Court File and Parties

CITATION: Regina v JK, 2016 ONSC 7163

COURT FILE NO.: CR-15-70000624

DATE: 20161121

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v JK

BEFORE: EM Morgan J.

COUNSEL: Emma Evans, for the Crown/Applicant

Steven Dallal, for the Defendant/Respondent

HEARD: November 14-16, 2016

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

CROWN’S APPLICATION – SIMILAR FACT EVIDENCE

[1] The accused is charged with sexual assault, assault, and a number of other offences. Counsel for the Crown seeks to adduce evidence of prior discreditable conduct by the accused.

[2] The prior conduct entails two other sexual assault charges – one in Thunder Bay in which the accused pled guilty, and one in Ottawa where the trial has yet to be scheduled. The Crown applies for permission to call the Ottawa Complainant and the Thunder Bay Complainant as witnesses in the present trial in order to put into evidence their testimony about the accused’s prior conduct.

I. The Crown’s theory

[3] The accused has apparently been without a fixed address for a number of years, drifting from place to place in different cities around the province. He met the Complainant in the present case in a homeless shelter in Toronto. Likewise, he met the Ottawa Complainant in a homeless shelter in that city. He met the Thunder Bay Complainant while riding on a Greyhound bus between cities on his way to visiting and, presumably, staying with his grandfather.

[4] The Crown’s theory is that the seeking out of vulnerable women in homeless shelters or long distance bus rides between addresses is part of the accused’s modus operandi and amounts to similar conduct in each case. In addition, the Crown contends that the accused had a short, intense relationship with each of the complainants, culminating in his moving in with them for a brief period of time (or, in the case of the Ottawa Complainant, seeking to move in with her when she left the shelter). The Crown argues that this short duration of very intense relationships, culminating in the sexual assault of each of the complainants when the relationship falters, is another strong similarity between the prior conduct and the conduct alleged in the present case.

[5] Finally, the Crown submits that the sexual assaults in each of the cases were accompanied by violence, and that this combination of sexual abuse other physical abuse is a hallmark of the accused’s behavior. It is the Crown’s view that the combination of sexual violence with other forms of physical violence makes the prior discreditable conduct very similar to the allegations in the present case.

II. The Handy analysis

[6] Counsel for the Crown and counsel for the defence agree that the framework for analyzing a question of similar fact evidence is found in R v Handy, 2002 SCC 56, [2002] 2 SCR 908. In short, evidence of the accused’s prior and unrelated acts is presumptively inadmissible, and this exclusionary rule includes his allegedly prior discreditable conduct. This evidence only becomes admissible where the Crown can establish on a balance of probabilities that the evidence is relevant and probative to an issue at trial, and that the “probative value exceeds prejudice, because the force of similar circumstances defies coincidence or other innocent explanation”: Handy, at para 47.

[7] Adopting the Handy framework, the first step in the analysis is assessing the probative value of the proposed evidence. This involves identification of the issue in the trial to which the evidence is relevant, analyzing the similarity and dissimilarity of that evidence to the currently alleged facts, and then consideration of the strength of the proposed evidence. If it is determined that the evidence has the requisite probative value, the analysis can proceed to the next stage of determining the prejudicial effect of the evidence on the trial and evaluating whether the probative value outweighs the prejudice.

a) Identification of relevant issues

[8] In her factum, counsel for the Crown sets out that the similar fact evidence is to be submitted in order to:

i) demonstrate a pattern of behaviour; specifically, the Respondent [the accused] has a propensity to exhibit jealousy and to attempt to control female domestic partners or women with whom he wishes to enter into a domestic partnership. He also has a propensity to physically and sexually assault women with whom he has a domestic relationship or with whom he wishes to have a domestic relationship;

ii) prove the actus reus of the offences;

iii) rebut the potential defence of consent or mistaken belief in consent; and

iv) rebut the potential defence of self-defence or accident.

[9] Defense counsel submits that while these are certainly issues in the trial, they are too generic to meet the test for admissibility of similar fact evidence. He reiterates the caution expressed in this regard in Handy, at para 115, that, “Care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown’s case.” Credibility on the issue of consent, or whether sexual intercourse occurred and constitutes the actus reus, are the type of things that are present in virtually all sexual assault cases and do not meet the test of relevance in the sense that they do not define a specific enough issue.

