COURT FILE NO.: CR-17-4136

DATE: 20190125

Oral Decision – January 25, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Robert Kissner

Accused

Jennifer Holmes, for the Crown

Kenneth S. Marley, for the Accused

HEARD: January 23, 2019

RESTRICTION on publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.

RULING ON SIMILAR FACT APPLICATION

Hebner j.:

1Mr. Kissner is charged on a 17-count indictment involving eight complainants. The charges are all for sexual offences, specifically sexual assault (s. 271 of the Criminal Code, R.S.C. 1985, c. C-46), sexual exploitation (s. 153) and sexual interference (s. 151). The Crown has brought an application seeking an order admitting the evidence of each complainant – count to count – as similar fact evidence on the trial.

2The Crown’s evidence was heard between January 9 and January 22, 2019. The court heard from all eight complainants, parents and friends of some of the complainants, teachers of one of the complainants and several Kingsville Fire Department employees.

3Following the completion of the Crown’s case, counsel provided their oral submissions respecting admissibility of the similar fact evidence.

Background Facts

4Mr. Kissner was, at the time of the alleged offences involving seven of the complainants, the chief of the Kingsville Fire Department. He was, at the time of all of the alleged offences, living in Kingsville. He was, at the time of the alleged offences involving one of the complainants, employed as a teacher at the Emmanuel Christian Academy School in Kingsville.

5Kingsville High School and, prior to its closure, Harrow High School placed high schools students with the Kingsville Fire Department for their co-op program. In addition, the Kingsville Fire Department hired summer students and had a junior firefighting program. Four of the complainants completed their co-op placement with the Kingsville Fire Department and/or were employed as summer students. Some of them were involved in the junior firefighting program.

6Three of the complainants were employees of the Kingsville Fire Department. Mr. Kissner was their superior.

7The last complainant was a student at the Emmanuel Christian Academy at the time Mr. Kissner was a teacher there.

8The Crown concedes that the complainant that was a student at the Emmanuel Christian Academy falls outside of the application for similar fact evidence. The Crown concedes that there is insufficient proximity in time and in the details of the allegations made by that complainant.

9As for the remaining seven complainants, the Crown divides them into two groups: the boys, being the four complainants who were either co-op students or summer students at the time of the allegations, and the men, being the three complainants who were firefighters working under Mr. Kissner’s supervision. The Crown takes the position that I should find the similar fact evidence admissible across all seven of these complainants – namely that the evidence relating to each of the seven complainants can be used as relevant evidence in the charges relating to the other six complainants. The Crown takes the alternative position that I should find the similar fact evidence admissible in each group – namely that the evidence relating to each of the complainants in the boys group can be used as relevant evidence in the charges relating to each of the other three complainants in that group and that the evidence relating to each of the complainants in the men group can be used as relevant evidence in the charges relating to the other two complainants in that group.

10I will begin my ruling on the similar fact application by reviewing the pertinent evidence of each of the seven complainants that are the subject of the application. I do so at this point for the purpose of determining the similar fact application and will review only those facts that are pertinent to the application. I shall do so within each of the two groups identified by the Crown.

Allegations of the Complainants

Group A - The Boys

G.H. – Counts 1, 2, 3 and 4

11The allegations respecting G.H. were the most recent in time. The charges relate to December 2016. G.H. was the first complainant to make allegations of inappropriate touching.

12In December 2016, G.H. was in grade 12 at Kingsville District High School. He was 17 years old. He completed his co-op course in the September 2016 – January 2017 term at the Kingsville Fire Department.

13G.H.’s grandfather was the Fire Chief of Amherstburg, Ontario and G.H. was interested in pursuing a firefighting career himself. He applied for, and was successful in obtaining, a co-op placement at the Kingsville Fire Department. The co-op placement counted as two credits towards his high school diploma. He worked at the South Station in Kingsville, under the supervision and direction of Mr. Kissner. G.H. lived in Harrow and was transported to the Kingsville high school by school bus. His co-op schedule required that he attend in the morning. When he arrived at the Kingsville high school, he texted Mr. Kissner who would pick him up and take him to the fire station. Mr. Kissner would return G.H. to the high school at the end of the morning.

14The co-op duties completed by G.H. involved tasks such as maintaining equipment and cleaning the trucks. He was required to complete paperwork described as log sheets setting out tasks that he completed. Mr. Kissner was required to sign the paperwork. The paperwork was provided weekly to G.H.’s co-op teacher at the high school.

15G.H. alleges that on the morning of December 6, 2016, while at the fire hall, Mr. Kissner brought G.H. to his office. Mr. Kissner played a YouTube video, dealing with firefighting, on his computer at his desk. Mr. Kissner was sitting in his office chair. He told G.H. to watch the video beside him. G.H. knelt down beside the office chair on one of his knees. While he and Mr. Kissner watched the video, Mr. Kissner massaged G.H.’s thigh moving his hand towards the groin area. He made contact, rubbing his hand down G.H.’s penis towards his testicles. He grabbed G.H.’s penis and testicles in one hand and then let go. G.H. said he did not tell Mr. Kissner to stop and did not say any words of protest as he did not want to lose his co-op placement or prejudice possible entry to the fire department.

