Court File and Parties

COURT FILE NO.: 16 RA 19457 DATE: 20180801 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – NAOUM ABI-SAMRA Respondent

Counsel: Jessica Carvell, for the Applicant Neil Weinstein, for the Respondent

HEARD: In writing

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this application as the complainant may not be published, broadcasted or transmitted in any manner. This application complies with this restriction so that it can be published.

By court order made pursuant to section 539 of the Criminal Code, evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the end of the trial.

Application to Admit Similar Fact Evidence

Beaudoin J.

[1] The Applicant brings this application to admit extrinsic evidence of similar facts at the trial of the Respondent, Naoum Abi-Samra. Mr. Abi-Samra is charged with four counts of sexual assault and three counts of sexual interference against four complainants: J. M., K. H., K.M., and S. L. J.M. is a teacher and former colleague of Mr. Abi-Samra. The three other named complainants were all students at a high school where Mr. Abi-Samra was a mathematics teacher. The trial is scheduled for 10 days from September 24 to October 5, 2018.

[2] Mr. Abi-Samra has brought a concurrent severance application to sever count one. As in that application, the parties agreed to argue this application in writing and without calling viva voce evidence. The police statements and preliminary hearing transcripts of the witnesses – filed as part of the application record – will constitute the evidentiary basis for the application.

[3] Concurrently with this ruling, I have released my decision to sever count one; the charge of sexual assault against J. M.

[4] Mr. Abi-Samra was employed as a mathematics teacher at a high school in Barrhaven. In March of 2016, one of his students – K. M. – reported to her mother that Mr. Abi-Samra had made romantic comments to her and touched her inappropriately on multiple occasions. The matter was referred to the police for investigation, and ultimately, charges were laid on April 19, 2016. On that day, a media release was put out to the public seeking any additional information. Several other students, and ultimately J.M., came forward to report that Mr. Abi-Samra had touched them inappropriately.

[5] During the course of the investigation, a number of Mr. Abi-Samra’s current and former students were interviewed by police. Some of those students either witnessed or experienced Mr. Abi-Samra’s behavior toward female students in his class. The Applicant seeks to adduce their evidence at the trial of the Respondent as extrinsic similar fact or other discreditable conduct evidence.

[6] In my concurrent severance Ruling, I have set out a summary of what each of the four complainants reported to police. The following is a summary of what the five similar fact witnesses reported to police:

R. C.

[7] She was 15 years old and in grade 10 when the Respondent was her math teacher (2014-2015). She described the Respondent as “creepy” and “acting kinda weird.” She noticed that the Respondent would put a question on the board, and then walk around the class and ask students how they were doing. He would touch the female students while he spoke to them. The Respondent rubbed her back and squeezed her shoulders. This made her uncomfortable and she would not be alone with him. She observed the Respondent touch /pinch her friend’s waist while she was working.

C. C.

[8] She was in grade 9 when the Respondent was her math teacher (2012-2013) almost four years earlier. She noticed that the Respondent would give special attention to the pretty girls in class including one of her friends who sat beside her and had large breasts. She witnessed the Respondent touch her friend’s shoulder and back, and massage her shoulders.

K. R.

[9] She was in grade 10 when the Respondent was her math teacher (2015-2016). She noticed that the Respondent was “touchy” with female students, specifically the “pretty ones.” The Respondent has touched her arm and grabbed her by the waist near the ribcage. She did not think he “was being sexual.” On one occasion, the Respondent hugged her at the end of math class.

G. T.

[10] She was 16 years old and in grade 10 when the Respondent was her math teacher (2015-2016). She noticed that the Respondent would touch female students during math class. He rubbed her back and put his hand on her thigh regularly during class. One time, when he was rubbing her back, her bra came undone. This made her feel anxious and uncomfortable but did not feel comfortable telling a teacher. He would give “side hugs” to female students and touch the side of their breasts. He told her she was beautiful. G.T. did not want to press charges but was willing to be a witness.

M. L.

[11] She attended the same high school but did not have the Respondent as a teacher. On one occasion, the Respondent put his hand on her back where her bra rested. On another occasion, M.L. went to the Respondent for math help outside of class and he put his hand on her upper thigh when she got the question right. They were alone in the classroom with the door closed when this happened. M.L. also witnessed her friend (G.T.) come out of his classroom crying and was told he snapped her bra. She did not consider the touching as being meant “sexually.”

