ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-18-1124-00
DATE: 2019 10 29
BETWEEN:
Her Majesty the Queen
A. Bernstein, Crown counsel
- and -
Gavin McAnally
E. Dann and S. Secter, Counsel for the Accused
HEARD: September 16-20 and 23, 2019
REASONS FOR DECISION
LEMAY J
[1] The accused, Mr. Gavin McAnally, was a teacher employed in Peel Region. He faces a four-count indictment relating to interactions with two of his former students. The first count relates to I.D. and the last three counts relate to I.D.’s younger brother A.D. During the trial, I.D. turned twenty-one and A.D. was seventeen. They were seventeen and fifteen at the time of the offences.
[2] The charge relating to I.D. flows from an allegation that the accused asked I.D., on more than one occasion, to send the accused a picture of I.D.’s penis when I.D. was still under the age of eighteen.
[3] The charges relating to A.D. primarily flow from one incident that took place in early February of 2017. In that incident, the accused is alleged to have asked A.D. to show the accused his penis. The accused then touched A.D.’s penis. As a result of this offence, the accused is charged with sexual touching, invitation to sexual touching and sexual assault.
[4] The trial in this matter is being held before me sitting as a judge alone. The Crown has not filed a formal application to admit similar fact evidence in this case. However, on consent, I was asked to consider an issue relating to similar fact evidence in a blended voir dire. The parties also agreed that, if I admitted the evidence on the voir dire, I could then consider that evidence in the trial.
[5] Specifically, the Crown seeks the following:
a) To have certain portions of the evidence of J.K. J.C, N.S. and C.S. admitted as similar fact evidence. All four of these men are former students of the accused. N.S. and C.S. are also close friends with I.D. and A.D.
b) To have the evidence of I.D. and A.D. admitted on a count-to-count basis in respect of the charges relating to the other person.
[6] The parties also asked for a decision on whether the similar fact evidence was admissible before the accused determined whether he would call evidence. I provided a bottom line decision to the parties with some brief oral reasons so that counsel was aware of both what evidence was admissible and why I had excluded certain other evidence
[7] When I provided my oral reasons to the parties, I advised them that my subsequent reasons would govern. Therefore, for the reasons that follow, I determined that the evidence of J.K. and J.C. was completely inadmissible. I also determined that only those portions of the evidence of N.S. and C.S. that dealt directly with the charges in this case (and was not “similar fact” evidence) was admissible. Finally, in terms of the count-to-count evidence, I determined that it was also inadmissible as similar fact evidence.
[8] I will divide my analysis into the following sections:
a) A summary of the evidence relating to the charges.
b) A summary of the evidence from each of the proposed similar fact witnesses.
c) A listing of the questions that I must answer in deciding this application.
d) A summary of the law that I must apply in this case.
e) The answers to the questions set out in section (c).
The Evidence Relating to the Charges
[9] In this section, I propose to deal primarily with the evidence of the two complainants. I will briefly touch on the non-similar fact evidence of other witnesses in relation to these charges.
a) I.D.
[10] As noted above, the count relating to I.D. is based on an allegation that the accused asked I.D. to send (via text message or some other service) a photo of the accused’s penis.
[11] Some background on the accused is necessary at this point, although he has not testified. I understand from the evidence given by the various witnesses that the accused was a Religious Studies teacher at a high school in Peel Region. I understand that he started out in that role in the early 2000’s (or perhaps late 1990’s), and was originally employed as an assistant (or trainee) teacher.
[12] I.D. originally knew the accused before he went to high school, because I.D.’s cousins, who were older than him, were friendly with the accused. I.D. became friendly with the accused when I.D was in Grade 9 and the accused was one of the assistant soccer coaches. I.D. played on the soccer team. At that time, I.D.’s parents were going through a separation, and the accused offered to support I.D.
[13] The relationship between I.D. and the accused progressed from conversation during and after school, to the accused taking I.D. (and his friends) out for food, to having I.D. and some of his friends over to the accused’s condominium to play games and watch movies. Sometimes the accused would take I.D. (or other students) to Raptors games.
[14] I.D. and the accused remained friends until the end of I.D.’s first year in College. I.D. testified that, during high school, the accused regularly spoke to him about sexual topics, such as masturbation, sexually transmitted diseases (“STD’s”) penis size and circumcision. The frequency of these conversations increased over time as the relationship between the accused and I.D. grew closer.
[15] For the purposes of this ruling, there are three separate areas of the alleged sexual conversations that should be set out in more detail. First, there were allegedly conversations about the size of I.D.’s penis. According to I.D., the accused asked him on a number of occasions how large his penis was.
[16] Second, according to I.D., the accused made requests for pictures of I.D.’s penis. Towards the end of grade 12, the accused allegedly became aware that I.D. had a photo taken of himself with no clothes on from the waist down. At the time, I.D. was still seventeen. Both I.D. and N.S. testified that the accused asked for a copy of this photo. In addition, N.S. testified that the accused regularly asked him questions about I.D.’s penis.
[17] In addition, I.D. testified that the accused requested him to send funny snaps on SnapChat. I.D. testified that, by using the words funny snaps, the accused was intending that I.D. send him a photo of I.D.’s penis.
[18] In terms of photos, there was also one incident of what I.D. called “cat-fishing”. In this incident, I.D. and one of his friends pretended to be a girl so that they could get one of their other friends to send them a picture of his penis. I.D. testified that, when the accused heard about this incident, he wanted to see the photograph.
