COURT FILE NO.: 17-S45130

DATE: 2020/02/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Michael Belanger

Tim Wightman, for the Crown

Bruce Engel, for the Accused

Heard: February 4, 2020

BY COURT ORDER MADE UNDER S. 486.4(1) OF THE CRIMINAL CODE, INFORMATION THAT MAY IDENTIFY THE PERSON DESCRIBED IN THIS JUDGMENT AS THE COMPLAINANT MAY NOT BE PUBLISHED, BROADCAST, OR TRANSMITTED IN ANY MANNER.

ruling: admissibility of similar fact /Discreditable conduct evidence

BLISHEN J.

INTRODUCTION

[1] The accused Michael Belanger is charged with four sexual offences outlined on a single indictment: sexual exploitation contrary to s. 153(1.1) of the Criminal Code, R.S.C., 1985, c. C-46 and sexual assault contrary to s. 271 of the Criminal Code, with respect to two complainants S.A. and C.L.-K. He is further charged with committing an assault on S.A. contrary to s. 266 of the Criminal Code.

[2] On this application, the Crown seeks to introduce the evidence of the two complainants, S.A. and C. L.-K., across counts on the indictment, as well as portions of the evidence of P.S. provided on a voir dire outside the scope of counts on the indictment, as probative similar fact /discreditable conduct evidence relating to the central issues of the actus reus of the offences charged and whether the accused was in a position of trust or authority in relation to the complainants. Proof that the acts alleged occurred necessarily raises the issue of the credibility and reliability of each complainant. The Crown further argues the evidence of each complainant and the third party, P.S., is highly probative with respect to the mens rea of the sexual exploitation offences under s. 153(1.1.) of the Criminal Code.

[3] It is argued the probative value of the totality of the evidence in relation to the issues in this trial and in the context of this particular case, outweighs the potential prejudice in admitting the evidence as similar fact. The Crown’s argument focused on the evidence of an ongoing pattern of conduct by Mr. Belanger and the circumstances surrounding the alleged offences, as probative evidence from which inferences may be drawn regarding the issues in this case.

[4] This application was brought at the end of Crown’s case prior to the accused being put to his election. The defence did not call any evidence on the voir dire with respect to the admissibility of the discreditable conduct evidence of P.S.

[5] The defence argues, although there is no issue as to identification nor is there any argument as to actual collusion, there are insufficient similarities between the accounts provided by each complainant and P.S. There is not the degree of distinctiveness or specificity required for admissibility in the context of this case. It is argued that the prejudice in admitting the argued similar fact/discreditable conduct evidence would significantly outweigh the probative value.

[6] As stated in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 55, similar fact evidence is presumptively inadmissible:

[55] …the onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

EVIDENCE

[7] As noted above, the accused offered no evidence on the application. The Crown relies on the indictment, viva voce evidence of the complainants, the viva voce evidence provided by P.S. on a voir dire and the exhibits tendered.

[8] The evidence with respect to the proposed similar facts is as follows:

Testimony of S.A.

[9] S.A. was born on […], 1993. She first met the accused, Michael Belanger, when she was 11 years old in grade 6 and attending the after-school program run by the YM/YWCA at Connaught Public School in Ottawa. Mr. Belanger was a program counsellor. S.A. believed that he was approximately 29 years old at that time.

[10] When she was in grade seven, S.A. asked Mr. Belanger if she could become a volunteer at the after-school program. Mr. Belanger was enthusiastic. No interview or resumé was required. At that time Mr. Belanger had more of a lead role as program supervisor. He was the authority figure, the one to make decisions and to whom S.A. reported.

[11] When she was 15 years old and in grade 9, S.A. became a paid employee of the YM/YWCA at the Connaught after-school program. Again, it was Mr. Belanger who offered her the job without an interview or resumé. He continued to be program supervisor. S.A. considered him her boss and in charge.

[12] S.A. continued as a paid employee of the after-school program until the end of grade 12 when she was 17 years old.

[13] S.A. testified that from the time she was a participant and volunteer, Mr. Belanger always treated her as “the favorite of the kids”. She felt special and spent most of the time with Mr. Belanger at the program. In addition, he began attending family dinners at her home every Tuesday evening. He developed a close relationship and rapport with her parents and two younger sisters. He babysat the three girls from time to time and was invited to dinner parties by her parents. The entire family attended Mr. Belanger’s wedding in May, 2008. S.A.’s younger sister E.A. was the flower girl.

[14] Once S.A. became a paid employee Mr. Belanger began to invite to her to attend “staff meetings” after work at Daniel O’Connell’s Pub on Wellington Street. Although she was underage, and the youngest of the staff members, Mr. Belanger would buy her beer.

[15] On one occasion when she was 15 years old, S.A. became intoxicated at one of the “staff meetings”. At the end of the night she was alone with Mr. Belanger who complimented and flirted with her. He offered to walk her home and reassured her that “it would be fine”.

