COURT FILE NO.: CJ 9487
DATE: 2019-08-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. McNaughton, for the Crown
Applicant
- and -
S.S.
H. Thompson, for the Respondent
Respondent
HEARD: February 14, 2019
RULING ON APPLICATION TO ADMIT SIMILAR ACT EVIDENCE
A.J. GOODMAN J.:
[1] S.S. (“S.S.”) is charged with one count of sexual interference in respect of “C.F”, a person under the age of 14 years, which was alleged to have been committed on October 31, 1991, in Kitchener, Ontario.
[2] The accused has pleaded not guilty.
[3] The Crown seeks a ruling that the facts or allegations of sexual misconduct by S.S. towards another complainant, “LF”, be admissible as similar act evidence on the count alleged before this Court.
[4] After submissions, I dismissed the Crown’s application with reasons to follow. These are my Reasons.
Background evidence in support of the application:
[5] The similar act complainant, L.K., is S.S.’s grand-niece. She testified at trial that in July, 2017, when she was 10 years old, she was visiting him at his home in Port Elgin. She recalled that at one point, she was sitting beside him on the couch, using his iPad to play a game. She wanted to access the internet on the device, so she asked S.S. to input the password. According to L.K., he put his arm around and behind her as he leaned in beside her (her words were that he “scooched closer”). He moved his hand on her leg, and, as she watched a YouTube video, he moved his hand gradually up her leg until he was touching her vagina. L.K. became nervous and unsure of what to do. She escaped the situation by excusing herself to the bathroom. Subsequently, S.S. told her “I’m sorry I made you pee, did it feel good”?
[6] The current complainant, C.F., is expected to testify that S.S. was a friend of her mother. He allowed C.F. and her mother to stay with him and his wife for a period of time in 1991, when C.F. was nine. C.F. will testify that on Halloween night, she was being babysat by the respondent while her mother was out at a Halloween party. He allowed her to play games on his computer. She recalls that at one point that evening, she was playing a computer game while the Respondent was sitting next to her. As she was playing, he kept putting his hand on her leg. She thought nothing of it at the time.
[7] S.S. then asked if C.F. would like to read a book in bed. He sat down next to her on the bed as she was reading. He put his hand on her leg and began gradually moving it up, closer to her vagina, until he was touching it. She recalls that he penetrated her vagina with his fingers. She recalls him saying that his hand was cold.
Positions of the Parties:
[8] The Crown submits that the similar act application ought to be granted in that both complainants were sexually violated by the accused in similar circumstances. The Crown submits that there are clear and compelling similarities to the acts alleged by S.S. such that the objective improbability of coincidence has been established.
[9] It is the Crown’s position that the evidence of each of the complainants should be admitted as similar fact evidence in that it is not generic in nature and the product of collusion. In this case, the Crown submits that the primary purpose of the proposed similar act evidence is premised on supporting the credibility of the complainant. As I glean from submissions, a secondary aspect to the evidence is to prove the actus reus of the offences; to demonstrate a specific propensity on the part of S.S. to prey upon young vulnerable children.
[10] Although there is binding authority to the effect that facts underlying prior acquittals are generally inadmissible as similar fact evidence, the Crown submits that those authorities can be distinguished in this case because of the express comments of the trial judge related to findings of misconduct on a balance of probabilities.
[11] The respondent submits that there are significant distinguishing features to the evidence proposed to be called by the Crown. Those features include the nature of the relationship, the temporal disconnect and the nature of the conduct alleged. It is the respondent’s position that the proposed evidence is of an entirely generic nature and unhelpful to the trier of fact
[12] Further, and more importantly, the respondent submits that he was acquitted at trial of the underlying facts giving rise to the charges involving the other complainant. It is submitted that such acquittal is a bar from introducing this evidence at this trial as the proposed evidence is highly prejudicial and has the effect or inviting both moral and reasoning prejudice by the jury.
Legal Framework
[13] Similar act evidence is more accurately described as other discreditable conduct of the accused. The necessary degree of similarity of the evidence proffered by the prosecution is contextual depending on the purpose attached to its intended admission.
