R. v. JWE, 2019 ONSC 3955

CITATION: R. v. JWE, 2019 ONSC 3955

COURT FILE NO.: 1166/18

DATE: 20190702

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

M. Ochiogrosso, for the Crown/Applicant

– and –

JWE

E. Brown, for the Accused/Respondent

Accused/Respondent

HEARD: June 18 and 19, 2019

RULING

RE: APPLICATION TO ADDUCE EVIDENCE OF

PRIOR DISCREDITABLE CONDUCT

NOTICE: Pursuant to s.486.4 of the Criminal Code of Canada, the Court has ordered a publication ban relating to any information that could identify the complainant in this proceeding or the witness sought to be called by the Crown to give evidence of the accused’s alleged other discreditable conduct. No such information shall be published in any document or broadcast or transmitted in any way. To protect these individuals’ anonymity, I have used random initials “JK” to refer to the complainant and “GH” to refer to the proposed witness.

PETERSEN J.

Introduction

1JWE is charged with sexual assault and sexual exploitation. The offences relate to incidents that allegedly occurred approximately 20 years ago, when the complainant JK was a teenager.

2In this Application, the Crown seeks to call evidence from another witness, GH, who claims to have been sexually assaulted by JWE during roughly the same time period that the charged offences allegedly occurred. GH and JK were friends at the time. JWE has never been charged with any offences relating to the allegations made by GH.

3The Defence objects to the admission into evidence of GH’s testimony.

4A voir dire was conducted with respect to this pre-trial Application over a two day period on June 18 and 19, 2019. GH testified during the voir dire. Transcripts of GH’s and JK’s video-recorded police statements were entered as exhibits, as well as copies of printed Facebook Messenger messages between them.

Applicable Rules of Evidence

5There is no question that the proposed testimony of GH constitutes evidence of other discreditable conduct by the accused: R. v. B.(L.) (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. (3d) 481 (ONCA) at paras.20-21.

6Evidence of misconduct other than that alleged in the indictment which does no more than blacken the accused’s character is presumptively inadmissible: R. v. Handy, 2002 SCC 56 at paras.31 and 36; R. v. Bent, 2016 ONCA 651, at para.33. The policy reasons underlying this long-standing general exclusionary rule are discussed at length in Handy, at paras.31-40. In short, as explained by Sopinka J. in R. v. B.(C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717 at para.744:

The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning.

7There is, however, a narrow recognized exception to the general rule of exclusion. An issue may arise in a trial of an offence to which evidence of other similar misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs its potential for misuse: Handy, at para.41. As the Supreme Court explained in Handy, at para.47:

The policy basis for the exception is that the deficit of probative value weighed against prejudice on which the original exclusionary rule is predicated is reversed. Probative value exceeds prejudice, because the force of similar circumstances defies coincidence or other innocent explanation.

Analytical Framework

8The onus is on the Crown to rebut the presumption of inadmissibility by proving, on a balance of probabilities, that the probative value of the disputed evidence in relation to a particular issue sufficiently outweighs its prejudicial effect: Bent, at para.34.

9The leading authority on the admissibility of evidence of discreditable conduct (also commonly referred to as “similar fact” evidence) is the decision of the Supreme Court of Canada in Handy. The analytical framework outlined in Handy involves three parts: (1) an assessment of the probative value of the proposed evidence, (2) an assessment of the prejudicial effect of the proposed evidence, and (3) a determination of whether the probative value displaces the prejudicial effect: Handy, at paras. 99 - 101; Bent at para.34.

10Before applying that framework to the facts in the case before me, I will first briefly summarize the nature of the complainant’s allegations that form the basis of the charges against JWE and the proposed similar fact evidence of GH.

Complainant’s Allegations

11JK alleges that JWE sexually assaulted her on multiple occasions between January 1, 1998 and December 1, 2000. She says she was 14 years old when the first sexual assault occurred.

12JWE is her step-father. According to her police statement, he moved in with her mother shortly after her parents separated when she was about 6 years old.

13She was living with her mother, her twin brothers and JWE in Brampton at the time of the events in question. She told the police that most of the alleged sexual abuse occurred inside the first house where they were living, but the family moved to another house and the abuse continued inside that second house for a few months, until she moved out and went to live with her father.

