COURT FILE NO.: CR-18-100003820000 DATE: 20190618

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Applicant

• and - TEKLE TAMZEAN OGBAMICHAEL Respondent

Counsel: Jennifer Stanton, for the Applicant David Parry, for the Respondent

Heard: June 3-12, 2019

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identity of the complainant and THE SIMILAR FACT WITNESSES AND any information that could disclose such identity shall not be published in any document or broadcast in any way.

Ruling on Crown’s Similar Fact and Leaney Applications

SPIES J. (orally)

Introduction

1Tekle Tamzean Ogbamichael is charged, with sexual interference contrary to s. 151 of the Criminal Code and sexual assault contrary to s. 271 of the Criminal Code in relation to K.P. (“K.P.” or the “Complainant”) and four charges of failing to comply with his probation order. The offences are alleged to have taken place on one occasion while K.P. was riding on a Toronto Transit Commission (“TTC”) bus on October 3, 2016. Mr. Ogbamichael re-elected trial before me and pleaded not guilty to all charges.

2The Crown has brought two applications. The first is to permit Annette Deger, Mr. Ogbamichael’s probation officer to testify regarding her recognition of Mr. Ogbamichael on TTC video footage, (the “Leaney application”) and secondly to introduce, as similar fact evidence on this trial, the evidence of the two young women; N.T. (“N.T.”) and A.B. (“A.B.”) (the “Similar Fact application”). These two applications were heard together on a voir dire blended with the trial.

Summary of the Evidence

Background

3The offences allegedly occurred on a TTC bus after the Complainant K.P. and Mr. Ogbamichael boarded the bus at Dundas Street West Subway Station in Toronto.

4Four videos of the interior of the TTC bus that the complainant and, allegedly Mr. Ogbamichael rode during the alleged offences were entered into evidence. Each depicts different angles in the aforementioned TTC vehicle.

5In addition, media releases (“Media Releases”) created by the Toronto Police Service (“TPS”) and released on October 5, 2016 (“October 5 Media Release”) and on October 11, 2016, (“October 11 Media Release”) depict screen shots from the aforementioned TTC videos at moments when allegedly Mr. Ogbamichael is visible. The October 11 Media Release also contains two photographs of a man who is alleged to be Mr. Ogbamichael taken by K.S. on another occasion when she was suspicious about a male passenger’s behaviour aboard a TTC subway train. Both Media Releases gave a description of the alleged offender and that this person had sexually assaulted a 12 year old female, namely K.P.

6Mr. Ogbamichael contests that he is the person depicted in the aforementioned videos, stills and photographs and he contests both Crown applications.

The Evidence of K.P.

7The Complainant, K.P., was 12 at the time and she provided a video recorded statement to the police on October 4, 2016 wherein she described the events constituting the offences before the court. K.P. adopted her video recorded statement at trial pursuant to section 715.1 of the Criminal Code and was examined by both the Crown and the Defence.

8K.P. testified that on October 3, 2016, she got on a TTC bus at Dundas West station in Toronto. While waiting for the bus to come she noticed a man was staring and looking at her body and this made her feel uncomfortable. Their eyes locked and she did not look at him again. When the bus arrived, K.P. moved to the back of the bus and sat in a seat next to the window. This same male, who the Crown alleges is Mr. Ogbamichael, sat down on the seat next to K.P. to her right.

9K.P. testified that the male put a bag that appeared to be a laptop bag, on his lap that partially covered her lap. She then felt a thumb touching her for a few seconds on her right thigh, approximately three inches from her vagina. The male said he was sorry. K.P. moved closer to the window, away from the male. Then, the male "got … a little bit closer" and she "felt it again." K.P. testified she felt uncomfortable because the male touched her close to her “private part – my vagina”. K.P. accessed the request stop button on the bus and got off at her usual stop for school and told the principal what happened who in turn reported the incident to the TPS.

10K.P. provided a description of the man and at trial identified Mr. Ogbamichael as the man she complains of, while he was seated at counsel table next to Mr. Parry. Again Mr. Ogbamichael was the only black male in the court room at the time.

The Evidence of K.S.

11On October 11, 2016, Ms. K.S. contacted the TPS after seeing the October 5 Media Release. Although the image she saw was not very clear, she believed the male in the Media Release to be a man that she photographed on September 26, 2016, while riding the TTC subway. Although she did not see exactly what occurred she believed that a young female student in uniform sitting next to this man was uncomfortable. Ms. K.S. moved closer to these parties to make further observations. She did not witness any inappropriate touching.

12Ms. Stanton conceded that Ms. K.S. could not be a similar fact witness but she submitted that because the photographs that she took of this man are clearer than the TTC video images that I could use them to identify Mr. Ogbamichael. That is an issue for the trial proper.

