COURT FILE NO.: 4685/19

DATE: 20210105

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. C.L.

BEFORE: The Honourable Justice Robert B. Reid

COUNSEL: C. Lapointe, Counsel, for the Crown, Applicant E. Gok, Counsel, for the Accused, Respondent

HEARD: in writing dated June 10, 2020

decision on admissibility of similar fact evidence

[1] The applicant seeks an order as to the admissibility of proposed similar fact evidence.

[2] Evidence of similar facts is presumptively inadmissible unless the court concludes that probative value of the proposed evidence outweighs the prejudicial effect. The Crown bears the onus of establishing that the evidence is admissible on a balance of probabilities.

[3] The respondent stands charged that he “between the 1st day of January in the year 2013 and the 16th day of December in the year 2017 at the City of Port Colborne in the Central West Region did sexually assault C.B., contrary to section 271, subsection (1) of the Criminal Code of Canada.”

[4] At the upcoming trial before a judge and jury, the Crown expects to call evidence about the relationship between the complainant and the respondent and the details of their sexual contact. Part of the Crown’s case is that the complainant lacked the ability to consent to the sexual contact as a result of her intellectual or developmental disabilities, so that the fact of the sexual contact alone will be enough to establish guilt.

[5] The evidence of the relationship and sexual contact may be offered by the complainant herself, although she may not testify because of her disabilities. Other witnesses are expected to testify about the times and places where the complainant and the respondent would be together under circumstances where sexual contact was either observed or could be implied. They will describe how she was seen under the influence of alcohol on some of those occasions, and how she may have been provided opioids or other drugs by the respondent.

[6] J. E. will be one of the witnesses for the Crown. In addition to other evidence to be offered by her as regards the respondent and his four co-accused, the Crown proposes that she be permitted to testify about her own contacts with the respondent which include disreputable conduct on his part of a similar nature to that which allegedly occurred between the respondent and the complainant.

Alleged Facts of the Offence:

[7] The complainant spent a significant amount of time with the respondent commencing in approximately 2014 until her apprehension in December 2017.

[8] From 2013, the respondent was renting a building in Port Colborne known as the “biker clubhouse” where several men would hang out and drink. He was apparently in charge or had some management responsibility. The complainant, her father, and her siblings would frequently attend the clubhouse.

[9] At the clubhouse, there were physical contacts between the complainant and the respondent. According to one witness, the respondent was observed to have been “overly friendly” with C.B. at the clubhouse. He would pick her up or she would sit on his lap and he would rub her all over her body including her breasts and thighs. The respondent was observed kissing the complainant on the cheek. He was observed taking the complainant into the bathroom of the clubhouse alone where they stayed for approximately 30 minutes.

[10] The complainant was provided with alcoholic drinks by the respondent to the point of intoxication. According to one witness, the respondent advised that the complainant stayed at his house overnight and that he had given her “pills”.

[11] A witness is expected to testify that she walked into the home of co-accused J.P.B. and observed the respondent and the complainant engaged in sexual activity.

[12] On March 19, 2020, J.E. gave a statement to the police to the effect that the respondent gave the complainant “downer pills” and that he would get the complainant “all messed up”. She advised that the complainant had attended the respondent’s residence as well as the clubhouse.

[13] Several witnesses told the police that they observed the respondent giving the complainant a ride in his personal vehicle. On return, she was observed to be under the influence of drugs or appeared more disheveled than usual and she always had beer or cigarettes even though she did not have the money to purchase them.

[14] One witness apparently observed the respondent offering the complainant money in return for oral sex and then observed her going behind a building followed by the respondent in his vehicle.

Proposed Similar Facts:

[15] J.E. will say that once or twice a week for several months when she was 22 or 23 years old, the respondent picked her up on the street in his personal vehicle. He gave her “downer” pills, and while she was drugged, would have non-consensual intercourse with her at his apartment, in the living room or bedroom. Afterwards, he would drop her off at her residence while she was still under the influence of the drugs.

Legal Framework:

[16] In general, evidence of bad character is inadmissible due to the significant risk of propensity reasoning. It is not appropriate for the trier of fact to infer guilt of the offence charged because the accused is a person of a certain character or disposition based on prior incidents of misconduct.

[17] However, in certain cases similar fact evidence is admissible if it bears on the specific propensity of the accused to act in a certain way, thus rebutting the presumption of inadmissibility where the probative value exceeds prejudicial effect. In the case of R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paragraph 42, the court observed that:

[T]he strength of the similar fact evidence must be such as to outweigh “reasoning prejudice” and “moral prejudice”. The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence. Although an element of “moral prejudice” may be introduced, it must be concluded by the trial judge on a balance of probabilities that the probative value of the sound inferences exceeds any prejudice likely to be created.

[18] Thus, to be admissible, the Crown must satisfy the court that the proposed evidence is relevant to some issue beyond disposition or character — that it pertains to a live issue in the case. Irrelevant evidence is inadmissible. Its probative value must outweigh any prejudicial effect.