14JK alleges that, at some point when she was 14 years old, JWE approached her from behind while she was washing dishes in the kitchen, grabbed her breasts under her clothes, then proceeded to fondle her, moving his hands down her body to her buttocks.

15JK says that this same type of sexual assault occurred many times in the home over a period of about two years. JWE would approach her from behind when she was doing chores, put his hands under her shirt and bra and cup her breasts. She describes him pushing his body weight against her and pushing his waist into the small of her back as she was standing against the cupboards in the kitchen. She says he would then just “carry on” and ask her questions about her day “like it was no big deal”.

16JK alleges that, on at least one occasion, JWE entered her bedroom in the middle of the night when she was asleep, hovered over her bed, lifted up the covers and looked under her nightgown at her genitalia.

17JK also alleges that, when she was probably 16 years old, she had suffered an injury playing baseball and JWE offered to stretch out a sore muscle in her leg. She recalls that she was seated on a couch at the time. She says that, while massaging her leg, JWE pulled her leg so that she slid down on the couch, with her head on the arm rest, and he then ran his hand up her thigh and digitally penetrated her vagina. She said that after that happened, she made the decision to go live with her dad.

18JK told the investigating officer that her mother was home when the alleged sexual assaults occurred: “It was like he knew my mom’s asleep or he knew she was doing laundry or he knew that she was somewhere else or watching TV in the next room even, you know it was, it was always a matter of he knew he just could get away with it”.

19JK told the police that both houses where the sexual offences are alleged to have occurred were two story homes. She described the first home as a large 3,000 square foot house that “was all very closed off”. She said it was not an open concept house, that you could not be seen from every angle. The rooms “were all kind of their own separate areas” and the kitchen was “totally blocked off”. She said the interior of the kitchen was not visible unless a person was standing in the doorway to the kitchen or in the hallway just outside the doorway.

Proposed Similar Fact Evidence of GH

20GH testified that she met JK in 1997, when she was 15 years old. They attended the same high school and played baseball together. JK is one year younger than she is. She said they remained friends for about one and a half or two years, then had a falling out. She considered JK “a best friend” for a period of time.

21GH recalled that they spent a lot of time together in JK’s house after school and on weekends. She visited JK’s house two or three times weekly and slept over there on several occasions. She said JK lived with her mother, twin brothers and step-father, who they called “W”. There is no dispute that “W” is the accused, JWE.

22GH stated that she developed a relationship with both JK’s mother and JWE. High school was “not a great time” for her and she felt that she could talk to them openly. She said JK’s mother was usually home when she visited. She remembered JK’s mother taking her to an art gallery in Toronto on one occasion. She had regular conversations with JWE outside her school (when he came to pick up his step-kids), on the telephone (when she called JK and he answered the phone), and in JK’s family house (when she visited to “hang out” with JK). She testified that she trusted JWE. She recalled him giving her driving lessons. She travelled to Jamaica with his family. She described that as a “huge deal” for her. She stated, “they took me in”. She said she “felt like family” in their home.

23GH alleges that she was subjected to incidents of sexual abuse by JWE in 1997 and/or 1998. She testified that it started with him flirting with her when they spoke on the phone. She remembered him telling her to keep their conversations secret. She described an escalation in inappropriate sexual behaviour culminating in sexual assaults.

24GH alleged that, one day when she was 15 years old, she had a shower in JK’s home and was wrapped in a towel, exiting the washroom on the second floor, when JWE asked her to show him her boobs. She did not do so.

25She recalled that JWE was often dressed in a robe. She alleges that on a few occasions, he was naked beneath the robe and he sat on the couch with his penis exposed to her.

26She remembered one night when JK’s parents were out of the house and she and JK were baby-sitting JK’s younger brothers. She and JK were drinking alcohol and had become intoxicated. They fell asleep on a pull-out couch in the main living room of the house. She recalled that, after JK’s parents arrived home, they came into the room intermittently to check on her and JK. At one point during the night, she alleges that JWE entered the room, leaned over top of her, reached his arm under the covers and under her clothes, and digitally penetrated her vagina. She did not recall anything being said. She testified that “it was just kind of happening, then it was over” and he left the room.

