COURT FILE NO.: 13-SA5103

DATE: 2015/12/09

PUBLICATION BAN UNDER S. 486.4(1) IN EFFECT

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

ERIC RICHARDS
Respondent

J. Bocking, for the Crown

Paolo Giancaterino, for the Applicant

HEARD: December 2, 2015

RULING #2 – SIMILAR ACT EVIDENCE APPLICATION

aITKEN j.

Nature of Application

[1] At the conclusion of the Crown’s case, the Crown sought to tender similar act evidence from the J.B. case relating to the offences of sexual assault with a knife, unlawful confinement, and uttering a threat as evidence in the S.D. case to help establish the identity of the assailant in the S.D. case. The Crown also sought to tender similar act evidence from each case (aside from the evidence relating to dangerous driving and mischief) as evidence in the other case relating to whether the complainant consented to the sexual activity that occurred, whether Eric Richards knew that she was not consenting, and whether a knife was used to threaten or harm the complainant. I granted the Crown’s application, with written reasons to follow. These are those reasons.

Background

[2] Eric Richards has been charged with sexual assault with a weapon (namely a knife), unlawful confinement, and uttering a threat to cause death in regard to two separate incidents against two different women at two different times and places: S.D. on June 18, 2012, and J.B. on September 6, 2013. Both women were sex trade workers at the time of the alleged offences. Mr. Richards was arrested at the scene of the September 2013 incident involving Ms. B. Bodily fluids collected at that time and analyzed for DNA, together with other evidence in the J.B. case, tied him back to the alleged offences of June 2012 regarding Ms. D., in regard to which no assailant had previously been identified. That resulted in the second set of charges being laid.

Evidence Relating to the S.D. Incident

[3] S.D. testified that, in the late morning or early afternoon of June 18, 2012, she was approached by a man in a grey car while she was near the corner of Lafontaine and Lévis Streets in Vanier. The man asked whether she would like to make a quick twenty dollars. Ms. D. was a sex trade worker who was pregnant at the time. Ms. D. agreed to go with him, expecting that she could earn some easy cash by giving the man a “hand job” or a “blow job”. He drove her to the St. Laurent Sports Complex parking lot, which was not far away. The man took out his penis. Ms. D. asked for the money up front. The man looked in his wallet and his pockets and then confessed that he had no money. The man then started to play with Ms. D.’s breasts. She told him that he was taking advantage of her, and she started to leave the car. The man pulled her back into the car by her hair, which was very long at the time. He put a knife to her throat and said that she was going to lean back and lock the door. He then had her recline her seat. Ms. D.’s sundress was pushed up and the man pulled down one side of her pantyhose. He fondled her breasts and fingered her vaginal area. He was hurting her doing this. He said how tight she was. The man then pulled down his pants and got on top of Ms. D. while she was reclined in the passenger seat. He tried to have vaginal intercourse with her. Ms. D. remained stiff and uncooperative. The man then put the knife on Ms. D.’s stomach and said that he was going to make her have her baby right then if she did not cooperate. Ms. D. started to cooperate. The man had vaginal sex with her, but took his penis out of her vagina prior to ejaculating on her dress. Prior to the man having vaginal sex with her, Ms. D. had pleaded with him to wear a condom, telling him that she was HIV positive, but he had refused to do so.

[4] After the man was finished, he returned to his seat and offered Ms. D. one of his home rolled cigarettes. Ms. D. had one cigarette in the car and took two others with her when she left.

[5] As Ms. D. was leaving, she quickly jotted down a description of the car (a grey Saturn hatch back), the partial licence plate number (BDBD63), and a description of the man (a white, English-speaking male in his late thirties or early forties with black hair).