[12] The Applicant further intends to pursue a count-to-count similar fact application involving the named complainants. That application will be argued at the close of the Applicant’s case.

[13] The Applicant submits that the proposed extrinsic similar fact evidence in this application will demonstrate a pattern of consistent behaviour on the part of the Respondent to use his position of authority as a teacher to engage in inappropriate touching of female students in his class. According to the Applicant, this evidence is relevant to the issue of whether the actus reus occurred, and to rebut a defence of honest mistake or innocent association.

The Legal Framework

[14] The Supreme Court of Canada set out the legal framework In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[15] Evidence of a similar act is presumptively inadmissible. Generally, this exclusionary rule prohibits character evidence to be used as circumstantial proof of conduct – i.e. to allow an inference from the “similar acts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. [1]

[16] Similar fact evidence becomes admissible where the crown demonstrates – on a balance of probabilities – that in the context of the particular case, the evidence is relevant and probative to an issue at trial and the probative value of the evidence outweighs its potential prejudice. [2]

[17] The interests of justice also require that relevant evidence whose probative value exceeds its prejudicial effect is never excluded. “Justice includes society’s interest in getting to the truth of the charges as well as the interest of both society and the accused in a fair process.” [3]

[18] The danger raised by similar fact evidence is that it invites the trier of fact to engage in propensity reasoning. However, not all propensity reasoning is prohibited.

Admissible propensity evidence is evidence that shows a pattern of circumstances in which an accused is disposed to act in a certain way which is so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity, or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. [4]

[19] The strength of the similar fact evidence must be such as to outweigh “reasoning prejudice” and “moral prejudice.” The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence. While an element of “moral prejudice” may be introduced, it must be concluded by the trial judge on a balance of probabilities that the probative value of the sound inferences exceeds any prejudice likely to be created. [5] In a judge alone trial, the danger that a conviction will be rooted in moral prejudice reasoning is significantly lessened. [6]

[20] The probative value of the similar fact evidence is assessed by:

1. Identifying the issue at trial to which the similar acts are said to be relevant;
2. Identifying the factors that connect or distinguish the similar fact evidence from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible; and
3. Considering the strength of the similar fact evidence [7]

[21] The similar fact evidence must be relevant to issues in this case and those issues must be clearly identified. The initial assessment of similar fact evidence is about relevance and materiality as the Court of Appeal set out in R. v. L. B. (1997), 35 O.R. (3d) 35 (Ont. C.A.) at paras. 16 and 18:

2. Is the proposed evidence relevant and material? A cardinal principle of our law of evidence is that any information that has any tendency to prove a fact in issue may be admitted in evidence. Therefore, before any evidence can be admitted, it must be relevant and material. … Evidence of the conduct of an accused other than that which forms the subject-matter of the charge is a form of character evidence and, as with other forms of character evidence, its relevance usually depends on the proposition that persons tend to act consistently with their character. Even though we know from human experience that this proposition is not always true, the law has proceeded on the basis that, in deciding how a person has acted on a particular occasion, the trier of fact may be assisted by evidence of how he or she has acted before and since.….

[22] The admission of the similar fact evidence must do more than simply blacken the character of the accused which, as a by-product, may enhance the credibility of the complainant. [8]

[23] The Applicant has identified factors that have been held to contribute to the probative value and admission of similar fact evidence include:

• The similarity between the various offences alleged which shows an underlying unity or system or course of conduct, providing a connecting link between them so that each story renders the next story more probable. [9]
• To determine whether the actus reus occurred. Numerous similarities between the evidence of two complainants renders the evidence probative to the credibility of the complainants against that of the accused. [10]
• To rebut the defence that the sexual assaults could not have occurred since there were other adults nearby and therefore a risk of detection. [11]
• The surrounding circumstances, as opposed to the actual sexual acts themselves, which are particular or distinctive, will contribute to the probative value of the similar fact evidence. [12]

[24] When considering whether the requisite degree of similarity has been established, the following factors were noted by the Supreme Court of Canada in Handy [13]:

• proximity in time of the similar acts;
• extent to which the other acts are similar in detail to the charged conduct;
• number of occurrences of the similar act;
• circumstances surrounding or relating to the similar acts;
• any distinctive feature unifying the incidents;
• intervening events;
• any other factor which would tend to support or rebut the underlying unity of the similar acts.

