R v DH, 2015 ONSC 1857

COURT FILE NO.: 22325/14 NJ

DATE: 20150323

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v DH

BEFORE: E.M. Morgan J.

COUNSEL: Tracy Vogel, for the Crown

Donald Powell, for the Defendant

HEARD: March 10 -12, 2015

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

ENDORSEMENT – PIOR DISCREDITABLE CONDUCT APPLICATION

[1] The Defendant is charged with three counts of sexual interference and three counts of sexual assault in relation to allegations by his biological son, AB. The incidents in issue allegedly occurred in April 2004, when AB was 6 years old. He is now 17 years old.

[2] The trial is proceeding before me as judge alone. Counsel for the Crown and defense agreed at the outset of the trial that in order to spare AB the ordeal of having to potentially testify twice, he would give his entire testimony during the course of the Crown’s case. The present application would then be argued at the conclusion of the Crown’s case, at which point I could decide to include or exclude anything I had heard that relates to the application.

[3] The Crown has applied to introduce evidence of prior discreditable conduct, being a prior conviction for sexually interfering and sexually assaulting CD, the then 8 year old daughter of the Defendant’s girlfriend at the time. The incidents leading to that conviction occurred in December 2006, some two and a half years after the incidents contained in the within indictment.

[4] Counsel for the Crown submits that the evidence of the Defendant’s prior conviction should be admitted here as it helps prove the actus reus, it establishes a pattern of behaviour toward vulnerable young children, and it addresses the potential defense of recent fabrication. The Crown further submits that the conduct at issue in the prior conviction is strikingly similar to the conduct at issue here: AB and CD were of similar age, both were victims of opportunity either in the Defendant’s own home or in his girlfriend’s home or a home he was visiting, and both were children with whom the Defendant personally had a parental or quasi-parental relationship of trust.

[5] All of the incidents occurred on multiple occasions, but within a short time of each other. The allegations in the present case are that the Defendant engaged in sexual misconduct with AB in his apartment during the course of two weekend visits in April 2004 when no one else was home. AB has testified that the Defendant committed acts of fellatio and anal intercourse with him. The facts of the prior convictions are that the Defendant engaged in sexual misconduct with CD during a two week period in December 2006 in CD’s mother’s home or when visiting another family member in Ottawa, when CD’s mother was not in the same room as the Defendant or was in bed asleep. These convictions entail acts of digital penetration of the young girl.

[6] Evidence of prior discreditable conduct is essentially similar fact evidence and should generally be considered inadmissible at trial. As the Supreme Court of Canada explained in R v Handy, 2 SCR 908, at para 37:

The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible. [citations omitted]

[7] On the other hand, evidence of propensity “may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury”: R v B (CR), 1990 CanLII 142 (SCC), [1990] 1 SCR 717, at 732. As Wilson J. said in R v Robertson, 1987 CanLII 61 (SCC), [1987] 1 SCR 918, at para 43, “[i]n discussing the probative value we must consider the degree of relevance to the facts in issue and the strength of the inference that can be drawn.”

[8] Simply put, there is some prior conduct that is so similar to that with which the accused is charged that “it would be an affront to common sense to suggest that the similarities were due to coincidence”: R v B (CR), supra, at 751 (Sopinka J., dissenting). In such cases, “[the evidence’s] usefulness rests entirely on the validity of the inferences it is said to support with respect to the matters in issue”: Handy, supra, at para 26.

[9] Here, there is no concern about the “temporal aspect”, as it has been called: R v Atlin, 2003 YTCA 0005, at para 18 (Yukon CA). That is, the present allegations and the prior conduct happened within about two years of each other, when the Defendant was an adult and parent. For all intents and purposes, the Defendant was the same mature person in April 2004 as he was in December 2006. There were no particular intervening events between the two complaints to weaken the analogy between the two sets of conduct: see R v Dupras, 2000 BCSC 1128, [2000] BCJ No. 1513 (BC SC).

[10] The number of acts alleged by AB is similar to the number alleged by CD, which has been held to be a relevant factor in assessing the cogency of the parallels drawn by the two situations: R v Batte (2000), 2000 CanLII 5751 (ON CA), 145 CCC (3d) 449 (Ont CA). There is, of course, a difference in body parts allegedly touched by the Defendant in the two cases, but a difference in specific body parts touched in a child sexual abuse case has previously been held to be a distinction without a meaningful difference: R v Litchfield (1993), 1993 CanLII 44 (SCC), 86 CCC (3d) 97 (SCC). Overall, the evidence of similar acts goes to the core of the actus reus alleged against the Defendant here: R v Clermont, 1986 CanLII 26 (SCC), [1986] 2 SCR 131.

