R. v. C.S., 2016 ONSC 1838
COURT FILE NO.: CR-12-30000108-0000
DATE: 20160308
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 on cross-counts)
BACKGROUND
[1] This is a similar fact application involving a historical sexual assault case which spans 23 – 30 years, from June 1976 to December 1984. The application comes at the close of the Crown’s case. The accused, C.S., was originally indicted on five sexual offences in relation to two women when they were teenagers. On March 4, 2016, the Crown withdrew counts 4 and 5 in relation to G.S.
[2] C.S. is charged in relation to the complainant, G.S., with rape (count 1) and indecent assault (count 2). In relation to the complainant, V.S., he is charged with sexual assault (count 3).
THE APPLICATION
[3] The Crown seeks leave to have the evidence of each complainant apply to the allegations relating to the other complainant. The Crown submits the evidence should be admitted on the basis of the similarities between the facts related to G.S. and V.S.
EVIDENCE
On the Facts of the Charges before the Court
[4] G.S. and V.S. are sisters and C.S. is their uncle. C.S. is the complainants’ father’s brother. A summary of G.S.’s and V.S.’s evidence is as follows:
[5] The charges in relation to G.S. arise from incidents of indecent assault and an incident of rape which occurred when she was age 14 – 16.
[6] G.S. testified the acts of indecent assault involved groping and grabbing her breasts and vagina over her clothes when she was age 14 – 16. G.S. testified that C.S. would corner her on stairways in the home, press her against the wall, “feel her up” and grind his groin against her vagina while groping her breasts. He would whisper to her “that feels so good”. He would offer her money and to go shopping for clothes if she did not tell anyone about what he was doing. G.S. testified C.S. approached her from behind in the basement when no one else was around and groped her breasts. She further testified on many occasions C.S. would sexually accost her anytime there was no one else present, either on the stairways in the house or when no one was looking when passing her by. C.S. would also constantly make sexually lewd comments to her such as he would like to suck her vaginal area and her breasts.
[7] G.S. testified about one instance of vaginal rape that happened when she was age 14 – 15. She testified the rape occurred in the upstairs bathroom while other family members were in different areas of the home. G.S. testified she was naked, wrapped in a towel, and getting ready to take a shower. She entered the bathroom and attempted to close the door but felt someone pushing on it. It was C.S. pushing on the door. She told him to stop. He forced his way in, locked the door, restrained her against the wall and forced vaginal intercourse on her. G.S. testified she tried to fight him off but gave up.
[8] G.S. testified she did not tell anyone about the rape because she felt ashamed and humiliated. Those were not things people talked about in her house. G.S. testified C.S. warned her not tell anyone about this or they would both get into trouble. G.S. stated that she would just try to stay away from him after that.
[9] G.S. testified C.S. offered her $40 to $60 on occasions and offered that she could go shopping if she would let him do certain sexual things to her. Sometimes she took the money even though she knew what C.S. was doing was wrong.
[10] V.S. testified that the first incident of sexual impropriety by C.S. happened when she was about age 14 – 15. C.S. had just driven V.S. home from school. V.S. got out of the car and went over to the driver’s side to thank C.S. To her surprise, C.S. forcefully kissed her outside the home on the driveway, putting his tongue into her mouth. V.S. testified he would accost her on the landing of stairways in the home and feel her breasts and force his leg between her legs and press her against the wall and grind his groin against her vaginal area. Countless times whenever no one was present or looking when he had the opportunity, C.S. would rub up against her and touch her breasts and vaginal area.
[11] V.S. testified that C.S. would offer money and shopping to not tell anyone. C.S. never gave her any money.
[12] V.S. testified C.S. would constantly make lewd remarks like he wants “to screw her” and “suck her breasts and vaginal area”. She testified every chance he got he would touch her breasts and vagina. She stated she just had to try to keep away from him.
THE LAW GOVERNING SIMILAR FACT EVIDENCE
Basic Framework
[13] In R. v. Handy the Supreme Court of Canada established a framework for analyzing whether the probative value of similar fact evidence outweighs the prejudicial effect. The probative value may be evaluated in accordance with, but not limited to, 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 detail 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
[14] R. v. Handy proposes three principal criteria for consideration on the court’s admissibility review: the identification of the live issue; the degree of similarity; and the relative cogency of the connecting factors. At the admissibility stage the Crown is required only to demonstrate 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.).
