ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-50000620-0000
DATE: 20140709

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

RICHARD KORECKI

Mr. M. Wilson, for the Crown
Mr. D. Holt and Mr. R. Kodsy, for the Applicant

HEARD: July 7, 2014

Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4 of the Criminal Code of Canada

M. Forestell J.

Ruling on AN Application
TO introduce similar fact evidence

The Application

[1] The Applicant, Richard Korecki, is charged in a 21-count indictment. He faces the following charges which are alleged to have been committed between March 2012 and January 2013:

(1) Mischief under $5,000 (2 counts);

(2) Forcible confinement;

(3) Threatening death (3 counts);

(4) Threatening bodily harm (2 counts);

(5) Assault (4 counts);

(6) Assault with a weapon (3 counts);

(7) Sexual assault; and

(8) Breach of a s.810.2 recognizance (4 counts).

[2] All charges, with the exception of the breach of recognizance charges will be tried by judge and jury. The charges occurred within the context of a domestic relationship with the complainant, D.P. (the “complainant”).

[3] Counsel for the Crown brings this application to admit similar fact evidence of conduct against a prior domestic partner, S.D. (the “similar fact complainant”). The proposed similar fact evidence relates to the current charges of forcible confinement, threatening bodily harm, threatening death, assault, assault causing bodily harm, assault with a weapon and sexual assault. The issues to which the proposed similar fact evidence are argued to relate are the actus reus of the offences, the credibility of the complainant and whether the complainant consented to the sexual act that forms the basis of the sexual assault charge.

[4] The proposed similar fact evidence, which the Crown seeks to introduce either through reasons for judgment, transcripts or viva voce evidence, is evidence of conduct of the accused against the similar fact complainant that resulted in convictions on November 29, 2005 for attempted murder, aggravated sexual assault, aggravated assault, assault with a weapon, choking to overcome resistance, assault, threatening bodily harm and threatening death.

[5] Counsel for Mr. Korecki opposes the application.

The Evidence on the Application

Overview

[6] The record on this application consists of the transcripts of the evidence of the complainant at the preliminary inquiry with respect to the current charges, transcripts of the evidence of the similar fact complainant in the 2005 trial, reasons for judgment from the 2005 trial and reasons for sentence from the 2005 trial.

[7] The record discloses the details of the present allegations and the factual basis for the previous convictions. There is little dispute about the nature of the present allegations and the nature of the prior findings. The parties disagree, however, on the degree of similarity between the allegations and the prior findings. They disagree as well on the probative value of any similarity and prejudicial effect of the proposed similar fact evidence.

[8] I will therefore outline the allegations and the proposed similar fact evidence as disclosed by the record.

Present Allegations

[9] The evidence of the complainant at the preliminary inquiry discloses the following allegations.

[10] In November of 2011 the complainant met the accused and shortly thereafter became involved in a romantic relationship with him.

[11] At some point in the early months of the relationship the complainant became aware that the accused was subject to court ordered conditions. The topic arose when they discussed why the accused could not spend the night at the residence of the complainant.

[12] At one point in the relationship, around February of 2012, the accused said to the complainant that the complainant “was going to pay the price for everything that Susan did to [him].” The complainant understood that Susan was the ex-partner of the accused. Susan is the first name of the similar fact complainant.

[13] In March 2012, the complainant and the accused were at a restaurant and had an argument. The complainant left the restaurant and sat in the car of the accused. When the accused came out to the car, he said, “How dare you walk out on me. Get the fuck out of my car. You’re a fucking slut and a whore and a bitch.” He told the complainant that he would run her over if she did not get out. When the complainant refused to get out of the car, the accused began driving in a reckless manner. He prevented the complainant from leaving the car. They were in the car for about 6 hours and both used cocaine during that time.

[14] In June 2012 the complainant and the accused became involved in an argument about the complainant’s contact with an ex-boyfriend. The accused grabbed the complainant by the neck and pushed her. He said, “you’re a fucking liar. And you’re a fucking bitch and you’re a slut. And I checked your phone and David [the ex-boyfriend] called you.”

