ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-10000094-0000
DATE: 20140925
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
AMITABH CHAUHAN
Respondent
Cara Sweeney and Michael Lockner for the Applicant, Her Majesty the Queen,
Marlys Edwardh and Daniel Sheppard for the Respondent, Amitabh Chauhan
HEARD: April 14-16, 21-25, 28-30, May 1 and 6-9 2014
WARNING
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code.
Thorburn J.
RULING REGARDING THE ADMISSION OF SIMILAR FACT EVIDENCE
1. The Issue
[1] Amitabh Chauhan is charged with administering a drug to A.C. with the intention to overpower and enable him to have illicit sexual intercourse with her, and with sexually assaulting her in September or October, 2003.
[2] Amitabh Chauhan and Suganthan Kayilasanathan and are each charged with administering a drug to P.W. with the intention to overpower and enable him to have illicit sexual intercourse with her, sexual assault and sexual assault to which the other was also a party. These offences are alleged to have been committed on the evening of February 12 and early morning of February 13, 2011.
[3] The Crown seeks to have the evidence of each of the two complainants adduced as “similar fact evidence” on the trial involving the other as against Amitabh Chauhan.
2. The Law of Similar Fact Evidence
Defining Similar Fact Evidence
[4] Similar fact evidence is evidence discreditable to the accused. It may be used to establish that in other cases, similar acts were committed by the accused by like means or in like circumstances. The peculiarity of the circumstances may tend to show the improbability of innocent intention.[^1]
[5] Similar fact evidence is presumptively inadmissible.[^2] One of the concerns with evidence of discreditable conduct is that it involves propensity reasoning. The onus is on the prosecution to show on a balance of probabilities that the probative value of the similar fact evidence outweighs its potential for prejudice.[^3]
[6] However, not all propensity reasoning is prohibited. Admissible propensity evidence is evidence that shows a pattern of circumstances in which an accused acts in a certain way which is distinctive and so clearly linked to the offence charged that the possibility of mere coincidence is slight.[^4] The more “similar facts” are situation specific, and the fewer differences there are the more the probative value is thought to increase.[^5]
[7] While the risk of some forms of prejudice may be reduced in a judge alone trial, there nevertheless remains a risk of prejudice.
The Test to be Met by the Crown
[8] The Crown must identify why it seeks to introduce the similar fact evidence and the issues to which the evidence relates.[^6] It must also articulate how the evidence proves the fact in the context of the specific prosecution.[^7]
[9] The court must be satisfied that the evidence is discreditable to the accused, and is evidence of habit, physical state, or motive.[^8] It is agreed that this threshold has been met.
[10] The next step is for the Crown to assess the probative value of the evidence sought to be adduced at trial. The Crown must establish that the evidence sought to be introduced is:
(a) relevant to an important issue at trial in that certain acts were carried out in a distinctively similar way rendering the likelihood of coincidence objectively improbable; [^9]
(b) sufficiently similar to the evidence at trial that it is objectively improbable that it is a coincidence. The more focused and specific the facts are to the charge, the more the facts are deemed to be convincing and reliable; [^10]
(c) reasonably believable, and
(d) not tainted by collusion.[^11]
[11] The more the “similar facts” are situation specific, the more relevant the evidence. In Handy, the Supreme Court set out the following list of non-exhaustive factors that may connect the similar facts to the conduct in issue:
(a) the number of occurrences;
(b) the circumstances relating to the similar acts;
(c) distinctive features common to the incidents;
(d) intervening events;
(e) proximity in time and place; and
(f) the extent to which the acts are similar.[^12]
[12] After considering these factors, the court must balance the probative value and potential prejudice of introducing the proposed evidence at trial. Only where the probative force clearly outweighs the prejudice, or the danger that a conviction would be based on non-logical reasons, should the evidence be received.” [^13]
The Second Step: Determination of Prejudice
[13] The factors to be considered in determining prejudice are:
(a) how discreditable the conduct is;
(b) the extent to which the evidence may support an inference of guilt based solely on bad character;
(c) the purpose for which the Crown seeks to introduce the evidence;
(d) the extent to which the proposed evidence may confuse issues; and
(e) the ability of the accused to respond to the evidence.[^14]
[14] A.C. and P.W.’s evidence is set out in detail in my Reasons for Judgment and I will not reiterate those summaries of the evidence here.
- Analysis and Conclusion
[15] The Crown claims the similar fact evidence is relevant to three issues at trial: proof that a drug was administered, proof that Chauhan administered the drug, and to rebut the argument that one or both complainants is not credible. Moreover, admission of this evidence will not lengthen the trial as the evidence adduced on this Application will be applied to the trial proper.
