother and a friend of his also accompanied her to the meeting place but remained hidden until a person approached them asking to use her friend’s phone. After a brief altercation between I.N.’s brother and this person he was let go.

[14] I.N. testified that no individual ever showed up to give her back her lost phone in exchange for money. Her evidence was that shortly after the altercation between her brother and the individual who asked to use her friend’s phone, she received a text from the same person who had been texting her and who was to meet her to return her phone, indicating that he was watching her and saw them beat up some guy. I.N. eventually contacted the police.

[15] It was the evidence of I.N. that a meeting was arranged at the McDonald’s in the market on April 1, 2011 at which she attended with her friend, M.W.. She testified that her brother and a friend of his also accompanied her to the meeting place but remained hidden until a person approached them asking to use her friend’s phone. After a brief altercation between I.N.’s brother and this person he was let go.

[16] I.N. participated in a photo line-up prepared by the investigating officer in this matter, Detective Webster and identified the photograph of Mr. S. as the individual at the McDonald’s, the arranged meeting place for the return of her phone in exchange for money, who had asked to use her friend, Monique, to use her phone and who had had an altercation with her brother.

[17] M.W. was a friend of I.N. and had gone out drinking with her on the night in question. M.W. testified that on their way to the club to which she and her friends had intended to go, I.N. could not move and sat on a street curb. When a group of guys approached them and offered to take I.N. to the club they agreed to let them take her in their car. M.W. remembers there being an Arab guy and a heavy black guy in the group. M.W. never saw I.N. again that night until I.N. called her from the hospital the next day. She had tried to reach her on her phone but without success.

[18] M.W. also participated in a photo line-up prepared by Detective Webster and identified Mr. S. as the individual who had approached her and I.N. at the McDonald’s meeting point and asked to use her phone.

[19] It was also the evidence of M.W. that the morning after she had gone clubbing with I.N. she began receiving texts from a phone number she knew to be that of I.N. but knew that it was not a communication from I.N. because she had earlier received a call from I.N. from the hospital.

[20] M.W. also testified that, after the incident in question, she received an unblocked telephone call, followed by texts, from an individual who identified himself as J.W. with a telephone number having the number 600 in it.

[21] There were three other non-police witnesses to this incident involving I.N. They were P.T., F.A. and E.L.

[22] F.A. and E.L. testified that two individuals (an Asian smaller male and a bigger African black male) approached them while they were exiting the parking lot of an apartment building (251 D[…] St.) where they had been visiting a relative. The two individuals asked if they knew of a place where they could take a woman who was lying on the ground unconscious not far from the car. According to the testimony of F.A. and E.L., the intentions expressed by the two individuals were so that they could have sex with the unconscious woman. F.A. and E.L. called the police who arrived shortly after.

[23] P.T., an Asian male, who was identified by F.A. and E.L. as one of the males with whom they had spoken that evening, was on the scene when the police arrived and he was detained briefly while the police investigated the incident. The unconscious woman was I.N. and she was taken to the hospital by paramedics called by the police.

[24] It was the evidence of P.T. that I.N. had been transported to the location where she was eventually found by the police by Mr. S. in his car which he pointed out to the police.

[25] When the police did a search on the car they found that it was owned by M.S. with an address of D[…] Street.

[26] P.T. testified that he had simply been in the back seat of Mr. S.’s car listening to music. It was the evidence of P.T. that he knew Mr. S. from work and under the name of J.W.. P.T. recalled Mr. S. being rough, abrupt and aggressive with the girl and putting his hands on the shoulder of the girl. He also observed Mr. S. take the girl’s phone and money before he left the scene to go to his apartment on D[…] Street.

M.D. (COUNTS 8, 9, 10, 11, 12)

[27] It was the evidence of M.D. that on April 16, 2011 she had gone out drinking with friends to a bar in the market area of Ottawa and became drunk. Her evidence was that she remembered drinking in the bar and then her next memory is waking up seated on a beige couch in an apartment that she did not know. She testified that in the apartment was also an individual she did not know and who she described as a big black man with cornrows hair.

