OSHAWA COURT FILE NO.: CR-19-15014
DATE: 20201207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADAM STRONG
Jinwon Kim and Bryan Guertin, for the Crown
Thomas Balka and Justin Guile, for the Defendant
HEARD: October 15, 16, 18, 26 and 29, 2020
REASONS FOR RULING ON DISCREDITABLE CONDUCT APPLICATION
DI LUCA J.:
[1] Adam Strong is charged with the first-degree murder of two young vulnerable women, Kandis Fitzpatrick and Rori Hache. The Crown alleges that Mr. Strong unlawfully confined and/or sexually assaulted both Ms. Fitzpatrick and Ms. Hache and then killed them. The Crown further alleges Mr. Strong dismembered and disposed of their bodies in order to cover up his crimes.
[2] Mr. Strong is being tried before me without a jury. The evidence on the trial proper and on various pre-trial motions has been heard in a blended fashion. These reasons address the Crown’s application to admit evidence of discreditable conduct in relation to count #2 in the indictment which alleges the first-degree murder of Rori Hache. The Crown does not seek admissibility of the discreditable conduct evidence in relation to count #1 in the indictment which alleges the first-degree murder of Kandis Fitzpatrick. That said, the Crown will ultimately be bringing a “count on count” similar act evidence application at the close of the case.
[3] Following the completion of the evidence and submissions on the application on October 26, 2020, I reserved my decision. On October 29, 2020, I indicated that the application was dismissed with reasons to follow.
[4] As a result of the decision on the discreditable conduct application, the Crown abandoned an application to have Dr. Klassen, a forensic psychiatrist, qualified to give expert opinion evidence in relation to sexual paraphilia and in particular, whether a hypothetical person with Mr. Strong’s characteristics would have a paraphilic disorder, how persistent that disorder would be over a life time and what factors might contribute to the person acting out desires associated with the disorder in a manner that was either non-consensual or caused harm to others.
Background to the Alleged Offences
[5] Ms. Fitzpatrick and Ms. Hache were both in their late teens when they went missing. Around the time of their respective disappearances, they were undergoing personal challenges. They had turned to drugs, were involved in the sex trade and were at times living on the street.
[6] Ms. Fitzpatrick went missing in approximately March of 2008, though the police were only notified in 2010. Her whereabouts have never been discovered. However, her DNA was found on a specialty hunting knife located inside a kitchen drawer in Mr. Strong’s apartment. Her DNA was also located inside a chest freezer located in Mr. Strong’s bedroom.
[7] Ms. Hache went missing in late August 2017. On September 11, 2017, her dismembered and disembowelled torso was found in Lake Ontario. On December 29, 2017, plumbers were called to Mr. Strong’s residence at 19 McMillan Drive by the upstairs tenants who noted that the plumbing was backed up. The plumbers snaked the drains and began pulling up strips and chunks of a substance that appeared to be flesh of some sort. Police were called and once on scene, they spoke with Mr. Strong who told them there was a body located in the home. A subsequent search resulted in the discovery of Ms. Hache’s head, pelvis, arms and legs inside the chest freezer located in Mr. Strong’s bedroom. Flesh and skin had been removed from certain body parts and a further quantity of flesh and skin was later extracted from drains of the home.
[8] Mr. Strong was initially charged with committing an indignity to Ms. Hache’s body. On November 8, 2018, that charge was withdrawn by the Crown. Mr. Strong was then re-arrested and charged with two counts of first-degree murder against Kandis Fitzpatrick and Rori Hache, respectively.
[9] While the Crown argues that Ms. Hache was murdered during the course of either a sexual assault or an unlawful confinement, it does not advance a specific theory as to how she was killed. The pathology evidence does not suggest a clear cause of death but reveals a number of wounds, including potentially fatal injuries that could have been caused before death. The pathology evidence also does not reveal any evidence that Ms. Hache was choked to death, though any such findings may have been affected by the dismemberment of her body.
[10] The Crown does, however, point to a body of circumstantial evidence which, in its submission, supports a finding that Ms. Hache was sexually assaulted around the time of her death. Swabs of Ms. Hache’s vaginal and anorectal mucosa revealed the presence of Mr. Strong’s semen. Ms. Hache’s bodily fluids were found on various sex toys, and restraints located in Mr. Strong’s bedroom. Her blood was found on a pulley system in the bedroom as well as on a wall and the ceiling of the bedroom. Lastly, her blood was found on two air mattresses found in Mr. Strong’s bedroom and storage room.
Evidence on the Discreditable Conduct Application
[11] The Crown seeks admission of the following categories of discreditable conduct evidence:[^1]
a. Evidence from Mr. Strong’s former sexual partners;
b. Evidence from Mr. Strong’s friends and acquaintances; and,
c. Evidence found on Mr. Strong’s electronic devices which includes various images of sexual violence against women.