[19] In terms of seeing the accused’s penis, I.D. also testified about an incident where he and N.S. were with the accused and having a discussion about pubic hair and penises. I.D.’s recollection of this specific conversation was that N.S. talked about an incident where his foreskin had gotten ripped. I.D. did not raise this incident at either the preliminary inquiry or when he gave his statement to police.
[20] Finally, there was regular discussion about pubic hair. There was some discussion about pubic shaving, but most of the discussion was requests to see I.D.’s pubic hair. The discussion started because I.D. had allegedly shown his pubic hair to his classmates in gym class. As a result, the accused allegedly asked I.D. why he couldn’t see I.D.s pubic hair, as he had shown his friends and the accused wanted to be close to I.D.
[21] These conversations about pubic hair allegedly culminated in an incident in March 2017, where the accused asked to see I.D.s pubic hair one night when I.D., C.S. and the accused were hanging out at the accused’s condominium. I.D. testified that this incident made him uncomfortable with the accused, and that this was the moment when he stopped trusting the accused. C.S. was in the washroom during this conversation, and alleges hearing something.
[22] I.D. testified that C.S. was in the washroom, but that C.S. heard the interaction between I.D and the accused. I.D. testified that C.S. was in the washroom for two or three minutes and when C.S. came out, that I.D. and the accused were right near the washroom, as the accused was close to him. I.D. also testified that he said no approximately three times to the accused.
[23] I.D. provided the police with a series of e-mails covering approximately eight months, from August of 2016 to April of 2017. However, there was a gap in the e-mails that I.D. provided between March 15th, 2017 and April 11th, 2017. I learned (during cross-examination) that I.D. had sent a text to the accused for his birthday, as well as dropping off a card for him with N.S. These documents both spoke to a close “big brother” relationship between N.S. and I.D.
[24] I.D. also testified that there was at least one other incident where he and A.D. were in a car with the accused, and were both asked to show the accused their pubic hair. I.D. testified that A.D. did so.
[25] The conversations about sexual topics took place in the context of the larger relationship, and happened both one-on-one and in a group. I.D. described there being trust conversations between him and the accused, where the accused allegedly emphasized the importance of trust between the two of them, and allegedly linked that trust to I.D.’s willingness to continue to engage in the sexualized conversations.
[26] In addition, I.D. testified that the accused would have him “pinky swear” after one-on-one conversations. The purpose of the “pinky swear” was to remind I.D. to keep his conversations private. I note that none of the other witnesses testified about anything similar.
[27] Finally, I.D. testified that the accused regularly provided him with gifts at Christmas and his birthday, as well as candy and chocolate on Hallowe’en and Easter. I.D. suggested that the accused provided gifts to people that were on the “nice” list and not to those who were on the “naughty” list. These lists were apparently kept in a book.
b) A.D.
[28] A.D. also testified that he knew the accused through his cousins prior to attending the high school where the accused taught. A.D. never had the accused as a teacher, but A.D. was on the soccer team and the accused was one of his coaches. A.D. started Grade 9 at the beginning of 2015.
[29] A.D. testified that his relationship with the accused progressed from talking, to hanging out at school to going out for meals. Eventually A.D. would spend time at the accused’s condominium, either on his own or with other friends. This relationship lasted until 2017.
[30] A.D. provided some of the same testimony about gifts, conversations and trust that was provided by I.D. A.D. regularly received gifts from the accused for Christmas and birthdays. A.D. also testified that, when he and the accused went out for meals, the accused regularly paid for the food.
[31] A.D. testified that the accused talked to him regularly about STD’s and other sexual topics. These conversations were described by A.D. as being “trust” conversations, and the accused emphasized the importance of trust.
[32] A.D. also testified that the accused regularly asked A.D. to show the accused his pubic hairs and/or his penis. The requests to see A.D.’s pubic hairs were more regular, and came first. A.D. testified that he had received this request on a number of occasions and had shown the accused his pubic hair regularly.
[33] The events that gave rise to the charges occurred in early February of 2017. On that occasion, the accused and A.D. went over to the accused’s condominium. The accused did not live at his condominium full time. Instead, according to A.D. the accused spent much of his time at his mother’s house in Brampton.
[34] On entering the condominium, the accused went into the washroom and flushed the toilet. He allegedly came out holding a dark pubic hair, and asked A.D. if it was his pubic hair. A.D. told him no, that his pubic hair was lighter. The accused then asked to see A.D.’s pubic hair, which A.D. then showed him.
[35] The accused then allegedly asked to see A.D.’s penis. Once A.D. had exposed his penis, the accused allegedly asked to examine it for STD’s, knelt down and asked if he could touch it. The accused then allegedly put his hands on A.D.’s penis and moved it around.
[36] A.D. testified that he was shocked and upset by these events. A.D. testified that the accused then noted that A.D. had stubble on is mustache area and offered to show him how to shave his facial hair. A.D. participated in this activity as well, and remained in the accused’s condominium for about an hour after the alleged assault.
[37] A couple of days later, A.D. testified that the accused took him to a Raptors game because A.D. had shown the accused trust and “opened up” by showing the accused his penis.
[38] A.D. then testified that the accused tried to see his penis again a couple of weeks later. A.D. testified that the accused made references to “trust” in order to convince A.D. to show the accused his penis. However, A.D. refused to show the accused his penis a second time.
[39] A.D. testified that this was the last time that he had any significant contact with the accused. A.D. also testified that, from the time of the second incident until he spoke to the police in August of 2017, he tried to avoid the accused.