[16] The proposed evidence is not tainted by collusion as the two complainants did not know one another and there is no evidence they communicated with one another. The evidence is reasonably capable of belief.
[17] The key issues in terms of assessing probative value are whether the facts are sufficiently similar to defy coincidence. As stated in one American case: the man who wins the lottery once is envied: the one who wins it twice is investigated.”[^15]
[18] The Crown suggests the facts as recounted by each complainant are strikingly similar to the facts as recounted by the other. In particular:
(a) each of the complainants knew Chauhan before the incident;
(b) Chauhan took each of them to a bar where they drank alcohol;
(c) each described an onset of symptoms shortly after consuming a drink at a bar, including
i. loss of memory interspersed with flashes of memory;
ii. seeing black but being unable to see although her eyes were open;
iii. an inability to move despite a desire to do so;
iv. confusion; and
v. a feeling of extreme fatigue and nausea some time the following day.
[19] Each says these symptoms were unlike any she had experienced before.
[20] There were also some significant differences between A.C. and P.W.’s accounts of what happened and how they felt including the following:
(a) The nature of the relationship with each woman was distinctly different: A.C. had a prior romantic relationship and a prior consensual sexual relationship with Chauhan whereas P.W.’s relationship with Chauhan was purely that of a friend and school colleague;
(b) The nature of the encounter was different: A.C. says she met Chauhan by chance whereas P.W. planned to meet Chauhan;
(c) Their interaction at the bar was very different: A.C. claims Chauhan bought her a drink while she was away in the washroom. They came and left the bar alone. P.W. came and left with both Chauhan and Kayilasanathan. The drinks were bought in plain view of many people and most of them were purchased by Kayilasanathan not Chauhan;
(d) A.C. says she had little to drink whereas P.W. agrees she had a considerable amount to drink;
(e) A.C. claims she was assaulted by Chauhan only whereas P.W. claims she was sexually assaulted by Chauhan and Kayilasanathan;
(f) After the assault, there was no further communication with A.C. Chauhan contacted P.W. several times the day after the assault; and
(g) Some of the symptoms experienced by the two women were different:
i. A.C. had difficulty walking shortly after she drank the drink at the bar while P.W. did not (as seen on the video);
ii. A.C. did not have an “out of body” experience while P.W. says she felt trapped in her body, dissociated from it;
iii. A.C. was very nauseous the next morning while P.W. was not. P.W. was ready to go out in the late morning the next day to study and it was only later that she began to feel nauseous;
iv. A.C.’s symptoms did not get worse the next day while P.W.’s did;
[21] The evidence is highly prejudicial as it is adduced to support the theory that Chauhan deliberately drugged each complainant’s drink in order to overpower and sexually assault her. It is discreditable conduct that is highly prejudicial.
[22] The circumstances of the two incidents are not so strikingly similar and unusual that it is objectively improbable that it is a coincidence because,
(a) The symptoms described and the circumstances of the encounter are in some material ways different;
(b) There is a gap of almost 8 years between the two alleged incidents; and
(c) There are only two occurrences.
[23] For these reasons, the Application to adduce similar fact evidence of each Complainant in the case involving the other is denied.
Thorburn J.
Released: September 25, 2014
COURT FILE NO.: 0013/08
DATE: 20140520
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
AMITABH CHAUHAN
Respondent
RULING
Thorburn J.
Released: September 25, 2014
[^1]: R. v. Olah, Brooks, Gomes and Fong (1979), 1979 2326 (SK CA), 4 Sask.R. 62 at paras. 18-19.
[^2]: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 55; R. v. B. (C.R.) S.C.R. at para. 31.
[^3]: Ibid. at paras. 49 and 55.
[^4]: Handy, supra note 2 at para. 91.
[^5]: Ibid. at para. 48.
[^6]: Handy, supra note 2 at paras. 73-74.
[^7]: Justice S. Casey Hill et. al, McWilliams Canadian Criminal Evidence, 4th ed. (Aurora, ON: Canada Law Book, 2009) at 10-7
[^8]: Ibid. at 10-36.
[^9]: R. v. Scopelliti (1981), 1981 1787 (ON CA), 63 C.C.C.(2d) 481 (O.C.A.) at p. 496
[^10]: Ibid. at para. 48
[^11]: Handy supra note 2 at paras. 73, 76-78, 90, 104-106 and 133-136
[^12]: Handy, supra note 2 at para. 82
[^13]: R. v. Arp 1998 769 (SCC), [1998] 3 S.C.R. 339 at para. 44.
[^14]: R. v. B.(L.): R. v. G. (M.A.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35 (C.A.) at para. 24
[^15]: Per Binnie J. in R. v. Handy 2002 SCC 56