[15] The day after the argument about David, the accused got on top of the complainant while she was asleep, put a cord around her neck and began to choke her. He said, “You’re never going to be with him, and if you do, this is what it’s going to feel like when you take your last breath.”

[16] Sometime in July 2012, the accused placed a pillow over the face of the complainant when she was asleep in her bed. He began to suffocate her saying, “If I ever find out that you…you’re lying to me or you’re cheating on me, this is what it feels like, your last breath.”

[17] Around the end of July 2012 the accused woke the complainant by shaking her and then put his hands around her neck and began choking her while screaming at her. The complainant said to the accused, “why don’t you just finish it?” The accused replied, “that’s too easy” and he said “I’m smarter this time. I know better.” The accused then threatened to kill the complainant or throw acid on her face or have her killed if she ever left him or went to the police.

[18] In another July 2012 incident, the accused put a rope around the neck of the complainant when she was sleeping and pulled it tight. He said, “This is what it’s going to feel like…your last breath.” He then threw the complainant off the bed and dragged her across the floor by her hair. He threw her back on the bed and punched her in the back.

[19] In August 2012 the accused again put a phone cord around the complainant’s neck while she was sleeping and pulled it tight. The complainant believed him to have used cocaine. He said, “I suggest you don’t move. This is what it’s going to feel like if you call the cops or if you leave.”

[20] Another night in August 2012 the accused repeatedly pinched the arm of the complainant to prevent her from sleeping.

[21] There was another incident after the complainant went out for dinner with friends on October 31, 2012. The accused woke the complainant and picked her up by her neck and pressed her against the wall. While holding her against the wall and choking her, he confronted her about a male friend who had attended the dinner. He then threw her onto the bed. Once she was on the bed, the accused grabbed her by the hair and pulled. He ripped her shirt off and got on top of her. The complainant said that she would call the police and the accused said, “If you do that I’m going to kill you.”

[22] In November 2012 the accused pushed the upper half of the complainant’s body over a balcony and said “you know I can push you over.”

[23] Toward the end of November 2012 the accused confronted the complainant alleging that she had clothes that had been purchased by her ex-boyfriend. He said, “You know you’re never going to be with him. You know that. You’re either going to leave this country or you’re going to spend…you’re going to die with me.” The complainant told the accused that he was an idiot. The accused then threw the complainant onto the bed, got on top of her and put a pillow over her face. As he did so, he asked her how it felt. He then said, “I’m going to fuck you.” He proceeded to have forced sexual intercourse with her. The accused had been using cocaine around this time.

[24] On January 7, 2013 the complainant and the accused were in the complainant’s apartment. While they were in the shower, the accused told the complainant that he believed that someone had written something on her genital area. The complainant left the shower and went to the bedroom. The accused followed her and threw her on the bed and began to examine her.

[25] The complainant left the apartment the next day and went to a shelter.

The Proposed Similar Fact Evidence

[26] The accused began a relationship with the similar fact complainant in December of 2000. There were three incidents that occurred during the relationship and one shortly after the end of the relationship that the Crown wishes to introduce as similar fact evidence.

#1 ‑ The July 2001 incident

[27] In July of 2001 the similar fact complainant and the accused had an argument. The accused had been using drugs during that time period and they argued about his drug use. During the dispute, the accused picked up the similar fact complainant by her neck and threw her onto the floor and got on top of her and tried to kiss her. She broke free and went to the bedroom where the accused pushed her onto the bed, climbed on top of her and hit her in the face.

