Court File and Parties
COURT FILE NO.: CR-17-M7918 DATE: 2022/10/21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – MOHAMAD BARKHADLE Accused
Counsel: James Cavanagh and Carl Lem, for the Crown Paul Lewandowski, for the Accused
HEARD: June 15, 16, 2020
Pre-trial Ruling on Similar Fact Application
k. phillips j.
1This is my ruling in respect to a similar fact application brought by the Crown.
2Mohamad Barkhadle is charged with first-degree murder. It is alleged that Mr. Barkhadle strangled R.M. in the course of sexually assaulting her on the night of March 11, 2017, contrary to s. 231(5)(b) of the Criminal Code, R.S.C. 1985, c. C-46.
3There is evidence that the cause of death was strangulation by compression of the neck. Additionally, there is evidence from which it could be inferred that R.M.’s death was part of the same transaction as a sexual assault upon her.
4The Crown seeks to adduce evidence of three occasions when Mr. Barkhadle allegedly choked women in sexual circumstances. The proposed similar fact incidents occurred both before and after the date of the alleged murder: in August 2011, in September or October 2012 and in May of 2017.
The Facts
5I consider the following facts to be available for the purposes of this application.
6R.M. was a single mother. She lived with her 2-year-old son in an apartment on the fifth floor of a six-storey building in Ottawa. She was 35 years old. She was a drug addict. Mr. Barkhadle was her drug supplier. She would occasionally pay for her drugs with sex.
7On March 11, 2017, following a somewhat heated text exchange between them, Mr. Barkhadle arrived at R.M.’s apartment building. Mr. Barkhadle was driven to the building by a man named Faysal Dahir. Cell phone extraction data indicates that the last outgoing call (or message) from R.M.’s cell phone was made at 11:28 pm on the 11th of March 2017. The call was made to Mr. Barkhadle just before he arrived at her building.
8Mr. Barkhadle arrived at about 11:30 pm. Security video shows R.M. meeting Mr. Barkhadle in the lobby, and that they then entered the elevator. They rode up together with a tenant named Raymond Castagner. R.M. was never seen alive again.
9On March 22, 2017, police found R.M.’s decomposing body in her bathtub. Her son was also in the apartment. The child had apparently survived by eating cereal, which was found scattered about the apartment, and drinking water from the running tap of the sink in the same bathroom where his mother’s body was discovered.
10During the night of March 11, 2017, a neighbour heard a bang or bangs from R.M.’s apartment. On March 12, 2017, this neighbour sent messages to friend that read: “i think her latest boyfriend hit her last night” and “all that banging was a fight between them last night”.
11The post-mortem examination revealed that R.M. had sustained “bilateral fractures of the superior horns of the thyroid cartilages” an injury caused by compression to the neck. Indeed, compression of the neck is said by anticipated expert opinion evidence to be the cause of death.
12R.M.’s cellphone was seized by police from her apartment. Mr. Barkhadle’s cell phone was also seized by police pursuant to a search warrant on March 31, 2017. Data was forensically extracted. Mr. Barkhadle’s cell phone contained 15 images of him and a completely unclothed R.M. engaged in sexual activity. The sexual activity took place in an area of the living room of R.M.’s apartment. The images were time-stamped between 23:44 on March 11, 2017, and 00:39 on March 12, 2017. The nature of the photo array, as well as things like facial expressions and hand gestures, suggest that R.M. was consenting to the sexual activity depicted in the photos.
13R.M.’s blood was found in the same area of the living room where the aforementioned photos show sexual activity taking place. A picture which had been on the wall was knocked down. A torn pair of R.M.’s panties were found in the same area. These underwear were submitted to the Center of Forensic Sciences (CFS), and semen/amylase was detected. Mr. Barkhadle could not be excluded as the donor of the DNA identified. While it is inaccurate to call this evidence a determinative “match”, the DNA analysis nonetheless has probative value in that it points in the direction of Mr. Barkhadle as the source of the semen. It is said that the likelihood of the DNA originating from Mohamad Barkhadle is 807 times greater than the source being a randomly selected individual from the same population.