[16] As they were walking towards S.A.’s home, Mr. Belanger suggested they go into the lobby of an apartment building on Wellington Street to get warm. They began discussing more personal issues. Mr. Belanger talked about his sexual history and asked S.A. about her experiences. As they were sitting on the step in the lobby, Mr. Belanger tried to kiss S.A. She raised her right hand to block him. Mr. Belanger pulled away, and broke eye contact. S.A. felt guilty and apologized for denying him a kiss.

[17] After the attempted kiss, S.A.’s relationship with Mr. Belanger changed from a “special friend” to having more of a “teacher-student” dynamic. Their conversations centered around personal topics and sexual history. S.A. explained her “so called problems” with sex and relationships and Mr. Belanger provided advice as to the action she should take or at times what he would like to do with her. He continued to be her boss and supervisor at the after-school program.

[18] Approximately a month after the attempted kiss in the lobby, Mr. Belanger drove S.A. home from a staff meeting and parked down the street in his jeep. The conversation was again regarding sexual history. S.A. observed he was rubbing his penis. He then leaned over and kissed her on the lips. She felt trapped because she was in the car and had nowhere to go.

[19] Another incident occurred when she was 16 or 17 years old in grade 11 or 12. At the end of a staff meeting at Daniel O’Connell’s, after consuming alcohol, S.A. was again alone with Mr. Belanger who offered to walk her home. On the way home, she and Mr. Belanger stopped at a picnic table in Hintonburg Park. As was the pattern, Mr. Belanger initiated a conversation regarding sexual history, and asked S.A. about her sexual experiences. He asked what she was doing, what she was not doing, and indicated what she should be doing, and why. He asked if she was masturbating and what would she like to do with her boyfriend. S.A. responded aggrandizing her sexual experience. Mr. Belanger made her feel she had to prove something and had to respond.

[20] While sitting on the picnic table and discussing sexual matters, Mr. Belanger made a comment that any boy would be lucky to touch her boobs. He would want to touch her boobs and would do so if she wanted. She tried to remain neutral. Mr. Belanger then said he had a “half chub” and “did she want to see it”. She indicated no. Mr. Belanger undid his pants, pulled out his penis, took S.A.’s hand and placed it on top of his penis. After about a minute he stopped holding her hand on his penis. He assured her that it would be o.k. S.A. felt betrayed and uncomfortable.

[21] After the incident at the park, the conversations became more aggressive. Mr. Belanger expressed a desire to go further. S.A. felt scared and ashamed and did not tell anyone what was happening. Mr. Belanger told her not to tell and indicated “your father would kill me.”

[22] In addition to the staff meetings, Mr. Belanger had parties at his house where staff would be invited. They would play a game called “Rock Band” and alcohol would be available. At times he would invite her to his house alone for “fun times” as he had the house to himself. During this time Mr. Belanger continued to be an authority figure and S.A.’s boss at the after-school program. He was someone she trusted, and he continued to offer her advice of a sexual nature. S.A. estimated that there were many conversations of a sexual nature, estimating between 10 and 40.

[23] After the park incident, S.A. testified there were numerous instances of sexual contact between her and Mr. Belanger. He would touch her breasts; get her to straddle him; he would dry hump on top of her; get her to touch his penis and to give him a “blowjob”. Those incidents normally took place after a staff party which either began at Daniel O’Connell’s Pub and ended at Mr. Belanger’s home or took place at his home. S.A. and Mr. Belanger were often alone at the end of the evening. S.A. indicated when she gave Mr. Belanger a blowjob, he would reach into his pants pull out his penis, place his hand on the back of her head and push her head down to his penis.

[24] S.A. recalled an incident where, after the usual pattern of kissing and dry humping, Mr. Belanger pulled out his penis, pushed her head down, she gave him a blowjob and he gave her a choice as to whether he would “finish” on her face, breasts or stomach. She chose her stomach.

[25] On another occasion, again after a staff party at Mr. Belanger’s house and the usual pattern of sexual contact, Mr. Belanger invited her upstairs to have sex. She indicated that would be too much for her.

[26] S.A. was aware Mr. Belanger was married and asked him how his wife would feel about what was happening. Mr. Belanger reassured her his wife was fine with what was going on and in fact had suggested a threesome at some point in time.

[27] S.A. testified about an incident that occurred with Mr. Belanger in a storage closet at the Connaught Public School after-school program. Mr. Belanger indicated there was something interesting in the storage room and led her through the doorway. She went in first and he followed her. He led her to the wall by using both his hands on each of her arms and pushing her so that she had to take steps backwards. He then pressed his stomach against her front. She felt she could not move. Mr. Belanger was looking down at her and she could feel his breath. After approximately 30 seconds to a minute he stopped, said something about getting back and they left the storage room. This happened during regular working hours of the program when she was a paid employee.