[15] The Crown argues an inference can be drawn based on the evidence of G.S. and V.S that C.S. has a situation-specific propensity to seek out young females connected by family relationships, with respect to whom he is in a position of trust.
[16] I find for reasons set out more fully below that the fact situations in relation to G.S.’s and V.S.’s allegations support the inference the Crown wishes to draw.
[17] A brief summary of the evidence that supports the inference follows, for instance: G.S. and V.S were between ages 14 – 16 when the assaults were occurring; C.S. would constantly commit the sexual offences against the young girls in rooms in a private residence whenever he got a chance, when no one else was present, an exception being when he kissed V.S. outside the home; he would approach G.S. and V.S. in vulnerable positions, when no one was present (for example, G.S. alone, naked under a towel on her way to the shower; G.S. in basement alone with her back turned as C.S. sneaks up and touches her breasts); C.S. cornered G.S. and V.S. on stairway landings out of the sight of others and sexually abused them and; C.S. constantly made sexually lewd remarks to the girls; and C.S. took advantage of his position of trust as G.S.’s and V.S.’s uncle.
[18] I find for the purpose of admissibility the Crown has established a sufficiently strong case through the evidence of G.S. and V.S. This is not a decision as to what weight the similar fact evidence will ultimately receive. That decision is left for the jury.
Identification of the Live Issue
[19] C.S. is expected to deny committing the offences before the court. This puts the Crown to the task of proving the actus reus through G.S.’s and V.S.’s credibility. A determination of the probative value of the evidence as between the two complainants depends on what the likelihood would be that G.S. and V.S. would describe similar conduct by C.S. if that conduct did not actually happen.
The Required Degree of Similarity
[20] The main determinant of probative value is the connectedness or nexus between the similar facts. 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.
[21] Special attention has been given to cases where similarities and dissimilarities with sexual offences are under review. While similarities and dissimilarities in details 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)
[22] In a post-R. v. Handy case, the Ontario Court of Appeal made the following observations:
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)
[23] I find this is a case where attention to the circumstances surrounding the incidents is germane to the similar fact analysis.
[24] For instance:
• C.S. directed his attention to two teenage girls who had familial relationships to him. G.S. and V.S. were his nieces.
• As an uncle he was in a position of trust toward the girls which he took advantage of.
• For the most part, the facts related to both G.S. and V.S. disclose C.S accosted G.S. and V.S. on many occasions in the home when no other adult or other person was nearby to observe his conduct and protect the girls.
• C.S. constantly made lewd comments to both girls.
• C.S. would catch the girls in vulnerable situations, for example: G.S. was naked, wrapped in a towel and he locked her in the bathroom; when V.S. and G.S. were alone in a room or area of the house he would regularly touch their breasts and vaginas; C.S. would sneak up and corner each of G.S. and V.S. alone on a stairway landing.
• C.S. would bribe both G.S. and V.S. with money and going shopping not to tell anyone what he was doing and to induce them to let him do sexual things to them.
• Neither of the complainants herself approached anyone to report what C.S. was doing to them.
[25] The dissimilarities are relevant to the analysis. However, over-emphasizing the dissimilarities in details, like the different locations of the assaults, the precise type of assault, whether one girl received money for the bribes or not, or focusing on singular outstanding incidents, risks failing to appreciate the broader similarities in the substance of the incidents. Overall, I find that the dissimilarities between the facts of the incidents as between G.S. and V.S. are of limited consequence to probative value: R. v. J.M., at paras. 3 – 5 and 91.
[26] The major dissimilarities relate to the allegation of rape by G.S. and the allegation by V.S. about the kiss outside the home.
[27] I heard an earlier similar fact application before the commencement of the trial proper which involved evaluating the similarities between the facts C.S. pleaded on prior convictions unrelated to this case and the facts related to the incidents involving G.S. and V.S. In the decision on that application I made certain observations that are pertinent to this application.
[28] The allegation of rape by G.S. is no doubt a more severe sexual intrusion and in that way is dissimilar to all the other sexual offences against G.S. and V.S. However, the circumstances of the rape have features similar in some ways to the other sexual offences against G.S. and V.S. C.S. caught G.S. by surprise in a vulnerable position where no one else was present. 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 also stands out as dissimilar to the other sexual offences that occurred inside the privacy of the home. However, I find what the kiss had in common with the other discreditable conduct by C.S. is that C.S. took V.S. by surprise. He used his position of authority to take advantage of her as he did with the other incidents.