27When she was asked whether anyone else was present when this occurred, GH stated that JK was “passed out” from drinking in the bed beside her. She said JK’s mother could have been around, but she did not see anyone else in the room. When asked whether the room was visible from the hallway, she said no, that it was “tucked back in the corner of the house”.

28GH also testified about an alleged incident one morning in the hallway on the main floor of the house. She said that JWE grabbed her from behind, put his arms around her, rubbed his body against her body and groped her breasts. She stated that he then fondled her whole body. She testified that she was clothed at the time but he was naked. She recalled that he grabbed her breasts over her clothes. She said the sexual assault lasted about two or three minutes then “just ended”. She did not recall anyone walking in on them.

29She could not recall the precise timeline or order in which the last two incidents occurred. She said she would have been 15 or 16 years old at the time.

30According to GH, all of the alleged sexual misconduct of the accused occurred in the family home in Brampton. She did not allege that any inappropriate or assaultive behaviour occurred while she was travelling with JK’s family in Jamaica.

ANALYSIS

Probative Value of the Proposed Evidence

31The first step in the analysis is to assess the probative value of the proposed similar fact evidence. As the Ontario Court of Appeal explained in Bent:

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." The threshold for probative value is very high. The connection must be so strong that "it would be an affront to common sense to suggest that the similarities were due to coincidence": Handy at para. 41, quoting Sopinka J.'s dissenting reasons in B. (C.R.), at p. 751. However, the probative value of the evidence need not be so high that it is virtually conclusive of guilt, for a conclusiveness requirement would take the trial judge's gatekeeper function too far into the domain of the trier of fact: Handy at paras. 94-97.

32The probative value analysis involves four steps.

33The first step is to identify the issue or issues in question and ask how the evidence of similar discreditable acts tends to prove that issue or issues. The evidence must relate to a specific issue in the trial, so that it is plainly not adduced merely to show that the accused is a person of bad character who is likely to engage in criminal acts: Bent, at paras.39-40. As the Supreme Court explained in Handy, at para.73, “Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact.”

34It is incumbent on the Crown to identify the live issue or issues in the trial to which the evidence relates. If an issue has ceased to be in dispute, as for example when a disputed fact is admitted by the accused, then the evidence is irrelevant and must be excluded: R. v. Clermont, 1986 CanLII 26 (SCC), [1986] 2 S.C.R. 131 at p.136; R. v. Bosley (1992), 1992 CanLII 2838 (ON CA), 18 C.R. (4th) 347 (Ont.C.A.) at p.360; Handy, at para.74.

35The issues “derive from the facts alleged in the charge(s) and the defences advanced or reasonably anticipated”: Handy at para.74. In this case, Defence counsel has confirmed that the identity of the accused is not a live issue. At this pre-trial stage of the proceeding, as is often the case, Defence counsel has not disclosed the defences that he intends to advance. The issues to be put to the jury have therefore not yet crystalized.

36In her Application, Crown counsel has reasonably anticipated possible defences and has identified potential issues to which the similar fact evidence is directed. The issues identified by the Crown are: the credibility of the complainant generally and more specifically, the actus reus of the offences charged, namely whether the offences occurred in the manner alleged by the complainant; the potential defence that the sexual offences could not have occurred because of the risk of detection by other adults who were present in the home or were nearby when the incidents allegedly took place; and any potential defence of fabrication, innocent association, or accidental touching.

37Defence counsel has not indicated that any of these potential issues identified by the Crown are not live issues.

38The issue of the complainant’s credibility generally is not an appropriate basis upon which to admit similar fact evidence: Handy, at para.116. Credibility is an issue that pervades most trials, particularly sexual assault trials. At its broadest, a determination on credibility may amount to a decision on guilt or innocence: Handy, at para.115. As the Supreme Court stated in Handy, at para.115, “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.”

39Evidence of the accused’s discreditable conduct on other occasions can, however, be admitted in relation to the credibility of a specific allegation: B.(L.), at para.35; B.(C.R.), at pp.738-739. Propensity evidence may exceptionally be admitted to help establish that the accused did or did not do the particular acts that form the basis of the charges: Handy, at para.60.