[28] S.A. indicated during examination-in-chief, the sexual contact and sexualized conversations, including emails between them continued until she was 17 years old when she left her job at the Connaught after- school program and began to attend the University of Toronto.

Testimony of C. L-K

[29] Ms. L.-K. was born on […], 1989. She first met Mr. Belanger when she was about 11 years old and attending Camp Otonabee, a day camp run by the Ottawa YM/YWCA. Mr. Belanger was a camp counsellor. Ms. L.-K. had been and continued to be a camper every summer thereafter.

[30] Mr. Belanger constantly called her his “favorite”. He gave her preferential treatment and privileges. He told her she was “special” and continued to compliment her throughout her summers at camp between the ages of 11 and 15 while he was a camp counsellor. C.L.-K. enjoyed the special attention.

[31] When Ms. L.-K. was 16, she began working as a paid employee at the day camp. During the summer she transferred to the overnight camp as a camp counsellor. Mr. Belanger was director of the day camp and acting director of the overnight camp that summer. He continued to treat her as special and his favorite.

[32] While she was working at the overnight camp during the summer of 2006, Mr. Belanger invited her over to his cabin at approximately 10:00 or 11:00 p.m. to watch a movie. Although Ms. L.-K. was worried about leaving her campers, Mr. Belanger reassured her everything “would be fine”.

[33] Ms. L.-K. testified she was alone with Mr. Belanger and fell asleep sitting beside him on the couch. When she woke up her head was on his lap, his pelvis was moving and his hand was touching her hair. When Ms. L.-K. looked at Mr. Belanger his penis was out. He told her to put it in her mouth. She said no but he put his hand on the back of her head and pushed her down towards his penis. She put his penis in her mouth and felt the sensation of him ejaculating. She stood up and was crying. Mr. Belanger hugged her and said words to the effect of “I love you”. “Don’t tell anybody”; “I care about you”. She left his cabin.

[34] A couple of days later Mr. Belanger invited her to go for a walk. He indicated he knew she was upset and they should talk. They walked to a picnic table in the field and sat down. Mr. Belanger began complimenting her indicating he wished she was older or he was younger. Had they been the same age she would be the kind of girl he would marry. He loved her. These comments were confusing to Ms. L.-K. and she got up to leave. Mr. Belanger took her arm and pulled her in. She felt his penis was hard. He held her tightly and then put his hand down her pants underneath her underwear and said many of the same things: I love you, you’re my favorite. He indicated not to tell anyone about what happened. She did not report these incidents.

[35] At the end of the summer in 2006, Mr. Belanger encouraged Ms. L.-K. to become a staff member at the Connaught after-school program where he was a supervisor. She was hired by Mr. Belanger without an interview. In 2007, he appointed her as his assistant supervisor. Ms. L.-K. continued to work in the program and to work at the camp in the summers.

[36] Ms. L.-K. also attended “staff meetings” after work on Fridays at Daniel O’Connell’s Pub. The first time she ever went to Daniel O’Connell’s was when she was 17. Mr. Belanger brought her beer and she became intoxicated.

[37] If Ms. L.-K. and Mr. Belanger were alone at the end of a staff meeting at the Pub, the topic would always come back to her personal life or his personal life, how was it going with her boyfriend, what was happening. Ms. L.-K. testified Mr. Belanger’s comments that she was his favorite continued while she was an employee at the after-school program.

[38] Ms. L.-K. was aware Mr. Belanger was married and attended his wedding in 2008. Her mother knew Mr. Belanger, liked him and respected him. She was eager to attend the wedding, bought a gift and attended with C.L-K.

[39] Mr. Belanger told Ms. L.-K. that his wife did not mind and in fact approved, of his sleeping with others.

[40] Ms. L.-K. testified that on one occasion at an after-work staff party at Daniel O’Connell’s Pub she was very intoxicated and was dancing near Mr. Belanger who kissed her.

[41] At times Ms. L.-K. attended staff parties at Mr. Belanger’s home where they would drink and play “Rock Band”. On one occasion when both she and Mr. Belanger had been drinking, he indicated he would give her his bed and would come up later to be with her. He stated his wife would not care because “she wants us to have an open relationship” and “knows that I care about you.” Ms. L.-K. testified she got visibly angry but later wrote him an apology note so he would not hold a grudge, which he had a tendency to do, and so things would be O.K. at work on Monday.

Voir Dire

Testimony of P.S.

[42] P.S. was born on […], 1991. When she was a high school student at Lisgar Collegiate in grade 9 or 10 she was in charge of picking up her six or seven year old sister E.S., at the after-school program at Connaught Public School ,where Mr. Belanger was the supervisor. She believed he was in his early to mid-30’s.

[43] Mr. Belanger told her he had noticed her picking up E.S. and “out of the blue” one day he offered her a job at the after-school program. He indicated he had something open and she would be a good fit. There was no application required, no resumé provided and no interview. P.S. was surprised and told Mr. Belanger she would think about it as she already had a job as a cashier. After a few days, she accepted Mr. Belanger’s offer. She began working as a counsellor at the after-school program in late spring or early summer of 2007 when she was 16. Mr. Belanger ran the program and was the supervisor and facilitator. He was the respected authority for the children and for the staff.

