R. v. Bartholomew, 2017 ONSC 6035
COURT FILE NO.: CR-16-50000660-0000
DATE: 20171010
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARTIN BARTHOLOMEW
Accused
Michael Wilson, for the Crown
Megan Savard & Andrew Guaglio, for the Accused
HEARD: October 4 and 5, 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 By order of this court, any information that could identify the complainant shall not be published in any document, broadcast or transmission.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
(Extrinsic Similar Fact Evidence Application)
BACKGROUND
The Charges
[1] The accused, Martin Bartholomew, is charged with nine counts of sexual assault and six counts of sexual interference. The complainant, KB, now age 26, alleges that during the period from about September 1, 1999 to February 2, 2004 when he was ages 9 to 14 in grades 6 to 8 Mr. Bartholomew committed the sexual acts against him. Mr. Bartholomew was an educational assistant at a middle school KB attended. Mr. Bartholomew’s duties included being a hall monitor and assisting with the lunchroom and gym.
[2] The first 12 counts concern allegations of sexual abuse in relation to the school, either inside the school, in the school yard or at lunch at a restaurant with Mr. Bartholomew returning KB to school after lunch. The similar fact evidence is founded in an allegation of sexual abuse against Mr. Bartholomew by another boy, MK, who attended the school at the same time as KB. The other three counts on the indictment involve allegations by KB of abuse at Mr. Bartholomew’s home.
THE EVIDENCE
The Incidents of Abuse of KB
[3] According to KB the sexual incidents escalated in nature from touching his pubic hairs, touching his penis, hugging him, rubbing KB’s groin and Mr. Bartholomew exposing his own penis in the beginning, to the more invasive acts of masturbating KB and fellatio on KB. Those incidents occurred in isolated areas at the school such as in the washroom and library, as well as in drive-thru lineups at fast food restaurants. Not in isolation, but in the school yard on one occasion, Mr. Bartholomew is alleged to have placed his hand in KB’s pocket and made contact with his penis.
[4] At the drive-thru line ups at fast food restaurants, Mr. Bartholomew would take KB from school to go to lunch. While they were waiting in the lineup in Mr. Bartholomew’s vehicle Mr. Bartholomew rubbed KB’s leg, touched his pubic hair and touched his penis. On another occasion Mr. Bartholomew reclined KB’s seat and masturbated him to the point of ejaculation. On another occasion when KB was in grade 8 Mr. Bartholomew drove KB to a fast food restaurant during the school lunch break. He rubbed KB’s penis, and once erect, Mr. Bartholomew leaned over and tried to put his mouth on KB’s penis. KB pushed him away. On yet another occasion at a fast food restaurant Mr. Bartholomew reclined KB’s seat and performed fellatio on him.
[5] At the fast food restaurants, Mr. Bartholomew would routinely purchase lunch for KB and give him money and return him to school while he was attending the middle school.
[6] During some of the abuse incidents Mr. Bartholomew is alleged to have referred to KB as “his boy”. He would say, “It’s alright. It’s alright”. “(You) shouldn’t worry.” After partially removing KB’s underwear and pants and touching his penis and buttocks Mr. Bartholomew told KB, “I like to see him (you) like that.”
[7] KB alleges that after he began attending high school Mr. Bartholomew continued to sexually abuse him. Starting in 2004 he took KB to his home in Brampton or Mississauga on about eight occasions. Sometimes Mr. Bartholomew would expose his own penis and at times put a condom on KB’s penis. From about 2007 or 2009 Mr. Bartholomew regularly met KB in retail store parking lots. KB would get into Mr. Bartholomew’s vehicle and Mr. Bartholomew would masturbate KB to ejaculation or perform fellatio on him.
Disclosure to Police of Abuse by Mr. Bartholomew
[8] In June 2015 the Toronto Police issued a media release announcing that Mr. Bartholomew had been arrested for sexually abusing a 13-year old boy at the same middle school. That boy attended the middle school at the same time as KB did. After KB learned of the arrest he decided to contact the police to report his abuse by Mr. Bartholomew.