14Police observed partial bloody footwear tread prints in the same area of the living room. Mr. Barkhadle’s boots were seized on April 12, 2017. The bloody footprints in the apartment show a similar tread pattern to that of Mr. Barkhadle’s boots. While no accidental characteristics exist to make a positive identification possible, Mr. Barkhadle’s boots cannot be excluded as having left the bloody tread prints on R.M.’s floor. The boots are similar in appearance to Mr. Barkhadle’s footwear as shown on the surveillance footage from R.M.’s lobby on March 11, 2017.
15Identification officers of the Ottawa Police Services took swabs from R.M.’s body. A swab taken of R.M.’s right fingernail clipping was analysed at the CFS. Mr. Barkhadle could not be eliminated as the donor of the DNA identified. Again, while it is inaccurate to call this evidence a determinative “match”, the DNA analysis nonetheless has probative value in that it points toward Mr. Barkhadle as the source of the biological material scratched up by R.M. It is said that the likelihood of the DNA originating from Mohamad Barkhadle is 695 times greater than the source being a randomly selected individual from the same population.
16On March 12, 2017, the day after Mr. Barkhadle’s attendance at R.M.’s apartment building, Mr. Faysal Dahir was recorded on security video attempting to use a RBC bank card belonging to R.M. at two RBC drive-through banking machines. The security video from the bank appears to show a passenger in Mr. Dahir’s car. This bank card had last been used by R.M. on March 11, 2017 at 16:53:27 hours. She used the card at a point of sale transaction to pay for liquor she had ordered delivered to her apartment building. This transaction took place in the lobby and was captured on security video.
17On May 24, 2017, Mr. Dahir provided a statement to police and advised that he had driven Mr. Barkhadle to R.M.’s apartment building on the night of March 11, 2017. Mr. Dahir dropped off Mr. Barkhadle outside, watched him enter the building and then left. Mr. Dahir said Mr. Barkhadle was drunk.
18Mr. Dahir advised that the following day Mr. Barkhadle contacted him. Mr. Barkhadle said he had a bank card. Mr. Barkhadle advised he knew the PIN for the bank card. Mr. Dahir saw that the card was not in Mr. Barkhadle’s name. Mr. Barkhadle suggested the two men deposit a cheque that Mr. Barkhadle had to the account associated with the bank card and then withdraw money from the account.
19Between 17:50 and 18:00 hours Mr. Dahir drove to two drive-through RBC banking locations, at 4300 Innes Rd. and 211 Centrum Blvd. Mr. Dahir tried to use the card three times. All attempts to withdraw cash were denied. After the third attempt the card was cancelled. Security video captured Mr. Dahir’s car at the ATM at both locations. The video appears to show a passenger in the front seat. Approximately 30 minutes after the last use of the card, police had dealings with Mr. Dahir and Mr. Barkhadle who were together in Mr. Dahir’s car.
20Before leaving the facts, I shall explain how I arrive to the view expressed above that there is evidence from which it could be inferred that R.M.’s death was part of the same transaction as a sexual assault upon her.
21When R.M. was discovered in the bathtub, she was naked except for a pair of shorts that were around one of her ankles, as if they had been pulled down but not all the way off. She had significant injuries to her face that would have bled when she was alive. On the couch in the living room was a substantial blood stain at the outer edge of the cushions at one end – roughly where the back of one’s knees would touch if sitting close to the arm rest. Immediately beneath that staining was a substantial amount of blood pooled on the floor. It would thus appear that before she was moved to the bathtub, R.M. lay prone on the couch for an extended period of time, bleeding from facial wounds.
22It was under the couch where R.M. laid bleeding that police discovered her panties. They were damaged so as to no longer be wearable. A thin band of material meant to sit over the hip, joining the front panel to the back, had been detached. In the circumstances, an inference is reasonably available that the underwear had been forcibly removed.