[14] The leading cases on this issue of similar act evidence are those authored by the Supreme Court of Canada in R. v. Handy (2001), 2002 SCC 56, 164 C.C.C. (3d) 481 and R. v. Shearing (2002), 165 C.C.C. (3d) 255.
[15] As a general rule, the introduction of other discreditable conduct by the prosecution is presumptively inadmissible. However, this exception to the overarching rule that all relevant evidence is to be admitted, itself admits of an exception in exceptional circumstances. In other words, the similar act evidence or other discreditable conduct rule has been described as an exception to an exception to the basic rule that all relevant evidence is admissible: Arp v. The Queen (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.) at 338.
[16] Where other discreditable conduct evidence is admitted, leaving to the side an instance of rebutting evidence of good character, there is always a danger or risk of prejudice. The evidence is inherently prejudicial. Caution therefore is required that such evidence is admitted only in those circumstances where the holding of a fair trial is not defeated by the admission of the evidence.
[17] As character evidence, other discreditable conduct evidence is a form of circumstantial evidence: Arp at pp. 349, 350, and 352. Where admitted, the evidence is simply one item of evidence to be considered as part of the prosecution's overall case: Arp at 353. While the trial judge exercises gatekeeper control in determining admissibility of the evidence, whether the other discreditable conduct evidence is accepted or found to be credible or afforded any particular weight is a matter for the trier of fact function: Arp at p. 338, R. v. Litchfield (1993), 1993 CanLII 44 (SCC), 86 C.C.C. (3d) 97 (S.C.C.) at p. 119. That is not to say that the trial judge as trier of law cannot engage in limited evaluation of the evidence to ensure sufficient probative value to justify admission: Arp at pp. 343-4, 350. Where admitted on a basis of relevance related to the similarity of the other discreditable conduct to the charged misconduct, a question for the triers of fact is whether the tendered evidence is capable of being regarded as similar acts.
[18] The Ontario Court of Appeal in R. v. T. B., 2009 ONCA 177 discussed the issue in addressing the evidence to support the credibility of the complainant. This was a Crown appeal against the respondent’s acquittal on nine historical charges of sexual offences. The Crown argued that the trial judge committed two errors. He rejected the Crown’s application to use evidence on all counts as similar fact evidence on each of the other counts and he held that there was no corroboration of the victims’ evidence. With respect to the second ground of appeal, Borins J.A. set out the following at paras. 23 to 24:
The Crown’s position regarding the permissible use of similar fact evidence to support a complainant’s allegations is consistent with decisions of this court. For example, in R. v. Thomas (2004, 2004 CanLII 33987 (ON CA), 72 O.R. (3d) 401, Rosenberg J.A. at para. 43 observed that the trial judge “did identify the permitted use of the evidence. He suggested that the jury might find that there was a pattern of similar behaviour that confirmed each complainant’s testimony that the offences took place. This was sufficient”. At para. 54 Rosenberg J.A. provided the following guidance “on the proper use of the evidence”:
If the jury finds this distinctive pattern, they might find it defies coincidence that students were lying or mistaken about what happened to them absent collusion or some other explanation such as tainting through the police investigation. The evidence accepted by the jury might therefore assist the jury in determining whether any of the complainants was credible and whether the acts they alleged really occurred. … They can use the evidence of one or more complainants in assessing the truthfulness of the other complainants only if there is this distinctive pattern of conduct that suggest that they were describing similar events. [Footnotes omitted.]
[19] In R. v. Thomas, 2004 CanLII 33987 (ON CA), [2004] O.J. No. 4158, at para. 42, Rosenberg J.A. stated:
To determine whether the charge to the jury in this case was deficient it is necessary to return to basic principles concerning the admission and use of similar fact evidence. The suggested instructions from Arp and R. v. B. (C.) are intended to capture the following concepts:
(1) Similar fact evidence is admissible if that evidence identifies a specific propensity on the part of the accused. It is not admissible if it merely identifies a general disposition such as dishonesty or sexual immorality.
(2) General bad disposition is neither a crime nor sufficiently distinctive to assist the jury in determining whether the accused committed this offence in these particular circumstances.
(3) By correctly identifying the permitted use of the evidence, the trial judge will assist the jury in using the similar fact evidence for the proper purpose.