[11] I would note that at first blush the different genders of the two victims distinguishes one case from the other. However, the Crown led evidence by Dr. Scott Woodside, a recognized expert in the field of forensic psychiatry, indicatig that in a discernable minority of cases a person who is sexually attracted to pre-pubescent children will be indifferent to their gender. In the present case, AB was 6 years old and CD was 8 years old. In Dr. Woodside’s experience, the attraction of a pedophile to children in this age group is not so much to the sex of the child but to “the immature form.”

[12] Accordingly, one can conclude that despite the gender difference, the complaints by AB and CD reflect “highly distinctive conduct” that heightens the probative value of the similar fact evidence: R v Pierre, [1995] BCJ No 1450 (BC CA). Far from there being “nothing particularly distinct or unique in [AB’s] account of the manner in which the [Defendant] treated [him]”, R v Rulli (1999), 1999 CanLII 3712 (ON CA), 134 CCC (3d) 465 (Ont CA), the conduct in issue here is not easily replicated. It involves children under the Defendant’s care who looked to him as playing a parental or quasi-parental role in their respective lives. The high level of trust that was allegedly abused by the Defendant in the case of AB was replicated in the unique circumstances of the case of CD.

[13] There are no frailties in the evidence of prior discreditable conduct which, as Binnie J. pointed out in Handy, supra, at para 134, would militate against its admissibility. Here, the evidence of the Defendant’s conduct toward CD comes from admitted facts that supported a guilty plea in CD’s case.

[14] Not only that, but, if anything, the allegations made by AB are even more inflammatory than those established by the Defendant’s guilty plea in respect of CD. Although one hesitates to measure degrees of child abuse, the acts of oral and anal sex alleged by AB in his testimony are more invasive and morally reprehensible than the acts of digital penetration that were at issue in the CD case. “The prosecution was not attempting to adduce evidence of past misconduct which was more serious than that alleged in the charge facing the accused, nor was it reaching far into the past to find these ‘bad acts’”: R v D (LE), 1989 CanLII 74 (SCC), [1989] 2 SCR 111, discussing R v Ball, [1911] AC 47.

[15] The one factor that gives me pause is that there is some concern over collusion between AB’s story and CD’s story; or, more accurately, some concern that AB’s evidence could be contaminated by exposure to CD’s case. There is no indication that AB actively spoke with CD about the incidents. However, as defense counsel submits, collusion does not necessarily mean conspiracy. As the Court of Appeal explained in R v MB, 2011 ONCA 76, quoting R v JF (2003), 2003 CanLII 52166 (ON CA), 177 CCC (3d) 1 (Ont CA), at para 77, “[t]he reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.”

[16] AB testified that his parents engaged in protracted and acrimonious litigation, and that this had an impact on him as a child. Moreover, as in R v JW, 2013 ONCA 89, at para 21, the evidence here is that AB’s mother is the one who initially told him that the Defendant – his father – was convicted of sexually assaulting CD. Further, AB testified that his mother often asked him whether his father had sexually abused him, which he always denied. I am concerned that communications of this nature could conceivably “have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events”: R v Binnie 2013 ONCA 112, at para 36, quoting R v B (C ) (2003), 2003 CanLII 32894 (ON CA), 171 CCC (3d) 159, at para 49 (Ont CA).

[17] AB himself was a witness to one of the incidents on which the Defendant’s conviction in the CD case was based. He has testified here that once when he was on an overnight visit to his father, while playing with CD’s young brother in a separate room he got up to go to the washroom and when he walked by CD’s bedroom he viewed his father and CD through the open bedroom door. In the CD case, this was described as another instance of digital penetration of CD by the Defendant.

[18] On the witness stand here, AB went further and stated that on this occasion he saw his father in CD’s bedroom with his pants off and making “sexual movements” – sexually thrusting against CD from behind. This suggestion of intercourse or genital contact of some kind by the Defendant is not part of the guilty verdict in the CD case and has not been previously mentioned by AB. It is defense counsel’s view that this is a significant departure from the known facts of the CD case, and potentially casts great doubt on AB’s credibility as a witness.