40One of the inferences that is sought to be drawn from the disputed evidence in this case is that JWE committed the acts as alleged by the complainant. The Crown is seeking to adduce propensity evidence to support the credibility of particular allegations made by JK.

41The Crown seeks to introduce the evidence of GH in order to invite the jury to draw certain inferences that are relevant to the actus reus component of the offences, namely that the accused had a sexual attraction to pubescent girls, that he had an inclination to touch them in particular ways, and that during the relevant time period he used his position of trust to create opportunities to engage in sexual touching with young girls who were in his care. The evidence therefore relates to the credibility of the complainant’s specific allegations, namely that JWE sexually assaulted her in the manner described by her and in the circumstances alleged by her.

42The disputed evidence also relates to potential defences of fabrication, accidental touching and innocent contact. The Crown argues that the evidence shows a pattern or system or design of the accused in relation to creating opportunities, in the privacy of his home, to sexually exploit young females who are in his care or over whom he is in a position of trust or authority.

43The evidence sought to be adduced is also related to an issue other than propensity, namely the accused’s opportunity to commit the offences with which he is charged: R. v. Moore, 1994 CanLII 8730 (ON CA), [1994] 73 O.A.C. 277 (C.A.), at para. 12. It is reasonable to anticipate that Defence counsel may argue that JK’s allegations must be false because JWE could not have sexually assaulted her in the home without detection, due to the nearby presence of other people including at least one other adult (JK’s mother). The similar fact evidence of GH would permit the jury to draw a contrary inference that the layout of the house was such that there was opportunity for the accused to commit the alleged offences without detection.

44The three remaining steps in the probative value analysis need not necessarily be considered in any particular order. I will deal next with the determination of the cogency of the disputed evidence.

45The Court must consider the similarities and differences between the evidence that forms the basis of the charges and the evidence of other discreditable acts sought to be admitted. In considering whether to admit similar fact evidence, the trial judge must consider the degree of distinctiveness or uniqueness between the proposed similar fact evidence and the offences charged: B (C.R.), at p.735; Bent, at para.56.

46The more generic the similarities, the greater the likelihood of coincidence, and the less the cogency of the evidence in support of the inferences sought to be drawn; Bent, at para. 57. Substantial dissimilarities will dilute the probative value of the similar fact evidence and may be fatal to its admissibility: Handy at para. 127.

47The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence: R. v. Carpenter (1982), 1982 CanLII 3308 (ON CA), 142 D.L.R. (3d) 237 (Ont. C.A.), at para.244; Handy at para. 78, Where the issue is identification, similar fact evidence of propensity will not be admissible “unless the propensity is so highly distinctive or unique as to constitute a signature”: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 at para. 43; Handy, at paras 77 and 79.

48The issue in this case, like the issue in Handy, is not identification but rather the actus reus of the offences. Where the issue is actus reus rather than identification, “the degree of similarity required is not necessarily higher or lower, but rather the issue is different and the drivers of cogency in relation to the desired inferences will therefore not be the same:: Handy at para. 78; Bent, at para. 40.

49Based on the jurisprudence (Bent at para. 42), the following non-exhaustive list of relevant factors should be taken into consideration when assessing the cogency of similar fact evidence:

• the proximity in time between past act and current offence: (a greater lapse of time tends to undermine the premise of continuity of character or disposition; remoteness in time may also affect relevance and reliability);

• the extent to which the other discreditable acts are similar in detail to the charged conduct;

• the number of occurrences of the similar acts (an alleged pattern of conduct may gain strength if a greater number of instances compose it);

• the circumstances surrounding or relating to the similar acts (depending on the circumstances, these considerations could strengthen or weaken the probative value);

• any distinctive features unifying the incidents: greater distinctiveness would tend to increase the probative value;

• any intervening events (certain intervening events might undermine the probative value, such as evidence of supervening physical incapacity); and

• any other factor that would tend to support or rebut the underlying unity of the similar acts.

50Not all of the above factors will exist or be necessary in every case: Handy, at para. 84; Bent, at para. 43.