[19] Once relevance is established, probative value must be reviewed based on the connectedness established between the evidence of similar facts and the offence charged. As set out in Handy at paragraph 76, the degree of similarity between the proposed evidence and the offence charged must be examined to determine whether the objective improbability of coincidence has been established. In this case, since the issue is not identity, the degree of similarity need not be highly distinctive, peculiar or unique.

[20] Next it is necessary to identify similarities in character, proximity in time, and frequency of occurrence since those elements bear on the improbability of a like result. How cogent is the evidence of similar acts in relation to the inferences the Crown seeks the trier of fact draw from it, and how strong is the proof of the similar acts? The potential for collusion can be analyzed at this stage.

[21] Then, after reviewing the probative value and the risk of prejudice, the court must balance the two to determine whether the Crown has satisfied its onus of proving that probative value outweighs prejudicial effect.

Analysis:

[22] J.E. will be a witness in any event and since her proposed similar fact evidence is not extensive, it is unlikely that, if the evidence is admitted, it will create any significant reasoning prejudice. Put more simply, the trial will not be lengthened, nor will the jury be confused with additional issues if the evidence is presented. Therefore, the focus of this analysis will be on the potential for moral prejudice.

Probative Value: is the evidence relevant?

[23] The Crown asserts that the proposed evidence is relevant to the prosecution’s theory that the respondent transported the complainant to his home, gave her non-prescription drugs and then in the privacy of his home committed sexual acts with her. Specifically, the issues to which the proposed evidence is relevant are:

a. establishing a pattern of conduct by the respondent supporting proof of the actus reus of sexual assault through a specific modus operandi;

b. supporting the reliability and credibility of other Crown witnesses as to the actions of the respondent involving the complainant; and

c. rebutting any suggestion of innocent explanation.

[24] The respondent disagrees with the Crown’s broad characterization of actus reus, preferring that it be restricted to the specific allegations of sexual activity between the complainant and the respondent as distinct from the actual intercourse identified in the proposed similar fact evidence. In my view, that is too narrow a view of the Crown’s case. If the Crown is successful in establishing that the complainant was not capable of consent, all the allegations of sexual contact between her and the respondent were non-consensual. Whether the forms of sexual contact were the same bears on the similarity of the evidence, discussed below, rather than relevance.

[25] The proposed evidence establishing a similar pattern of conduct clearly invites moral prejudice. The respondent is specifically identified as the type of person who would commit the offence alleged against the complainant based in part on his conduct with J.E. The presence of moral prejudice does not resolve the admissibility question since courts have permitted such evidence to be offered in appropriate cases.

[26] Reliability and credibility of witnesses is an issue in most cases. Offering the similar fact evidence on that point alone would invite moral and reasoning prejudice that would be difficult to avoid through a limiting instruction. However, if the “pattern of conduct” rationale for admission of the evidence is accepted as relevant to proof of actus reus, the evidence will also be peripherally relevant to the reliability and credibility issue as well as the issue of rebutting innocent explanation.

[27] I am satisfied that the Crown has established relevance of the proposed similar fact evidence in that it is offered to show more than simply that the respondent is of bad character — that he was generally disposed to commit sexual assault. If believed, the evidence may demonstrate that he had a repeated method of preparing for sexual assault on young women using incapacitating drugs.

Probative Value: is the evidence similar?

[28] Although a strong peculiarity or unusual distinctiveness underlying the events being compared is not necessary, the point of reviewing the proposed similar fact evidence for similarity with other evidence in the case against an accused is to determine whether there is an improbability of coincidence. That finding relates directly to the concern about moral prejudice.

[29] Comparing the evidence of the respondent as to the offence charged and the proposed similar fact evidence, there are more dissimilarities than similarities.

[30] The respondent is alleged to have plied the complainant with both alcohol and drugs, rather than with drugs alone as regards J.E. He engaged with the complainant at several locations: the clubhouse, her father’s residence, and the respondent’s own home. As to J.E., he only engaged with her at his home. Regular contact between the respondent and the complainant arose through the “clubhouse connection” as opposed to the respondent’s regular invitations on the street for J.E. to accompany him to his residence. Differences in time and frequency are set out below. He sometimes provided transportation to the complainant, but always did so with J.E. He was observed to have been engaged with the complainant in touching of a sexual nature and in sexual acts not including intercourse. Full intercourse was alleged by J.E. The complainant appeared by her actions to have been a willing participant although, as noted, the Crown intends to call evidence to show that she was not capable of consent. In analyzing similarity of conduct, it is the apparent willingness of the complainant which can be compared with the alleged unwillingness of J.E. to engage in sexual intercourse in the proposed similar fact evidence.

[31] A unifying feature common to both the alleged facts of the offence and the proposed similar fact evidence is that both the complainant and J.E. were said to have been provided with drugs in advance of sex by the respondent.

Probative Value: is the evidence cogent?