[44] P.S. worked as a counsellor for the program until the end of June 2007. Mr. Belanger then offered her a continuing position in the summer at MacSkimming Summer Camp run through the YM/YWCA. She accepted and became a full-time camp counsellor for the month of July, 2007.

[45] P.S. testified that while she was employed at the after-school program Mr. Belanger began making sexually suggestive comments to her.

[46] She testified that usually the staff met after work on Fridays to talk and have beers at Daniel O’Connell’s Pub. This was part of the staff “after work culture”. P.S. had a clear, distinct memory of the first time she attended. Mr. Belanger encouraged her to come and assuaged her concerns. He indicated she looked older, was with older people and would get served. During the after-work staff gatherings at the bar, Mr. Belanger would often veer towards increasingly personal comments and share information about his personal sex life.

[47] On one occasion in June 2007, only Ms. S. and Mr. Belanger were left at the end of the day so she assumed they would not be going to the pub. However, Mr. Belanger indicated they could still go. They went to O’Connell’s and shared about three pitchers of beer. P.S. testified she became increasingly drunk. As on other occasions, he began talking about sex. Mr. Belanger commented that her breasts looked good in the shirt she was wearing; he liked the way she looked and stated that when he hired her, he was hoping to have sex with her. P.S. felt overwhelmed. She refused his offer of a ride and walked home alone.

[48] When P.S. got home, she called her boyfriend and told him what had happened. Her boyfriend’s mother suggested P.S. make notes. After refreshing her memory with her notes, P.S. indicated the incident took place on June 1, 2007 at approximately 6:30 p.m. Mr. Belanger began speaking about his frequent sexual encounters at camp and stated, “if you had been at that camp, I would have nailed you so fast.” He stated he knew he was going to have problems “when I hired you because I have always felt attracted to you”. He further indicated if she was free during the day and wanted to hang out they could. He could please her like she had never been pleased before and stated, “if you have sex tonight I know you will think of me”. He made more comments regarding her boyfriend which centered on her being young and inexperienced. He stated he could offer her more sexual pleasure than her boyfriend.

[49] Ms. S. continued to work at the after-school program but felt uncomfortable. Mr. Belanger continue to make flirtatious comments and comments about how she looked. The sexual innuendos continued while she worked at the MacSkimming camp during July 2007.

[50] P.S. related an incident when she was in a supply closet getting supplies for activities. Mr. Belanger came in and grabbed her by the waist by putting one hand on her left hip firmly. He stared at her intensely in what appeared to her to be a lustful manner. P.S. felt shocked, a little nervous and did not return his gaze. He let go and she left the supply closet. No words were spoken.

[51] On another occasion, while working at MacSkimming camp, Ms. S. accepted a ride home from Mr. Belanger. He pulled into the area in front of her parents’ home and made a point of mentioning his girlfriend was out of town that weekend if she wanted to come over. Again P.S. felt very uncomfortable.

LAW AND ANALYSIS

[52] There is a presumption that evidence relating to an accused’s disposition or propensity is inadmissible. However, exceptions to this rule arise when the probative value of similar fact evidence outweighs its prejudicial effect. Similar fact evidence becomes admissible when the Crown demonstrates on a balance of probabilities that the evidence is relevant and probative to an issue at trial and where its probative value outweighs it prejudicial effect. See R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, R. v. Handy, supra. and R. v. MacCormack, 2009 ONCA 72

[53] The Supreme Court of Canada provides the following outline of considerations as to the admissibility of similar fact evidence:

a. The probative value of the evidence:

i. identification of the “Issue in Question”

ii. strength of the evidence including the potential for collusion

iii. similarities and dissimilarities between facts charged and similar fact evidence considering:

a) proximity in time,

b) extent of similarities in conduct,

c) number of occurrences of similar acts,

d) circumstances surrounding or relating to similar acts,

e) distinctive features unifying similar acts and

f) intervening events.

iv. strength of the evidence that the similar acts occurred.

b. Assessment of the potential prejudice:

i. moral prejudice,

ii. reasoning prejudice.

c. Weighing up probative value versus prejudice.

R. v. Shearing, supra

R. v. Handy, supra

R. v. B. (C.R.), supra

[54] In R. v. Minister, 2012 ONSC 3506, the court noted:

[10] In R. v. B. (C.R.), supra, the Supreme Court of Canada notes that Canadian jurisprudence rejects the category approach to the admission of similar fact evidence while at the same time maintaining an emphasis on the general rule that evidence of mere propensity is inadmissible, emphasizing the necessity that such evidence possess high probative value in relation to its potential prejudice. The Court states at para. 24:

24 …evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.