51In this case there is proximity in time between the offences charged and the other alleged discreditable acts. While there is imprecision about the specific dates of the alleged offences, the charges relate to a two year period from January 1, 1998 to December 31, 2000 and GH’s allegations relate to a one and a half year period commencing in the summer of 1997. There is therefore overlap in the relevant time periods.

52There are a number of marked similarities in not only the specific nature of the sexual assaults alleged by GH and JK, but also in the number of assaults and in the circumstances in which the acts are alleged to have occurred. Contrary to the similar fact evidence that was found to be inadmissible in Bent, the similarities are not generic. The following similarities have been noted:

(a) both complainants were pubescent females at the time of the alleged sexual assaults, aged between 14 and 16 years old;

(b) the accused was not only familiar with both of them, he was in a position of trust with respect to both of them; he was a quasi-father -figure to both of them, although his relationship with JK was more longstanding and his relationship with JK’s mother made him even more of a father figure to JK;

(c) all of the sexually inappropriate and assaultive acts are alleged to have occurred in JWE’s home;

(d) both complainants claim to have been sexually assaulted in a similar manner by JWE approaching them from behind, grabbing their breasts, pressing his body up against theirs, fondling their bodies and then suddenly ceasing to touch them;

(e) the above allegations relate to incidents that occurred during the day, when other people were present in the home – the timing of the occurrences is another relevant circumstance;

(f) both complainants also allege that JWE entered a room where they were sleeping at night, leaned over the bed and put his hands under the covers – although JK alleges that he looked at her genetalia on that occasion and did not touch her, whereas GH alleges the he reached under he pyjamas with his fingers; and

(g) both complainants describe an escalation in inappropriate sexual conduct including an incident of forced digital vaginal penetration while they were on a couch.

53I find the evidence is sufficiently cogent to support the inferences sought by the Crown. Not only do the similarities bear distinctive features in terms of the nature of the alleged acts and the circumstances surrounding them, but the number of occurrences also strengthens the probative value of the disputed evidence. As the Ontario Court of Appeal has noted, the likelihood of coincidence diminishes where there are a number of similar instances, whereas the cogency of the evidence is significantly reduced where there is only one instance of propensity: Bent, at paras. 60 and 63. Furthermore, “the cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused’s conduct in closely defined circumstances”: R. v. J.M., 2010 ONCA 117 at para 91.

54I recognize that there are also dissimilarities in some of the details. GH alleges that JWE exposed his penis to her and asked her to expose her breasts to him. There are no similar allegations by JK, but JK did tell the police that JWE engaged in some voyeurism by looking at her genitals under the covers while she slept in her bed.

55GH alleges that JWE was naked when he approached her from behind, grabbed her breasts and pressed his body into hers; JK does not allege that there was any nudity involved in the similar assaults that she says she endured.

56GH testified that JWE grabbed her breasts over her clothes whereas JK alleges that he grabbed her breasts under her clothes and bra.

57In my view the above dissimilarities are not so substantial as to dilute the probative value of the disputed evidence.

58There is also dissimilarity in the frequency of the alleged sexual offences. JK claims that she was assaulted numerous times on a regular basis, whereas GH’s allegations are restricted to a few incidents. I do not give much weight to this dissimilarity because it can easily be explained by the fact that JK was living in the house with JWE, whereas GH was only a visitor, albeit a frequent guest.

59The third step in the probative value analysis is an assessment of the strength of the evidence that the alleged similar acts occurred. The Ontario Court of Appeal held in Bent, at para 44, that the trial judge should consider the following questions:

• have the allegations been admitted in prior proceedings?

• are the allegations the subject matter of outstanding charges?

• by what method of proof are the acts to be proved?

• can the trier of fact fairly assess the evidence in the context of the trial without undue distraction?

• will the defence be able to fairly respond to the allegations in the context of the prosecution?

60The latter two questions also relate to the analysis of prejudicial effect and will be addressed in more detail later in my reasons.

61JWE has not admitted the allegations made by GH. Her allegations are not and have never been the subject of any charges against JWE. The evidence is therefore not as strong as it was, for example, in Bent (para. 67), where the accused had been convicted of the alleged similar acts.

