R. v. C.S., 2016 ONSC 1770
COURT FILE NO.: CR-12-30000108-0000
DATE: 20160302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C. S.
Accused
David Steinberg, for the Crown
Marcus Bornfreund, for the Accused
HEARD: March 1, 2016
B.A. ALLEN J.
REASONS FOR DECISION
(Similar fact application – prior convictions of accused)
BACKGROUND
[1] This is a historical sexual assault case. The offences are alleged to have occurred between June 1976 and December 1984. The accused, C.S., stands charged with five sexual offences against two women when they were teenagers. The two complainants are his nieces, the daughters of his brother.
[2] In relation to one complainant, G.S., it is alleged that C.S. committed a rape; an indecent assault; intercourse with a female under age 14, not his wife; and intercourse with a female of chaste character, not his wife, age 14 years or more and under age 18. In relation to V.S., it is alleged he committed a sexual assault.
THE APPLICATION
[3] The Crown brings this application seeking admission of evidence of prior convictions of C.S. The Crown submits the evidence should be admitted on the basis of the similarities between the facts related to the prior convictions and the charges before the court.
[4] By way of background, in 2007, C.S. was charged with two sexual offences against two sisters who were his teenage stepdaughters. In relation to C.H., C.S. was charged with indecent assault and in relation to D.H. he was charged with sexual exploitation. C.S. pleaded guilty to these charges in October 2009.
[5] It is the Crown’s burden to prove on a balance of probabilities that the probative value of the prior convictions outweighs the prejudicial effect on the accused’s right to trial fairness.
THE EVIDENCE
On the Proposed Similar Facts of the Prior Convictions
[6] C.S.’s charge of indecent assault of C.H. relates to incidents that occurred in August 2007. The sexual exploitation charge by C.S. in relation to D.H. relates to incidents that occurred between May and December 2007. The facts read into the record on C.S.’s guilty plea are as follows:
[7] At the time of these incidents C.S. was the common-law spouse of the girls’ mother. He resided with the family. C.H. and D.H. were between the ages of 16 and 19 years at the time.
[8] The facts related to C.H. are that she had undergone minor surgery and was spending days at home in bed recovering. C.S. was supposed to be assisting her with her recovery. There were a couple of occasions where he would take water to her and while carrying the water in his hand, his hand would brush against her breasts. There was a further occasion when C.H. was sleeping and she awakened to find C.S. near her vaginal area. She awoke and asked what he was doing. He responded can I kiss it. C.H. pushed him away.
[9] With respect to D.H., C.S. would repeatedly ask her about rubbing moisturizing lotion on her legs. On two occasions, he rubbed up her thigh and went higher and higher until he got to the point where he was too close to her vagina. She pushed him away.
[10] C.S. also exposed himself to D.H. and masturbated in front of her. This would happen when she was home from school and when other members of the family were away from the house.
On the Facts of the Charges before the Court
[11] G.S. and V.S. are sisters and C.S. is their uncle. The anticipated evidence of G.S. and V.S. is as follows:
[12] Three separate incidents which occurred when she was age 13 – 16 underlie G.S.’s allegations. G.S. is expected to testify that two acts of indecent assault involved groping and grabbing her breasts and vagina over her clothes when she was age 13 – 15. There was one act of vaginal rape that happened when she was age 13 – 15. G.S. is also anticipated to allege C.S. repeatedly made sexually lewd comments to her. All of the incidents occurred at the home when C.S. was visiting on weekends. G.S. is expected to say C.S. bribed her with money to keep her from talking about the incidents. He warned her that both of them would get into trouble if she told anyone.
[13] G.S. is also anticipated to testify that the rape occurred in the bathroom upstairs while other family members were in different areas of the home. She was naked, wrapped in a towel getting ready to take a shower. C.S. trapped G.S. in the bathroom, locked the door, restrained her against the wall and forced vaginal intercourse on her. G.S. is also expected to say that C.S. approached her from behind in the basement when no one else was around and groped her breasts.
[14] V.S. is anticipated to testify that when she was about 14 – 15 years old C.S. forcefully kissed her, putting his tongue in her mouth outside the home on the driveway after he drove her home from school. V.S. is also expected to testify that C.S. caught her on a landing on a stairway and groped her vagina and breasts when no one else was present. She is also anticipated to say C.S. repeatedly made lewd sexual comments to her.