[19] Counsel for the defense submits that this statement by AB should be held inadmissible as prior discreditable conduct, but should be admissible for the purpose of contradicting AB and attacking his credibility. He analogizes this to a case where a statement made in breach of Charter rights is admitted for the limited purpose of impeaching the witness on cross-examination: see R v Cook, 1998 CanLII 802 (SCC), [1998] 2 SCR 597.

[20] I do not see a practical way of implementing defense counsel’s proposal. Crown counsel submits, and I agree, that the evidence is either in or out.

[21] In order for the contradiction that defense counsel wishes to highlight to be apparent, I (as trier of fact) would have to understand that the description given by AB in his testimony contradicts, or is at least substantially different than, the facts of the CD case. At stake is more than just the statement by AB as a witness. Regardless of the rational for admitting the evidence, if I grant the Crown the ruling it seeks then the Defendant’s guilty plea and conviction would necessarily be part of the record before me. I would then assess it in the context of the evidence as a whole, including AB’s testimony on point and the similar fact evidence, and would make my findings of fact based on this overall assessment of the evidentiary record.

[22] Moreover, the similar fact evidence is part of AB’s narrative separate and apart from his having witnessed the Defendant and CD in December 2006. In 2013, AB was 15 years old and was living with a foster parent. On March 9, 2013, after being punished for lying and stealing, AB broke down crying and drew a series of cartoon characters with some written text on four separate pages. These writings and drawings tell, in rather simple language, the story of what AB says happened to him when he was sexually abused years before by his father. This was the first time he had ever told this to anyone.

[23] The following week, on March 16, 2013, AB added a fifth page on which he wrote:

I left out that he did the same thing to 2 other kids. He did it to his Girlfriend’s daughter when I was there when I was 7 years.

[24] This piece of writing, combined with AB’s testimony about the abuse of CD, is potentially useful to the defense in supporting its theory of recent fabrication. Of course, if the Crown’s prior discreditable conduct application fails and the evidence of the Defendant’s previous conviction is inadmissible, then this fifth note and testimony about it also would be inadmissible.

[25] At the outset of the trial, defense counsel was of the view that this fifth note should be excluded along with all of the other evidence of prior discreditable conduct, and submitted a thorough written brief opposing the Crown’s application. Then the tenor of the hearing changed. By the time the Crown’s application was argued before me, AB had already testified and had added to his written notes his altogether new version of what transpired between the Defendant and CD in December 2006. AB’s previously unheard-of view of the Defendant’s interaction with CD was too much for the defense to resist; its desire to use this evidence, however, put it in an unusual position.

[26] In arguing the evidentiary point, defense counsel did stand by his opposition to the Crown’s application. But he inevitably did so more tentatively than he otherwise would have, since he also argued that the evidence be made admissible for use in impeaching AB’s credibility. I say this not as a criticism of counsel’s argument – in fact, the arguments by both defense counsel and Crown counsel on this application have been very thorough and thoughtful. Rather, I say it to illustrate the understandably ambivalent position that I sense the defense to be in.

[27] I am therefore left with an interesting situation. If I exclude the evidence of the previous conviction and related testimony, I will deprive the Crown of evidence which might establish the Defendant’s modus operandi with children and which might help prove the Crown’s theory of the case. At the same time, I will deprive the defense of evidence which might undermine a key witness for the Crown and which might be germane to the defense theory of the case.

[28] Contrarily, if I admit the evidence of prior discreditable conduct that the Crown applies to admit, I will provide the Crown with an easier route to establishing the actus reus of the offense. At the same time, I will provide the defense with more ammunition to challenge the key prosecution witness in the trial.

[29] Under the circumstances, all of the factors for admissibility that are set out in the case law apply to the evidence that the Crown seeks to admit. The circumstances of the prior conduct and the conduct on trial are similar, the victims are of similar age and similar relationship to the Defendant, the places where the offending conduct took place are similar, the Defendant himself was roughly the same age for both sets of events, and the prior conduct was, if anything, less severe than the conduct at issue in the present trial and so it will not further inflame the prejudice against the Defendant.

[30] In addition, and most perhaps importantly, it turns out that the evidence of prior discreditable conduct, while certainly egregious, may not be entirely prejudicial to the Defendant. Although this remains to be seen as the trial proceeds, some of this evidence might turn out to be useful to his defense. With all of this in mind, the probative value of the evidence outweighs its prejudicial effect.

[31] The evidence of prior discreditable conduct is therefore admissible.

Morgan J.

Date: March 23, 2015