[32] Next it is necessary to identify similarities in character, proximity in time, and frequency of occurrence since those things bear on the probability or improbability of a like result. How cogent is the evidence of similar acts in relation to the inferences the Crown seeks the jury draw from it, and how strong is the proof of the similar acts? The potential for collusion can be analyzed at this stage.

[33] The statement provided by J.E. to the police was given when she was in custody following her arrest on a charge of assault with a weapon on her mother. There was no evidence that the statement was given in order to curry favour with the prosecution on the assault charge. There is no obvious lack of cogency on the part of J.E. Her evidence is reasonably believable.

[34] Although the ages of the complainant and J.E. are not established in the evidence, it appears by inference that they were both in their twenties when the alleged assaults occurred. The complainant had mental and developmental handicaps such that she operated as a person with a much lower chronological age, whereas J.E. had no such disabilities. The respondent was in his mid-70s at the relevant time.

[35] The Crown submitted that both women had drug dependencies. While the evidence concerning the complainant was to that effect, at most, it is possible to infer that J.E. was a regular user of drugs.

[36] The respondent submitted that an opportunity for collusion existed as between J.E. and two of the complainant’s sisters, J.B. and C.B.2, who will also be Crown witnesses. They were acquainted with one another and at one time J.E. lived under the same roof as the complainant. There was no evidence of actual collusion. Where collusion exists, it erodes the very reason that similar fact evidence can be probative, namely the unlikelihood of coincidence in the reporting of similar events. Where there is some evidence of actual collusion, the onus is on the Crown to satisfy the court on a balance of probabilities that the evidence of similar facts is not tainted with collusion before it can be admitted. However, as set out by the Ontario Court of Appeal in R. v. C. (T.), 2005 371 (ON CA), [2005] O.J. No 24 at paragraph 57, if the evidence amounts only to the opportunity for collusion, then the question whether the evidence was tainted is to be left to the trier of fact when weighing the similar fact evidence.

[37] The specific period during which the alleged sexual contacts between the respondent and the complainant occurred and the frequency of those contacts is not defined except that, according to the indictment, the offence occurred over the course of almost five years. By comparison, the respondent is alleged to have transported J.E. to his residence for sex one or two times per week over the limited period of two to three months.

Prejudicial Effect:

[38] Prejudice to an accused is not a result of the proposed evidence strengthening the Crown’s case. Rather, as noted, the key prejudicial effect of similar fact evidence is the danger that in determining the question of guilt or innocence, the trier of fact will apply moral prejudice, namely a finding that the accused is the type of person who is likely to have committed the offence based on other disreputable conduct.

[39] Transportation by the respondent of a woman (J.E.) to his residence, providing drugs to her, and then engaging in non-consensual sex is clearly conduct disreputable to him.

[40] If admissible, the jury could very well conclude that the proposed evidence supports an inference of guilt based on the respondent’s bad character in that he was disposed to sexual intercourse with younger women after providing drugs. The jury might jump to that conclusion without performing a careful analysis as to whether the evidence establishes a course of conduct linking the similar fact evidence to the circumstances of the offence. The danger exists notwithstanding the provision of a limiting instruction.

Weighing Probative Value and Prejudicial Effect:

[41] The court in this application must exercise a gatekeeper function through a ruling on admissibility.

[42] The proposed similar fact evidence is relevant. It is offered primarily to establish a pattern of conduct by the respondent: that he provided drugs to young women generally and then took advantage of their insobriety to engage with them in non-consensual sexual activities. The evidence of his alleged actions involving J.E. is designed to support similar allegations involving the complainant. The other areas of proposed relevance, namely to support the credibility or reliability of other Crown witnesses and to rebut any suggestion of innocent explanation are secondary.

[43] The proposed evidence may well have persuasive significance to the jury.

[44] The weakness in the proposed similar fact evidence is its lack of connectedness to the facts of the offence charged. There are differences in duration, location, frequency of transportation, use of drugs alone or drugs and alcohol, the type of sexual conduct, and willingness of the women to engage as between the respondent’s contact with the complainant and with J.E.

[45] Against that lack of connectedness is the common thread of providing drugs prior to sex.

[46] The analysis comes down to the key question of whether the Crown has satisfied its onus of establishing that the probative value of the similar fact evidence outweighs its prejudicial effect.

[47] It appears that the respondent operated regularly in an environment where drugs and alcohol were freely available, whether at the clubhouse, his residence, or elsewhere.

[48] The complainant was often seen to be intoxicated by drugs or alcohol, regardless of whether she was in the company of the respondent, and she was known to participate regularly with a variety of men in sex acts. The scenario is different from that of an unwilling subject whose resistance is weakened or who is incapacitated by the administration of drugs which is what the evidence of J.E suggests.

Summary and Conclusion:

[49] I am not satisfied that the improbability of coincidence has been sufficiently established by the Crown. That finding does not condone the alleged behavior of the respondent toward J.E. but does lead to a conclusion that the prejudicial effect of the proposed similar fact evidence significantly outweighs its probative value.

[50] For the foregoing reasons, the application is dismissed.

Reid J.

Date: January 5, 2021```