[28] M.D. testified that when she became conscious of where she was she immediately went for the door to leave. The black man met her at the door and asked for a kiss before she left. M.D. testified that she kissed him on the cheek but then he said he wanted some “tongue” which she understood as a request for her to be more sexual.

[29] M.D. testified that she then grabbed the door and bolted from the apartment and began banging on the doors of other apartments. It was the testimony of M.D. that the black man from the apartment had followed her out of the apartment and was trying to get her back into his apartment.

[30] It was the testimony of M.D. that a lady (D.C.) finally let her into her apartment where a 911 call was made and the police later arrived to take her statement and to take her home.

[31] M.D. testified that she lost her cell phone, a credit card and some items of clothing during the incident. The next morning, according to the testimony of M.D. she attempted to call her phone number but received no answer. It was her evidence that she subsequently began receiving texts from her phone number from an individual about a meeting at the Rideau Center in Ottawa in order to have her phone and other lost items returned to her in exchange for money. This meeting never happened and M.D. never did get her phone back.

[32] With respect to the series of texts she received, on March 17, 2011, from the individual with whom she was attempting to arrange a meeting for the return of her phone, M.D. testified that they became progressively sexual and full of suggestions of sexual activity that had gone on between herself and this individual during the night before. Her evidence was that she had no memory of any such sexual activity and became upset, disgusted, anxious and terrified upon the receipt of these texts. Her evidence was that she subsequently went to the hospital and underwent a sexual assault kit examination.

[33] M.D. testified that when she did not succeed in getting her phone back she contacted her server, Telus, to lock her phone. However, according to M.D. someone subsequently used her lost credit card to unlock the phone. She subsequently cancelled her credit cards. M.D. testified that she subsequently saw her phone for sale on kijiji.

[34] P.T. had been part of M.D.’s group of friend’s drinking in the Lobby bar on the night in question. P.T. testified, through the help of the admission of past recollection recorded evidence, that at approximately 3 or 3:30 a.m., on the day in question she recalled getting into a car, that she believed to be an underground taxi with M.D.. The driver she described as an overweight African American male with cornrows hair. P.T. testified that while in the car she began to feel “creepy” and had a need to get out of the car. She exited the car, found herself alone on a side street and eventually got herself home but had left her bus pass with her picture behind in the car.

[35] P.T. testified that she then began to receive text messages from a number she knew to belong to M.D. with references to having her bus pass and that from the picture on the bus pass she was cute. She did not respond and never did get her bus pass back.

K.C. (COUNTS 13, 14, 15)

[36] It was the testimony of K.C. that on April 30, 2011, she had gone out drinking to a club in the Ottawa market area with some friends which she had recently met and became drunk. K.C. testified that she knows that in the early hours of the morning she ended up in the McDonald’s in the market area from an ATM receipt she had but has no memory of how she got there. According to the evidence of K.C. her next memory is being in the front passenger seat of a car, which she did not know and driven by a man she did not know.

[37] K.C. testified that she thinks she asked the driver who he was and he replied that he was friends with the people she was at the club with. K.C. testified that she asked him to take her back to the club and her friends after which she texted her friends from her cell phone to say she was coming back to the club.

[38] It was the evidence of K.C. that the man in the car appeared to drive a long time. She next remembers waking up and the car is parked in a parking lot outside an apartment building. According to K.C. the driver told her that her friends were upstairs in the apartment building. As a result, K.C. testified, she went into the apartment building with him.

[39] When they entered an empty apartment, whose door was opened by the driver, it was the testimony of K.C. that she became angry because he had lied and her friends were not there. She also testified that she realized at that point that her ID (Nova Scotia health card) and credit card were missing as well as the sim card from her cell phone.

[40] According to K.C., the driver denied any knowledge of the missing items and suggested the sim card had fallen out. K.C. testified that in her anger she then picked up the flat screen T.V. in the apartment and threatened to throw it if he did not take her home and give back her phone sim card. According to K.C. his reply was that he no longer had his car and had loaned it to a friend.

[41] K.C. testified that she then left the apartment trying to find her way out of the building. The driver came and found her, informed her he had his car and offered to take her home. According to K.C. they then returned to the car and she told him the general area where she lived. She got into the back seat looking for her lost items.

