COURT FILE NO.: CR-18-1281-00 DATE: 2022 04 04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Gregory Hendry, for the Crown/Applicant

- and -

SCOTT McFARLANE Carolyn Kerr, for the Respondent

HEARD: March 14, 2022, at Brampton

RULING ON CROWN’S APPLICATION

André J.

[1] The Crown brings an application seeking a reconsideration of the admissibility of evidence of prior discreditable conduct statements made by the Respondent, the accused, to a member of the Ottawa Police Force on June 5, 2013. Mr Hendry, for the Crown, submits that on November 19, 2021, the Respondent re—elected to have a trial by judge alone and that this re-election “represents a material change in circumstances with respect to the discreditable conduct application” which justifies a reconsideration of the issue.

BACKGROUND FACTS

[2] In 2013, the mother of an aspiring thirteen-year-old gymnast, who was being trained by Mr. McFarlane, contacted Sergeant Shelley Rossetti after she viewed Snapchat communications between Mr. McFarlane and her daughter. She subsequently showed her daughter’s iPad to the officer. Her daughter refused to be interviewed by the officer who then returned the iPad to her mother. Mr. McFarlane was not charged with any offences involving his interaction with this gymnast. However, Sgt. Rossetti interviewed Mr. McFarlane about the allegations and warned him that he would be charged if there were other similar accusations against him. Mr. McFarlane told Sgt. Rossetti that what he was alleged to have done would not repeat itself.

[3] However, Mr. McFarlane was subsequently charged with the offences of sexual interference, making sexually explicit material available to a child, and luring a child. These allegations arose between 2014 and 2018 and involved another young gymnast. In the upcoming trial on these charges, the Crown seeks to adduce a couple of Snapchat messages between Mr. McFarlane and this student. The Crown also seeks to rely on the warning given by Sgt. Rossetti to Mr. McFarlane in 2013, and his assertion that his inappropriate conduct with his prior student would not be repeated as prior discreditable conduct. He submits that the probative value of this evidence outweighs its prejudicial effect.

RULING

[4] On June 18, 2021, I made a ruling regarding the admissibility of the Respondent’s statement to Sergeant Rossetti and the warning she issued to him. I noted in R. v. McFarlane, 2021 ONSC 4405, at para. 41 that:

In my view, the intended use of the “warning” by the Crown in the upcoming trial, raises the spectre of this prejudice. If the Crown adduces evidence that Mr. McFarlane had previously been warned, the jury would be left speculating about why he had been warned. Sergeant Rossetti would have to testify that Mr. McFarlane admitted to sending text messages to the young person about his desire to kiss her and sending her a picture of his abdomen. Such evidence would invite speculation that he had acted inappropriately in the past and therefore had a propensity to do so. Such reasoning, in my view, would undermine trial fairness and would have the potential of a verdict based on prejudice and propensity reasoning rather than proof. A limiting introduction to the jury may ultimately prove to be insufficient to prevent this from happening.

POSITION OF THE CROWN

[5] The Crown submits that the anticipated evidence is highly probative of the following issues:

a. the credibility and corroboration of the complainant, K.J. b. to prove the intent in the luring charges; c. to disprove defences relating to mens rea.

[6] The Crown submits that the re-election has significantly reduced the danger of propensity reasoning given that a judge sitting without a jury can disabuse his or her mind of any such reasoning.

[7] The Crown submits further that:

a. The evidence has a high probative value. The evidence demonstrates that the accused’s communications with young gymnasts are not a “oneoff”. It corroborates the complainant’s testimony that these events happened. b. The evidence is highly probative to the luring offences. In his statement to the Ottawa police, the accused mentions how he had learned his lesson, and that this behaviour was a one off and would not be repeated. The evidence, therefore, has to do with Mr. McFarlane’s state of mind rather than with propensity reasoning. c. The evidence can negate any attempt by the Respondent to argue that his actions were because of: a. Being simply ignorant, or b. making poor decisions, or c. that these were somehow motivational or a coaching technique. and thereby raise a reasonable doubt as to his intent. d. The Respondent was never charged for the allegations in Ottawa. He was cautioned about his conduct. Therefore, the evidence is less prejudicial than if he was charged.

THE RESPONDENT’S POSITION

[8] Ms. Kerr submits that a judge alone trial does not eliminate the danger of moral prejudice and relies on a number of cases in support of that position. She urges the court to reject the Crown’s application on the ground that the evidence has no probative value and that even if it had, the prejudice flowing from the admission of this evidence significantly outweighs its probative value.

ANALYSIS

[9] This application raises the following issues:

1. Does the evidence of prior discreditable conduct have any probative value?
2. Does the probative value of the proposed evidence outweigh its prejudicial effect?

THE LAW

[10] In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31, the Supreme Court of Canada noted that evidence of misconduct, beyond what is alleged, which only discredits the character of the accused is inadmissible. In R. v. Robertson, [1987] 1 S.C.R. 918, at 943, the court stated that in discussing the probative value of evidence of prior discreditable conduct we must consider its degree of relevance to the facts in issue and the strength of the inferences to be drawn.

[11] The court noted the following in Handy, at para. 139:

It is frequently mentioned that “prejudice” in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

[12] The factors that must be considered in assessing the probative value of evidence are:

a. The strength of the evidence that the extrinsic acts occurred; b. The connection between the accused and the discreditable conduct and the extent to which the proposed evidence supports the inferences the Crown seeks to make; and, c. The materiality of the evidence – the extent to which the matter the evidence tends to prove are live issues in the proceeding: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 98.

