R. v. H., 2015 ONSC 2541

CITATION: R. v. H., 2015 ONSC 2541

COURT FILE NO.: 12-SA5106

DATE: 2015/06/25

PUBLICATION BAN UNDER S. 486.4 OF THE CRIMINAL CODE

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

J.J.H.

Accused

Michael Boyce, for the Crown

David Hughes, for the Accused

HEARD: March 23, 2015 (at Ottawa)

RULING #3 REGARDING SIMILAR FACT EVIDENCE APPLICATION

AITKEN j.

Nature of the Application

[1] The Accused, JH, stands charged with five counts each of sexual assault, sexual interference, and invitation to sexual touching in regard to his female cousin, JN, who, at the time of the alleged offences in the summer of 2012, was 15 years of age.

[2] The Crown seeks to tender the evidence of HW, the daughter of SW, who alleges that, when she was 12 and 13 years of age and was in grade seven and eight (between 2002-2004), JH, who was SW’s then boyfriend, “French-kissed” her on one occasion and touched her vaginal area over her clothing on another occasion.

[3] The Crown asserts that this similar fact evidence is relevant to the issues of actus reus and the plausibility that, despite the Accused establishing the same type of relationship with both, similarly situated, girls, one relationship was sexual in nature and the other was purely innocent.

[4] When this issue arose at the conclusion of the Crown’s case, I ruled that the similar fact evidence was admissible. I undertook to subsequently provide written reasons for my ruling. These are those reasons.

Allegations of JN

[5] The allegations of JN relate to five separate incidents in the summer of 2012. They are fully set out in my Reasons for Judgment, but can be summarized as follows:

• On one occasion, while JN and JH were sitting on a park bench at Andrew Haydon Park, JH kissed JN a couple of times on the lips.

• On one occasion, while JN and JH were in SW’s kitchen, JH kissed JN on the lips. They moved into the living room, where JH told JN to get close to him and she sat on his lap. Then they moved upstairs to SW’s bedroom, where JH performed oral sex on JN and asked her if she would like to do the same to him. JN declined and instead masturbated him.

• On one occasion, when JN and JH were in the laundry room in SW’s basement, JH and JN were fondling each other, JH asked JN if she wanted to lose her virginity, and JH tried unsuccessfully to take off her shorts.

• Later that same evening, JH and JN started kissing and touching each other in JH’s car. They got out of the car and went into a field. They got mostly undressed. They were lying on the ground kissing and fondling each other. Just as JN was getting reclothed, JH told her to get down on all fours, and he touched his penis to her anal area.

• On another occasion, when JN and JH were at Andrew Haydon Park, JH and JN went into a secluded forested area. JH touched JN under her clothing and she gave him oral sex.

Allegations of HW

[6] On October 12, 2012, HW was interviewed by the Ottawa Police and, for the first time, disclosed to the police details concerning various contacts that occurred between JH and HW at SW’s home between 2002-2004, when HW was 12 to 14 years of age.

[7] HW’s parents separated when she was in grade six and, of the three daughters in the family, HW took it the hardest. At this time, HW had a lot of emotional problems and she used to cut herself. She did not want to see her father any more. HW’s family encouraged her to see a counsellor. By this time, HW and her sisters knew JH because of his relationship with their mother, blamed him in part for their parents’ separation, and did not really care for him. But HW loved JH’s dog, who was often at the W home. HW told her counsellor that one thing that would help her get through the tough times was spending time with JH’s dog. SW agreed to help in this regard by allowing HW to spend time with JH’s dog.

[8] One evening, SW took HW to JH’s home so that she could play with the dog while SW went out. JH and HW talked for hours, with JH telling HW (then 12) about past relationships, including his relationship with her mother. The next day when JH was at the W home, and SW was out of the room, JH kissed HW on the cheek and told her that he had had a really good time the previous day. HW appreciated JH’s attention and the fact that he was listening to her and seemed interested in what she thought and was feeling. She liked having some male attention, and thought JH would play the role of an older brother to her.

[9] JH created a separate MSN and Hotmail account that he used to contact HW. He told HW that there was nothing going on between himself and SW – they were just friends. He kissed HW on the cheek every time he saw her, and expected her to reciprocate. If she did not, he would yell at her later. JH monitored HW’s MSN and Facebook communications with friends, and got angry with her, and called her slut, when he caught her flirting with boys. One night, when HW was alone, JH arrived at the W home and was angry with her because of these communications. HW subsequently broke up with her seventh grade boyfriend.