16G.H. alleges that two days later, on December 8, 2016, at approximately 10:30 a.m., Mr. Kissner told G.H. to put his coat on – that they were going to Mr. Kissner’s residence for a hot tub. G.H. said that Mr. Kissner had been talking about his hot tub for a couple of months by that point and had extended several invitations to use the tub. G.H. had turned down the invitations to that point. He said that on December 8, he did not have a chance to say no. Mr. Kissner and G.H. used one of the department vehicles and drove to Mr. Kissner’s home. When they arrived, Mr. Kissner backed into the garage and shut the garage door. He told G.H. that he did so as he did not want the neighbours to question why he was home.

17G.H. followed Mr. Kissner inside the residence. He followed Mr. Kissner to the bedroom. Mr. Kissner told him to take off his hat, shirt and pants and lay down on the bed so that Mr. Kissner could give him massage. G.H. said he was reluctant to take off his clothing, but did so at Mr. Kissner’s insistence. He left his socks and his underwear on. He lay down on the bed on his stomach. Mr. Kissner put his hands on G.H.’s back and started to rub. He massaged his shoulders and back and then put his hands under the waistband of his underwear and massaged his buttocks. He told G.H. to roll over and massaged his chest moving downwards towards the groin area. G.H. alleges that Mr. Kissner then rubbed his hands on G.H.’s penis and testicles, grabbing both at the same time.

18After the massage, Mr. Kissner gave G.H. a pair of blue swim trunks to use in the hot tub. The hot tub is located in a room that could be described as the sun room with patio furniture. The hot tub is not to be confused with the Jacuzzi tub, located in the en suite bathroom. Mr. Kissner and G.H. got into the hot tub. Mr. Kissner told G.H. to sit in the reclining seat. While there, Mr. Kissner took hold of G.H.’s feet and rubbed them. He moved to G.H.’s side and rubbed and squeezed his thigh. He ran his hand over G.H.’s penis, rubbing it firmly, over top of the swimming trucks. He tried to force his hand under the swim trunks waistband but G.H. sat up.

19According to G.H., Mr. Kissner chatted about fire calls and other innocuous topics throughout the massage and the hot tub.

20Mr. Marley conducted a lengthy and skillful cross-examination of G.H. Under cross-examination Mr. Marley suggested that Mr. Kissner is a touchy person – a person who pats people on the back, squeezes their shoulders or may touch their elbow when shaking hands. G.H. agreed and said he felt uncomfortable when Mr. Kissner touched him in a nonsexual manner. Mr. Marley suggested that G.H. harboured some resentment towards Mr. Kissner as a result. The suggestion was that the allegations of sexual touching were fabricated. Mr. Marley suggested that nothing inappropriate happened. From the cross-examination it appears that the defence, insofar as the charges respecting G.H. are concerned, is that there was no inappropriate touching. The alleged sexual assaults simply did not occur.

Allegations of J.R. – Counts 5 and 6

21The allegations of J.R. took place between January 2004 and December 2008. J.R., at the time, was a student at Kingsville District High School. He was a participant in the junior firefighting program at the Kingsville Fire Department. In addition, he completed his required community service hours for high school at the fire hall. He completed a co-op program for high school credits at the Kingsville Fire Hall in grade 11 or 12 when he was 16 or 17 years old.

22He said when he was at the fire hall, he would report to Mr. Kissner. He was given odd jobs to do around the hall or would occupy his time cleaning. He kept a log of tasks performed for the co-op program and Mr. Kissner or the deputy chief would sign the log.

23J.R.’s father was a firefighter at the South Station. Mr. Kissner was his father’s boss. Mr. Kissner also volunteered at the same church as J.R.’s grandparents.

24According to J.R., while he was a co-op student, he attended at Mr. Kissner’s home approximately 15–16 times. He often had lunch there. On one occasion, after eating lunch, J.R. was watching television. Mr. Kissner got up and started to run a bath in his Jacuzzi tab, located in the en suite bathroom adjacent to the master bedroom. Mr. Kissner came out of the bedroom and asked J.R. to get into the Jacuzzi tub. J.R. got into the tub, stayed approximately five minutes, got out and put his clothing back on from the waist down. He opened the bathroom door shirtless. Mr. Kissner was standing at the door. Mr. Kissner asked J.R. to lay down on his bed. He laid face down. Mr. Kissner massaged his shoulders and his back. Mr. Kissner put his hand on top of J.R.’s buttocks over top of his pants and left it there for a few minutes. He could not recall if the hand was rubbing his buttocks or just resting there. The event terminated when the pager was activated for a fire call.

