Court File and Parties

Court File No.: 17-0139 Date: 2018/10/26 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Applicant C. Gzik, for the Crown

- and -

Geoffrey Burnet, Respondent S. Whitzman, for the Respondent

Heard: October 18, 2018

Ruling on Application to Admit Similar Act Evidence Ban on Publication of Identity of Complainant

A.J. Goodman J.

[1] Geoffrey Burnet (“Burnet”) is charged with eight counts. For the purposes of this application the Crown seeks a ruling in respect of three of those offences, namely, counts 6, 7, and 8 in the indictment; to wit; exposure of his genital organs to a person under the age of 14 years for a sexual purpose.

[2] The counts relate to two complainants, “K.C.” and “K.A.” All of these alleged incidents occurred at the Burnet residence in Waterdown (Hamilton).

[3] At the conclusion of the evidence in a judge-alone trial, the Crown brought this similar act count-to-count application and sought a ruling that these allegations be admissible as evidence on each of these discrete offences. No issue is taken by the respondent with respect to the timing of the application.

Positions of the Parties:

[4] The Crown submits that the similar act application ought to be granted in that both complainants were exposed to the accused’s genital organs in a sexual manner in similar circumstances:

(a) the sexual violations occurred in the Burnet home, a private setting;

(b) both complainants were young, one was 9-10, the other 12-13 years old;

(c) the nature of the acts were the same, the accused exposing and stroking his penis, one complainant seeing only the tip of his penis with ejaculate, the other seeing his entire penis while the accused was stroking himself;

(d) on all these occasions, the accused was wearing basketball type shorts, with no underwear, his penis being facilely visible;

(e) at the same time, pornography was being played and viewed by the accused either on television or computer;

(f) both complainants were friends with the accused and had been over to his house with him frequently for a variety of other purposes;

(g) the events occurred out of sight of the accused’s wife, mother or others in the home when the accused was alone with the child;

(h) the events occurring in the upstairs area of the house, either in the family room or in the “blue” bedroom.

[5] It is the Crown’s position that an application of the reasoning in the leading authorities dictate that the evidence of each of the complainants should be admitted as similar fact evidence as long as the Crown can demonstrate, on a balance of probabilities, that it is not generic in nature and the product of collusion.

[6] The respondent denies any sexual misconduct involving the complainants. He submits that while there is no evidence of collusion, there is a dissimilarity of events in that there is the lack of a temporal connection.

[7] It is the respondent’s position that the evidence heard in this trial is not, as in many of the cases, proven allegations that can result in a conviction, but is evidence that is unreliable and has low probative value.

Legal Framework

[8] Similar fact evidence is more accurately described as other discreditable conduct of the accused. The necessary degree of similarity of the evidence proffered by the prosecution is contextual depending on the purpose attached to its intended admission.

[9] The leading cases on this issue of similar act evidence are those authored by the Supreme Court of Canada in R. v. Handy (2001), 2002 SCC 56, 164 C.C.C. (3d) 481 and R. v. Shearing (2002), 165 C.C.C. (3d) 255.

[10] As a general rule, the introduction of other discreditable conduct by the prosecution is presumptively inadmissible. However, this exception to the overarching rule that all relevant evidence is to be admitted, itself admits of an exception in exceptional circumstances. In other words, the similar fact evidence or other discreditable conduct rule has been described as an exception to an exception to the basic rule that all relevant evidence is admissible: Arp v. The Queen (1998), 129 C.C.C. (3d) 321 (S.C.C.) at 338.

[11] Where other discreditable conduct evidence is admitted, there is always a danger or risk of prejudice. The evidence is inherently prejudicial. Caution therefore is required that such evidence is admitted only in those circumstances where a fair trial is not defeated by its admission.

[12] As character evidence, other discreditable conduct evidence is a form of circumstantial evidence: Arp at pp. 349, 350, and 352. Where admitted, the evidence is simply one item of evidence to be considered as part of the prosecution's overall case. While the trial judge exercises gatekeeper control in determining admissibility of the evidence, whether the other discreditable conduct evidence is accepted or found to be credible or afforded any particular weight is a matter for the trier of fact function: Arp at p. 338, R. v. Litchfield (1993), 86 C.C.C. (3d) 97 (S.C.C.) at p. 119. That is not to say that the trial judge as trier of law cannot engage in limited evaluation of the evidence to ensure sufficient probative value to justify admission: Arp at pp. 343-4, 350. Where admitted on a basis of relevance related to the similarity of the other discreditable conduct to the charged misconduct, a question for the triers of fact is whether the tendered evidence is capable of being regarded as similar acts.