The Similar Fact Evidence
[9] MK started attending the middle school in 2002 or 2003 at the age of 12 or 13. KB was attending the school at this time and became friends with MK. MK knew Mr. Bartholomew as a hall monitor at the school.
[10] There is one incident with Mr. Bartholomew involving MK that the Crown seeks to have admitted as similar fact evidence.
[11] The incident occurred in the boys’ gymnasium change room. MK was in the change room about to exit while Mr. Bartholomew was holding the door for students. As MK neared the door to exit he turned back into the change room to retrieve something from his gym bag. Mr. Bartholomew stopped him as he was about to leave the change room. They were the only two people in the change room. Mr. Bartholomew then pulled down MK’s pants and held his penis. Mr. Bartholomew stated words along the lines that he was just “checking” the penis to see if it was “okay”. It is alleged Mr. Bartholomew continued tell MK it is “okay.”
[12] MK indicated that he thought what Mr. Bartholomew had done to him was “weird” and that Mr. Bartholomew had been “too friendly with him.” MK said words expressing the feeling that he did not want to get into that situation again. There were no further sexual abuse episodes committed against MK by Mr. Bartholomew.
MK’s Disclosure of Abuse
To KB
[13] MK disclosed the abuse by Mr. Bartholomew to KB when they were in either grade 8 or 9. MK considered KB to be a friend so he felt comfortable telling him about his experience. The police called MK in for an interview in September 2016 after KB disclosed his name to the police. MK told the police he thought KB may have told him about his abuse by Mr. Bartholomew but could not remember what he said. MK said to the police that KB “didn’t really talk about it at all”. Similarly, at his preliminary inquiry, KB stated that he never disclosed to MK his abuse by Mr. Bartholomew.
To the Police
[14] In an interview with the police KB disclosed his abuse. However, he first disclosed the name of MK, as another boy who had been abused by Mr. Bartholomew, at his preliminary inquiry in August of 2016.
[15] KB refused to disclose MK’s name to the police. He said he would tell the police the identity of the other boy off the record. It seems that he never did that. There has been no explanation for why KB did not identify MK to the police. After KB’s testimony at the preliminary inquiry in September 2016, the police contacted MK and requested he make a statement about his abuse by Mr. Bartholomew.
KB’s Psychiatric Condition
[16] In July 2016, KB faced several charges before the Ontario Court of Justice. In that connection the Crown sought and the court ordered a psychiatric assessment of KB. Dr. Angus McDonald of the Centre for Addiction and Mental Health (“CAMH”) conducted the assessment and prepared an initial report dated August 4, 2016. A follow-up assessment dated August 29, 2016, concludes that KB suffers from a condition that makes it difficult for him to separate reality from imagined events. The assessor observed he also has a tendency to repeatedly contradict himself.
[17] The defence sought, on a third party records application before this court, the production of KB’s medical records for the purpose of obtaining an expert opinion on KB’s ability to be truthful. Defence counsel has notified the Crown of an intention to serve a notice of expert in respect to KB’s psychiatric condition.
THE LAW ON ADMISSION OF SIMILAR FACT EVIDENCE
Basic Framework
[18] Similar fact evidence is admitted on the basis of “an objective improbability of coincidence”. This evidence gains its probative value from the degree of similarity between the acts under consideration. The probative value of the similar fact evidence must outweigh the prejudicial effect: R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 44, (S.C.C.). Evidence of similar acts is presumptively inadmissible. The onus falls to the Crown to satisfy the trial judge on a balance of probabilities that the probative value of the evidence outweighs its potential prejudicial effect: R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302, at para. 48, (Ont. C.A.).
[19] R. v. Handy sets a framework for weighing the probative value of similar fact evidence against its potential prejudicial effect. The Court offers an indeterminate list of factors to be considered in evaluating probative value. Those pertinent to this case are:
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 evidence of the charged offences. This can include consideration of the following:
• the proximity in time of the similar acts;
• the extent to which the other acts are similar in detail to the charged conduct;
• the number of occurrences of the similar acts;
• the circumstances surrounding or relating to the similar acts;
• any distinctive feature(s) unifying the incidents;
• any intervening events;
• any other factors which would tend to support or rebut the underlying unity of the similar acts;
• any potential distraction on the trier of fact; and
• 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 the Case before the Court
Three Principal Considerations
[20] Handy presents three principal criteria for consideration on admissibility:
• the identification of the live issue;
• the degree of similarity; and
• the relative cogency of the connecting factors.