(4) Similar fact evidence has the potential to undermine the presumption of innocence and the burden of proof on the Crown if the jury, unsure whether the accused committed the offences charged, convicts the accused to punish him or her for the prior unpunished misconduct, or because he is a person of bad character.
Application of these principles to this case:
[20] As mentioned, evidence of similar acts and of discreditable conduct by an accused is presumptively inadmissible. The onus is on the prosecution to satisfy me on a balance of probabilities that similar act evidence in relation to a material fact in issue outweighs its prejudicial effect on the fairness of the trial and justifies its admission.
[21] As will be explained momentarily, I need not turn to any detailed analysis as outlined in the seminal case of Handy, at para. 82. Suffice to state that the extended passage of time poses a hurdle for admission of the evidence. I am not satisfied that there is some probative value that goes to the actus reus of the allegations and therefore, to the credibility or memory of the complainant in this case.
Acquittal of the charges against LK:
[22] My ultimate conclusion rests upon the doctrine of issue estoppel. I agree with the respondent’s submission that the similar act application is inadmissible in this case by virtue of S.S.’s acquittal of the same facts at trial in the Ontario Court of Justice in relation to the complaints levelled against him by L.K.
[23] At the end of his ruling, Sherwood J. made the following comment:
For the reasons I have given, I am not satisfied that the evidence of the accused is entirely truthful or accurate as to what happened on July 9, 2017, but I do have to accept that it raises a reasonable doubt. I am certainly satisfied on the civil standard of balance of probabilities that what the child complainant testified to is likely what happened that day and that the offences alleged were probably committed by the accused but I am unable to make that determination to the requisite standard required in a criminal proceeding.
[24] At the end of the trial the judge acquitted S.S. on the counts related to L.K.
[25] The Crown submits that if the respondent had never been tried on L.K.’s allegations, it would be necessary to establish the truth of those allegations on a balance of probabilities before admitting them as similar fact evidence in this case. It is suggested that particular finding has already been made by Sherwood J. Thus, the transcripts and ruling can be furnished to the jury in order to avoid the repletion of evidence or the necessity of having to call LK again to testify. The Crown says that it would be entirely illogical to exclude L.K.’s allegations simply on the basis that he was not found guilty of them beyond a reasonable doubt as that is not the burden to meet when tendering similar fact evidence.
[26] The Crown attorney points out para. 79 in Arp, as follows:
Even so, I cannot accept the proposition that that the principle set out in Grdic…applies to verdicts rendered by the same trier of fact in respect of charges tried together in a single proceeding. There is nothing unfair or logically irreconcilable about a jury having reasonable doubt whether the accused committed an act while also finding that it is likely that he committed it.
[27] Although the introduction of similar act evidence is premised on meeting the admissibility on a balance of probabilities, with respect, I do not accept the arguments advanced by the Crown attorney.
[28] In Arp, the Supreme Court held that acquittals are generally a bar to use of those facts as similar fact evidence in a subsequent proceeding. At paras. 77 and 78, (citing its prior decision in Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] 1 SCR 810), the court reinforced the idea that an accused should not be forced to repeatedly defend himself against the same allegations.
[29] While the Crown referenced para. 37 of Grdic, wherein it appears that the Supreme Court of Canada did not shut the door on the notion of acquittals when applying to the doctrine of res judicata, I am not persuaded that the statement therein is currently good law as it relates to the matter of issue estoppel.
[30] In his reasons for judgment in Grdic, Lamer J. states clearly the fundamental point about acquittals at paras. 35 and 36.
There are not different kinds of acquittals and, on that point, I share the view that "as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence" (see Friedland, Double Jeopardy, (1969), at p. 129; also Chitty i, 648; R. v. Plummer [1902] 2 K.B. 339 at p. 349. To reach behind the acquittal, to qualify it, is in effect to introduce the verdict of "not proven", which is not, has never been, and should not be part of our law.
If the trial judge did not believe the accused, as he was entitled to, and his remarks might be construed as suggesting that he in fact did not believe the accused, he should have entered a conviction. Not having done so, Grdic is entitled to the full benefit of his acquittal.
[31] Most significantly, the Supreme Court of Canada has laid to rest the conundrum of prior acquittals and issue estoppel in R. v. Mahalingan, 2008 SCC 63, a decision to which neither counsel referred to in their respective submissions.