The Proposed Similar Fact Evidence
[40] I note that the evidence of I.D. about the accused’s requests to see his pubic hair could be considered similar fact evidence for the charges relating to A.D. I have already set that evidence out. Similarly, A.D.’s evidence about the accused’s requests to see his penis could be similar fact evidence for the charges relating to I.D. I have already set this evidence out in the previous section and will analyze it below.
[41] This brings me to the other four witnesses. As I have noted, J.K and J.C. do not know any of the other witnesses in this trial. C.S. and N.S. are good friends with I.D. and A.D. In fact, N.S. described his relationship with I.D. and A.D. as if they were his brothers. I will set the proposed evidence of each witness out in the following sections.
[42] I did not hear from the witnesses in the order that I have set out their evidence. I have organized their evidence based on whether or not the witness knew I.D. and A.D., as the relationship between witnesses is important in terms of assessing whether there was any collusion or taint.
a) J.K.’s Evidence
[43] J.K is currently 34 years old. He attended at a different high school in Peel Region when the accused worked as an assistant teacher. His relationship with the accused began in 2000 and had mostly ended by 2005.
[44] J.K. first came to know the accused because the accused knew J.K.’s older brother. J.K. and the accused eventually became friends when J.K went to high school.
[45] J.K. testified that the accused had Toronto Maple Leafs tickets as well as Blue Jays tickets, and that J.K. went to between five and ten Leafs games and 1 to 2 Jays games. In terms of gifts, J.K. testified that he would receive presents from the accused for his birthday and at Christmas on a regular basis.
[46] J.K also testified that he was regularly invited over to the accused’s house, where the accused lived with his mother. J.K also testified that he was regularly asked to spend the night. J.K. testified that, although the accused did not drink, the accused would regularly offer him (and other students) alcohol.
[47] J.K testified that the accused regularly “swung the conversation around” to sexual issues. The topics that were discussed included STD’s as well as masturbation. In particular, J.K. testified that the accused discussed group masturbation and sports teams with him.
[48] J.K. testified that there was one incident before a Leafs game when he and the accused were having dinner at Mr. Greenjeans in Toronto. J.K. was approximately fifteen at the time. On that occasion, the accused asked J.K. how big his penis was, whether the accused was circumcised and whether his penis was straight or curved.
[49] J.K. testified that he would have periods where he was friends with the accused and then there would be periods when there was no contact. When asked why he returned and continued to spend time with the accused even after the periods of no contact, J.K. testified that he kept spending time with the accused because he felt badly for him. J.K testified that the accused talked about suicide, and about how he had been abused by his father. J.K. eventually ceased all contact with the accused when J.K. was in his early 20’s.
b) J.C.
[50] J.C. was 24 years old at the time of the trial, and met the accused in 2010 when J.C. was fifteen years old. The accused was supply teaching in J.C.’s classroom and noticed that he was upset, and the two of them had a conversation in the hallway.
[51] The accused was not J.C’s teacher. As a result, they would have conversations in the hallway and then conversations in the accused’s classroom. J.C. initiated conversations about STD’s because he was curious. The accused and J.C. would discuss various sexual topics, such as masturbation (including group masturbation), STD’s and sexual health related issues.
[52] In terms of these conversations, J.C. acknowledged on the witness stand that he would tell the accused about sexual exploits that had not actually happened just so he could have attention from the accused. J.C. eventually told the accused this, and the accused assured J.C. that he would continue to pay attention to him.
[53] In the context of these conversations, J.C. testified that the accused would offer to inspect J.C.’s penis to make sure that J.C. did not have STD’s, and that this offer was made more than once.
[54] The one incident that stood out was towards the end of first semester in Grade 11, where J.C. had received his timetable and had the accused for Religion class. J.C. was excited about this, and went to show the accused his timetable. When J.C. pulled out his timetable, the accused looked disappointed and allegedly said I thought you were going to show me something else. J.C. took this to mean his penis, although he acknowledged that the accused did not actually say this.
[55] J.C. told his mother what had happened, and provided a statement to the police in 2011. The accused was not charged as a result of J.C.’s narrative, but J.C. was removed from the accused’s class.
[56] J.C. testified that he did not see the accused socially outside of school, and that he never went to a sports game or other outing with the accused. J.C. also testified that, other than some candy, he did not receive any gifts from the accused.
[57] Finally, J.C. confirmed that he had heard about the charges against the accused in 2017 when his aunt told him about the charges at his grandfather’s funeral.
c) C.S.
[58] C.S. testified that he is currently 20 years old. He was in high school at the same time as I.D., and was friends with I.D. and N.S. He remains friends with them.
[59] C.S. testified that he came to know the accused when he was in Grade 7, and was at a paintball game for his brother’s hockey team. C.S. did not have the accused as a teacher until Grade 12, and that the accused was friends with his friends.
[60] C.S. testified that he communicated with the accused through social media and text messages. C.S. also testified that he would get gifts from the accused when he was in high school.
[61] In terms of his conversations with the accused, there would be some conversations that were normal and some that were inappropriate. C.S. testified that there were a significant number of conversations about STD’s that the accused had with him and others. The conversations were about risky sexual behavior because the accused thought that random sex with strangers was dangerous. According to C.S., the accused would offer to take a student to a clinic if they had engaged in risky behavior.
[62] C.S. seemed to suggest in his evidence that the accused asked about the size of penises, and asked to see penises. However, C.S. also acknowledged that he could not recall the precise words that were used by the accused about penises, and that he told the police that he was never there when the accused asked about penis size or when he allegedly asked to see pubic hair.
[63] C.S. also testified about the evening in mid-March 2017 when he went over to the accused’s condominium with I.D. to spend the evening. C.S. testified that the three of them went out for food beforehand, and then went back to the accused’s condominium.