62The Crown intends to adduce the evidence by means of the viva voce testimony of GH. Her credibility is a factor that I am entitled to take into consideration in assessing the strength of the proposed evidence and its probative value: Handy, at para. 134. The Supreme Court noted in Handy that, “Where the ultimate assessment of credibility was for the jury and not the judge to make, this evidence was potentially too prejudicial to be admitted unless the judge was of the view that it met the threshold of being reasonably capable of belief”: Handy, at para. 134 (emphasis in original).

63As noted earlier in these reasons, GH testified in the voir dire. She candidly acknowledged that there are gaps in her memory and certain details that she cannot recall. She remembered the layout of the accused’s home and of the rooms where the sexual assaults allegedly occurred. She remembered and provided a number of salient details, such as the fact that she was exiting the washroom wearing a towel when JWE asked her to expose her breasts and the fact that he approached her from behind and grabbed her breasts before fondling her body on the occasion when she says he assaulted her in the hallway. She remembered that she and JK had been babysitting JK’s younger brother on the evening when they consumed alcohol and JWE later allegedly forced his fingers inside her vagina while she was laying on the pull-out couch.

64She admitted that her memory of the incident involving digital penetration is clouded by the passage of time and by the consumption of alcohol. She agreed that she does not have a complete memory of that entire incident. She said that some details are unclear, but she provided some particulars (e.g. what she was wearing , where the incident occurred, the fact that it was night etc.). She was adamant that she has a clear recollection of the act of digital penetration.

65When she reported this particular incident to the investigating officer during her police interview, she said, “I think he fingered me one time.” She was cross-examined about the uncertainty of that statement and explained that it was the first time she was disclosing publicly, to a stranger, what had happened to her and she was still processing. This explanation is plausible. Piecemeal disclosure of sexual abuse in not necessarily indicative of falsehood: R. v. Gordon, 2018 ONSC 2702, at paras. 143-144.

66There were other discrepancies between the statements that GH made to the police in February 2017 and what she said during the voir dire. The two most significant inconsistencies were a suggestion, during the police interview, that JWE had kissed her and a statement that, when he grabbed her breasts from behind, he was clothed and she was naked. In her testimony at the voir dire, she said she did not recall him kissing her and she testified that she was clothed and he was naked during the incident in the hallway. She was unable to provide an explanation for her prior inconsistent statements.

67Defence counsel argues that GH’s memory is too “fuzzy” to be reliable. He submits that the frailty of her evidence so diminishes its probative value that it should not be admitted.

68GH readily acknowledged that some details of the incidents are fuzzy in her memory, but she insisted that she had a clear recollection of the sexual touching, and she recalled and provided sufficient details of the incidents to enable JWE to know the particulars of the alleged discreditable conduct and respond to it. The inconsistencies in her statements and her inability to explain all of them diminish the strength of her evidence but they do not, in my view, completely undermine her credibility and render it incapable of belief.

69While GH’s evidence has some deficiencies and is obviously not as compelling as it would be had JWE admitted the allegations or been convicted of charges relating to the incidents, it nevertheless constitutes robust evidence that the alleged similar acts occurred. Any frailties in the evidence can be probed by Defence counsel at trial.

70The fourth step in the probative value analysis is a determination of whether the evidence has been tainted by collusion. A trial judge cannot assess the objective improbability of coincidence without considering whether the apparent coincidence is in fact the product of collusion: Handy, at para. 106. If collusion is present, it destroys the foundation upon which the admission of the evidence is sought, namely that the events described by JK and GH, testifying independently of each other, are too similar to be credibly explained by coincidence: Handy, at para. 104. Collusion is a critical factor in the analysis because it refutes the very premise upon which admissibility depends: Handy, at para. 110.

71Collusion can be deliberate, such a mutual concoction of false allegations or collaboration of witnesses to align their evidence and avoid inconsistencies in their testimony. It can also be inadvertent, such as when a witness’s independent recall of events becomes confused or blended with information that she or he received from another source.

72Evidence of opportunity for collusion is not sufficient to exclude similar fact evidence. The Supreme Court of Canada has ruled that, “if the evidence amounts to no more than opportunity, it will usually be best left to the jury”: Handy, at para. 111.

