ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
CHRISTOPHER HEARD
Respondent
Philip Perlmutter, for the Appellant
Gary Clewley, for the Respondent
HEARD: September 14, 2018
Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada
REASONS FOR DECISION
dunnet j.
Overview
1This case involves allegations of sexual assault against the respondent, a police sergeant. At trial, the Crown alleged that the respondent sexually assaulted the complainants S.F. and M.N. on separate occasions in his marked police vehicle after offering each one a ride home. The first alleged sexual assault of S.F. occurred on September 25, 2015, while the second alleged sexual assault of M.N. took place on November 1, 2015, during a time when the respondent knew that he was under investigation for the first allegation by the Special Investigations Unit (SIU), a civilian law enforcement agency.
2The Crown’s position at trial was that in both situations, the complainants were sexually assaulted in the same manner under the same circumstances: (1) the respondent targeted both complainants who appeared to be alone in Toronto’s entertainment district late at night; (2) both were offered a ride home by the respondent; (3) both accepted the ride because the respondent was a uniformed police officer and was driving a marked police vehicle; (4) both sat in the front passenger seat of the vehicle; (5) the respondent did not turn on the in-car video or audio system; (5) the respondent did not advise the dispatch operator that he had left his division; and (6) the respondent engaged in unwanted sexual touching of the complainants until he was rebuffed.
3The respondent admitted that at the time of these events, he did not turn on the in-car video or audio system or advise the dispatch operator that he had left his division, contrary to police policies and protocols. He denied that he engaged in unwanted sexual touching of both complainants.
4The Crown brought a similar fact application to demonstrate the respondent’s pattern of behavior or modus operandi; to counter the defence of outright denial, and to prove the actus reus of the offences. The defence conceded admissibility, similarity, and lack of collusion.
5The position of the Crown was that the probative value of all of the similar fact evidence, given the identical versions of the respondent’s conduct, rendered the likelihood of coincidence objectively improbable. The trial judge stated in his reasons that the Crown was not relying on similar facts extrinsic to the evidence of the complainants. He acquitted the respondent of the charges.
6The appellant submits that the trial judge misapprehended the Crown’s position and improperly limited the scope of the similar fact evidence that he was obliged to consider in relation to the ultimate issue of the respondent’s guilt. Further, his reasons regarding the similar fact evidence are conclusory and insufficient to permit meaningful appellate review.
7The respondent’s position is that the trial judge did not err in his consideration of the similar fact evidence. He explicitly found that the evidence of each complainant did not satisfy him beyond a reasonable doubt that the actus reus had been proven and the similar fact evidence did not factor into the outcome. As the respondent submitted on this appeal, unreliable evidence cannot assist unreliable evidence.
Reasons of the Trial Judge
8In his reasons, the trial judge accepted that both charges of sexual assault arose in very similar circumstances.
The Evidence of S.F.
9On September 4, 2015, S.F. met her friend, K.H., at the Oasis Restaurant at 9:30 p.m. S.F. drank one glass of wine. They went to the Mascot Brewery where S.F. consumed another glass of wine. They left at 12:30 a.m., unlocked their bicycles, and Ms. K.H. rode away. S.F. was fumbling around with her bicycle, trying to get her lights on, when the appellant yelled at her through the passenger window of his police vehicle and asked if she was okay. She said yes.
10The trial judge detailed the exchange that followed:
The respondent: Are you sure? You don’t look okay.
S.F.: I don’t know why you would say that. I’m totally fine.
The respondent: Why don’t you let me drive you home?
S.F.: No, I’m okay. I live close by.
The respondent: Just let me drive you home.
S.F.: No, no, it’s fine.
The respondent: No, just take a free ride home.
11Because the respondent was persistent and was not leaving S.F. alone, she ultimately agreed to accept the ride home. She testified that he was a police officer and she trusted him. He put her bicycle into the back seat of the vehicle and told S.F. to get into the front seat.
12As soon as the respondent started driving, he told S.F. that she was really beautiful. He reached over and put his right hand on her inner left thigh within two inches of her vagina. She felt violated and told him to get off of her. When she realized that he had driven past her house, he told her not to worry. He would “get her home”.