[10] Counsel for the defense also relies on the decision in R v RB 2003 CanLII 13682 (ON CA), [2003] OJ No 4589, aff’d 2004 SCC 69, [2004] 3 SCR 503, in which the Court of Appeal found that the “the trial judge relied primarily on generic similarities to the complainant’s evidence and did not consider the distinguishing features of the evidence.” He submits that a similar approach is proposed here by the Crown in attempting to adduce evidence of matters that are so common in these kinds of cases as to suggest an all-embracing propensity on the accused’s part; this, defense counsel submits, fails to heed the “broad gateway” caution as expressed by the Supreme Court in Handy.

[11] I agree with defense counsel that simply identifying the actus reus of the offense, or the need to rebut potential defenses, is too generalized a way of stating a relevant issue for the purpose of the Handy test. The opening for the otherwise prohibited evidence of prior discreditable conduct is a narrow one, R v JH, 2006 CanLII 40664 (ON CA), [2006] OJ No 4832, at para 34 (Ont CA), and it is problematic for the Crown to rest its argument broadly on matters that are common to most trials: R v Blake, 2003 CanLII 13682 (ON CA), [2003] OJ No 4589, at para 61 (Ont CA).

[12] That said, the circumstances surrounding the act can establish the necessary similarities even if there is nothing unique about the offending act itself: R v LB (1997), 1997 CanLII 3187 (ON CA), 35 OR (3d) 35, at paras 36-7 (Ont CA). In other words, “Cogency increases as the fact situation moves further to the specific end of the spectrum”: Handy, at para 87. The Crown must bring more than just propensity evidence that the accused commits crimes because he is a bad person; it must demonstrate that he has done this specific thing before.

[13] Here, the distinguishing factual features of the case are twofold. First, it is alleged that the accused exhibits jealous and controlling behaviour and short, intense cohabiting relationships with the complainants during the run-ups to the incidents of sexual assault. Secondly, it is alleged that he consistently combines sexual assaults with physical beatings. Both of these features of the current allegations and the previous cases are put forward by the Crown as particular issues that distinguish this case.

[14] I agree that jealousy, controlling behaviour, intense relationships of a short duration during which the accused cohabits with his victims, all amount to distinctive conduct. These are not generic facts found in most sexual assault cases. In this respect, the Crown has satisfied the burden of identifying “the live issue in the trial to which the evidence is said to relate”: Handy, at para 74.

[15] The question, therefore, becomes whether the prior conduct is in fact adequately similar to the conduct alleged against the accused here.

b) Similarities and dissimilarities of the proposed evidence

[16] In Handy, at para 82, the Supreme Court provided an illustrative list of factors that may be taken into account in assessing similarity and dissimilarity. These include proximity in time of the prior and current conduct, similarity in detail, the number of occurrences, the circumstances surrounding the offending act, its distinctive features, and any intervening events. The courts have gone on to clarify that the test is not one of “striking similarity”, especially where the identity of the accused is not in issue. Rather, “a principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement in the alleged similar acts or counts is unlikely to be the product of coincidence”: R v Arp 1998 CanLII 769 (SCC), [1998] 3 SCR 339, at para 45.

[17] The facts alleged against the accused on each of the occasions are, at this admissibility stage, assessed on a balance of probabilities: R v Thomas (2004) 2004 CanLII 33987 (ON CA), 72 OR (3d) 401, at para 49 (Ont CA). The question is whether the evidence is reasonably capable of belief and whether it is reasonably capable of supporting the inference sought: Handy, at paras 133-4.

[18] As the Supreme Court pointed out, “the search for similarities is a question of degree”: Handy, at para 127. No two cases are identical, but similar facts gain in cogency where they are repeated a number of times. Thus, the “Crown can legitimately argue for the cumulative effect of a string of ‘similar’ facts…[and] [a]n alleged pattern of conduct may gain strength in the number of instances that compose it”: Handy, at paras 127, 128.

[19] The Crown contends that the most obvious similarities are that with respect to all three witnesses – i.e. the present Complainant, the Ottawa Complainant, and the Thunder Bay Complainant – the accused has met a vulnerable person in a homeless shelter or equivalent context and has resided with them for a short duration before assaulting them. During this short but intense period, he is controlling of them and jealous about their relationships with other men.

[20] The defense says that although some similarities exist here and there, the dissimilarities outnumber the similarities and dilute the strength of the Crown’s argument. Defense counsel also submits that the Crown’s portrayal of what it alleges are salient facts is actually a mischaracterization of the accused’s circumstances and his relationship with the three complainants.