#2 ‑ The Labour Day 2001 Incident

[28] Around Labour Day 2001 the similar fact complainant and the accused were planning to go to a cottage. While driving, Mr. Korecki accused her of seeing someone else and suggested that the baby she was carrying was not his. He called the similar fact complainant a “bitch, a slut and a whore.” She responded by hitting Mr. Korecki. He then punched her in the jaw. They continued on to the cottage. At the cottage the accused was intoxicated. He masturbated and called out his ex-girlfriend’s name. The two argued further. The similar fact complainant took the car keys and said she was going to leave. The accused grabbed her, took the keys and dragged her out of the cottage by her arm and then by her ankles. He locked her out of the cottage. He called her a bitch and a whore. She made her way back into the cottage and was again removed by the accused. During the course of the incident the similar fact complainant called the police. When he learned that she had called the police, the accused said that she was a “rat” and threatened to kill her and her whole family.

#3 ‑ The December 2001 Incident

[29] In December of 2001 when the similar fact complainant and the accused were in the accused’s car, they began to argue about child support for the similar fact complainant’s baby. The accused had previously given the similar fact complainant an expensive engagement ring. She pretended to swallow the ring. The accused told her that he was going to take her to a biker clubhouse where she would be raped by 30 men. She tried to flee from the car, but the accused held her. He began driving at a dangerous speed. He would not let the similar fact complainant leave the car. She returned the ring and he drove her to her parents’ home. The length of the confinement was 25 minutes.

#4 ‑ The February 22, 2003 Incident

[30] The similar fact complainant had left the accused in August 2002. In February 2003 they had contact. They were together in the apartment of the similar fact complainant. The accused observed the similar fact complainant deleting messages from her phone. He accused her of hiding things from him and called her a “fucking liar and a bitch.” She told the accused to get out of her apartment.

[31] The accused picked the similar fact complainant up by her neck and pushed her against a wall and began to choke her. He then punched her several times in the face. She lost consciousness. When she regained consciousness she was on her back on the kitchen floor. The accused continued to punch her in the face and to choke her with his hands until she again lost consciousness. When she regained consciousness she was standing and the accused was punching her in the face. She lost consciousness again.

[32] The next time she regained consciousness she was on her back on the kitchen floor with the accused over her, choking her with his hands. He said, “Look what you made me do. I’m going to fucking kill you Susan.” The accused then got a knife and placed it at the throat of the similar fact complainant saying that she “was a fucking liar and liars deserve to have their tongues cut out.” He tried to put the knife in her mouth and cut her lips. He then hit her head against the floor.

[33] The accused then dragged her to the bathroom, removed her clothing and entered the shower with her. He washed the blood off of her body and his. He then laid her on the bed, gave her ice and facecloth and told her that “he loved her and that he wanted to make love to her.” The similar fact complainant told the accused ‘no’ but he proceeded to have non-consensual intercourse with her.

[34] The accused later drove the similar fact complainant to a hospital in Toronto.

[35] As a result of the incidents set out above, the accused was charged with the offences of attempt murder, aggravated sexual assault, aggravated assault, assault with a weapon, choking to overcome resistance, assault, threatening bodily harm and threatening death. On November 25, 2005, following a judge alone trial, he was convicted of all counts. He was sentenced to the equivalent of 11 years’ imprisonment. With credit for pre-trial custody he was sentenced to 4 further years of imprisonment.

The Positions of the Parties

[36] The Crown argues that evidence of all four incidents is admissible as similar fact evidence. However, he concedes that in order to minimize the risk of prejudice the final incident (#4) need not be fully described to the jury. In particular, the use of the knife need not be part of the narrative of events. He also concedes that incident #2 at the cottage need not be fully described except to say that following a violent incident, the complainant called the police and the accused uttered the threat that is described above.

[37] The Crown submits that the probative value of the evidence outweighs its prejudicial effect. The evidence is relevant and material to the issue of a highly specific and distinctive pattern of conduct of the accused. The similar fact evidence shows more than a pattern of violence in a domestic context. It shows a specific pattern of choking to subdue the complainant, drug use during the incidents and jealousy followed by physical violence involving choking, followed by sexual violence. The evidence also shows a pattern of threatening death or bodily harm if the complainant goes to the police.

[38] The Crown submits that there is little or no risk of reasoning prejudice or confusing the jury because the proposed similar facts have been proven in another proceeding. He submits that the risk of moral prejudice is outweighed by the probative value of the evidence.