23Indeed, the evidence viewed in its totality suggests that the process by which R.M. became mostly naked was a violent one. As I say, her panties were apparently ripped off. Obviously, this act would have been done by someone aggressively intent on getting at what is underneath. Proximate to where the ripped-off panties were discarded, R.M. endured considerable blows to her face. It could reasonably be found that forcibly undressing a woman to the degree of exposing her privates all in the context of laying her out on a couch with blows to the head is a sexual assault as that offence is defined in R v. Chase , [1987] 2 S.C.R 293 (SCC).
24I will close this off by mentioning the evidence of consensual activity between Mr. Barkhadle and R.M. as captured in the pornographic photos. I see that as entirely irrelevant to the question of whether a sexual assault may have occurred at some point thereafter. First, the pulled down but not off shorts on R.M.’s ankle when she was discovered suggest that she got dressed to at least some degree after the photos were taken. Second, the idea that consent might have been present at some point because it was present before is twin myth reasoning and inappropriate. I have ruled on this area already in another pre-trial motion and need not go further.
The Proposed Similar Fact Evidence
25The Crown’s proposed similar fact evidence involves the reported experiences of three women. At the outset here, I will make clear that I do not consider it necessary to grapple with whether there is sufficient evidence linking Mr. Barkhadle to the alleged prior misconduct. It is plain and obvious in the circumstances that the proposed evidence meets the required threshold for that “linkage” question. The only one not already established at the full criminal standard is the allegation involving K.C.. That piece involves an allegation made by a complainant who had known the accused for months and is supplemented by hospital records and reasonably contemporaneous photographs which, in confirming injuries, serve as corroboration of the claims made. There is no air of reality to any suggestion of collusion. In my judgement, the three bodies of evidence are reasonably capable of belief.
A.A.
26What follows in respect of A.A. is captured on high-quality security video (no audio). As well, on February 3, 2012, Mr. Barkhadle pled guilty to attempted sexual assault arising out of the matter, so these facts have been admitted by him in another proceeding.
27On August 20, 2011, A.A. was walking down the hallway of her apartment building. As she walked past the elevator two women were getting on. Mr. Barkhadle, who clearly had been drinking, was on the elevator and as soon as he saw A.A. he got off. He immediately approached her and struck up conversation. By the couple’s body language and demeanour, it is clear that Mr. Barkhadle was attracted to her and that he was hitting on her. A.A., who had never met Mr. Barkhadle before, appears at best bemused. The pair were the only people in the hallway.
28After just a few minutes, Mr. Barkhadle offered A.A. $200 for sex. She said no and told Mr. Barkhadle that her husband would soon be home. She turned away from him. Mr. Barkhadle then grabbed A.A. in a choke hold, lifted her off her feet, covered her mouth to prevent her from screaming and began to drag her back into her apartment. A.A. resisted. After some time, a neighbour heard the commotion, opened his door and saw the struggle. The neighbour yelled at Mr. Barkhadle to let go. Mr. Barkhadle released A.A. and she fled into her apartment.
K.C.
29On March 21, 2018, K.C. spoke to police about a sexual assault and choking at the hands of Mr. Barkhadle. K.C. had previously advised police of this assault, but had not wanted charges laid. K.C. believed the assault took place approximately 5 years earlier. K.C. had taken pictures of her injuries a few days after the incident. The date stamps on the photos indicate that they were taken in October of 2012.
30K.C. advised that as of the time of the incident she had known Mr. Barkhadle a few months. They had always had a friendly relationship. He had never previously been violent or threatening. One night he was visiting her in her apartment, and they were sitting on her couch in the living room. Mr. Barkhadle was drunk. Her child was asleep in another room. Mr. Barkhadle put his left arm around her shoulder. Suddenly he put her in a headlock and began to choke her. He choked her to unconsciousness. When she came around, she was on the living room floor. Mr. Barkhadle had pulled down her pants. He still had his hand on her throat and was trying to have sex with her. She was going in and out of consciousness and told him he was going to kill her if he did not stop. He told her he would stop if she did everything he said. She agreed. He forced vaginal and anal sex upon her.