[25] The court was careful to note that this list “is intended to be helpful rather than exhaustive. Not all factors will exist (or be necessary) in every case.”

[26] The strength of the similar fact evidence relates to the extent to which the evidence can be proven, and any allegations of collusion. Similar fact evidence need not be conclusive. [14]

[27] Collusion offers an alternative explanation for the coincidence of evidence emanating from different witnesses and therefore destroys its probative value. [15] Where there is an “air of reality” to an allegation of collusion, the crown must satisfy the trial judge on a balance of probabilities that the evidence of similar facts is not tainted with collusion.

The mere opportunity for collusion is not sufficient to trigger the trial judge’s gatekeeper function. In such a case, the question of whether the evidence was tainted is to be left to the ultimate trier of fact when weighing the evidence. [16]

If there is evidence of inadvertent tainting (some of the complainants had been exposed to the details of the offences through media reports or through communication with others in the drug subculture), the trial judge should permit the jury to decide the effect that possible collusion may have had on the weight to be assigned to the evidence of the complainants.

[28] “Prejudice” is not the risk of conviction. It is the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. [17]

The Position of the Applicant

[29] In this case, the Applicant intends to lead the similar fact evidence on the following issues:

1. Whether the actus reus constituted a sexual assault. A central issue in this trial will likely be whether the touching described by the complainants was inadvertent or whether it was an unlawful sexual assault. The similarity of the complainants’ evidence and the similar fact witness’ evidence regarding the nature of the touching and the context in which it occurred, rebuts the possibility that the complainants were mistaken as to the sexual character of the acts. The fact that similar incidents occurred to many different people tends to rebut the possibility that the touching was inadvertent or accidental.
2. Whether there was a sexual purpose to the touching. As described above, a central issue will be whether the touching was inadvertent or for a sexual purpose. While some of the touching described may be slightly more ambiguous, the description of more overt sexual contact is relevant to the trier of fact’s assessment of the accused’s purpose in touching the other complainants or witnesses.

[30] The Applicant submits that in the circumstances of this case, the impermissible “general disposition” inference is swallowed up by the permissible “specific disposition” inference – that the appellant had a specific disposition to use his role as a teacher to touch his female students in an intimate and sexual manner.

[31] When the evidence is adduced to support the credibility of the complainant, the strength of the inference is based on the “improbability of coincidence.”

[32] The Applicant provides this list of similarities and differences between the similar fact evidence:

1. The student complainants and the witnesses are all females
2. The student complainants and the witnesses were all teenagers at the accused’s school, and all but one were in his math class during grades 9 or 10
3. At the time of the incidents, the students were either in class responding to questions or getting “extra help” from the accused in math
4. Several of the complainants and witnesses described the accused as often touching the good looking female students in his classes
5. The accused made romantic comments to several of the students, thus bringing romantic or sexual content into a professional relationship in which the accused held the position of power
6. The accused would often touch the female students’ shoulders and backs as a point of first contact; he also touched some students in more overtly sexual places (i.e. breasts)
7. Number of occurrences of the similar acts: there are 4 complainants and 5 proposed similar fact witnesses. Most of the witnesses describe several instances of inappropriate touching,
8. Proximity in time of the similar acts: the incidents span in time from 2013 to 2016, with the exception of J.M. which occurred in 2009,

[33] Although there are some dissimilarities between the incidents, the Applicant maintains that those differences do not detract from the fact that there is a high degree of connectedness between all the incidents in question.

[34] The Applicant relies on R. v. L. B., at para. 37 where the Ontario Court of Appeal concluded that it was not the similarities or dissimilarities between the sexual acts, but rather the circumstances surrounding the incidents that was probative.

[35] As to the strength of the evidence, the Applicant notes that the five similar fact witnesses provided audio and video recorded statements. According to the Applicant, there is no reason to doubt their credibility or reliability as potential witnesses. Further, as noted above, the evidence at the admissibility stage does not have to be conclusive.