73Where there is some evidence of actual collusion, or at least an “air of reality” to alleged collusion, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the disputed similar fact evidence is not tainted by collusion: Handy, para. 112. If the trial judge is persuaded, on a balance of probabilities, that the evidence is not tainted, then the evidence may be admitted (if its probative value outweighs its prejudicial effect) and the jury makes the ultimate determination of its worth.

74In this case, I find that there is an air of reality to Defence counsel’s argument that the similar fact evidence was tainted by collusion. There is no evidence that JK and GH ever discussed any of the allegations against JWE when they were young. The record suggests that they had no contact with each other for many years after their friendship fell apart during their adolescence. However, according to GH’s testimony, JK reached out to her by Facebook Messenger in January 2017 and told her that she (JK) had been sexually assaulted by her step father at a certain stage in her youth. JK told her that the police were investigating and that Constable Innis wished to speak to her to see whether she might have any information relevant to JK’s allegations.

75The original Facebook Messenger was not adduced as evidence but a responding message from GH to JK is part of the record. The responding messages states:

Hi there thanks for reaching out. So what I wanted to say over the phone is basically that I feel for you and the situation and aftermath of what happened, and I really want you to know that I support you in the endeavour to work through this process. What you shared with me so far is really concerning. Rather than calling you I will be following up directly with Officer Innes directly to make sure I get in contact with her. Please be well. Thanks, [GH]

76This evidence constitutes more than proof of mere opportunity for collusion. GH’s testimony that JK shared with her the allegation that she was sexually assaulted by JWE at a certain stage of her youth and GH’s subsequent message that, “What you shared with me so far is really concerning”, raise a reasonable basis for concern about possible collusion. The Crown therefore has the onus of proving, on a balance of probabilities, that no actual collusion occurred.

77GH testified that JK did not share any details of her allegations at any time. She denied having discussed any details of her own allegations against JWE with JK, or even disclosing the fact that she had also been sexually assaulted by him. Her evidence in that regard was not contradicted.

78Although the message quoted above refers to a potential phone conversation between them, GH testified that they did not actually speak over the phone. Her testimony on that point is corroborated by further Facebook Messenger messages exchanged between them a few days after the first contact. Those messages establish that JK did not have GH’s telephone number, which is why she reached out using Messenger. In her statement to the police, GH told the investigating office that her original inclination was to call JK, but then she thought her memories might be distorted by things that JK told her, so she did not make the call.

79Messages in the record also corroborate GH’s testimony that she did not discuss details of any allegations with JK. On the afternoon of February 8, 2017, the same day that GH gave a video-recorded statement to the police, JK messaged her the question, “Can I ask you something?” GH responded that the investigating officer had instructed her not to discuss details with JK in order to ensure that whatever information she provided to the police would be her own personal recollection only. In other words, the evidence shows that GH was cautioned about the risk of collusion by Constable Innis and she abided by the instructions she was given.

80I conclude that the Crown has met its onus of disproving collusion on a balance of probabilities.

81The next stage in the analysis is to consider the prejudicial effects of the proposed similar fact evidence.

Prejudicial Effects of the Proposed Evidence

82Evidence of other discreditable conduct is inherently prejudicial, which is precisely why it is presumptively inadmissible. My task is to determine the extent of the prejudicial effect of the disputed evidence in this case.

83I am cognizant that the prejudicial effect of the evidence does not necessarily diminish as its probative value increases: Bent, at para, 46

84I am not concerned about prejudice in the sense of unduly lengthening the trial. GH’s evidence will not consume a significant amount of time.

85Moreover, the prejudice is not the risk of conviction. Rather, it is the risk of a wrongful conviction. Handy at para. 139. The Ontario Court of Appeal in Bent, at para. 46 ruled:

Prejudice takes two forms. The first is moral prejudice, which may cause the jury to convict the accused not on the basis of the evidence but on the basis that he is a bad person who deserves to be punished. The second form of prejudice, reasoning prejudice, diverts the jury from its task and risks the jury giving the evidence more weight than it deserves.