[6] Ms. D. attended the hospital the same day to have a sexual assault kit conducted but, after waiting a few hours, decided to go home and do her own forensic kit. She put the sundress, underwear, and pantyhose that she had been wearing into a bag, along with the two cigarettes received from the man. She swabbed her own vagina with Q-tips and placed those in a zip-lock bag. On the day of the incident, Ms. D. called Officer Vandal, a member of the Ottawa Police Services, with whom she had a good relationship. He saw her the following day, at which time, she told him what had happened and gave him the various items to be tested for DNA.

[7] The police forwarded the sundress and the cigarettes to the Centre for Forensic Sciences for analysis. The semen on the sundress and the fluid on the cigarette yielded DNA which was placed on the DNA database. When Mr. Richards was arrested on September 6, 2013, DNA evidence collected in regard to the incident involving J.B. was linked to the DNA obtained from Ms. D.’s sundress and the cigarette.

Evidence Relating to the J.B. Incident

[8] J.B. testified that, on September 6, 2013, she was working as a sex trade worker on Montreal Road in Vanier when she noticed Mr. Richards circling the area in his car and then stopping just in front of her. She approached the vehicle and asked if he wanted company – code for sexual services. Ms. B. and Mr. Richards negotiated a price of $40 for a “blow job”. Mr. Richards drove Ms. B. to Beechwood Cemetery, which was not far away. Mr. Richards started to undo the button and zipper of his jeans. Ms. B. stopped him and asked to be paid up front. Mr. Richards started to hit Ms. B. in the face and head with his fist and elbow. He produced a knife and slashed it down her body with the dull side. He told her that she was going to do exactly what he told her to do or else she was going to get extremely hurt. Mr. Richards told Ms. B. to pull up her bra and to pull down her pants. While he held the knife at her neck, he put her breasts in his mouth and fingered her vaginal and anal areas. Then he pulled Ms. B.’s head down to his groin to give him oral sex. Ms. B. begged him to put on a condom, and he agreed. She had the condom in her pocket. While Ms. B. was performing fellatio, Mr. Richards held the knife over her head, poking her with it, and telling her that if she hurt him or bit him, the knife would go through her head. Mr. Richards then put Ms. B. back in the passenger seat. He reached over her, reclined the passenger seat, and moved it further back. Then Mr. Richards got on top of Ms. B. and penetrated her vagina. He had his fingers in her anus and commented on how tight it was. When Ms. B. saw Kerith Gordon, a jogger, go by, Ms. B. screamed. Mr. Richards punched her in the face and held the knife to her face, telling her that if she got him into any kind of trouble, he would kill her. Mr. Richards then turned Ms. B. over, pushing her face into the headrest and, with some difficulty, penetrated her anally.

[9] Meanwhile, Ms. Gordon had alerted the operations foreman at Beechwood Cemetery, Robert Smith, that she thought a woman was in trouble in a near-by car. Mr. Smith immediately drove his truck to where Mr. Richards’ car was parked. Through the open driver’s side window, Mr. Smith could clearly see Mr. Richards on top of Ms. B. Mr. Richards had one arm around Ms. B.’s head and neck, her head was pushed into the seat, and Mr. Richards was trying to penetrate her from behind with his penis. As soon as Mr. Smith asked what was going on, Ms. B. started to scream “he is raping me, help me, help me”, and Mr. Richards rolled back into the driver’s seat, turned on the engine, and sped off. When Mr. Richards got off her, Ms. B. tried to get out of the car, but Mr. Richards pulled her back in as he sped away. According to Ms. B., when Mr. Richards slowed his vehicle to turn a corner, he pushed her out onto the grass. Mr. Richards told Mr. Smith that Ms. B. had tried to get out of the car, he had pulled her back in and, when he went around a bend, Ms. B. had jumped out.

[10] Mr. Smith immediately called 911 and then quickly drove his truck to where he knew Mr. Richards was heading. He blocked Mr. Richards’ route, so that he could not exit the cemetery. Mr. Smith ordered Mr. Richards out of the car, had him get down on his hands and knees, and kept him in that position until the police and an ambulance arrived. The police retrieved a knife from the front driver’s seat of Mr. Richards’ vehicle. Ms. B. was taken to hospital by ambulance, where she underwent a sexual assault assessment. She was then taken to the police station where she provided a formal statement as to what had happened.