[30] I found it can be inferred that C.S. must have realized that 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 also able to keep secret what was actually going on even though it took place outside. Apart from the kiss taking place outside of the home, it has many of the features of the other incidents involving G.S. and V.S. Despite the fact this assault took place in a different environment there are important similarities: [R. v. Morin, at paras. 2 - 3].
[31] V.S. did not receive any bribe money from C.S. G.S. did receive on some occasions $40 and $60. I find this difference is outweighed by the similarities. The fact C.S. offered bribes to them both is what is critical.
[32] C.S. did not warn V.S. they would both get into trouble if she told anyone about what he was doing. This again is a dissimilarity I find is of little consequence to probative value.
Allegation of Collusion
The Legal Principles
[33] A finding on collusion is concerned with the improbability of coincidence in the similarity between the proposed similar acts. Collusion stands as an alternative to coincidence and in so doing undermines the probative value of the proposed similar 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.
[34] If there is an “air of reality” to an allegation of collusion the task passes to the Crown to establish on a balance of probabilities that the similar fact evidence is not tainted with collusion. If the Crown succeeds on this threshold level it goes to 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.
[35] Evidence of a “mere opportunity” for collusion is not sufficient. Courts have recognized that sexual offences involving numerous complainants are often marked with opportunity. Courts have also clarified that it is concoction and collaboration not mere contact that is at issue: R. v. Handy, at para. 111.
The Evidence
[36] The question here is whether there is an “air of reality” to that allegation in relation to G.S. and V.S.
[37] There is evidence that G.S. and V.S had the “opportunity” to collude. They had “contact” with each other before they went to the police. There is an “air of reality” to the allegation. To admit the facts of G.S.’s counts and V.S.’s counts in support of each other the Crown must prove on a balance of probabilities they did not concoct their stories against C.S.
[38] The Crown argues there is evidence only of contact between them and an opportunity to collude. But there is no evidence that G.S. and V.S. conspired against C.S. by concocting false stories against him.
[39] In 2007, G.S.’s and V.S.’s sister sent G.S. an email or phoned her at work one day and asked her to guess who just got arrested or charged with messing with young girls. C.S. had been arrested in 2007 for sexual offences he committed in 2007 against two teenage girls who were his stepdaughters. He pleaded guilty to those charges in 2009.
[40] Soon after the email or phone call from the sister, G.S. and V.S. met together for dinner with their sister at the sister’s home. Both G.S. and V.S. testified this is the first time they each heard that C.S. had sexually abused the others. Both women testified about “light bulbs going off”. How they explained this is that memories of their abuse began flooding back. Both G.S. and V.S. testified they had attempted through the years to put these bad memories out of their minds. They eventually got married and had their own families. They wanted to get on with their lives.
[41] Both G.S. and V.S. testified there were certain triggering events when the memories would come back such as if they saw C.S. They both stated that from their teenage to adult years they just tried to stay away from him.
[42] It appears from both G.S’s and V.S.’s testimonies that they did not get into great details at their sister’s home that day in discussing their respective abuse by C.S. G.S. told about the rape. They shared some other experiences and exclaimed that what the others spoke of had happened to them too.
[43] Both G.S. and V.S. explained that in their family, especially in the context of 30 years ago, no one was to ever speak of sexual things. There were no talks with parents or discussions at schools about sex from which they could receive support. They both testified they felt shame and embarrassment and kept their experiences with C.S. a secret from each other and everyone else for years. G.S. testified that until today she does not know the details of V.S.’s abuse. It is just not a topic they want to talk about.
[44] G.S. and V.S. decided to go to the police. Their sister supported them in this decision. The sister indicated she had gathered a list of others who as young girls had been molested by C.S. There is no evidence either G.S. or V.S. saw such a list or that it was acted upon. G.S. and V.S. went to the police on February 4, 2008 and were interviewed separately on that day. The sister was not interviewed.
[45] Defence counsel referred to inconsistencies in the evidence which, according to the defence, suggest there was more opportunity to collude than the complainants were willing to admit.
[46] Defence counsel focused on inconsistency in the evidence as to whether, after the dinner meeting at the sister’s house, G.S. and V.S. spoke about their abuse with each other. At trial G.S. testified she never spoke about the abuse after the dinner before going to the police. At the preliminary inquiry on June 16, 2012, G.S. said she had talked about the abuse a lot. V.S. testified she did not recall talking about the abuse after the dinner and before going to the police and said she thought G.S. was wrong about this.