THE LAW GOVERNING SIMILAR FACT EVIDENCE
Basic Framework
[15] The Supreme Court in R. v. Handy laid down a framework for analyzing similar fact evidence when assessing whether the probative value of the proposed similar fact evidence outweighs the prejudicial effect. The probative value may be evaluated in accordance with the following factors:
a) the strength of the similar fact evidence
b) identification of the live issue in question
c) the relative cogency of the factors connecting and distinguishing the similar fact evidence and the evidence of the offences charged. This can include consideration of the following:
i. the proximity in time of the similar acts;
ii. the extent to which the other acts are similar in nature to the charged conduct;
iii. the number of occurrences of the similar acts;
iv. the circumstances surrounding or relating to the similar acts;
v. any distinctive feature(s) unifying the incidents;
vi. any intervening events;
vii. any other factors which would tend to support or rebut the underlying unity of the similar acts;
viii. the inflammatory nature of the similar acts;
ix. whether the Crown can prove its point with less prejudicial evidence;
x. any potential distraction on the trier of fact; and
xi. the potential for undue time consumption at trial.
[R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481, at paras. 82 – 83, (S.C.C.)]
Application of Framework to Case before the Court
Three Principle Considerations
Strength of the Proposed Evidence
[16] The Crown at the stage of admissibility need only establish a case sufficiently strong to support the inferences it is advancing. The ultimate weight of the evidence is decided at trial: R. v. Handy, at para. 102 and R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 39, (S.C.C.).
[17] The Crown argues it can make certain inferences based on C.S.’s admissions in his guilty plea related to his conduct, together with the evidence of G.S. and V.S. and other witnesses. Those inferences will be addressed below.
Identification of the Live Issue
[18] The Crown anticipates C.S. will deny committing the offences before the court. This puts the Crown to the task of proving the actus reus through establishing the credibility of G.S. and V.S. A determination of the probative value of the evidence of the complainants before the court in relation to the facts associated with the guilty plea rests on the unlikelihood that the complainants would assert similar conduct by C.S. unless that conduct really happened.
[19] For reasons that will become clearer later, I find a comparison of the proposed similar fact situations to the facts of the allegations before the court puts the Crown is in a position to make the reasonable inference that C.S. has a situation-specific propensity to seek out young, females connected by family relationships.
[20] This inference is based, for instance, on the fact that: C.S. would commit the sexual offences in a room in a private residence, an exception being when he kissed V.S. outside the home on the driveway; he would approach the girls in vulnerable positions (e.g. complainant alone on the way to the shower; complainant in basement alone with back turned as C.S. sneaks up; complainant cornered on stairway landing out of sight of others; complainant in bed recuperating from surgery); all four complainants were outside the supervision of other adults; and C.S. was in a position of trust in relation to all four complainants.
[21] I find for the purposes of considering the admissibility of the proposed similar fact evidence, the Crown has established a sufficiently strong case. This is not a decision as to what weight the similar fact evidence will ultimately receive. That decision is left for trial.
The Required Degree of Similarity
[22] The main determinant of probative value is the connectedness or nexus between the proposed similar facts and the facts alleged. The degree of similarity is driven by the particular issues in the case, why the evidence is sought to be introduced and the evidentiary context: R. v. Handy, at paras. 76 – 80.
[23] Courts have given special attention when looking at similarities and dissimilarities with sexual offences. It has been held that while similarities and dissimilarities are relevant considerations, they may not be as compelling as the “circumstances surrounding the incident.” Charron, J.A., as she then was, for the Ontario Court of Appeal, put it this way:
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 the 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.
It is important to consider not only the acts themselves but all the circumstances in order to assess what similarities, if any, exist between the discreditable conduct and the alleged offence and whether these similarities give the evidence probative value. Dissimilarities have to be considered in the same light in order to determine whether or not they detract from the probative value of the evidence.
[[R. v. L.B.; M.A.G., 1997 3187 (ON CA), [1997] O.J. No. 3042, at paras. 37 – 39 (Ont. C.A.)]](https://www.canlii.org/en/on/onca/doc/1997/1997canlii3187/1997canlii3187.html)
[24] This perspective was adopted by a later Ontario Court of Appeal decision:
Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events compared … The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred.
[[R. v. J.M., 2010 ONCA 117, [2010] O.J. No. 585, at para. 91, (Ont. C.A.)]](https://www.canlii.org/en/on/onca/doc/2010/2010onca117/2010onca117.html)
[25] I find a focus on the circumstances in which the acts occurred is appropriate to an analysis of the sexual offences in the case at hand.
[26] A comparative look at “the circumstances” as between the proposed similar facts and the alleged acts, rather than a focus on “the particularities of the acts”, means centring attention on the general substance of the acts being compared. I find the circumstances of the proposed similar acts and the alleged acts have circumstantial substance in common. For instance:
• C.S. directed his attention to teenage girls who had familial relationships to him. G.S. and V.S. were his nieces. C.H. and D.H. were his stepdaughters.