[11] Mr. Richards was arrested at the scene. His vehicle was seized. It was a grey Saturn with licence plate number BDBE683.

[12] DNA from a swab of Ms. B.’s breasts and from the condom, which fell out of Mr. Richards’ underwear when he was being searched at the police station, was linked to DNA obtained from Ms. D.’s sundress and the cigarette her assailant had given her.

General Principles

[13] Similar act evidence is presumptively inadmissible. The onus is on the Crown 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).

[14] As I stated in my Reasons relating to the severance application, when similar act evidence is admitted, there is always the potential prejudice that the jury will conclude that the accused is a bad person who must have committed the alleged offence because of evidence that he committed another offence. In addition to the risk of this impermissible propensity reasoning, there is the risk of moral prejudice, where the similar act is significantly more culpable or inflammatory than the offence under consideration. The more probative the similar act evidence is to the issue in question, the less likely it is that prejudice will result from its admission.

[15] In determining the probative value of similar act 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”. It is only then that the evidence will have sufficient probative value to be admitted (R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 48). Binnie J., in Handy, at para. 91, described the importance of a high degree of similarity existing between the similar act evidence and the facts of the offence under consideration by the jury:

Reference to “calling cards” or “signatures” or “hallmarks” or “fingerprints” similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. The issue at that stage is no longer “pure” propensity or “general disposition” but repeated conduct in a particular and highly specific type of situation. At that point, the evidence of similar facts provides a compelling inference that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken (in this case) by the jury.

[16] Where the issue in question is identification, the focus is whether the behaviour in both cases is so highly distinctive or unique to constitute a signature (Arp, at para. 43; Handy, at para. 77). Where, as in this case, there is DNA evidence suggesting the same assailant can be linked to both sets of offences, and evidence to suggest that the same car was used, this can be seen as a form of signature.

[17] Where the issue in question is whether the offence occurred (which includes whether an essential element of the offence other than identity has been proven), 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 complainants, and how the accused conducted himself before, during, and after the alleged incidents (R. v. L.B. (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), at paras. 31-39). As Charron J.A. stated in L.B. at para. 37:

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.

Threshold Issues

Is the conduct, which forms the subject matter of the proposed evidence, that of Eric Richards?

[18] There must be some link between the allegedly similar acts and Mr. Richards, in other words, some evidence upon which the jury can make a proper finding that the similar acts were the acts of Mr. Richards. In regard to the offences relating to Ms. B., there is no question of identity. In Ms. D.’s case, the following is some evidence linking Mr. Richards to the offences against her: (1) Ms. D.’s description of her assailant, (2) Ms. D.’s description of the vehicle involved and the licence plate of that vehicle, and (3) the DNA evidence of James Sloots from the Centre for Forensic Sciences.

Is the proposed evidence relevant and material?

[19] The uncontroverted fact in the J.B. case that Mr. Richards was the alleged assailant is relevant to prove identity of the assailant in the S.D. case because of the evidence that: (1) the probability that DNA evidence collected from both interactions came from someone unrelated to Eric Richards is very small; (2) Ms. D.’s description of her assailant is similar to Mr. Richards’ appearance at the time of his arrest in the J.B. case; and (3) Ms. D.’s description of the car used by her assailant very closely mirrors the car Mr. Richards used for his encounter with Ms. B.

[20] The evidence of both complainants as to how they came to be in a car with their alleged assailant, and what transpired when they were in the car, is so similar as to make the proposition that each woman was sexually assaulted, threatened, and unlawfully confined more likely than such proposition would be in the absence of the similar act evidence.

[21] The threshold requirement of relevance and materiality has been met.

Is the proposed evidence discreditable to Mr. Richards?