[64] C.S. testified that he was in the washroom briefly when he heard I.D. say either “no” or “stop” two or three times. C.S. came out of the washroom approximately twenty seconds later, by his estimation. He did not hear anything else in this conversation.
d) N.S.
[65] N.S. testified that he had met the accused when he was in Grade 10, and had the accused as his Religion teacher. According to N.S. the accused started out as a teacher and became a friend. N.S. testified that he received gifts from the accused, and that he spent time with the accused although N.S. candidly acknowledged that part of his reason for spending time with the accused was to obtain gifts.
[66] Initially, this time spent hanging out with the accused was in his classroom. After some time passed, N.S. and others would go out to lunch or for other food with the accused. N.S also testified that he had been to the accused’s condominium on three or four occasions, but always with I.D.
[67] In his examination in chief, N.S. testified about four types of conversations with the accused of a sexual nature. First, there were group conversations that concerned drugs or sex or things relating to them. In particular, the accused discussed STD’s on a regular basis with N.S. and the group of friends that he spent time with.
[68] Second, there were conversations about penis size. Specifically, N.S. testified that there was one conversation that he remembers where the accused asked him about the size of I.D.’s penis. N.S. advised that this happened only once, and that N.S. quickly changed the subject.
[69] The third group of conversations were about circumcision. Specifically, at trial, N.S. recalled having a discussion with I.D. and the accused about a sexual experience that N.S. had where his foreskin was torn. This led to a discussion of circumcision, as well as the accused allegedly telling I.D. how to avoid tearing his foreskin by stretching it. N.S. seemed to suggest that, although this conversation took place in a restaurant, the accused was prepared to take I.D. down to the washroom and physically show him how to stretch his foreskin.
[70] According to N.S., there was also a conversation about circumcision in the classroom one day when there was a group of boys present. According to N.S., this conversation led to the accused guessing which of them were circumcised and which were not.
[71] The final group of conversations was about photos of penises. First, there was the incident of “cat fishing”. This was a case where I.D. and N.S. allegedly played a joke on a friend, and pretended to be a girl. They got their friend to send them a picture of a penis, and the accused allegedly asked to see it in order to make sure that the friend’s face was not in the picture.
[72] Second, there was in incident around graduation where N.S., I.D. and some friends went to Wasaga Beach to celebrate their graduation. There was allegedly a picture of I.D. that had been taken where he was naked from the waist down. N.S. testified that this picture was something that the accused asked him to see, and asked other people in the friend group to see.
[73] Finally, although not directly related to penises, N.S. provided evidence that I.D. had shown his pubic hair to friends in gym class and that the accused had asked I.D. why won’t you show me.
[74] In terms of these conversations, I should note that N.S. did not recall the “cat fishing” incident and the pubic hair incident at trial, and had to have his memory refreshed from the transcript. However, N.S. had not told the police about the foreskin incident described at paragraph 69 above until a couple of weeks before trial. N.S.’s explanation for the late recall of the foreskin incident is that he had been thinking about everything that happened and recalled this incident.
[75] I should also set out N.S.’s evidence about how he came to hear about the incident involving A.D. N.S. testified that he moved to Calgary in July of 2017, and that one day after N.S. had moved to Calgary, A.D. and I.D. called N.S. to tell him about the incident involving A.D.
[76] N.S. acknowledged that he, I.D. and other friends would discuss the incidents with the accused in the time before they were reported to the police. N.S. further acknowledged that those who were involved in interactions with the accused would share the details with those who weren’t involved. N.S. denied that there were any discussions of evidence after they went to the police. N.S. acknowledges a close and continuing relationship with I.D. and A.D.
The Questions to Answer in This Case
[77] In considering the admissibility of the similar fact evidence, I must address the following questions:
a) Should the evidence of J.K. and J.C. be admitted as similar fact evidence?
b) Should the evidence of N.S. and C.S. be admitted as similar fact evidence? Do N.S. and C.S. have evidence that is not similar fact evidence that should be admitted?
c) Should the evidence of I.D. and A.D. be admitted on a count-to-count basis?
[78] I will set out the relevant legal principles and then address each question in turn.
The Relevant Law and General Principles
a) The Relevant Law
[79] Any analysis of similar fact evidence starts with the Supreme Court’s decision in R. v. Handy ([2002] S.C.R. 908) and the Ontario Court of Appeal’s decision in R. v. Bent (2016 ONCA 651). These cases set out the framework that trial judges are to use in exercising their discretion
[80] The starting point is that similar fact evidence is excluded. The Crown bears the burden of proving, on a balance of probabilities, that the evidence should be admitted. To do so, the Crown must demonstrate that the probative value of the evidence outweighs its prejudicial effect (see Handy, supra at para. 151).
[81] Where similar fact evidence is of a morally repugnant act committed by the accused, then the prejudice is significant and the probative value must also be significant (R. v. Ennis-Taylor 2017 ONSC 5948 at para. 33). In this case, the ultimate acts alleged are an attempt by a teacher to obtain photographs of an adolescent’s penis, and a sexual assault on an adolescent. These are morally repugnant acts, so the probative value of the evidence must also be significant.