[13] In R. v. J.M., 2010 ONCA 117, Watt J.A. dealt with principles of the admissibility of similar act evidence in respect to a count-to-count issue. In the appeal, J.M. alleged that the trial judge erred in the admission of three out-of-court statements by Z.S., who did not testify as a witness at trial, and that the trial judge erred in the use of each complainant as evidence of similar acts on the count(s) relating to the other.

[14] At trial, the Crown identified several issues to which the evidence of each complainant was relevant in completing the prosecutions proof of the other counts:

i. proof of the actus reus of the offence charged; ii. rebuttal of any claim of collusion or concoction; iii. rebuttal of any “defence” of innocent association; accident or lack of intent; iv. support for the credibility of each complainant; and v. proof of a pattern of behaviour in similar circumstances.

[15] Watt J.A. reviewed the governing principles at paras. 87 to 90:

To being, the evidence relied upon as evidence of similar acts was evidence properly admissible in its own right. The allegedly similar acts were not extrinsic to the offences charged. It seems reasonable to conclude that, even if the trier of fact had been a jury, the prospect of an inference of guilt from bad personhood, the moral prejudice of R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 31, seems substantially attenuated where the alleged similar acts are other counts similar acts rather than other conduct outside the allegations in the indictment.

Second, the presumptive in admissibility of evidence of similar acts reflects the general prohibition of the law against the use of character evidence as circumstantial proof of conduct, thus guilt: Handy at para. 31. The prohibition guards against reasoning prejudice (confusion because of evidence of multiple incidents and consequent unwarranted reliance on often suspect evidence about the offence(s) charged) and moral prejudice (findings of guilt based on bad personhood). In trials by judge alone, like this case, the danger that a conviction will be rooted in either reasoning or moral prejudice is significantly lessened: R. v. B. (T.) (2009), 2009 ONCA 177, 95 O.R. (3d) 21, at paras. 28-30; R. v. Cresswell, [2009] ONCA 95, at para. 10; R. v. MacCormack, [2009] ONCA 72, at paras. 56, 68, 69.

To overcome the rule that holds evidence of similar acts presumptively inadmissible, the prosecutor must satisfy the trial judge on a balance of probabilities that, in the specific context under consideration, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice, thus warrants its reception: Handy at para. 55; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 33; Cresswell at para. 9.

The theory that underlies the similar act rule rests largely on the improbability of coincidence.

[16] Watt J.A. concluded that in J.M. the trial judge did not rely on the evidence of similar acts and therefore, the correctness of the trial judge’s ruling on admissibility was of no consequence as to the decision of the appeal. Watt J.A.’s discussions on the applicable governing principles are instructive.

[17] The Ontario Court of Appeal also dealt with a similar issue in R. v. T. B., 2009 ONCA 177. This was a Crown appeal against the respondent’s acquittal on nine historical sexual offence charges. The Crown argued that the trial judge committed two errors. He rejected the Crown’s application to use evidence on all counts as similar fact evidence on each of the other counts and he held that there was no corroboration of the victims’ evidence. With respect to the second ground of appeal, Borins J.A. set out the following at paras. 21 to 24:

The trial judge said that the Crown’s purpose in seeking to admit the similar fact evidence was to attack the respondent’s credibility. This was a misapprehension of the Crown’s position. In argument before the trial judge, the Crown referred to the need to establish “a specific line of permissible reasoning”, as well as to this court’s decision in R. v. L.T. (2005), 196 O.A.C. 394, concerning the use of similar fact evidence in cases of sexual offences against young people. The Crown’s position, therefore, was that the central issue on which the similar fact evidence bore was the actus reus of the offences and whether the respondent’s blanket denial of the commission of all eleven offences on which he was tried was credible. The Crown submitted at trial, and in this court, that the evidence ought to have been improbability of coincidence. In this respect, the Crown urged that the probative value of the evidence outweighed any prejudicial effect.

In my view, the trial judge misapprehended the Crown’s purpose in seeking to admit the similar fact evidence. Its purpose was not merely to attack the respondent’s credibility. The predominant purpose was to show a pattern of similar behaviour that confirmed each complainant’s testimony. Put simply, in the absence of collusion or some other form of tainting, none of which was found in this case, given the similarities in the evidence of R. and M. regarding the respondent’s conduct, it was unlikely that the conduct was the result of coincidence.

