Court File and Parties

OSHAWA COURT FILE NO.: CR-19-15128 DATE: 20210301 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – M.D. Defendant/Respondent

Counsel: Greg Black, for the Crown Kevin Kaczmara, for the Defendant/Respondent

HEARD: December 7, 8, 10 and 14, 2020

RESTRICTION ON PUBLICATION Pursuant to s. 486.4, of the Criminal Code, no information that could identify the complainant or a witness in this proceeding shall be published in any document or broadcast or transmitted in any way. This judgment complies with this restriction so that it can be published.

Reasons for Decision

DE SA J.:

Overview

[1] The accused is charged with (1) sexual assault, (2) sexual assault with a weapon, (3) unlawful confinement, (4) possession of a weapon for a dangerous purpose, and (5) procuring a person to provide sexual services. The charges pertain to an alleged assault against K.G. involving the use of a firearm (the Durham Allegations).

[2] The Crown has brought an application to admit similar fact evidence/discreditable conduct which is the subject of a separate set of charges in Toronto (the Toronto Allegations). The allegations in Toronto relate to a different complainant, Ms. H.M., and also involve the accused’s possession of a firearm.

[3] The defence opposes the admission of the evidence. The defence takes the position that the evidence is prejudicial and outweighs its probative value. The defence argues that the accused’s dealings with Ms. H.M. will simply blacken the character of the accused. Given the significant differences in the circumstances of each incident, the probative value/relevance of the Toronto Allegations is limited.

[4] The Crown also seeks an order permitting Ms. H.M. to testify remotely by means of video technology (Zoom) pursuant to s. 486.2 and/or s. 714.1 of the Criminal Code. While the Respondent consented to this request for the pre-trial motions, the Respondent opposed this request for the trial proper.

The Durham Allegations

[5] During the early morning hours of September 17, 2018, the Victim, Ms. K.G., was walking in the area of Tuxedo Court in Toronto.

[6] At this specific time Ms. K.G.’s intention was to perform sex work in exchange for money.

[7] At approximately 2:00 a.m. a van pulled up near to her. The van had two male occupants. These males were previously unknown to Ms. K.G. One of the two males in the van was Mr. M.D., the accused.

[8] Ms. K.G. got into the van. The van proceeded to drive to the underground parking garage located at the accused’s apartment building – 4010 Lawrence Avenue East in Toronto.

[9] The accused exited the vehicle briefly and attended the apartment building only to return a few moments later. This was captured on the building elevator surveillance video. The unidentified male occupant of the van then exited the vehicle. This left the accused alone with Ms. K.G.

[10] The accused and Ms. K.G. then proceeded to have a discussion about sexual acts being performed in exchange for money. The accused advised Ms. K.G. that there was no need to worry about the money. However, Ms. K.G. asserted that she wanted the cash upfront before any sexual services were rendered.

[11] In response to Ms. K.G.’s assertion that the money was to be paid upfront the accused reached into the back area of the van and obtained what appeared to be a handgun. The accused then proceeded to point the handgun at Ms. K.G.’s face and stated something to the effect of, “How’s this for money?”. He then forced Ms. K.G. to provide him with oral sex.

[12] After the oral sex the accused had Ms. K.G. exit the van with him and they proceeded to a car that was parked nearby in the underground parking garage. The sexual assault continued in the second car. The accused penetrated Ms. K.G.’s vagina with his penis.

[13] The accused then brought Ms. K.G. outside to a greenspace behind his apartment building. He then spoke to Ms. K.G. about working with him out of a hotel. During the course of conversation the accused asked for Ms. K.G.’s address and she provided him with the address of [redacted for publication] in Oshawa.

[14] The accused and Ms. K.G. then returned to the car and the accused began driving Ms. K.G. east towards Durham. At some point the accused stopped the vehicle and had Ms. K.G. perform oral sex again.

[15] Ms. K.G. then advised that she needed to use the washroom. The accused took Ms. K.G. to a Tim Horton’s in Ajax. Ms. K.G. entered the Tim Hortons and proceeded to the women’s washroom. The accused followed her to the women’s bathroom door and then proceeded to wait directly in front of the women’s bathroom door for a few moments before he proceeded back to the cash to make an order. This was captured on surveillance.