Mr. Strong’s Former Sexual Partners
[12] Ms. R.C. met Mr. Strong in approximately October or November of 1998, when she was working a donut shop in Oshawa. Her job was to serve customers and Mr. Strong was a baker. She was 16 years old at the time and had just come out of a relationship. While she wasn’t looking for a new relationship, she and Mr. Strong got to know each other, and a relationship developed. Mr. Strong would have been approximately 26 years old at the time.
[13] On New Year’s Eve, R.C. moved out of her parents’ home following a disagreement. She moved in with Mr. Strong in a basement apartment in a town house in Oshawa. She resided there until May 1998 when she left to pursue a college education. Her relationship with Mr. Strong ended in October of 1999.
[14] When asked about the nature of her sexual relationship with Mr. Strong, R.C. indicated that it included bondage and the use of restraints including handcuffs and a rope that was connected to her feet. The restraints were Mr. Strong’s idea and they were already present at his apartment when she moved in.
[15] She further indicated that on one or two occasions, Mr. Strong put his hand on her neck. On one occasion, he used enough force that a small blood vessel popped in the corner of her eye. The popped vessel was the size of a pencil tip and Ms. R.C. was not concerned about it at the time.
[16] In cross-examination, R.C. agreed that she considered her sexual relationship with Mr. Strong to be experimental and that she was not concerned for her safety. While there was no discussion in advance of using the restraints, she was comfortable and open to trying them. There was also no discussion in advance of the choking, though Ms. R.C. indicates that she was experimenting and went along with it. Mr. Strong never choked her to the point of passing out and the incidents all happened during sex while they were unclothed. According to R.C., most of the sex she had with Mr. Strong did not involve bondage or pressure on her neck.
[17] M.P. also met Mr. Strong while working at a donut shop in Whitby in 1999 or 2000 when she was approximately 18 or 19 years of age. They commenced a relationship that was mainly sexual and lasted between 2000 and 2001. The relationship finally ended in 2002 when M.P.’s grandfather passed away.
[18] M.P described a game that she and Mr. Strong would play during sex. The game was called “Your Life Depends on How Quickly I Can Come” and it involved choking during sex. Mr. Strong would use his hands and at times a fabric belt or twine to choke her and the game would go on until he ejaculated. The game was introduced by Mr. Strong and it would occur “more often than not” when they were having sex. M.P. did not find the game enjoyable. She would be afraid and would want Mr. Strong to ejaculate quickly. She would get light headed and have difficulty breathing. There were also times when Mr. Strong would attempt to smother M.P. using a hand over her face. She did not find this activity enjoyable either. On one occasion near Christmas, Mr. Strong used a belt to choke her and it left marks around her neck. She wore a turtle neck to avoid revealing the marks. Ms. M.P. could not recall an incident where she lost consciousness.
[19] Ms. M.P. indicated that at the time she had low self-esteem and desperately wanted someone to care about her. She indicated that she went along with these activities despite not enjoying them. She also indicated that she would be relieved when the activities ended.
[20] Ms. M.P. agreed in cross-examination that she was friends with Rori Hache’s mother and was aware of what Mr. Strong had been accused of doing before she went to police. She agreed that she told police she did not want to help his defence. She acknowledged that she told police she did not remember the choking activities until she started to think about what Mr. Strong had been charged with. That said, she clarified that this was a poor choice of words and that the choking events just were not at the forefront of her mind when she spoke to police.
[21] Ms. J.L. first met Mr. Strong when he was working at a gas station. She would regularly stop in to buy cigarettes and eventually started going to the gas station just to visit Mr. Strong. In December of 2010 or early 2011, they began dating. J.L. was 21 years old at the time. She eventually moved in with Mr. Strong and lived with him for approximately a year and a half.
[22] Initially, their relationship was very healthy. He was “very sweet.” He would take her places like restaurants and they would go fishing at Lake Scugog and at the Oshawa Pier. He would also buy her things such as jewelry and shoes. The relationship progressed to the point where they discussed engagement and marriage.
[23] Apart from one incident of choking, their initial sexual activity involved nothing out of the ordinary. However, it soon evolved into the use of restraints and then choking or strangulation. J.L. thought the use of restraints like handcuffs was fun but became concerned when the activity progressed to strangulation. At times without warning, Mr. Strong would use his hands and also a rope to strangle J.L to the point of unconsciousness. While the choking was mainly done during sexual activity, it also progressed to random incidents of choking where, for example, Mr. Strong would grab J.L by the throat as she was coming out of the bathroom and she would end up on the floor, passed out.
[24] J.L. did not like being choked to unconsciousness and would say “no” to Mr. Strong. In the early stages of their relationship he would give her the choice. Later on in the relationship, he either would not ask and/or would not stop when she said “no.” She discussed the issue with Mr. Strong and he indicated that the choking was something he needed and that if she “couldn’t handle it” they could not be together. She denied agreeing to his demand but could not recall what her response was. Eventually, she was afraid for her life but stayed with him because she had nowhere to go.