[10] Although HW had initially liked JH’s attention, she grew to be afraid of him. Not knowing what to do, she just went along with his expectations and continued to talk with him and exchange emails.

[11] On one occasion when SW had gone out briefly to pick up HW’s younger sister, HW was at the table doing homework, and JH was talking to her, JH grabbed HW’s face and kissed her with his tongue. It was the first time that anyone had kissed HW like that. JH asked her why she had not kissed him back. SW walked in the door, and HW went up to her room in tears.

[12] Subsequently, on another occasion, when SW, JH, and HW were sitting on a couch watching a movie, HW, who was under a blanket on one side of JH while her mother was on his other side, fell asleep and then woke up to find JH rubbing her private parts over her pants, under the blanket.

[13] JH told HW not to tell her mother what was going on, and he threatened on a couple of occasions to tell SW that HW had been drinking with her friends, if HW ever said anything to her mother.

[14] At a certain point, HW told JH that she did not want to do things with him any more, and the two cut off ties. On one subsequent occasion, when HW was in grade eight, he picked up HW from school, at SW’s request. Nothing happened.

[15] Then, on January 1, 2005, when HW was almost 15 years of age, JH, after having seen HW at a New Year’s Eve Party at SW’s home, sent HW an email at 3:00 a.m. which stated:

… I’m hoping we can become better friends like we use to be. Maybe we can put the past behind us, it’s been a while now but I guess everything between us still hurts sometimes and seeing you just reminds me how it use to be … I loved it and I sure miss it and you a lot. I can’t describe what you meant and still mean to me, you’ll always be special to me … always and that will never, ever change … ever. I wish we would talk sometimes and be comfortable around each other. I’m not sure how you are or how your life is but I know you’re extremely happy. You’re in high school now, getting older, not to mention how beautiful you are … and every time I look at you you seem to melt my heart as you always did … you are one of the most beautiful girls I know … and always take my breath away. I know you are also happy with your boyfriend … what a lucky guy! I’m sooo jealous … ha ha. But I am happy for you anyway. I may not show it but you are important to me and I always worry about how you’re doing. I wish sometimes I could just hug you and tell you I’m so sorry for not being there for you, wish I could make things so much better again for the both of us. If I stay away for you it’s because I still have so many feelings … it’s not you okay, it’s just the whole situation and I guess I’m still running from it rather than face it … I hope to come around again and be fine. Sorry, I’m writing you all of this, I’m sure you haven’t thought about it for the longest time and have gotten over it. All in all, please do reply. I’m hoping you will have some thoughts on how we can become close friends again … I miss you a lot and would really like you in my life.

So you know, everything still is between us so if you would like to open up to me sometime, I would love to listen. I’m sure there are still a lot of things you would like to ask me or talk about … please do try, I won’t turn you away … I promise.

Remember this … you can’t stop loving someone is one day … and every time I bump into you, I realize that I have many, many days to go.

Luv you lots … more than you know and can imagine.

[16] Shortly before her 16th birthday, HW told her counsellor a little bit regarding the above events, and, despite HW’s strong objection, the counsellor contacted the police. This led to the police speaking to SW, and SW kicking JH out of the house, though she continued to have contact with him elsewhere. According to SW, when she confronted JH with what the counsellor and the police had told her, JH acknowledged that he had become too close emotionally to HW and HW to him, that he and HW had been communicating with each other via MSN or email, that he had said inappropriate things to HW, that he had got swept up in his relationship with HW, and that he had done things that he should not have done. He acknowledged that, on one occasion, when he and HW were in the basement, he had given her a kiss, but then had stopped and had said that that was wrong, that they needed to tell SW, and that he could not be involved in this type of thing. According to JH, HW had said that they could never tell her mother because it would devastate her. JH told SW that he had deleted all of the electronic communications he had had with HW.

[17] When HW spoke with SW after the counsellor and police officer had spoken to SW, and SW had in turn spoken with JH, SW told HW that JH had told her what had happened. She wanted HW to confirm whether it was true or not. HW refused to answer; she was angry that her mother would have spoken to JH before speaking with her. As time went on, and JH remained in SW’s life, HW became estranged from her mother. Despite efforts taken by the Ottawa Police Service to get HW to provide them with a statement, she refused to do so until the police contacted her following the allegations made by JN.