[47] Defence counsel also pointed to inconsistency in the evidence about transportation to the police station. V.S. stated she drove herself alone to the interview. G.S. testified V.S. drove her to the police station and drove her back home after the interview. G.S. testified that on the way to the police station they talked in general terms about what C.S. had done to them. She said they did not get into details.
[48] The defence submits G.S. and V.S. colluded with each other and concocted stories about C.S. They conspired to get C.S. into trouble with the police.
[49] The defence’s argument is that G.S. and V.S. hated their father for being a poor father, for mistreating their mother and for moving their mother and younger brother back to Dominica. The defence pointed out, and both complainants agreed, that their father and C.S. look very much alike. The suggestion here is that their likeness inspired the daughters to get C.S. into trouble with the police because they hated their look-alike father.
[50] Both G.S. and V.S. admitted they did not like how their father conducted himself as a father and husband. They admitted not having any contact with him. They do not want anything to do with him. This, they contend, has nothing to do with their feelings about C.S. Neither would accept the proposition that they hated their father, although V.S. admitted she did not like members of the father’s family and wanted nothing to do with them ever. G.S. had a different view of the family. She has continued to have contact with some of his relatives.
Conclusion on Collusion
[51] I agree with the Crown’s position. G.S. and V.S. would reasonably talk to each other about their experiences. It makes sense that when they heard about the experiences of C.S.’s stepdaughters that would dredge up unpleasant memories of their own experiences. I do not find it suggestive of collusion, as defence counsel contends, that G.S. and V.S. used the same expressions − that “light bulbs went off” − to describe the resurgence of their memories. They are sisters. They are very close. They talk a lot. This does not alone show collusion.
[52] Once they found out about each other’s experiences, it would be more unusual if they did not speak about it with each other. From their own evidence, they never even received support from their parents when the parents found out. In fact, the father blamed them for letting C.S. abuse them. The family members were close with the extended family getting together every weekend to socialize at the parents’ home. It is understandable there would be limited room in this context for young girls to tell on Uncle C.S. Further, the schools never addressed these problems. G.S. and V.S. had to keep the abuse to themselves for years.
[53] Then finally they had each other and the sister to talk with about what had been, before then, unmentionable. I therefore do not find that collusion is the only reasonable inference to be drawn from G.S. and V.S. talking to each other.
[54] The connection between G.S.’s and V.S.’s dislike for their father and making up lies about C.S. because of this is at best tenuous. Both denied hating their father. V.S. was very vocal at trial in saying she has absolutely nothing to gain from this long, arduous, and painful criminal process. She testified persuasively that their intention when she and G.S. decided to go to the police, some 30 years after their own abuse, was only to add their voices to help the other girls. V.S. bemoaned that had she been able to speak up earlier she might have spared other young girls from C.S.’s abuse. V.S. stated that at that time she did not expect, and was not aware, that criminal charges could be brought so many years later. V.S. emphasized that this was not their intention.
[55] I find G.S.’s and V.S.’s evidence convincing. There is no persuasive evidence of collusion, of G.S. and V.S. conspiring and concocting false stories to get C.S. into trouble with the police. They say they have no reason to do this. No persuasive evidence has been presented to suggest any motive G.S. and V.S. would have to set out to have C.S. arrested. The complainants found it ridiculous the proposition that they would go after C.S. because they hate their look-alike father. I cannot say I disagree with that sentiment.
[56] I find the relatively minor inconsistencies in the evidence are of little consequence when one considers the years that have passed since G.S. and V.S. spoke to the police (seven years) and testified at the preliminary hearing (four years) and the decades’ longer time that has passed since they were abused. This, combined with the embarrassing and sensitive subject matter, makes understandable their difficulties in remembering and consistently expressing the details of the experiences they wish they could forget.
[57] In the result, at this admissibility stage, I find the Crown has met its obligation to show on the balance of probabilities that G.S. and V.S. did not collude against C.S. The evidence tends on balance to show that coincidence explains the similarity in their stories, not collusion. It is for the jury to make the ultimate determination on collusion.
Connecting Factors
Proximity in Time
[58] The incidents involving G.S. and V.S. overlapped with each other over a period from 1976 to 1984. A lapse in time between the similar fact situations is a factor that can affect the probative value of the similar fact evidence. The longer the lapse in time is, the greater the impact. In R. v. Handy, 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.