31When he was done, K.C. was bleeding. She had a gash to the back of her head. Her face was swollen and disfigured. She had urinated in her pants during the attack. She went to the hospital. Her entire face was black and red, she had extensive petechiae, and her eyes were blood filled. She went home and later took photographs of her injuries.
L.S.
32On May 18, 2017, L.S. reported to police that Mr. Barkhadle had sexually assaulted her in her apartment. L.S. was a drug addict who was supplied drugs by Mr. Barkhadle. Mr. Barkhadle also lived on and off at her apartment.
33On May 15, 2017, Mr. Barkhadle showed up unannounced at L.S.’ apartment. Mr. Barkhadle had been drinking. They agreed between them that she would give him oral sex in exchange for crack cocaine. Mr. Barkhadle then wanted to have intercourse. He became very angry when she asked for the crack first. He slapped and hit L.S., then covered her mouth when she tried to scream. Mr. Barkhadle grabbed her by the throat repeatedly and placed her in a choke hold twice. L.S. had trouble breathing as he compressed her throat and she feared for her life. She became incontinent of stool. L.S. was able to grab a small fan and hit Mr. Barkhadle in the face with it. She broke free and crawled away from him. Mr. Barkhadle then left the apartment.
34L.S. suffered injuries consistent with her account of the assault.
35Facts in line with those above were found to be proved beyond a reasonable doubt by McLean J. who convicted Mr. Barkhadle on June 23, 2021, after a trial in the Superior Court on charges that included aggravated sexual assault. While of course I will make my own independent conclusions, it is noteworthy that McLean J. admitted the K.C. and A.A. evidence as similar fact evidence after finding it to be “strikingly similar”.
Legal Principles
36The “similar fact evidence rule” was clearly set out by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908, at para. 55:
Similar fact evidence is … presumptively inadmissible. 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.
37Since the probative value versus prejudicial effect analysis is necessarily contextual, it is advisable to first identify the issue to which the proposed evidence is being tendered. The identification of the principal issue to which the proposed similar fact evidence relates is of particular importance and complexity here because I have been persuaded that there are three issues to which it could speak. I will set those issues out below:
(1) The proposed evidence may have relevance to the nature of the actus reus. Given the circumstances of the case, it will be of importance for the jury to determine whether the choking occurred during a sexual assault or in a non-sexual context, like an argument or similar;
(2) The proposed evidence may have relevance in respect of the presence or absence of motive and what, if anything, such presence or absence might mean. While of course motive is not an essential element that must be proved, or even considered, it may have bearing on the nature and level of intent behind any acts or even the likelihood of them having occurred as alleged.
Here, there is evidence that Mr. Barkhadle and R.M. were getting along just fine for a considerable period of time during the night in question. Certainly, the photos found on Mr. Barkhadle’s phone could reasonably support such an inference. The proposed similar fact evidence may shed light on the degree to which that matters - in other words, the extent to which the earlier copacetic relations preclude the idea that things subsequently went awry in a murderous way;
(3) The proposed evidence may have relevance on the essential element question of identification. A key issue in this trial is whether it was Mohamad Barkhadle who compressed R.M.’s neck and thereby took her life.
As mentioned, there is some evidence that R.M. was a drug addict. There is also some evidence that R.M. occasionally engaged in sex work, an activity not without its dangers. A question could be asked: was Mr. Barkhadle her last client or the second last? This question is not purely speculative or otherwise without foundation. Mr. Barkhadle has testified before me that when he left R.M.’s presence that night he did so just as another man was arriving at her apartment.