13Ms. K.S. also identified Mr. Ogbamichael in the prisoner’s dock. She was not proffered as a Leaney witness and Ms. Stanton admitted that I could not rely upon her evidence that the person in the prisoner’s dock was the person that she saw on the TTC or in the Media Release. In any event as Mr. Ogbamichael was seated in the prisoner’s dock and was the only black male in the courtroom; this identification was of no value.

Evidence of Officer Nikola Drazic

14Officer Drazic arrested Mr. Ogbamichael on June 12, 2017 and he described his appearance at that time.

The Proposed Similar Fact Witnesses

The Evidence of A.B.

15On September 9th, 2015, A.B. who was 29 years old at the time was riding a transit bus operated by the Viva Transit System. She was seated in a seat by the window close to the bus driver. A black male whom the Crown alleges was Mr. Ogbamichael got on the bus and sat down next to her. A.B. testified that this man had a bag on his lap but that it was also up against her and “overlapping … [her] personal space”. She did not think much of this at the time and believes that this male apologized for having his bag so close to her. A.B. was doing her make-up and had two bags with her at the time. The male asked her for the time at some point and A.B. felt pressure on the side of her hip and then movement and she realized that the male was moving a finger against her. She pushed him away so that there was space between them and the male apologized a second time. A.B. was in shock and felt this touching was sexual and she felt “violated”. She decided that it happened again she would tell the bus driver. After a couple of minutes, A.B. felt the male touching her again with his finger. She did not actually see the male’s hand. A.B. got up and quietly reported this to the bus driver. The male got up to leave the bus and told the driver something along the lines that "she's crazy, I don't know what she was talking about". A.B. testified that the male was not in a position to have heard what she was saying to the driver prior to him uttering those words.

16A.B. described the male and identified him on video taken from inside the bus. She did not identify him in the courtroom, however, presumably because she testified that she never paid attention to his face. The male in the video was dressed quite differently from the male in the photographs taken by Ms. K.S. and the male identified as Mr. Ogbamichael in the other TTC videos. He had no baseball hat on his head and the bag in question was a back pack.

17Mr. Ogbamichael has been charged with sexual assault with respect to A.B. and his trial is scheduled to proceed in July in the Ontario Court of Justice (“OCJ”).

The Evidence of N.T.

18On May 4th, 2017, N.T. was travelling on a TTC bus and she observed a male standing on the bus when she came aboard, despite there being available seating. N.T. sat down as on one end of a group of three seats. The male in question subsequently sat beside her in the middle seat despite the third seat in the row being available.

19The male placed a large laptop bag on his lap and struck up a conversation with N.T. At some point after, N.T. felt something touching her upper thigh which she thought it was the male’s bag. The male apologized and put the bag to the side and he moved away a bit. However she then felt pressure and that something was making a massaging motion. She moved the bag and testified that saw the man’s hand on her upper thigh, close to her vagina. She looked up and he moved it immediately. N.T. believes that the male was touching her on her thigh for at least a couple of minutes before she realized it. N.T. got off the bus and reported the incident to the TTC and was told to call police which she did.

20N.T. gave a description of the male to police and in court and identified him on video taken from inside the bus. She also identified him in the courtroom. At this time Mr. Ogbamichael was seated at counsel table next to his counsel and he was the only black man in the court room. Accordingly again I found this to be of no value.

21Mr. Ogbamichael was charged with sexual assault of N.T. and this case has gone to trial in the OCJ. There is no dispute that Mr. Ogbamichael was acquitted of sexual assault but convicted of the included offence of assault. The trial judge has released only draft reasons to counsel and the sentencing hearing has yet to occur. I was advised by Ms. Stanton that the evidence the trial judge, Chaffe J. relied upon to conclude that the Crown had proven the man N.T. complained of was Mr. Ogbamichael was different that the evidence before me.

The Proposed Leaney Witness

22Annette Deger is a probation and parole officer employed by the Ministry of Community Safety and Correctional Services. Ms. Deger has specialized in supervising sexual offenders since 2005. She was initially assigned supervision of Mr. Ogbamichael on December 20th, 2012. Mr. Ogbamichael was on probation from that time to the time of the preliminary inquiry of this matter in May 2018. Ms. Deger was his probation officer throughout that period of time – a period of five and one-half years. Upon intake of Mr. Ogbamichael, Ms. Deger reviewed probation and other assessments prior to then. She admitted that she was aware that Mr. Ogbamichael has an extensive criminal history for sexual offending of the same nature as the allegations before this Court; what she called his “offensive behaviour”.

23Ms. Deger testified that she met with the Mr. Ogbamichael at least every other week or twice a month at her office for a period of approximately one hour on every occasion. She had conversations with the Mr. Ogbamichael during those meetings during which time she had opportunities to review his mannerisms and demeanor. She also prepared a Pre-Sentence Report and visited the Mr. Ogbamichael in jail for that purpose.