[21] The Crown at the admissibility stage 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.).
[22] It is the Crown’s position that an inference can be drawn from the similar fact evidence that Mr. Bartholomew has a situation-specific propensity to seek out and abuse young boys in isolated circumstances in relation to the school where he worked as an educational assistant.
Identification of the Live Issue
[23] The Crown argues the similar fact evidence is critical to determining:
a) whether the Crown has proven the actus reus of the offences at counts 1 to 12; and
b) whether KB’s allegations occurred in reality or were fantasy.
[24] The issue in this case is not the identity of the person who committed the abuse but the truthfulness of KB’s account of abuse. It is expected if Mr. Bartholomew testifies or calls other evidence that the evidence will be directed toward a denial that he committed the offences before the court. As the central issue the Crown must prove the actus reus of the offences and do that through establishing KB’s credibility. It is expected that if psychiatric evidence is proffered at trial it could potentially have an adverse impact on KB’s credibility.
[25] The similar fact evidence is critical to the Crown’s ability to establish the credibility of the allegations. That is, psychiatric evidence will likely be called to demonstrate KB’s inability to distinguish what is real from what is unreal – to show the abuse by Mr. Bartholomew is a fabrication born in fantasy.
[26] A determination of the probative value of the evidence as between the one incident related to MK and those related to KB depends on what the likelihood would be that KB and MK would describe similar conduct by Mr. Bartholomew if that conduct did not actually happen. If the similar fact evidence is found to be sufficiently similar it could potentially be a saving grace for KB’s credibility unless the psychiatric evidence if adduced is not persuasive.
[27] The credibility issue arises from the allegations and possible defences. The Crown asserts a certain type of behaviour or modus operandi by Mr. Bartholomew. The defence counters that the evidence sought to be admitted permits no such conclusion.
[28] The Crown’s position is based on the evidence that Mr. Bartholomew was a person using his position of authority at the school to abuse young boys under his authority; took the opportunity to commit the acts when he was alone with the boys in isolated areas (except the school yard incident); committed the acts in the school in a washroom, library and change room; committed the acts close in time over a relatively short period; and used language of reassurance with the boys.
[29] The question is whether this case presents with a situation 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 alleged conduct took place: R. v. Handy, at para. 90.
The Required Degree of Similarity
[30] 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.
[31] Special regard 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 3187 (ON CA), [1997] O.J. No. 3042, at paras. 37 – 39, (Ont. C.A.)
[32] In a case decided after 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.)
Similarities and Dissimilarities
[33] There are similarities and dissimilarities between the incidents involving KB and the one incident that involved MK.
[34] The similarities are:
• KB and MK were approximately the same age, being about age 9 and 10, when the abuse occurred;
• MK attended the school during the period KB attended there;
• Mr. Bartholomew was in a position of authority over the boys as an educational assistant;
• The incidents with KB (except the incident in the school yard) and the one with MK happened when the boys were in isolated locations;
• Mr. Bartholomew’s focus in the one incident with MK and the 12 incidents with KB was directed to looking at and handling the boys’ penises;
• Mr. Bartholomew created a reassuring atmosphere for each boy. He downplayed what he was doing to MK by saying he was just “checking” to see if his penis was “okay” and repeating to him everything is “okay”. With KB Mr. Bartholomew in the earlier incidents would tell KB, “It’s alright. It’s alright” and that he “shouldn’t worry”. I find an atmosphere of reassurance was created with both boys.
[35] The dissimilarities to consider are:
• Mr. Bartholomew committed only one incident of sexual abuse on MK and several incidents on KB;
• The abuse escalated from pulling down KB’s pants, touching KB’s penis and pubic hair to masturbating it and performing fellatio on KB and in the one incident with MK he pulled down his pants and held his penis;
• The abuse of KB took place off school property on several occasions at restaurants; and the incident with MK occurred in the boy’s change room at the school;
• Mr. Bartholomew provided KB food and money after the abuse but did not do this with MK;
• During the first incident with KB, Mr. Bartholomew referred to KB with possessive expressions referring to him as “his boy”; during the one incident with MK he did not do this.