25Between the years of 2004 and 2008, according to J.R., Mr. Kissner touched his buttocks dozens of times. He rubbed his shoulders and his back dozens of times. If J.R. was reading something at a table, Mr. Kissner would sit down beside him and rub his leg and thigh. Mr. Kissner never touched his genitals. According to J.R., he felt uncomfortable every time he was touched by Mr. Kissner.

26Under cross-examination, communications between J.R. and Mr. Kissner were put to J.R. The communications indicated a trusting relationship between J.R. and Mr. Kissner. It was suggested that Mr. Kissner did not touch J.R. for a sexual purpose. It was suggested that Mr. Kissner did not touch J.R.’s buttocks. Mr. Marley also elicited evidence of negative feelings between a certain group of firefighters and Mr. Kissner at the fire hall. J.R. aligned himself with that certain group of firefighters. The defence insofar as the charges respecting J.R. are concerned appears to be that the allegations are fabricated and that it just did not happen.

Allegations of T.W. - Counts 7 and 8

27The allegations respecting T.W. took place between January 2001 and December 2003. According to T.W., he was in high school in Leamington, Ontario. His father had been a member of the Kingsville Fire Department for 25 years. T.W. wanted to be a firefighter as well.

28While he was in high school, T.W. completed his required community service hours at the fire hall. He also completed a co-op placement at the fire hall. His tasks were to clean the trucks, fill the air bottles, clean and pack the fire hose, load the vehicles for public education and help to fill out forms. On occasion, he attended on fire calls with Mr. Kissner in one of the fire department vehicles. According to T.W., he completed far more hours of community service than was required. T.W. reported to either Mr. Kissner or the captains at the fire hall at the time.

29T.W. attended at Mr. Kissner’s private residence often for lunch. He said that Mr. Kissner would make Michelina’s or they would pick up Subway. He said that Mr. Kissner touched him on approximately eight occasions that made him feel uncomfortable. T.W. was having difficulty in his relationship with his parents and there were occasions when he stayed overnight at Mr. Kissner’s home.

30On approximately eight occasions, with most of the occasions happening at lunch time and some of the occasions happening at night, Mr. Kissner drew a bath in his Jacuzzi tab. T.W. had a bath. He then lay on Mr. Kissner’s bed where Mr. Kissner massaged his shoulders, back and buttocks, told him to roll over, and massaged his chest. The massage eventually culminated in Mr. Kissner masturbating T.W.

31Most of the occasions that T.W. spent overnight in Mr. Kissner’s home, he slept in Mr. Kissner’s bed. He also remembers sleeping in the spare room. He said that on one occasion, he woke up and Mr. Kissner was rubbing his penis with his hand.

32On one occasion, Mr. Kissner asked for reciprocation. Mr. Kissner was naked at the time. T.W. gave him a back massage and grazed his penis but did not masturbate him. Mr. Kissner masturbated himself.

33On one occasion, while T.W. and Mr. Kissner were in the fire chief’s vehicle together responding to a fire call, T.W. said that he had just woken up before the call came in. He had an erection. In the vehicle, Mr. Kissner said “pitching a tent there” and tapped the top of his penis.

34On one occasion, Mr. Kissner gave T.W. a film container and told him to try to fill it with ejaculate. T.W. left the room, completed the task, and returned the full film container to Mr. Kissner.

35Near the end of the relationship with Mr. Kissner, T.W. said he tried to distance himself. He tried to turn away and began to refuse contact.

36Under cross-examination of T.W., it was suggested to this complainant that much of the touching was innocuous and was not sexual. It was suggested that the touching that was sexual occurred on consent. T.W. admitted having an ongoing relationship with Mr. Kissner, where he considered Mr. Kissner a mentor, until just prior to the charges were laid. T.W. turned to Mr. Kissner for advice and guidance on a number of occasions. The suggestion was that the allegations of sexual assault were fabricated because T.W. is now uncomfortable with what happened before. The defence appears to be that some of the events did not occur, some of the sexual touching was on consent, and many of the allegations are fabricated.

Allegations of H.N. – Counts 16 and 17

37H.N. came to know Mr. Kissner when he was a young teenager running a business. He developed an interest in firefighting. Mr. Kissner offered to show him the fire trucks and take him on calls. At the time, H.N. was a student at Kingsville High School.

38In the summer of 2016, H.N. completed a co-op placement at the Kingsville Fire Hall. He reported directly to Mr. Kissner. Mr. Kissner was his supervisor and signed his co-op paperwork required for school. H.N.’s duties included cleaning trucks, painting doors and attending on fire calls with Mr. Kissner.

39When he attended on fire calls with Mr. Kissner, H.N. drove Mr. Kissner’s fire department vehicle. On well over a dozen occasions, he was driving the vehicle with the lights and sirens flashing. He said he drove the vehicle every day, whether on calls or not, with Mr. Kissner in the passenger seat. He said it made him feel “pretty special”.