[82] There is a four step analysis that is applied in considering the admissibility of similar fact evidence, as follows:
a) The evidence must be adduced for a specific issue. The Court should not consider evidence that merely demonstrates that the accused is of bad character.
b) The Court must determine whether there is any potential for collusion that might undermine the improbability of coincidence. This analysis should consider both whether there was deliberate collusion and whether the evidence of the witnesses was tainted because they had talked about it before trial.
c) Once the first two steps are completed, the similarities and differences are considered. This exercise is not an accounting exercise, and must take into account that the level of similarity will often depend on how microscopically the evidence is considered by the trial judge. Considering where to draw this line is a matter of discretion (R. v Shearing 2002 SCC 58, [2002] 3 S.C.R. 33 and para. 60).
d) The Court must consider the relative strength of the evidence.
[83] Collusion is a live issue in this case. As a result, the law on collusion and taint should be reviewed. Once the defence has raised an “air of reality” to an allegation of collusion, it is then up to the Crown to satisfy the trial judge, on a balance of probabilities, that the evidence is not tainted with collusion (Handy, supra, paras 112 and 113).
[84] In addition, even if intentional collusion cannot be proved, innocent contamination must be considered. In R. v. J.F. (2003 52166 (ON CA), [2003] O.J. No. 3241) our Court of Appeal noted (at para 77):
The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.
[85] Crown Counsel argues that, since this is a judge alone trial, the hazards associated with reasoning and moral prejudice are significantly lessened, and in this regard directs my attention to both Handy, supra and R. v. T.B. (2009 ONCA 177).
[86] Defence counsel acknowledges the fact that the risk of prejudice is lessened when the trial is before a judge alone. However, counsel points to R. v. Raphael (2014 ONSC 2611), where Pomerance J. observed (at para. 25) that the judge still has an obligation to ensure that the Court does not receive evidence that “has more prejudice than probity.”
[87] This brings me to the question of the credibility of the evidence. Deciding whether to admit the similar fact evidence does not require me to determine the veracity of the proposed evidence (L.B., supra at para 30). The strength of the proposed evidence, however, is a factor that should be considered in determining whether it is admissible.
b) Identifying the Specific Issue
[88] In its written argument, the Crown advances the following reasons for seeking to admit the similar fact evidence:
In the case at hand, the issues are multifold, and include a consideration of the credibility of the complainants; whether the sexual offences occurred; whether McAnally had a propensity to engage adolescent male students in penile-centric conversations; and whether such conversations were simply innocent “guidance”, or were part of a concerted grooming or attempted grooming of these students with physical or electronic sexual interaction as the ultimate goal.
Clearly, a significant issue in question is whether the actus reus of the offences occurred and the complainants’ credibility in relation thereto is a central issue in the trial. The similar fact evidence of each of the complainants, and other witnesses, is probative to the issues at hand, highlighting a pattern of behaviour for over 15 years that demonstrates McAnally’s situation-specific propensity to engage male adolescent students at his school in conversations and conduct that focused at times on many aspects of their penises. This focus lends credence to the criminal complaints against Mr. McAnally, where it is alleged that he influenced A.D. to allow him to view and touch A.D.’s pubic hair and penis, in addition to attempting via tele-communication to have I.D. (before he turned 18), send him photographs of his penis.
[89] From reviewing this passage, it can be seen that a significant part of the Crown’s argument is that the similar fact evidence will enhance the credibility of the complainants. I will return to the issue of credibility below.
[90] This specific issue is the Crown’s rationale for adducing all of the similar fact evidence. I now turn to the specific questions that I posed, as there are different considerations relating to the admissibility of each portion of the evidence.
Question #1- Should the Evidence of J.K and J.C. Be Admitted?
[91] No.
[92] I reach that conclusion for three reasons, as follows:
a) There are some significant differences in the evidence of J.K. and J.C. when compared to the other witnesses, as well as some significant similarities, which makes the evidence less probative as similar fact evidence.
b) The use that the Crown wishes to put the evidence raises concerns about its prejudicial effect.
c) The use that the Crown wishes to put the evidence to could result in the trial straying from the charges that the accused is facing and devolving into a significant discussion of the accused’s character.
[93] I will deal with each issue in turn.
a) The Similarities and Differences
[94] Handy, supra sets out a non-exhaustive list of factors that judges should consider in assessing the evidence. Those factors include:
a) The proximity in time of the similar acts.
b) The extent to which the other acts are similar in detail to the charged conduct.
c) The number of occurrences of the similar acts
d) The circumstances surrounding or relating to the similar acts.
e) Any distinctive features unifying the incidents.
f) Any other factors which would tend to support or rebut the underlying unity of the similar acts.
[95] The evidence of J.K. and J.C. has both similarities and some significant differences, both with each other and with the two charges. The key similarities can be summarized as follows:
a) The accused was a teacher in the school where the students went to school.
b) The accused had developed a friendship with the students.
c) There were discussions of a sexual nature outside of class between the students and the accused.
d) Those discussions covered the topics of STD’s, masturbation, circumcision and sexual activity.
e) Those discussions also covered topics relating to the penises of the teenage boys involved in the discussions, including in some cases, discussions about the size of the penis.
[96] However, there are also some differences in the various histories. Those differences include the following:
a) Unlike the evidence given by I.D. and A.D., there was no evidence given by J.K. or by J.C. that the accused asked to see their pubic hair.
b) J.K. offered no evidence that he was asked to show the accused his penis at any point.
c) J.C. testified that he was the one who had initiated the conversations about sexual issues. The rest of the witnesses testified that the accused initiated these conversations.
d) Unlike the rest of the witnesses, J.C. testified that he did not receive any gifts other than candy from the accused.
e) The accused did not request any photographs of penises from either J.C. or J.K.