[36] Decisions on similar fact evidence are by their nature fact and circumstance-specific. In line with the observations by the Ontario Court of Appeal in R. v. L.B and R. v. J.M., I find that the circumstances surrounding the incident with MK and the incidents with KB bear some attention.
[37] The fact that both victims were young boys going to the same school at the same time when Mr. Bartholomew was in a position of authority over them, I find, are important similarities. The surrounding circumstances of Mr. Bartholomew committing some of the acts against KB in isolated areas in the school, a washroom and library, and in an isolated change room with MK are also of some significance. The question is whether these are sufficiently compelling factors that strengthen the similarities between KB’s incidents and the similar fact incident.
[38] The Ontario Court of Appeal has cautioned in R. v. J.M. that 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: R. v. J.M., at paras. 3 – 5 and 91.
[39] The major dissimilarities in this case relate to the difference in the number and invasiveness of the incidents experienced by the boys and in the fact that several types of abuse were committed against KB. KB was also given meals and money after the incidents and MK was not. As noted earlier, the types of reassurance by Mr. Bartholomew may have differed as between what he said to KB and MK but I find, just the same, in the spirit of the comments there was reassurance with both boys.
[40] There was also dissimilarity in the fact the abuse of MK occurred in the change room in the school whereas KB’s abuse occurred in the library and washroom. As well, there were also no possessive references to MK being Mr. Bartholomew’s “boy” or statements about how he likes MK with his penis exposed. Unlike with KB, Mr. Bartholomew told MK he was just “checking” his penis to see if it was “okay.”
[41] In weighing the similarities against the dissimilarities, I take instruction from the Supreme Court in Shearing:
… [My] task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. … At an excessively microscopic level of generality, on the other hand, the drawing of similarities may be too facile. Where to draw the line is a matter of judgement.
[42] Despite the difference in the number of incidents and in the details as to comments to the boys by Mr. Bartholomew and the differences in venues and types of abuse I find the similar details and the similarities in the circumstances surrounding the incidents sufficiently probative: [R. v. Morin, [2005] O.J. No. 4402, at paras. 2 – 3, (Ont. C.A.); R. v. Burke, Ont. C.A., August 29, 2005, at paras. 11 and 14]. On the whole, I find that the dissimilarities in the facts as between the incidents of abuse of KB and the similar fact evidence to be of limited consequence to probative value: R. v. L.B., at para. 39.
Connecting Factors
Proximity in Time
[43] The abuse of MK occurred in 2002 or 2003 during the currency of KB’s abuse in relation to the school. As such there is no lapse in time between the similar fact situation and KB’s abuse that could affect the probative value of the similar fact evidence. As held in R. v. Handy:
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.
Extent to which the Acts are Similar in Detail
[44] I have already addressed the extent of similarity in the detail in the acts related to MK and KB and found the facts to be sufficiently similar.
Number of Occurrences of Similar Acts
[45] It bears some consideration that the similar fact evidence is comprised of only one incident. The Crown presented one case where the Ontario Court of Appeal upheld a decision by the trial judge where the similar fact evidence was comprised of one incident by one other victim.
[46] The Appeal Court deferred to the trial judge’s assessment of the similar fact evidence as probative of the truth of the evidence of the complainant who had suffered multiple incidents of sexual abuse. The Court held:
The value of the evidence and the weight to be attached to the similarities and/or dissimilarities are matters for the trial judge. We are not prepared to accept that the trial judge was in error in finding a sufficient degree of connection between the evidence of the two complainants. Considerable discretion must be accorded to trial judges who are charged with the delicate task of balancing the probative value of the evidence against the prejudicial effect.
[R. v. Morin, at para. 20]
[47] For reasons I believe I made clear above I find a sufficient degree of connection between the evidence of KB and MK.
Circumstances Surrounding or Related to the Similar Acts
[48] I have addressed that factor above under the title, “The Required Degree of Similarity”.