40H.N. made certain allegations against Mr. Kissner of inappropriate touching. He said the first time was in the summer of 2015 when he was at Mr. Kissner’s residence doing outdoor work. Mr. Kissner offered him a soda and persistently offered a massage. H.N. said he repeatedly declined but ended up laying down on the couch to get Mr. Kissner to stop asking. He laid on his tummy. He had shorts and a t-shirt on with underwear. Mr. Kissner massaged his back, legs and shoulders. H.N. felt uncomfortable. Mr. Kissner directed him to roll over onto his back, and he did. Mr. Kissner massaged his arms and shoulders. Then his hands touched his penis over top and underneath his shorts. Mr. Kissner grabbed H.N.’s penis for eight to ten seconds and then H.N. stood up. H.N. said that this happened again in the same fashion roughly a dozen times during the summer of 2015 and the summer of 2016.

41H.N. said that Mr. Kissner offered him a bath on several occasions. On one occasion, he was insistent. Mr. Kissner drew him a bath in his Jacuzzi tub and H.N. had the bath. He was alone in the bathroom at the time. After the bath, H.N. dried off, got dressed and opened the bathroom door. Mr. Kissner was in the bedroom doorway and told him to lay down on the bed. H.N. laid down on his stomach. The same events occurred, namely a massage that led to the touching of H.N.’s genitals. It ended in the same fashion, with H.N. standing up.

42On one occasion, the summer of 2015, when H.N. was driving Mr. Kissner’s fire department vehicle with Mr. Kissner in the passenger seat, there was inappropriate touching. Mr. Kissner said that he needed to do radio testing and the two drove almost to Belle River to see how far the radios could maintain their signals. H.N. said that while he was driving the vehicle, Mr. Kissner touched his penis with his hands over top of his pants. H.N. took his right hand off of the steering wheel and put his arm on the console in between the seats to protect himself. He said that Mr. Kissner kept trying to touch him but H.N. kept protecting his groin area so Mr. Kissner eventually stopped trying.

43In cross-examination, Mr. Marley focused on the first interview that H.N. had with the police where he said that nothing inappropriate occurred between he and Mr. Kissner. He said that Mr. Kissner had never touched him in a sexual manner or in a way that made him feel uncomfortable. The suggestion was that H.N. told the truth at the first police interview and that nothing inappropriate happened. The suggestion was that the massages did not include the buttocks and/or the genitals. Mr. Marley also pointed to the relationship that Mr. Kissner had with H.N. that appeared to continue until just after the charges were laid. The relationship was one of friendship and placed Mr. Kissner in a mentoring role. The defence to the charges respecting this complainant appears to be that the sexual touching simply did not occur and the events were recently fabricated.

Group B – The Men

Allegations of J.K. – Counts 14 and 15

44The allegations of J.K. are said to have occurred between May 1, 2015 and September 30, 2016. J.K. was a firefighter employed by Kingsville Fire Department at the time. During a period of time of marital strife, J.K. stayed at Mr. Kissner’s home between October 2015 and September 2016. He stayed in the finished basement. His quarters included a sitting room, a bedroom and a bathroom.

45J.K. described two specific events of inappropriate touching. He said the first time happened in May 2016. He was at the fire hall with his squad on a Monday night doing truck checks. He was inside one of the trucks in the backseat. He was wearing shorts, a t-shirt and work boots. He said that Mr. Kissner came onto the step beside his seat and started rubbing his leg. He kept sliding his hand up higher and higher and eventually grabbed J.K.’s penis. J.K. said he squirmed away to the centre seat.

46The second incident described by J.K. happened in the fall of 2016. He was in the throes of a family law dispute with his ex-wife. He had to fax something to his lawyer. He used the fax machine at the fire station. Mr. Kissner offered to help and then knelt by his seat. Mr. Kissner’s hand started rubbing J.K.’s leg higher and higher and then Mr. Kissner grabbed J.K.’s penis. J.K. jumped out of the way.

47In his evidence, J.K. described attending at Mr.’s Kissner’s home for lunches. He described massages where Mr. Kissner’s hands would wander to his genitals. He described Mr. Kissner persistently offering massages. J.K. said that he was never massaged on his buttocks. He never used the Jacuzzi bathtub.

48Under cross-examination, Mr. Marley’s questions pointed to the friendship that Mr. Kissner had with J.K. At the time of Mr. Kissner’s arrest, J.K. was visibly upset; he told Mr. Kissner he couldn’t believe the charges; he told Mr. Kissner that he would fully support him. The suggestion was that Mr. Kissner had a consensual sexual relationship with J.K. The suggestion was denied. J.K. denied any homosexual activity with Mr. Kissner. The defence insofar as the charges respecting J.K. are concerned appears to be that there was sexual touching on consent.