[11] The Court goes on to consider the 1982 Supreme Court of Canada decision in Sweitzer v. The Queen, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, where McIntyre J., speaking for the Court, held at p. 953 that “it would be an error to attempt to draw up a closed list of the sorts of cases in which the principle operates”, concluding that the admissibility of similar fact evidence “will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission whatever the purpose of its admission”. Subsequent cases have all affirmed the same approach.

[12] In R. v. L.B., 1997 CanLII 3187 (ON CA), [1997] O.J. No. 3042 (C.A.), Charron, JJ.A., as she then was, speaking for the Court noted at para. 43:

43 …

It is equally difficult to identify when evidence of discreditable conduct depends for its relevance on something other than the disposition of the accused. Perhaps this difficulty should not be surprising since, as seen earlier, the relevance of this kind of evidence usually depends on the proposition that persons tend to act consistently with their character, or, in other words, that persons have the propensity to act in the manner in which they have acted previously…

[13] After referring to the Supreme Court of Canada’s decision in R. v. B. (C.R.), supra, Charron, JJ.A., as she then was, concludes that “it is clear from the above excerpt, and from many other cases as well, that propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission.” (para. 45). She goes on to say “it is propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence of discreditable conduct, which is prohibited.” (para. 46).

PROBATIVE VALUE

1. Issue in Question

[55] In the present case, the Crown argues for the admission of similar fact/discreditable conduct evidence with respect to the following central issues:

[1] whether the events described by the complainants actually occurred- the actus reus of the offences,

[2] the mens rea of the offence of sexual exploitation which includes pursuant to s. 153 (1)(b):

a. knowingly communicating with a child for a sexual purpose;

b.intending that the communication be received as an invitation etc, to physical contact or knowing that there was a substantial and unjustified risk the victim would receive the communication as an invitation etc. to physical contact.

R. v. Careen, 2013 BCCA 535

[3] whether Mr. Belanger was in a position of trust or authority in relation to the complainants.

[56] A determination of whether the events that form the basis of the charges actually occurred is necessarily connected to the credibility or truthfulness of the evidence of the complainants.

[57] The Crown argues that the evidence of the complainants and P.S. taken together indicates a pattern of behaviour or a modus operandi. Mr. Belanger would “groom” young girls and establish himself in a position of trust which facilitated him in committing the alleged sexual offences against the two complainants.

2. Strength of the Evidence including the Potential for Collusion

a) Collusion

[58] In this case, defence counsel acknowledges, although there is some evidence of direct or indirect contact between the complainants and P.S., and evidence of opportunity for collaboration, that is insufficient to trigger the court’s gate keeper function and to exclude the evidence. It is agreed there is no evidence of actual collusion.

b) Strength of the Evidence

[59] As noted above, there has been no defence evidence to this point in the trial. Nevertheless, the credibility and reliability of the complainants and P.S. were questioned in vigorous cross-examination by defence counsel.

[60] In R. v. Handy supra at para 134, the Supreme Court of Canada indicated that when considering the question of admissibility rather than ultimate fact, the proposed similar fact evidence need not be virtually conclusive of guilt. The threshold is whether the evidence is “reasonably capable of belief”.

[61] Although there may be some frailties in the evidence of the complainants and Ms. Smith, given the absence of evidence of actual collusion, the corroboration provided regarding the dates and locations of employment for the complainants and P.S., along with the fact that all witnesses withstood vigorous cross-examination, I find the evidence has met the threshold of being “reasonably capable of belief.”

3. Similarities/Dissimilarities

[62] Defence counsel argues it would be extremely prejudicial to the accused to admit the evidence of similar facts with respect to a pattern of conduct in this case. He argues there is nothing distinctive, unusual or unique about Mr. Belanger’s pattern of behaviour with the complainants and P.S.

[63] This is not an identification case where distinctive or unique features or “striking similarities” may be required but a situation where the evidence of a pattern of conduct is arguably evidence from which the court can draw inferences relevant to actus reus and to mens rea .

[64] As the Ontario Court of Appeal stated in R. v. Cresswell, 2009 ONCA 95 at para. 9:

We note as well that Handy states that admissibility is conditioned by the issue to which the evidence is directive. Here, the evidence went not to identity, where distinctive features amounting to a “signature” may be required, but rather to the actus reus, where less cogent similarities may render the evidence admissible.

[65] Similarly, in R. v. McCormack, Watt J.A. stated:

65 It is worth remembering that the search for similarities in the manner in which allegedly similar facts were committed is a question of degree. Like some other crimes, bank robbery may not show much diversity or distinctiveness, at least in the sense of a trademark or signature. Yet, the authorities allow the accumulation of significant similarities to satisfy the threshold for admissibility. Often, the probative force of an accumulation of circumstances exceeds the sum of its individual parts.

[66] In this case the Crown argues probative value may be derived from the context of the particular relationship between the complainants, P.S. and Mr. Belanger.