The Crown’s position regarding the permissible use of similar fact evidence to support a complainant’s allegations is consistent with decisions of this court. For example, in R. v. Thomas (2004, 72 O.R. (3d) 401, Rosenberg J.A. at para. 43 observed that the trial judge “did identify the permitted use of the evidence. He suggested that the jury might find that there was a pattern of similar behaviour that confirmed each complainant’s testimony that the offences took place. This was sufficient”. At para. 54 Rosenberg J.A. provided the following guidance “on the proper use of the evidence”:

If the jury finds this distinctive pattern, they might find it defies coincidence that students were lying or mistaken about what happened to them absent collusion or some other explanation such as tainting through the police investigation. The evidence accepted by the jury might therefore assist the jury in determining whether any of the complainants was credible and whether the acts they alleged really occurred. … They can use the evidence of one or more complainants in assessing the truthfulness of the other complainants only if there is this distinctive pattern of conduct that suggest that they were describing similar events. [Footnotes omitted.]

[18] In T.B., Rosenberg J.A.’s analysis in R. v. Thomas, [2004] O.J. No. 4158 was referred to with approval. In Thomas, Rosenberg J.A. stated that the evidence of the ten complainants was properly admissible on the trial of the four complainants and set out his reasons for that at paras. 26 to 28:

The trial judge identified the issues in question for which the similar fact evidence was led as proof of the actus reus, to support the credibility of the complainants, and undermine the appellant’s denials. More precisely, it seems to me that the evidence of the ten complainants was adduced to show that the appellant in “closely comparable circumstances” [R. v. Handy at para. 120] set about to groom adolescent female students to submit to his sexual advances. If so, the evidence would assist in proving that the acts occurred as described by the complainants thus establishing the actus reus, bolstering the complainants’ credibility, and undermining the appellant’s denials.

The question then was whether the evidence possessed sufficient connecting factors that its probative value on these issues outweighed its prejudicial effect. In Handy, Binnie J. identified a number of factors that the court could look to in measuring the probative value of similar fact evidence. I do not need to fully review all of these factors. The trial judge dealt with them at some length and I agree with his analysis. I will only mention a few. Most compelling is the timing of the acts and the number of incidents. The fact that the appellant engaged in some form of sexual contact with one or more of his female students over a thirteen-year period provides a strong nexus. There is one significant break between 1977 and 1983, which is a factor telling against probative value.

The sheer number of complaints is an important connecting factor. We have here fourteen young female students all telling a similar story about their teacher. Absent collusion or some other form of tainting, the possibility that all of these students would be mistaken or have misinterpreted innocent conduct on the appellant’s part seems remote. Of course, the strength of this inference depends on the extent to which the acts are similar in detail. All of the incidents demonstrate considerable similarity in detail: the age of the complainant when the sexual advances began; initial groping of the breasts when the appellant was able to isolate the targeted student from the rest of the class by some pretext; steady progression into more intrusive acts with those students who put up little or no resistance; and in some cases use of his position in the Sea Cadets to extend the contact outside the school setting.

[19] At para. 42, Rosenberg J.A. stated:

To determine whether the charge to the jury in this case was deficient it is necessary to return to basic principles concerning the admission and use of similar fact evidence. The suggested instructions from Arp and R. v. B. (C.) are intended to capture the following concepts:

(1) Similar fact evidence is admissible if that evidence identifies a specific propensity on the part of the accused. It is not admissible if it merely identifies a general disposition such as dishonesty or sexual immorality.

(2) General bad disposition is neither a crime nor sufficiently distinctive to assist the jury in determining whether the accused committed this offence in these particular circumstances.

(3) By correctly identifying the permitted use of the evidence, the trial judge will assist the jury in using the similar fact evidence for the proper purpose.

(4) Similar fact evidence has the potential to undermine the presumption of innocence and the burden of proof on the Crown if the jury, unsure whether the accused committed the offences charged, convicts the accused to punish him or her for the prior unpunished misconduct, or because he is a person of bad character.

Application of these principles to this case:

[20] In Handy, at para. 82, the court set out the following criteria when addressing whether the similar act evidence is appropriately connected to the facts alleged in the charge.

… Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), 16 O.R. (3d) 214 (C.A.), at p. 220;

(2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C. (M.H.), supra, at p. 772;

(3) number of occurrences of the similar acts: Batte, supra, at pp. 227-28;

(4) circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358);

(5) any distinctive feature(s) unifying the incidents: Arp, supra, at paras. 43-45; R. v. Fleming (1999), 171 Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472;

(6) intervening events: R. v. Dupras, 2000 BCSC 1128, [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

[21] As mentioned, evidence of similar acts and of discreditable conduct by an accused is presumptively inadmissible. The onus is on the prosecution to satisfy me on a balance of probabilities that in the context of this particular case, the probative value of the evidence in relation to a material fact in issue outweighs its prejudicial effect on the fairness of the trial and justifies its admission.

[22] An assessment of the probative value of the other discreditable conduct evidence involves consideration of: the strength of the evidence, the extent to which the proposed evidence supports the inference(s) sought to be made from it, and the extent to which the matters it tends to prove are at issue.

[23] Once having assessed the probative value of the evidence in accordance with these principles, the next step is to identify and evaluate the potential moral and reasoning prejudice resulting from the admission of the evidence.

[24] The final step in the determination of the admissibility of the evidence is the weighing of the probative value versus the prejudicial effect.

[25] In this case, the Crown submits that the primary purpose of the proposed similar fact evidence is to prove the actus reus of the offences; and to demonstrate a specific propensity on the part of the accused. A secondary aspect to the evidence is premised on supporting the credibility of the complainants.

[26] As referenced above, the jurisprudence suggests that it is not a requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused’s conduct.

[27] In assessing probative value, the first step is to identify the issue to which the evidence relates. Trial judges are cautioned that care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown's case. It is conceivable that anything that impugns the accused’s character may tend to enhance the credibility of the complainant.

[28] The probative value of the similar fact evidence tendered in this case depends upon two inferences from the evidence; that Burnet had the specific propensity to act in a particular way as described by the Crown and the proposed evidence to be adduced and whether he actually acted in conformity with this propensity at the time of the events alleged by the complainants. As counsel points out, the reliability of the complainants is the central focus of the defence in this trial.

[29] Once the issue or issues in question have been identified, the next step is to identify the required degree of similarity. In Handy, as in this case, the issue was the actus reus of the offence. The Supreme Court explained that the degree of similarity in such a case need not be higher or lower than where the issue is identity, but that the issue is different and the "drivers of cogency will therefore not be the same." Use of similar fact evidence in relation to the issue of whether an offence occurred generally requires a "persuasive degree of connection between the similar fact evidence and the offence charged." A pattern of discreditable conduct outlined in the indictment may "negative the defence of absence of intent" and may demonstrate "the individual acts in issue were not performed inadvertently or without guilty knowledge.

[30] I am mindful of the direction from Watt J.A. in J.M., wherein at para. 91 he stated:

The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is proffered and the other evidence in the case: Handy at para. 78. 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 being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused’s conduct in closely defined circumstance. What becomes necessary in such cases 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: Shearing at paras. 48 and 50. 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.

[31] In R. v. T.B. L., [2003] O.J. No. 1502 (C.A.) the Court of Appeal upheld a trial decision where the jury charge included the use of similar fact evidence despite the fact the alleged acts against two complainants were significantly different (touching of a breast and touching of a vagina). It seems that the "connectedness" of the evidence need not be identical alleged acts.

[32] In this regard, I note the Court of Appeal’s decision in R. v. Blake, [2003] O.J. No. 4589. In Blake, the two incidents that amounted to the prior discreditable conduct involved one girl and one boy; took place in different circumstances, in different relationships and each incident involved the accused touching the genitals of each child with his hand, in one instance over the child's clothes and in the other, under the boy's shorts, amongst other distinguishing features. The alleged offence in Blake was that the accused had kissed the complainant's vagina and pointed a blow-dryer at it; she was the daughter of his friend; the alleged offence occurred in his apartment with other individuals in close proximity.

[33] Simmons J.A. for the majority, noted there was only a generic similarity between the alleged offence and the discreditable conduct incidents (i.e. touching children's genitals in situations of privacy); remoteness in time (a gap of nine and ten years prior to the alleged offence); and no particularly distinctive features unifying the similar acts and the offence charged. At paras 25 and 26, the learned judge held:

With respect to distinctive features unifying or distinguishing the similar acts and the offence charged, the appellant submits that peculiar details of the offence charged -- namely, the allegation that he pointed a blow dryer at T.D.'s vagina and kissing her vagina -- were distinct from, and thereby dissimilar to, the other two instances of sexual abuse, which involved brief genital touching. The distinctiveness of the manner of sexual touching in the alleged offence against T.D. does not obscure the number of similarities. It could just as easily be said that the brevity of the alleged assault against T.D., and the fact that it involved brief genital touching by the appellant only -- whether or not it occurred with the hair dryer -- is more indicative of similarity or connectedness between the two prior assaults than not.