Even if I disregard Mr. Barkhadle’s introduction of this other man (he was testifying in a context other than in this application, and of course he need not lead any evidence or prove anything), it remains the case that the Crown bears the onus of proving beyond a reasonable doubt that it was Mr. Barkhadle who performed the death-causing act. I agree with the Crown that the proposed similar fact evidence could be probative of whether he is indeed that actor. Fundamentally, similar fact evidence advances the proposition that a person has likely done something because they have done so before.
38I have listed the above areas of relevance in ascending order in terms of threshold of admissibility. In my view, in the circumstances of this case, the most impactful purpose of the proposed evidence is to speak to the issue of identification. Accordingly, I shall determine whether the evidence is admissible by applying the law in a way focussed on that issue. This is important because, as the authorities make clear, the most stringent analysis is called for when the evidence is being tendered for an identification purpose. In the circumstances of this case, if the evidence is admissible for identification it will also be admissible for the other purposes outlined above.
39In R. v. Arp [1998] S.C.R. 339, the Supreme Court of Canada recognized that where identity is in issue there must be a high degree of similarity between the acts. This high degree of similarity may be discerned through either or both of two routes. It may come from a so-called signature or it may be the result of a series of significant similarities, taken together, whose cumulative effect demonstrates the requisite level of similarity. As the Court put it at para. 45:
Where, as here, similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trade mark or signature will automatically render the alleged acts “strikingly similar” and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence. Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed – that is to say, whether the similar acts involve a unique trade mark or reveal a number of significant similarities.
40In R v Handy, Binnie J., writing on the issue of the admissibility of similar fact evidence going to identity, explained at para. 90 that “Similar fact evidence is sometimes said to demonstrate a "system" or "modus operandi", but in essence the idea of "modus operandi" or "system" is simply the observed pattern of propensity operating in a closely defined and circumscribed context”. Justice Binnie set out a non-exhaustive list of seven factors for trial courts to consider in assessing similarity at para 82:
The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:
i. proximity in time of the similar acts: ii. extent to which the other acts are similar in detail to the charged conduct iii. number of occurrences of the similar acts; iv. circumstances surrounding or relating to the similar acts; v. any distinctive feature(s) unifying the incidents; vi. intervening events; vii. any other factor which would tend to support or rebut the underlying unity of the similar acts.
41All the while, I must prioritize the fundamental reason for the rule: no one should be convicted on the basis of what sort of person they are. To admit the proposed similar fact evidence, I must be satisfied, per Handy, supra at paras 90-91, that it represents a “pattern of propensity operating in a closely defined and circumscribed context.” The demonstration of such a pattern militates for admission:
precisely because the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. The issue at that stage is no longer "pure" propensity or "general disposition" but repeated conduct in a particular and highly specific type of situation. At that point, the evidence of similar facts provides a compelling inference that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken (in this case) by the jury
Legal Principles Applied
The Similarity Analysis:
42In my judgment, in the core ways that matter, the proposed similar fact evidence has striking similarity. Each instance of prior discreditable conduct shows Mr. Barkhadle to have an extraordinarily self-centered, opportunistic and violent approach to the indulgence of his sex drive. After drinking and when aroused in the presence of a woman, he will turn his mind in only the most superficial way to her position about whether sexual activity will occur, if he does so at all. In certain kinds of circumstances, to wit when he is drunk and alone with a female whom he perceives as available and vulnerable, Mr. Barkhadle chooses to essentially spring his sexual interests upon them. Importantly, he also has a highly unusual reaction to hearing the word “no” or being on the receiving end of any manifestation of agency on the part of his female subject. His prompt reaction to the women’s disclination to have the sort of sex he wants when he wants it amounts to a situation specific propensity. His response to any reluctance on their part is consistently to reach for their necks to subject them to asphyxiation in a focussed and sustained way. Mr. Barkhadle’s modus operandi in pursuit of the sort of sex he wants, therefore, involves a very peculiar and distinctive method – the immediate and unilateral dismissal of any question of consent followed forthwith by the application of a very unusual and dangerous physical manoeuvre: a choke hold to the throat.