[25] On one occasion early on in the relationship, the choking resulted in hemorrhaging that made her eyes look entirely “bloodshot.” J.L indicated that the choking would happen on hundreds of occasions though she only suffered the hemorrhaging on the one occasion. While she denied wearing a dog collar and leash in public, she agreed that she went to the Naughty but Nice sex shop after the eye injury, indicating that she wore sunglasses to hide her eyes.
[26] J.L. described a pulley system that Mr. Strong installed in the bedroom of his basement apartment. A rope would travel through an eye hook on the wall, then through a pulley and then up to the ceiling, ending in a “hang man’s noose.” J.L. described how Mr. Strong would use this pulley system on her until she was unconscious. When she would regain consciousness, Mr. Strong would be having vaginal intercourse with her. The use of the pulley system and the choking/strangulation pleased Mr. Strong and would result in him ejaculating. J.L. agreed that she was “ok” with the BDSM activities involving the rope and pulley system in the bedroom.
[27] J.L. also described restraints that were attached to a door frame in the basement apartment. These restraints were her idea and the use of these restraints was acceptable to her. She indicated that she could get out of these restraints on her own. J.L. also identified a “spreader bar” with Velcro cuffs and indicated that she and Mr. Strong bought the item at a local sex shop and would use it during their sexual activities. J.L. indicated that she consented to many of the BDSM activities. J.L. also confirmed that many of the restraints and sex toys found in the residence were purchased during their relationship. She indicated that Mr. Strong wanted to use a ball gag on her, but she indicated she did not want to, so he did not use it. She also indicated that she and Mr. Strong tried anal sex once, but she did not like it. He asked to try it again on other occasions and she refused.
[28] When asked whether Mr. Strong could achieve erection and ejaculation without strangulation, Ms. J.L. maintained that she could not recall. She indicated that she had tried to block out certain memories.
Mr. Strong’s Friends and Acquaintances
[29] Ms. D.C. was an employee of the Naughty but Nice sex shop in Oshawa between 2009 and 2012. She recognized Mr. Strong as a former customer and indicated that Mr. Strong would often come in to the store to buy sex toys and BDSM equipment. At the time, Mr. Strong would request specially ordered BDSM equipment from a certain manufacturer. He indicated that he did not like the equipment sold in the store as it was too easy to get out of. On several occasions, Mr. Strong attended at the store with a female companion wearing a collar and leash with Mr. Strong holding the end of the leash. Mr. Strong indicated to D.C. that he and the woman had a “master-slave contract.” D.C. recalled the woman nodding when this explanation was given.
[30] On one occasion, Mr. Strong attended at the store with the woman, who was again wearing a collar and leash. Ms. D.C. noticed that the woman’s eyes were completely bloodshot obscuring both the whites of her eyes and her pupils. D.C. asked the woman if she was ok and Mr. Strong replied, “our play got a little too rough last night.” He further explained that he had strangled her for too long. Ms. D.C. noticed the woman alone at the back of the store and she approached her asking if she was ok. The woman said she was ok, and Mr. Strong then joined them at the back of the store. They made a purchase and left the store. Ms. D.C. was concerned about her observations and reported them to her boss. They reviewed the store’s security cameras showing the attendance but did not call police.
[31] Mr. P.P. was a taxi driver who met Mr. Strong when Mr. Strong was working at a gas station he frequented most evenings. Over the course of couple years, he and Mr. Strong would hang out and grab coffee at a nearby Tim Horton’s. On one occasion, P.P was teasing Mr. Strong about not having a girlfriend. Mr. Strong showed him a video of a naked blindfolded woman tied to a door frame by the hands and feet. Mr. Strong could be seen in the video “pleasuring” the woman with a vibrator. The woman appeared to be enjoying the activity. The video clip was a few seconds in length. P.P. noted that the woman looked young and recalled telling Mr. Strong that the woman appeared to be his daughter’s age.
[32] Mr. Strong also mentioned that he would view websites such as “Faces of Death” and “Rotten.com.” On one occasion, he showed P.P. and a third individual a video of three men who had been bound and gagged and had their throats slit. Mr. Strong thought the video was funny, but Mr. P.P. found it disturbing.
[33] In cross-examination, P.P indicated that Mr. Strong had an eclectic interest in videos which he would often show while they were getting coffee or hanging out. Mr. Strong would often try to “gross out” P.P.