24Ms. Deger identified the black male as Mr. Ogbamichael in the October 11 Media Release posted on October 11, 2016 and she contacted the Officer in Charge advising him that the man from the surveillance stills in the release “looks very much like Mr. Ogbamichael”. She denied that she was influenced by the description of the offence as set out in the Release although she admitted that she would have read it before contacting the Officer in Charge. When she did so she described Mr. Ogbamichael’s offensive behaviour and advised that he had reported to her with his arm in a sling. Ms. Deger afterwards provided to the police still images from surveillance cameras depicting the probation office in which she works. There is no dispute that within those stills are images of her then client Mr. Ogbamichael in the reception area of the probation officer for a time period leading up to and including October 11, 2016.

25Ms. Deger provided a description of Mr. Ogbamichael in some detail at trial, which included lines on his face and around his eyes, pouches under his eyes, the way he smiled, the way he walked, the way he moved his hands and the way that he spoke. She also testified about how Mr. Ogbamichael normally dressed and that Mr. Ogbamichael told her that he had injured his shoulder and that in July 2016 that he wore his right arm in a dark coloured sling. Ms. Deger recalled the Mr. Ogbamichael wearing that sling until at least October or November of 2016.

26Ms. Deger referred to many of these features when she reviewed the various TTC videos she was shown and the photographs taken by Ms. K.S. on the voir dire. She admitted that the first time she was shown any of these videos was at the Preliminary Inquiry when she was shown the video taken from the time K.P. was on the bus. At that time when she was asked for her reasons for why she believed that the black male was Mr. Ogbamichael she testified that it looked like him when he was walking although she added that she appreciated that he was walking on a moving bus. She also said that his clothing looked “familiar: and that she could “clearly see his face and I … would say that that is him.” When asked on the voir dire why she gave fewer details then that she had on the voir dire, Ms. Deger explained that she was not aware when she attended to give evidence that she was going to be asked to do this, that she had not had a chance to think about why she believed the images to be of Mr. Ogbamichael and that it was hard to articulate why she believed the images to be of him. After the Preliminary Inquiry Ms. Deger watched all the TTC Videos and stills with the Officer in Charge to see if she could recognize anyone. She admitted that she knew that if the detective was telling her to look at some images that those images must be related to the case Mr. Ogbamichael was involved in.

Issues

27With respect to the Leaney application, as already stated the Crown seeks to admit the lay opinion recognition evidence of Annette Deger, Mr. Ogbamichael's long-standing probation officer on the basis that her evidence can assist me with determining whether the man on the TTC surveillance videos is Mr. Ogbamichael. Mr. Parry objects on two grounds; 1) that Ms. Deger is not in a better position than this Court to make an identification, 2) that for various reasons Ms. Deger's evidence is tainted and that its probative value is outweighed by its prejudicial effect.

28With respect to the Similar Fact application both counsel agreed that the test for admission of this evidence is as set out in the Supreme Court of Canada decision of R. v. Handy, (2001), 2002 SCC 56, 164 C.C.C. (3d) 481. Not surprisingly, neither suggested that there was any particular case applying Handy that was on all fours with this case. The position of the Crown, is that the purpose in calling this similar fact evidence would be to prove identity, motive, animus and state of mind of Mr. Ogbamichael and to rebut any suggestion that the sexual touching was in fact accidental or did not occur.

Analysis - The Leaney Application

29I will deal with the Leaney application first since if I decide to admit the evidence of Ms. Deger on the trial proper, Ms. Stanton relies on her evidence for the purpose of identifying Mr. Ogbamichael as the person who sat next to K.P. as well as A.B. and N.T. for the purpose of the Similar Fact application.

30There was no dispute between counsel as to the legal test that I should apply. The governing cases begin with R. v. Leaney, [1989] 2 S.C.R. 90 (S.C.C.) and R. v. Berhe, [2012] O.J. No. 5029 at para. 14 where Blair JA speaking for the Court of Appeal held that this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator. He characterized the test from Leaney as the “prior acquaintance/better position test”. The court articulated the basic test as follows:

The "prior acquaintance" branch of the Leaney/Brown test enables the trial judge, on a voir dire, to sort out whether the potential witness is sufficiently familiar with the person sought to be identified to have "some basis" for the opinion - or"an articulated basis" as some have said - and the "better position" branch ensures that the evidence will only be admitted if it is helpful to the trier of fact because the potential witness has some advantage that can shed light on the evidence in question. (at para. 21)

31Mr. Parry concedes that Ms. Deger's evidence meets the "prior acquaintance" arm of the test for admission set out in Berhe. However, he submitted that this application fails on the "better position" arm of the test.