43I consider that surprising a woman with a sustained choke-hold is highly exceptional behaviour. Extraordinary, anomalous, aberrant or rare are the only sort of words that could apply to the decisions underlying the violent asphyxiation of a woman, either for one’s own arousal or to dispense with her consent to sexual activity. The choke hold across the neck of a woman he wants is Mohamad Barkhadle’s signature or calling card.
44I found interesting the following passage from R. v. Morin , [1988] 2 S.C.R. 345, where Sopinka J. writes for the majority at para 65:
In my opinion, in order to be relevant on the issue of identity the evidence must tend to show that the accused shared a distinctive unusual behavioral trait with the perpetrator of the crime. The trait must be sufficiently distinctive that it operates virtually as a badge or mark identifying the perpetrator. The judgment of Lord Hailsham in Boardman, quoted above, provides one illustration of the kind of evidence that would be relevant. [1]
Similarly, psychiatric evidence that the male accused had a strong inclination to choke his female partner during intercourse would be relevant on the issue of identity in a murder case in which death ensued to the female victim as a result of strangulation during intercourse with the perpetrator.
45The reference to the evidence having “psychiatric” provenance is simply because Sopinka J. was speaking about that sort of evidence in that particular case and should be ignored for present purposes. As Sopinka J. makes clear in para. 62, “It is illogical to treat evidence tending to show the accused’s propensity to commit the crime differently because such propensity is introduced by expert evidence rather than by means of past similar conduct”.
46I arrive to the same result if I perform the analysis under the second route, the notion that a series of significant similarities may demonstrate the requisite level of similarity. All incidents were sexually motivated. Each involved a sudden attack on an unsuspecting woman with whom Mr. Barkhadle was alone. Each involved an ensuing violent struggle. Each involved the same method to achieve physical dominance – a choke hold representing a sustained effort to overcome resistance through asphyxiation. Mr. Barkhadle had been drinking each time. The assaults are quite temporally connected. Indeed, if I subtract the time Mr. Barkhadle was in custody over the relevant time period, he was committing all these choking sex-attacks over about 250 days. In my view, taken together, these factors add up to similarity.
47I pause to note here that I am aware of the differences between the K.C./ L.S. scenarios and what was experienced by A.A.. First, it is true that A.A. got away and was therefore not subjected to a completed sexual assault (Mr. Barkhadle was guilty only of attempt). Second, inter alia, A.A. was not known to Mr. Barkhadle and the assault upon her did not happen within a private apartment or involve drug use or the imposition of significant injuries.
48Dealing with the second of those differences first, I say that it is important to focus on the core issue. All interpersonal relations are necessarily contextual. Sometimes differences can matter, sometimes not. To my mind, the core issue here is the propensity for choking women in the context of sexual want and the swift use of that unusual technique to dispense with the issue of consent. The other similarities between the L.S. and K.C. evidence are of great interest to be sure, but their existence does not take away from the fundamental similarity of that evidence with the A.A. component in any way that matters.
49I also take little from the fact that the attack upon A.A. was not completed. The A.A. evidence may still have value in showing likelihood of the important choking element even if it remains well up the line from strangling during intercourse. I must focus on the purpose of the evidence. The purpose of the A.A. evidence can be to support the proposition that an impaired and sexually motivated Mr. Barkhadle goes for the throat regardless of the fact that things did not go on from there. I agree with the British Columbia Court of Appeal’s treatment of this very issue in R. v. Pickton [2009] B.C.J. No.2831. As Finch C.J.B.C. put it at para. 121: “similar fact evidence is admissible even though it may fall short of showing the whole pattern, or a completed act”. Again, the core similarity – the choking of a female to dispense with the issue of her consent for sexual activity – is operative regardless of the fact that the initiative was thwarted by intervening neighbours. Mr. Barkhadle’s plea of guilty to attempted sexual assault is evidence of what he was intending to accomplish. The fact that he failed in his goal because of factors beyond his control makes the resulting dissimilarity between A.A. and the K.C./L.S. evidence fundamentally of no importance.