[97] While there are similarities in the stories, there are also differences that raise questions about whether the proposed similar fact evidence shows a “pattern of conduct.”
b) The Prejudicial Effect of the Evidence
[98] Defence counsel argues that the Crown is seeking to use this evidence in order to have me, as the trier of fact, draw impermissible inferences. As counsel notes in her aide memoire:
- The Crown’s proposed issue, that the defendant had a “propensity to engage students in penile centric conversation leading to ultimate physical interaction,” is flawed. This is prohibited general propensity reasoning. The Crown essentially seeks to introduce evidence that because Mr. McAnally engaged in conversations about sexuality with individuals who both were and were not his students, and both into and before their adulthood, he has sexual physical interactions as the ultimate goal. This is prohibited general propensity reasoning that has no basis in the evidence and no justification in the law.
[99] I start from the observation that the express purpose of this evidence is to bolster the credibility of A.D. and I.D. by demonstrating that the accused tended to have “penis centric” conversations with adolescent males. The Crown seeks to use this evidence to demonstrate that the accused has a propensity to have these conversations and, therefore, a propensity to groom or attempt to groom adolescent boys for sexual contact.
[100] In the case of J.K and J.C., the Crown Attorney properly conceded that there was no actual sexual contact. In other words, the alleged grooming was not successful. The Crown Attorney also conceded that the accused had not committed a crime in relation to J.K. and J.C. Certainly, on my reading of the evidence, none of the crimes that are alleged in this case were committed with respect to either of these similar fact witnesses.
[101] I asked the Crown Attorney whether any of the cases he was relying on involved a case where similar fact evidence had been admitted when the similar fact evidence did not amount to a crime. He acknowledged that none of the cases admitted similar fact cases in such circumstances, and he acknowledged that he was not aware of such a case.
[102] However, the Crown Attorney pointed to R. v. L.B. ((1997) 1997 3187 (ON CA), 35 O.R. (3d) 35) where Charron J.A. (as she then was) stated (at para. 80):
In particular, the appellant’s relationship with each of the witnesses was a significant feature in defining similarity. Each described predatorial behaviour that was facilitated by the appellant’s exploitation of the student/teacher relationship. Like the complainants, the witnesses on the prior conduct described what could be regarded as a pattern of “grooming” by the appellant through his unorthodox displays of physical affection toward his students, and the atypical extent to which he cultivated personal relationships with his students by, for example, encouraging them to regard him as their confidant. This background lent important content to the complainants’ allegations.
[103] Counsel argues, in essence, that a pattern of grooming or attempted grooming can be used as similar fact evidence. There are some flaws with this argument.
[104] First, L.B. does not support the Crown’s position to the extent that it is relied upon by the Crown. Some background is required to explain this conclusion. In an earlier passage in L.B., the Court considered the trial judge’s rulings. The trial judge in L.B. was dealing with a case where the accused was convicted of sexual assault on his stepdaughter and on other young women. He was a school teacher who had previously been removed from his position for a period of time because he had engaged in sexual improprieties with his students.
[105] At trial, the evidence of the students as to kissing that L.B. engaged in with them was admitted as it showed the same type of acts that the complainants had complained of, and that the accused had been charged with. However, the trial judge refused to admit evidence that the accused had encouraged a young woman to rent and view a pornographic movie on the basis that this was just evidence of bad conduct.
[106] The same reasoning applies in this case. The Crown is seeking to admit these conversations in order to show that the accused had inappropriate conversations with young men. The Crown then asks that I conclude that these conversations made it more likely that the accused committed a sexual offence.
[107] In my view, this is an impermissible leap of logic. The fact that the accused had inappropriate conversations with students in the past, even ones laden with sexual content, does not mean that he is more likely to have committed sexual offences against his students in the present.
[108] A very similar argument was considered by Pomerance J. in Rafael, supra. In rejecting this argument, Pomerance J. stated (at paras 14 and 15):
The Crown argues that the sexualized environment of the classroom increases the likelihood that the touching of the complainant was for a sexual rather than an innocent purpose. Stated another way, it is the Crown’s position that, because the accused made sexually inappropriate remarks to students, he is more likely to have sexually assaulted a student. This chain of reasoning requires an intervening inference of disposition. The Crown position amounts to an argument that, because he made sexual remarks to a student, the accused is a person of sexually questionable character, and is therefore more likely to sexually touch a student. The gap between the similar fact and evidence and the charge can only be bridged by an inference that the accused is a person prone to act in a sexually inappropriate manner and therefore more likely to commit a sexual assault.
There are various difficulties with this inference. First, it is not at all clear that it flows as a matter of logic. That is, one cannot say with any confidence that a person who makes sexually inappropriate remarks, or engages in a sexually inappropriate gesture (the dry-hump incident) is prone to commit a sexual offence. This involves an inferential leap that is difficult to sustain. Inappropriate verbal conduct is not necessarily equated with inappropriate physical conduct.
[109] I am of the view that the same reasoning applies here.
[110] This brings me to a final observation that Crown counsel made about credibility. He argued that similar fact evidence may be useful on the central issue of credibility. The problem with this argument is that, as Binnie J. noted in Handy, supra (at para 116):
Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the “issue in question” may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (“bad personhood”).
[111] In this case, the Crown is seeking to rely on this evidence for its general propensity, rather than for specific issues. The fact that it enhances the complainant’s credibility is, on its own, not enough to justify its admission.
c) Admitting the Evidence Could Derail the Proceedings
[112] In her factum, Defence counsel makes the following observation:
Finally, the evidence, if admitted has the possibility to derail proceedings. If the evidence in relation to propensity is admitted, Mr. McAnally would be entitled to call witnesses to disprove that he has any preoccupation with penises with the ultimate goal of physical sexual touch.