[42] According to the evidence of K.C., the driver again, it seemed to her, was stalling in his driving her home so she called 911 from her phone and began a conversation with the 911 operator from the car about the driver taking her items. According to the testimony of K.C., the driver then told her to get out of his car and he grabbed her phone from her hand and threw it out of the car.

[43] K.C. testified that she then exited the car to search for her phone but not before grabbing an identification card belonging to the driver.

[44] According to K.C. she then found her phone and completed her 911 call which was still open. The police were called and arrived and she gave them a statement.

[45] K.C. testified that after, she bought a new sim card to replace her missing one, she then began to get texts from an individual who eventually admitted to being the driver of the car on the evening in question. They discussed meeting in order that he could return her Nova Scotia health card and debit card and she could return his own identification card. According to K.C. she informed the individual that she gave his identification card to the police. The identification card was that of M.S. and had the accused’s photograph on it. The police also obtained information that Mr. S., at the time, was the registered owner of a 2004 blue Nissan vehicle.

[46] K.C. testified that she did arrange to meet the individual at the St. Laurent Shopping Centre on May 4, 2011 to have him return her identification card. According to K.C. she recognized him right away as the individual who had been driving the vehicle on April 30, 2011. The meeting took place and she got her identification card and her debit card back from him but never got her sim card returned.

[47] Exhibit 23 and Mr. S.’s admission concerning that exhibit establishes the identity of the driver in this incident as the accused, Mr. S.

S.H. (COUNTS 17, 18, 19, 20)

[48] S.H. testified that on March 19, 2011, she went with some friends to a club in the Ottawa market area. She drank a lot and became drunk. She had also taken some cocaine that evening. According to S.H., in the early morning hours, she had arranged to meet a friend after his work at the club and so went to McDonald’s in the market to wait for him. Her evidence was that while she was at McDonald’s a group of guys began bothering her so she decided to leave and go to the home of a friend nearby.

[49] According to the testimony of S.H. on exiting McDonald’s she entered into the back seat of a car that she thought was an underground taxi and asked to go to her friend’s home on Y[…] St. which is nearby in the market.

[50] S.H. testified that she noticed that the driver was not driving to Y[…] St. and she noticed that they were on a highway. When she tells him to take her to Y[…] St. immediately, her recollection of his reply was that he would soon but that he had to get something. According to S.H. they ended up at a high rise apartment building. According to S.H. she had become progressively frightened.

[51] According to S.H. she followed him into the apartment building because the driver had told her that it was unsafe to wait in the car. S.H. testified that she entered the building and an apartment where the driver asked her, two times, if she wanted a drink. She testified that she declined two times.

[52] S.H. testified that her next memory was waking up on a mattress without any pants or underwear with the driver leaning over her. She still had on her top and her satchel purse around her. Her evidence was that she began to cry and scream. She immediately pushed the driver away from her, got up, put on her jeans and moccasins and went for the apartment door to leave. The driver did not let her open the door and told her to wait and went to get something.

[53] According to S.H. while he was gone to get something, she exited through the door and went for the elevator in the hall where the driver soon met up with her.

[54] According to S.H. when she was out on the street she looked for a cab but could not find one. According to S.H. the driver told her she would not find a cab and told her that he would take her to where she wanted to go. According to S.H. she told him she wanted to go to the home of her boyfriend, P.M., and gave him the address and entered his car.

[55] S.H. testified that during the drive to her boyfriend’s home they made two stops. The first was to get gas. At the driver’s request she gave him $20 to pay for the gas. The second was a stop at a light where she noticed a cab. She exited the car and attempted to get the cab. According to S.H., despite her protestations that she had money the driver informed the cab driver that she had no money. According to the testimony of S.H. the cab driver drove away and the driver grabbed her and put her back in his car.

[56] According to S.H. she was eventually driven to her boyfriend’s home; she exited the vehicle running, still wearing a sweater the driver had given her because she was cold. According to the testimony of S.H. she left her cell phone on the back seat of the car.

[57] S.H. testified that when she got to the home of P.M., she observed blood on the crotch of her jeans which had soaked through the material and blood on her pubic area.

