Court File and Parties

Court File No.: CR-20-0475 Date: 2022 03 30 Ontario Superior Court of Justice

Between: Her Majesty the Queen Daniel Galluzzo for the Crown

- and –

J.S. Self-represented

Heard: January 31, February 1, 2022 by Zoom conference

Publication Banned Under Section 486.3 of the Criminal Code Prohibiting the Publication of Any Information That Would Tend to Identify the Two Complainants M.R. and D.A.

D.E. Harris J.

[1] Mr. S. is charged with sexual offences against two girls, M.R. and D.A., dating from 2016 to 2018. He was friendly with M.R.’s father and used to work with him. Mr. S. babysat for his children and at times slept over, including for M.R. and her siblings, sometimes staying overnight. The other complainant, D.A., is a friend of M.R.’s and would come over to her house on occasion. It was in these instances that it is alleged that Mr. S. took sexual advantage of the two young girls. They were 12-13 years old at the time.

[2] This trial was held exclusively over Zoom. I was satisfied that the provisions of Section 714.1 of the Code were satisfied and permitted a support worker to be with both complainants pursuant to Section 486.1 of the Code.

[3] Both complainants gave police statements which I ruled admissible at the trial under Section 715.1 of the Code. M.R. in her statement and at trial testified to several incidents of sexual assault. The first one was when the family, including M.R.’s stepfather, were watching cricket on TV at their home. Mr. S. was on the couch next to her and he took her hand and put it on his penis area over the clothing. He covered it up with a pillow. M.R. whispered to Mr. S., asking why he was doing it, and then she got up and went upstairs. Her stepfather did not see what had happened.

[4] M.R. also said that Mr. S. was often around her house and would continually touch her breasts and buttocks over the clothes. He would squeeze or rub her breasts and once in a while would try to go under her clothes.

[5] M.R. also testified about playing hide and seek with her siblings and Mr. S. The lights would be off in the basement. Mr. S. would often hump her from behind multiple times during these hide and seek games.

[6] On one occasion, Mr. S. tried to have sex with M.R. He brought her on to a bed in the basement. He pulled her underwear aside and she felt the tip of his penis in her vagina. As M.R. jumped up, she saw Mr. S.’s penis. He told her not to tell her parents. On this occasion, Mr. S. was babysitting and M.R.’s parents were not at home.

[7] Lastly, on one occasion M.R. went over to Mr. S.’s house. She was probably in Grade 6 at the time. Her stepfather dropped her and her younger brother off. She was laying on the bed in Mr. S.’s bedroom and her brother was playing a video game at the edge of the bed. Mr. S. attempted to put a deodorant stick up her vagina. She accused Mr. S. of doing it but he repeatedly denied it. He also ground his penis against her vagina. Both were wearing clothes at the time. Her brother did not notice anything as he was absorbed in his video game.

[8] M.R. said that she did not complain to her parents because she did not want to get Mr. S. into trouble, she was concerned he might threaten the family and she was concerned her parents might not believe her.

[9] D.A. said in her statement and in her evidence that she was at M.R.’s house when Mr. S. was there a handful of times. There was an incident in the living room in which she was sitting next to Mr. S. on an L shape couch watching a movie with many other children present. There was a blanket over them. He tried to go into her pants with his hand. He then took her hand and put it in the area of his penis over his clothing. This went back and forth several times.

[10] Later that night, he asked by text message whether she wanted to have sex with him. She texted back that she was tired. In the morning, when Mr. S. was leaving, while hugging her goodbye, he touched her buttocks and squeezed and pushed her body close to his.

[11] D.A. also testified that Mr. S. regularly texted her “nasty” things like “suck my dick” and told her that he wanted to put his penis up her. He would say that she had a nice body and that she was sexy. She testified that Mr. S. once texted her a picture of his penis. Unfortunately, D.A. deleted all the texts from Mr. S. because she did not want to look at them. None were available at trial.

The Similar Fact Application

[12] Mr. Galluzzo made application at the end of the Crown’s case for a count to count similar fact ruling. I dismissed it at the time and promised these reasons.

[13] Ultimately the similarity between the allegations of the two complainants fell short of the degree necessary to generate sufficient probative value to overtake prejudicial effect, even in a judge alone trial. In his argument, Mr. Galluzzo attempted to bypass the lack of similarity by melding the similar fact approach with that of discreditable conduct applications. Both modes of evidence are presumptively inadmissible. Combining the two is a somewhat novel argument but may have some potential in the right situation.

[14] The major difference between similar fact and discreditable conduct evidence is the manner in which the prior evidence generates probative value. Similar fact evidence, as its name implies, requires a degree of similarity between the allegation outside the scope of the indictment and the allegations encompassed by the indictment. The classic example is the “baby farming” case, Makin v. Attorney-General for New South Wales, [1894] A.C. 57. The finding of one baby in the backyard could have been a result of accident or natural causes but the finding of numerous babies suggested intentional conduct. It was very unlikely to be coincidence. The effect was to amplify and mutually support each allegation: see the brief discussion in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 (SC.C.) at para. 45.