[36] The Applicant underlines that the defence must raise an air of reality to the possibility of collusion to put the issue into play. If the issue is in play, the Applicant has the burden of disproving it, on a balance of probabilities; the trial judge being required to look beyond proof of opportunity.

[37] The Applicant submits that there is no evidence that any of the complainants spoke to each about their evidence at any time before going to the police or testifying at the preliminary inquiry. The Applicant notes that there is no evidence that the similar fact witnesses were spoken to by a social worker, nor is there evidence that they spoke to any of the named complainants about their experiences. The Applicant respectfully submits that there is only the mere possibility of collusion in this case and nothing more and that this should not be a concern when determining the admissibility of the proposed similar fact evidence.

[38] In assessing the prejudicial effect of the proposed evidence, the Applicant submits that consideration should be given to:

a) the inflammatory nature of the similar acts (how discreditable it is), b) whether the crown can prove its point with less prejudicial evidence, c) the accused’s ability to respond to it, d) the potential distraction from its proper focus on the facts charged, e) the potential for undue time consumption.

[39] The Applicant states that the nature of the similar acts being proposed is equal to or less reprehensible than the acts charged on the Indictment and that the Respondent will have full opportunity to respond to this evidence. All of the witnesses have provided audio and video recorded statements describing their interactions and they will be called at the trial where counsel will have full opportunity to cross-examine them.

[40] The Applicant argues that this extrinsic evidence will not distract the trier of fact from its proper focus on the facts charged. To the contrary, the Applicant submits that this evidence will assist the trier of fact to understand the broader context in which the alleged offences occurred and will also allow the trier of fact to properly assess whether the sexual touching in question occurred accidentally or intentionally. Further, these witnesses were considered when arriving at a time estimate. No additional court time will be required.

[41] Finally, the Applicant emphasizes that this is a judge alone trial and that the risk of prejudice is low.

Position of the Respondent

[42] The Respondent concedes that the Applicant has properly outlined the test for the admission of similar fact evidence, namely that evidence of discreditable conduct of an accused person is presumptively inadmissible. However, it is admissible only where the Applicant can demonstrate on a balance of probabilities that the evidence is relevant and that probative value of such evidence outweighs the prejudicial effect.

[43] The Respondent also agrees that the Applicant has properly identified the ‘issue in question’ for which this evidence is to be adduced as whether the actions of the Respondent constituted a sexual assault and whether the touching was done for a sexual purpose.

[44] The Respondent stresses that he is described by all of the witnesses as a “touchy” person. The principal dispute at trial is whether the Respondent’s touching of the four complainants in the Indictment was done for a sexual purpose or whether it was done accidentally in the context of non-sexual physical contact.

[45] The Respondent is not denying that the complainants are his students or, in the case of J.M., his co-worker. Identification is not in issue. The Respondent is also not denying that physical contact occurred between the complainants and himself. The credibility of the complainants is also not in issue.

[46] The Respondent submits that this extrinsic evidence must be tendered for the sole purpose of demonstrating that the contact between the Respondent and the complainants was done for a sexual purpose.

[47] The Respondent stresses that care must be taken to delineate, at the outset, that the most significant difference between the extrinsic evidence of these similar fact witnesses and the evidence of the complainants listed in the Indictment is that similar fact evidence witnesses do not provide evidence that the Respondent sexually assaulted them. However, the extrinsic evidence of other students is being proposed for the inference that a person usually acts consistently with their character and, therefore, because the Respondent acted improperly with these other students he is likely to have acted similarly to the complainants.

[48] The Respondent argues that the ultimate question that trier of fact will have to determine at trial will be whether he touched the complainants for a sexual purpose or whether the contact was incidental to non-sexual physical contact. He underlines that these five similar fact witnesses are not victims of a sexual assault. The witnesses provide evidence of inappropriate behaviour in a teacher-student relationship, but they do not provide evidence that would amount to a charge of sexual assault. For this reason, the Respondent submits they do not support the inference that the Applicant is seeking, namely that his touching of the complainants was more likely done for a sexual purpose.

[49] The Respondent emphasizes that, as stated in Handy [18], the contest over the admissibility of similar fact evidence is all about inferences. The Respondent agrees that the probative value of the evidence is determined by the strength of the inferences sought. In this case, the Respondent says that the extrinsic evidence does not support the inference that the touching was done for a sexual purpose and that the similar fact evidence demonstrates quite the opposite. What the evidence demonstrates is that the teacher was a ‘touchy’ person and would engage in awkward or inappropriate physical contact with his students that, in many cases, did not result in touching of a sexual nature.