[58] It was the evidence of S.H. that she replaced her lost phone but kept the same number. She then began to receive texts from an individual who suggested that he had been in the apartment with her on the night in question. According to S.H. she became worried when she began to receive these texts because the contents of them included statements as to how beautiful she was, as to how drunk she had been, and as to how she had engaged in sexual activity with him. He also included in these texts, pictures of her and her friends that she had had on her phone, an image of a bloody mattress and an image of the underwear she was wearing that evening. These messages went on for about two weeks between March 22, and April 26, 2011.

[59] S.H. testified that a few days after the incident she contacted the police and subsequently went to the hospital to have a sexual assault kit examination.

[60] S.H. participated in a photo line-up prepared by Detective Webster and identified Mr. S. as the person with whom she had dealings during the incident. S.H. also identified Mr. S. in the courtroom.

N.N. (COUNT 21)

[61] It was the evidence of N.N. that in July and August, 2010, while she was waiting for a taxi, a man approached her at a bus stop near the St. Laurent Shopping Center in the City of Ottawa. After refusing his offers of a ride and of going for a drink, N.N. gave him her phone number. She indicated that he would not take no for an answer and that she was slightly intimidated but that she had no intention of engaging with him.

[62] N.N. testified that shortly after she began to get phone calls and texts on her phone from an individual. According to N.N. these communications worried her and would have made her scared. The content of the texts she described as inappropriately familiar, some referring to her as his property and there were a large number of texts (about 100). According to N.N. she asked him to stop communicating with her but he did not stop. She informed him that she would go to the police but in his texts he treated this as a joke. N.N. did not keep the texts and deleted them.

[63] The texting stopped for a period of time and then resumed in January or February of 2011 after she received a phone call from an individual reminding her of their meeting at the St. Laurent bus station the previous year.

[64] N.N. described the individual she met at the bus stop as a large black male. The caller ID recorded on her phone when she received these communications was J.W. from a 600 0360 number.

[65] N.N. reported these communications two times to the police. She participated in a photo line-up prepared by the investigating officer in this matter, Detective Webster. N.N. identified three photographs as possibly being the individual she met at the bus stop by the St. Laurent Shopping Center in July and August of 2010, one of them, #4, was the accused, Mr. S.

B.H. (COUNT 22)

[66] B.H. testified that in February and March of 2011 she began receiving texts on her telephone from an individual who claimed to be a friend of hers, R.D.. According to B.H. these messages began very casually but became more and more personal and sexual.

[67] According to B.H. she subsequently found out that the author of the texts was not her friend R.D. and she confronted the sender with that knowledge. He indicated that he wanted to continue pretending that he was her friend and continued to send her texts.

[68] B.H. was asked to describe the characteristics of the texts she received from this individual and she described the text as if it was composed by someone who could not spell (fone for phone) and who used a lot of slang. The messages began very casual then became very personal and sexual.

[69] B.H. testified that she became increasingly worried about the texts because they seemed to indicate that the sender knew a lot about her appearance and her personal life, her hair colour, how tall she was, where she lived, where she went to school, where and when she went out and when she was drinking etc. According to B.H. the sexual comments, such as he would be in bed with her and she would not have any say in that began to trouble her. According to B.H. the texts became aggressive and he would ask her if she were alone and how many people were in her house.

[70] According to B.H. she became quite stressed by the texts she was receiving from this individual, which usually came from about 6 p.m. until 5 a.m. She became cautious about her surrounding and paranoid and panicky if something happened on her street. She asked a friend to stay with her. She began to consult a counsellor at her school. She was not sleeping properly. Her school work suffered and she had to defer the writing of her exams.

[71] B.H. testified that she asked him to stop the communications and threated to go to the police if he did not do so. According to B.H. he treated that as a big joke and did not appear to be threatened by it.

[72] B.H. testified that she contacted the police and gave them access to all of the texts she had on her phone. As a result of her contact with the police she stopped responding to the texts and they eventually ended but not until she had also received “modicoms” (images) on her phone for a while.

[73] B.H. identified the telephone number from which she was receiving these texts, as #613 600 3060. She gave this number to the police.