[113] I agree with this observation. It is another reason why this evidence should not be admitted. The question of whether the accused engaged in inappropriate conversations of a sexual nature with teenage boys is not the ultimate issue that I have to determine. Embarking on a detailed evidential analysis of that issue could very well distract from the issues that I do have to determine.
d) Conclusion
[114] The inferences that the Crown seeks to draw from this evidence alone make it inadmissible. However, the fact that there are also significant differences in the evidence (even at the macro level) raise considerable concerns about admitting this evidence even though there was no significant evidence of collusion or possible collusion before me. Finally, admitting this evidence could derail the proceedings.
[115] In short, in balancing the probative value and prejudicial effect of this evidence, I have concluded that it should be excluded.
Question #2- Is the Evidence of N.S. and C.S. Admissible?
[116] To the extent that they have provided similar fact evidence, no. Evidence that is not similar fact evidence, but is evidence of direct conversations with either the accused or conversations with I.D. and A.D. with the accused present is admissible as being direct corroborative evidence in relation to the charges.
[117] As an example, N.S.’s evidence that the accused asked him for pictures of I.D.’s penis is clearly admissible. The weight to be given to that evidence is another matter.
[118] Many of the same problems that I have outlined with respect to the similar fact evidence of J.K. and J.C. exist with respect to the evidence of N.S. and C.S. In short, there are significant problems with the use that the Crown wishes to make of this evidence. Therefore, the second and third points of my analysis of the evidence of J.C and J.K. apply equally to the evidence of N.S. and C.S.. I adopt that reasoning I have set out above here, and do not need to repeat it.
[119] There is some evidence, particularly from N.S., that relates directly to the charges here, or could be used to support those charges. However, it is not similar fact evidence, and is not covered by this ruling. I will return to that issue below.
[120] There are two further issues that I must address in relation to the evidence of N.S. and C.S., as follows:
a) The extent of the similarities between their evidence and the offences.
b) The question of whether there is any taint, either intentional or unintentional.
[121] I will address each of these points in turn.
a) The Similarities and Differences in the Evidence
[122] Again, there are a number of similarities in the evidence that N.S. and C.S. have provided, and the evidence of the two complainants. Those similarities include all of the similarities that I have set out at paragraph 95, above. In addition, there are the following similarities:
a) N.S., C.S. and the complainants testified that the accused kept a book of who he gave gifts to.
b) N.S., C.S. and the complainants testified that the accused would provide or not provide gifts depending on whether you were on the right path.
[123] There are, however, differences in the evidence as well:
a) Neither N.S. nor C.S. testified that they had been asked to provide pictures of their penises or to show the accused their penises.
b) Neither N.S. nor C.S. testified that they had been asked to show the accused their pubic hair.
c) Neither N.S. nor C.S. provided any evidence to show that they had been given the opportunity to attend sporting events after showing their penis to the accused.
[124] Again, although there are similarities in the evidence, there are also differences that raise questions about whether the evidence is sufficiently similar to justify admission.
b) Collusion or Taint
[125] This brings me to the next part of the test, which is whether there is any collusion or any possibility that the evidence has been tainted either intentionally or innocently.
[126] The analysis starts with the question of whether there is an “air of reality” to the defence’s allegation that there might have been either intentional or accidental collusion. There is clearly an air of reality to this allegation. In that regard, I note the following:
a) N.S., I.D. and A.D. all discussed the February 2017 incident involving A.D. before I.D. and A.D. went to the police. This alone could have resulted in some at least innocent tainting.
b) At trial, A.D. acknowledged that, during a break, he had spoken to I.D. about the questions that he was being asked and the fact that he did not like the types of questions that defence counsel was asking. I.D. attempted to minimize the significance of this discussion in his evidence, but it is clear that there was some actual discussion, rather than merely an opportunity for a discussion.
c) At trial, I.D. originally testified, in cross-examination, that Counsel was going to love N.S., he is a genius. Then, after having been cross-examined about whether there had been either accidental or intentional tainting of evidence, stated that he did not know whether N.S. was coming to testify. This is a significant concern as it demonstrates that I.D. is understating the amount of out-of-court conversation between the witnesses about this case.
[127] In light of these observations, there is clearly an air of reality to Defence counsel’s assertion that there was tainting of at least an accidental nature in this case.
[128] The Crown then has the burden of demonstrating, on a balance of probabilities, that either intentional or accidental tainting did not take place. I conclude that they have failed to meet this burden. The points set out at paragraph 128, above support my conclusion. In addition, I note the following:
a) A.D. testified candidly that he had confided in I.D. about at least some aspects of the trial.
b) N.S., A.D. and I.D. all had a conversation about A.D.’s allegations before they were reported to the police.
c) N.S. and I.D. both testified that they had discussions with their friends about their interactions with the accused, at least before these allegations were reported to the police.
d) N.S. and I.D. both remembered the foreskin tearing incident after the preliminary hearing and before the trial. Given the close relationship between the two of them, the timing of this incident coming back into both of their memories and the fact that there was no real explanation as to how they came to remember this incident, it can be inferred that they discussed the incident shortly before trial.
[129] All of this evidence leads me to conclude that the Crown has not satisfied its burden to demonstrate that there was no at least accidental tainting. In light of that finding, it is not necessary for me to comment as to whether there was any collusion. The mere existence of accidental tainting reduces the improbability of coincidence, making the evidence significantly less reliable.
d) Conclusion
[130] For the foregoing reasons, the similar fact evidence from N.S. and C.S. is inadmissible and I will not consider it further on this trial.