[22] Clearly the proposed similar act evidence is discreditable to Mr. Richards.

Analysis

[23] In the S.D. case, the key issues are: (1) the identity of her assailant, (2) whether the interaction was entirely consensual or whether it was an assault, and (3) whether a knife was used. In the J.B. case, the key issues are: (1) whether the interaction was entirely consensual or whether it was an assault, and (2) whether a knife was used. The similar act evidence proposed to be tendered in each case relates directly to the live issues in that case. Therefore it has relevance to issues beyond general propensity or bad character.

[24] Prejudice does not mean that the evidence is incriminating; rather, it refers to the risk that the jury will misuse the similar act evidence by reasoning that Mr. Richards is a person of bad character who therefore must have committed the alleged offences, instead of carefully examining the evidence relevant to each offence (L.B., at paras. 41, 50).

Probative Value of the Evidence

Strength of the Evidence

[25] The more compelling the similar act evidence, the greater its probative value.

[26] The evidence of identity in the J.B. case is very strong. Robert Smith observed Mr. Richards having sexual relations in his car with Ms. B. Mr. Smith prevented Mr. Richards from fleeing, and Mr. Richards was arrested at the scene. DNA was isolated from semen in a condom that fell out of Mr. Richards’ underwear following arrest and from swabs of Ms. B.’s breasts. DNA was obtained from semen on Ms. D.’s sundress which she identified as the semen of her assailant. There is expert evidence to the effect that: the probability that a randomly selected individual unrelated to Eric Richards would coincidentally share the observed DNA profile in both cases is estimated to be one in 4.8 quadrillion.

[27] In terms of the strength of the evidence regarding a sexual assault with a knife, threatening with a knife, and unlawful confinement, both complainants described clearly what had transpired in the car with their alleged assailant. In the J.B. case, there was an independent witness, Mr. Smith, who observed what was happening. He observed Ms. B. trying to exit the vehicle and being prevented from doing so. In the J.B. case, a knife was recovered on the front seat of the car.

[28] In short, the similar act evidence is strong.

Connecting Factors

[29] The evidence of the Crown’s witnesses presents many connecting factors between both fact situations:

S.D.
J.B.

Ms. D. was a sex trade worker.
Ms. B. was a sex trade worker.

The Assailant picked up Ms. D. on a street corner in Vanier known to be frequented by prostitutes.
Mr. Richards picked up Ms. B. on a street in Vanier known to be frequented by prostitutes.

Ms. D. was picked up during the day in the summer.
Ms. B. was picked up during the day in the summer.

The Assailant was alone in the car.
Mr. Richards was alone in the car.

The Assailant asked Ms. B. if she wanted to make a quick $20, she assumed for a “hand or blow job”.
Mr. Richards and Ms. B. negotiated $40 for a “blow job”.

The Assailant drove Ms. D. to a parking lot at a sport complex.
Mr. Richards drove Ms. B. to Beechwood Cemetery.

The first thing the Assailant did was to pull his penis out of his pants and expect Ms. D. to give him a blow job.
The first thing Mr. Richards did was to undo the button and zipper on his jeans.

Ms. D. demanded money up front.
Ms. B. demanded money up front.

The Assailant looked in his wallet and pockets for money and said he had none.
Mr. Richards paid no money to Ms. B.

The Assailant started to fondle Ms. D.’s breasts.
Mr. Richards attacked Ms. B., had her push up her top, and put his mouth on her breasts.

Ms. D. told the Assailant that he was taking advantage of her and she went to leave. The Assailant pulled Ms. D. back into the vehicle and threatened her with a knife.
Mr. Richards prevented Ms. B. from leaving by assaulting her and threatening her with a knife.

The Assailant told Ms. D. to recline the passenger seat and push the seat back.
Mr. Richards reclined the passenger seat and pushed it back.

The Assailant told Ms. D. to pull up her sundress, he felt her breasts, he pulled down her panty hose and underwear, and he fingered her vaginal area.
Mr. Richards fingered Ms. B.’s vaginal and anal area.