It is also important to note the dissimilarities of the similar act evidence. First, there was a time lapse of over ten years between the assaults against M.O. and J.B. and those forming the subject matter of the charge. Second, one of the previous instances of sexual assault involved a young male, while the other instance and the offence before this court involved young females.

[34] While this was a close determination for admissibility, in Simmonds J.A.’s view, the similarities identified by the trial judge contained limited details.

[35] Abella J.A., in dissent, upheld the trial judge's finding. In her view, the admissibility of the evidence turned on whether the similarities disclosed "a propensity with the requisite degree of specificity" to justify reception of the evidence despite the unfair prejudice to the accused. Abella J.A. found that it did in that it disclosed a type of circumstance where the accused was disposed to sexually abuse children in a particular way. She did not consider the issue as general disposition; rather, whether the evidence was probative of repeated conduct of a similar type in a specific situation.

[36] The majority decision in Blake has been followed and addressed by many courts since its inception.

[37] In R. v. L.T., the Court of Appeal noted differences in the nature of the allegations, remoteness in time, and the ages of the complainants, as well as the differences in relative-status in rejecting the trial judge’s consideration of the similar fact evidence application. In R. v. Candale, the Court of Appeal found only generic similarities in the conduct and the remoteness in time of the previous conduct (a conviction 11 years earlier) in rejecting the proposed evidence.

[38] Returning to Blake, in that case there was a 9-10 year gap between the incidents which was said to be “remote in time”. Here, the gap is somewhat less significant (approximately 4 years). The respondent urges that remoteness in time affects the relevance and reliability of such evidence. That is but one factor, albeit notably, an important consideration. However, it is my view that the case can be distinguished from the case at bar.

[39] I pause to mention that, at this stage, while I must consider the probative value of the evidence sought to be adduced, that does not mean that I must exhaustively examine and weigh the entirety of the evidence and in particular, make my final determination about the credibility and reliability of the complainants’ evidence to the extent that I would as the ultimate trier of fact.

[40] The jurisprudence provides that where propensity underlies the probative value of similar act evidence, the demarcation between general propensity and specific propensity is most understood as depending upon the objective improbability of coincidence. In other words, the closer the circumstances of the similar acts resemble the circumstances under which the charged act was committed, the less likely the similarity can be explained by coincidence.

[41] As Spies J. in R. v. M. B., [2008] O.J. No. 2358 (S.C.) stated at para. 41; “as a matter of common sense, is it against all probability that, in light of what the Crown can show that Mr. B. did to his two nieces, it is a mere coincidence that the complainant is not telling the truth when he describes what he alleges Mr. B. did to him?”

[42] As identity is not at issue, the degree of similarity required is somewhat reduced, not a hallmark or signature. R. v Cresswell, 2009 ONCA 95, [2009] O.J. No. 363 (CA). However, the similarity must be sufficient to establish the 'objective improbability of coincidence.' In other words, the evidence must be sufficiently similar and to render it improbable that the complainant would concoct a version so similar to the other versions being provided by the witnesses. In considering the strength of the similar act evidence in establishing these desired inferences, there must be a persuasive degree of connection between the similar fact evidence and the allegations in the current case. It is clear that my task is not to just add up similarities and dissimilarities: Shearing at para. 60.

[43] Similar act evidence need not be virtually conclusive of guilt to be admissible. I accept that the similarity does not necessarily require a strong peculiarity or unusual distinctiveness underlying the events being compared, although similar facts demonstrating a unique trait will likely be admissible.

Proximity in time of the similar acts

[44] I accept that the events alleged are not proximate in time. However, in this case, while there is a period of time separating the events, in my view, the strength of the evidence is not entirely diminished by the passage of time between the events.

Extent to which other acts are similar in detail to the charged conduct

[45] I have already outlined the evidence outlined by the Crown in respect of this application. The events and surrounding circumstances are similar in nature.

Number of occurrences of the similar acts or circumstances

[46] I must be cautious that I do not take a macro approach or exaggerate occurrences. However, in this case, the number of occurrences is such that there is the improbability of coincidence may not be very high.