13S.F. told the respondent that it was “really creepy” that he was picking up girls on his shift and that he probably had a wife and kids at home. The respondent stopped his vehicle in a parking lot. He kept telling S.F. that she was beautiful and that she was a nice girl. Because she did not want him to think that she was somebody who could not stand up for herself, she told him to look at her record because there was a restraining order against her.
14The appellant tried to touch her again in the same place. She told him to get off of her and he did. She saw him looking at her record on the computer screen and he said, “You’re bad”. When he dropped her off at home, S.F. felt angry, vulnerable, and scared. The next morning, she reported the incident to the police.
15In cross-examination, S.F. could not remember if she pushed away the appellant’s hand, although she believed that she did.
16She rejected suggestions that she had two drinks at Oasis and two more at Mascot. She denied that she asked the appellant to tell her when the restraining order expired. She agreed that the order was a huge reason that she disliked the police because they had convinced her former boyfriend to charge her with assault by threatening to take away his dog and his apartment.
17She acknowledged telling the SIU that when she was in the police vehicle, she was ranting about hating the police. She maintained that it was because of the respondent’s conduct. She acknowledged that she told him that “cops” are a bunch of liars and cheats.
The Evidence of M.N.
18On Halloween night, October 31, 2015, M.N. arrived at the Underground Garage at 10:30 p.m. and consumed six drinks. Although she was coherent and aware of what was happening, she decided to go home at 2:30 a.m. She was standing outside talking to the bar’s security officer when a marked police van approached her. The respondent rolled down the passenger window and asked if she was okay.
19M.N. told him that she was trying to get a taxi and he asked her where she wanted to go. She said, “Regent Park,” and he said, “Okay, I’ll take you there”. She replied, “Are you sure? Okay, thank you”. M.N. testified that she felt that she could trust an officer of the law and she entered the front passenger seat. On the drive home, she showed the respondent photographs of her six-year-old daughter on her cell phone.
20When they arrived, the respondent urged M.N. to take down his cell phone number to let him know that she was safely inside. She said, “Okay, I didn’t know you guys were allowed to do that, but okay”.
21As she was entering his number into her cell phone, she felt a gentle touch on her inner left thigh in the area of her pubic bone. She looked down, slapped his hand away and said, “What are you doing?” He did not say anything. She thanked him for the ride, went into her building and texted him that she got home safely.
22M.N. testified that after the respondent touched her, she was “scared because he’s an officer and he could say anything against me”. It made her feel uncomfortable because the same thing had happened to her when she was eight years old.
23M.N. contacted the police because she saw on Facebook that the respondent had been charged with sexual assault. When she was asked how she was able to determine if it was the same police officer, she said:
Because I was coherent enough and I have a very photographic memory. I don’t forget something like that. Till this day, I can tell you the guy that touched me when I was eight.
24The trial judge found that “despite her self-professed memory”, M.N. acknowledged in cross-examination that she was wrong when she reported that the police vehicle was a minivan with sliding doors when in fact, it was a sport utility vehicle. She was certain that she did not give the respondent her cell phone number.
25She denied that she asked the respondent for his business card or that she met him around the back of her building between 3:03 a.m. and 3:11 a.m. She denied that the respondent telephoned her. When confronted with her cell phone records, she acknowledged that there was a telephone call from the respondent to her number at 3:07 a.m. She maintained that she did not talk to him. She denied receiving text messages from him at 3:15 and 3:32 a.m.
26She acknowledged that the records showed that she texted the respondent three times at 8:06 a.m. When she was asked what was in the messages, she said that they thanked him for giving her a ride and informed him that she arrived home safely.
27M.N. recalled that while speaking to the security guard outside the bar, he cautioned her against taking a ride with a police officer and told her to call him when she arrived home.
The Evidence of K.H.
28S.F.’s friend, K.H., testified that she arrived at Oasis around 6:45 or 7:00 p.m. and drank four glasses of wine. She was unsure of how many glasses of wine that S.F. drank. When Ms. K.H. left, she walked her bicycle away.