Allegations of S.M. - Counts 12 and 13

49The allegations involving S.M. are said to have occurred between January 2014 and September 2015. S.M. has been a volunteer since May 2006. In 2013, he applied for the full-time position of fire prevention officer. He was offered the position and left his secure employment at Chrysler Canada for the job. He signed the paperwork to leave his job at Chrysler Canada in January 2014. His boss at the Kingsville Fire Department was Mr. Kissner.

50According to S.M. in early 2014, shortly after he was hired as the fire prevention officer, Mr. Kissner told S.M. that he wanted to check the fire hydrants at certain locations. S.M. drove Mr. Kissner’s fire department vehicle to those locations. Mr. Kissner was in the passenger seat. According to S.M., Mr. Kissner groped his genitals with his hand. S.M. tried to pull away or guard his lap area with his right arm, but Mr. Kissner kept at it. S.M. said this happened approximately three to four times. S.M. said he did not say anything as he had just left his job at Chrysler and had financial responsibilities. He was concerned about losing his new job as the fire prevention officer.

51S.M. said that approximately three to four times, while in his office at his desk, Mr. Kissner asked him to access a map on his computer screen. Mr. Kissner then knelt next to S.M.’s chair on the right side and groped S.M.’s penis and testicles.

52S.M. described one occasion that took place on September 10, 2015. He was driving Mr. Kissner to the airport at Mr. Kissner’s request. Mr. Kissner was in the passenger seat. On the way to the airport, Mr. Kissner put his hand in S.M.’s lap and groped his penis and testicles. On that occasion, S.M. shared the incident with J.K. He texted J.K. after he dropped Mr. Kissner off at the airport saying “Took Bob to airport and got my balls rubbed all the way up – good times.” J.K. responded “Been there. I completely understand. Fuckin brutal…”

53Under cross-examination, Mr. Marley suggested that the touching between Mr. Kissner and S.M. was consensual. Mr. Kissner said to S.M., “[i]f I’m ever in your space let me know.” S.M. had multiple opportunities to tell Mr. Kissner to stop touching him and did not. The suggestion was that S.M. enjoyed that touching, made it clear to Mr. Kissner that he enjoyed the touching, and made it clear that continued touching was agreeable to him. The defence to the allegations made by S.M. is that the sexual touching was consensual.

Allegations of J.M. – Count 11

54The one charge involving J.M. is said to have occurred between January 1, 2002 and December 31, 2006. J.M. was a volunteer firefighter at the Kingsville Fire Department. He also had a personal relationship with Mr. Kissner. He said he had been at Mr. Kissner’s home on at least six occasions, including a New Year’s Eve dinner with several other persons.

55J.M. described one incident that made him feel uncomfortable. He said that Mr. Kissner needed to move a washer/dryer to his basement. J.M. offered to help. Another individual that assisted was a man who was currently staying in Mr. Kissner’s basement quarters. After the washer/dryer was moved the three men had lunch and the third man left the premises leaving Mr. Kissner and J.M. alone.

56Mr. Kissner insisted that J.M. have a bath in his Jacuzzi bathtub. J.M. declined but Mr. Kissner kept pressing. Mr. Kissner filled up the bath. J.M. said he felt pressured. He followed Mr. Kissner into the bedroom. Before the bath, Mr. Kissner started massaging J.M.’s shoulders while J.M. was standing up. He rubbed his shoulders, then his back, then his buttocks. J.M. recalls his pants being undone and then on the ground. He said that Mr. Kissner unclasped his belt buckle and his pants from behind. J.M. said his buttocks were touched over his underwear for at least a few minutes. After that, J.M. went into the bathroom and had a bath with the door closed.

57Under cross-examination, Mr. Marley suggested to J.M. that Mr. Kissner offered a massage and he agreed; that Mr. Kissner invited him to take his pants off so that he could massage his legs and he agreed; that Mr. Kissner did not touch J.M.’s buttocks. Mr. Marley suggested that there was no sexual touching. He suggested that J.M. was pressured by others at the fire hall to come forward. Mr. Marley suggested that J.M. was involved with the group of firefighters that were disrespectful to Mr. Kissner. One year, on the night of the firefighters’ annual banquet, when certain firefighters were to be honoured for years of service, J.M. had a party at his house on the same night. Mr. Marley suggested it was a protest party. The defence to the allegations made by J.M. are that there was no sexual touching; that any touching by way of massage was consensual; that the allegations of non-consensual touchings were fabricated.

Communication between the Complainants

58Dealing first with group A, there is no evidence that any of the boys discussed their allegations with any of the other complainants. Their evidence was as follows:

1. G.H. knew S.M. as the fire prevention officer and H.N. from school but did not know any of the other complainants. He said he did not discuss his allegations with either man and neither of them discussed their allegations with him.

2. J.R. said that he knew T.W. but had never spoken to him other than to say hello. He knew S.M. as the fire prevention officer but has not talked to him about the allegations. He knew J.K. as a firefighter but has not talked to him about the allegations. He knew H.N. through baseball and last spoke to him in the summer of 2016. He has not talked to H.N. about the allegations. He knows J.M. as a firefighter. J.M. told him that something happened to him; that he was also a victim: and that he went to the O.P.P. J.M. did not provide any details of his allegations and similarly J.R. did not provide details of his own allegations.

