WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RYAN RAMROOP
Respondent
K. Ginn, for the Crown
W. Caven, for the Respondent
HEARD: October 15, 2021
Ruling on Similar Fact Application
HEALEY J.
1Ryan Ramroop has been charged with three counts of sexual interference involving three sisters: E. A. and S., all of whom are the daughters of his former girlfriend. There are additional charges with respect to the eldest, E.; invitation to sexual touching and choking while committing a sexual assault.
2There is almost exactly four years between the ages of the oldest and youngest of the three complainants. At the time that the allegations were first disclosed by the complainants in 2019, E had just turned 13, A. was almost 10 and S. had turned 9 two months earlier.
3The respondent lived with his former girlfriend and her daughters from the summer of 2015 until his arrest on October 22, 2019 due to a complaint made by E. to the police.
4The complainants’ parents were separated during the times in question, and they lived with each parent on a rotating week-about basis. At all relevant times, the complainants’ mother was employed as an educational assistant during the school year. The complainants always attended the same school once they were of school age, although not necessarily the school at which their mother was employed.
5The Crown brings an application to have the evidence of each of the three complainants admitted as similar fact evidence on the other counts.
6Similar fact evidence is presumptively inadmissible, therefore a trial judge must ensure that she properly exercises her gatekeeping function by ensuring that the preconditions for admissibility have been met. The admissibility of similar facts must be established on balance of probabilities. As part of the gatekeeping function, the trial judge must be satisfied, on a balance of probabilities, that the similar fact evidence is reliable and that it is not tainted by collusion: R v. B.(C.), 2003 CarswellOnt 22 (Ont. C.A.), at para. 39.
7The applicable legal principles have been set out in R. v. Handy, 2002 SCC 56 and R. v. Shearing, 2002 SCC 58 and R. v. Tsigirlash, 2019 ONCA 650. The onus is on the Crown to establish on the balance of probabilities that the probative value of the evidence outweighs the potential prejudice. Probative value depends on the strength of the similar fact evidence, the issue in the trial to which the evidence relates, and the relative strength of the connections between the evidence across counts.
8Before admitting similar fact evidence, the trial judge must be satisfied that it meets the threshold of being reasonably capable of belief: Handy, para. 134. Further, the trial judge must examine the issue of collusion between the witnesses, whether occurring deliberately or innocently. In R. v Wilkinson, 2017 ONCA 756, at paras. 38 and 45, the court explained that actual collusion and unconscious collusion are to be treated the same way. Unconscious or innocent collusion can occur where a witness is influenced by hearing another person’s version of events or story, affecting their own recollection and perception of events.
9Crown counsel has clearly articulated the purpose for which she seeks the admission of the similar fact evidence, and the inference that the evidence is tendered to support. The purpose of its proposed admission is to prove the actus reus, and to enhance the credibility and reliability of each of the complainant’s evidence as it relates to that specific issue of whether the acts happened as alleged. The inference sought from the proposed evidence is that because of the similarities between the evidence of the three complainants, it is more likely that each of the complainants is telling the truth and that the respondent committed the acts as alleged by each complainant.
10The live issue in this trial is whether the alleged acts happened, and as a corollary, whether the allegations of the sisters have been impacted by discussions between them and within the family.
11It is important for the trial judge to ensure that the intended purpose of the similar fact evidence is not credibility broadly. That is not the case here; the Crown seeks to introduce it for permissible purposes that relate to the live issues identified. Cases in which similar fact evidence has been admitted for the same purposes articulated by the Crown include R. v. B. (R.T.), 2009 ONCA 177, at paras. 22-24; R. v. Titmus, 2004 BCCA 633, at paras. 4 and 6; R v. White, 2015 ABQB 601, at paras 38-41.
12Collusion erodes probative value because it weakens or even fully obliterates the ability to draw the intended inference. The trial judge is required to determine whether there is an air of reality, or evidential foundation, to the allegation of collusion. Where there is at least an air of reality to the allegation of collusion, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted by collusion: Handy, at para. 112; Shearing, at para. 41. If the Crown discharges this burden, the evidence is admitted. The trier of fact then determines the ultimate weight to be given to the similar fact evidence: R. v. W. (J.), 2013 ONCA 89; Shearing, at para. 42.