Legal Principles

[18] Similar fact evidence is presumptively inadmissible. The onus is on the prosecution to satisfy 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 and thereby justifies its reception (R. v. Handy, 2002 SCC 56 at para 55, [2002] 2 S.C.R. 908).

[19] In determining the probative value of similar fact evidence, the focus of the analysis is the connectedness between that evidence and the offences alleged, and the court must decide whether “the objective improbability of coincidence has been established” (R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 at para 48).

[20] Where the issue in question is the actus reus of the offence, the focus is not on whether the behaviour in both cases is so highly distinctive or unique to constitute a signature, as would be the focus if identification were the issue (Handy at paras 78-80). In sexual assault cases where the issue is whether the incident happened, not the identity of the perpetrator, the similarities likely to be the most cogent are those relating to the context in which the alleged incidents occurred, the nature of the relationship between the accused and the complainants, characteristics of the complainant, and how the accused conducted himself before, during, and after the alleged incidents. As Charron J.A. stated in R. v. L.B. (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 at 14 (C.A.):

In cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents. This stands to reason, particularly where there is nothing unusual about the sexual acts in question. In most circumstances, the fact that one complainant was kissed as compared to the other being fondled may not have a whole lot of significance. The allegations all pertain to acts of a sexual nature. In the same way, and again depending on the circumstances, the fact that one assault occurred in the basement as opposed to the other in the bedroom may not be of consequence on the question of probative value. The different location may simply be attributable to a different opportunity for privacy.

[21] In R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717 at para 43¸ McLachlin J. for the majority, in upholding the admissibility of similar fact evidence in a case involving a child complainant stated: “[t]he fact that in each case the accused established a father-daughter relationship with the girl before the sexual violations began might be argued to go to showing, if not a system or design, a pattern of similar behaviour suggesting that the complainant’s story is true.” This was despite there being differences in terms of the age of the girls, their stage of development, their relationship by blood with the accused, the lapse of time between the two alleged relationships, and some differences in the sexual acts that occurred.

Connecting Factors

Proximity in Time

[22] The allegations made by HW relate to two incidents that occurred sometime between 2002 and 2004, when JH was 25-26 years of age. The allegations made by JN relate to five incidents which allegedly occurred in the summer of 2012, when JH was 35 years of age. The length of time between the two sets of incidents is significant and reduces the cogency of the similar fact evidence. However, in the context of this case, the significance of the lack of proximity is reduced when one considers the specific type of relationship that JH is alleged to have developed with both girls and the limited opportunity he may have had in the interim to engage in such a relationship.

Age of the Girls

[23] HW was 12 or 13 when the alleged events occurred. JH was 15. The evidence is that both had reached puberty, but neither had yet been sexually active. Although JH was 15, the evidence suggests that she was not a confident or advanced 15-year old.

Vulnerability of the Girls

[24] With both girls, when the alleged incidents occurred, the girls were emotionally fragile and very vulnerable.

[25] HW’s parents had separated in 2002, and the separation had been particularly hard on HW. She was not having any contact with her father. She was angry with her mother. She was engaged in self-harming behaviour like cutting. She was seeing a counsellor regularly, and that continued for a number of years.

[26] JN had always struggled in school. During the 2011 and 2012 school year, she was in a special class for children with various learning challenges. Most of her classmates were boys. JN was unhappy not being in a regular classroom, and she felt lonely and isolated. She was depressed and suicidal and was seeing a counsellor. She cut and burned herself. She dressed in black and presented as being dark and angry. Her relationship with her parents was strained. In the summer of 2012, her grandfather, with whom she was close, was dying.

[27] In short, there were many similarities between the two girls in terms of their emotional fragility and vulnerability at the time the alleged incidents occurred with JH.

Relationship with the Accused

[28] JH is JN’s cousin but, since there is a 20-year age difference between them, he is more akin to an uncle. Prior to the summer of 2012, they had not seen each other very often, and they were not close. JN was thrown into more contact with JH than would otherwise have been the case due to SW’s efforts to help JN get through a difficult time in her life. SW offered to give JN some special attention. She was also supportive of JH spending some one-on-one time with JN in the hope that JN would open up to JH about what was depressing her so much. JH’s initial involvement with JN in the summer of 2012 appeared to everyone to be benevolent, and at first had the blessing of SW and JN’s parents. In everyone’s eyes, he was simply trying to give JN some extra attention and emotional support. From JN’s perspective, JH was an older male who was taking a special interest in her and with whom she felt comfortable discussing her emotional problems.