3. J.R. is currently a firefighter, having been hired after Mr. Kissner was charged and left the fire department. J.R. said that everyone in the fire department knows who the victims are, because they have to travel to Windsor for court appearances. Everyone has “put 2 and 2 together”.

4. T.W. said that he knew J.M., J.K. and S.M. He did not know the other complainants. T.W. last spoke with J.M. 20 years ago. He has had no discussion with J.K. and S.M. other than pleasantries.

5. H.N. said he knew G.H. through high school. He knew J.R., J.M., S.M. and J.K. from the fire hall. H.N. did not know that any of the men were complainants until the day before he gave evidence. He has not discussed any of the allegations with any of them.

59As for group B, J.M. said that he knew J.R., T.W., and J.K. but had no discussion with any of them about his allegations. He knew S.M. and he said that he had asked S.M. if he had come forward with allegations because he had heard that he might have. He said he did not discuss the details of his allegations with S.M.

60S.M. and J.K. have discussed their experiences with each other. According to S.M. those discussions took place prior to both gentlemen giving their statements to police, when they were presumably cautioned against having such discussions. According to J.K. he and S.M. had no discussions about their respective experiences. Certainly the two men were communicating about their experiences in September 2015 giving the text exchange referred to above.

The Law

61Evidence of general propensity or disposition in a criminal trial is presumptively inadmissible. The rule recognizes that such evidence, although potentially relevant to the ultimate issue of guilt or innocence, poses grave dangers to a fair trial. In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, the Supreme Court said, at para. 31:

Nobody is charged with having a “general” disposition or propensity for theft or violence or whatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence.

62Nonetheless, courts have recognized that evidence of prior discreditable conduct “may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”: see Handy, para. 41. In order to be admissible, the similarities between the matter in issue in the proposed similar fact evidence must be such that “absent collaboration, it would be an affront to common sense to suggest that the similarities are due to coincidence”: see Handy, para. 41.

63For the evidence to be admissible, the onus is on the Crown to satisfy the trial judge on a balance of probabilities that:

a) the probative value of the similar fact evidence in relation to a particular issue outweighs its potential prejudice and therefore justifies its admission;

b) the similarities or common characteristics between the conduct charged and the similar fact evidence are such that, absent collusion, it would be an affront to common sense to suggest that the similarities were due to coincidence;

c) the strength of the similar fact evidence must outweigh the reasoning prejudice and moral prejudice;

d) the probative value will exceed prejudicial effect where the force of similar circumstances defies coincidence or other innocent explanation; and

e) the inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikeliness of coincidence: see Handy, at paras. 41, 42, 47, 50, 51 and 64.

64In R. v. Blake, 2003 CanLII 13682 (ON CA), [2003] O.J. No. 4589 (Ont. C.A.), Simmons J.A., for the majority, at para. 48, summarized the highlights of the main components of the Handy analytic framework as follows:

Evidence of other discreditable conduct is presumptively inadmissible;

Evidence of other discreditable conduct may be admitted where the prosecution establishes, on a balance of probabilities, “that in the context of a particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception”;

Probative value may be assessed in the following manner:

by considering the strength of the similar fact evidence, including the extent to which the evidence can be proven and any allegations of collusion;

by identifying the “issue in question” and its relative importance in the particular trial;

by identifying the factors that connect or distinguish the similar fact evidence to or from the facts alleged in the charge and the degree of connection required to make the proposed evidence admissible.

If the similar fact evidence “is not properly capable of supporting the inferences sought by the Crown, generally, the analysis need go no further”;

Potential prejudice to the accused may be assessed in the following manner:

by considering the potential for “moral prejudice” against the accused, meaning the risk of convicting the accused because he is a “bad person” rather than based on proof that he committed the offence.

by considering the potential for “reasoning prejudice” against the accused, meaning the risk of distracting or confusing the jury, or of undue consumption of time, and the danger that the jury may have difficulty disentangling the subject matter of the charges from the similar fact evidence.

65The probative value of similar fact evidence relates to the proof of a triable issue. The prejudicial effect relates to trial fairness. Probative value and prejudice pull in opposite directions on the issue of whether the similar fact evidence ought to be admitted: see R. v. Gordon, 2018 ONSC 6155.

66To have probative value, similar fact evidence must advance or refute a disputed relevant trial issue derived from the facts alleged and/or a defence that is reasonably anticipated: see: Handy, paras. 73 and 74. The issue of credibility on its own may be too broad a gateway for the admission of similar fact evidence. “Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence”: see Handy at para. 115. Binnie J cautioned that “[i]dentification of credibility as the issue in question may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (“bad personhood”): see Handy, para. 116. Credibility is an issue in most trials. The question is which of the constituent elements of the offence charged does the credibility issue relate to for which the Crown seeks to introduce similar fact evidence: see Handy, at paras. 115–20; Gordon at para. 28.