13In this case, I find that there is an air of reality to the proposition that there has been innocent collusion.
14The air of reality is created by the following evidence:
Before giving her first statement to the police on October 22, 2019, E. testified that other than a girlfriend at school, the only person that she had told what happened to her was her mother. However, E. gave two statements to the police, which were 15 months apart. Her second statement expanded her earlier report of the sexual touching significantly. In the intervening period, she talked with her mother and her sisters about these allegations on two to three occasions. It was sometime after she told her mother that she found out that the accused was also “doing stuff” to both of her sisters, but she could not remember how she learned that information. She also testified about a discussion at her father’s home, where he and all the girls were present. She also testified that she spoke about the topic of the respondent with her sister A. on one occasion, which she believed was when, but was not certain, she found out that “it” happened to A. also.
S. gave a statement to the police on December 13, 2019. Before doing so, she said that there was a time at her father’s home when he asked each of his daughters whether the respondent had “touched them inappropriately”. Both E. and A. were in the room at the time. They were asked the same question by their father and responded affirmatively. S. likewise answered affirmatively.
15This evidence is enough to raise a viable concern that specific occasions arose for the complainants to discuss the allegations with one another, opening the door for innocent collusion. It goes beyond mere opportunity for contact, which is insufficient to give rise to an air of reality to the allegation of collusion: R. v. W. (J.), at para. 37.
16However, without evidence that any of these discussions allowed for an exchange of information touching on the specifics of the acts complained of, or evidence disclosing collaboration about the allegations, innocent or otherwise, these incidents of contact on their own are not enough to prevent admissibility. The focus of the inquiry is concoction or collaboration, not contact: Handy, para. 111.
17In this case there is no persuasive evidence that the complainants discussed the specifics of their allegations with one another at any time; to the contrary, their evidence is that they did not. In such circumstances, courts have concluded that collusion is not established: Shearing, at para. 43; R. v. Torres, 2007 4027 at paras. 12-14.
18Their evidence on this topic is as follows:
At the time that E. disclosed the allegations to her mother, E. did not know whether the respondent was doing anything similar to her sisters E. testified that when she spoke with her sisters and her mother between her two statements, they did not specifically talk about what the respondent did. They spoke about what they would “do” in court. She admitted that they talked about what they were going to say in court, but that was limited to their impact statements and how they felt about the court process. She denied that they talked about how to present “their stories” in court or how everything that they would say in court needed to “match up”. She stated that they did not talk about the topic in any detail. Her mother did not say anything to the girls about what they were to say in court.
E. also recalled that during the discussion at her father’s home where all three sisters were present, they did not discuss the allegations. They talked about how the respondent scared them. It was her recollection that they did not talk about anything that they were going to discuss in court.
A. denied that there was ever a time when the family sat down together to talk about what the respondent had done. She testified that on the day that E. disclosed the allegations to their mother, they all went to their grandmother’s home instead of their own, where they remained. She described that the girls naturally had a lot of questions about why that was happening. Her mother explained that E. had talked to her about something, which required them to stay with their nana. Her mother did not tell them what E. had told her, but A. surmised that E. had disclosed something about the respondent and “that situation”. That knowledge led A. to disclose sexual touching by the respondent to her mother several days later, about which she gave a statement to the police on October 31, 2019. Her mother has never told her any specific details about what happened to E., nor has she talked to E. about anything specific that happened to her.
A. also had a discussion with her father a few days after she disclosed the touching to her mother. He already knew about it because her mother had told him before dropping the girls off at his house. When she spoke to her father, her sisters were not in the room. Her father and her stepmother drove her to her appointment to speak with the police on October 31, 2019, which would have been the next day (the exchanges between homes occurred on Wednesdays; and October 31, 2019 was a Thursday). Before going into the interview room, she had not spoken with her father or stepmother about what she was going to say. The only time that she talked to them was the previous day when her mother had dropped the girls off.
A. also testified that she never found out about allegations involving S. before A. gave her statement to the police. She testified that despite the sisters all being close, it is not something that she would “randomly go up and start talking to her siblings about”. She testified that she never talked to either of her sisters about what the respondent did to her. No one has ever told her what to say to the police or in court.