32In considering this branch of the test, in Berhe, at para. 20, Blair J. noted that familiarity with the person identified and whether the witness is in a better position than the trier to make the identification, are gate-keeping standards for threshold admissibility. The ultimate weight to be assigned to the evidence is for the trier of fact. In adopting this approach in Berhe. Justice Blair, at para. 22, specifically rejected the necessity for a potential recognition witness to point to a unique identifiable feature or idiosyncrasy of the person to be identified. He said that such concerns are better left to the assessment of ultimate reliability by the trier of fact and not an issue to be addressed at the admissibility stage.

33Blair J.A. also pointed out at para. 22 that: “there are many ordinary people who do not have any particular identifiable features or idiosyncrasies differentiating them from the normal crowd; people familiar with them may well be able to identify their photograph, however.” And he went on to adopt a passage from the British Columbia Supreme Court in R. v. Panghali, 2010 BCSC 1710 at para. 42 where the court stated as follows:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

34The Crown also relies on the decision of Trafford J. in R. v. Abdullahi, [2015] O.J. No. 7216, a case that revolved around video evidence and the identification of certain individuals (albeit non-accused). In that case Justice Trafford admitted evidence of a recognition witness who had never had any personal or direct involvement with any of the targets. The witness however had reviewed photographs and video before eventually seeing the individuals in person in court. Although the identification related to non-accused individuals, the probative value of the evidence as against the accused was still strong and Justice Trafford ruled that the recognition evidence was admissible. He noted, at para. 23, that although the jury can view video evidence for themselves, the work that the officer did in that case in working with a video for several hours was not something that could necessarily be replicated by a trier of fact.

35Mr. Parry relied on R. v. Alexander, 2012 ONSC 6002, at para. 23 where the trial judge held that factors relevant to this analysis are the length of the time the defendant is before the court and visible to the trier of fact, the quality of the image/video and whether it is possible to make out features beyond general characteristics, and opportunity for the trier of fact to review the video and any photos at the time arrest.

36Mr. Parry submitted that Mr. Ogbamichael has been in my courtroom now for seven days and relied on R v. Mathias, 2018 ONSC 221 for the proposition that I am in just as good a position to determine, based on watching the videos whether or not the suspect is Mr. Ogbamichael. I do not accept that submission.

37As a trial judge I am generally focused on a witness who is testifying or counsel who are making submissions. Early on in the trial I permitted Mr. Ogbamichael to move to sit to the left of Mr. Parry. This put him to my far right. Although I made eye contact with him at various points during the court day my exposure to him is far different from the uncontested evidence of Ms. Deger as to the typical one hour long sessions that she had had with Mr. Ogbamichael, sitting on the other side of a desk, over a period of five and one-half years. I agree with Ms. Stanton that the degree of familiarity in this case is strong. Ms. Deger acquired her familiarity with the Mr. Ogbamichael through regular meetings that occurred for long periods of time over a span of years.

38Although often Ms. Deger simply testified that “I know him”, she also gave reasons for why she believed the black male in the various videos was Mr. Ogbamichael, which points towards admissibility. Mr. Parry however challenges that evidence and submitted that it is not possible to make out any features beyond general characteristics in the TTC surveillance video such that Ms. Deger is in a better position than the jury to identify the suspect. Indeed, he argues that the suspect's face is not visible for substantial portions of the videos.

39I will be able to assess the weight to attribute to Ms. Deger's evidence providing her explanation for the basis for her recognition opinion and consider whether or not I am able to see what Ms. Deger testified she could see. The other advantage Ms. Deger has is that Mr. Ogbamichael’s appearance has changed since the time of these offences and the incidents testified to by A.B. and N.T. He now has a goatee that is greying whereas at the material time he was clean shaven, possibly with a mustache that if present, is not very visible. This hampers to some extent my ability to compare Mr. Ogbamichael’s appearance now to the images on the TTC videos. Ms. Deger on the other hand testified that she has seen his beard at various stages of growth.

40Finally Mr. Parry argued that the identification of Mr. Ogbamichael by Ms. Deger was flawed in this case and was not properly recorded. I am concerned that the Officer in Charge made no notes when she reviewed the videos in this presence, but her first opportunity to identify Mr. Ogbamichael on one of the videos was recorded at the Preliminary Inquiry. In my view this is another issue that should go to weight, not admissibility.

41Even considering all of the concerns raised by Mr. Parry cumulatively I have decided that they are not so great as to render the evidence of Ms. Deger inadmissible.

42For these reasons I conclude that the evidence of Ms. Deger meets the “better position” test for identifying Mr. Ogbamichael on the TTC videos and photos taken by Ms. K.S. That leaves the question of whether the probative value of her evidence is overtaken by its prejudicial effect. One of the arguments made in Mr. Parry’s factum was that the only way to test the Ms. Deger’s evidence was to cross-examine her on the basis of her knowledge and identification of Mr. Ogbamichael but that to do so would necessitate delving into an area of extreme prejudice: namely, the his criminal history for the exact same conduct. Mr. Parry did not make this argument in his oral submissions no doubt because this is now a judge alone trial.