[67] This is a case where there is evidence of a pattern of similar behaviour. A distinction between the types of sexual activity and between the details of the sexual activity does not detract from considering the significant probative value of pattern of conduct similar act/discreditable conduct evidence.

[68] In R. v. L.B., supra, Charron, JJ.A., as she then was, notes:

37 In cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents. This stands to reason, particularly where there is nothing unusual about the sexual acts in question. In most circumstances, the fact that one complainant was kissed as compared to the other being fondled may not have a whole lot of significance. The allegations all pertain to acts of a sexual nature. In the same way, and again depending on the circumstances, the fact that one assault occurred in the basement as opposed to the other in the bedroom may not be of consequence on the question of probative value. The different location may simply be attributable to a different opportunity for privacy. For example, in B.(C.R.), the similarities that the majority found to be sufficiently compelling essentially related to the context within which the assaults occurred and to what was distinctive about that context:

The fact that in each case the accused established a father-daughter relationship with the girl before the sexual violations began might be argued to go to showing, if not a system or design, a pattern of similar behaviour suggesting that the complainant's story is true.

38 The question really boils down to one of human experience and common sense.

39 It is therefore important to consider not only the acts themselves but all the circumstances in order to assess what similarities, if any, exist between the discreditable conduct and the alleged offence, and whether these similarities give the evidence probative value. Dissimilarities have to be considered in the same light in order to determine whether or not they detract from the probative value of the evidence.

[69] The importance of considering all circumstances and the conduct of the accused is emphasized by the Ontario Court of Appeal in R. v. J. M., 2010 ONCA 117 :

91 The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is proferred and the other evidence in the case: Handy at para. 78. Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused's conduct in closely defined circumstances. What becomes necessary in such cases is a persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences: Shearing at paras. 48 and 50. The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred.

[70] In R. v. G. (M.A.), 1997 CanLII 3187 (ON CA), 1997, 9 C.R. (5th) 38, the Ontario Court of Appeal noted a number of features shared between independent allegations that were significant enough to undermine the likelihood of coincidence,

[e]ach [witness] described predatorial behaviour that was facilitated by the appellant’s exploitation of the student/teacher relationship. Like the complainant’s, the witnesses on the prior conduct described what could be regarded as a pattern of “grooming” by the appellant through his unorthodox displays of affection toward his students, and the atypical extent to which he cultivated personal relationships with his students by for example, encouraging them to regard him as their confidant.

[71] In R. v. Handy supra, the court provided a list of non-exhaustive factors that tend to connect the similar facts to the circumstances set out in the charge. These factors can enhance the cogency of the proposed evidence.

[1] Proximity in Time of the Similar Acts

[2] Extent to Which the Other Acts Are Similar in Details to the Charged Conduct

[3] Number of Occurrences of the Similar Acts

[4] Circumstances Surrounding or Relating to the Similar acts

[5] Any Distinctive Feature(s) Unifying the Incidents

[6] Intervening Events

[72] In R. v. Shearing at para. 60, Mr. Justice Binnie noted the following:

The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion. At an excessively macroscopic level of generality, on the other hand, the drawing of similarities may be too facile. Where to draw the balance is a matter of judgment.

[73] In R. v. J.W., the Ontario Court of Appeal noted at para 49 that the admissibility of similar fact evidence is not a numbers exercise. The Court states:

The question was whether the respondent’s conduct with C.K. was indicative of a situation-specific pattern of behaviour, making it more likely that he had engaged in the same conduct with J.C. In the context of this case, the fact that the Crown did not present more witnesses was irrelevant.

[74] It is necessary to consider the similarities and dissimilarities in the circumstances surrounding the allegations of the complainants and P.S. in the context of this case. In that regard I note the following:

(1) Proximity in time of the similar acts.

[75] In this case there are overlapping time periods. The sexual offences with respect to C.L.-K are alleged to occurred when she worked at the YM/YWCA summer camp in August, 2006. She continued her relationship with Mr. Belanger through 2007. P.S.’s interaction with Mr. Belanger and his conduct towards her took place in the late spring and early summer of 2007. The alleged sexual offences with respect to S.A. took place over a three-year period from November 2008 to September 15, 2011 when she was 15 to 17 years of age. The evidence indicates no gap in time. Mr. Belanger engaged in ongoing similar behaviour with respect to the complainants and P.S.

(2) Similar Details

[76] The similarities in the evidence regarding Mr. Belanger’s pattern of behaviour can be listed as follows:

(1) Both complainants met Mr. Belanger when they were 10 or 11 years old. P.S. was 15 years old. However, all three were young in relation to Mr. Belanger’s age at the time. He was in his 30’s.

(2) All three met Mr. Belanger in the context of his employment at the after-school program or camp, run by the YM/YWCA. Mr. Belanger had a role in obtaining employment for all three without an interview or the necessity of a resume. Mr. Belanger offered P.S. a job after seeing her pick up her sister at the after-school program. She testified he offered her a job “out of the blue”, indicated he had an opening and she would be a good fit. Again, no application was required.