Distinctive Features Unifying the Incidents
[49] The defence submitted that the similarities between KB’s abuse and the similar fact incident are no more than generic. That is, there are insufficiently specific facts and details that could make them distinctive.
[50] In this regard I looked to the Ontario Court of Appeal decision in R. v. Blake where the Court excluded the similar fact evidence. The Court looked at acts alleged against the accused by the complainant and the similar fact incidents of two other victims of the accused. The Court concluded that, apart from the generic similarity all of the incidents that involved touching children’s genitals, none of the incidents were 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.).
[51] I find that the distinctive features in the case before me are more pronounced than the apparently non-specific type of details in R. v. Blake. The fact of the young ages of the two boys, that they were students in the school at the same time, the proximity in time of the acts, the focus on exposing and touching their penises, the commission of some of KB’s abuse in isolated rooms in the school and the fact of Mr. Bartholomew’s position of authority, I find, are distinctive features that separate the facts from being simply generic. As well, the time lapse in R. v. Blake between the acts was much greater.
Intervening Events and Other Factors
[52] There are no intervening factors in the case before me.
Probative Value versus Prejudice
[53] Well-known is the danger in admitting similar fact evidence in a jury trial – the risk of 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.
[54] Moral prejudice is a forbidden chain of reasoning where guilt is inferred from general disposition or propensity. Evidence of general disposition is not admissible. But 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 5751 (ON CA), [2000] O.J. No. 2184, at para. 102, (Ont. C.A.).
[55] 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. To be admitted the probative value of very morally repugnant evidence is required to be high due to the significant potential for prejudice: R. v. C.R.B. (1990), 1990 142 (SCC), 55 C.C.C. (3d) 1, at para 63, (S.C.C.).
[56] With a judge-alone trial, moral prejudice is not as significant a risk as with a trial before a jury. This is because a judge can instruct themselves on the potentially improper use of the evidence: R. v. T.B., 2009 ONCA 177, [2009] O.J. No. 751 (Ont. C.A.).
[57] Reasoning prejudice presents the danger 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.
[58] Again, this is not as great a concern 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 where they involve similar fact situations outside the offences charged. This is not a concern in the case at hand. The possibility of confusion or distraction is restricted by the relatively simple set of facts in this case. There is a singular similar fact incident involving one victim that has no intricate facts or details.
[59] The trial judge must engage in a balancing process. The probative value of the similar fact evidence must be weighed against the potential prejudicial effect.
[60] The starting point with the balancing exercise is the recognition that similar fact evidence is presumptively inadmissible. There is no discretion to admit similar fact evidence where the prejudice outweighs the probative value: R. v. Handy, at paras. 74, and 153. Further, 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
[61] 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.
[62] Collusion, which diminishes probative value, provides an alternative explanation to a coincidence of evidence coming from different witnesses. The defence raised the issue of collusion arguing that KB and MK are friends and have been so since their childhood.
[63] Where there is evidence of actual collusion it is the burden of the Crown to prove on a balance of probabilities that the similar fact evidence is not coloured by collusion. It is left to the trier of fact at trial to determine whether the evidence has been tainted by collusion.
[64] Courts have been clear that the “mere opportunity” for collusion is not enough: R. v. J.W., 2013 ONCA 89, (Ont. C.A.), at para. 42 and R. v. Burnie 2013 ONCA 112, at para. 41, (Ont. C.A.).
[65] The evidence is that MK told KB about his incident of abuse while they were still students at the middle school. MK said he thought KB may have told him about his abuse by Mr. Bartholomew but could not remember what KB said. He told the police KB “didn’t really talk about it at all”. Similarly, at his preliminary inquiry, KB stated that he never disclosed to MK his abuse by Mr. Bartholomew.
[66] There was no doubt an opportunity for collusion between KB and MK.
[67] I have addressed the factor of the issue in question.
[68] Regarding the strength of the case I considered a submission made by the defence.