[34] Ms. A.H. met Mr. Strong at a bus stop near their respective work places in approximately 2010. They would often speak while waiting for the bus and also when on the bus. During these discussions, Mr. Strong would bring up the types of sexual activities he was into including, BDSM, suspension and rope play. He described how he liked to use hooks to suspend a woman, though not in a harmful way. He described how he liked rough sex. She recalled a discussion on the bus where Mr. Strong’s girlfriend J.L was present and wherein Mr. Strong discussed their sexual practices including aggressive sex, choking, nipple clamps, paddles and spanking. Ms. J.L. participated in aspects of the discussion though appeared embarrassed over the discussion of her sexual practices.
[35] Ms. A.H. also recalled Mr. Strong showing her disturbing photos and videos from a website that featured images of death, suicide murder, autopsies and the like. She recalled one image in particular which depicted a bound woman on a spit that travelled through her mouth and out her rectum. She could not recall whether the photo was real or fake, though recalled that it looked real and she found it disturbing. She acknowledged that Mr. Strong told her it was fake.
[36] Ms. S.M. met Mr. Strong when she was working a donut shop in Oshawa in October of 2007. She described how she would see him every night when at work. Her husband would hang out at the donut shop as well and would on occasion drive Mr. Strong home. Ms. S.M.’s sister in law also worked at the same donut shop and she and S.M. would talk about various topics including sex. Having perhaps overheard their discussions about sex, Mr. Strong mentioned that he had a “sex dungeon” in his basement. He described having whips, chains and handcuffs and said he would tie her up and teach her how to be controlled.
[37] This topic of discussion came up more than once. Initially S.M. simply brushed Mr. Strong off. However, as he continued raising the topic, she grew scared and would ask her husband and brother in law to stay around the donut shop, so she felt safe. According to S.M., Mr. Strong spoke proudly of his dungeon. He bragged about how he had taken a girl there, tied her up and controlled her. He offered to do the same to S.M. which she declined.
[38] Mr. B.S. met Mr. Strong in approximately 2014 when he attended a gas station Mr. Strong was working at. Mr. Strong helped get B.S. a job at the same gas station and they became friends. When they would hang out, Mr. Strong would often discuss his sexual preferences indicating that he liked anal sex and also liked “choking out” women. B.S. agreed that Mr. Strong would often joke about “choking out” women and that he would respond by joking in the same fashion despite having no interest in the activity.
[39] Mr. Strong showed B.S. some metal loops in the ceiling of his apartment and explained how he would use ropes for his sex activities. He also showed B.S. a video of himself using a vibrator on a woman tied to the ceiling. The woman in the video appeared to be enjoying herself and the interaction appeared consensual.
[40] Mr. Strong would show B.S. sexual S&M videos from websites including a video of a “savagely sexed” woman who was bleeding. He also showed him a photo of a woman impaled through the “mouth and bottom.” The photo was a cartoon and it was the screen saver on his tablet. Mr. Strong indicated that he thought the photo was “hardcore.” Lastly, Mr. Strong showed B.S. a reciprocating electric saw with a dildo attached to the blade. Mr. Strong indicated that he had never used it but was “going to use it on a girl to test it out.”
Evidence Found on Mr. Strong’s Electronic Devices
[41] Police seized and examined a number of electronic devices belonging to Adam Strong. The examination of internet activity discovered on these devices revealed an interest in gore and violence, including sexual violence against women.
[42] Bestgore.com is a website that Mr. Strong frequently visited from 2010 until the day prior to his arrest on December 29, 2017. This website displays disturbing images of general human gore, autopsies, mutilated bodies from suicide, accidents, murders and executions. It also displays images of Japanese anime involved restrained, impaled and dismembered women.
[43] A cell phone belonging to Mr. Strong had image artifacts depicting violent sexual acts against women and/or fatal injuries to women who appear nude or semi-nude. Some of the images are illustrations and many of them appear to be actual photos. The dates on which these images were accessed cannot be determined.
[44] A second cell phone belonging to Mr. Strong appears to have been used between March 7, 2016 and November 6, 2016 to access the Bestgore.com website and view gore related photos and videos including some with sexualized themes.
[45] A third cell phone belonging to Mr. Strong, which appears to have been the phone he was using up to the time of his arrest, also revealed an internet history of visits to the Bestgore.com website with web page titles suggesting that photos and videos depicting violence and often sexualized violence against women had been accessed. The internet history suggests that Mr. Strong was accessing Bestgore.com up to the time of his arrest.
Legal Framework
[46] Evidence of prior acts of discreditable conduct is presumptively inadmissible: see R. v. Handy, 2002 SCC 56, at para. 55. The onus is on the Crown to demonstrate on a balance of probabilities that the exclusionary presumption has been overcome: see Handy, supra, at para. 73 and R. v. M.R.S., 2020 ONCA 667, at para. 65.