The Assailant penetrated Ms. D. vaginally, saying that she was tight.
Mr. Richards penetrated Ms. B. vaginally and anally and said her anus was tight.

The Assailant rubbed the dull side of the knife across Ms. D.s’ stomach and threatened to make her have her baby right then if she did not cooperate.
Mr. Richards threatened to hurt Ms. B. if she did not do what he wanted, and to kill her if she got him into trouble. He slashed the dull side of the knife down her body.

The Assailant ejaculated.
Mr. Richards ejaculated.

The Assailant had hand rolled cigarettes in the vehicle.
Mr. Richards had hand rolled cigarettes in the vehicle.

Ms. D. received no payment.
Ms. B. received no payment.

Ms. D. described the Assailant as being an English-speaking white male in his late 30’s-early 40’s with black hair.
Mr. Richards fits this description.

Ms. D. described the Assailant’s car as being a grey Saturn with licence plate BDBD63.
Mr. Richards’ car was a grey Saturn with licence plate BDBE683.

DNA identified from semen on Ms. D.’s sundress can be linked to Mr. Richards
DNA identified from fluids on a condom that fell from Mr. Richards’ underwear following arrest and from swabs of Ms. B.’s breasts can be linked to Mr. Richards

[30] There was also evidence of some differences between the two sets of circumstances:

S.D.
J.B.

Date of incident: July 18, 2012
Date of incident: September 6, 2013

Ms. D. was pregnant.
Ms. B. was not pregnant.

Ms. D. was taken to a parking lot where there was significantly more pedestrian and vehicular traffic than at Beechwood Cemetery.
Ms. B. was taken to Beechwood Cemetery where there was not much pedestrian or vehicular traffic.

The Assailant did not instantly threaten Ms. D. with the knife when payment was demanded up front, but first looked for money.
Mr. Richards attacked Ms. B. and threatened her with a knife as soon as she said she wanted money up front.

The Assailant refused to put on a condom, after she begged him to do so.
Mr. Richards allowed Ms. B. to put a condom on him after she begged him to wear one.

No evidence regarding this point.
Mr. Richards made comments about not having been with a woman for a long time.

The Assailant did not force Ms. D. to perform oral sex.
Mr. Richards forced Ms. B. to perform fellatio on him.

The Assailant did not anally penetrate Ms. D. with either his fingers or his penis.
Mr. Richards anally penetrated Ms. B. with his fingers and then his penis.

Ms. D. described the knife as being straight with a brown handle, and she did think it was a folding knife.
Exhibit 4 is a foldable knife with a serrated blade and a black handle.

Ms. D. described the car as a grey Saturn hatchback.
Mr. Richards’ grey Saturn is not a hatchback.

[31] The similarities in the evidence about the two incidents are striking and significant. The differences pale in comparison. As I said in my Reasons on the severance application, most of the differences can be explained by the reality that no two incidents involving an assailant and a victim will unfold in identical fashion when two individuals are in a dynamic, conflictual, interaction (L.B., at para. 37). The high degree of similarity increases the probative value of the similar act evidence, as does its direct relevance to the questions of identity, lack of consent, and use of a knife – all being the key issues in the D. case and the latter two being the two key issues in the B. case.

Collusion

[32] The probative value of similar act evidence is reduced and may be eliminated if there is evidence of collusion or collaboration between witnesses. Here, although there is some evidence of opportunity to collaborate, there is no evidence of actual collusion or collaboration, and the circumstances of each offence make it highly unlikely that any collusion or collaboration occurred.

[33] The event described by Ms. D. occurred on June 18, 2012. She called Officer Vandal that day to tell him what happened. He spoke with her the following day and collected items for DNA analysis. Ms. D. had a formal audiotaped interview at the police station on June 27, 2012.