[50] The Respondent relies on the Ontario Court of Appeal in R. v. Gilbert, 2015 ONCA 927 where that Court stated at para. 64:

What admissibility requires is a “persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences.”

[51] The Respondent submits that in the case at bar, there is an insufficient degree of connection between the accounts wherein the complainants are alleged to have been sexually assaulted and the incidents of the similar fact witnesses wherein no sexual assault occurs. The Respondent urges extreme caution in admitting this evidence. If the evidence is admitted, but does not properly support the inference sought, then there is a risk of general propensity reasoning. The case at bar distinguishes itself from many of the cases in which similar fact evidence is sought in that the extrinsic evidence in this case is not of another sexual assault. Since the proposed similar fact evidence does not support an inference which is material to the issue in question, the Respondent concludes that its probative value is minimal.

[52] The Respondent raises the issue of collusion and cites, Justice Binnie who stated that:

Cogency is derived from the improbability of coincidence. Collusion is a factor, yes, but more than that it is a crucial factor because the existence of collusion rebuts the premise on which admissibility depends. [19]

[53] It is not necessary that collusion have nefarious intentions as is often associated with the terminology. Collusion can apply where the similar fact evidence of a witness is influenced by other witness or surrounding circumstances. [20] The Respondent submits that there is an air of reality to collusion in this case.

[54] At the time the Respondent was charged, all of the similar fact witnesses were students at the same school. He notes the evidence of a ‘buzz’ in the school about the charges being laid against the Respondent. A reporter attended the school regarding the incident. There were news articles which detailed the charges of sexual interference with a student. Many of the witnesses admit to discussing the charges with friends and school mates. Furthermore, there is also evidence that social workers attended the school in order to interview students and determine if anyone else had experienced inappropriate behaviour.

[55] According to the Respondent, it is logical that these sexual assault allegations would become the topic of discussion between every student at the school. The common thread with all five of the similar fact evidence witnesses is that none of these individuals came forward to police until after the Respondent’s charges had been made public and well known.

[56] The Respondent says that the impact of these public reports and discussions cannot be understated given the unique nature of this case. The evidence from the complainants demonstrates that, in the minds of these witnesses at the time of these impugned incidents, they did not believe that anything sinister had occurred. Essentially, the witnesses concluded that the Respondent’s behaviour was odd, but ultimately, a by-product of his touchy personality. He notes that it was only after this ‘buzz’ at the school and the surrounding publicity of the Respondent’s charges, that the complainants and witnesses revisited their memories of what occurred to them.

[57] The Respondent submits that the witnesses’ recollections have been influenced by the publicity of the charges. Prior to the charging of the Respondent, it is possible that these witnesses would not have concluded that they too had been inappropriately touched. The evolution of their memories of the events diminishes the similarities of their evidence with the evidence of the complainants. The Respondent submits that this “collusion” has infected the similar fact evidence, and therefore, at the very least, significantly undermined the probative value of that evidence.

[58] The Respondent agrees that the risk of moral reasoning prejudice is reduced in this case due to the fact that the Respondent has elected to have a trial without a jury. That being said, the evidence being sought is not being used from one count to another in the Indictment. In the current case, the Applicant seeks to have five non-charged witnesses provide extrinsic evidence about discreditable conduct of the Respondent. The Respondent submits that this heightens the prejudice. Furthermore, the Respondent argues that the inclusion of five extrinsic evidence witnesses cans still pose a risk of creating a more complicated and unfocussed proceeding.

[59] Finally, The Respondent submits that one of the considerations in the analysis is whether the Applicant can achieve the same objective in a fashion that is less prejudicial. [21] The Applicant, in this case, intends to make a count-to-count similar fact evidence application at the end of the trial involving the complainants in the Indictment. That evidence will achieve the exact same objective as this application and because it does not involve extrinsic evidence it will do so in a manner that is less prejudicial. Since the Applicant can prove its point with less prejudicial evidence, this similar fact evidence proposed should not be admitted.

Conclusion

[60] I am satisfied that the prejudicial effect of the proposed extrinsic similar fact outweighs its probative value.