[16] When Ms. K.G. exited the women’s bathroom, she proceeded to the customer seating area. The accused and Ms. K.G. then sat down at a table and had a conversation.

[17] After a few minutes Ms. K.G. then proceeded to get up from the table and walked towards the restaurant cash. She then proceeded to cause a large disturbance with the hope that the Tim Horton’s staff would call the police. They did. Initially the accused stood by and watched Ms. K.G. push over stacks of dishes. The accused then decided to abruptly exit the Tim Horton’s on his own. Ms. K.G. remained at the Tim Horton’s.

[18] Ms. K.G. subsequently provided a statement to police about what the accused had done to her.

[19] On September 18, 2018, the Durham Regional Police Service released a bulletin to other police services about this investigation. In addition to information about the offence, the bulletin included still shots of the accused that had been extracted from the Tim Horton’s surveillance video.

[20] On November 1, 2018, the Respondent, was arrested and charged with (1) sexual assault, (2) sexual assault with a weapon, (3) unlawful confinement, (4) possession of a weapon for a dangerous purpose and (5) procuring a person to provide sexual services.

The Toronto Allegations

[21] On September 24, 2018, the accused was arrested in Toronto in relation to a separate and unrelated investigation.

[22] The victim in this separate matter is Ms. H.M. At the time of these offences Ms. H.M. lived in the same apartment building as the accused: [redacted for publication] in Toronto.

[23] Ms. H.M. was having car troubles and the accused offered to help her with the repairs. He asked for and received keys for Ms. H.M.’s vehicle.

[24] On September 12, 2018, the accused went with Ms. H.M. to the Canadian Tire and purchased a battery and a battery booster for her car on a credit card he obtained in Ms. H.M.’s name. He also purchased various additional items, including a PlayStation card.

[25] On September 18, 2018, after replacing Ms. H.M.’s battery, the accused told Ms. H.M. that she needed to pay him $400 for his time. Alternatively, she could have sex with him to satisfy the debt. At the time the accused was in the underground parking garage at 4010 Lawrence Avenue East.

[26] Ms. H.M. was surprised by the request. She refused the request for sex and advised him that she had a husband. She asked for her keys to be returned, and that the unnecessary items that were purchased by the accused to be given back.

[27] Shortly after this exchange, the accused asked Ms. H.M. to reach inside a bag that he was carrying. The Respondent then grabbed her hand and forced it into the bag. Ms. H.M. felt what appeared to be a gun. It was wrapped in a blue plastic bag. The accused told her that it was a gun and that he did not joke around. The incident ended with both parties going their separate ways. Ms. H.M. went to the police.

[28] Ms. H.M. was interviewed by the police regarding the events. When asked if she felt threatened, Ms. H.M. said: “He didn’t threaten me, he just put the hand like, see what I have?”.

[29] When asked if she observed the gun, Ms. H.M. stated that it was in a plastic bag, so she did not observe it. She felt it and knew it to be heavy, it was metal, and he told her it was a gun. He had it in a satchel bag.

[30] On September 24, 2018, the accused was arrested for the offences in Toronto. The offences include: extortion (s. 346), intimidation (s. 423), assault (s. 266), carrying a concealed weapon (s. 90), use imitation firearm (s. 85) and possess weapons dangerous (s. 88). At the time of his arrest the Toronto Police Service seized a replica handgun from the Respondent’s apartment.

Analysis

[31] Evidence of discreditable conduct is presumptively inadmissible. Generally, this exclusion prohibits character evidence to be used as circumstantial proof of conduct: See R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57. As was stated by Sopinka, J. at para. 31:

The principal reason or the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning. R. v. B.(C.R.), 1990 SCC 142, [1990] S.C.J. No. 31 at para. 56.

[32] Similar fact evidence only becomes admissible where 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 its prejudicial effect. R. v. Handy, supra, at para. 101.

