Court File and Parties

Court File No.: CR-16-40000399-0000 Date: 2017-04-05 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – H.F. Accused

Counsel: Geleta McLoughlin, for the Crown Margaret Osadet & David D’Intino, for the Accused/Applicant Joanna Birenbaum, for the Complainant/Respondent

Heard: April 3, 2017

Publication Restrictions Notice

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the complainant shall not be published in any document, broadcast or transmission.

B.A. ALLEN J.

Reasons for Decision

(Similar fact application on cross-counts)

Background

[1] The Crown brings this cross-count similar fact application at the close of the Crown’s case.

[2] On June 16, 2015, HF was charged under the Criminal Code on three counts of sexual assault (s. 271), three counts of sexual interference (s. 151) and on one count of invitation to sexual touching (s. 152) in relation to the complainant, LFR, HF’s stepdaughter. LFR alleges that HF sexually abused her on three different occasions between 2010 when she was age 11 and 2013 when she was age 13.

The Application

[3] The Crown seeks leave to have the evidence related to the three incidents apply to each other count. The Crown submits the evidence should be admitted on the basis of the similarities between the facts related to the three incidents.

Facts of the Three Incidents

[4] The first incident is alleged to have occurred at the home where LFR’s family lived in Toronto sometime between June 1, 2010 and July 31, 2010 when LFR was 11 or 12 years of age. LFR’s mother was working outside the home on the night shift at the time. LFR had gone to bed. According to LFR, about 20 minutes later, HF entered the room and lay on the bed beside her. He touched her breast under her shirt for about five minutes.

[5] LFR alleges the second incident occurred a few months later after the family moved to Pickering. A few days after the move LFR went to bed and fell asleep on the air mattress set up for her to sleep in the basement. She testified a man awakened her as he lay on top of her. She said she thought it was HF because he was the only man in the house. His breathing and his body weight made LFR believe it was HF on top of her with his chest against hers. He slid his hand under her shirt and squeezed her breast. HF then removed her underwear and digitally penetrated her. He removed his hand from her breast and tried to kiss her. She moved her head and his lips touched her jawline.

[6] The third incident occurred sometime between September 1, 2012 and July 1, 2013 when LFR was age 14. She testified HF picked her up from school early one day because she was ill. Her room was too sunny so she lay down on her mother’s bed. After a few minutes she heard HF enter the bedroom. She sat up on the bed. HF approached her and grabbed her hand. He then placed her hand in his shorts and forced her to touch his erect penis. She pulled her hand back and got up and left the room.

The Law Governing Similar Fact Evidence

Basic Framework

[7] The Supreme Court of Canada in R. v. Handy 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 SCC 56; 164 C.C.C. (3d) 481, at paras. 82 – 83, (S.C.C.))

Application of Framework to the Case before the Court

Three Principal Considerations

[8] R. v. Handy presents 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.

[9] 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.)).

[10] The Crown argues an inference can be drawn based on the evidence related to the three incidents that HF has a situation-specific propensity to seek out his vulnerable young stepdaughter when her mother was not home to protect her.

[11] There are similarities and dissimilarities amongst the facts of the three incidents.

[12] The similarities are:

• The three incidents happened in family homes in a sleeping area and in bedrooms;
• LFR was a young girl during each incident, between the ages of 11 and 14;
• LFR was vulnerable in that she was young and HF was in a position of trust over her as her stepfather;
• HF committed each offence when the mother was at work;
• LFR would either be alone with HF, as was the case with the third incident; or other persons would be nearby but asleep as with the first and second incidents.

[13] The dissimilarities are also important to consider:

• During the first incident HF lay beside LFR on the bed, during the second incident he lay on top of her, and during the third incident HF and LFR were not both on the bed;
• The first and second incidents occurred in LFR’s sleeping areas and the third incident happened in the mother’s bedroom;
• During the second incident HF removed LFR’s pants and did not do so during the first and third incidents;
• HF digitally penetrated LFR during the second incident but did not do this during the other two incidents;
• HF attempted to kiss LFR during the second incident but did not do this during the other incidents;
• During the third incident HF was standing next to the bed where LFR was sitting and forced her hand into his shorts and forced her to touch his erect penis;
• The first two incidents occurred during the night when LFR was in bed and the third incident occurred during the daytime after HF picked LFR up at school.

