ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
JACOB HOGGARD
Jill Witkin and Kelly Slate
for the Crown
Megan Savard and Kally Ho
for the Jacob Hoggard
HEARD: May 19, 2022
PUBLICATION BAN
There is a publication ban under s.486.4 of the Criminal Code in relation to any information that could identify a witness. There is also a publication ban under s.648 in relation to any portion of the trial at which the jury is not present.
APPLICATION FOR COUNT TO COUNT
SIMILAR FACT INSTRUCTION
G. ROBERTS J.:
[1] Jacob Hoggard stands charged, on a single indictment, with sexual assault cause bodily harm to two different young complainants, MB and JB, in the fall of 2016. He is also charged with sexual interference of MB the previous spring, when MB was 15 years old.
[2] The Crown has closed its case and brings an application for an instruction that the jury be permitted to consider the evidence of each complainant across counts – a count to count similar fact instruction. It is common ground that Mr. Hoggard is entitled to a decision on whether such an instruction will be given before deciding whether to testify or call evidence.
[3] I have summarized the similarities and differences in the complainants’ evidence in the following chart. I have included these together in the same chart, as the evidence must be considered as a whole, but have identified differences by placing them in italics:
EVENT
MB
JB
age
15-16, high school student
22, college student
how met
long time fan
Tinder hook up
after connecting directly on social media, JH (Jacob Hoggard) invited both women to meet him backstage at a Hedley concert
JH sent MB tickets to a concert at the ACC on April 29 and arranged for a limousine to drive her and two friends there and back – MB accepted and met JH backstage after the concert
JH invited JB to the green room to hang out with the band before it performed on Nov 5 for We Day – JB declined because she had responsibilities as a volunteer at the same event
manner of communication
social media especially Snapchat but also Facetime and telephone
social media especially Snapchat but also Facetime and telephone
timeframe of communication
April-Sept 30, 2016
Nov 4-22, 2016
nature of communication
romantic flirtation; JH told her he loved her, wanted her to have his babies, and to show her his cabin in BC where he writes songs
explicit sexual exchanges; JH complimented her on how pretty she was; sang songs to her
JH sent each woman a video of himself masturbating
the video was taken in a washroom stall before a concert, likely in August 2016
the video appeared to be taken in an airplane washroom and was similar to the video described in ex 1
JH invited each woman to meet him in Toronto when Hedley was there
original plan was to meet at the beginning of May, 2016 (shortly after April 29 concert) but JH cancelled at the last minute; a second plan was made to meet on September 30, 2016
plan to meet on November 22, 2016
purpose of the meeting
to hang out; possibly some sexual contact (MB thought maybe kissing); defence suggested to MB and other Crown witness that the plan was for sex
for sex
JH made travel arrangements for each woman to come to Toronto to visit him
JH arranged for a car to drive MB to and from his hotel (as he did for April 29 concert)
JH sent JB a return train ticket from Ottawa to Toronto (JB paid her own taxi fares)
the meeting occurred in JH’s hotel room during the day
MB arrived at JH’s hotel room (at airport Sheraton) around 11 am and was supposed to stay until around 4 pm; she left early after pretending she was needed at work
JB took a taxi from the train station to JH’s hotel (Thompson hotel), arriving around 11 am (she estimated she arrived in the second room around noon); JH asked her to leave after about 3-4 hours
JH’s hotel room contained a mirror on a wall adject to the bed
the wall separating the bedroom from the bathroom was covered with a mirror
there was a large mirror above the headboard of the bed
JH changed dramatically during the sexual encounter
JH turned into a “monster”; he was aggressive without empathy or compassion; it was almost like he was bi-polar as he had always been soft-spoken, complimentary and nice before
JH was rude in the first hotel room, which surprised JB room because he was always nice to her before; he became “a different person” in the second room; he seemed crazy; like a “psychopath”; he eyes were terrifying
taking phones and physically holding down
JH held MB down on the bed during the entire sexual assault; she could not access her cell phone until she was off the bed
after the initial anal rape, JH took JB’s cell phone; he held her down at points, but not the entire time, and after a couple of hours she could access her cell phone
the sexual encounter included repeated forced vaginal intercourse
MB was bleeding from her vagina
JB was bleeding from her vagina
the sexual encounter included repeated forced anal penetration
JH repeatedly tried to penetrate MB’s anus with his penis but could not; when he could not insert his penis he used his fingers instead