[29] In 2002-2004, JH was SW’s boyfriend. Although he was only 13 years older than HW, in that he was SW’s business and romantic partner, he was situated in SW’s generation. HW saw JH and SW spending a lot of time together, and HW knew that her mother trusted and was close to JH. SW was aware of how angry and unhappy her daughter was. SW facilitated JH spending time alone with HW for two reasons. She wanted HW, who blamed JH for the breakup of her parents’ marriage, to get to know and like JH. As well, HW had told her counsellor that she would like to spend more time with JH’s dog and that, in turn, opened up opportunities for HW to be alone with JH. After HW and JH had spent some time together, and JH seemed interested in listening to HW and telling her things about his personal life, HW came to value JH as an older male to whom she could entrust her personal thoughts.

[30] The stories of JN and HW have other similarities in terms of the development of the relationship between JH and each girl.

[31] Both stories suggest that, once JH was put in the position of being an older male who was spending time alone with the troubled teenager to offer her support, he used the same technique with each girl to fortify his relationship with the girl, and to bring her under his control. He lavished attention on the girl by communicating with her constantly through texts, emails, other forms of messaging, and/or phone calls. He made the girl feel special through the kinds of flattering and flirtatious things that he would say to her. He told both girls that he was not in a romantic relationship with SW – he was just in a business relationship – thereby reducing any guilt the girl may feel about the attention he was giving her or about her being attracted to him. He kept the nature and extent of the communications between himself and the girl secret from SW and, in JN’s case, her parents. He and the girl agreed not to tell anyone about their private communications.

[32] As well, both girls allege that, after awhile, JH tolerated no suggestion that the girl may have romantic feelings for boys who were the girl’s own age. According to HW, JH saw some communications on MSN or Facebook between her and some boys and he became angry and accused her of flirting and of being a slut. According to JN, on the day when JH’s nephew, TH, spent time with JH, JN, and her brothers, JH was angry with JN because she had been speaking privately with TH on a number of occasions over the day, and JH had observed them giving each other a hug. JH asked JN if she was going to do with TH what she did with him.

[33] According to both girls, JH told them not to tell anyone what was transpiring between them. According to HW, in her case, JH threatened to tell SW that HW had been drinking with her friends if HW ever said anything. In JN’s case, JH reminded JN repeatedly not to say anything to anyone, that what they had would always be personal only to them. He instructed her to delete the electronic communications between them.

Similarity of the Acts

[34] The first sexual touching that JH allegedly had with both girls was kissing on the mouth. In both cases, this had been preceded over a period of time by affectionate behaviour which included kissing on the cheek (in HW’s case), or hugging (in JN’s case), not obviously sexual in nature. HW had been shocked and upset by the kiss, and had not wanted any repeat of it. JN had not been so repulsed, and was willing to have further sexual contact of some nature. This factor could have played a role in differentiating the acts that allegedly ensued in each case.

[35] The second incident with HW allegedly happened when she was sleeping, and involved JH rubbing her genital area with his hand over her clothing. JN described JH fondling her genital area over and under her clothes, and going further to engage in oral sex. Again, the different outcomes could be explained through issues involving opportunity. SW was watching a movie with JH and HW when the fondling incident with HW allegedly occurred. JH and JN were on their own in different locales when fondling and further sexual activity allegedly occurred.

[36] JN’s further allegations, including those of her masturbating him, them having oral sex, and JH putting his penis near her anus, go well beyond the behaviour alleged by HW. However, I do not consider this particularly significant, as these differences could be explained through reference to the girls’ reactions to JH’s advances and to issues of opportunity.

Number of Occurrences of the Similar Acts

[37] HW described only two discrete incidents. This is not a case where there were numerous incidents over an extended period of time showing a pattern. This reduces the cogency of HW’s evidence to the issues in this case.

JH’s Willingness to Take Risk

[38] In the case of both JN and HW, most of their communications with JH were through electronic media. JH’s messages to both of them were boldly provocative and flirtatious. They created a high risk of detection.

[39] The incidents described by JN and HW involved significant risk of detection. HW spoke of JH kissing her in the kitchen of the W home just as SW is arriving home and about to walk in the door. HW also described JH reaching under a blanket to touch her vaginal area when JH, SW, and HW were sitting together on a couch watching a movie, and HW was just waking up after having dozed off.