Balancing Probative Value Against Prejudicial Effect
50I find the proposed similar fact evidence to have extraordinary probative value. First, the fact that there are multiple instances allows a jury to discern a pattern of behavior, or repeated conduct in particular and highly specific situations. The evidence gains probative value and cogency from the fact that the jury will be able to reason based on a cumulative pattern rather than, say, a single instance. For example, in R. v. James [2004] O.J. No. 3538 (S.C.) , aff’d , 84 O.R. (3d) 227, leave to appeal refused [2007] S.C.C.A No.234, the question was whether the accused may have acted a certain way a second time. Here, the question is whether Mr. Barkhadle may have acted a similar way a fourth time. As with the buried babies in Makin v. Attorney-General for New South Wales [1894] A.C. 57 (P.C.), the probability of coincidence could be said to decrease as instances of misfortune accumulate.
51The proposed evidence gains probative force from the fact that it is temporally intertwined with the alleged misconduct. It is not as if the prior acts are dated such that Mr. Barkhadle could be said to have matured, been rehabilitated or otherwise changed by the time of R.M.’s death. Indeed, the similar fact evidence falls on both sides of the date on the indictment. The sexual assaults and choking of A.A. and K.C. precede the alleged murder by 5½ and 4½ years respectively, while the sexual assault and choking of L.S. occurred 2 months afterward. The timing of the sexual assault on L.S. greatly diminishes any concerns about the gap in time between the first two sexual assaults and the alleged events of March 11, 2017.
52The evidence speaks directly to the improbability of coincidence that two persons would display the same set of matching characteristics in committing a crime. More precisely, the evidence speaks to the question of whether it was mere meaningless coincidence that Mohamad Barkhadle was the last person to be seen with R.M. the night she had her neck compressed in the context of being sexually assaulted. The evidence makes the proposition that such a coincidence is improbable more likely than it would be in the absence of the evidence.
53Equally, the proposed evidence also has high probative value on the other two issues set out in paragraph 37, above. It is not just about identification. The only reason I have been focussed on that issue is because the threshold for admission under that heading is, for good reason, the highest. The evidence also makes it far more likely that a sexual assault occurred than that proposition would be in the absence of the evidence and it is very probative of the importance, if any, to be attached to the fact that the couple may have engaged in normal relations at some points that night (in other words, to motive or lack thereof). The fact that the second of those uses is founded on the evidence relating to K.C. and L.S. and not A.A. is an issue that can be dealt with in my instructions to the jury.
54Of course, probative value must be weighed against prejudicial effect. In general, the prejudice associated with similar fact evidence refers to the risk that a finding of guilt will be made not on the basis of the evidence but on a finding that the respondent is of bad character (see: R. v. B.(L.) , [1997] O.J. No. 3042 (C.A.)). R. v. Handy focuses the analysis of prejudice into two categories which may be summarized as follows:
I. the potential for “moral prejudice” – the risk of convicting the respondent because he is a “bad person” rather than based on proof that he committed this offence; II. the potential for “reasoning prejudice” – the risk of distracting or confusing the jury, or of undue consumption of time.
55The instances of prior discreditable conduct which form the similar fact evidence contemplated here are undeniably reprehensible. This is exactly the sort of scenario the Supreme Court of Canada was speaking about in R. v. Shearing, [2002] S.C.C. 58 at paras. 71-72, that where the similar fact evidence reveals a morally repugnant act its potentially poisonous nature will require a correspondingly high probative value to overcome its impact.