67In Handy, the charge was one of sexual assault. The issue was consent. When dealing with the relevance of the similar fact evidence, and particularly the identification of the issue in question, the Supreme Court said, at para. 120:

The issue broadly framed is credibility, but more accurately and precisely framed, the “issue in question” in this trial was the consent component of the actus reus and in relation to that issue the respondent’s alleged propensity to refuse to take no for an answer.

68An issue at trial to which the similar fact evidence may be relevant and probative includes whether the complainant’s account of the abuse is credible and whether the actus reus of the offence charged in fact occurred. In R. v. J.W., 2013 ONCA 89, the Crown appealed the respondent’s acquittal on one count of sexual assault and one count of indecent assault. The question was whether the trial judge erred in excluding similar fact evidence tendered by the Crown. At para. 41, Weiler J.A. speaking for the court said:

To be admissible, similar fact evidence must be probative of a live issue in the trial. Similar fact evidence will generally be probative where a trier of fact is able to legitimately infer, on the basis of the respondent’s past sexual conduct in closely comparable circumstances, the coincidence is objectively improbable. Thus, in this case, the trial judge correctly found that C.K.’s testimony at the voir dire was relevant to two live issues in this trial: whether J.C.’s account of the abuse was credible, and whether the actus reus of the offences charged had, in fact, occurred.

69In R. v. R.B., 2005 CanLII 30693 (ON CA), [2005] O.J. No. 3575, the accused appealed from his conviction on 10 counts of sexual abuse of adolescent boys in his care while he ran a foster home with his wife. One of the main issues on the conviction appeal was whether the trial judge erred in admitting the evidence of each complainant as similar fact evidence. On the issue of relevance to a triable issue, the trial judge identified credibility as the issue for which the similar fact evidence was relevant. The trial judge did not have the benefit of the Supreme Court’s decision in Handy. The Court of Appeal found no error and said:

The question to be decided was whether the sexual assaults occurred. The similar fact evidence was probative of the actus reus of the offences, which in turn depended on the credibility of the complainants’ evidence about the assaults (citations omitted).

70With that background of the law, I now turn to the case at hand.

Analysis

Issue One: Materiality

71Mr. Marley, on behalf of the accused, has said that the defence is either:

1. The alleged touching did not occur;

2. The alleged touching occurred with the consent of the complainant; or

3. Mr. Kissner had an honest but mistaken belief in consent.

72As in R.B. and J.W., the Crown seeks to introduce the similar fact evidence on the issues as to whether the touching occurred, whether there was consent to the touching, and the credibility of each of the complainants as to those allegations. These are all relevant, important issues at trial.

73There is a further anticipated trial issue which the similar fact evidence relates to. The complainants all testified that they did not report the inappropriate touching at the time it occurred for particular reasons. The boys testified they did not report the inappropriate touching because they were concerned about completing their co-op placement. In the case of T.W., he saw Mr. Kissner as a teacher and a political figure. He said that Mr. Kissner was charismatic and he did not think that he would be believed. In the case of J.R., he said he had not received any direction on what to do if someone with authority touches him inappropriately. He said he felt ashamed. In the case of H.N., he said he felt ashamed and that speaking up was a hard thing to do. The similar fact evidence therefore is related to the anticipated defence of recent fabrication.

74The Crown has established that the similar fact evidence relates to relevant trial issues, namely:

(a) credibility of each of the complainants as to whether the events charged occurred;

(b) credibility of each of the complainants as to whether there was consent to the touching;

(c) failure to report the alleged sexual assaults after they occurred.

Issue 2: Probative Value

75The purpose for which the evidence is being adduced is to prove the actus reus of the offence. The probative value of the similar fact evidence depends upon similarities. Rosenberg J, in his article on similar fact evidence said at page 10 “the degree of similarity required to give the evidence sufficient probative value to outweigh the prejudicial effect depends on the purpose for which the evidence is adduced” (Evidence of Similar Acts and Other Extrinsic Misconduct, (1004) National Criminal Law Program; Criminal Evidence Vol. 1). Justice Cory in R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 CCC (3d) 321, said that in the case where the issue is whether a crime was committed the issue can be put thus: “As a matter of common sense is it against all probability that in light of what the prosecution can show the accused did on other occasions it is a mere coincidence that the complainant is not telling the truth when he or she describes what the accused did on this occasion”.

76It is important to note as well that the degree of connection must rise above generic similarities between the proposed count to count similar acts. In R. v. Blake (2003), 2003 CanLII 13682 (ON CA), 181 CCC (3d) 169 (On.C.A.), at paras. 61 and 64, Simmons J.A. held:

In describing the similarities as generic, I mean that the identified similarities describe general, rather than specific, aspects of the conduct and contain limited detail, with the result that the identified similarities are likely to be present in most incidents of sexual touching involving children.