29In cross-examination, she agreed that when speaking to the SIU, she rated S.F.’s sobriety at two out of ten. In re-examination, she acknowledged revising her estimate to five or six out of ten.
The Evidence of John Bakker
30John Bakker, a security guard at the Underground Brewery, knew M.N. because she had worked there. He recalled speaking with her on Halloween night and asking her if she was okay. She said that she was fine. He did not see her getting into a police vehicle.
31In cross-examination, he said that he did not recall seeing M.N. get into a police vehicle. He sent her a Facebook message the next morning to see if she was okay.
The Evidence of the Respondent
32At the time of the trial, the respondent had been a member of the Toronto Police Service for 27 years and a sergeant for ten or eleven years. On September 23, 2015, he was in the entertainment district when he saw S.F. who appeared to be having trouble with her bicycle. He asked her if she was all right and she told him that she was having problems with the light on her bicycle. He told her that she had too much to drink and that she should not be riding her bicycle. He offered to drive her home.
33The respondent put S.F.’s bicycle into the back seat when it would not fit into the trunk of his vehicle. S.F. entered the front seat. On the drive to her house, the respondent “overshot by a block, by accident”. He denied that he touched her inappropriately.
34The respondent’s evidence was that S.F. told him that she wanted to know when her peace bond expired. Because he thought that it was a reasonable request, he stopped his vehicle and conducted a search on the Canadian Police Information Centre database (CPIC).
35When he told S.F. that the peace bond would expire in four weeks, she became enraged and said that the only reason she was charged was because the police had threatened her boyfriend with losing his dog and his house if he did not give them a statement. She told the respondent, “Just like my father says, you guys are all lying, cheating bastards”.
36After he drove S.F. home, the respondent drove back to 52 Division where he was stationed. He did not tell the dispatch operator that he had driven to 14 Division. He agreed that he should have done so.
37On November 1, 2015, the respondent observed four or five men walking behind M.N. using derogatory remarks towards her and parts of her body. He believed by her manner of walking that she had “an awful lot” to drink. He asked her if she was all right and if he could call her a taxi. She told him that she did not have any money and he offered her a ride home. He agreed that he should have informed the dispatch operator that he was taking M.N. out of the police division to which he had been assigned.
38When he arrived at M.N.’s home, he urged her to take his cell phone number and text him when she was inside her apartment. Because he did not know if she was correctly entering his number into her phone, he recorded her cell phone number on a piece of a paper. He denied that he touched M.N. inappropriately.
39The respondent’s evidence was that while he was in his vehicle outside her home, he called M.N. at 3:07 a.m. using his personal cell phone. During the call, M.N. reminded him that he had not given her his business card as a result of an earlier conversation when she told him that she had a relative who was in trouble with the police. They agreed to meet behind her building where he gave her his business card. She thanked him and gave him a hug.
40The respondent confirmed that the cell phone records showed that he sent M.N. a text message at 3:15 and at 3:32 a.m. At 8:06 a.m., M.N. sent him three text messages thanking him for the ride home.
41In cross-examination, the respondent acknowledged that in October 2015, he was aware that the SIU had designated him as a subject officer in relation to the allegation by S.F. a few weeks earlier.
42He testified that he was familiar with the in-car video and audio system and that there was nothing to prevent him from activating the system on either of these occasions. He testified that he was familiar with the mobile data terminal from which CPIC searches can be conducted and he was aware that non-police work-related matters were not to be undertaken on CPIC. He agreed that he should have reported the CPIC search and failed to do so.
43Although he testified that his interactions with S.F. and M.N. were professional, the respondent acknowledged that he gave M.N. his personal cell phone number and not his police-issued cell phone number.
44The respondent agreed that during his interactions with S.F., given the fact that he had an intoxicated and enraged person in his vehicle who hated the police, he could have activated the in- car video and audio system. With respect to M.N., he agreed that, given that he was alone in Regent Park at 3:00 a.m. and the dispatch operator did not know where he was, it would have been prudent to activate the in-car video and audio system when he left his vehicle unattended to meet her at the back of her building.