(3) All three were paid employees at the Connaught after-school program and reported to Mr. Belanger as the person in charge. C.L.-K. and P.S. both worked at camps run by the YM/YWCA where Mr. Belanger was a supervisor.

(4) All three young women indicated they attended “staff meetings” at Daniel O’Connell’s Pub after work, where, although they were underage, Mr. Belanger bought them beer.

(5) Both complainants and P.S. described being made to feel “special” by Mr. Belanger. S.A. and C. L.-K. in particular indicated he told each one of them she was his “favorite”. They received special attention and special privileges.

(6) He complimented all three young women about their appearance, how they looked, what he would like to do with them. He commented on S.A.’s “boobies” and P.S.’s breasts. He told C.L.-K. he wished she was older and he was younger and said she was the kind of girl he would marry.

(7) All three young women indicated conversations regarding sex and their boyfriends including what they should do with their boyfriends and what he would do if he was the boyfriend. Mr. Belanger complimented them and engaged in sexualized conversations. P.S. recalled Mr. Belanger indicating that when he hired her he hoped to have sex with her. He also made comments regarding her breasts and other sexual comments while he was her supervisor.

(8) S.A. ultimately considered her relationship with Mr. Belanger to be like that of a student/teacher. He provided sexual advice and indicated how she could please her boyfriend sexually.

Ms. L.-K. described her relationship as evolving into a type of father/child relationship. Mr. Belanger continued to compliment her on an ongoing basis and indicated he loved her.

(9) All three young women recall Mr. Belanger referring to his wife or girlfriend. Mr. Belanger told both S.A. and Ms. L.-K. his wife or girlfriend would not mind him having other relationships. S.A. recalls Mr. Belanger indicating his wife would agree with their relationship and would like to have a threesome at some point. He told C.L.-K. that his wife did not mind him sleeping with others and wanted an open relationship. In the summer of 2007, Mr. Belanger told P.S. his girlfriend was out of town so she (P.S.) could come over.

(10) Mr. Belanger established a relationship with both S.A.’s family and Ms. L.-K.’s mother. Both S.A. ‘s family and Ms. L.-K.’s mother attended Mr. Belanger’s wedding in 2008. The relationship between Mr. Belanger and S.A.’s family was a longstanding one. He met Ms. L.-K.’s mother on a few occasions. Ms. L.-K.’s mother found him charming and friendly and was enthusiastic about attending his wedding.

(11) Both S.A. and Ms. L.-K. described giving Mr. Belanger “blowjobs”. Both S.A. and C.L-K., indicated that Mr. Belanger placed his hand on the back of the girl’s head and pushed it down towards his penis in order to have oral sex.

(12) S.A. described a number of other incidents of sexual contact between herself and Mr. Belanger while she was under 18 and employed by the “Y” with Mr. Belanger as her supervisor. C. L-K. described sexual contact when she was 17 years old at camp with Mr. Belanger as supervisor. P.S. described conversations regarding sex with Mr. Belanger but she resisted his advances and there was not sexual contact.

(13) Both S.A. and C.L.-K. described feeling guilty and ashamed. They did not tell anyone what was happening. S.A. indicated Mr. Belanger told her it was a secret, not to tell her parents and said, “your father would kill me”. C.L.-K. stated that, after both the cabin and picnic table incidents, Mr. Belanger said not to tell anyone.

(14) The timing of Mr. Belanger’s conduct in relation to the age of the young women is similar. The ongoing and more significant sexual conduct outlined by S.A. began after she was hired at the after-school program full-time and began going to “staff meetings” at Daniel O’Connell’s Pub. This occurred when she was 15 years old and continued until she was 18. The conduct with respect to Ms. L.-K. began when she was 17 years old. The sexual comments made to P.S. and the sexual inuendoes towards her began when she was 16 years old.

(15) S.A. described an incident that occurred in the storage room at Connaught Public School during the after-school program when Mr. Belanger grabbed her; she stepped back against the wall and Mr. Belanger was breathing heavily on her. P.S. described an incident that occurred with Mr. Belanger in the supply cupboard where Mr. Belanger grabbed her with one hand on her waist or hip area and stared at her intensely. The stare appeared to her to be lustful.

(3) Number of Occurrences

[77] S.A. described between 10 and 40 conversations of a sexual nature over time. She described numerous encounters and sexual contact between her and Mr. Belanger from the age of 15 to 18. C.L-K. described two specific incidents of sexual contact by Mr. Belanger at the summer day camp when she was 17 and a number of sexualized conversations and “compliments”. P.S. described three specific incidents of inappropriate sexual advances and sexualized conversations with Mr. Belanger when she was 16.

(4) Surrounding Circumstances and Distinctive Features

[78] As previously noted, the circumstances surrounding the alleged sexual offences described by the three complainants involved ongoing conduct and behaviour by Mr. Belanger over time which could be considered a pattern of “grooming” the three young women, while he was in a position of trust and authority.