• He occupied positions of trust with each of these young girls.
• In general, with both the proposed similar acts and the alleged acts, C.S. took advantage of circumstances in private homes when no other adult or other person was nearby or at home to observe his conduct and protect the girls.
• The girls were vulnerable to him as an adult in a position of trust which was exacerbated by the particular scenarios he created or entered into with them – naked, wrapped in a towel near the bathroom; with back turned sitting in a basement alone when he sneaked up; cornered on a stairway landing alone; recuperating in bed or asleep while left in C.S.’s care; taking advantage of improperly rubbing lotion on legs and masturbating in front of D.H. when no other adults were at home to protect her.
[27] While the dissimilarities are certainly relevant to the analysis, over-emphasis on the dissimilarities in details, like the location of assaults, mode of assaults, whether C.S. resided at the location of the assaults, detracts from an appreciation of the broader similarities in substance. On the whole, and in the totality of the evidence, I find the dissimilarities are of limited consequence to the probative value of the proposed similar facts: R. v. J.M., at paras. 3 – 5 and 91
[28] The allegation of rape by G.S. stands out as more serious than and dissimilar to all the other sexual offences. However, as discussed above, the circumstances of the rape were similar to the other sexual offences. Despite the difference in degree of the sexual assaults there are numerous similarities: [R. v. Morin, [2005] O.J. No. 4402, at paras. 2-3, (Ont. C.A.); R. v. Burke, Ont. Ct Appeal, August 29, 2005, at para. 11 and 14]
[29] The kiss by C.S. outside the home stands out as dissimilar to the proposed similar fact sexual offences which took place inside a private home. However, what the kiss had in common with the proposed similar acts is that C.S. took V.S. by surprise and used his position of authority to take advantage of her as he did with C.H. and D.H. It can be inferred that C.S. must have realized that the neighbours would not be able to know the nature of that kiss. It might have looked quite innocent. Neighbours would not know he put his tongue in her mouth. They would not know the context of C.S.’s relationship with V.S. C.S. was still keeping private what was actually going on even though it took place outside.
[30] Apart from the kiss taking place outside of the home, it has many of the features of the incidents with C.H. and D.H. Despite the fact this assault took place in a different environment there are important similarities: [R. v. Morin, at paras. 2 - 3].
[31] C.S. did not live at the home of G.S. and V.S. He visited on weekends. But he lived at the home of C.H. and D.H. This is dissimilar to the facts related to the alleged acts. However, again, I find this distinction too is, as set out above, overwhelmed by the commonalities between the circumstances surrounding the proposed similar facts and the acts alleged before the court.
[32] C.S. did not bribe C.H. and D.H. with promises of money and shopping as he did with G.S. and V.S. But this difference too is outweighed by the similarities.
[33] One could even go so far as to point out that C.S. is a biological relative of G.S. and V.S. and was at best a “de facto” stepfather to C.H. and D.H. This is a distinction that I also find has little effect on the probative value of the proposed similar facts. The girls’ mother left C.S. in charge of C.H.’s recovery after her surgery. He was present in the home after the mother left in the mornings. C.S. was in a position of trust in his relationships with both sets of girls.
Allegations of Collusion
[34] This factor concerns considering the improbability of coincidence in the similarity between the acts alleged before the court and the proposed similar facts. Collusion presents an alternative to coincidence and in so doing undermines the probative value of the proposed evidence and precludes its admissibility: R. v. Handy, at para. 110; R. v. Shearing, at para. 40 and R. v. J.M. at para. 90.
[35] If there is an “air of reality” to the allegation of collusion, the Crown has the task, on a balance of probabilities, to show the similar fact evidence is not tainted with collusion. Where the Crown succeeds in satisfying this admissibility threshold, it is for the trier of fact to determine the weight, if any, to be attributed to the similar fact evidence: R. v. Handy, at para. 112 and R. v. Shearing, at para. 40 – 41.
[36] Evidence of a “mere opportunity” for collusion is not sufficient. Courts have recognized that sexual offences involving numerous complainants are often marked with opportunity. However, courts have also clarified that it is concoction and collaboration, not mere contact that is at issue: R. v. Handy, at para. 111.
[37] The examination of collusion on this application concerns whether there is an “air of reality” to that allegation in relation to G.S. and V.S and C.H. and D.H. There is absolutely no evidence that G.S. and/or V.S. had any contact with C.H. and D.H., much less an opportunity to collude in their testimonies. G.S. and V.S. were told by their sister that C.S. had been arrested. That appears to be extent of their connection with the similar fact circumstances.