[74] B.H. testified that she has no knowledge of how this person got her telephone number.

SPECIFIC REQUEST OF THE CROWN

[75] With respect to the evidence relating to the seven complainants summarized above, Crown counsel seeks the admission of the evidence relating to certain complainants on certain counts as similar facts evidence to be considered in support of the evidence relating to other counts on the same indictment. In total, I am asked by Crown counsel to consider 18 separate such requests. To better illustrate Crown counsel’s request in this motion I provide the following chart:

Re: R v. S., Similar Fact Evidence Chart

Whether the evidence relating to M.D. should be admitted as similar fact evidence regarding

Whether the evidence relating to E.C. should be admitted as similar fact evidence regarding

Whether the evidence relating to K.C. should be admitted as similar fact evidence regarding

Whether the evidence relating to M.N. should be admitted as similar fact evidence regarding

Whether the evidence relating to S.H. should be admitted as similar fact evidence regarding

Whether the evidence relating to B.H. should be admitted as similar fact evidence regarding

Whether the evidence relating to N.N. should be admitted as similar fact evidence regarding

1.E.C. (counts 8-11 as compared to counts 1-4)

5.M.D. (counts 1-4 as compared to counts 8-11)

7.E.C. (count 13 as compared to count 2)

9.M.D. (counts 5-7 as compared to counts 11, 12)

11.M.D. (counts 16-20 as compared to counts 8-12)

15.N.N (count 22 as compared to count 21)

17.B.H. (count 21 as compared to count 22)

2.M.N. (counts 11-12 as compared to counts 5-7)

6.K.C. (count 2 as compared to count 13)

8.M.D. (count 14 as compared to count 10)

10.S.H. (counts 5-7 as compared to counts 16-20)

12.E.C. (counts 16-18 and 20 as compared to counts 1-4)

16.S.H. (count 22 as compared to count 19)

18.S.H. (count 21 as compared to count 19)

3.K.C. (count 10 as compared to count 14)

13.N.N. (count 19 as compared to count 21)

4.S.H. (counts 8-12 as compared to counts 16-20)

14.B.H. (count 19 as compared to count 22)

POSITION OF THE CROWN

[76] Crown counsel argues that, on analysis, all of the evidence which is being sought to be admitted on one or more counts, as similar fact on other counts meets the threshold legal test of admissibility.

[77] Crown counsel submits that the evidence being sought to be admitted as similar fact all relate to two identifiable issues. The first is in support of the issue of the actus reus as alleged by the complainant in question and to demonstrate the modus operandi of the accused as also testified to by the complainant in question. The second is to speak to the question of credibility and reliability of the evidence of the complainant in question.

[78] The inferences which Crown counsel wishes the Court to make from the consideration of the similar fact evidence of one or more counts on the indictment as against other counts on the indictment is that since the accused is alleged to have assaulted another person with a similar modus operandi or in a relatively similar fashion to a prior assault, or offence, then, given the “improbability of coincidence” the complainant under question is being truthful and can be reasonably believed in their testimony as to what happened to them.

[79] Crown counsel submits while it is not yet known at this time what specific defences may be raised in this matter, the identification of issues so as to control against allowing similar fact evidence to be used for a prohibited purposes, may include anticipated defences such as an issue of innocent association or consent. Hence evidence tendered to demonstrate the modus operandi of the accused and the inference sought are material to an identifiable issue.

[80] Crown counsel argues that when one compares the underlying circumstances under which all of the criminal acts are alleged to have happened on the various counts sought to be considered as similar fact evidence, there is a striking similarity. Crown counsel has provided the court with a chart of similarities in order to better demonstrate this point.

[81] Crown counsel argues that the high degree of similarity between the various counts on the Indictment enhances the probative value of such evidence to a point where it far outweighs any prejudice such propensity evidence may present. This is especially so in a case such as this where all of the evidence is presented at the same trial on a multi count indictment and where the fact finder is not a jury, but a judge alone. Both of these facts regarding the question of prejudice are conceded by the Defence. Crown counsel argues that the accused will have an opportunity to respond to all of the evidence, if he so chooses.