[39] Alternatively, if the evidence is not admissible as similar fact evidence, the Crown argues that the complainant in the current case must at least be permitted to refer to the previous charges as context for the utterances of the accused. The accused on one occasion said that he was “smarter this time” and on another occasion said that the complainant would “pay for what Susan did.” The complainant knew that the accused had been charged and had court ordered restrictions as a result of a complaint by a previous partner although she did not know the details of the charges. This knowledge provides a context for her interpretation of the threat by the accused.

[40] Counsel for Mr. Korecki argues that the incidents involving the similar fact complainant are not sufficiently similar to the incidents in this case to warrant their admission as similar fact. He argues further that there are significant differences between the incidents involving the two complainants. He argues that the similarities that do exist can be attributed to coincidence. He further argues that the prior incidents are significantly more violent than the incidents in the current charges. He submits that reasoning prejudice exists since not all of the relevant surrounding circumstances of the prior incidents have been proven in the prior proceeding. The potential moral prejudice is extremely significant because the jury is likely to engage in propensity reasoning because of the egregious nature of the prior incidents.

[41] There is no suggestion that the complainants colluded. It is agreed that they did not know each other and the complainant in this case had no knowledge of the details of the complaint by the similar fact complainant.

The Law

[42] As reaffirmed by the Supreme Court of Canada in R. v. Handy, evidence of discreditable conduct of the accused is presumptively inadmissible.[^1] The rationale for the rule is that the potential of the evidence for prejudice, distraction and time consumption is great and the disadvantages will almost always outweigh the probative value of the evidence.[^2]

[43] The court in Handy articulated a narrow exception to the general rule of exclusion: the evidence will be admissible where the prosecution satisfies the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice.[^3]

[44] The Court of Appeal for Ontario in R. v. L.B.; R. v. M.A.G. set out the approach to the admissibility of similar fact evidence. A trial judge must consider the following:

1. Is the conduct, which forms the subject matter of the proposed evidence, that of the accused?

2. If so, is the proposed evidence relevant and material?

3. If relevant and material, is the proposed evidence discreditable to the accused?

4. If discreditable, does its probative value outweigh its prejudicial effect?[^4]

[45] In assessing probative value and prejudicial effect, the first step is to identify the issue to which the evidence relates. The credibility of the complainant was argued by the Crown in Handy to be one of the issues in question. The Court cautioned that “care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown’s case.” Effectively, anything that blackens the character of the accused may enhance the credibility of the complainant. The actus reus is an issue that may be advanced by similar fact evidence. This was the issue identified by the Court in Handy.

[46] Once the issue or issues in question have been identified, the next step is to identify the required degree of similarity. In Handy, as in this case, the issue was the actus reus of the offence. The Court in Handy explained that the degree of similarity in such a case need not be higher or lower than where the issue is identity, but that the issue is different and the “drivers of cogency will therefore not be the same.”[^5]

[47] Use of similar fact evidence in relation to the issue of whether an offence occurred generally requires a “persuasive degree of connection between the similar fact evidence and the offence charged.”[^6]

[48] In assessing probative value and prejudicial effect, the trial judge must also identify the connecting factors. Similarity does not require peculiarity or unusual distinctiveness. The Court in Handy set out the following non-exhaustive list of factors to be considered:

(1) Proximity in time of the similar acts;

(2) Extent to which the other acts are similar in detail to the charged conduct;

(3) Number of occurrences of the similar acts;

(4) Circumstances surrounding or relating to the similar acts;

(5) Any distinctive features unifying the incidents;

(6) Intervening events; and

(7) Any other factor that would tend to support or rebut the underlying unity of the similar acts.

[49] Similar fact evidence need not be conclusive to be admissible. As stated by Cory J. in R. v. Arp, the trial judge must evaluate “the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established.”[^7]

[50] The task of the trial judge is “not to add up similarities and dissimilarities and then like an accountant derive a net balance.”[^8]

[51] Having assessed the probative value of the evidence in accordance with these principles, the next step is to identify and evaluate the potential moral and reasoning prejudice resulting from the admission of the evidence.

