COURT FILE NO.: 18/485 DATE: September 19, 2018
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN W. Trent Wilson, for the Crown
- and -
Wayne Chorney, Counsel for R.B. R.B.
HEARD: September 14, 2018
BAN ON PUBLICATION PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
VARPIO J.
REASONS on similar fact application
OVERVIEW
[1] This is a similar fact application brought by the Crown at the conclusion of its case in chief. The evidence heard at the trial was applied to the voir dire such that I could consider its entirety.
[2] Upon review of the applicable law and the evidence before me, I am not prepared to grant the application.
THE FACTS
[3] The Court heard evidence from several witnesses. Only the evidence relevant to this application will be described herein.
The Daughter’s Evidence
[4] The accused’s daughter (“The Daughter”) testified that the accused began molesting her when she was approximately 7 years old (the Daughter was born in 1964). The Daughter’s mother – the accused’s wife (hereinafter “The Wife”) – attended church three times per week at regular times. The sexual assaults would occur when the Wife was at church.
[5] The Daughter testified that when she was 14 years old, the family went on summer vacation to Alaska. The accused had intercourse with her while on the trip.
[6] In the summer of 1979, the Daughter fought back when the accused attempted to sexually assault her at which point the sexual assaults ceased.
[7] On New Year’s Eve 1979, the Daughter wanted to go babysitting and the accused would not let her go. A disagreement ensued as between the Daughter and the accused. As a result of the dispute, the Daughter disclosed to The Wife that the accused had sexually abused her. In cross-examination The Daughter clarified that she told The Wife that the accused had had sex with her on the Alaska trip. She also clarified that she told The Wife that the abuse had been happening since The Daughter was 7 years old.
[8] The Daughter attended at the police station the day before her 16th birthday in late 1980. She provided a statement to police in an attempt to press charges.
[9] The Daughter testified that she and her aunt (whose evidence will be described later in these reasons) are close and that the Daughter knows that her aunt is a part of this trial. She denied having any conversation with her aunt about the specifics or generalities of the allegations.
[10] In cross-examination, the Daughter testified that she found out about her aunt’s allegations when the Daughter was in her late 20’s.
[11] The Daughter testified that she did not disclose any specifics of the sexual acts performed upon her to her mother.
[12] The Daughter also testified that she did not know if there was any overlap in terms of timing of her allegations and those made by her aunt.
The Aunt’s Evidence
[13] The accused’s sister-in-law testified that she is The Wife’s younger sister and is the Daughter’s aunt (“The Aunt”). The Wife is approximately eleven years older than The Aunt. The Aunt was approximately 7 years old when the accused and the Wife married.
[14] The Aunt indicated that she had always felt responsible for the abuse suffered by the Daughter since the Aunt had been abused by the accused as well. The Aunt was aware of that the accused allegedly abused the Daughter as early as 1980.
[15] The Aunt testified that when she was around 7 years old (approximately 1964), the accused sexually assaulted her in the accused’s basement. The sexual abuse continued through the years and progressed in intensity. The assaults took place away from the residence.
[16] The Aunt did not disclose any of the abuse until 1991. At that time, the Aunt disclosed to the Wife that the former had been sexually abused by the accused when she was young. The Aunt indicated that she told a number of people both within her family and some people outside the family. She indicated that she did not provide specifics of the allegations, but only generalities. Importantly, she was not questioned about how she differentiated “generalities” versus “specifics” of the allegations.
[17] The Aunt testified that she does not know any specifics of the Daughter’s allegations.
[18] In cross-examination, the Aunt conceded that her family had close relations.
The Wife
[19] The Wife testified that she married the accused in 1964. She kept a regular church schedule during the marriage. She was unaware of the putative sexual abuse taking place in her house.
[20] The Wife testified that the Daughter disclosed the sexual abuse to her on New Year’s Eve 1979. The Wife confirmed that the Daughter disclosed an allegation of intercourse that occurred on the Alaska trip. The Daughter disclosed that other instances of abuse happened many times while the Wife attended church. The Wife understood the abuse was sexual. The Wife also indicated that she was given few, if any, details about the specifics of the sexual abuse.