When S. discussed the occasion at her father’s house where he asked each of the girls whether the respondent had touch them inappropriately, she was not able to recall what she told him during that conversation other than answering him affirmatively. Her evidence was that she did not, however, tell her dad specific details about what had happened. Also, she could not remember anything that her sisters said on that occasion.
Before that discussion at her dad’s house, S. had not disclosed sexual touching by the respondent to anyone, including her mother. She has never told either of her sisters the specific details about how the respondent touched her, nor did either of her sisters at any time tell her the specific details of him doing anything to them.
Before S. gave her statement to the police on December 13, 2019, she agreed that there had been a “family meeting” about a week before where they all sat down and talked about the respondent. She agreed that during that family meeting they all talked about how they were supposed to tell the police that the respondent had been touching them. It is not clear on the evidence whether this occasion was a different occasion than the one held at her father’s house where he asked each girl intern about the sexual touching. There is no evidence from anyone else about a “family meeting” that would have included her mother. But by then, E. and A. had already reported their allegations to the police.
When she gave her statement, S. reported that her mother had told her that the respondent was no longer living with them because he was a “bad person”. She remembered at trial that her mother had told her that, but S. could not recall what her mother gave her as an explanation for why he was a bad person. Neither of her sisters told her that the respondent was a bad person.
No one told her what to say to the police. When asked whether anyone told her what to say in court, her evidence was that before leaving her house to come to the courtroom on the day that she gave testimony, E. had said “just be honest”.
Last, the complainants’ mother testified. Her evidence on this topic was largely unchallenged. She confirmed that only E. and A. had disclosed allegations of touching to her. She has never had a conversation with A. or S. about what E. told her, and she has also never had a conversation with E. or S. about what A. told her. She has had conversations with all three girls in which they discussed their feelings but not the details of what happened to them. She has never discussed the specific allegations of any of her daughters with the others. She has never heard the three girls talking among themselves about the details of what happened to them, although she readily agreed that this does not mean they have never done so.
19Overall, this evidence reveals that the conversations between the complainants involved discussing the impact of their disclosure, including the court process, rather than the specific acts forming the basis of their complaints. Just knowing that the respondent had done “things” to the other is not enough. There is no persuasive evidence that their recollections were influenced by their discussions. Despite a vigorous cross-examination, their evidence fell short of showing tainting resulting from their limited number of exchanges.
20This conclusion is also supported by the fact that, as will be covered below, there are many differences in the sexual acts reported by each complainant. If they were trying to make their allegations of touching sound similar, they did not succeed. Although there is some overlap, each describes varying sexual acts. The differing details revealed by each complainant strongly suggests that none was influenced by anything the other may have said.
21Defence counsel points out that S’s evidence at trial of the sexual acts involved now closely mirrors the fullest of E’s versions, which E. presented in her statement to the police on January 12, 2021. At the subsequent preliminary hearing, however, S. did not provide the level of detail that she ultimately did at trial. If S. is mimicking things discussed by E. “behind the scenes”, the earlier opportunity for S. to do that would have been when giving evidence at the preliminary hearing. That does not necessarily prove that S. has not discussed E.’s evidence with her, but it suggests that she did not. And E and S. still describe more differences than similarities in the actual sexual acts involved. A. describes only a single incident of sexual touching, in contrast to her sisters’ evidence of repeated and numerous incidents over a period of years.
22I would distinguish the evidence in this case from R v. R.B., 2018 ONSC 5482 (S.C.J.), a case relied on by the defence. In R.B. the application to admit similar fact evidence of the accused’s daughter and sister-in-law was denied because of the possibility of innocent tainting during family discussions occurring over a 30 to 40 year period. There was evidence showing that the aunt had disclosed some specifics of the assaults to the accused’s wife that may have been passed on to the daughter, and no evidence was adduced by the Crown of what “generalities” had been disclosed and to whom. In contrast, Crown counsel here has adduced evidence from each of the four witnesses about the conversations that were held, and the generalities discussed. Again, despite a thorough cross-examination, the evidence falls short of establishing that any of their discussions have led to cross-pollination of their recollection of events.
