minicounsel

COURT FILE NO.: CR-1009/18 DATE: 2021-04-08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – W.L. Accused

COUNSEL: M. Ansell, for the Crown N.A. Xynnis, for the Accused

HEARD: February 8, 2021

DECISION ON APPLICATION TO PERMIT SIMILAR ACT EVIDENCE

CORNELL, J.

Introduction

1The accused, W.L., is charged with committing a sexual assault on M.M. when she was nine years old. He is also charged with using his hand to touch M.M. for a sexual purpose at a time when she was under the age of 16 years.

2On June 22 and 23, 2017, W.L. stood trial in connection with allegations that he sexually assaulted another nine-year-old female. On August 23, 2017, Thomas J. found W.L. guilty of sexual assault and sexual interference, the same charges that he faces in this proceeding. The trial decision was upheld on appeal. See R. v. L., 2019 ONSC 1812.

3This trial was completed on February 10, 2021. The Crown brought this application to permit similar act evidence from the first trial to be admitted as evidence in this trial. In my oral decision, I found that the Crown’s application should succeed. I now take this opportunity to provide the reasons for that decision.

Background

4In this case, it is alleged that the accused committed sexual assaults upon M.M. at the time that she was nine years old. The sexual activity consisted of the accused rubbing the complainant’s vagina. At the time of the sexual activity, the accused was in the position of a step-parent.

5In the trial before Thomas J., the complainant was also nine years of age. The sexual activity also consisted of rubbing the complainant’s vagina. The sexual activity took place at a time when the accused was babysitting the complainant.

6It is against this preliminary factual backdrop that the Crown’s application is to be considered.

Use of Similar Act Evidence

7It has been determined that if admitted, similar act evidence can be used for a wide variety of purposes.

8It has been held that similar act evidence is admissible to show a specific propensity to engage in sexual misconduct with certain types of complainants in certain types of situations: See R. v. Titmus, 2004 BCCA 633, R. v. R.B., (2005), 77 O.R. (3d) 171 (C.A.) at para. 11, and R. v J.A.H., 124 C.C.C. (3d) 221, [1998] B.C.J. No. 725 (C.A.), at para. 18.

9A useful summary of the purpose for which similar act evidence can be admitted is found in R. v. R.E.L., 2013 ONSC 6292, [2013] O.J. No. 5683, where, at para. 42, Quigley J. said:

It is well established that the evidence may be admitted for the purpose of showing the existence of such a common pattern of behavior (See R. v. M.B., [2008] O.J. No. 2358 (S.C.J.) at para. 39) or to demonstrate a specific propensity on the part of the accused, such as to use his status as a member of a family and the opportunity that may give him to molest underage family members in their own homes (see R. v. Finelli, [2008] O.J. No. 2242 (S.C.J.) at para. 27). As well, however, similar fact evidence may also be used to bolster the credibility of a complainant witness, particularly in a case like this of historical sexual assaults allegedly perpetrated decades earlier (see R. v Gelesz, [2002] O.J. No. 3883 (C.A.) at para. 2).

10This latter issue was also the subject matter of consideration by the Supreme Court of Canada in R. v. B. (C.R.), [1990] 1 S.C.R. 717, 55 C.C.C. (3d) 1. In that case, it was alleged that the accused had engaged in sexual misconduct with his biological daughter when she was between the ages of 11 and 13. The Crown sought to introduce evidence that the accused had past sexual relations with the 15 year old daughter of his common-law wife. In considering the use of similar act evidence with respect to corroboration and findings of credibility in cases of this nature, McLachlin J. stated at para. 41:

As noted earlier, the probative value of similar fact evidence must be assessed in the context of other evidence in the case. In cases such as the present, which pit the word of the child alleged to have been sexually assaulted against the word of the accused, similar fact evidence may be useful on the central issue of credibility.

General Principles

11It is well established that evidence of similar acts is presumptively inadmissible. It is necessary that the Crown indicate the issue to which the evidence may be relevant. The quality of the evidence and its similarity to the facts of this case must be such that “it would be an affront to common sense to suggest that the similarities were due to coincidence”. See R. v. B. (C.R.), at para. 27.

12The Crown must show, on a balance of probabilities, the evidence is relevant and that its probative value outweighs its prejudicial effect: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

Analysis

13The disclosure of the sexual activity by the child to her biological father did not occur until a few years after such activity had allegedly taken place. Given this passage of time, there is no forensic evidence in support of these allegations. There are no witnesses who are available to corroborate M.M.’s version of events. The Crown proposes to use the similar act evidence as a source of corroboration of M.M.’s testimony.

14Apart from this, the Crown has indicated that it wishes to make use of the similar act evidence to demonstrate a pattern of behavior on the part of the accused to establish a specific propensity to engage in this particular type of sexual activity with young girls of the same age, in very similar circumstances.

Test to be Applied

15At this stage, the test that I am to apply is whether there is some evidence that the accused was the person responsible for the assaults in the prior proceeding. I am satisfied that the prior conviction that was upheld on appeal, is sufficient to link the accused to the sexual assaults in the other proceeding as the prior conviction is “presumptively reliable” and prior verdicts have “a high degree of reliability”. See R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716.