[47] Discreditable conduct evidence will be inadmissible where it is adduced only to show that the accused has the general propensity to commit the type of offence alleged. In other words, evidence that merely shows that the accused is the type or kind of person who is likely to have committed the offence is prohibited. However, evidence that shows a specific propensity on the part of the accused may be admissible if it is relevant and material to an issue in the case and where its probative value outweighs its prejudicial effect: see Handy, supra, at para 31.
[48] Like all evidence, evidence of discreditable conduct will be admissible where its probative value exceeds it prejudicial effect. A determination of probative value requires an assessment the relevance and materiality of the proposed evidence in relation to the “issue in question” in the case. Evidence is relevant where “it renders the fact that it seeks to establish slightly more or less probable that that fact would be without the evidence,” see R. v. MacDonald, 2017 ONCA 568, at para. 66 and R. v. Luciano, 2011 ONCA 89, at para 204. Evidence is material if it is directed at a matter in issue in the case: see Luciano, supra, at para. 207 and R. v. Candir, 2009 ONCA 915, at para. 49.
[49] The assessment of relevance and materiality of the evidence begins with identifying the “issue in question.” In order to assess the relevance and materiality of the proposed evidence it is essential to delineate the issue in question and then ask whether and, if so, how the proposed discreditable conduct evidence tends to prove the issue: see R. v. Bent, 2016 ONCA 651, at para. 39.
[50] Once the “issue in question” is properly identified, the probative value of the evidence is assessed by considering; the extent to which the matters it tends to prove are at issue in the proceedings, the strength of the evidence, and the extent to which the evidence supports the inferences sought: see R. v. Handy, supra, at paras. 42, 48, 73-82 and R. v. Bent, supra, at paras. 39-44.
[51] In terms of the strength of the evidence, it is important to note that the evidence need not be conclusive in order to be admissible. Only a limited weighing of the evidence is considered at the admissibility stage. The final assessment of the credibility and reliability of the evidence is left to the trier of fact, if the evidence is admissible.
[52] Assessing the extent to which the evidence proffered supports the inferences sought often depends on the degree of similarity between the evidence and the conduct before the court. The degree of similarity required is context driven. Where, for example, the evidence is tendered to prove identity, a very high degree of similarity is required because the cogency of the evidence is derived in that instance from the objective improbability of coincidence. Where the evidence is tendered to prove the actus reus of the offence, the requisite degree of similarity may be lower. Somewhat dissimilar acts may nonetheless be sufficiently relevant to and probative of the issue in the question: see Handy, supra, at. paras. 76-80, R. v. J.M., 2010, ONCA 117, at para. 91 and R. v. Tsigirlash, 2019 ONCA 650, at para. 31.
[53] Relevant factors in assessing the relevance and probative value of the evidence include:
a. The proximity in time of the other acts;
b. The extent to which the other acts are similar to the conduct charged;
c. The number of occurrences;
d. The circumstances surrounding the similar acts;
e. The distinctive features unifying the acts;
f. Intervening events; and,
g. Any other factors which would tend to support or rebut the underlying unity of the similar acts.
See Handy, supra, at para. 82.
[54] The potential prejudicial effect of the proposed evidence relates to the potential for moral prejudice and reasoning prejudice. Moral prejudice relates to the risk that the trier of fact may convict an accused because the he or she is a “bad person.” Reasoning prejudice relates to the risk that the trier of fact will be distracted from the proper focus of the trial and an inordinate amount of time will be spent on the discreditable conduct: see Handy, supra, at paras. 31, 42, 137-146 and MacDonald, supra, at paras. 83-84.
[55] While the potential prejudicial effect of the evidence must always be assessed, the risk of moral and reasoning prejudice is significantly reduced in a judge-alone trial: see R. v. T.B., 2009 ONCA 177, at paras. 27-33.
Analysis and Findings
[56] The Crown argues that the discreditable conduct evidence demonstrates that Mr. Strong has a specific propensity to engage in violent sexual activity, including bondage and choking, with or without his partner’s consent. The Crown describes violent sex as a core aspect of Mr. Strong’s sexual being. It is something he not only desires but also needs. The Crown argues that when all the proposed evidence is viewed in context, it is clear that Mr. Strong demonstrated a pattern of behaviour akin to a sexual habit.
[57] The Crown argues that the “issues in question” are the actus reus of the offence, narrative and context. In this regard, the Crown’s theory is that Mr. Strong murdered Ms. Hache while committing or attempting to commit a sexual assault or unlawful confinement. The discreditable conduct evidence makes it more likely that Mr. Strong was engaged in sexual activity such as bondage and choking with Ms. Hache and therefore makes it more likely that the activity was non-consensual.
[58] The defence argues that the evidence fails to meet the test for exceptional admission as it merely shows a general propensity or interest in sexual acts of bondage and erotic asphyxia of a mainly consensual nature. The defence argues that the mere fact that Mr. Strong enjoyed these types of sex acts, does not make it any more likely that he sexually assaulted and then murdered Rori Hache.