23The defence also argued that the development of the allegations over time is evidence of collusion. And even if the court does not accept that their changed and inconsistent evidence is telling of collusion, the defence submits that it is so unreliable that it should defeat the Crown’s application.
24There is no doubt that there has been a progression of disclosure by each of the complainants. They have promised to tell the truth on several occasions, yet did not provide the entirety of their experiences. Not only did they omit relevant details that came out in subsequent re-telling, but, with the exception of A, they changed or added important details. Such changes and omissions can often be signs of fabrication or unreliability in recollection. Or it can be something else. Each of the complainants explained their incremental and inconsistent disclosure in terms of their level of increasing “comfort” or desire to “tell the truth”. There is evidence from the videotapes admitted pursuant to s. 715.1 of each of the complainants showing a high level of discomfort at the time that they first disclosed their allegations to the police. E.’s evidence is that during her first interview she felt nervous and frozen and went into “panicky mode”. After watching her video in preparation for the preliminary hearing, she realized that she had omitted relevant information. A. was so shy that she had to write out what she wanted to say. Each provided explanations for why they came forward when they did. At trial, S. in particular displayed continued discomfort, frequently saying that she “did not want to talk about it” or “it’s uncomfortable to talk about” in response to the Crown’s questions.
25Inconsistencies in their various versions of events is not the only consideration for the court when conducting this admissibility inquiry. There are parts of their evidence that are externally consistent with other evidence in this case that is relevant to the issues of opportunity and their credibility. This “other evidence” was adduced from the complainants’ mother.
26In summary, despite the differing versions over time, their evidence cannot at this stage be said to be conclusively unreliable or the product of collusion, innocent or otherwise.
27The defence also argued that the complainants had a motive to concoct their allegations. That motive was to get the respondent out of their lives permanently, not because he was abusing them, but because he and their mother argued constantly and it upset all of them to see her so unhappy. The complainants’ mother confirmed that all three of them wanted the respondent out of their lives.
28It is correct that all the complainants testified that they wanted him out of their lives. Their reasons included how he treated their mother. But there are problems with linking that motive to their allegations. The first is that all the girls spoke with the police for the first time on October 22, 2019. Of the three of them, only E. disclosed sexual touching by the respondent. If that was their joint motive, or if they had decided to concoct the allegations for the purpose of removing the respondent from the household, it is more likely that all three would have reported touching. Further, it was E. and A.’s evidence that they knew that the respondent had been removed from the home and arrested after E. gave her statement to the police on October 22, 2019. Accordingly, it stands to reason that this would not serve as a further motive for E. at the time she gave her second statement on January 12, 2021, in which she provided further and different details about the sexual touching. Nor would it serve as a motive for A. to give a statement on October 31, 2019, at which time she disclosed the touching to the police. S. testified that by the time she gave her statement to the police on December 13, 2019, she was aware that the respondent had been “gone” for about two months and was no longer living with her mom. She testified that she understood that the respondent had been arrested by the police, and that she was “pretty sure” that he was in jail.
29The evidence related to possible motive does not persuade me that the complainants’ evidence is unreliable due to concoction or collaboration.
30For the purpose of this application, I find that the Crown has established on the balance of probabilities that the evidence is not tainted by collusion so as to render it inadmissible.
31There must be a “persuasive degree of connection” between the evidence across counts in order to be admissible. The degree of required similarity is assessed in relation to the issue sought to be established and must be evaluated in relation to the other evidence in the case: Shearing, at para. 48.
32Factors such as proximity in time and place, similarity in detail and circumstances, number of occurrences, and distinctive features unifying the occurrences will all be considered in determining whether the evidence has the requisite degree of similarity to the offence charged under the circumstances: Handy, at para. 82; R. v MacCormack, 2009 ONCA 72, at para. 53. However, the Ontario Court of Appeal has held that for sexual assault cases, “similar circumstances are often more compelling than similarities or dissimilarities in conduct”: R. v. S.C., 2018 ONCA 454, at para. 23; R. v. B. (L.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 37; and R. v. J.H., 2018 ONCA 245, at para. 21.