[40] JN described an incident of kissing on a park bench that was in the open, and an incident of oral sex in a wooded area, on occasions when her brothers were in the vicinity. She described JH kissing her in SW’s kitchen and the two “making out” in SW’s living room, even though these locales were visible from the outside. She described JH giving her oral sex in SW’s bedroom, even though it was possible one of SW’s daughters would come home or SN, who was in the basement, would come looking for them. She described JH offering to have sex in the laundry room in the W basement when SW and other children were upstairs and could have come downstairs at any time. Finally, she described the two of them – albeit at night in the dark – taking off their clothes and engaging in sexual conduct near a school and not far from a road.

[41] The description of these incidents with both girls suggests cockiness and a comfort level with risk on JH’s part.

JH’s Response when Communications with the Girls Discovered

[42] The evidence of SW is to the effect that there were similarities in how JH responded when allegations surfaced in regard to his relationship with each girl.

[43] When SW confronted JH after learning of HW’s allegation that JH had kissed HW on the lips on one occasion, JH acknowledged that he had become overly emotionally attached to HW, that it had been inappropriate for him to have communicated so frequently with HW and not to have let SW know about the communications, that he did not know why he needed attention like that, that he knew that the kiss had been wrong the minute it happened, that nothing else of that nature had ever happened, and that he was really sorry.

[44] When SW confronted JH after learning from LN that JH had been sending romantic messages to JN and JN was writing love letters to JH, JH acknowledged that he had become emotionally involved with JN, that she had needed him, that he did not understand why he needed attention like that, that nothing physical had ever happened between them, and that he was really sorry for not having told SW about the communications. He undertook to get help for his problem of craving attention. When JN’s allegations came out regarding the five sexual encounters already described, JH, after denying that he had ever initiated any sexual contact with JN and alleging that it had been JN who had tried unsuccessfully to initiate such contact with him, again apologized – this time for not having told SW about JN’s behaviour.

Following Termination of the Relationship

[45] It is clear that, even after JH’s relationship with the girls was being questioned, and he had been told by their parents that he was not to have any further communications with the girls, he expressed a desire to continue the relationship. In HW’s case, he sent her an email on January 1, 2005, saying he wanted to become friends like they used to be, he missed her a lot, she still meant a lot to him, and how it would take him a very long time to stop loving her. In JN’s case, after JH had been told in no uncertain terms to have no further communication in any form with JN, he continued to communicate with her through social media and, unbeknownst to her parents and SW, he arranged to meet her at school during her lunchbreak.

Collusion

[46] No evidence of collusion was presented in this case, which increases the probative value of the similar fact evidence.

Balancing Probative Value with Prejudice

[47] The probative value of the evidence of HW was high. HW’s evidence is supported by the evidence of SW to the effect that, after SW confronted JH with HW’s allegations regarding the communications between the two of them and the kiss, JH acknowledged that these things had happened. The description of the relationship between HW and JH is also not controversial. All of the points of connectedness described above increase the probative value of HW’s evidence, with any points of dissimilarity being of less significance considering the purpose for which the similar fact evidence is being tendered.

[48] On the contrary, the risk of prejudice was minimal. In this case, since it was a judge alone case, moral prejudice (i.e. the potential stigma of “bad personhood”) was not really in play. Reasoning prejudice was also minimal. The evidence relating to the allegations of HW was capable of being tendered without the trial being significantly lengthened. Her allegations involved only two incidents, and they were significantly less serious than most alleged by JN. HW’s allegations did not carry the risk of derailing the focus at trial; namely, the allegations of JN.

[49] For these reasons, I concluded that the probative value of the evidence of HW outweighed its potential prejudice in regard to the issue of whether the incidents alleged by JN occurred and the more focused issue as to whether it was plausible that JH, once again, got drawn into the situation of having an inappropriate relationship with an underage girl, but this time without any sexual contact occurring.

Aitken J.

Released: June 25, 2015

CITATION: R. v. H., 2015 ONSC 2541

COURT FILE NO.: 12-SA5106

DATE: 2015/06/25

PUBLICATION BAN UNDER S. 486.4 OF THE CRIMINAL CODE

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

J.J.H.

Accused

ruling #3 regarding SIMILAR FACT EVIDENCE APPLICATION

Aitken J.

Released: June 25, 2015