[52] Reasoning prejudice is the danger that the jury may become confused or distracted by the number of incidents. Moral prejudice is the risk of the jury following a forbidden chain of reasoning and inferring guilt from general propensity.[^9]

[53] The final step in the determination of the admissibility of the evidence is the weighing of the probative value versus the prejudicial effect.

The Application of the Law to this Case

Analytical Framework in L.B. M.A.G.

1. Is the conduct, which forms the subject matter of the proposed evidence, that of the accused?

[54] In this case, there has been a finding after a trial that the accused committed the offences alleged against the similar fact complainant. While the findings do not address every detail of the surrounding circumstances, the trial judge accepted the evidence of the complainant with respect to the central events forming the basis for the charges. The findings of the trial judge do not obviate the need for the evidence to be called at this trial (if ruled admissible) and do not remove the right of the defence to challenge the evidence. However, for the purposes of the admissibility analysis, the findings in the prior trial are sufficient to satisfy the first question articulated in the L.B.; M.A.G. analytical framework set out above.

2. If the conduct is that of the accused, is the proposed evidence relevant and material?

[55] Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.” It is material if it is directed at a matter in issue in the case.[^10]

[56] As stated by the Court of Appeal in L.B.; M.A.G., “in deciding how a person has acted on a particular occasion, the trier of fact may be assisted by evidence of how he or she had acted before or since.”[^11] Therefore it is not difficult for the evidence of prior domestic assault to meet the test of relevance and materiality in a case charging domestic assault. The evidence meets this test in this case.

3. Is the proposed evidence discreditable to the accused?

[57] The proposed evidence in this case is all clearly discreditable to the accused.

4. Does the probative value of the proposed evidence outweigh its prejudicial effect?

[58] In assessing the probative value and prejudicial effect of the evidence I must first determine the issue in question and I must then assess the extent to which the proposed evidence supports the inference sought to be made. The strength of the evidence in supporting the inference is assessed by considering the similarities and differences between the incidents and the connecting and intervening factors. The cogency of the evidence is not weighed solely by the degree of similarity.

[59] The assessment of probative value is not a mathematical exercise of comparing the numbers of similarities and differences. The assessment of the prejudicial effect of the evidence entails a consideration of the danger of moral and reasoning prejudice. I must consider how discreditable the conduct is, the danger of general propensity reasoning, the danger of confusing or distracting the jury and the ability of the accused to respond to the evidence.

[60] In this case, the prosecution argues that the evidence is relevant to the issues of the actus reus, the credibility of the complainant and consent.

[61] Consent is a component of the actus reus of the sexual assault charge. Moreover, to say the evidence relates to the credibility of the complainant is really only to restate that the evidence relates to whether the events occurred – or to the actus reus.

[62] Therefore, I would frame the ‘issue in question’ to which the similar fact evidence relates in this case as being the actus reus, including the consent component of the sexual assault charge. The evidence is material to the actus reus insofar as it relates to the alleged propensity of the accused to dominate and control his domestic partners through specific acts of physical violence, threats and sexual violence.

[63] The issue in this case is not identity. The degree of similarity required is not a hallmark or signature. However, the similarity must be sufficiently striking to establish the ‘objective improbability of coincidence.’ In the context of this case, the evidence must be sufficiently similar and to render it improbable that the complainant would concoct a story so similar to the facts in the prior case. There must be a persuasive degree of connection between the similar fact evidence and the allegations in the current case.

[64] I have considered the relevant connecting factors set out in Handy.

[65] In this case, while there is a significant period of time separating the events, the accused was in custody for much of the intervening time period. The last incident with the similar fact victim occurred in 2003. The accused was arrested and remained in custody until he was sentenced in 2006 to a further 4 years’ imprisonment. The allegations of the trial complainant commence in 2011. Therefore, the strength of the evidence is not dimi