JH repeatedly penetrated JB’s anus with his penis causing it to bleed
JH flipped the woman back and forth from front to back
JH flipped MB from front to back and the reverse, holding her down the entire time
JH flipped JB from back to front, and back again, for example penetrating her anus with his penis then flipping her on her back and forcing his penis into her mouth
JH spit into each woman’s mouth
JH sat on MB’s chest, pinning her arms under him, spat in her face, then twice forced her mouth open, and twice spat into her mouth
during the first anal rape, JB looked back at JH and he grabbed her head, opened her mouth and spat into her mouth; he repeatedly spat into her mouth
JH was indifferent to pleas to stop
MB repeatedly said “no, stop, I don’t want this, you’re hurting me”; she was crying
JB said “no, stop, you’re hurting me”; told him she was bleeding; she was crying
JH derided both women with crude language
JH told MB you’re mine now; your pussy’s mine now; you dirty little whore, you slut, you like this; this is what you deserve
JH called JB a slut and a dirty little pig and made animal noises at her like the oinking of a pig
JH repeatedly stopped both women from breathing
at one point when MB was lying face down on her stomach, JH pushed her head into the pillow to the point she felt like she would pass out
at one point JB remembered seeing her face turn red in the large mirror above the headboard and thinking she might die
JH did not wear a condom
JH did not wear a condom
JB did not believe that JH wore a condom but was not sure
ejaculation
MB did not know if JH ejaculated insider her, or how many times he ejaculated, but she had semen on her face, neck, stomach and back
JB did not know whether JH ejaculated but did not believe he did
Gaslighting
JH walked MB out, hugged her good bye and told her “I’m so happy you came, I can’t wait to see you again”
JH sent JB a message while she was in the cab to the train station that they had a wonderful day together, and he “can’t wait” to see her again
injuries
MB’s vagina was torn and bleeding, she had trouble walking and sitting, she had bruising between her legs and where she had been held down, she was sore in all the parts of her body she had been held or hit
JB’s vagina was bleeding and sore and JB believed it was torn, she had trouble walking and sitting, she had bruising between her legs, and she was very sore all over
[4] Similar fact evidence is a particular species or subset of evidence of extrinsic misconduct or bad character. Like all extrinsic misconduct, it is presumptively inadmissible unless the Crown can show that it is relevant and material, and its probative value exceeds its prejudicial effect. Like all extrinsic misconduct, the admissibility analysis begins by assessing probative value.
[5] In R. v. Handy, 2002 SCC 56, the Supreme Court of Canada explicitly recognized that the probative value of similar fact evidence lies in propensity reasoning: the common-sense proposition that people act in conformity with their character. Ordinarily such reasoning is anathema at a criminal trial because its potential for prejudice exceeds its probative value, but Handy recognized that it can become permissible where the propensity is so specific, and the pattern of conduct so distinct, that it would be an “affront to common sense to suggest that the similarities were due to coincidence”: Handy, at para.41. In such a case, probative value will overtake prejudice (both moral and reasoning prejudice).
[6] Both counsel agree that Handy, 2002 SCC 56 sets out the accepted approach to determining the point at which the probative value of similar fact evidence exceeds its potential for prejudice (see also R. v. Bent, 2016 ONCA 651, supplementary reasons at 2016 ONCA 722 and R. v. J.C., 2021 ONCA 787). Counsel part company respecting its application to the circumstances of this case.
[7] The Crown urges that the nature and circumstances of the two allegations are so similar that they establish a specific propensity to do the very thing alleged in the very circumstances alleged.
[8] Defence counsel disagrees. She points to a number of differences between the two allegations. In addition, she argues that when Mr. Hoggard’s anticipated testimony is considered,[1] almost all the similarities relied on by the Crown melt away because they are not contentious. Specifically, Mr. Hoggard will agree that he arranged to bring both MB and JB to his hotel room during the day, and that he had sex with them, more or less in the fashion they described. The only thing he disagrees about is whether the sex was consensual: he will testify that it was. In light of this anticipated evidence, defence counsel argues that the only similarities that remain relevant on the Crown chart are the “pinning down” of each complainant, and the “indifference to pleas of resistance” by both complainants. Defence counsel argues that these remaining similarities are entirely generic and cannot properly provide the basis for a similar fact instruction.