[33] The initial assessment of similar fact evidence is about relevance and materiality. Probative value is assessed by:

1. Identifying the issue at trial to which the proposed similar facts are said to be relevant;

2. Identifying the factors that connect or distinguish the similar fact evidence from the facts alleged in the charge and the degree of similarity required to make the proposed evidence probative and admissible; and

3. Considering the strength of the similar fact evidence.

[34] The admission of the similar fact evidence must do more than simply blacken the character of the accused which, as a by-product, enhances the credibility of the complainant. What admissibility requires 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.” R. v. J.M., 2010 ONCA 117, at para. 91.

[35] As Doherty J.A. explained in R. v. Batte, 49 O.R. (3d) 321, at paras. 100-102:

It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for who he or she is. The criminal law's reluctance to permit inferences based on propensity reasoning reflects its commitment to this fundamental tenet: McCormick on Evidence, 5th ed., p. 658; R. Lempert and S. Saltzburg, A Modern Approach to Evidence, 2nd ed. (West Publishing Co., 1983), at p. 219.

The criminal law’s resistance to propensity reasoning is not, however, absolute. There will be situations in which the probative force of propensity reasoning is so strong that it overcomes the potential prejudice and cannot be ignored if the truth of the allegation is to be determined. The probative force of propensity reasoning reaches that level where the evidence, if accepted, suggests a strong disposition to do the very act alleged in the indictment.

[36] In Handy, the Supreme Court of Canada listed factors connecting the similar facts to the circumstances set out in the charge to include,

• Proximity in time of the similar acts;
• Extent to which the other acts are similar in detail to the charged conduct;
• Number of occurrences of the similar acts;
• Circumstances surrounding or relating to the similar acts;
• Any distinctive feature unifying the incidents;
• Intervening events; and
• Any other factor which would tend to support or rebut the underlying unity of the similar acts.

[37] The similarities do not need to amount to a “signature” for similar fact evidence to be admissible. Nor is the assessment a mathematical calculation. The assessment is qualitative, not quantitative. [2] As explained in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60:

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 may be exaggerate 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. See also R. v. J.W., supra, at para. 49.

[38] Once a court determines the probative value of the evidence, it must then be weighed against the prejudicial impact of the evidence in question.

[39] Moral prejudice can concisely be explained as the risk that the trier would engage in a forbidden chain of reasoning to infer guilt based on reliance of the prohibited inference or ‘bad personhood’. Reasoning prejudice refers to concerns about confusing or distracting the trier with similar fact evidence, concerns about undue consumption of time, and concerns about undue weight being placed on the evidence in question.

[40] The Crown takes the position that the Toronto Allegations demonstrate a pattern of conduct and a propensity to use a firearm to obtain sexual favors from women. According to the Crown, the similar fact evidence in question is probative of the following issues:

a) The accused possesses the specific propensity to coerce sexual activity from women with the assistance of a specific item/tool. This tool used to coerce both women is described as a gun/firearm.

b) The accused is a person who has access to, possesses, and actively utilizes, an item described as a gun/firearm.

c) Rebuts any suggestion that may be made by defence that the incredibly vulnerable Durham Victim, Ms. K.G., is mistaken about the item possessed by the Respondent during their interaction.

d) It is confirmatory of the credibility of Ms. K.G., given the improbability that two complainants, in two separate incidents, would coincidentally provide narratives that have such substantial similarities; i.e. proof of the actus reus of the event.

[41] The courts have found that a “situation-specific propensity” can permit for the admission of similar fact evidence in cases where the accused has shown a pattern of conduct.

[42] For example, in R. v. C.K., 2015 ONCA 747, the Court found that the similar fact evidence was capable of raising the inference that the accused had a situation-specific propensity in relation to young girls. The court explained at para. 39:

The present case is very similar to the decision in R. v. B. (C.R.), 1990 SCC 142, [1990] 1 S.C.R. 717, at p. 739, admitting similar fact evidence that demonstrated a pattern of behaviour in which the accused established a parental relationship with young girls before engaging in sexual activities with them. The similar fact evidence in this case was capable of raising the inference that the appellant had a situation-specific propensity to sexually exploit young males over whom he exerted financial or emotional influence. [Emphasis added]

[43] A similar conclusion was reached in R. v. S.C., 2018 ONCA 454. In that case, the trial judge also admitted similar fact evidence of the accused’s prior convictions. She found that the proposed similar evidence was sufficiently similar to raise the inference that the appellant had “situation-specific propensity to seek out young females connected by family relationships”. See also R. v. D.S.F., [1999] O.J. No. 688 (C.A.), at paras. 19 and 25.