[82] Crown counsel argues that, on the evidence and since the issue of identity has been conceded by the Defence, there is a connection to the accused in all of the counts.

[83] Finally, Crown counsel argues that there is no evidence of collusion between or amongst the complainants in this matter.

POSITION OF THE DEFENCE

[84] Defence counsel concedes that identity is not an issue. Specifically, the Respondent, Mr. S., admits that he is the person alleged to have committed all of the acts stated in counts 1 to 22. It is not disputed that similar fact evidence relating to a question which is not in issue cannot be admitted.

[85] Defence counsel contests the use of evidence relating to certain counts as similar fact for consideration on other counts that are not related in a material way or from which the desired inference can be made. Specifically, Defence counsel questions whether evidence relating to a count of theft can materially relate, inferentially to a count of sexual assault. More specifically, evidence relating to the theft of a phone cannot materially assist with the issue of whether there was an act of sexual assault or an act of unlawful confinement. Evidence relating to the theft of a telephone cannot advance an argument for the specific inference in relation to a sexual assault and an unlawful confinement which the court would be asked to make.

[86] Defence counsel submits that the admission of the theft of phone evidence in relation to a count of sexual assault or unlawful confinement would be material to an issue of identity and a requested inference related to identification only. Given that the issue of identity has been admitted by the defence, the admission of this evidence would serve no material purpose.

[87] Defence counsel submits that what remains is for the court to consider whether the material counts, the three counts of alleged sexual assaults on the indictment (counts 1 (E.C.), 9 (M.D.) and 17 (S.H.) and whether the four counts of unlawful confinement 2 (E.C.), 8 (M.D.), 13 (K.C.) and 16 (S.H.)) can and should be considered in relationship to each other.

[88] Defence counsel submits that with respect to the sexual assault allegations there are sufficient dissimilarities also (pointed out in a chart) as to how these acts were allegedly carried out so as to diminish substantially the probative value of the evidence when compared to its prejudice, as discreditable conduct evidence.

[89] With respect to the counts of unlawful confinement, Defence counsel submits that these counts allegedly took place in such disparate ways, from one count to another, from one complainant to another, that there are few similarities in the facts of the allegations to justify such admission.

[90] Finally, with respect to the counts of criminal harassment, counts 19 (S.H.), 21 (N.N.) and 22 (B.H.) Defence counsel argues similarly. While one may make the argument that the evidence on these comparable counts could be used as similar fact against each other, the admission of such evidence as similar fact on the counts of sexual assault or unlawful confinement would be improper. They do not speak to specific propensity that would make it more likely that he would sexually assault the three complainants, E.C., M.D. and S.H., but simply to prohibited general propensity of bad character as someone who would commit such acts generally.

LEGAL TEST FOR ADMISSIBILITY OF SIMILAR FACT EVIDENCE

[91] The legal test for the admissibility of similar fact evidence was not disputed.

[92] Firstly, similar fact evidence, be it presented as extrinsic evidence to the trial evidence or as evidence presented from another count on a multi-count indictment, is in essence propensity or discreditable conduct evidence being presented by Crown counsel against the accused. As such, it is presumptively inadmissible. However, such evidence may be admitted under the very stringent legal test developed by the jurisprudence and enunciated below. If such evidence is admitted, it is circumstantial evidence in the determination of an accused’s guilt on any one count to which it is admitted as similar fact evidence.

[93] Secondly, it is not disputed, that the onus rests on Crown counsel to satisfy the Court, on a balance of probabilities, that, in the context of the particular case before the Court, the probative value of the similar fact evidence, in relation to a particular issue, outweighs its potential prejudice and thereby justifying its admission.

[94] The legal test, stated above finds authority in the decision of Binnie J. in R. v. Handy, 2002 SCC 56, 164 C. C. C. (3d) 481. In that decision Binnie J. discusses in detail the constituent parts of the test enunciated above and provides trial courts with guidance and a method of approach to the question of whether to admit similar fact evidence in a given case.