16This now leads me to a consideration of relevance and probative value. In undertaking this exercise, it is necessary to consider the relevance of the similar act evidence to an issue in this case, the probative value of the evidence, the prejudicial effect of the evidence, and the balancing of the probative value against the prejudicial effect of the evidence.

17In undertaking this analysis, it is necessary that I consider the following factors:

Proximity in time of the similar acts It is alleged that the sexual assaults on M.M. took place between August 1, 2013, and April 30, 2016. It has been found that the alleged assaults on the other complainant took place in June or July of 2016. These dates are noteworthy as the accused was required to vacate the residence in which M.M. lived on April 8, 2016. After that date, the evidence indicates that the accused had no access to M.M. The conviction in the other proceeding makes it clear that following his eviction from M.M.’s home, he turned his attention to another child.
Similarity in detail There are many similarities. They consist of the following: a) the assaults in both cases involved females; b) the complainants were both nine years old; c) the sexual acts consist of rubbing the complainant’s vagina. No other sexual acts were alleged by either complainant; d) the assaults occurred on more than one occasion. In this case it is alleged that the assaults occurred three times. In the previous case, the complainant indicated that the assaults happened about five times; e) the assaults in both cases took place while the complainant was lying down on a bed. In this case, the accused entered M.M.’s bedroom and required her to lie on her bed while the assault was conducted. In the previous case, the complainant was required to lie on the accused’s bed during the course of the assaults; f) the circumstances surrounding the sexual assaults were identical. In this case, the accused was babysitting M.M. during a period of time when M.M.’s mother was absent from the home. In the previous case, the accused was babysitting from approximately 3:30 p.m. until 5:30 p.m. after he had picked the complainant up from day camp; g) the assailant was known to both of the victims. In this case, the accused stood in a step-parent role. In the previous case, the accused had previously been involved in a romantic relationship with the complainant’s mother. After that romantic relationship had ended, the relationship continued as friends with the result that the accused was entrusted to babysit the complainant from the time that day care ended until the complainant’s mother had finished work; h) both young complainants identified the accused as the perpetrator; i) in each case, the complainants told the accused to stop, but he did not; j) in both cases, the accused was in a position of trust when he exercised control over the complainants by virtue of the fact that he was to babysit the complainants.
Dissimilarities In this case, M.M. was required to remove her clothing and underwear at the time that the rubbing occurred. In the previous case, it was found that the rubbing occurred over the clothing, but there were occasions when the accused’s hand went down her pants and there was skin-to-skin contact.
Distinctive Features Unifying the Incidents The distinctive features include the identical age of the complainants, the specific sexual activity that consisted of rubbing the complainant’s vaginas with no progression of such sexual activity, as well as the fact that all of the sexual assaults took place while the complainants were required by the accused to lie on a bed.

Collusion

18At the previous trial, evidence was given by the complainant that she had told a number of friends “a little bit” about what had happened to her while she was at Keisha’s house. She listed a number of friends including someone named M. No surname was provided.

19M.M. admitted during the course of cross-examination that the complainant in the other proceeding is her best friend and that she sees her each day at school. When she was asked whether or not she had ever discussed these events with her friend, she said that she didn’t think so and that she didn’t remember. Based upon the evidence available to me, I conclude that there is no basis to find that the complainants engaged in collusion. Mere opportunity, absent more, is insufficient to establish collusion. See R. v. H.(D), 2017 ONCA 258.

Probative Value

20I am satisfied that the similar act evidence is relevant and highly probative of the issues raised in this case.

21I believe it was Binnie J. who said, “If you win the lottery once, you are congratulated. If you win the lottery twice, you are investigated.” In my opinion, the fact that the sexual acts complained of are virtually identical and occurred in very similar circumstances where both of the young complainants identified the accused as the perpetrator, removes the prospect of coincidence.

Prejudice

22It has been acknowledged that the introduction of similar act evidence necessarily involves propensity reasoning. This in and of itself is insufficient to preclude the introduction of similar act evidence. It is the moral prejudice associated with such evidence that is of concern, that is to say, that there is a potential for an inference of guilt based on “bad personhood”.

23Apart from that, reasoning prejudice can lead to confusion and distraction.

24This is a judge alone trial. As judges, we are often called upon to disregard evidence that may have been tendered or to use evidence for a limited or specific purpose. In view of this, I am satisfied that I will be able to avoid the dangers associated with moral and reasoning prejudice.

The Weighing Exercise

25The evidence in this case is highly probative of the main issue in these proceedings. As discussed, the similarities are significant, including certain distinctive and unique similarities. We have the fact of a prior conviction which has established beyond a reasonable doubt the accused’s guilt in the prior proceeding. When I consider all of these factors and balance the probative value against the prejudicial effect of the similar act evidence, I am satisfied that the probative value of the evidence outweighs its prejudicial effect.

Conclusion

26I am satisfied that there is a sufficient degree of similarity between the acts and that they were likely committed by the same person. In making this determination, I have considered the manner in which the acts were committed and not the evidence of the accused’s involvement in each act. I have therefore reached the conclusion that the probative value of this evidence outweighs the prejudicial effect. Accordingly, I find that the similar act evidence is admissible.

The Honourable Mr. Justice R. Dan Cornell

Released: April 8, 2021