[21] On January 31, 1980, the Wife left the accused. The Wife took the children with her and they found a new residence. The Wife testified that her family asked why she left the accused and that she ultimately told them about the abuse. She denied discussing specifics of same.
[22] The Wife confirmed that the Daughter went to the police around the time of her 16th birthday to make a complaint about the abuse. The Daughter attended without the Wife’s knowledge. The police called The Wife to provide a statement.
[23] In 1991, the Aunt told the Wife that the Aunt had been sexually assaulted by the accused. The Wife knew that some of the allegations had happened in a basement. The Wife believed that the basement in question was the grandparents’ house on L[…] Avenue. The Wife does not remember the specifics of the conversation and she testified that she does not know the “specifics” of the Aunt’s allegations. Again, the Wife’s definition of the “specifics” of the allegations as opposed to the “generalities” of same were not explored in the evidence. The Wife believes that the Aunt had to attend the doctor’s office for abuse-related issues and she recalls that the accused took the Aunt to the doctor’s office.
[24] The Wife confirmed that her extended family is close.
THE LAW
[25] Similar fact evidence is presumptively inadmissible in so far as it is considered to be character evidence whose prejudicial effect outweighs its probative value (R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 at para. 31). Sopinka J. (in dissent) outlined the rationale behind the exclusionary presumption at para. 56 of R. v. B.(C.R.), [1990] S.C.J. No. 31:
The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person's action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning. This policy is reflected not only in similar acts cases but as well in the rule excluding evidence of the character of the accused unless placed in issue by him. The stronger the evidence of propensity, the more likely it is that the forbidden inference will be drawn and therefore the greater the prejudice.
[26] The Crown is able to rely upon such evidence in situations where the Crown satisfies the Court on a balance of probabilities that the evidence is both relevant and that the probative value of the evidence outweighs its prejudicial effect (Handy at para. 101).
[27] Probative value is assessed by:
- Identifying the issue at trial to which the proposed similar facts are said to be relevant;
- 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
- Considering the strength of the similar fact evidence.
(Handy at paras. 69-84, 102).
[28] Prejudicial effect is considered through the lens of two types of possible prejudice: Moral prejudice (the stigma of “bad personhood”) and reasoning prejudice (potential confusion and distraction of the jury from the actual charge against the accused) (Handy at para. 42). The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence (Handy at para. 100). Given the nature of the trial process itself, the dangers associated with both moral and reasoning prejudice is greatly mitigated at a judge alone trial. [^1]
[29] When balancing the probative value and prejudicial effect of similar fact evidence, Justice Binnie’s statement at para. 60 of R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 is instructive:
The judge's 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. This may result in distortion: Litchfield, supra. At an excessively macroscopic level of generality, on the other hand, the drawing of similarities may be too facile. Where to draw the balance is a matter of judgment. In this case, for the reasons already given, the "differences" urged by the appellant do not have the importance he asserts…
[30] It is also important to note that the probative value of the evidence may exceed the prejudicial effect of same where the evidence is capable of raising an inference that the accused had a situation-specific propensity for abuse:
In this case, the circumstances surrounding the acts bore a striking connectedness. The appellant exploited a privileged position over vulnerable young males -- who had little to no relationship with their own fathers and who were in circumstances of financial disadvantage -- for his own sexual gratification. Each received some material benefit from the appellant as a result of their sexual interactions with him. He was "the giver of money and affection" and he exploited this role for his own purposes. The present case is very similar to the decision in R. v. B.(C.R.), [1990] 1 S.C.R. 717, at p. 739, admitting similar fact evidence that demonstrated a pattern of behaviour in which the accused established a parental relationship with young girls before engaging in sexual activities with them. The similar fact evidence in this case was capable of raising the inference that the appellant had a situation-specific propensity to sexually exploit young males over whom he exerted financial or emotional influence.