[13] If the evidence has some or even minimal probative value, its impact on moral and reasoning prejudice must be assessed: Z.W.C., at para. 101.

[14] The Crown submits that Mr. McFarlane’s statement to Sgt. Rossetti, and the warning she issued to him against inappropriate conduct with the young female gymnast, is probative of the issue of his intent in allegedly grabbing Ms. Johnston’s buttocks, sending her pictures of his penis, or communications allegedly intended to groom her for a sexual purpose.

[15] I am inclined to conclude that the evidence has some probative value given that they involve inappropriate behaviour of a sexual nature by the accused and a young gymnast he was coaching. When confronted with these allegations, Mr. McFarlane admitted that his conduct was inappropriate and that he would not repeat that type of conduct in the future. However, I am still required to consider and assess the impact of this evidence on moral and reasoning prejudice.

[16] First, regarding the Crown’s submission that the evidence is required to prove specific intent with respect to the charge relating to the offence of luring, I am not persuaded that the evidence is necessary to prove mens rea. The Crown can rely on the evidence in its possession to invite the trial judge to conclude that the only reasonable inference to be drawn from the evidence is that Mr. McFarlane had the necessary intent to commit the charge.

[17] Second, reliance on Mr. McFarlane’s statement to Sgt. Rossetti, that he would not send inappropriate messages again, would clearly raise the danger of moral reasoning because it would be viewed as an admission of prior wrongdoing which would support an improper conclusion that he was more likely to have committed the offences for which he has been charged.

[18] Third, I am concerned about the impact which the admission of the statement would have on trial fairness. Mr. McFarlane was told by Sgt. Rossetti that he would not be charged and hence faced no criminal jeopardy if he gave her a statement. She cautioned him that he could be charged in the future. I am concerned that the Crown now seeks to rely on utterances made by Mr. McFarlane to Sgt. Rossetti in those circumstances, in the upcoming trial against Mr. McFarlane on new charges.

[19] Fourth, the Crown takes the position that the Respondent’s re-election to a judge alone trial virtually eliminates the risk of moral prejudice given the trial judge’s ability to disabuse himself or herself of any such prejudice.

[20] There is some support in the jurisprudence for the Crown’s position. For example, in Z.W.C., at para. 94, the Court of Appeal noted the following about an accused’s prior discreditable conduct: “In a judge-alone trial, experience and training enables the judge to appreciate the purposes for which such evidence is proffered, and to self-instruct on its limited use(s).” In R. v. MacCormack, 2009 ONCA 72, 24 C.C.C. (3d) 516, at para. 69, Watt J.A. noted that reasoning prejudice is reduced to a “vanishing point” in a count-to-count similar act application. Furthermore, in R. v. Calnen, 2019 SCC 6, 430 D.L.R. (4th) 471, at para. 188, the court noted that: “Trial judges can be expected to warn themselves against the prejudice of propensity reasoning because they ’are presumed to know the law with which they work, day in and day out’” (citations omitted). Finally, in R. v. T.B., 2009 ONCA 177, 95 O.R. (3d) 21, at para. 26, the Ontario Court of Appeal noted that: “Reasoning prejudice and moral prejudice raise legitimate concerns in a jury trial, but less so in a non-jury trial, as this was.”

[21] That said, the spectre or moral prejudice is still a factor in a judge alone trial. As noted in R. v. Gill, 2021 ONSC 6796, at para. 20, judges can struggle to overcome the “tainting” effect that evidence of prior discreditable conduct can have. Furthermore, in R. v. Pereira, 2019 ONSC 4321, at para. 99, Harris J. noted that:

However, moral prejudice remains a substantial concern. Whether a trial by jury or judge alone, the vital appearance of trial fairness can be compromised by the introduction of bad acts outside the temporal boundaries of the indictment. As Justice Doherty said in R. v. Batte at para. 100:

Propensity reasoning also imperils the overall fairness of the criminal trial process. It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for who he or she is. The criminal law's reluctance to permit inferences based on propensity reasoning reflects its commitment to this fundamental tenet:

McCormick on Evidence, 5th ed., p. 658; R. Lempert, S. Saltzburg, A Modern Approach to Evidence (1982) at p. 219.

[22] In my view, this danger exists in this case. The Crown submits that the proposed evidence corroborates the evidence of the complainant in the charges against the Respondent. However, such a use introduces general propensity evidence in the trial because the Crown would take the view that Mr. McFarlane has acted in a sexually inappropriate manner before and, therefore, he was more likely to have committed the offences with which he is charged.

[23] There is another factor concerning the evidence of prior discreditable conduct which I must consider. The young person in Ottawa did not give a statement to Sgt. Rossetti and, further, the officer did not retain her iPad. The unavailability of this evidence could well prejudice the Respondent’s ability to fully challenge the evidence of prior discreditable conduct and, consequently, impair his ability to make full answer and defence to the charges.

CONCLUSION

[24] For the above reasons, I find that the prejudicial effect of admission of the evidence of prior discreditable conduct would significantly outweigh its probative value. Consequently, the Crown’s application is denied.

André J. Released: April 4, 2022