[69] The defence argues the Crown is seeking admission of the similar fact evidence for the sole purpose of bolstering KB’s credibility. Such evidence is of course subject to the exclusionary rule that bars the use of oath-helping evidence. The case law however distinguishes between admissibility of evidence on that basis and similar facts adduced to support the credibility of a witness where the similar facts have such common characteristics it would be an affront to common sense to suggest that the similarities are due to coincidence. Similar fact evidence admitted for that purpose therefore does not violate the evidentiary rule: [R. v. F.F.B., 1993 167 (SCC), 1993 1 S.C.R. 697, at para. 70 (S.C.C.) and R. v. L.B., at para. 35.
[70] I have concluded that the similar facts in the case before me have sufficiently common characteristics as to not be caught by the exclusionary rule as they are being adduced to show a situation-specific propensity by Mr. Bartholomew to seek out young boys for sexual abuse.
Potential Prejudicial Effect
[71] The Crown concedes that the proposed similar fact evidence is prejudicial. The allegation that Mr. Bartholomew sexually abused two young boys could result in a conclusion that Mr. Bartholomew has a disreputable character. KB’s evidence alone raises that risk. However, the risk that the similar fact evidence will heighten the risk is minimized by the fact this is a judge-alone trial.
[72] Defence counsel raises further bases of prejudice.
[73] Mr. Bartholomew is being tried on MK’s allegations. The trial is scheduled for November of 2017 before the Ontario Court of Justice. Defence counsel argues if the similar fact evidence is admitted there is a possibility for inconsistent verdicts arising from different findings of fact on MK’s allegations.
[74] Defence counsel adds to this concern that she will also be forced to give advance notice to the Crown and MK at the trial before me of her strategy in cross-examining MK on his allegations, meaning she will employ the same strategy at the Ontario Court of Justice trial.
[75] Defence counsel further submits that the judge in the November trial will lose the advantage of an impromptu reaction by MK as expressed through his demeanor when he is asked questions because he will have been asked the same questions at the trial before me.
[76] As the Crown pointed out, and I agree, the prejudice contemplated in a similar fact admissibility hearing is prejudice to the defendant at the trial on which he is currently standing accused. The worry in a similar fact application is the danger of an accused being denied a fair trial if the impugned evidence is admitted. Clearly, the defence’s argument relates to another proceeding.
[77] But there is a way the problems the defence raises might be obviated. After disposition on the similar fact application the defence could waive Charter of Rights protection under s. 11(b) and request an adjournment of the trial before me until the conclusion of the November trial, citing as reasons for the request the prejudice concerns she has raised on this application.
[78] In considering defence counsel’s submission that she will be forced to reveal her cross-examination strategy, I note that I did not receive transcripts of testimony by MK at a preliminary inquiry. I am not sure whether he was cross-examined in that context. However, in the normal course the defence has the opportunity to cross-examine Crown witnesses at a preliminary inquiry where the defence’s strategy in cross-examining those witnesses is often to a large extent revealed. If defence counsel has cross-examined MK at the preliminary inquiry to that extent her strategy would already have been revealed which is the reality with the criminal litigation process.
[79] I also note in this regard that the similar fact evidence is not at all complicated. So the worry about pre-exposing an intricate defence strategy at the trial before me in advance of the November trial, I think, should not be so concerning. In view of the simple factual context the questions in cross-examination at the November trial may be within the realm of what would be anticipated in any event.
CONCLUSION
[80] I find the Crown has satisfied the onus to establish on a balance of probabilities that the probative value of the similar fact evidence outweighs its potential prejudicial effect. A sufficiently strong case has been demonstrated to support the inference the Crown is advancing that the conduct alleged against Mr. Bartholomew took place.
[81] 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.
[82] This decision has 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, I will make in the context of all the evidence adduced at trial.
DISPOSITION
[83] I grant the application. The similar fact evidence is admitted at trial.
B.A. ALLEN J.
Released: October 10, 2017
CITATION: R. v. Bartholomew, 2017 ONSC 6035
COURT FILE NO.: CR-16-50000660-0000
DATE: 20171010
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARTIN BARTHOLOMEW
Accused
REASONS FOR DECISION
(Extrinsic Similar Fact Evidence Application)
B.A. ALLEN J.
Released: October 10, 2017