[59] I note at the outset of my analysis that there is no issue that questions of sexual assault and unlawful confinement are material in this trial. Whether Ms. Hache was sexually assaulted or unlawfully confined in the course of a series of events that included her murder will be a central issue that I will need to determine. As such, if the proposed discreditable conduct evidence is relevant, it is also material. Further, I note that there is no suggestion of collusion between the witnesses. While some of the witnesses were cross-examined on the potential for bias based on the fact that they came forward after they heard what Mr. Strong had been accused of, this is not a matter that affects admissibility. Rather, it is a factor to consider in assessing the ultimate weight that might be assigned to the evidence if admitted. I further note there is no real issue about the strength of the proposed evidence. While the credibility of some witnesses, for example J.L and B.S., was challenged, I do not view the credibility issues with their evidence as impacting the admissibility of their evidence. Moreover, significant aspects of many of the witnesses’ evidence were corroborated by Mr. Strong himself in his lengthy police statements and by physical and forensic evidence found at his residence.[^2] All told, this is not a case where, assuming relevance, I would find that the weaknesses in the evidence undermined probative value to the point of inadmissibility.
[60] I start my analysis of relevance by assessing what the proposed evidence reveals about Mr. Strong’s propensity. The principal evidence on the application comes from three former intimate partners, though this evidence is buttressed by evidence from Mr. Strong’s friends and associates.
[61] In terms of the timing of the principal witnesses’ involvement with Mr. Strong, the evidence from R.C. spans from approximately 1998-1999, the evidence of M.P. spans from approximately early 2001 to April 2002 and the evidence of J.L spans from 2010 to 2012. Rori Hache went missing in late August 2017, some five years after Mr. Strong’s relationship with J.L. ended. I also note these three witnesses all had a romantic relationship of some duration with Mr. Strong. The sexual interactions between them and Mr. Strong all started out normally and then progressed into acts of BDSM and choking. There is no evidence before me that Mr. Strong and Rori Hache were in a romantic relationship. There is some evidence that Ms. Hache was involved in the sex trade and the Crown theory is that Mr. Strong likely encountered Ms. Hache in that capacity.
[62] R.C.’s evidence is that Mr. Strong introduced bondage type activities into their relationship and on one or two occasions choked her with his hand. The activity she describes was consensual. M.P describes the choking game that she played at Mr. Strong’s behest. She did not like the game, but she went along with it at the time. As the Crown notes, her evidence about whether this activity was consensual is equivocal. The evidence of these two witnesses is quite dated and, in my view, shows no more than Mr. Strong had an interest in engaging in consensual BDSM style sexual activities in the context of an intimate relationship of some duration. While I accept that R.C. had a pencil point sized blood vessel burst in her eye on one occasion and M.P. had a mark on her neck which required her to wear a turtle neck one Christmas, neither of them were overly concerned about these relatively minor injuries at the time they happened and neither of them subjectively viewed the incidents as non-consensual at the time.
[63] J.L.’s evidence is that she and Mr. Strong engaged in a variety of consensual BDSM style activities, some of which were her idea. She indicates that Mr. Strong’s use of choking and strangulation increased during the course of the relationship, particularly after he and J.L discussed marriage. She also described incidents of non-consensual choking that occurred both in the context of sexual relations and also just generally. That said, she described only one significant incident of injury that occurred when blood vessels burst in her eyes. The timing of this incident was early on in the relationship and despite the frequency of the choking thereafter, there were no further instances of similar injuries.
[64] J.L.’s evidence is troubling as it reveals that by the time Mr. Strong was dating her, his interest in choking was consistent and perhaps growing. On her evidence, Mr. Strong committed a number of sexual assaults and choking related assaults during their relationship. That said, it is also clear that J.L. was a willing participant in and initiator of certain BDSM style activities.
[65] Aspects of J.L.’s evidence overlap with the evidence of some of the secondary witnesses. For example, Mr. Strong show’s both P.P. and B.S. a brief video of a woman in bondage who appears to be enjoying a sex act that Mr. Strong is performing on her. While J.L. denies being video recorded by Mr. Strong, the incident P.P. describes would appear to be the same consensual activity that J.L describe as occurring at the door frame in Mr. Strong’s basement. The incident described by B.S. may be one of the sex acts that J.L. describes as happening in the bedroom. I do not see this evidence as anything more than demonstrating Mr. Strong’s involvement in incidents of consensual sex involving BDSM activities.
[66] A.H. describes how Mr. Strong revealed his sexual interests to her, including describing some of the things he and J.L would do. J.L. was present for some of these discussions which happened on a bus and while she appeared embarrassed by Mr. Strong’s over-sharing, she did not suggest that the activities were non-consensual.