[61] I concur with the Respondent’s submission that the most significant difference between the extrinsic evidence of these similar fact witnesses and the evidence of the complainants listed in the Indictment is that similar fact evidence witnesses do not provide evidence that the Respondent sexually assaulted them. However, the extrinsic evidence of these other students is being proposed for the inference that a person usually acts consistently with their character, and therefore, because the Respondent acted improperly with these other students, he is likely to have acted similarly to the complainants.

[62] These five similar facts do not provide evidence that would amount to a charge of sexual assault. Two of them stated clearly that they did not consider his actions as being sexual. All of these five witnesses describe the Respondent as “touchy”. Their evidence does not support the inference that the Applicant is seeking, namely that the Respondent’s touching of the complainants was more likely done for a sexual purpose. As result, the risk of general propensity reasoning is increased even if there is trial by judge alone.

[63] This case is distinguishable from the cases cited by the Applicant because the extrinsic evidence is not of a sexual assault. I noted only one case, namely, R. v. D.E.O. [1999] N.J. No. 255 where the extrinsic similar fact evidence was not of a sexual assault. In that case, the evidence was relied upon to rebut an improbability of coincidence and supporting the credibility of a complainant with regard to the unusual method used by a parish priest in a counselling session with him (asking the victim to pull up his shirt so that he could perform tests). In that case, that was the only piece of extrinsic evidence.

[64] Here, the Applicant proposes to call five witnesses and the prejudicial character of that evidence is much greater and it creates a greater risk of a more complicated and unfocused proceeding.

[65] The probative value of this extrinsic evidence is diminished by the fact that these witnesses came forward and revisited their memories only after this ‘buzz’ at the school and the surrounding publicity of the Respondent’s charges. R.C, told Investigators that she spoke to other girls in her class “when the whole thing blew up”. C.C. spoke of “this huge storm” and how everybody was talking about what had happened in the past.

[66] Finally, the Applicant can prove its point with less prejudicial evidence. The count-to-count similar fact evidence application at the end of the trial involving the complainants in the Indictment will achieve the exact same objective as this application. For these reasons, this Application to admit the extrinsic similar fact evidence is dismissed.

Mr. Justice Robert N. Beaudoin Released: August 1, 2018

Footnotes

[1] Handy, at para. 31 [2] Handy, at para. 55, 101 [3] Handy, at para. 150 [4] R. v. Quesnelle, [2009] O.J. No. 5501 (S.C.J.) paras. 30-31 [5] Handy at paras. 42, 100 [6] R. v. C.K., 2015 ONCA 747, 342 O.A.C. 87, at para. 41 [7] Handy, at paras. 69-75, 76-84, 102 [8] Handy, at paras. 115-116 [9] R. v. Green, [1986] M.J. No. 404 (C.A.), aff’d (1988) S.C.J. No. 5 (1986), 42 Man.R. (2d) 81 (C.A.) [10] R. v. B (C.R.), [1990] 1 S.C.R. 717 at para. 43; R. v. D.A.H., (1997), 1997 NSCA 168, 161 N.S.R. (2d) 204 (C.A.) at para. 60; R. v. Brown, [2006] O.J. No. 5276 (C.A.) at para 8; R. v. Morin, [2005] O.J. No. 4402 (C.A.) at para. 19 [11] R. v. Moore (1994), 92 C.C.C. (3d) 281 (Ont. C.A.) at para. 17 [12] R v. Gilbert, 2015 ONCA 927, 343 O.A.C. 199 at paras. 63-70 [13] at para. 82 [14] Handy, at paras. 94-96 [15] Handy, at para. 112 [16] Handy at para. 112 [17] Handy, at para. 139 [18] Handy, at para. 27. [19] Handy, at para. 110 [20] See R. v. J.M., 2016 ONCJ 397 at para. 36-38; R. v. B.(C.), (2003), 171 C.C.C. (3d) 159 (Ont. C.A.) at para. 40; see also R. v. Dorsey 2012 ONCA 185, 288 C.C.C. (3d) 62 at para. 30 wherein Court of Appeal ruled that trial judge erred in finding no air of reality that witnesses may have been affected by the media reports and communications with others in the drug subculture. [21] Handy, para. 83.