33I will proceed to review the evidence of each of the complainants, examining the similarities and differences and any other connecting or distinguishing circumstances.
34The acts complained of by E. are touching of her breasts and touching of her genital area and buttocks by the respondent with his hands and penis, both over and under her clothing. She complained of him forcing her to touch his penis with her hand, forced fellatio, and ejaculation. He ejaculated into his hand or a tissue. She said that he sometimes slapped or choked her, or told her to touch herself while he watched. He instructed her on how to touch his penis. At the end he would try to kiss her on the lips.
35A. described a single occasion of the accused touching her genital area with his hand, under her underwear.
36S. reported that the accused touched and licked her genital area, and placed his penis on her genitals. He also forced her to touch his penis and gave her instructions about what to do, telling her to move her hand up and down. At the conclusion he would tell her to go to the bathroom and wash her hands, although she did not know why.
37E. said that he would approach her from behind or while she was sitting on her bed. He would touch her when passing her on the stairs. He would also grab her by the wrist and drag her into one of the bedrooms. He would perform these acts while she was either standing or laying on the bed or couch, face up or face down, or kneeling on the floor.
38The incident with A. occurred in her bedroom while she was sitting on her bed.
39S. said that he would call her to his bedroom. He would lay her on his bed.
40S. was the only complainant to report that afterward, the accused would tell her to go to the bathroom to brush her teeth and wash her hands.
41E. reported that sometimes he would take off just his pants and other times he would be completely naked. Sometimes he told her to take her clothing off. S. reported that the accused would take off her clothes, or sometimes her clothes were on. The accused would sometimes take off his clothes. Sometimes he would walk up to her bedroom doorway and expose himself to her by being fully naked.
42E. said that the acts would occur in her bedroom, his bedroom or downstairs on the couch in the living room. A.’s incident occurred in her bedroom. S. said that all of these incidents occurred in the respondent’s bedroom.
43None of the complainants described vaginal penetration.
44While engaging in these acts the respondent would make remarks to E. about her appearance and his attraction to her. A. said that after he stopped, the respondent told her something that, at trial, she could not “get the right words to say” but it was about “my parts being dry or something”. S. said that the respondent would say things while she was touching his penis or when it was between her legs, but she could not remember what he said.
45E. said that this would happen in the morning after her mother left for work, or in the afternoon before her mother got home, or when her mother was otherwise out of the house. On one or two occasions it occurred when her mother was home but downstairs. A.’s evidence is that it happened in the afternoon when her mother was not at home. S. testified that it always occurred in the afternoon after school. The incidents never occurred when her mother was home.
46E. testified that these things would happen when her sisters were in their room or downstairs. A. testified that the incident that she reported occurred when her sisters were downstairs.
47E. said that the respondent would shut the door to the bedroom and turn off the lights. A. said that he shut the door but left it open “a little crack”, and her lights were already off because there was enough light coming in her window. S. said that the respondent would tell her to close the door each time. She could not recall whether the lights were on or off.
48During the time that the respondent lived with them they resided in two different townhouses. The first was referred to at trial as “the Co-op” and the second as “Dunsmore”. E. stated that the touching began at Dunsmore, after the respondent and her mother had been dating for about a year. A. said that the incident involving her occurred at Dunsmore. S. stated that the acts occurred at both the Co-op and at Dunsmore.
49For E., the touching began in the summer before she was going into grade 6. Although she suggested that that would have been in 2016, E. was going into grade 6 in the summer of 2017 and was 10 years old. A. said that she was in grade 3 when the touching happened, and it was the beginning of the school year. This would have been in 2017 and she would have been 7 or 8 years old. S. testified that the touching began before her 5th birthday, two weeks after the respondent moved into the family’s home, and that it never occurred in the summer.
50On the first occasion with E., her evidence is that she tried to resist but the respondent reacted with threats. A. stated that she forcefully told the respondent to stop and when she “aggressively” removed his hand, he acquiesced.
51E.’s testimony is that all of these acts happened on multiple occasions over the years in question. It was her evidence that the incidents occurred almost daily or every other day, but sometimes involved just the groping, other times the more involved acts occurred. Fellatio occurred at least once a week. S. testified that the incidents would occur almost every day when she was at her mom’s house.
