CITATION: R. v. J.W., 2017 ONSC 7729

COURT FILE NO.: CF-13-1943

DATE: 2017/12/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.W.

Meaghan Cunningham, for the Crown

Alan Brass, for the Accused

HEARD: November 16, 2017

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO s. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

RULING

other Discreditable Conduct

Similar Fact Evidence Application

corthorn j.

Introduction

[1] In the fall of 2012 and spring of 2013, J.W. operated a home daycare. Two of the children in his care during some or all of that period were D.B. (a girl, then 3.5 years old) and A.M. (a girl, then five years old). As a result of statements made by each of D.B. and A.M. in the spring of 2013, J.W. is charged with a number of sexual offences. The offences include invitation to sexual touching (section 152 of the Criminal Code), exposure of genital organs (section 173(2)), and sexual interference (section 151).

[2] The first two witnesses called on behalf of the Crown were C.F. and R.F., a married couple. As of the fall of 2016, they had, for approximately seven years, been living across the street from the home in which J.W. lived and out of which he had previously operated his home daycare.

[3] C.F. was retired and R.F. was working outside the home. C.F. testified as to observations she made of J.W.’s behaviour during three successive weekday mornings. R.F. testified as to his observations of J.W.’s behaviour on the third weekday morning.

[4] C.F. and R.F. both described J.W. sitting on or standing nearby a couch in the living room of J.W.’s home. The couch was located adjacent to the living room window and faced out towards the street. C.F. and R.F. both observed J.W. naked and masturbating. Photographs and video taken by C.F. or R.F. from their bedroom window on the second and third weekdays were entered in evidence.

[5] The Crown seeks to rely on the evidence of C.F. and R.F., the photographs taken by them, and the video recorded by R.F. as evidence of other discreditable conduct in support of the charges against J.W. with respect to each of D.B. and A.M. Defence counsel submits that the evidence does not meet the requirements for admissibility and must be excluded.

The Evidence

[6] C.F. and R.F. testified in the context of a blended voir dire. Defence counsel took no issues with either the reliability or credibility of C.F. and R.F.

[7] Both C.F. and R.F. testified that they enjoyed a good, neighbourly relationship with J.W., his spouse, and their children.

[8] Prior to retiring C.F. had worked for twenty-six years as a civil engineer with the military. Her final five years of work were as an executive within two departments of the Federal Government. C.F. presented as a capable and articulate individual. She had clearly been taken aback and distressed by the observations she made of J.W.’s conduct. Regardless, I found her evidence to be reliable.

[9] C.F.’s home is located directly across the street from J.W.’s home. The living room window of J.W.’s home is plainly visible from the window of the master bedroom in C.F.’s home. C.F. was aware in 2016 of the bail conditions pursuant to which J.W. was entitled to spend time in his family home, including during daytime hours.

[10] At approximately 10:25 a.m. on October 17, 2016, C.F. had occasion to look out from her bedroom window. She observed J.W. sitting on the couch, facing the living room window, and masturbating. J.W. was naked to his ankles.

[11] At approximately the same time on the morning of October 18, 2016, C.F. looked out her bedroom window. She observed J.W. standing between the couch and the living room window with one arm on the window. He was once again naked and masturbating. C.F. took a photograph of J.W.

[12] On both October 17 and 18, 2016, C.F. spoke to R.F. about what she had seen. C.F. showed R.F. the photograph taken on the morning of October 18, 2016. R.F. chose to stay home from work on October 19, 2016 out of concern for C.F. and given what had happened on the two previous mornings.

[13] R.F. is a civil engineer who, after a lengthy career in the military, is employed in the public sector. He was a reliable and credible witness.

[14] R.F. testified as to the communication with his spouse on October 17 and 18, 2016. He also testified as to the observations he made, the photographs he took, and the video he recorded—all on October 19, 2016.

[15] On the morning of October 19, 2016, C.F. once again observed J.W. in the living room window, naked and masturbating. R.F. made the same observations. He took photographs using his camera and with a Blackberry. He also used the Blackberry to take video footage of J.W. R.F. testified that at one point, he observed J.W. with a light coloured towel draped over his hand.

[16] During cross-examination both C.F. and R.F. testified that at no time did they observe children in the house. C.F. testified that no cars or pedestrians passed by the living room window on October 17 and 18, 2016. On October 19, 2016, C.F. observed a car or cars pass in front of J.W.’s house at least once; J.W. stepped back into the shadow at least once when a car passed by. R.F. testified that when he observed J.W. on October 19, 2016, if a car or pedestrian passed in front of J.W.’s home, J.W. backed away from the living room window.

Issues

[17] Evidence of discreditable conduct is presumptively inadmissible unless the Crown establishes, on a balance of probabilities, that the proposed evidence satisfies the following four-part test:

1. The conduct, which forms the subject matter of the proposed evidence, is that of the accused;

2. The proposed evidence is relevant and material;

3. The proposed evidence is discreditable to the accused; and

4. The probative value of the proposed evidence outweighs its prejudicial effect.

(See R. v. L.B., 1997 CanLII 3187 (ON CA), [1997] O.J. No. 3042, 35 O.R. (3d) 35 (C.A.), at para. 10.)