The Trial Judge’s Legal Analysis and Findings
45Central to this appeal is the trial judge’s consideration of the similar fact evidence. In his reasons, the trial judge set out the requirements for admissibility of similar fact evidence as follows:
(i) the relevance of the evidence to an issue in the case, otherwise than by demonstrating the propensity of the [respondent] to commit crimes or other disreputable or repugnant acts;
(ii) the probative value of the evidence;
(iii) the prejudicial effect of the evidence, and
(iv) a balancing of the probative value against the prejudicial effect of the evidence.
46The trial judge noted that evidence of similar facts is presumptively inadmissible and the onus is on the Crown to show on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect.
47He stated, “In this case, the Crown is not relying on any similar facts extrinsic to the evidence of the two complainants admitted in this trial”. He correctly noted that they were complete strangers to each other and that there was no evidence of collusion.
48The trial judge listed six striking similarities in the evidence of the complainants:
(1) both were alone in the downtown entertainment district in the early morning hours;
(2) both had consumed alcohol;
(3) both were offered a ride home by the respondent;
(4) both accepted the ride because the respondent was a police officer in uniform and was driving a marked police vehicle;
(5) both were sexually assaulted by the respondent rubbing the inner thigh of their left leg near the pubic area as they each sat in the front passenger seat of the respondent’s police vehicle, and
(6) the unwanted touching stopped when the respondent was rebuffed.
49The trial judge then stated:
The defence did not dispute the degree of similarity of the evidence of the two complainants. When asked by me, if I were to admit the evidence on the basis of the standard test of probative value versus prejudicial effect, would it be of any assistance, the defence argues that it would not, as the evidence of both S.F. and M.N. is insufficient on either or both grounds of reliability and credibility [emphasis added].
50The exchange between defence counsel and the trial judge on this issue was as follows:
Mr. Clewley: On the similar fact, I should say, in my respectful submission, whatever you make of the merits – and I don’t stand here and dispute the degree of similarity – I say that if the evidence standing alone of either [S.F.] or [M.N.] is insufficient on either or both grounds of reliability and credibility, it can’t be of any assistance to the other complainant. … It can’t buttress something that, in and of itself, is not worth taking seriously. …
The Court: So basically you’re saying, even if I accept it, on the test, you know, probative versus prejudicial, it wouldn’t be of any real assistance –
Mr. Clewley: I agree.
The Court: -- given the shortcomings that you indicated –
Mr. Clewley: Right.
The Court: -- or argue with regard to both their evidence?
Mr. Clewley: You can’t move laterally because it can’t stand on its own.
51In his W. (D.) analysis, the trial judge specifically rejected the respondent’s blunt and terse denials of inappropriate touching of both complainants as lacking credibility and reliability.
52He found that the respondent’s credibility was further weakened by his brazen conduct in conducting himself in a highly similar fashion with M.N. after being advised that he was under investigation by the SIU regarding the allegations of S.F.
53What the trial judge found to be most problematic was the respondent’s deliberate disregard for police policies and protocols in the use of police equipment. He stated that this rendered the respondent’s conduct more egregious for a police officer of 27 years’ experience with ten of those years as a police sergeant. Further, his failure to abide by those policies defied logic and common sense and created an opportunity to engage in wrongful conduct that would be undetected.
54He concluded that the respondent’s evidence was not credible and in its totality, his evidence did not raise a reasonable doubt.
55With respect to S.F., the trial judge stated that her evidence was inconsistent with the evidence of Ms. K.H., which he accepted, as to the time that they met and the amount of wine that S.F. consumed.
56He specifically found:
S.F. did give a clear and detailed account of the interaction with the defendant. She remained steadfast in her assertion of the inappropriate sexual touching by the defendant on both occasions.
57He concluded that “her degree of intoxication and animosity toward police significantly impacted the credibility and reliability of her evidence, even with the assistance of the similar fact evidence” [emphasis added]. Further, her evidence was insufficient to find that the Crown had proven its case beyond a reasonable doubt.
