R. v. J.W., 2017 ONSC 7740

COURT FILE NO.: CF-13-1943

DATE: 2017/12/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.W.

Meaghan Cunningham, for the Crown

Alan Brass, for the Accused

HEARD: December 18, 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COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.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

Count-to-Count 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 Crown submits that the allegations made by the girls are very similar and brings this application for a determination of admissibility on the basis of count-to-count similar fact evidence. The Crown requests that the evidence be admitted on a count-to-count basis in support of an inference that J.W. has a specific propensity to exploit his status as a daycare provider, by engaging in inappropriate sexual behaviour with very young girls in his care when alone with them during nap (quiet or movie) time. The suggested relevance is to the actus reus with respect to the offences with which J.W. is charged.

[3] Defence counsel requests that the application be dismissed because (a) there is not sufficient similarity between the evidence of each of D.B. and A.M., (b) the evidence does not demonstrate that J.W. has a propensity to engage in a unique or particular type of sexual activity, and (c) there exists the possibility of collusion between D.B. and A.M.

[4] The evidence in support of the allegations made by each of the girls is set out in detail in my earlier ruling with respect to the admissibility of hearsay statements (2017 ONSC 6775). I have summarized below the events described by each of the girls.

[5] D.B.’s evidence is that on two occasions while she was at J.W.’s home daycare, J.W. came to the room in which she was spending nap or quiet time. D.B. was in a different room on each occasion. On both occasions, when J.W. entered the room he was naked. J.W. put his penis in D.B.’s hand and asked her to rub it. If D.B. stopped rubbing J.W.’s penis, J.W. would get mad and put his penis in D.B.’s mouth. D.B. sucked or licked J.W.’s penis.

[6] A.M.’s evidence is that she spent nap or quiet time in the living room at J.W.’s home; she alternated between taking a nap one day and remaining awake, but quiet, the next. On the latter days, A.M. watched movies on the television in the living room at J.W.’s home. A.M. testified that during movie time J.W. took down his pants and rubbed his penis. He had a towel with him, which he used when he rubbed his penis. J.W. had on a number of occasions, asked A.M. to touch his penis and she always replied “No”.

The Issue

[7] Similar fact evidence is presumptively inadmissible. Has the Crown satisfied the burden it bears to establish, on a balance of probabilities, that in the context of this case, the probative value of the count-to-count evidence outweighs its potential prejudice and thereby justifies its reception?

Analysis

a) Probative Value

[8] Consideration of the similarities and dissimilarities of the evidence of each of the girls requires something other than an arithmetic or mechanical approach (R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60). The degree of similarity required depends on “the issues raised in the case, the purpose for which the evidence is proffered and the other evidence in the case”: See R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 78 and R. v. J.M., 2010 ONCA 117, 258 O.A.C. 81, at para 91.

[9] In this case, the Crown focuses on the actus reus and whether the events described by each of the girls actually occurred, are figments of their respective imaginations, or involve mistake as to the identity of the actor. I pause to note that this is not an “identification” case.

[10] The similarities in the evidence do not have to arise from the specific acts described by each of the girls. The circumstances surrounding the acts described may provide the compelling similarities (R. v. L.B. (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35 (C.A.) at para. 37).

[11] I have considered the context in which the events described by each of the girls occurred and note the following:

• J.W. was the daycare provider to both D.B. and A.M.;

• As such, J.W. was in a position of trust and authority to both girls;

• At the time of the events described, J.W. was alone with each of the girls, while the other children in his care were in separate rooms;

• The events occurred during nap time, which was on occasion quiet time for D.B. and which alternated with movie time for A.M.; and

• The events described in general amount to inappropriate sexual conduct on J.W.’s part.

[12] The generally similar inappropriate sexual conduct described by each of the girls may be sufficient in similarity to support granting the Crown’s application. There are, in any event, specific similarities in the events described by each of the girls. The specific similarities include:

• J.W. exposed his penis to both D.B. and A.M.;

• J.W. asked each of D.B. and A.M. to touch his penis in some way. Being slightly older than D.B., A.M. responded “No”. I agree with the Crown’s submission that it is because of the differences in the girls’ respective responses that the activity ultimately engaged in by J.W. in the presence of each girl differed; and

• In the presence of each girl, and with the assistance of one of them, J.W. engaged in the activity of stimulating his penis.

[13] There is also a similarity in terms of what he did not do with either of the girls. J.W. did not (a) ask either girl to expose herself, or (b) touch the genitalia of either girl.