[21] In the first place, defense counsel points out that the accused did not meet the Thunder Bay Complainant in a homeless shelter. He met her on a Greyhound bus while he was travelling to Toronto to stay with his grandfather and she was going to her parents’ house. While the accused may have been transient at the time and was hoping to find shelter at his destination in Toronto, the Thunder Bay Complainant was not. She lived at home with her parents in a stable residential situation. To the extent that he ended up cohabiting with her for a short period of time, it was because the Thunder Bay Complainant and her family took him in. In other words, it was not the Thunder Bay Complainant that was vulnerable and homeless, it was the accused himself.

[22] As for the Ottawa Complainant, defense counsel observes that the accused did not have the same kind of short but intense relationship with her prior to the single incident of alleged assault, and that he had never moved in with her at all. In fact, counsel for the defense points out that the evidence from the Ottawa Complainant is that she had never been alone with the accused before the night in question. There was no controlling conduct of the type alleged by the present Complainant, as the accused had only ever met the Ottawa Complainant in a crowd of people. The accused and the Ottawa Complainant did not have the kind of relationship in which he could dictate to her where or when to move about; indeed, they had no actual one-to-one relationship at all.

[23] The accused did meet the Ottawa Complainant in a homeless shelter, but it is not the case that he went out of his way to stalk her or encounter her there since he was himself homeless at the time. The defense submits that the accused meets people in homeless shelters not because he seeks out homeless people, but because he is homeless and makes use of those shelters for himself. To say that meeting someone in a homeless shelter qualifies as “similar fact evidence” for the accused is simply to say that he meets people where he lives. Defense counsel argues that there is nothing distinctive about that.

[24] Moreover, the defense points out that even the Complainant in the present case does not fit within the circumstances that the Crown ascribes to all three women. While it is true that the accused met her in a Toronto homeless shelter, it was not because the Complainant was a homeless resident of that shelter and was therefore in a vulnerable situation with nowhere to go. The allegations in the case are, in fact, almost diametrically opposed to that scenario. The Complainant lived independently in an apartment of her own and only met the accused because she came to volunteer at the shelter. While the Complainant appears to have had some mental health issues, she was not homeless or unstable in the way that the Crown describes in that she had her own private, secure and stable living place.

[25] In addition, defense counsel submits that the allegations of violence raised by the three complainants are not particularly similar. The present Complainant alleges that she received a severe beating during the sexual assault, and that the accused so badly damaged her legs with repeated punches that she could not walk. The Thunder Bay Complainant, on the other hand, alleges that she was held down by the wrists during the sexual assault, but that she was not otherwise hit or battered in any way. The Ottawa Complainant, in contrast to both of the other women, does not claim to have been physically beaten at all during the course of the sexual assault. She had passed out and did not awake during the sexual offense; and when she did awake, she did not feel any particular bruising or injury beyond the fact that her underwear had been removed.

[26] In other words, the similarities are weak and are for the most part limited to the allegations of sexual assault. The Supreme Court of Canada stated in R v Shearing, 2002 SCC 58, [2002] 3 SCR 33, at para 48 that, “The cogency of the similar fact evidence…arise[s] from the repetitive and predictable nature of the appellant’s conduct in closely defined circumstances. There must therefore be shown a persuasive degree of connection between the similar fact evidence and the offence charged in order to be capable of raising the double inferences.”

[27] According to the Court in Handy, at para 76, the question is whether there is an objective improbability of coincidence between the facts of the prior two cases and the facts alleged here. Where the circumstances surrounding the offenses are for the most part dissimilar, the test of probative value has not been made out. It is not enough to say, in effect, that where there is smoke there is fire. Rather, the Crown must establish a pattern of conduct that is neither dissimilar nor equivocal in its similarity: Handy, at para 124.

c) Strength of the evidence

[28] In assessing probative value, another important factor to take into account is the strength of the evidence that the Crown seeks to introduce: Handy, at paras 133-4.

[29] Turning to the Ottawa case, all that can be said at this point is that the trial has not yet taken place. The accused has counsel and is defending that proceeding, and, accordingly, the facts here not been determined in any definitive way. While there has been a preliminary inquiry and a committal for trial on the charge of sexual assault, I would hesitate to say anything that might pre-judge the outcome of a case that is not itself before me. That could be highly prejudicial to the Ottawa trial still to come: R v Pearson, [2011] OJ No 1875, at para 14 (SCJ).

[30] I would take a moment to observe, however, that the Ottawa case is strictly one of ‘he said, she said’. The allegation is that the Ottawa Complainant and the accused wondered off alone in a secluded area. She is diabetic and had apparently not taken her insulin all day as she was locked out of her room at the shelter. It would seem that this caused her to pass out at some point during their walk. The Ottawa Complainant has said in her testimony to date that she felt nothing until she woke up alone some time later and noticed that her underwear had been removed. She took herself to a nearby hospital where she was examined and tested, and the accused’s DNA was found on her.