[131] In Court, I provided the parties with some direction as to which portions of the evidence I viewed as remaining admissible. For N.S., I concluded that anything said by the accused to N.S. about I.D. or in I.D.’s presence would be admissible. I view this evidence as being traditional corroborative testimony. For C.S., the only evidence that was admissible was the evidence about the March 2017 incident.
Question #3- Count-to-Count Evidence
[132] The Crown is asking that the similar fact evidence of the complaints of I.D. be admissible in relation to the charges concerning A.D. and vice versa. I have also determined that this evidence should not be used on a count-to-count basis.
[133] The analysis is much the same as what I have set out previously, with a few additions and changes.
[134] First, on the question of taint or collusion, the concerns I have outlined in the previous section apply equally to the count-to-count evidence. In addition, however, there was also cross-examination on whether A.D. talked to I.D. about the questions and answers that he was giving.
[135] A.D. acknowledged that he was frustrated and talked to I.D. about the type of questions that he was being asked while A.D. was in the middle of his cross-examination
[136] I.D.’s evidence was that A.D. had a conversation with their father about the questions that they were asking and I.D. overheard the conversation. I.D. testified that he then talked to A.D. about soccer. In addition, on cross-examination, I.D. acknowledged that he had learned some additional details about A.D.’s allegations from A.D. after the incidents had been reported to the police.
[137] There were clearly a conversation between A.D. and I.D. while A.D. was testifying on the witness stand. I accept A.D.’s evidence that he discussed his frustrations in general with the questions he was being asked, and did not disclose specific information.
[138] This evidence, even if accepted, makes it clear that there is some possible tainting that happened in this case over and above the tainting I have outlined at paragraphs 126 and 128.
[139] Another point where the analysis must be supplemented is in my analysis on the Rafael decision. Both A.D.’s evidence and I.D.’s evidence, if accepted as true beyond a reasonable doubt would likely make out the charges on the indictment. Therefore, the analysis of whether the evidence is an attempt to lead bad character evidence is more nuanced.
[140] I start with A.D.’s evidence, as it is easier to address. A.D.’s evidence, if true, would establish that sexual assault and sexual touching took place. The allegations made in respect of I.D. are substantially different. The accused is alleged to have asked for a pornographic picture of I.D. that would amount to child pornography.
[141] In essence, the Crown seeks to use the evidence of an alleged sexual assault to assist in proving that someone sought out child pornography. At a superficial level, there are some similarities between the two allegations. However, when I step back and consider the differences in the charges, and the differences in the events, the Crown is again asking me to use impermissible propensity reasoning.
[142] The Crown is asking me to infer that, because the accused engaged in a sexual assault, he was also more likely to have sought out child pornography. In my view, the inference does not logically follow. In addition, it appears to involve the prohibited reasoning that Binnie J. warned against in Handy, supra (see paragraphs 72 and 85). The accused’s bad conduct in one area is, in essence, being used to infer that he would engage in bad conduct in another area.
[143] This brings me to the evidence of I.D. and whether it is admissible in respect of the charges against A.D. This evidence, particularly about the alleged incident in March of 2017, is more similar in nature than A.D.’s evidence is about the charges relating to I.D.
[144] However, when I.D.’s evidence is considered as “similar fact” evidence as against A.D.’s charges, it has some of the same problems that I have set out above. Those problems are:
a) The evidence of taint that I have set out above.
b) The fact that it is being used by the Crown primarily to bolster the Complainant’s credibility.
c) The fact that there are some differences in the evidence of the two complainants. First, A.D. was alone with the accused when the assault allegedly took place and I.D. was not alone. Second, A.D.’s allegations involve a request to see and touch A.D.’s penis. I.D.’s allegations involve a request for a photograph.
[145] Finally, I should make some observations on the strength of I.D.’s evidence on the March 15th, 2017 incident. As I have noted at paragraph 87, above, a full credibility analysis should not be done at the admissibility stage.
[146] However, even with the limited weight to be given to credibility at the admissibility stage, it is still one more factor that must be considered. When it is considered, there are issues in that the version of events given by I.D. does not precisely accord with the other evidence on record in at least the following ways:
a) I.D. testified that C.S. was in the washroom for at least three minutes, and heard everything. C.S. testified that he was not in the washroom for very long, and only heard someone saying no or stop.
b) I.D. testified that he and C.S. left within about a half an hour of this incident taking place. C.S. testified, and the text messages that were filed confirmed, that he and I.D. remained at the accused’s condominium until either late in the evening or early the next morning.
[147] It is not appropriate to do a full credibility and reliability analysis on this evidence at this stage. However, the foregoing points make it clear that there are issues in respect of the reliability of I.D.’s evidence that must be considered in assessing whether to admit it as similar fact evidence.
[148] When all of these reasons are considered together, I am of the view that the count-to-count evidence cannot be admitted as similar fact evidence either. Of course, any evidence about interactions between the accused and the two complainants together, or direct evidence of what the accused said to one complainant about the other is admissible, and will be considered.
Conclusion
[149] For the foregoing reasons, the evidence that is sought to be admitted as similar fact evidence is excluded and will not be considered when I make my decision.
[150] Finally, I would be remiss if I did not thank counsel formally, as I did in Court, for the thorough, professional and thoughtful way in which this very complicated question was argued by both of them.
LEMAY J
Released: October 29, 2019
COURT FILE NO.: CR-18-1124-00
DATE: 2019 10 29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Gavin McAnally
REASONS FOR JUDGMENT
LEMAY J
Released: October 29, 2019