Identification of the Live Issue

[14] It is anticipated that HF will deny committing the offences before the court. The Crown must therefore prove the actus reus of the offences through LFR’s credibility. A determination of the probative value of the evidence as between the three incidents depends on what the likelihood would be that LFR would describe similar conduct by HF if that conduct did not actually happen.

[15] The issue in question stems from the allegations and possible defences. The Crown asserts a certain “system” of behaviour or “modus operandi” on the part of HF: being a person using his position of trust to abuse his young stepdaughter; taking the opportunity to commit the acts when the mother is not home; committing the acts in the bedrooms of the family homes; and committing the acts over a relatively short span of time. I find that this is a circumstance where a pattern of conduct occurred in a closely defined and limited context which creates some confidence that the inference can be reasonably drawn that the conduct took place: (R. v. Handy, at para. 90).

The Required Degree of Similarity

[16] 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).

[17] 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, drew the following conclusion:

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 ONCA 3187, [1997] O.J. No. 3042, at paras. 37 – 39, (Ont. C.A.))

[18] In a case decided after R. v. Handy, the Ontario Court of Appeal observed:

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.))

[19] I find the case before the court is such a case where attention to the circumstances surrounding the incidents is important to the similar fact analysis. The surrounding circumstances of HF committing the acts when LFR was a young person and he in a position of trust, when the mother was at work, and the acts being committed in the family home in bedrooms and sleeping areas are to my mind sufficiently compelling facts to strengthen the similarities between the incidents.

[20] Dissimilarities are relevant to the analysis. However overemphasizing the dissimilarities in details, like the different locations of the assaults, the precise type of assault, 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 as between the three incidents are of limited consequence to probative value: (R. v. J.M., 2010 ONCA 117, at paras. 3 – 5 and 91).

[21] The major dissimilarities in this case relate to the differences between the types of acts committed during each incident. There were acts committed in one incident that did not occur in the others; for instance, in regards to the touching (not squeezing) of the breast during the first incident, the squeezing of the breast and digital penetration and attempted kiss during the second incident and forcing LFR to touch his erect penis in the third incident.

[22] But I find despite the difference in the degree and nature of the sexual assaults there are sufficient similarities: (R. v. Morin, 2005 ONCA 800, [2005] O.J. No. 4402, at paras. 2 – 3, (Ont. C.A.); R. v. Burke, 2005 ONCA 630, Ont. C.A., August 29, 2005, at paras. 11 and 14).

Connecting Factors

Proximity in Time

[23] The three incidents happened roughly over a three-year period from 2010 to 2013. 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.

(R. v. Handy, at para. 122)

[24] The lapse in time was not expensive in this case. I do not find there is any time lapse that would appreciably affect the probative value of the similar facts.

Extent to which the Acts are Similar in Detail

[25] For reasons set out earlier, I find the facts as between the three alleged incidents to be sufficiently similar.

Number of Occurrences of Similar Acts

[26] The allegation is that there were three acts of sexual abuse by HF during an approximate three-year period.

Circumstances Surrounding or Related to the Similar Acts

[27] This factor is dealt with above under the title, “The Required Degree of Similarity”.

Distinctive Features Unifying the Incidents

[28] The precise details of HF’s conduct toward LFR during the three incidents are not entirely identical. However, as addressed earlier, I find the similarities in the “circumstances surrounding the conduct” have a meaningful effect on the determination of probative value in this case.

[29] The defence submitted that the similarities between the three incidents are no more than generic. The submission is that the incidents do not contain sufficiently specific facts and details that could make them distinctive.

[30] I looked at the Ontario Court of Appeal decision in R. v. Blake, 2003 ONCA 800 which found with two incidents of similar acts that apart from the generic similarity that all of the incidents involved touching children’s genitals, none of the incidents are similar in detail: (R. v. Blake, (2003) Docket C34751, November 28, 2003, at para. 69, (Ont. C.A.); aff’d R. v. Blake, 2004 SCC 69, [2004] 3 SCR 503 (S.C.C.)).

[31] It is clear that each case turns on its own facts. I find in the case before me that the distinctive features are more pronounced than the type of basic generic facts found in R. v. Blake. The fact of LFR’s young age, the occurrences happening at home in bedrooms during opportunities when the mother was absent, and HF being in a position of trust are distinctive features that move the facts from being simply generic. The time lapse in R. v. Blake between the similar acts and the acts before the court was much more extensive as well.