Issue No. 1 – Conduct of the Accused

[18] The threshold to be met under this part of the analysis is low: “[T]here must be some evidence” upon which the trial judge must be satisfied that the other conduct upon which the Crown seeks to rely is that of the accused (R. v. L.B., at para. 14, quoting from R. v. Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at 954).

[19] The quality of some of the photographs taken by R.F. is poor because of the reflection of sunlight on the living room window. There are, however, other photographs in which the subject is clearly J.W. On the basis of the evidence of C.F. and R.F., the photographs, and the video footage, I find that the evidence upon which the Crown seeks to rely is J.W.’s conduct. on October 17, 18, and 19, 2016. The first part of the four-part test is satisfied.

Issue No. 2 – Relevance and Materiality

[20] The Crown submits that J.W.’s conduct in October 2016 is relevant to the following issue at trial: Whether J.W. committed the acts as alleged by D.B. and A.M., or one or both of the girls (a) invented the conduct they described or (b) is mistaken as to who conducted himself as they have described. The evidence of each of D.B. and A.M. is set out in my earlier Ruling with respect to the admissibility of hearsay statements (2017 ONSC 6775). I shall not repeat the evidence in this Ruling.

[21] The Crown submits that the evidence of J.W.’s conduct in October 2016 increases the probability that each of D.B. and A.M. described real events versus imagined events or events about which they are mistaken. As a result, the evidence as to J.W.’s conduct in the fall of 2016 “has some tendency to advance the inquiry before the court” (R. v. L.B., at para 17).

[22] The Crown highlights the following similarities between J.W.’s conduct in the fall of 2016 and the events described by A.M. and D.B.:

• J.W. was naked;

• The act of masturbation;

• The location of the living room or more generally inside the home;

• The timing of events—during daytime hours; and

• In a setting in which J.W. could be seen by others.

[23] Defence counsel points to differences between J.W.’s conduct in the fall of 2016 and the events described by A.M. and D.B.—the most significant difference being that there is no evidence of children present in the home on any of the three days on which J.W. was observed by one or both of C.F. and R.F. As of 2016, J.W. was not operating a daycare in his home.

[24] Defence counsel argues that the conduct upon which the Crown seeks to rely does not have the degree of similarity required to satisfy the relevance and materiality component of the four-part test. Defence counsel submits that the conduct in the fall of 2016 is fundamentally dissimilar to the events described by A.M. and D.B.

[25] Defence counsel also relies on the timing of the other conduct—not only is it post-offence conduct, it occurred more than three years after the alleged events giving rise to the charges.

[26] The majority of the cases to which I was referred on this application provide examples of pre-offence conduct as the subject of a similar fact evidence or other discreditable conduct application. At paragraph 10 of its decision in R. v. L.B., the Ontario Court of Appeal referred to the trier of fact being assisted by evidence of how the accused acted before and subsequent to the date of the offence. There is no prohibition from considering post-offence conduct in the context of an application with respect to evidence of other discreditable conduct.

[27] The inferences the Crown requests be drawn are central to the analysis under the second part of the four-part test. The inferences are:

1. That A.M. described events that she witnessed as opposed to events that she imagined;

2. That A.M. is not mistaken in her description of J.W. as the man she observed rubbing his penis with his hand;

3. That A.M. is not mistaken as to the nature of the act she described J.W. carrying out—masturbating, including with a towel;

4. That D.B. is describing events that she witnessed as opposed to invented or about which she is mistaken; and

5. That D.B. is not mistaken as to the nature of the events she described including that J.W. walked around his home (a) naked, (b) in the middle of the day, and (c) in circumstances in which he could be seen by others.

[28] In summary, the Crown submits that the evidence of J.W.’s conduct in the fall of 2016 advances the accuracy and plausibility of the events described by each of D.B. and A.M. I agree, but only with respect to the events described by A.M.

a) Events Described by A.M.

[29] The similarities between J.W.’s conduct in the fall of 2016 and the events described by A.M. include location (the living room), use of or proximity to a particular piece of furniture (one of two couches in the living room), the act (masturbation with a hand), and ancillary items (occasional use of a towel). As a result of these similarities, I find that J.W.’s “modus operandi” in the fall of 2016 constitutes an “observed pattern of propensity operating in a closely defined and circumscribed context”. (See para. 90 of the decision of Binnie, J. in R. v. Handy, 2002 SCC 56, 2 S.C.R. 908.)

[30] A.M.’s evidence is that on one occasion J.W. invited her to touch his penis and she declined to do so. A.M.’s negative response and her presence in the living room on other occasions did not deter J.W. from carrying out the act of masturbation while A.M. watched movies.