[44] The Crown also relies on the example outlined in R. v. Batte at para. 102 where Doherty J.A. commented:

For example, if an accused is charged with assaulting his wife, evidence that the accused beat his wife on a regular basis throughout their long marriage would be admissible. Evidence of the prior beatings does much more than suggest that the accused is a bad person or that the accused has a general disposition to act violently and commit assaults. The evidence suggests a strong disposition to do the very act in issue -- assault his wife. In such cases, the jury is permitted to reason, assuming it accepts the evidence of the prior assaults, that the accused was disposed to act violently towards his wife and that he had that disposition on the occasion in issue. The existence of the disposition is a piece of circumstantial evidence that may be considered in deciding whether the accused committed the alleged assault.

[45] While I recognize situation-specific propensity has warranted the admission of similar fact evidence in other cases, in my view, the general facts sought to be admitted here are not sufficiently material/relevant to warrant their admission.

[46] First of all, I do not agree with the Crown that the evidence indicates that the accused was threatening Ms. H.M. with a view to obtaining sex. The accused’s reference to the gun was not obviously related to the request for sex. The offer of sex was made in exchange for the work the accused performed in relation to Ms. H.M.’s vehicle.

[47] The evidence pertaining to the credit card and unrelated purchases/credit card fraud also have no meaningful relevance to the allegations.

[48] I agree with the defence that much of the evidence sought to be tendered by the Crown has no apparent relevance to the charges. In my view, much of the proposed evidence would unnecessarily shift the focus away from the allegations themselves and may actually confuse the jury.

[49] Accordingly, I will not permit the other evidence surrounding the accused’s proposition for sex, or the evidence of the credit card purchases to be tendered.

[50] That said, I am prepared to permit the Crown to call the witness, Ms. H.M., to testify regarding her observations/perceptions of what was believed to be a firearm on September 18, 2018. The Crown can also call evidence regarding Mr. M.D.’s utterances regarding the object in the bag.

[51] The evidence has significant probative value on the issue of the accused’s access to and possession of a firearm. Ms. H.M. witnessed the accused’s possession of a firearm one day after the assault was perpetrated on Ms. K.G. with a firearm. The accused’s possession of a firearm is a highly contentious issue at trial and is an element of various offences in the indictment. Accordingly, the materiality/probative value of the evidence is substantial.

[52] The prejudicial effect of this particular evidence is minimal given that the Durham charges themselves allege that the accused had possessed a firearm. This firearm witnessed by Ms. H.M. is asserted by the Crown to be the very firearm that was used on Ms. K.G. to obtain sexual favors.

[53] I recognize the concerns raised by the defence that there are risks with calling Ms. H.M. and that evidence regarding the surrounding events will potentially be elicited inadvertently.

[54] I expect the Crown’s examination to be focussed with a view to eliciting evidence strictly pertaining to what was witnessed by Ms. H.M. to be in the bag, and the accused’s references to its contents. I am prepared to allow the Crown to direct the witness to focus on this issue alone.

[55] My understanding is that there is not a great deal of contention regarding the contents of the bag and the accused’s possession of an imitation firearm. It may be that any risks of examination/cross-examination can be averted by working out an agreement on the relevant facts. I will leave that to the parties to address between themselves.

[56] On the issue of hearing from Ms. H.M. by Zoom, I have heard the evidence on the issue and have considered the defence submissions. What was evident from her testimony is that Ms. H.M. would not likely be available to attend in person given her childcare responsibilities and the current pandemic.

[57] Given her current issues regarding childcare and the situation with COVID-19, I will permit Ms. H.M. to testify via Zoom. Should the circumstances change regarding the ongoing pandemic, I am prepared to reconsider the issue.

[58] I thank counsel for the able submissions.

Justice C.F. de Sa Released: March 1, 2021