43Mr. Parry also argued that even if Ms. Deger’s evidence is admissible pursuant to the Berhe test, it ought to be excluded because any probative value is overtaken by prejudice. There is no dispute that this Court has the residual discretion to exclude evidence of the Crown where its probative value is exceeded by its prejudicial effect or where it is necessary to ensure the fair trial interests of the defendants. In making this assessment this Court should also consider the extent to which such evidence will add to the length of the trial and its complexity.

44As Mr. Parry submitted, it is trite law that all relevant evidence is admissible unless subject to an exclusionary rule. One of the long-standing exclusionary rules is that trial judges maintain a residual discretion to exclude otherwise-admissible evidence when the prejudicial effect of its admission outweighs its probative value; see R. v. Grant, 2015 SCC 9 at paras. 18-19. In White Burgess Lanille Inman v. Abbott and Halliburton Co., 2015 SCC 23, at para. 24 the court found that a trial judge has a gatekeeper function to ensure that any evidence that is introduced before the trier of fact is sufficiently reliable to warrant consideration in the determination of guilt. At para. 40 the court stated that the dominant approach in Canadian common law is to treat independence and impartiality as bearing not just on the weight but also on the admissibility of the evidence. Similarly in R. v. Skeet, 2017 ONCA 926, at para. 153, the court made it clear that in assessing probative value some weighing of the evidence is involved and that even though the trial judge is only deciding a threshold issue of whether or not the evidence is worthy of being heard by the jury, not the ultimate question of whether the evidence should be accepted an acted upon by the jury.

45In R. v. Frimpong, 2013 ONCA 243 at para. 18 Doherty J.A. identified three situations in which prejudice can arise:

… Evidence is prejudicial in the relevant sense if it threatens the fairness of the trial. Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process. Evidence may also be prejudicial if there is a real risk that the jury will misuse the evidence (e.g. propensity evidence), or be unable to properly assess the evidence regardless of the trial judge's instructions.

46Mr. Parry does argue that Ms. Deger’s evidence is tainted because he submits that the only reason she identified Mr. Ogbamichael as the suspect is because of his offending history with which she is intimately familiar. He was however able to vigorously cross-examine her on this issue. He also argued that she very often testified that she just knew that the person in the video was Mr. Ogbamichael. However she also very often gave reasons based on what she stated she saw, such as the way he smiled or that there were lines on his face. As Ms. Stanton submitted, Mr. Parry chose not to challenge Ms. Deger in cross-examination on this evidence although he did argue these types of features could not be seen given the quality of the videos.

47Mr. Parry also referred to the case of R. v. M.B., 2017 ONCA 653, where the Court of Appeal reviewed the law with respect to the frailty of eyewitness identification and found fault with the way in which the trial judge evaluated recognition evidence. Those concerns are relevant to the case at bar but in my view they go to weight.

48In my mind the issue of whether or not Ms. Deger’s evidence is reliable because of the alleged tainting of her conclusions given what she knew of Mr. Ogbamichael is not so clear cut that it warrants not admitting her evidence on the trial proper. This is an issue that goes to the weight to be given to her evidence not its admissibility.

49For these reasons I have determined that the evidence of Ms. Deger is admissible on the trial proper.

Analysis – The Similar Fact Application

50Similar fact evidence and other evidence of discreditable conduct by a defendant is presumptively inadmissible. The onus is on the Crown 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. Handy, supra, at para. 55.

51The similar fact 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 prejudice”. Handy, supra, at para. 64.

52Of central importance in determining the probative value of the tendered similar fact evidence is to determine the purpose for which the evidence is being adduced. As already Ms. Stanton submits that the purpose of the proposed similar fact evidence is to prove identity, motive, animus and state of mind of Mr. Ogbamichael and to rebut the proposition that the sexual touching was in fact accidental or did not occur. She concedes that in doing so, the evidence will have a secondary effect of bolstering the credibility of the complainant. In my view in addition to identity what she really seeks to prove is that Mr. Ogbamichael has a specific propensity to touch women for a sexual purpose while riding on public transit.

Proving Identity

53R. v. Arp, [1998] 3 S.C.R. 339 is the governing case and sets out the special circumstances required where similar fact evidence is sought to be introduced to prove the identity of the perpetrator. A trial judge must first assess the degree of similarity between the acts in question to determine whether it is likely that the same person committed the alleged similar acts. Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question, see Arp, at para. 48.

54The similar fact evidence does not have to be strikingly similar but sufficiently similar with respect to circumstances and time and/or place; see R. v. B.(C.R.), [1990] 1 S.C.R. 717 at paras. 26-27. The similarity of the evidence may consist of a unique trademark or signature, or a series of significant similarities; Arp at para. 50 (1).