52E. testified that the respondent threatened her by telling her that he would do things to her sisters if she did not comply. He also told her not to tell anybody or she would ruin his life, her mother would lose her job, and the girls would have to go to live with their father. A. said that the respondent did not threaten her or tell her not to tell anyone. S. described that he threatened her by telling her that if she did not do what he asked, he might hurt her mom or her sisters. He said this more than once.
53The defence argues that some of the circumstances described by Crown counsel in this case as connecting or similar features should not be considered on this similar fact application because they are characteristics of most, if not all, sexual assaults involving children: that the acts occurred when no other adult was around, and that the accused would seize an opportunity when the complainants’ mother was not at home. That submission does not accord with decisions from the Court of Appeal which confirm that the fact that the abuse occurred within a private family home while the complaints were isolated is a relevant connecting factor: R. v J.H., at paras. 19-21; R. v. S.C., at para. 24.
54The evidence of the three complainants reveals differences in the acts complained of, with some overlap. It also reveals differences in their ages when the acts began, and the time frame involved. It reveals some differences in place, with E. being the only one to complain that the assaults occurred on the couch, and S. being consistent that it always occurred in the respondent’s bedroom. E. was arguably the victim of more intrusive and violent acts than her sisters; choking in particular was not something reported by A. or S.
55The connecting features are significant. The complainants are sisters who went to the same school, and kept the same schedule, except that E. had a later bedtime. With a couple of incidents recalled by E., all the touching occurred when the complainants’ mother was away from the house. It all occurred within the privacy of the family home. The vast majority of it occurred in a bedroom, behind a closed door or one open “a crack”. The complainants all name the respondent as the perpetrator, a person who was in a position of trust to provide care when their mother was not home. They were all vulnerable to him. For two of them, their silence was secured through threats. All of the complainants (except for E. for possibly less than a couple weeks) were pre-teens. All described that he touched them on the skin. Lack of penetration is common to all.
56This is a persuasive degree of connection sufficient to satisfy this court that the “objective improbability of coincidence” of three sisters within the same family concocting similar complaints against the respondent has been established. The similarities between the evidence of the three complainants strongly supports the inference sought to be established by the Crown, which is that it is more likely that each of the complainants is telling the truth that the respondents committed the acts as alleged.
57I now turn to whether the prejudicial effect of the evidence is outweighed its probative value. There are two possible sources of prejudice to an accused in admitting similar fact evidence: moral and reasoning prejudice. Moral prejudice refers to the risk that the trier of fact may infer guilt from general disposition or propensity. Reasoning prejudice relates to the concern that introducing similar fact evidence may confuse or distract the trier of fact from the charges that are before the court: R. v. S.C., at para. 15.
58The law makes clear that the risk of either of these leading to a wrongful conviction is reduced when the case is tried by a judge sitting alone, and where the similar acts are restricted to the other counts in the indictment: Tsigirlash, at para. 38; MacCormack, at paras. 56, 68 and 69., R v. W.(J), at para. 57; and R v. B(RT), at para. 26. In this case the defence concedes that the risk of prejudice is low. Nonetheless, these factors must be considered.
59There is no risk of reasoning prejudice. The Crown brought this application on notice after calling all of its witnesses and this is the only time that the admissibility of the evidence will be argued. Trial judges are assumed to know the law and the proper and improper uses of evidence, including not assigning greater weight to similar facts than warranted in the circumstances of the case. Similarly, trial judges are capable of directing themselves against prohibited lines of reasoning, such as convicting on bad character. Moral prejudice, as was held in R. v. B(RT), is not a significant risk in a judge-alone trial: at para. 33.
60On a final balancing, the prejudice is extremely low. The proposed similar fact evidence has probative value for the purpose of assessing whether the respondent committed the acts in question, and has cogency for assessing the credibility and reliability of each of the complainant’s testimony. The probative value of admitting all of the complainants’ evidence across counts for these purposes is significantly greater than the risk of prejudice, and accordingly, will be permitted.
HEALEY J.
Released: October 20, 2021