[14] Defence counsel submits that there is no striking connectivity between the events described by each of the girls, no specific propensity identified, and no hallmark of or feature common to the events described by each of D.B. and A.M. I find that the level of similarity to which defence counsel referred is beyond the degree of similarity required on an application of this kind.

[15] Defence counsel also submits that the acts described by each of the girls did not allegedly occur within sufficient proximity of one another. I disagree. The events described allegedly occurred within a span of several months, if not several days, of one another. The span of time involved in this case does not take away from the probative value of the count-to-count similar fact evidence for the purpose identified by the Crown.

b) Collusion

[16] Collusion, if present, destroys the foundation on which the request for admissibility of similar fact evidence (count-to-count or otherwise) is based. The circumstances of D.B. and A.M., as young girls attending J.W.’s home daycare at the same time for a number of months no doubt created an opportunity for collusion. The mere existence of that opportunity does not, without additional evidence, support a finding that there exists the possibility of collusion between D.B. and A.M.

[17] The circumstances in which each of the girls reported J.W.’s behaviour are such that they preclude a finding of collusion. The chronology of the reporting is set out in detail in my earlier ruling with respect to the admissibility of hearsay statements (2017 ONSC 6775). In summary, D.B.’s reporting of the events occurred on May 15 and 16, 2013. A.M. was interviewed on May 17, 2013 as part of the Ottawa Police Service investigation following D.B.’s disclosure to the police of the events she described. It was not until after A.M. was initially interviewed that she disclosed events to her mother (May 18, 2013) and to the police (in a follow-up interview that occurred on May 19, 2013).

[18] There is no evidence of any communication between the girls prior to May 15, 2013 or between May 15 and 18, 2013. There is no evidence of any communication between D.B.’s parents and A.M.’s parents subsequent to D.B.’s disclosure and prior to A.M.’s disclosure of the events described.

[19] The girls were both very young when they reported the events they respectively described. The girls were not old enough to understand the concept of sex, what constituted sexual behaviour, or that what they were each describing was sexual behaviour. Individually, they would not have appreciated that they were describing an act of a sexual nature. It is, however, clear that A.M. understood that it was not appropriate for her to touch J.W.’s penis; she was definitive in answering “No” to J.W.’s request that she do so.

[20] I find that A.M.’s delayed reporting of the events is evidence of her lack of appreciation or understanding of J.W.’s inappropriate behaviour in masturbating in her presence. There are two elements to A.M.’s delay in reporting.

[21] First, the events A.M. described had been going on for a number of months before she reported them. Second, it was not until after A.M. had completed one interview with Detective King and had an opportunity to pose questions of Ms. M. (A.M.’s mother) that A.M. disclosed the events described. That A.M. did not disclose the events when first interviewed by Detective King is indicative of A.M.’s lack of appreciation for or understanding of the sexual and inappropriate nature of the events she eventually described.

[22] There is simply no evidence of and I find that there was no collusion between the girls.

c) Prejudicial Effect

[23] For the following reasons, I find that the prejudicial effect of the count-to-count similar fact evidence is outweighed by its probative value.

[24] First, the evidence of each of the girls has already been determined to be admissible in its own right. Second, the prospect of moral prejudice is attenuated because the alleged similar acts are other count similar acts. Third, the risk of either moral prejudice or reasoning prejudice arising is significantly lessened because the trial is before a judge alone.

d) Summary

[25] The risk of prejudice to J.W. is low in this case. The probative value of the count-to-count similar fact evidence is significant because it relates to the reliability and credibility of the evidence of a 3.5-year-old girl and a five-year-old girl admitted on the basis of an exception to the hearsay rule. The count-to-count similar fact evidence is relevant to the primary issue the Court is being asked to determine with respect to the charges arising from the events described by each of the girls.

Disposition

[26] The Crown’s application with respect to count-to-count similar fact evidence is granted. The evidence is admissible, on a count-to-count basis, in support of the inference that J.W. had a specific propensity to exploit his status as a daycare provider by engaging in inappropriate sexual behaviour with very young girls in his care during nap, quiet, or movie time.

Madam Justice Sylvia Corthorn

Released: December 29, 2017

CITATION: R. v. J.W., 2017 ONSC 7740

COURT FILE NO.: CR-13-1943

DATE: 2017/12/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

J.W.

RULING

Count-to-Count Similar

Fact Evidence Application

Madam Justice Sylvia Corthorn

Released: December 29, 2017