58With respect to M.N., the trial judge stated that the inconsistencies in her evidence about the phone records, the contradictions with the evidence of Mr. Bakker, which he accepted, and her level of intoxication impacted the credibility and reliability of her testimony.
59He concluded:
The only matter on which she did not falter was the core allegation of the sexual touching. On the basis of a careful evaluation of all her evidence and probative effect of the similar fact evidence, I find that I have a reasonable doubt as to whether the sexual assault occurred [emphasis added].
The Appellant’s Submissions
60The appellant submits that the trial judge failed to properly consider the similar fact evidence and failed to provide sufficient reasons explaining his treatment of the similar fact evidence. He failed to properly consider the evidence in its totality and failed to assess individual pieces of evidence in the context of the evidence as a whole.
61The appellant asserts that the trial judge failed to consider the probative value of the similar fact evidence and the improbability of coincidence between the complainants’ identical version of events, except to observe incorrectly that the Crown was not relying on any similar facts extrinsic to the evidence of the complainants. He then adopted a “silo approach” to the similar fact evidence, focusing exclusively on the complainants’ testimony.
62It is submitted that the Crown was relying on distinctive similarities in the evidence said to demonstrate the respondent’s modus operandi or pattern of behavior, including similar facts extrinsic to the evidence of the complainants.
63Further, with respect to the respondent’s outright denial of the acts charged, the position of the Crown was that the evidence, when considered as a whole in the context of the similar fact evidence, rendered the likelihood of coincidence objectively improbable.
64The appellant states that the trial judge erred when he rejected the evidence of the complainants without considering the improbability of coincidence and then asked himself if the similar act evidence could revive their credibility.
65The appellant submits that the similar fact evidence, including the evidence extrinsic to the complainants’ evidence, was directly relevant to and probative of the credibility of the complainants. Had the trial judge properly considered that evidence, he would have had an important piece of extrinsic evidence to support a legitimate chain of reasoning that the respondent sexually assaulted the complainants.
66It is submitted that nowhere in the reasons is it evident that the trial judge understood and considered how or why the similar fact evidence was of no assistance.
67The position of the appellant is that these errors had a material bearing on the verdict. Therefore, the decision of the trial judge cannot stand.
The Respondent’s Submissions
68The respondent acknowledges that the admissibility of the similar fact evidence was not in dispute. It was agreed on consent that the evidence met the threshold test.
69The respondent submits that the trial judge was alive to the importance of the similar fact evidence and found that it could not revive the unreliable evidence of the complainants. Therefore, an analysis of whether the evidence of each complainant could support the other was unnecessary.
70It is submitted that the trial judge did not err in his consideration of the similar fact evidence. He explicitly found that the evidence of each complainant did not satisfy him beyond a reasonable doubt that the actus reus had been proven and the similar fact evidence did not factor into the outcome.
71The position of the respondent is that when the trial judge stated that the Crown was not relying on any similar facts extrinsic to the evidence of the complainants, he was referring to the evidence of others who could testify that the respondent had engaged in similar conduct.
72Counsel for the respondent states that the trial judge must have considered the evidence of modus operandi and improbability of coincidence, given that he took it into account in rejecting the respondent’s evidence.
73The respondent relies primarily on R. v. P.B., [2001] O.J. No. 1985 (Ont. S.C.) where the Crown appealed from the acquittal of the accused teacher on a charge of sexual exploitation of a female student. The trial judge admitted the evidence of two other female students who testified about sexual conversations that P.B. had with them. Their accounts included similar comments by P.B. as between the two witnesses and similar to comments alleged by the complainant to have been made by P.B. to her.
74The trial judge characterized the evidence of the three women as evidence regarding non-criminal conduct and found it to be credible. He rejected P.B.’s evidence denying the non-criminal conduct. He did not expressly mention the similar fact evidence in assessing the complainant’s evidence.