[34] Ms. D. testified that, although she had posted a description of the vehicle and its licence plate on a website where sex trade workers alert others of “bad dates”, she had not provided any additional information. Ms. B. testified that, at some point, she had heard of a sex trade worker having a “bad date” with a customer with a knife, but that was all she had heard prior to her incident with Mr. Richards.

[35] Both complainants testified that, although they knew each other as fellow sex trade workers in the Vanier area, they did not interact often. Neither could recall discussing Ms. D.’s incident with the other prior to Ms. B.’s incident.

[36] The events described by Ms. B. occurred on September 6, 2013, and that incident was observed, in part, by two independent witnesses: Kerith Gordon and Robert Smith. Ms. B. was in the company of Mr. Smith, and various police officers or nurses, from minutes after the incident occurred until after she had provided a formal audiotaped interview with the police later the same day. Ms. B. had no opportunity to collude with Ms. D. following the incident and prior to her interview with the police.

[37] The evidence is that, a few weeks after the incident described by Ms. B., she and Ms. D. met for an unrelated purpose and, at that time, discussed what had happened to each of them. But, by then, both had provided formal statements to the police, and those statements were available for cross-examination at trial. No changes to those statements so as to bring the complainants’ description of events into closer alignment were brought out during cross-examination.

[38] In these circumstances, the opportunity to collude does not play any significant role in my assessment of the probative value of the similar act evidence.

Prejudice to Mr. Richards

[39] As I stated in my Reasons on the severance application, when a jury hears evidence about two distinct incidents involving two different complainants, if the jury accepts the evidence of the first complainant in regard to the first alleged offence, there is a risk that the jury will conclude that the accused is a bad person who likely is guilty of the second alleged offence, without the jury critically considering the admissible evidence relating to the second offence. There is also the risk that, if the jury does not believe the accused in regard to one set of charges, it will assume that he is not telling the truth in regard to the other set of charges. There is the further risk that, if the jury believes one of the complainants or finds her evidence reliable, it will automatically assume that the other complainant is telling the truth and providing reliable evidence. These are always risks when there are multiple complainants and multiple incidents on an indictment. For a number of reasons, the risk of prejudice to Mr. Richards in this case, is not high.

[40] There are only two incidents and two complainants. We are not dealing with numerous allegations of sexual offences over several years, with numerous complainants, or with repeated offences against complainants.

[41] The two complainants are similarly situated. At the time of the incidents in question, they were sex trade workers with serious drug addictions. As such, they are not in the category of complainants, such as children, who, in the normal course, arouse the sympathy of decision-makers.

[42] The two alleged incidents are similar in terms of level of culpability, with neither overshadowing the other.

[43] Mr. Richards has the opportunity to testify as to what occurred in Ms. B.’s case, more specifically in regard to consent and the use of a knife. In regard to the S.D. case, Mr. Richards can challenge evidence that would tend to suggest that he may have been her assailant, as well as challenging her evidence regarding absence of consent and the use of a knife.

Balancing the Probative Value and the Prejudicial Effect

[44] The Crown bears the burden of demonstrating that the probative value of the similar act evidence outweighs its prejudicial effect. The Crown has met that burden in this case.

[45] The high degree of similarity in the incidents described by both complainants, the relative insignificance of the differences, the presence of DNA evidence offering a possible link between the assailants in both cases, the evidence of two independent witnesses to the J.B. incident, the timing of the complainants’ formal statements to the police, the fact that the complainants were sex trade workers and drug addicts at the time and were challenged as to their credibility and the reliability of their evidence on this basis – all lead me to conclude that the probative value of the proposed similar fact evidence outweighs its prejudicial effect.

Disposition

[46] For these reasons, I granted the Crown’s application to tender similar act evidence.

AITKEN J.

Released: December 9, 2015

COURT FILE NO.: 13-SA5103

DATE: 2015/12/09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

ERIC RICHARDS

Respondent

RULING #2 – similar act evidence

Aitken J.

Released: December 9, 2015