[31] I am satisfied, on a balance of probabilities that the manifestation of J.W.’s particular distinctive propensity to masturbate, while naked, during daytime hours, and in the living room of the family home has a sufficient connection with the issues raised by the Crown. J.W.’s conduct in the fall of 2016 is relevant and material to the events described by A.M. The second part of the four-part test is satisfied.

b) Similarity to Events Described by D.B.

[32] The events described by D.B. do not involve J.W. masturbating and occurred in a child’s bedroom (i.e. not the living room) of the family home. There are some similarities between J.W.’s conduct in the fall of 2016 and the events described by D.B. For example, D.B. described J.W. being naked when he walked into her room.

[33] I am not satisfied that the conduct observed in the fall of 2016 supports the inference that the Crown requests be drawn. Significantly, the conduct observed by C.F. and R.F. does not support an inference that J.W. had a specific propensity to walk about the family home naked. I find that the act of being naked inside a particular room in the home, during the middle of the day, and with the potential to be seen by people passing by the outside of the home does not have a specific connection with or relation to the inferences the Crown put forward with respect to D.B. The evidence of J.W.’s conduct in the fall of 2016 is not relevant or material to the events described by D.B. The second part of the four-part test is not satisfied.

Issue No. 3 – ls Proposed Evidence of Discreditable Conduct?

[34] I agree with the Crown’s submission that J.W.’s conduct as observed by C.F. and R.F. in the fall of 2016 is discreditable conduct on J.W.’s part. The third part of the four-part test is satisfied.

Issue No. 4 – Probative Value v. Prejudicial Effect

[35] Given my findings with respect to Issue No. 2, I shall consider Issue No. 4 with respect only to the events described by A.M.

[36] In R. v. L.B., the Court of Appeal provided a framework within which to assess probative value (two factors) versus prejudicial effect (four factors).

a) Probative Value

[37] At paragraph 23 of its decision, the Court of Appeal said that the strength of the proposed evidence is to be considered on the basis of:

[i] the extent to which the proposed evidence supports the inference(s) sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and

[ii] the extent to which the matters it tends to prove are at issue in the proceedings.

[38] The events described by A.M. give rise to two charges against J.W.: a) invitation to touch (s. 152 of the Code); and b) exposure, for a sexual purpose, of genital organs to a person under the age of 16 (s. 173(2) of the Code).

[39] When addressing Issue No. 2, above, I highlighted the submission of defence counsel with respect to a fundamental difference between the proposed evidence and the events described by A.M.—namely the absence of any children inside the home when J.W. was observed in the living room window in the fall of 2016. The inferences I am asked to draw relate to the timing, location, and nature of the act described by A.M. I am not asked to draw an inference with respect to conduct in the presence of a child.

[40] I conclude that the proposed evidence, if admitted, is capable of raising each of the three inferences the Crown requests be drawn (see items 1, 2, and 3 in paragraph 26, above).

[41] Defence counsel raised the issue of reliability of the evidence of A.M. The proposed evidence and the inferences it supports with respect to the events described by A.M. are relevant and material to matters at issue in this trial. As a result the probative value of the proposed evidence is high (para. 40 of R. v. L.B.).

b) Prejudicial Effect

[42] At paragraph 24 of its decision in R. v. L.B., the Court of Appeal identified the following four factors to be considered with respect to prejudicial effect:

(i) how discreditable it is;

(ii) the extent to which it may support an inference of guilt based solely on bad character;

(iii) the extent to which it may confuse issues; and

(iv) the accused’s ability to respond to it.

[43] The conduct observed by C.F. and R.F. is less serious and less discreditable than the events described by A.M. The trial of this action is before a judge alone. As a result, the risk of either moral prejudice or reasoning prejudice is low. J.W. has the opportunity, if he chooses to exercise his right to testify, to respond to the evidence as to his conduct in 2016.

c) Summary

[44] I have weighed the factors for and against admissibility of the proposed evidence. I find that the probative value of the proposed evidence exceeds its prejudicial effect. The final part of the four-part test is satisfied with respect only to the inferences the Crown requests be drawn in relation to the events described by A.M.

Disposition

[45] The Crown’s application is granted in part. The proposed evidence is admissible for the purpose of the three inferences the Crown requests be drawn with respect to the events described by A.M. For the sake of clarity, I repeat those inferences:

1. That A.M. described events that she witnessed as opposed to events that she imagined;

2. That A.M. is not mistaken in her description of J.W. as the man she observed rubbing his penis with his hand; and

3. That A.M. is not mistaken as to the nature of the act she described J.W. carrying out—masturbating, including with a towel.

[46] The balance of the Crown’s application is dismissed.

Madam Justice Sylvia Corthorn

Released: December 28, 2017

CITATION: R. v. J.W., 2017 ONSC 7729

COURT FILE NO.: CR-13-1943

DATE: 2017/12/28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

J.W.

RULING

Other Discreditable Conduct

Similar Fact Evidence Application

Madam Justice Sylvia Corthorn

Released: December 28, 2017