[32] In Mahalingan, the Supreme Court of Canada provided guidance as to when the doctrine applies in criminal law. 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."
[33] I would go further and adopt the ratio as it applies to the introduction of similar act evidence. At para. 22, the court made it clear that this rule applies whether or not the issue was decided in the defendant's favour based on a positive factual finding or on the basis of reasonable doubt. At paras. 29-31, the Chief Justice goes on to state:
First, to exclude issues resolved on the basis of reasonable doubt from the scope of issue estoppel gives insufficient weight to the principle that an accused should not be required to answer twice to the same allegations. Once a trial judge has concluded that the Crown has failed to prove a factual issue, the matter is decided against the Crown, and the Crown should be estopped from re-litigating it. It should not matter whether the Crown failed to prove the fact because the trial judge had a reasonable doubt, or because the trial judge expressly found against the fact the Crown is trying to prove. The burden on the Crown to prove its case beyond a reasonable doubt is a fundamental aspect of our criminal justice system. The Crown should not be able to look to the standard of proof as an excuse to relitigate matters.
Second, to exclude issues resolved on the basis of a reasonable doubt from the scope of issue estoppel gives insufficient weight to the value of finality in litigation. Trial judges, charged with the duty of determining whether the Crown has proved its case beyond a reasonable doubt, frequently state their findings in terms of having a reasonable doubt about an issue. If having a reasonable doubt on a particular issue is not held to be a conclusive finding of fact, then very few issues will fall within issue estoppel's ambit, and the ends of finality will be poorly served.
I conclude that, properly understood, issue estoppel in Canadian criminal law operates to prevent the Crown from re-litigating an issue that has been determined in the accused's favour in a prior criminal proceeding, whether on the basis of a positive finding or reasonable doubt.
[34] There is no basis for any exception to the rationale provided by the majority in Mahalingan. Here, there was a full acquittal on the charges related to L.K. I must also consider the accused’s ability to respond to the evidence. If I accept the Crown’s position, the re-litigation of the L.K. charges is unavoidable and may detract the jury from their ultimate task. The respondent would be required to again give evidence or defend the allegations of sexual assault from L.K. and place him in an untenable position when he had been acquitted.
[35] As mentioned, the Crown sought to introduce the findings of the trial judge’s reasons as evidence to support the application. It is urged upon me that a limiting instruction can be provided to the jury in relation to this judicial finding and its use as similar act evidence.
[36] Notwithstanding Mahalingan, in my opinion, the introduction of the similar act evidence from L.K.’s trial or transcripts will lead to a forbidden line of reasoning and cause the trier of fact to infer guilt or general propensity from a prior judicial determination.
[37] While the test for admission of similar act evidence is on a balance of probabilities, it is clear to me that even a limiting instruction would not cure the prejudice. It does not take much to imagine the jury considering and applying considerable weight to the comments of a trial judge in making their determination as to the use of the similar act evidence. The evidence will likely demonstrate the accused has general discreditable propensity or tendencies or a pattern of behaviour towards young children that enhances the complainant’s version of events. Fairness to the respondent requires that he should not be called upon to answer allegations of misconduct or facts already resolved in his or her favour by a judicial determination on the merits.
Conclusion:
[38] As a matter of public policy and issue estoppel, the facts arising from the respondent’s acquittal in respect of counts related to L.K. are inadmissible in this case. A judge conclusively decided the facts in favour of S.S. on the basis of a reasonable doubt.
[39] In my opinion, the respondent should not be required in a subsequent proceeding to address the same allegations, albeit framed under a similar act application. To require, in effect, a second answer or defence of the issues would be to violate trial fairness principles, not to mention judicial finality. Moreover, there is a substantial likelihood of either moral or reasoning prejudice arising with the introduction of the proposed evidence that cannot be remedied by a curative instruction to the jury.
[40] The Crown’s application is denied.
A.J. Goodman J.
Released: August 6, 2019
COURT FILE NO.: CJ 9487
DATE: 2019/08/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
S.S.
Respondent
RULING ON APPLICATION TO ADMIT SIMILAR ACT EVIDENCE
A.J. Goodman J.
Released: August 6, 2019