[15] Discreditable conduct evidence, on the other hand, is not based on similarity between the two sets of evidence. To take discreditable conduct in the context of intimate partner violence as one example, the evidence outside the indictment may be probative because it helps to explain the nature of the relationship, demonstrates animus towards the complainant, and explains why the complainant was reluctant to leave the relationship: R. v. F. (D.S.), (1999), 43 O.R. (3d) 609, [1999] O.J. No. 688 (Ont. C.A,) at paras. 20-26.

[16] It is possible that similar fact evidence and discreditably conduct evidence could be hybridized in some circumstances. This is clearly not one of them. The main effect of admitting the proposed evidence as discreditable conduct evidence would be to demonstrate general propensity that the accused is the type of person likely to commit sexual offences against young women. That is of course a bad character purpose and the evidence is clearly inadmissible for it.

[17] If admissible, the evidence here must qualify as similar fact evidence. Analyzing the similarity of the allegations between the two complainants, there are unquestionably some similarities. The “shell” or context of the allegations is much the same. That is, the general context is the same: i.e. sexual offences allegedly committed in family gatherings at M.R.’s home while babysitting. The timing of the allegations is also similar. Justice Binnie instructs us in Handy, at paras. 82 and 122 that there must be close attention to the proximity of the offences to each other in time.

[18] These are important but insufficient circumstances. On their own, they are too general to rise much beyond the forbidden character inferences.

[19] In terms of additional similarities, both complainants testified to being sexually touched while watching TV on a couch with the accused. This constitutes significant similarity. However, it is not distinctive or unique enough to generate strong probative value. “Cogency increases as the fact situation moves further to the specific end of the spectrum.” Handy, para. 87.

[20] In Handy, Justice Binnie at para. 81 quoted Wigmore on the issue of the necessary degree of similarity,

Since it is the improbability of a like result being repeated by mere chance that carried probative weight, the essence of this probative effect is the likeness of the instance...

[21] Also see R. v. Arp, [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82 (S.C.C.) at para. 44: “Because similar fact evidence is admitted on the basis of an objective improbability of coincidence, the evidence necessarily derives its probative value from the degree of similarity between the acts under consideration.”

[22] In my view, looking at the entire body of each complainants’ allegations, the similarities are not particularly compelling. The majority of the allegations are dissimilar in nature. The most serious offences allegedly committed against M.R. have no correlation in D.A.’s evidence. Specifically, there was nothing approaching the two very serious offences against M.R. in the evidence of D.A. These offences were putting the deodorant stick in M.R.’s vagina while at Mr. S.’s house and attempting to have sex with her in the basement of M.R.’s home. Nor was there any evidence of humping in D.A.’s evidence or the regular casual touching that M.R. testified to. On the other side, there was nothing in M.R.’s evidence akin to the “nasty” texts which D.A. received from Mr. S.

[23] It is unnecessary to find point by point similarity to build probative value in a similar fact application. For example, if there is a distinctive and unique act unifying the complainants’ evidence, other general evidence or even dissimilar evidence may not frustrate the prosecution’s application. Each case is different and needs to be evaluated on its own terms.

[24] Here, there was too much dissimilarity. There were some general similarities—the babysitting context and the two couch incidents--but they were not sufficient to demonstrate a strong improbability of coincidence. The moral and reasoning prejudice, on the other hand, even in a judge alone case, was substantial. It was for these reasons that I ruled that the Crown had not rebutted the presumption against admission of the accused’s misconduct outside of the scope of the indictment.

The Evidence of M.R. and D.A.

[25] Mr. Empel was appointed under the authority of Section 486.3 of the Criminal Code to cross-examine the two complainants. His major line of attack with respect to M.R. was that when she complained to the police, she did not mention the two most serious allegations against Mr. S. It was not until the preliminary hearing that these allegations emerged.

[26] M.R. testified that she did not feel comfortable when speaking to the police initially and said that she was confused. Her videotaped interview with the police, admitted as evidence under Section 715.1 of the Code, does show her to be uncomfortable to some extent. That is only to be expected given her young age and the nature of the allegations. It did not appear to hinder her communication in a major way but it is difficult to tell with any degree of certainty.

[27] There was some plausibility in M.R.’s explanation for not mentioning at the outset the two most intrusive evasions of her sexual integrity. They would naturally be the allegations she would be most embarrassed about and least likely to divulge. However, there is some lingering concern which remains from the omission of these two incidents from the initial videotaped statement.

[28] The circumstances behind the two complainants’ approach to the police were canvassed at trial. Mr. S. had given D.A. an iPhone to use as hers had been taken away by her parents. D.A.’s parents had discovered the new phone. Ultimately, in explaining how she came to have the phone, D.A. made her complaint against Mr. S. In that complaint, D.A. also made mention of offences against M.R. D.A.’s mother than called M.R.’s family and informed them of what her daughter had said. Both young girls were interviewed soon after by the police. Mr. S. was arrested.