55The general rule in assessing similar fact cases where the issue in question is identification is that linkage evidence is not to be taken into account in determining the "similarity" issue. That is, the determination of the question of whether the same suspect perpetrated the similar acts in question is to be done without reference to evidence linking the accused to each similar act; Arp, supra at para. 49.

56Ms. Stanton however relied R. v. MacCormick, 2009 ONCA 72, [2009] O.J. No. 302, where the Court of Appeal held at para. 58 that the rule that linkage evidence is not to be considered in determining the similarity issue is not unyielding. At para. 59 the court stated that the requirement that there be a link between the allegedly similar acts and the defendant demands that there be some evidence upon the basis of which the trier of fact can make a finding that the similar acts were those of the defendant.

57On the voir dire, the Crown may rely on an defendant's previous criminal conviction for a similar act as "some evidence" linking the accused to the similar act regardless of whether the conviction stemmed from a jury trial as opposed to a guilty plea, see R. v. Jesse, 2012 SCC 21 at paras. 37-39, 46. In this case Mr. Parry agreed that I could rely on the conviction with respect to N.T. and Ms. Stanton expressed concern because Justice Chaffe had different evidence before him in coming to that conclusion. In my view, at this admissibility stage, that is not a concern. The fact remains that with respect to this particular incident a trial judge was convinced beyond a reasonable doubt that the person who touched N.T. was Mr. Ogbamichael. In my view I can rely on this conviction as “some evidence” that Mr. Ogbamichael was the person who touched N.T. and that he was the person who committed that offence. In addition, given the evidence of Ms. Deger, there is some evidence that Mr. Ogbamichael was the perpetrator in each of the cases of A.B. and N.T. and K.P. The ultimate weight of this evidence must be determined in the trial proper.

58Accordingly, at this stage of the analysis I accept that there is some evidence that the similar fact evidence could assist in establishing the identity of Mr. Ogbamichael as the perpetrator of the alleged sexual assault of K.P.

59This alone, subject to the question of prejudice would justify the admission of the evidence of A.B. and N.T. on the trial proper. It is however not the end of the matter.

Proving Propensity

60The other reason the Crown seeks to admit the probative value of the similar fact evidence tendered in this case depends upon two inferences from the evidence; one, that Mr. Ogbamichael has this specific propensity to act in a particular way and two, that he actually acted in conformity with this propensity at the time of the assault alleged by the complainant. The Crown submits that the similar fact evidence in this case is capable of raising the inference that Mr. Ogbamichael has a situation specific propensity to sexually assault young girls or women on public transit in a particular way in that he does so in front of other individuals, he brings a laptop bag or back pack to hide his actions, he touches the girls/women in a particular location with his fingers and he apologizes for his behaviour as if the actions are a mistake. Put another way, as a matter of common sense, is it against all probability that, in light of what the Crown can show that Mr. Ogbamichael did to A.B. and N.T., it is a mere coincidence that K.P. is not telling the truth when she describes what she alleges Mr. Ogbamichael did to her?

61In the case of N.T., Mr. Parry submitted that since Mr. Ogbamichael was acquitted of sexual assault and convicted only of assault simpliciter it is clear that the trial judge was not satisfied beyond a reasonable doubt as to the sexual nature of the contact and in particular that it was a violation of the sexual integrity of N.T. Ms. Stanton referred to the draft reasons of the Chaffe J., which suggest that although he found that Mr. Ogbamichael touched N.T. in the manner she testified to, he found that there was an “inferential gap” as to the nature of the touching and he was not satisfied the Mr. Ogbamichael violated the sexual integrity of N.T.

62Mr. Parry submitted that accordingly the Crown is precluded from leading evidence now that Mr. Ogbamichael committed a sexual assault of N.T. and that as such there could be no probative value to her evidence. I agree. Although sexual assault as an offence is not defined, and is an offence of general intent, in general to be convicted of sexual assault a defendant must have committed the assault in circumstances of a sexual nature such as to violate the sexual integrity of the complainant. In this case it is clear that Chaffe J. was not satisfied beyond a reasonable doubt that the touching was of a sexual nature. As the cases make clear, whether he came to that conclusion by making a positive finding or because he had a reasonable doubt on that issue does not matter.

63In R v. Mahalingan, 2008 SCC 63, the court provided guidance as to when the doctrine of issue estoppel applies in criminal law. In summary, as the court stated at para. 18, “if an issue supporting an acquittal is resolved in favour of the accused on one offence, on whatever basis, evidence to contradict the finding on that issue cannot subsequently be re-led on different charges.” [Emphasis added] The court made it clear at para. 22 and elsewhere that this rule applies whether or not the issue was decided in the defendant’s favour based on a positive factual finding or a reasonable doubt.