Connecting Factors
Proximity in Time
[38] There is a significant gap of 23 to 30 years between the proposed similar fact conduct and the offences before the court. The proposed similar facts which happened in 2007 occurred 23 to 30 years after the conduct alleged against C.S. The conduct alleged occurred from 1976 to 1984. The defence relied on cases that found the remoteness in time affected the probative value of the proposed similar fact evidence. Those cases dealt with similar fact evidence conduct that occurred before the conduct related to the charges before the court:
[39] The Supreme Court of Canada in R. v. Handy dealt with a lapse of time where the similar fact conduct happened before the conduct alleged. Binnie, J., as he then was, held:
Lapse in time opens up a greater possibility of character reform or “maturing out” personality change, and would tend to undermine the premise of continuity of character or disposition. Remoteness in time may also affect relevance and reliability.
[40] In R. v. Handy the proposed similar facts happened six years before the charges alleged against the accused.
[41] In R. v. Blake the proposed similar facts occurred nine and ten years before the offences alleged. The Ontario Court of Appeal in that case, referring to Binnie, J. in R. v. Handy, concluded that the distinguishing features (including remoteness in time) when compared with the identified similarities failed to establish a persuasive degree of connectedness: R. v. Blake (2003), 2003 13682 (ON CA), 181 C.C.C (3d) 169, at para. 69, (Ont. C.A.); affirmed, (2004), 2004 SCC 69, 188 C.C.C. (3d) 428 (S.C.C.). The similar fact evidence was excluded.
[42] The Crown also presented cases where the proposed similar facts occurred before the conduct alleged before the court. In these cases the evidence was admitted.
[43] In R. v. Jesse a conviction on sexual assault, sought to be admitted as similar fact, occurred 12 years before the sexual assault charged. The court found the very bizarre and unique similarities in the facts as between his prior conviction and the offence charged was a factor that connected the accused to the offences alleged. The court found the probative value sufficient to admit the similar fact evidence: R. v. Jesse, 2010 BCCA 108, [2010] B.C.J. No. 381 (B.C.C.A.)
[44] In R. v. L.B. the accused was charged with sexual assault on his stepdaughter. This was alleged to have been committed six to ten years before he was charged with the offences before the court. At trial the Crown sought to admit the evidence of three women, his biological daughters, who alleged sexual assaults 18 to 30 years before trial. Again, the proposed similar facts occurred before the charges before the court. The Ontario Court of Appeal admitted the evidence holding that “it boils down to a matter of common sense”: R. v. L.B., 1997 3187 (ON CA), [1997] O.J. No. 3042, at para. 38, (Ont. C.A.).
[45] That is a pre-Handy case and for this reason is of limited precedential value for not having available for its analysis the similar fact framework later developed by the Supreme Court. Perhaps, if decided post-Handy, the decision might have been different.
[46] The cases cited by both sides involve discreditable conduct that predated the charges alleged before the court. Understandably, discreditable conduct occurring prior to the charges before the court would be more susceptible to the possibility foreseen by Binnie, J. Binnie, J. was concerned that during the time lapse the accused could have undergone a “maturing out”, “a change in personality which would tend to undermine the premise of continuity of character or disposition.” The court held the longer the time lapse the greater its effect on the probative value of the proposed similar facts.
[47] This is clearly distinguishable from the situation in the case at hand. The concern about the accused reforming his character from the time of old accusations is not present in the case before me. If the facts related to his conviction are sufficiently similar to the alleged conduct, this suggests a continuity of the discreditable conduct over the extended period, not rehabilitation.
[48] I find, for reasons discussed above, that the agreed facts on the plea are sufficiently similar to the facts of the conduct alleged by G.S. and V.S., even though that conduct occurred 23 to 30 years before the conviction. From the perspective of admissibility, I also considered there is no evidence of intervening events that could affect the probative value of the similar fact evidence. It will be for the trier of fact to weigh the ultimate effect, if any, of the time lapse in arriving at a verdict.
Extent to which the Other Acts are Similar in Detail
[49] For reasons set out earlier, I find the facts in the proposed similar facts to be sufficiently similar to the alleged conduct. Except for the rape alleged by G.S., for example, the familial relationships of C.S. to the four complainants; the nature and extent of the touching of breasts and vagina; the lewd sexual remarks; the ages of the four complainants; except for the kiss outside the house, the locations of the conduct inside rooms and areas of private homes.
Number of Occurrences of Similar Acts
[50] Between the facts related to the convictions and the charges alleged before the court there are four individuals that were assaulted on numerous occasions.