[67] D.C. describes Mr. Strong’s activities in the sex store and describes how he attended with a woman wearing a dog collar and leash on more than one occasion. She also described observing the woman with blood shot eyes on one occasion. While J.L. denies ever having worn a dog collar and leash in public, she does describe an incident where she attended at the sex store with blood shot eyes. D.C.’s evidence in this regard potentially confirms an aspect of J.L.’s evidence. It also supports a finding that Mr. Strong was interested in purchasing BDSM equipment, at times in the company of J.L.
[68] On the whole, J.L.’s evidence is troubling. It suggests that in the context of a long-term romantic relationship, Mr. Strong was willing to engage in acts of choking both during sexual activities and during regular activities. The acts were frequent, and it appears that Mr. Strong was not concerned about ascertaining J.L.’s consent to these activities. That said, on the evidence, it appears that apart from the eye injury that happened early on in the relationship, there were no further significant injuries thereafter. As well, portions of the BDSM conduct were not only consensual, but also undertaken on J.L.’s own initiative.
[69] I next turn briefly to the evidence of the remaining witnesses. I see no relevance to the fact that Mr. Strong was showing P.P. and B.S. gore videos and photos, some of which included images of sexual violence against women. While these videos and images are very disturbing, it is hard to see how the fact that he showed a disturbing video to a friend would be anything more than general bad character evidence.
[70] Similarly, Mr. Strong’s discussions of his sexual interests with A.H. and B.S. are also relevant only to establishing that Mr. Strong had an interest in BDSM activities and choking, but, again, they do not go beyond that to revealing a specific violent sexual propensity towards women.
[71] Lastly, S.M.’s evidence about Mr. Strong mentioning his “sex dungeon” and essentially bragging that he taught a woman how she could be controlled, which appears to have taken place somewhere between October 2007 and June 2008, also reveals an interest in BDSM style activities but does not suggest anything non-consensual or violent. While his overtures to S.M. may have been distasteful and ultimately distressing to S.M., it is hard to see them as evidence of anything other than bad character.
[72] In terms of assessing the relevance and probative value of this evidence, I note that in its written materials the Crown initially described Mr. Strong’s specific propensity as follows at para. 120:
In order to achieve sexual gratification and release, the Respondent Adam Strong habitually choked and restrained his sexual partners. Physical violence and sex, to put it colloquially, “turned him on.” If his partners went along with what the respondent wanted, the activity remained consensual. But if the women did not consent, he persisted anyway, including with physical violence – because he needed to do so in order to achieve sexual fulfillment – and the activity became a sexual assault. This is the Respondent’s “specific propensity” that is relevant to the issues in this case. This is the specific propensity that has continued to control the Respondent’s sexual interactions for at least 10 years prior to the murder of Rori Hache. This is the specific propensity that the Applicant seeks to prove at trial through the evidence in this application.
[73] When I consider the actual evidence on the application, which was quite different than the anticipated evidence set out in the materials, I am not able to conclude that the Crown has established that Mr. Strong had a specific propensity for violent sex which he needed in order to achieve sexual fulfillment. In my view, the evidence falls far short of establishing this proposition. On the evidence before me, it is clear that Mr. Strong had an interest in BDSM activities including choking. It is also clear that he engaged in these activities with partners who consented to much of the activities. While the evidence shows that Mr. Strong was willing to exceed the bounds of consent, particularly with J.L., the evidence as a whole does not show a specific propensity to engage in acts of choking as a necessary means of achieving sexual fulfillment and/or a propensity to engage in those sexual acts with or without his partner’s consent.
[74] The more problematic issue relates to the Crown’s final submission that the evidence showing that Mr. Strong was engaged in BDSM style activities including choking, makes it more likely that he was engaging in those activities with Rori Hache and further makes it more likely that those activities with Rori Hache were non-consensual. As a matter of common sense and logic, this sequence of reasoning is flawed. I agree that the evidence might be relevant to showing the types of sexual activities that Mr. Strong engaged in with a romantic partner with whom he was in a relationship. I further agree that this evidence might also be relevant to showing that he would engage in this type of activity with a sex worker. It is speculative however, to then infer that if he was engaged in this type activity with a sex worker, it is more likely to have been non-consensual. On this basis, I am not prepared to find that the evidence is relevant to and probative of the issue of whether the actus reus of the offence was committed. In other words, it does not make it any more or less likely that Mr. Strong was engaged in non-consensual and/or violent sex with Rori Hache at the time of her death. Similarly, I do not see how the evidence adds to the context and narrative of what happened between Mr. Strong and Ms. Hache.