64Similarly in Arp, at para 76, the court found that where an issue is decided in favour of the defendant in a first trial that leads to an acquittal evidence on that issue cannot be used as similar fact evidence in a subsequent trial. As the court stated in Mahalingan at para. 66 “[if] the issue on which the crown seeks to lead similar fact evidence was determined in a previous trial ending in acquittal it is inadmissible on a second trial”.

65Ms. Stanton referred me to other paragraphs of Mahalingan for the position that the court made it clear that the concept of issue estoppel is to be applied narrowly in the criminal context. She submitted that there was a practical difficulty in this case because I do not have transcripts or the final reasons of the trial judge and that I do not have a “clear cut acquittal” on the charge of sexual assault. It is her position that I can consider the evidence of N.T. and determine whether or not the touching amounted to a sexual assault because she is not trying to contradict a prior finding. There is no such thing however a different types of acquittals, see Arp at para. 77 where the court quoted from R. v. Grdic, [1985] 1 S.C.R. 810 at p. 835.

66Although at para 23 of Mahalingan, the court states that the determination of whether an issues was decided in favour of a defendant “must” be based on a review of the transcript. I do not accept however that this is in fact necessary in all cases. In this case it is clear from the conclusion that Chaffe J. came to that he was satisfied beyond a reasonable doubt that Mr. Ogbamichael assaulted N.T. but he was not satisfied beyond a reasonable doubt that it was for a sexual purpose. That factual issue was determined in Mr. Ogbamichael’s favour and as the court in Mahalingan said at para. 46, once a factual issue is determined relitigation should not be permitted and the Crown will not be permitted a second chance.

67Ms. Stanton also referred to R. v. Punko, 2012 SCC 39, [2012] S.C.J. No 39, a more recent decision from the Supreme Court of Canada dealing with issue estoppel. That case did not change the law but applied it in a case where there was a jury on a multi-count indictment. The Court concluded at para. 18 that there were at least two logical explanations for the not guilty verdict on each of the criminal organization counts which meant that a judge could no infer from the jury verdict, as required by Mahalingan, that the jurors necessarily found that the Hells’ Angels was not a criminal organization.

68Although I agree with Ms. Stanton that Mr. Ogbamichael bears the onus of establishing that a relevant issue was resolved in his favour, I do not agree that in all cases that this requires a transcript or the reasons of the trial judge. There is no uncertainty as to what the trial judge found on this issue. It is clear, by virtue of Mr. Ogbamichael’s conviction on the charge of assault and acquittal of the charge of sexual assault that Ms. Stanton is precluded from relying on the evidence of N.T. to suggest that he committed the assault he was convicted of was in violation of the sexual integrity of N.T.

69In my view as a result, there is no basis to admit the evidence of N.T. to establish the alleged propensity of Mr. Ogbamichael to sexually assault girls and young women on public transit. That in my view also renders the question of his identity as the person who touched N.T. of no relevance. The fact that he committed an assault on N.T. does not assist in providing some evidence that he committed a sexual assault on K.P.

70For these reasons I deny the Crown’s application to admit the evidence of N.T. as similar fact evidence on this trial.

71With respect to A.B. I should now proceed to consider the “connecting factors” that are established between the similar fact evidence and the facts alleged in the charges before the court. Generally speaking I would assess the degree of similarity of the alleged acts; their cogency, and decide whether the “objective improbability of coincidence” has been established. Handy, supra, at paras. 105-106. The Crown argues that the circumstances surrounding the similar acts have a strong nexus relating to each other and with the charged conduct. In particular, the Crown points to the fact that in each instance, a male occupied a vacant seat next to a lone female victim on a transit vehicle and used a personal item to conceal his hand as he groped or touched the thigh area of the complainant.

72Mr. Parry however made some very cogent submissions in support of the fact that the alleged similarities that the Crown relies upon between the prior bad acts alleged by A.B. are too few and too generic to justify their admission. He produced the results of a simple internet search which reveals that this exact conduct is unfortunately all-too-common on public transportation around the world. The fact that the sexual assault occurred in transit is unfortunately all too common in Toronto. In fact, in a Toronto Sun article of April 8, 2016 a photograph of a man with a laptop bag on his lap similar to the bag that Mr. Ogbamichael is alleged to have used is depicted and the article states that the man in question put his hand on a woman’s lap twice. Mr. Parry submits that sexual assault is on the TTC is an act so common it offers little probative value when attempting to qualify it as more than a coincidence. To this Ms. Stanton countered that there are still specific modus operandi as to how these sexual assaults are committed that makes the manner in which Mr. Ogbamichael is alleged to have done so distinctive.

73In this regard Mr. Parry relies on R. v. Blake, [2003] O.J. No 4589, (Ont. CA), where at paras. 73-79 where the court found that the trial judge erred in relying on generic similarities with limited detail. I would say however in the case at bar, there is more commonality because of the nature of the touching and how it is accomplished without immediate detection.