[59] G.S.’s and V.S.’s evidence is that there were many incidents of abuse over this period, C.S. abusing them whenever he had an opportunity. I do not find there is any time lapse that would appreciably affect the probative value of the similar facts.
Extent to which the Other Acts are Similar in Detail
[60] For reasons set out earlier, I find the facts as between G.S.’s and V.S.’s allegations to be sufficiently similar. Apart from the rape alleged by G.S. and the kiss alleged by V.S., the other facts stand out as common to both complainants, for example: the complainants’ family relationship to C.S.; the nature and extent of the touching of breasts and vagina; the lewd sexual remarks; the ages of the complainants; except for the kiss outside the house, the locations of the conduct inside rooms and areas of private homes; and the bribery with money.
Number of Occurrences of Similar Acts
[61] The evidence is that G.S. and V.S. were sexually abused in various ways on numerous occasions over about 30 years.
Circumstances Surrounding or Related to the Similar Acts
[62] I addressed this factor above under the title “The Required Degree of Similarity”.
Distinctive Features Unifying the Incidents
[63] The precise details of C.S.’s conduct toward the complainants in relation to each of the complainants are not entirely identical. However, as addressed earlier, I find the similarities in the “circumstances surrounding the conduct” have a more critical effect on the determination of probative value in this case.
[64] The defence submitted that the similarities between the incidents related to G.S. and those involving V.S. are no more than generic: [R. v. Blake, at para. 67]. The submission is that the incidents do not contain sufficiently specific facts and details that could make them distinctive.
[65] C.S. committed a rape against G.S. He kissed V.S. on the mouth putting his tongue into her mouth. He pursued the girls cornering them alone on stairways and in rooms of a house and assaulted them. These facts are distinctive to C.S.’s conduct. I find the particularities in these facts 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 relationships and over whom they hold a position of trust.
Intervening Events and Other Factors
[66] For the reasons outlined, I found that the similar facts are sufficient to raise the inference 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 similar facts.
[67] The defence posits that G.S.’s and V.S.’s hatred for their father, which they deny, and his remarkable physical similarity to C.S., are intervening factors that affect the probative value of the similar facts. As noted above, there is no sense to the complainants being motivated by C.S.’s physical similarity to their father. And further, apart from the natural and expected dislike the complainants would have for their alleged abuser, I find nothing beyond this in the evidence to show animus sufficient to affect the probative value of the similar fact evidence.
Probative Value versus Prejudice
[68] The danger in admitting similar fact evidence resides 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.
[69] Moral prejudice is a forbidden chain of reasoning where guilt is inferred from general disposition or propensity.
[70] The complainants testified at trial as to their treatment by C.S. They explained in their testimonies what brought them to go to the police and the reason for their delay in complaining. The jury therefore came to know that C.S.’s arrest for other sexual assaults was the reason they wanted to tell the police their stories.
[71] The Crown will not be calling the stepdaughters C.S. abused to testify. The Crown intends only to read into the record the transcript containing the facts of the plea. Therefore, the jury will be spared experiencing the potentially emotional and passionate evidence of those women. This, I find, will reduce the potential for the jury to resort to prohibited moral reasoning.
[72] I accept the Crown’s submission that a strongly limiting instruction to the jury against the improper use of that evidence will further minimize the potential for moral reasoning.
[73] 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.
[74] Under consideration here is the level of complexity of the facts in the similar fact circumstances of each of the complainants. I find the possibility of confusion or distraction will be restricted by the relatively simple set of facts in this case.
[75] Again, a strongly limiting instruction will aid in reducing the possibility of forbidden reasoning prejudice.
The Balancing of Probative Value and Prejudicial Effect
[76] 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].
[77] This consideration applies most to the potential prejudicial effect the more serious rape charge involving G.S. could have on the less serious offences, the concern being that the rape could inflame the jury’s view toward the lesser charges.
[78] I find however that the number of other types of incidents and the similarities among them outweigh the difference with the singular incident involving the rape. I believe the strongly limiting jury instruction will reduce the prospect of prohibited reasoning.
CONCLUSION
[79] 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 evidence of one complainant can be considered by the jury in relation to the evidence relating to the other complainant.
B.A. ALLEN J.
Released: March 8, 2016
CITATION: R. v. C.S., 2016 ONSC 1838
COURT FILE NO.: CR-12-30000108-0000
DATE: 20160308
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
C. S.
Accused
REASONS FOR DECISION
(Similar fact application on cross-counts)
B.A. ALLEN J.
Released: March 8, 2016