[75] I also note that the “issue in question” must be defined with due regard for the offence charged in this case, since as Binnie J. observed in Handy, supra, at para. 76, “[t]he principal driver of probative value in a case such as this is the connectedness (or nexus) that is established between the similar fact evidence and the offences alleged”. Mr. Strong is charged not with sexual assault, but with first-degree murder. Evidence supporting the inference that he committed a sexual assault on Ms. Hache is potentially relevant to the first-degree murder charge, since the Crown’s theory is that he intentionally killed her during either an actual or attempted sexual assault or an unlawful confinement. Focussing on the sexual assault aspect, a murder will be a first-degree murder where the act of the intentional killing is so intertwined with the sexual assault as to form one single transaction, essentially a sexualized murder: see R. v. Niemi, 2017 ONCA 720, at para. 60.
[76] However, the Crown cannot obtain a conviction for first-degree murder merely by proving that Mr. Strong committed a sexual assault on Ms. Hache, since it must also prove that he caused her death with the requisite subjective mens rea. In this case, the Crown seeks to rely on the discreditable conduct evidence to support the ultimate inference that Mr. Strong was engaged in non-consensual BDSM and choking activities with Ms. Hache when she died. However, the ultimate issue in question here will be whether Mr. Strong intentionally killed Ms. Hache during sexual activity. A person cannot consent to intentionally inflicted bodily harm or death: see R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714 and R. v. J.A., 2011 SCC 28. As such, a sexual act that ends when one partner intentionally causes the death of the other sexual partner is by definition non-consensual regardless of how the incident commenced. Put another way, once a person intentionally kills another during a sexual activity, the issue of whether the initial sexual interaction was consensual essentially becomes irrelevant. Moreover, evidence that shows a person’s propensity for engaging in BDSM and choking activities will not in and of itself support the further inference that the person would then intentionally kill his or her partner while engaging in these activities, whether it be for the purpose of overcoming resistance, avoiding detection or perhaps even simply for enjoyment.
[77] When the proposed discreditable conduct evidence is viewed in this context, it strikes me that its probative value is diminished even further. Even if the evidence could properly be used to support an inference that Mr. Strong was engaged in a non-consensual sexual act with Ms. Hache – which I do not think it can, as explained above – in the circumstances of this case, drawing this inference would ultimately still not assist me in determining whether the actus reus of the offence of first-degree murder committed during a sexual assault had been established.
[78] I turn lastly to the evidence found on Mr. Strong’s electronic devices. I note that the Crown does not suggest that any of this evidence is circumstantial evidence tending to prove that Mr. Strong committed certain acts against Ms. Hache. Rather, the Crown argues that Mr. Strong’s internet habits reveal an interest in gore material including videos, photos and depictions of violent sex acts against women and that this evidence buttresses the evidence of the viva voce witnesses in terms of Mr. Strong sexual propensity. I agree with the Crown that Mr. Strong’s internet history shows an interest in gore material that is highly disturbing. I further note that some of that material includes sexual content depicting violence towards women. That said, I am not prepared to find that Mr. Strong’s internet history reveals a specific propensity which supports an inference that he was acting in accordance with that propensity when he interacted with Ms. Hache.
[79] In terms of the potential prejudicial effect of the evidence, I accept that the risk of misuse of the evidence is greatly attenuated in cases being tried without a jury. That said, it cannot be that there will never be a prejudicial effect to consider when the Crown seeks to tender discreditable conduct evidence in judge alone trials. In this case, the potential for prejudice manifests itself in the risk that of distraction from the core issues at trial. If the evidence is admitted, the Crown will seek to admit the expert evidence of Dr. Klassen who, it is anticipated, will opine on whether a hypothetical person with Mr. Strong’s history and characteristics suffers from a sexual paraphilia and can be expected to act in accordance with the paraphilia. In my view, this proposed expert evidence, in combination with the discreditable conduct evidence, risks turning this trial into a trial of Mr. Strong’s character and not simply a trial into whether he committed the first-degree murder of Ms. Hache or Ms. Fitzpatrick. As a result, even if I had found some relevance and probative value to the evidence, I would nonetheless have excluded it on the basis that its limited probative value was exceeded by its potential prejudicial effect on the trial process.
[80] The application is dismissed.
Justice J. Di Luca
Released: December 7, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ADAM STRONG
Applicant
REASONS FOR RULING ON DISCREDITABLE CONDUCT APPLICATION
Justice J. Di Luca
Released: December 7, 2020
[^1]: The Crown ultimately called fewer witnesses than had been anticipated in the originally filed application materials. As well, a number of witness who did testify did not give evidence to the extent that had been anticipated. I have disabused my mind to the extent that the actual evidentiary record differs from the anticipated evidence set out in the application materials.
[^2]: The Crown also argues that Dr. Klassen’s written report offers further evidence supporting the strength of the proposed discreditable conduct evidence. It is unnecessary to consider this issue as I am satisfied that the proposed evidence is sufficiently strong to warrant admissibility, but I would note that the weight to be placed on Dr. Klassen’s report is limited by the fact that he considered evidence that was either not called on this application or evidence that did not materialize to extent anticipated.