The risk in relying primarily on generic similarities to support an inference that the actus reus occurred is twofold. One, the initial inference arising from the prior conduct becomes so general, that it approaches bad personhood. Two, because of their non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case.

77I shall turn then to the evidence given by the complainants in the two groups identified by the Crown. For the boys, all four of them said they were volunteering at the fire hall either in a co-op placement, completing community service hours or as a junior firefighter. All of them said they had had aspirations to become a firefighter. All of them said they had had a fear of losing their placement and/or jeopardizing their father’s employment at the fire hall. All of them said they took a bath or got into the hot tub at Mr. Kissner’s insistence. All of them said that Mr. Kissner massaged them, culminating in inappropriate touching. These are not generic similarities. These are very specific similarities between each of the boys circumstances at the time, between the events that they say occurred in the respondent’s home and between the touching that they say the respondent engaged in.

78One must also consider proximity and time. The oldest of the allegations of the boys was that of T.W. dating back to January 2001. The most recent was that of G.H. relating to December 2016. The lack of proximity in time is not a connecting factor between the events. However, not all connecting factors are required or exist in each case: see Handy, para. 84.

79In my view, the similarity in the evidence of each of the boys to the other three boys is significant and increases the probative value of that evidence.

80As for the second group, the group of three men, there is less similarity among them. The allegations of J.K. were that the inappropriate touching occurred at the fire hall. His description of the touching that occurred in his office is similar to that described by G.H. (of the boys group) and S.M. The description by S.M. of the inappropriate touching that took place while driving is consistent with an incident described by H.N. (of the boys group).

81There is some similarity of the evidence between the two groups. All of the complainants gave evidence of incessant requests for hot tubs, baths and massages. At least two of the complainants (J.K. and S.M.) said that Mr. Kissner locked the garage door when he took them to his home for lunch. Several of the complainants said that Mr. Kissner did not like to drive and would request that the other person in the car drive.

82When looking at the test of similarity required for similar fact evidence, in my view, as stated above, the evidence of the boys is very similar to each of the other three boys in their group such that the evidence is probative. The evidence of the men is less similar in terms of their circumstances and description of the events. It is not as probative.

83Another issue that must be considered is the possibility of a collusion. As for the group of four boys, all of their evidence is that they did not speak to each other about their experiences. They all talked about being ashamed and not wanting to talk about the events. The described events occurred at different points in time – they were not at the fire hall at the same time. There is no air of reality to an allegation of collusion on the part of the four boys.

84As for the group of men, two of the three men, particularly S.M. and J.K., communicated with each other. They discussed their experiences with each other. They discussed those experiences both at the time they occurred, and prior to giving their statements to police. There is an air of reality to the allegation of collusion on the part of at least two of the men. The onus then shifts to the Crown to establish on a balance of probabilities that the evidence of similar acts is not tainted by collusion since collusion destroys the probative value of the evidence: see Handy. In my view, the Crown his not discharged this burden.

Issue 3: Prejudicial Effect

85The prejudicial effect is as described in Handy. It is one of moral prejudice and reasoning prejudice. It includes the possibility of an inference from the similar facts that the accused has the propensity to do the type of acts charged and is therefore guilty of the offence. It includes the danger of confusion by the multiplicity of incidents.

86Factors relevant to assessing moral and reasoning prejudice include the inflammatory nature of the similar facts; whether the Crown can prove its point with less prejudicial evidence; the potential distraction away from the facts charged; the potential for undue consumption of time.

87However, the prejudicial effect is reduced significantly in the case of a trial judge sitting alone, without a jury. In R v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302, Watt J.A., speaking for the court, said at para. 69:

In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduced significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument on admissibility at the end of the trial.

88Given the lack of a jury in this case, the prejudicial effect is, in my view, low.

Issue 4: Balancing

89I then turned to the exercise of balancing the probative value against the prejudicial effect. The burden is on the Crown to prove that the probative value exceeds the prejudicial effect.

90In my view, on balance, the similar fact evidence of the group of four boys has sufficient probative value as between each of the complainants in that group that it outweighs the prejudicial effect. As for the group of three men, on balance, the similar fact evidence is not sufficiently probative as between each of the complainants in that group to outweigh the prejudicial effect.

Disposition

91For the reasons set out above, I make the following order:

1. The application admitting the evidence of each of the group of boys, specifically G.H., J.R., T.W. and H.N. as similar fact evidence, count to count, for the other complainants in that group is granted.

2. The application admitting the evidence of each of the group of men, specifically J.K., J.M. and S.M. as similar fact evidence, count to count, for the other complainants in that group is dismissed.

3. The balance of the application is dismissed.

“original signed by Hebner J.”

Pamela L. Hebner

Justice

Released: Oral Decision – January 25, 2019

COURT FILE NO.: CR-17-4136

DATE: 20190125

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Robert Kissner

ruling on similar fact application

Hebner J.