(5) Intervening Events

[79] There were no intervening events.

PREJUDICIAL EFFECT

Assessment of Prejudice:

[80] In R. v. Handy, supra, the Supreme Court of Canada outlines the following factors as instructive in assessing prejudicial effect at para. 100:

a) Moral Prejudice which can be described as the risk of convicting the accused because he is a “bad person” rather than based on proof that he committed the offences: or b) reasoning prejudice described as the risk of distracting or confusing the trier of fact away from the task of deciding each charge one by one.

[81] In R. v. D. (L. E), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, Sopinka JJ. noted that the prejudicial effect of the similar fact evidence may have an impact on the trier of fact in three main ways:

1. “The jury, if it accepts that the accused committed the prior bad acts, may therefore assume that the accused is a bad person who is likely to be guilty of the offence charged;

2. The jury might punish the accused for past misconduct by finding the accused guilty of the offence charged; and/or

3. The jury might become confused as it concentrates on resolving whether the accused actually committed the similar acts, and substitute their verdict on that matter for their verdict on the charge being tried.”

[82] With respect to moral prejudice, two factors may influence and diminish these concerns. First of all, as in this case, where some of the similarities are regarding acts on the indictment, the concern is almost negated as the trier of fact has already heard the evidence. As was noted by the Ontario Court of Appeal in R. v. T.B., 2009 ONCA 177 at para. 33:

…[D]ismissal of the application to introduce similar fact evidence did nothing to address the probability of moral prejudice. The trial judge had already heard the evidence as part of the Crown's case. Thus, the trial judge's knowledge of evidence casting the respondent in a poor light was not eliminated by its exclusion as similar fact evidence.

[83] Secondly, if the similar facts are equally or less reprehensible the moral prejudice is significantly reduced.

[84] This is a judge alone trial with multiple counts on one indictment with two complainants. With respect to the evidence that was heard on the voir dire, the conduct alleged by Ms. S. involves acts which are equally or less reprehensible ie. the sexualized conversation at the bar and the sexual innuendos and flirtatious behavior afterwards, the grab in the storage room and Mr. Belanger’s invitation for Ms. S. to come over because his girlfriend was away.

[85] With respect to reasoning prejudice, the concern is diminished particularly in judge alone trials and in count to count scenarios as the evidence is already before the court. The potential for reasoning prejudice is “reduced significantly, if not to the vanishing point.” See: R. v. MacCormack supra, para. 69 and R. v. T.B., supra para. 26-31.

WEIGHING OF PREJUDICE AND PROBATIVE VALUE

[86] In balancing the probative value with the potential prejudice to the accused, the court must:

1. Assess the tendency of the evidence to prove in this case: 1) the actus reas of the sexual offences which necessarily includes the credibility of the witnesses the 2) mens reas of the offence of sexual exploitation, and 3) Mr. Belanger’s position of trust and authority, and determine the probative value of that evidence. In this case, the court must carefully review the evidence regarding Mr. Belanger’s pattern of behaviour as circumstantial evidence from which inferences can be drawn.

2. Determine the prejudicial effect of the evidence due to its tendency to prove matters which are not in issue or due to a risk that the evidence may be used improperly to prove a fact in issue.

3. Balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately heard against the risk that the trier of fact may use it for other improper purposes. The concern regarding the court using the evidence for other improper purposes is significantly reduced in a judge alone trial.

[87] In this case, the evidence of the complainants and P.S. as to Mr. Belanger’s pattern of conduct surrounding the incidents with Ms. A. and Ms. L.-K. is similar in many respects regarding the context within which the alleged sexual offences occurred. There are degrees of “connectedness” that make the evidence relevant and probative to consider in evaluating whether any given allegation is true. “…The force of similar circumstances defies coincidence or other innocent explanation.” Handy, supra, para 47.

[88] In the context of a count to count application in a trial being heard by a judge alone, the potential for prejudice is minimal. Given the nature of the evidence provided by Ms. P.S., of similar conduct and actions by Mr. Belanger that are arguably less reprehensible and the similarities of her evidence with respect to his pattern of conduct, I find the probative value outweighs the prejudicial effect with respect to her evidence as well.

[89] In conclusion, I find on a balance of probabilities that in the context of his case, the probative value of the evidence of the complainants and Ms. P.S. in relation to the actus reas of the offences charged, Mr. Belanger’s position of trust and authority, the mens rea of the offence of sexual exploitation, and the credibility of the complainants, outweighs its potential prejudice and it will be admitted as similar fact/discreditable conduct evidence.

Blishen J.

Released: February 28, 2020

COURT FILE NO.: 17-S45130

DATE: 2020/02/28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

Michael Belanger

Ruling: admissibility of similar fact evidence/discreditable conduct evidence

Blishen J.

Released: February 28, 2020