Circumstances surrounding or relating to the similar acts

[47] There are features leading up the alleged incidents and their context are sufficiently distinctive as described by the complainants. The alleged assaults occurred in the Burnet house, in a somewhat secluded setting. Both children had a friendship or connection to the accused, and were in the house for a variety of other reasons unrelated to the acts.

The existence of any distinctive features

[48] I have already reviewed the circumstances leading up to the alleged events in the Burnet house. I agree with the Crown to the extent that there is some distinctiveness to the conduct with regards to both complainants. The nature of the exposure of the accused’s genitalia in a private milieu or setting, upstairs, in conjunction with the specific clothing worn, the contemporaneous viewing watching of pornography, and the surrounding circumstances attributed to the respondent immediately or following the event to each complainant, are similar in nature.

Intervening events

[49] There were no intervening events, other than the passage of time.

Any other factor that would tend to support or rebut the underlying unity of the similar acts

[50] In this case, the defence concedes that there is no evidence of collusion or recent fabrication and no argument was advanced in this regard.

[51] The credibility and more importantly, the reliability of the complainants' testimony in this case is a very live issue.

[52] Evidence capable of supporting their accounts of events is therefore material to the case: Handy, at p. 274. I am satisfied that there is some probative value that goes to the actus reus of the allegations and therefore, to the credibility or memory of the complainants. I find that the events described are not of a generic fashion and do have the connectedness to the alleged conduct in this trial.

[53] Before leaving this issue, as mentioned in Handy, the Supreme Court identified two areas of potential prejudice that must be addressed. I am obliged to consider both the potential for “moral” and “reasoning prejudice.” The similar act rule only prohibits reasoning from "general" disposition. Propensity or disposition evidence can exceptionally be admitted if it survives the rigors of balancing probative value against its prejudicial effect.

[54] It is clear that the assessment of probative value is not a mathematical exercise of comparing the numbers of similarities and differences. The cogency of the evidence is not weighed solely by the degree of similarity. The assessment of the prejudicial effect of the evidence entails a consideration of the danger of moral and reasoning prejudice. The danger of confusing or distracting the trier of fact is minimized in this judge alone case. I must also consider the accused’s ability to respond to the evidence.

[55] In J.M., Watt J.A. endorsed that in trials by judge alone, the danger that a conviction will be rooted in either reasoning or moral prejudice is significantly lessened. When considering its prejudicial effect of similar act evidence in a judge alone trial, the considerations are not the same as with a jury trial. As a judge sitting alone, I am ever mindful of the concern of moral or reasoning prejudice. In this trial, the prosecution must prove all of the essential elements of the offences beyond a reasonable doubt.

[56] Again, I refer to the statements offered in Blake in respect of the proposed use of the evidence as a general approach to credibility. In my view, the comments of Borins J.A. in T.B. at para. 31 are applicable to this case:

In R. v. Cresswell, [2009] O.J. No. 363, 2009 ONCA 95, a decision of this court released January 30, 2009, the appellant was tried on six counts of sexual assault in a non-jury trial. The court rejected the appellant’s submissions that the trial judge erred by ruling that the evidence on each count was admissible as similar fact evidence on all the other counts. Relevant to this appeal is what the court said at paras. 9 and 10:

We note as well that Handy states that admissibility is conditioned by the issue to which the evidence is directed. Here, the evidence went not to identity, where distinctive features amounting to a “signature” may be required, but rather to the actus reus, where less cogent similarities may render the evidence admissible.

Finally, we observe that this was a judge alone trial on a multi-count indictment. There was no severance application and it was inevitable that the judge deciding the case would hear all of the evidence. While this, of course, does not by itself render the evidence admissible across all counts, it significantly reduces the risk of prejudice. Moreover, in his reasons, the trial judge properly identified the permitted use of similar fact evidence and cautioned himself against prohibited lines of reasoning.

Conclusion:

[57] Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.

[58] A segment of the similar act evidence in this case goes beyond simply suggesting that the respondent has a specific disposition. It can be inferred that there is a pattern of conduct and similarity of behaviour of a sexual nature towards both complainants in his home.

[59] Moreover, I see little chance, in a judge alone trial, of prejudice arising from engaging in invalid lines of reasoning. This in no way has usurped the accused’s ability to respond to the evidence.

[60] I have determined that the proposed evidence supports the inferences sought to be made. The count-to-count similar act evidence is probative and relevant to the issue of the actus reus and KC’s and KA’s credibility.

[61] The Crown’s application is granted.

A.J. Goodman J. Released: October 26, 2018