[95] Binnie J. at paras. 72-74 of his decision reiterates the potential danger of the admission of similar fact evidence, essentially proof of disposition, if the stringent test to its admissibility is not applied, especially the requirement that it relate to a specific issue or issues which are in dispute deriving from the charges or the defences advanced or reasonably anticipated:

72 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. The defence of “innocent association” in B. (F. F.) was simply another way of expressing the denial by an accused of an element of the offence. The evidence of his prior discreditable conduct of a distinctive and particular nature, was considered to be strongly probative of specific issues in the case. Thus, read, B. (F. F.) is quite consistent with B. (C. R.), and should not be interpreted as a rival “two-step” variant of the test.

73 The requirement to identify the material issue “in question” (i.e., the purpose for which the similar fact evidence is proffered) does not detract from the probative value/prejudice balance, but is in fact essential to it. Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact.

74 The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded: …

[96] As Binnie J. indicates, once the issue, to which the similar fact evidence relates, has been identified by Crown counsel the analysis of whether the probative value of the similar fact evidence, which necessarily includes an examination of the inferences being asked to be made from the similar fact evidence, outweighs the potential prejudice.

[97] Before going on to consider the rest of the legal test discussed by Binnie J. in R. v. Handy, supra, I pause here to state that in the presentation of the evidence and in her oral submissions, Crown counsel has properly and appropriately identified live issues in dispute to which she submits the similar fact evidence relates and for which the similar fact evidence should be admitted. This will provide the necessary controls for avoiding the admission of general propensity evidence.

[98] The two issues Crown counsel has identified as: 1) actus reus - modus operandi and 2) credibility of the named complainants.

[99] In this case the question of whether the substantive offences of sexual assault (in the case of the complainants E.C., M.D. and S.H.), unlawful confinement (in the case of E.C., M.D., K.C., and S.H.) and theft of personal property (in the case of E.C., I.N., M.D., K.C., and S.H.) are live issues. In other words, did the actus reus of these offences take place as alleged by the various complainants. Variants of this same question, given the constituent elements of the offences found in the indictment, are: was there consent to anything that the complainants allege happened to them?; given the almost common state of inebriation of the five complainants in counts 1 to 20, as arising out of the evidence, can the evidence of the complainants be relied on to accurately describe what they allege happened to them on the nights in question?; were personal items accidentally left behind by the complainants or were they taken from the complainants by the accused as alleged?; how often can such personal items be left behind, in such a similar fashion to a prior or other incident, that given the “improbability of coincidence” the evidence of modus operandi can lead to an inference of whether an actus reus has taken place in the instance under examination?

[100] In the circumstances of this case, whether the offences took place as alleged by the various complainants identified above is a live issue to which similar fact evidence may relate. Similar fact evidence from one count for the purpose of demonstrating a modus operandi in the alleged actus reus with respect to a complainant on another count, if admitted, can reasonably support the inference, if the other parts of the test are met, of course, that in the count being examined, what the complainant is saying happened to her in fact happened.

[101] In criminal matters the question of credibility is often a live issue. Credibility clearly is an issue in this case deriving not only from the facts alleged in the various charges, such as sexual assault, unlawful confinement and even theft, but also from the defences advanced or reasonably anticipated. At this point in the trial no specific defences have been explicitly advanced except as can be reasonably anticipated from Mr. S.’s admitted statement to the police on May 9, 2011, and from his counsel’s cross-examination of the witnesses. The reliability of a complainant’s evidence is a close cousin to the question of credibility, especially, as already mentioned, in the circumstances of evidence presented on counts 1 to 20 about the inebriated state of the complainants. In addition to credibility, the reliability of the evidence of the complainants, E.C., I.N., M.D., K.C., and S.H. is very much a live issue to which similar fact evidence, as proposed by Crown counsel can relate.

[102] The issue of identity, namely that Mr. S. is the person alleged to have committed the acts in counts 1 to 22 of the indictment, is admitted. Crown counsel cannot therefore tender the requested similar fact evidence in relation to the question of identity because it is no longer in issue.