R. v. C.K. 2015 ONCA 747 at para 39.
Collusion
[31] As a separate inquiry, I must also consider the possibility of collusion as between the two complainants. There is a two-stage inquiry regarding collusion. The Crown has conceded that there is an “air of reality” to the suggestion that there is, at the very least, unconscious collusion as between the two complainants. Accordingly, the Crown accepts that it must satisfy the Court on a balance of probabilities that the evidence of similar facts is not tainted with collusion. Failure to so satisfy the Court renders the evidence inadmissible. [^2] It is important to note, however, that mere opportunity to collude is insufficient to deny admission of otherwise admissible evidence. [^3]
ANALYSIS
[32] In this case, the Crown seeks to admit the similar fact evidence to prove the actus reus of the offence and to bolster the credibility of the two complainants. The Crown asserts that… [the evidence] demonstrates a pattern of behavior by the accused showing a commonality to the actus reas of the offences against each of the complainants, based on a pattern, and it demonstrates a specific propensity on the part of the accused.
Collusion
[33] Firstly, I accept that the complainants honestly believe that they do not know any details of the other’s complaints. They were not pressed on the issue in cross-examination and I have no reason to find otherwise.
[34] That finding, however, is insufficient to satisfy the test for collusion. In the circumstances of this case, it would defy common sense to suggest that the Crown has satisfied its burden. The evidence was clear from the Daughter, the Wife and the Niece that the extended family is close. Many members of the family appear to speak with each other on a regular basis. The fact that the accused allegedly abused both the Daughter and the Aunt became common knowledge within the family. It would be almost inconceivable that, over the course of 30 to 40 years, no discussion of the incidents would happen either with the complainants directly or, more likely, within their earshot.
[35] In and of itself, such a concern is not fatal to the Crown’s application. However, the evidence regarding each complainant’s disclosure is such that the Crown has failed to satisfy its onus. For example, the Aunt indicated in her evidence that she disclosed no specifics of the alleged sexual assaults. The Wife, however, knew that there were a number of incidents and that at least one incident occurred in a basement. Clearly, the Aunt communicated some specifics to The Wife. Further, there is no evidence before me regarding what the Aunt meant by “specifics” of the allegations, as opposed to “generalities”. In the absence of such evidence, it is impossible for me to conclude which details were actually disclosed by the Aunt. Equally, given that the Aunt disclosed the alleged sexual abuse to many people in 1991, it is also impossible for me to know whether or not the Aunt disclosed other “generalities” to other members of her family. In light of the conversations that occurred within this family, there is every chance that the Daughter became aware of the details of the Aunt’s allegations, either by speaking with family members or by overhearing conversation.
[36] The Daughter was also firm in her position that she described no “specifics” of her allegations but again, the Crown adduced no evidence describing what “generalities” were disclosed and to whom. The evidence is clear that the Daughter disclosed some specifics of her allegations to the Wife including the fact that intercourse occurred on the Alaska trip. I must thus question whether or not the Wife may have innocently disclosed some allegations that became part of the family’s common knowledge, which may have been disclosed to the Aunt directly or indirectly. Again, this concern is heightened given the conversations within the family.
[37] Accordingly, despite the Aunt and the Daughter’s contention that they disclosed no “specifics”, it is clear that the Wife was aware of some important details of both sets of allegations. In light of the family’s close associations and general discussion of the alleged abuse, it cannot be said that the Crown has satisfied its burden on a balance of probabilities that the evidence in question is untainted by collusion. It is quite possible that the complainants heard about specific allegations made by the other complainant and have forgotten about such disclosure.
Probative Value v. Prejudicial Effect
[38] Given my previous finding, I do not need to engage in a balancing of probative value and prejudicial effect.
CONCLUSION
[39] For the foregoing reasons, the instant application is dismissed.
Varpio J.
Footnotes
[^1]: R. v. JU.M. [2016] O.J. No. 3549 (Ont. C.J.); R. v. C.K. 2015 ONCA 747; R. v. B.(T.), 2009 ONCA 177, [2009] 95 O.R. 3d 21 (C.A.); R. v. J.W., 2013 ONCA 89, [2013] O.J. No. 654 (C.A.). [^2]: R. v. Wilkinson 2017 ONCA 756. [^3]: R. v. J.W., supra; R. v. Burnie 2013 ONCA 112.