75In P.B., the appellant argued that the trial judge failed to take into account the similar fact evidence in evaluating the complainant’s credibility regarding the actus reus of the offence. In rejecting the appellant’s argument, Glithero J. stated at para. 14:
The appellant places weight on the remark set forth above that C.H.’s evidence “does stand alone”. It is submitted that that remark shows the trial judge was ignoring the similar fact evidence. In reading the reasons as a whole, I do not agree. Having already rejected the respondent’s evidence, the trial judge was correct in stating that the complainant’s evidence did stand alone, as it was the only other evidence of what transpired on the occasion when she and the respondent were alone and the invitation to touch was allegedly made. While the similar fact evidence might strengthen or make more likely the complainant’s version of what was said, the fact remains that unless her evidence was accepted, there could be no conviction.
76The respondent submits that because the evidence of S.F. and M.N. was found to be unreliable, the evidence of each complainant could lend no support to strengthen the credibility of the other.
77The respondent contends that, unlike the trial judge in P.B., the trial judge here explicitly stated that he considered the similar fact evidence regarding S.F. (“even with the assistance of the similar fact evidence”) and M.N. (“on the basis of a careful evaluation of all her evidence and probative effect of the similar fact evidence”).
78The respondent also relies on R. v. Powell, 2010 ONCA 105 where the Crown appealed the acquittal of the accused who was charged with attacks on eight sex trade workers. Three of the workers identified the accused and their evidence was admitted as similar fact evidence. At trial, the Crown submitted that there was a high degree of improbability of coincidence in three different victims each identifying the accused as the assailant.
79The trial judge found the identification evidence of the three complainants to be unreliable and dismissed the case. It is submitted that the similar fact evidence here could not support the credibility of the complainants because it suffered from the same deficiencies as their evidence at large.
80The respondent cites R. v. Bereznicki, 2015 ABCA 144 where the Alberta Court of Appeal dismissed a Crown appeal from an acquittal on three counts of sexual assault. The trial judge found the evidence of each complainant to be unreliable and found no striking similarity that would allow for the use of similar fact evidence in credibility findings. The court held that the complainants’ evidence on the issue of consent was unreliable and it was unnecessary to go further:
Unreliable evidence has little probative value. It is illogical to suggest that unreliable evidence from one count can be used to bolster unreliable evidence on another count (at para. 24).
81The respondent asserts that the judgment of the trial judge leaves no doubt about how the outcome was reached, nor does it prevent meaningful appellate review. When read as a whole, the reasons of the trial judge suggest that he assessed the evidence of the complainants with the similar fact evidence in mind and found that their evidence fell short of the criminal standard. Thus, there were no errors in the treatment of the similar fact evidence or in the sufficiency of the reasons.
Analysis
82In R. v. Graveline, 2006 SCC 16, at para. 14, Fish J. said:
It has long been established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted, but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.
83Similar fact evidence is a piece of circumstantial evidence and the weight to be attributed to it is a question for the trier of fact. In R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 at para. 72, Cory J.A. said:
Similar fact evidence, on the other hand, as circumstantial evidence, must be characterized differently, since, by its nature, it does not carry the potential to be conclusive of guilt. It is just one item of evidence to be considered as part of the Crown’s overall case. Its probative value lies in its ability to support, through the improbability of coincidence, other inculpatory evidence. As with all circumstantial evidence, the jury will decide what weight to attribute to it. The mere fact that in a particular case, similar fact evidence might be assigned a high degree of weight by the trier is entirely different from the concept that, by its nature, the evidence has the potential to be decisive of guilt.
84The leading authority on the admissibility of similar fact evidence, R. v. Handy, 2002 SCC 56, provides that the starting point is that the evidence linking the accused to other discreditable acts or conduct is presumptively inadmissible. This is due to the general exclusionary rule against the reception of evidence of general propensity, disposition, or bad character: Handy, at para. 36; R. v. Bent 2016 ONCA 651, at para. 32.
85The onus is on the Crown to satisfy the trial judge on a balance of probabilities that the probative value of the evidence in relation to a particular issue sufficiently outweighs its potential prejudice. This analysis requires an assessment of the probative value of the evidence, its prejudicial effect, and whether the probative value displaces the prejudicial effect.
86In R. v. Bent, at paras. 36-37, Strathy C.J.O. held:
36 The probative value of the evidence is based on the improbability of coincidence between the similar acts and the acts at issue in the proceeding.