[103] Nonetheless, similar fact evidence, by its nature and depending on the circumstances of the case may relate to two questions at the same time. Evidence tendered for the purpose of supporting the question of actus reus - modus operandi may also relate to the question of identity, even though that issue may be conceded. In this instance, assuming the rest of the test is met; such similar fact evidence may still be admitted in relation to the issue or issues which are in dispute, such as actus reus or credibility.

[104] In R. v. Handy, supra, Binnie J. indicates that once the issue or issues to which the similar fact evidence is to relate, is identified, in the circumstances of the case, the court must then embark on an analysis of whether the probative value of the tendered similar fact evidence outweighs the potential prejudice.

[105] With respect to assessing or weighing the probative value of the tendered similar fact evidence, Binnie J. points out in paras. 76-84 that such an analysis includes the consideration of the following factors:

(1) An examination of the strength of the proffered similar fact evidence as well as its cogency in relation to the inferences sought to be drawn as it relates to the identified issue in question.

(2) A consideration of factor 1 will naturally also include an examination of whether, on a balance of probability, the similar fact evidence has been tainted in any way, on an air of reality test and not just the opportunity for tainting.

(3) An examination of the connectedness (or nexus) established between the similar fact evidence and the offences alleged. Binnie J. in para. 76 of his decision refers to this factor of “connectedness (or nexus)” as the “principal driver of probative value.” Binnie J. at para. 82, after examining the case law, provides a list of what factors should be examined to determine the connectedness between the similar fact evidence and the offences alleged. They include such things as:

• Proximity in time of the similar acts;
• Extent to which the other acts are similar in detail to the charged conduct;
• Number of occurrences of the similar acts;
• Circumstances surrounding or relating to the similar acts;
• Any distinctive features(s) unifying the incidents;
• Intervening events;
• Any other factors which would tend to support or rebut the underlying unity of the similar acts.

[106] With respect to the above examination of “similarities”, there is substantial jurisprudence to suggest that this part of the analysis does not simply mean a mechanical listing of similarities or dissimilarities. Rather, the approach must be one of examining the underlying circumstances of the similar acts and the alleged offence. In R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, on an appeal of a trial judge’s decision permitting the across counts application of evidence relating to the individual counts, Watt J. states at para. 65:

65 It is worth remembering that the search for similarities in the manner in which allegedly similar acts were committed is a question of degree. Like some other crimes, bank robbery may not show much diversity or distinctiveness, at least in the sense of a trademark or signature. Yet, the authorities allow the accumulation of significant similarities to satisfy the threshold for admissibility. Often, the probative force of an accumulation of circumstances exceeds the sum of its individual parts.

[107] Explained another way, are the words of Mr. Justice Marc Rosenberg in his article, “Similar Fact Evidence”, delivered to the 2003 Special Lectures on the Law of Evidence of the Law Society of Upper Canada. In discussing the difference between general propensity and specific propensity similar fact evidence, he states at p. 11, among other things:

e. The circumstances surrounding or relating to the similar acts. Sometimes the context in which the apparently similar facts occur will be more important tha[n] the details of the acts themselves. …

[108] After the probative value of the similar fact evidence is weighed, as described above, there must follow an assessment of the potential prejudice of such evidence. Binnie J. at para. 100 of R. v. Handy, supra, identified two kinds of prejudice:

(1) moral prejudice (i.e., the potential stigma of “bad personhood”), and
(2) reasoning prejudice (including potential confusion and distraction of the jury from the actual charge against the respondent).

[109] This case is not being tried by a jury but by a judge sitting alone. As a result, it was not disputed by both counsel, that admitting similar fact evidence, across counts in a multi-count indictment, reduced significantly the potential for either of these two types of prejudice.

[110] In the case of R. v. MacCormack, supra, at paras. 68-69, Watt J. recognized this reality in the following way:

68 This case involves the invocation of similar act principles across counts in a multi-count indictment. The evidence relating to each count is relevant to and admissible in proof of the allegation contained in that count. Each incident is of equivalent gravity and of minimal inflammatory potential. This is not a case, in other words, in which conduct extrinsic to the crimes alleged in the indictment is enlisted as evidence of similar acts to prove what is alleged, and lugs with it inflammatory claims of greater gravity or moral depravity.

69 In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument on admissibility at the end of the trial. The conduct re