[31] The accused will doubtless contend that the sexual contact between them was consensual. Given that there are no other witnesses and that the Ottawa Complainant by her own narrative has no specific memory of the alleged assault, it is difficult to know what the Crown will or will not be able to prove. For present purposes, suffice it to say that the evidence of a witness who cannot say with any certainty what transpired is bound to be somewhat contentious.

[32] Where the similar fact evidence is strong it does not tend to distract the trier of fact by focusing on controversial circumstances for which the accused is not currently on trial: R v CPK, 2002 CanLII 23599 (ON CA), [2002] OJ No 4929, at para 33 (Ont CA). Here, by contrast, the still untried evidence of the Ottawa Complainant threatens to be a serious distraction to the present trial, potentially turning it into a trial within a trial in order to determine the veracity of the Ottawa facts before any inference can be drawn from them.

[33] As for the Thunder Bay case, that appears at first blush to be somewhat more reliable, as the accused pleaded guilty to the sexual assault and has already been sentenced and has served his time. While a guilty plea may not overcome the problem that the evidence is possibly too generic to be probative, R v OC [2006] OJ No 434 (Ont CA), it generally serves as sufficient evidence that the prior act was committed. Like a finding of guilt following a full trial, it can be challenged but there must be solid grounds on which to do so: R v Jesse, 2012 SCC 21, [2012] 1 SCR 716, at para 47.

[34] Defense counsel submits that the Thunder Bay case is precisely the type of case in which the guilty plea does not provide the kind of reliable evidence that it ordinarily should provide. He has provided me with a copy of the transcript of the proceedings in the Ontario Court of Justice in Thunder Bay, and points out that the proceeding appears to have been rather hasty and potentially flawed.

[35] The Court of Appeal has stated that guilty plea inquiries are mandatory; an accused must voluntarily and unequivocally admit the essential elements of the offense: R v GDM, 2011 ONCA 343, at para 54. However, upon review of the transcript in the Thunder Bay case it is difficult to say that the accused was unequivocal in this respect.

[36] The Thunder Bay transcripts show that the accused admitted some of the facts but specifically denied that the sexual assault took place. The judge hearing the plea then suggested that they go off the record to allow the accused to speak with counsel. When they came back on, the accused then stated in a curt, perfunctory way that he did everything he was accused of and wanted to get on with it.

[37] For present purposes, no one here is challenging the Thunder Bay guilty plea and I am certainly not in a position to question its validity. No appeal was taken and, as indicated, the accused was sentenced and has served his time.

[38] Nevertheless, it is incumbent on me to weigh the probative value of the guilty plea and the facts supposedly admitted therein. Quite frankly, it looks weak. One could surmise from the tone and dynamics of the plea inquiry, if not from the explicit words, that the accused pled guilty for the sake of sparing himself the inconvenience and psychological difficulty of going through a trial. The transcript of his statement to the Thunder Bay judge can be read as falling short of a genuine acknowledgment of guilt. The accused appears to have been pleading guilty to all charges, including the sexual assault, despite not being prepared to concede that he actually committed the sexual assault.

[39] As with the Ottawa Complainant, there is a distinct possibility – indeed, I would say a high probability – that if the Crown brings the Thunder Bay Complainant to testify, the present trial will be diverted into a mini-trial of the Thunder Bay charges. That strikes me as a situation which would best be avoided for any number of reasons. The Thunder Bay court may have gotten it right in accepting the plea or it may have gotten it wrong, but it is now water under the bridge and there is nothing to be gained by revisiting it.

III. Moral prejudice

[40] The weakness of the evidence in both the Ottawa and the Thunder Bay situations, combined with the significant dissimilarities between those cases and the present case, keeps the similar fact evidence proposed by the Crown from being very probative.

[41] Since the evidence is of little probative value, the prejudicial effect will be magnified in a way which will make the trial unfair. The testimony of the Ottawa Complainant and the Thunder Bay Complainant, if admitted into evidence, would provide general indication of propensity without an adequately specific factual foundation. This, in turn, could lead to the forbidden chain of reasoning in which the accused is tried on the basis of his supposed character and not on the basis of his actions.

IV. Disposition

[42] The Crown’s application to introduce similar fact evidence and to call the Ottawa Complainant and the Thunder Bay Complainant to testify at the present trial is denied.

Morgan J.

Date: November 21, 2016