86In assessing prejudicial effect of similar fact evidence, consideration should be given to (i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character; (iii) the extent to which it may confuse issues; and (iv) the accused’s ability to respond to it: B.(L.) at para. 23. This is not an exhaustive list. Any factor that heightens the risk of moral or reasoning prejudice is a relevant consideration.

87There is a genuine risk of both types of prejudice in this case. If the jury finds GH to be credible and accepts her evidence of sexual misconduct beyond that with which JWE has been charged, jurors may develop such a disdainful view of JWE’s character that they may be inclined to find him guilty, not based on proof beyond a reasonable doubt of the elements of the offences charged, but rather because they think he is deserving of punishment. There is a further risk that jurors could become confused about the issues to be proved beyond a reasonable doubt because the proposed evidence does not relate to charged offences. Finally, there is a risk that jurors could give the similar fact evidence more weight than it deserves, resulting in precisely the kind of propensity reasoning that is prohibited.

88The potential prejudicial effects of the disputed evidence flow primarily from the fact that it is highly discreditable. GH alleges that JWE welcomed her into his home, provided her with adult guidance during a difficult period of her adolescence, then abused her trust in him and exploited her vulnerability by sexually assaulting her more than once over a period of about one and a half years. If the jury accepts her evidence, they are likely to view JWE’s conduct toward GH as reprehensible. However, this is not a case, like Handy, where the similar fact evidence is more reprehensible than the alleged conduct for which the accused is charge: Handy, at para. 140.

89Prejudice exists on a continuum. Some evidence may be so repugnant that it raises real concerns about trial fairness, whereas other evidence may be at a lower level of prejudice: Bent, at para. 46. The evidence in question in this case is toward the higher end of the spectrum, but it is not so reprehensible as to be inflammatory when considered in the context of all the other evidence in the case. It is unlikely to produce such sentiments of revulsion in the jury as to result in a deviation from their duty to undertake a dispassionate, impartial and fair analysis of the evidence, and to follow my instructions with respect to the law.

90I therefore do not agree with Defence counsel’s submission that the evidence is so prejudicial as to deprive the accused of trial fairness. I note that Defence counsel will have an opportunity to challenge GH’s evidence by cross examination and to respond to it at trial.

91In my view, the risks of prejudice associated with the evidence can be minimized with proper limiting instructions to the jury. I recognize that there are legitimate questions about the effectiveness of a trial judge’s instructions as to the limited use that may be made of propensity evidence (Handy, at para. 141) but our jury system depends on our confidence in both the willingness and the ability of the jury to do its job in accordance with my instructions. I intend to provide the jury with both mid-trial and final instructions regarding the permissible and the prohibited uses of the evidence.

Weighing of Probative Value Versus Prejudice

92Before engaging in the requisite balancing exercise, it is appropriate to remind myself of the starting point, namely that the disputed evidence is presumptively inadmissible because of its inherent and potentially poisonous prejudicial effect. It is to be admitted only if its probative value in relation to an issue or issues in the trial is so high that it displaces the prejudice that will inevitably arise if it is put before the jury: Bent, at para. 71.

93The evidence is relevant to specific issues that are reasonably anticipated to arise in the case, including the central issue of the actus reus of the offences charged, and the issue of the accused’s opportunity to commit the offences. Although it contains some frailties, it is certainly capable of belief and it supports the inferences sought to be drawn by the Crown. Its probative value is heightened by the degree of similarity it bears to the time, place, victim, manner and nature of the offences charged. The similarities are sufficiently distinctive as to have substantial corroborative value in relation to the particular allegations of JK. The force of the connection between the similar fact evidence and the offences charged is so strong that it defies coincidence or other innocent explanation: Handy, at para. 49. In the absence of any evidence of collusion, I conclude that the evidence has very high probative value.

94There are inevitable risks of moral prejudice and reasoning prejudice, but this is not a case in which the prejudicial effects are so pronounced as to strike at the heart of the fairness of the trial.

95In conclusion, I am persuaded that the probative value of the evidence in relation to the issues identified by the Crown is sufficiently high to outweigh its prejudicial effect.

96I therefore find that the disputed similar fact evidence is admissible in the trial.

Petersen J.