74However, I have concluded that it is not necessary for me to decide who is correct on this issue because even if I were to accept the Crown’s position and find that the probative value of the evidence of A.B. is strong, in my view it is clearly outweighed by its prejudicial effect.

Prejudicial Effect

75Evidence of propensity or disposition can have a prejudicial effect in three general ways. A jury may find that the defendant is a “bad person” who is likely to be guilty of the offence charged or they may punish the defendant for past misconduct by finding the defendant guilty of the offence charged. Both of these types of prejudice are referred to as “moral prejudice.”

76There is, of course, a very real concern about potential moral prejudice in a jury trial. In this case however there is no jury. As I am trying this case without a jury, I would ordinarily conclude that as in other situation where I her evidence that is not admissible (for example in this case the offensive behaviour of the defendant, that I will be able to ensure that I remain alive to the fact that I must not engage in forbidden reasoning to infer guilt from general disposition. In fact, I have had to be alive to that concern in the course of considering the probative value of the proffered evidence. Mr. Parry however turned my attention to a decision of the Alberta Court of Appeal, R. v. Villeda, 2011 ABCA 85, where at para. 18 that the ability to self-instruct is “not a panacea” and that the “spectre of moral or reasoning prejudice is always a concern regardless of who is sitting in judgment of the guilt or innocence of a defendant. Accepting this proposition, I cannot rule out that there may be prejudice to Mr. Ogbamichael if the similar fact evidence is admitted.

77In addition, I must consider what has been called “reasoning prejudice”; which is commonly considered as the risk of distracting or confusing the trier of fact, of undue time consumption at trial and the danger that the trier of fact will have difficulty disentangling the subject matter of the charges from the prior discreditable conduct. Again, most of these concerns do not apply here where there is no jury. The admissibility of the similar fact evidence will not unduly prolong the trial as it has already been heard on this voir dire and if admitted will apply to the trial proper. There is however the type of reasoning prejudice referred to in Handy, supra at para. 146 because of the limited opportunity of Mr. Ogbamichael to respond to the allegations of A.B. in this trial.

78What I am most concerned of is that if I permit the evidence of A.B. to be admitted in this trial, Mr.gbamichael will be subject to actual prejudice. As already stated A.B.’s allegations are outstanding having been set for trial in July 2019. This raises the spectre of an inconsistent verdict.

79This concern is significantly compounded by the inability of Mr. Ogbamichael to respond to the similar acts alleged by A.B. within the confines of the trial at hand.

80As stated by the court in Mahalingan, at para. 44, in the context of issue estoppel, in a similar fact application as a tactical matter a defendant will feel a burden to make some case for why the evidence should not be admitted. To keep the evidence out the defendant would normally want to attempt to cast doubt on its probative value. “Despite the burden being on the Crown, therefore, the accused is in effect called upon to make a case against evidence on a factual issue”.

81To do so in the case of A.B. however, should I admit her evidence on this trial Mr. Ogbamichael would be forced into the position of testifying on this trial, with respect to A.B.’s accusations ahead of his July 2019 trial. Ms. Stanton submitted that Mr. Ogbamichael could choose to testify in this trial and yet would still have the benefit of the presumption of innocence and the right to remain silent in the upcoming trial of A.B. That is true, but in my view that ignores the fact that should I admit the evidence of A.B. and should Mr. Ogbamichael choose to testify to refute that evidence he would give evidence under oath which would result in disclosure of his position before the Crown even tenders evidence in the A.B. trial and he would be subject to impeachment should he choose to testify and his evidence differed between his evidence in this trial and the A.B. trial.

82Ms. Stanton requested additional time to research this concern that I raised and she provided me with a line of cases including R. v. Edwards, 54 O.R. (3d) 737 where evidence of uncharged and untried conduct is admissible on sentencing for the limited purpose of showing the background and character of the offender as that may be relevant to the objections of sentencing. I did not consider these cases to be relevant as there are specific provisions in the Criminal Code that contemplate the use of untried offences at the sentencing stage.

83Ms. Stanton also provided the case of R. v. J.K., [2016] O.J. No. 6007 but in that case Morgan J. did not have to deal with my concern as he held that the untried charges threatened to be a serious distraction turning them into a trial within a trial and it was on that basis he found prejudice and ruled the evidence of the untried charges inadmissible.

Weighing Up Probative Value Versus Prejudice

84In the balancing process it has been said that similar fact evidence should be admitted when its probative value is sufficiently great to make it “just” to admit the evidence, notwithstanding its prejudicial effect. I have concluded that it is not just to admit the similar fact evidence of A.B. in this case.

Disposition

85For these reasons, the Crown’s application to admit the evidence of Ms. Deger is granted and the Crown’s application to admit the evidence of A.B. and N.T. as similar fact witnesses is denied.