56That said, the allegation before the court, considered in its full breadth, is far worse. In addition to the choking and sexual assault aspect, the trial involves the proposition that Mr. Barkhadle also incapacitated R.M. with blows and then did nothing to summon help for her as she lay still alive on her couch bleeding for enough time to make a pool of blood on the floor. Moreover, the jury will undoubtedly be extremely troubled by the fact that R.M.’s 2 year old child was left to fend for himself and would likely have seen his deceased mother in the bathtub over the course of many days. In my view, the similar fact evidence is less graphic and inflammatory than the evidence surrounding the murder of R.M. in a way that diminishes the risk of moral prejudice.
57Indeed, the fact that the similar fact evidence will be diluted by the evidence called at trial concerning R.M.’s death also serves to reduce the risk of reasoning prejudice. The likelihood that the trier of fact will be deflected from engaging in a rational assessment of the case by sentiments of revulsion and condemnation is reduced by the context the jury will ultimately find itself immersed in.
58The contemplated similar fact evidence is available to be presented in an efficient manner such that there is little risk that the proceedings will become caught up in conflict about it. Two of the three instances have resulted in judicial findings of guilt at the beyond a reasonable doubt proof standard while the third can be presented either through witness statements and photographs or viva voce testimony in short order. While of course serious, the transactions involved are not especially complex. The entire body of evidence is expected to go in through 6 or 7 witnesses and 4 exhibits and thus might only take a few days. The evidence will not, therefore, distract or consume time disproportionate to its relevance and probative value.
59I also consider that the jury will be instructed about the permissible uses of the evidence and the manner in which they should guard against letting it interfere with the proper discharge of their reasoning task. I should have some faith that the jury will follow my instructions in that regard.
Conclusion
60The risk of prejudicial effect of the proposed evidence is undoubtedly high. The similar fact evidence portrays Mr. Barkhadle in an extremely bad light, as having a serious problem with women and self-control in respect of his sexual impulses.
61However, on balance, I find that its probative value is higher. Mr. Barkhadle’s history of choking women is highly probative of whether it was he who compressed R.M.’s neck that night and took her life. Mr. Barkhadle’s peculiar constitution as a sexually motivated choker is not vague or a mere general propensity for violence. He does a particular thing: he chokes women. He does it when faced with a particular situation: when he wants a sort of sexual activity they do not. He therefore acts in a highly unusual and distinctive way in a circumscribed context. The triers of fact might take much from the fact that Mr. Barkhadle, the man with whom R.M. was last seen alive, is coincidentally possessed of proclivities in respect of women and their consent to sexual activity that are so exceptional. One might reasonably think that it is just too much of a coincidence that the closely defined act Mohamad Barkhadle incorporates into his pursuit of sexual gratification is the very act that caused R.M.’s death. I see the probative value of this evidence as very high.
62The evidence relating to the three similar fact incidents meets both the threshold reliability test of being reasonably capable of belief and is sufficiently cogent to raise the double inferences that Mohamad Barkhadle has a specific propensity to choke women while sexually assaulting them and that he and the person who choked R.M. while sexually assaulting her are one and the same. In all of the circumstances, the evidence speaks to the improbability of coincidence in a way highly probative to the key issues in this trial. The Crown has rebutted the presumption against admissibility by showing on a balance of probabilities that the proposed evidence is indeed sufficiently similar and that it has probative value that outweighs the potential prejudice. The evidence is admissible.
Justice Kevin B. Phillips
Released: October 21, 2022
1The quote being referred to goes as follows: “Whilst it would certainly not be enough to identify the culprit in a series of burglaries that he climbed in through a ground floor window, the fact that he left the same humorous Limerick on the walls of the sitting room, or an esoteric symbol written in lipstick on the mirror, might well be enough. In a sex case, to adopt an example given in argument in the Court of Appeal, whilst a repeated homosexual act by itself might be quite insufficient to admit the evidence as confirmatory of identity or design, the fact that it was alleged to have been performed whilst wearing the ceremonial headdress of a Red Indian chief or other eccentric garb might well in appropriate circumstances suffice” (Director of Public Prosecutions v. Boardman [1975] A.C. 421 (H.L.) at p.454).