37 In determining the probative value of the similar fact evidence, the court must consider the degree of its relevance to the facts in issue and the strength of the inferences that can be drawn from it. In Handy, at para. 42, Binnie J. noted that the “inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence.”
87In this case, the admissibility of the similar fact evidence was not in issue. Nonetheless, the trial judge set out the requirements for admissibility and noted in his reasons that he asked defence counsel if it would be of any assistance if he were to “admit the evidence” on the basis of the standard test of probative value versus prejudicial effect. The respondent’s position was that if the evidence of the complainants was rejected, an analysis of whether the evidence of each complainant could support the other was unnecessary and the similar fact evidence could not assist. The trial judge appears to have accepted the respondent’s argument.
88In my view, the approach of the trial judge was flawed. At the outset of the trial, the Crown submitted in its similar fact application that the similar fact evidence was probative of the following issues: to demonstrate a pattern of behavior; to counter the defence of innocent association or outright denial, and the actus reus of the offences.
89The Crown listed eight distinctive similarities that demonstrated a pattern of behavior by the respondent, including similar acts extrinsic to the evidence of the complainants:
(1) targeting of females who appear to be alone in the entertainment district late at night;
(2) driving a marked police vehicle;
(3) offering a presumably safe ride home;
(4) does not turn on in-car camera;
(5) does not advise dispatch;
(6) does not use overt violence or aggression;
(7) engages in unwanted sexual touching until rebuffed, and
(8) no follow up.
90The Crown’s position was that the probative value of the similar fact evidence was not outweighed by its prejudicial effect and, in particular:
With respect to the issues of denial or innocent association, including whether the touching was accidental or otherwise interpreted, it is submitted that the evidence, when considered as a whole in the context of similar fact, renders the likelihood of coincidence objectively improbable.
91At the end of the trial, in written and oral submissions, the Crown relied on the similar fact evidence to establish the respondent’s modus operandi. In the Crown’s Written Outline of his closing submissions filed with the court, it states:
By his own admission, the accused created the opportunity to engage in wrongful conduct undetected. He did so in spite of the obvious safety risks to himself and in flagrant contravention of TPS [Toronto Police Service] protocols and policy. This is not to suggest that the accused ought to be found guilty, ipso facto, because he is a habitual rule breaker. Rather, it is an important factor for this court to weigh in the context of all the evidence.
The allegations suggest that the accused is the sort of person who takes risks with his employment. This is confirmed by his flagrant contravention of his police policies and directives. That both complainants are young females, alone in the entertainment district in the early morning hours, perceived by the accused to be intoxicated, fit with the modus operandi of the accused in creating the opportunity to engage in wrongful conduct undetected.
92Crown counsel submitted to the trial judge that when he assessed and applied the similar fact evidence, he could be reassured about the veracity of M.N.’s allegation about how and where the respondent touched her, how it made her feel, and the fact that she referred to the experience she had when she was eight that caused the actions of the respondent to stand out in her mind.
93Crown counsel also submitted to the trial judge that the respondent’s perception of S.F. supported the Crown’s theory of his modus operandi in looking for vulnerable females that he could take advantage of in circumstances where any risk of detection was decreased.
94Accordingly, the Crown’s position on the probative value of the similar fact evidence was that the accounts of the complainants were so strikingly similar as to render the phenomenon of coincidence improbable.
95I find that the trial judge failed to consider the Crown’s position and assess the similar fact evidence along with all of the evidence, including the improbability of coincidence, in deciding whether or not to believe the complainants’ evidence. Therefore, the potential weight of the similar fact evidence was undermined in assessing the complainants’ credibility. The trial judge rejected their evidence and, in a cursory and conclusory statement, he found that the similar fact evidence did not make their evidence believable.
96The trial judge also failed to consider the qualitative force of the similarities between the similar fact evidence and the acts charged. As stated in Bent, at para. 36, the probative value of the evidence is based on the improbability of coincidence between the similar acts and the acts at issue in the proceeding.