Circumstances Surrounding or Related to the Similar Acts
[51] I addressed this factor above under the title “The Required Degree of Similarity”.
Distinctive Features Unifying the Incidents
[52] The precise details of C.S.’s conduct towards the complainants in relation to the conviction and the facts of his conduct related to the charges before the court are not identical. However, as addressed earlier, with sexual assaults the similarities in the “circumstances” surrounding the conduct often have more effect on a determination of probative value. I found this to be the case with the matter at hand.
[53] The defence submitted that the similarities are no more than generic: [R. v. Blake, at para. 67]. The submission is that the incidents related to the convictions do not contain sufficiently specific facts and details that could make them distinctive.
[54] I do not agree. The facts of the conduct read into the record on the plea have their own distinctiveness. For example, the brushing of C.H.’s breast while she was recuperating and being “in close proximity” to her vagina when she woke up; the improper rubbing of lotion on D.H.’s thigh moving towards her vagina; the masturbation in front of D.H.; and the lewd remarks, are not generic facts. These facts are particular to C.S.’s particular conduct with C.H. and D.H. They distinguish C.S.’s conduct from the conduct of the class of other offenders who pursue and abuse young girls with whom they have familial relations and with whom they are in a position of trust.
Intervening Events and Other Factors
[55] For reasons outlined, I found that the proposed similar facts are sufficient to raise the inferences that C.S. has a situation-specific propensity to seek out young females connected to him by family relationships. There is no evidence of any intervening events that in this regard undermine the probative value of the proposed similar facts.
Probative Value versus Prejudice
[56] The danger in admitting similar fact evidence rests in the possibility the jury may engage in improper reasoning in arriving at a verdict. There are two types of forbidden reasoning which must be considered – moral prejudice and reasoning prejudice: R. v. Handy, at para. 100 and R. v. Shearing, at para. 34.
[57] Moral prejudice is a forbidden chain of reasoning where guilt is inferred from general disposition or propensity.
[58] The complainants will testify at trial as to their treatment by C.S. It is anticipated they will have to explain in some form in their narratives what prompted them to go to the police and the reason for the delay in complaining. This is expected to bring into play the fact they knew C.S. had been arrested and that this was the reason they wanted to tell the police their stories.
[59] The Crown does not intend to call C.H. or D.H. to testify at trial. It intends only to read into the record the transcript of the plea. The fact the jury will not see or hear the potentially emotional and passionate evidence of those women, decreases the potential for the jury to engage in moral reasoning.
[60] I accept the Crown’s submission. I find that a strongly limiting instruction to the jury against the improper use of that evidence will further reduce the potential for moral reasoning.
[61] The danger presented by reasoning prejudice is that the jury may become confused or distracted from the charges before the court by a multiplicity of incidents. The jury may be distracted from its duty of carefully considering and deciding each charge separately: R. v. Handy, at para. 144 and R. v. Shearing, at para. 68.
[62] The Crown pointed out, and I agree, that irrespective of the outcome on this application, the jury will hear, as part of G.S.’s and V.S.’s narratives, about C.S. being arrested for sexual assaults. Also to be considered here is the level of complexity of the facts in the similar fact scenarios. I find the possibility of confusion or distraction will be restricted by the relatively simple set of facts related to the convictions.
[63] Again, a strong limiting instruction will aid in reducing the possibility for forbidden reasoning prejudice.
The Balancing of Probative Value and Prejudicial Effect
[64] The Ontario Court of Appeal raises a further concern with admitting similar fact evidence. R. v. J.T. refers to the risk of extrinsic similar acts carrying with them “inflammatory claims of greater gravity or moral depravity”: [R. v. J.T., at para. 14].
[65] I find this is not such a concern in the case at hand. The facts related to the convictions do not disclose acts by C.S. more reprehensible than the conduct related to the alleged charges. The most serious of the offences is the rape allegation before the court. The types of conduct related to the convictions are similar in seriousness to the other allegations before the court.
CONCLUSION
[66] I find on the totality of the evidence that the Crown has met its burden to prove that the probative value of the similar fact evidence outweighs the potential prejudicial effect. The similar fact evidence related to C.S.’s convictions in 2009 shall be admitted at trial.
B.A. ALLEN J.
Released: March 2, 2016
CITATION: R. v. C.S., 2016 ONSC 1770
COURT FILE NO.: CR-12-30000108-0000
DATE: 20160302
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
C. S.
Accused
REASONS FOR DECISION
(Similar fact application – prior convictions of accused)
B.A. ALLEN J.
Released: March 2, 2016