[29] I agree with Mr. Galluzzo that the evidence did not rise to the level of collusion which prevents the admission of similar fact evidence. There was an opportunity for collusion but the evidence did not go beyond this to show a likelihood of actual collusion: Handy, at paras. 104-114. On the other hand, there were some residual concerns that had some significance to credibility at trial. D.A. testified that before they were interviewed by the police, the two girls spoke and both said they hoped Mr. S. got what he deserved.

The Evidence of Mr. S.

[30] Mr. S. testified in his own defence and denied the allegations. He is 31 years old and a tool and die maker. It was his evidence that he met M.R.’s stepfather through work and became friends with the family in and around 2010. Although Mr. S. in his testimony accepted that he babysat for the two girls and agreed with much of the other background context, he flatly denied all the allegations. He did admit that he had given D.A. a phone that she used to communicate with him but did not agree that he ever sent her sexually suggestive messages.

[31] Mr. Galluzzo had some success in his cross-examination of Mr. S. Mr. S. testified in cross-examination that he continued to babysit for M.R. even after she made her complaint about what he had done to her. According to Mr. S., M.R.’s mother said that she did not want to interfere with their friendship. I find this quite implausible. We did not hear from M.R.’s mother although Mr. S. considered calling her as a witness in his defence. Eventually, he decided against it.

[32] Virtually universally, any mother hearing about allegations such as these would have barred Mr. S. from any contact with her family. This testimony detracts from Mr. S.’s credibility but must be seen with the fact that Mr. S.’s recollection on this point may have misled him. The events were almost four years old by the time of trial and it was evident that Mr. S. does not possess a particularly good memory.

Conclusion

[33] The evidence of the complainants was reasonably reliable and credible. M.R. did not refer to the most serious allegations in her police statement but she was very young at the time and obviously uncomfortable as a complainant in the police investigatory process. D.A.’s evidence had no obvious flaws. The two girls were good friends and before they spoke to the police, they admitted some limited discussion of the accused. The similar fact application of the Crown having failed, the evidence of the complainants was largely uncorroborated.

[34] The accused evidence was not without flaws. In the final analysis, I have no difficulty preferring the complainants’ evidence over Mr. S.’s evidence. I believe both of the complainants. On a balance of probabilities, I would find Mr. S. committed the acts alleged. However, applying the standard of proof beyond a reasonable doubt, the prosecution falls short. The complainants’ evidence is not strong enough and the accused evidence is not weak enough to prove the case to the required level of certainty.

[35] For these reasons, Mr. S. will be found not guilty of the six counts in the indictment against him.

[36] I would like to make a few closing comments. Mr. S. did not have counsel for this trial, he was self-represented. Abundant case law elaborates on the obligation upon a trial judge to render assistance to an unrepresented accused. At the beginning of the trial I went through page by page with Mr. S. the “TRIAL INFORMATION FOR A SELF-REPRESENTED ACCUSED”, a document supplied to all accused in our jurisdiction.

[37] The obligation of a judge in a trial with an unrepresented accused has been described as a “heavy” burden and “not an enviable task”: R. v. Richards, 2017 ONCA 424, [2017] O.J. No. 2680 (Ont. C.A.) at paras. 110-113; R. v. Tran, [2001] O.J. No. 3056, 156 C.C.C. (3d) 1 (Ont. C.A.) at paras. 21-25. A self-represented trial puts our system of criminal justice to the ultimate test. A fair trial being premised on an adversarial battle between prosecution and accused, when the accused does not have counsel, this model no longer holds. There is an ever-present risk of a fundamental imbalance which could lead to an unfair trial and a miscarriage of justice.

[38] The obligations on a trial judge to assist an accused are reasonably clear and are fully explored in the jurisprudence. In my view, the Crown Attorney has an important role to play as well. There are many different aspects to this. This is not the time or place to catalogue them. Most of the Crown’s obligations are for the purpose of assisting the trial judge in the discharge of his or her obligation to the self-represented accused. There are also some obligations, however, likely owed directly to the self-represented accused, such as subpoenaing witnesses in some situations: see R. v. McGibbon, (1988), 45 C.C.C. (3d) 334 (Ont.C.A.) at para. 34.

[39] The Crown Attorney’s duty is subsidiary to the trial judge’s function, of course. It is the trial judge who has the ultimate responsibility to conduct a fair trial and to assist the accused in navigating through the foreign waters of criminal procedure. But the Crown needs to be aware of his or her role as well. The Crown’s assistance to the court falls directly into the Crown’s quasi-judicial duty as a Minister of Justice (see e.g. R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 (S.C.C.) at para. 61). The Crown must help to ensure the self-represented accused has a fair trial.

[40] In this connection, throughout this trial Mr. Galluzzo displayed fairness and sensitivity to his obligations. For example, when Mr. S. expressed a desire to call M.R.’s mother as a witness, the three of us had a discussion of the pros and cons of doing so. Mr. Galluzzo was frank and helpful. He shifted nimbly from his adversarial role to his quasi-judicial role.

[41] There were other examples as well that I will not outline here. All in all, Mr. Galluzzo acquitted himself admirably. I thank him for his efforts.

D.E. Harris J. Released: March 30, 2022