Intervening Events and Other Factors

[32] There are no intervening factors in the case before me.

Probative Value versus Prejudice

[33] The danger in admitting similar fact evidence resides in the possibility a 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).

[34] Moral prejudice is a forbidden chain of reasoning where guilt is inferred from general disposition or propensity. Although evidence of general disposition is not admissible more focussed reasoning that suggests an accused will do the very act at issue is permissible. Disposition may be considered a piece of circumstantial evidence when determining whether or not the accused committed the acts: (R. v. W.B., 2000 ONCA 5751, [2000] O.J. No. 2184, at para. 102, (Ont. C.A.)).

[35] Prejudice in this context stems from the risk of an unfocussed trial and a wrongful conviction because the trier of fact misused the evidence and drew an improper inference. The probative value of very morally repugnant evidence must be high due to the significant potential for prejudice: (R. v. C.R.B., 1990 SCC 142 (1990), 55 C.C.C. (3d) 1, at para 63, (S.C.C.)). With a judge alone trial moral prejudice is not as significant a risk as would be the case with a trial before a jury. A judge can instruct herself on the potentially improper use of the evidence: (R. v. T.B., 2009 ONCA 177, [2009] O.J. No. 751 (Ont. C.A.)).

[36] 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 concern with a jury is that 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).

[37] Again, this is not so much a worry when a judge is the trier of fact. The concern here is the level of complexity of the facts in the similar fact circumstances. Unduly lengthy trials can result in trials involving similar fact situations outside the offences charged. This is not a concern in the case at hand. The possibility of confusion or distraction will be restricted by the relatively simple set of facts in this case.

The Balancing of Probative Value and Prejudicial Effect

[38] The starting point with the balancing exercise is recognition that similar fact evidence is presumptively inadmissible. It is the Crown’s burden on a balance of probabilities to establish that the probative value of the tendered evidence on a live issue outweighs its prejudicial effect. There is no discretion to admit similar fact evidence where the prejudice outweighs the probative value: (R. v. Handy, at paras. 74, and 153). Similar fact evidence is not to be excluded simply because it tends to show the accused to be of a bad disposition. It is excluded only if it shows nothing more: (R. v. C.R.B., at para. 47).

Determination of Probative Value

[39] Probative value is determined under the Handy framework by considering: (a) the potential for collusion; (b) the issue in question; (c) the degree of similarity; and (d) the strength of the evidence.

[40] There is no issue of collusion in this case since there is only one complainant. The issue in question is whether the Crown can prove the actus reus of the charges before the court. I will not repeat the conclusions I discussed above on the degree of similarity.

[41] Looking at the strength of the case, I considered a submission made by the defence.

[42] The submission is that the Crown is seeking admission of the similar fact evidence simply to bolster the credibility of LFR. Such evidence is of course subject to an exclusionary rule. The case law however makes a distinction between admissibility of evidence on that basis and similar facts adduced to support the credibility of a witness where the similar facts, in this case among different incidents, have such common characteristics that it would be an affront to common sense to suggest that the similarities are due to coincidence: (R. v. F.F.B., 1993 SCC 167, [1993 1 S.C.R. 697, at para. 70 (S.C.C.) and R. v. L.B.; M.A.G., at para. 35).

[43] I find the similar facts in the case before me have sufficiently common characteristics as to not fall within the exclusionary rule as they are being adduced to show a pattern of conduct by HF. In the result I find the Crown has met its burden to prove the probative value of the similar fact evidence outweighs the potential prejudicial effect.

Conclusion

[44] The Crown has demonstrated a case sufficiently strong to support the inferences it is advancing, that the conduct alleged against HF took place. I conclude from the nature of the alleged acts, the circumstances surrounding the acts, their similarity to each other and their proximity in time that the circumstances are sufficiently compelling to warrant admission of the evidence on each count as evidence in relation to the other counts.

[45] By this decision I have determined only the admissibility of the similar fact evidence. I have not assessed the ultimate weight the similar fact evidence will be given. The determination as to weight, which includes assessments of credibility, will be made in the context of all the evidence adduced at trial.

B.A. ALLEN J. Released: April 5, 2017