97Moreover, he misapprehended the Crown’s position when he stated that the Crown was not relying any similar acts extrinsic to the evidence of the complainants. In doing so, he limited the scope of similar fact evidence to be considered in relation to the complainants’ evidence. In narrowing his approach to only the complainants’ evidence, he undermined the probative value of the evidence.
98I do not agree with the respondent’s suggestion that the trial judge was referring to extrinsic acts of others who could testify that the respondent engaged in similar conduct. It is clear from the evidence, the agreed facts, and submissions that the Crown was relying on the evidence of similar acts extrinsic to the complainants’ evidence, including the respondent’s admitted failure to activate the in-car video and audio system, his failure to advise the dispatch operator that he had left his division, his violation of police policies, and his targeting of young women late at night who appeared to be alone and intoxicated.
99The trial judge’s list of six similarities was confined to the evidence of the complainants. There is no reference in his reasons to the extrinsic acts explicitly relied upon by the Crown. It is arguable that this evidence may have provided independent verification of striking similarity between the events.
100Although the trial judge relied on the respondent’s admission that he failed to activate the in-car video and audio system in assessing and rejecting much of his evidence, it is not apparent from his reasons that he considered this conduct, which was repeated on both occasions, as capable of supporting the complainants’ testimony. Nor is it apparent from his reasons that he turned his mind to the improbability of coincidence of the similar fact evidence.
101In the circumstances of this case, I am of the view that the authorities relied on by the respondent do not assist. In P.B., the similar acts were characterized as non-criminal conduct, whereas here the complainants had identical versions of the manner of the criminal conduct and location on the body.
102In Powell, after the trial judge admitted the evidence of three witnesses as similar fact evidence capable of proving the identity of the accused, he found that the identification evidence was fraught with frailties and concluded that the Crown had failed to prove the accused’s guilt beyond a reasonable doubt.
103In Bereznicki, the trial judge found no striking similarities or distinctive conduct that would allow for the admission of similar fact evidence to be used in credibility findings.
Disposition
104I find that the trial judge erred in his assessment and application of the similar fact evidence. He misapprehended the Crown’s position and limited the scope of the evidence that he was obliged to consider in relation to the complainants’ similar fact evidence. He conflated the test for admissibility with the test for adjudication.
105His reasons regarding the similar fact evidence are conclusory and suggest that he failed to consider the probative value of the extrinsic evidence and its ability to support, through the improbability of coincidence, other inculpatory evidence. Moreover, he failed to consider the similar fact evidence as part of the Crown’s overall case and in relation to the ultimate issue of the respondent’s guilt.
106In R. v. J.W., 2013 ONCA 89, the Court of Appeal found that the trial judge erred in the legal reasoning respecting the admission of the similar fact evidence in acquitting the accused of sexual assault and indecent assault. At para. 68, Weiler J.A., speaking for the court, said:
However, as I have explained above, the proposed similar fact evidence was directly relevant to and probative of J.C.’s credibility. Had the trial judge admitted the similar fact evidence, he would have had an important piece of extrinsic evidence to support a legitimate chain of reasoning that the respondent had assaulted J.C. I therefore cannot accept the respondent’s argument that the admission of the similar fact evidence would have had no part to play in the trial judge’s ultimate conclusion. Rather, it seems to me that, absent the trial judge’s errors, the verdict would not necessarily have been the same.
107In this case, the similar fact evidence was directly relevant to and probative of the complainants’ credibility. Had the trial judge properly considered the similar fact evidence, he would have had an important piece of extrinsic evidence to support a legitimate chain of reasoning that the respondent sexually assaulted the complainants. Absent the trial judge’s errors, the verdicts would not necessarily have been the same.
108Accordingly, I am satisfied that the errors of the trial judge might reasonably be thought to have had a material bearing on the verdicts of acquittal. The appeal is allowed and a new trial is ordered.
Dunnet J.
Released: October 15, 2018
COURT FILE NO.: CR-17-00000126-00AP
DATE: 20181015
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Appellant
– and –
CHRISTOPHER HEARD
Respondent
REASONS FOR DECISION
Dunnet J.
Released: October 15, 2018