[9] When I consider the evidence of MB and JB in light of the Handy factors, I am satisfied that the jury could conclude that the evidence shows such a specific and distinctive pattern of conduct by Mr. Hoggard that it would defy coincidence that MB and JB would lie or be mistaken about Mr. Hoggard’s conduct. I will explain how I analyzed the Handy factors to reach this conclusion. Before doing that, however, I want to address the defence arguments that the Handy factors cannot properly support this conclusion.
[10] Defence counsel focuses on specific differences between the two allegations, such as the age of the complainants, how they met Mr. Hoggard, and the particular sexual acts performed in the hotel room, to argue that there is no distinctive pattern of conduct. While it is essential to carefully consider and assess these dissimilarities, I believe that the defence approach improperly parses the evidence and descends into an accounting exercise which effectively misses the forest for the trees: R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 SCR 333. Both the Supreme Court and our Court of Appeal have emphasized that the application of the Handy factors is not an accounting exercise:
The probative value of similar fact evidence is not determined by cataloguing the similarities and dissimilarities of the sexual acts alleged by different witnesses and comparing the length of the lists. The context in which the alleged acts occurred is at least equally important in determining the probative value of the evidence. The circumstances in which certain conduct occurs can lend a continuity and connection to that conduct, even if the physical acts described are different (R. v. Shearing, 2002 SCC 58, at para. 60; R. v. J.C., 2021 ONCA 787, at paras. 70-72): R. v. A.E.S.P., 2022 ONCA 405 at para.25.
[11] One of the most significant things missed, or improperly discounted, by the defence approach is the context in which the events are alleged to have occurred. In addition to noting specific differences, such as those I just set out, defence counsel discounts the context of the allegations, asserting that nothing should be taken from the fact that Mr. Hoggard communicated with the complainants through social media, arranged to meet each complainant at his hotel, including paying and arranging for their transportation, and took their cell phones, because this is simply how rock stars meet people for sex when they are on tour. I believe this discounting fails to recognize the reality of the situation and does a disservice to the search for the truth. Context has long been recognized as an important part of the similar fact analysis. As Justice Charron noted in R. v. L.B. (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont.C.A.) at para.37-39:
In cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents. This stands to reason, particularly where there is nothing unusual about the sexual acts in question. In most circumstances, the fact that one complainant was kissed as compared to the other being fondled may not have a whole lot of significance. The allegations all pertain to acts of a sexual nature. In the same way, and again depending on the circumstances, the fact that one assault occurred in the basement as opposed to the other in the bedroom may not be of consequence on the question of probative value. The different location may simply be attributable to a different opportunity for privacy. For example, in B. (C.R.), the similarities that the majority found to be sufficiently compelling essentially related to the context within which the assaults occurred and to what was distinctive about that context:
The fact that in each case the accused established a father-daughter relationship with the girl before the sexual violations began might be argued to go to showing, if not a system or design, a pattern of similar behaviour suggesting that the complainant’s story is true.
The question really boils down to one of human experience and common sense. Consider for example R. v. Litchfield, which exemplifies how a consideration of the similarities of the acts alone is not sufficient to determine the probative value of the evidence…..
It is therefore important to consider not only the acts themselves but all the circumstances in order to assess what similarities, if any, exist between the discreditable conduct and the alleged offence, and whether these similarities give the evidence probative value. Dissimilarities have to be considered in the same light in order to determine whether or not they detract from the probative value of the evidence. [emphasis added]
[12] Defence counsel distinguishes the similar fact cases which emphasize the importance of context on the basis that they invariably involve children or situations where consent is not possible. I do not accept this distinction. Not only does it run counter to the principled approach recommended in Handy, but it is not a significant distinction in the context of this case. Handy eschewed the old category approach to similar fact evidence in favour of a principled approach which carefully analyzes probative value in the context of the case. In this case, accepting that Mr. Hoggard will testify in the manner set out in the defence factum, he will agree to almost everything MB and JB say happened except that he will testify that the sex was consensual. The essential issue will be whether or not the sex was non-consensual. Credibility will be vital to determining this. The simplicity of this case is in many ways similar to the simplicity of a case where consent is not possible and the only issue is whether sexual contact occurred. Rather than did sexual contact occur, and the two different versions, our jury must consider whether the sex happened the way Mr. Hoggard says, or does the jury have a reasonable doubt about this? Or did it happen the way MB and JB say it did?
[13] I also believe that removing the similarities that defence counsel argues are not contentious will trench on the jury’s function. Ultimately it will be for the jury to assess the similarities and differences in the complainants’ evidence and determine whether they reveal such a distinctive pattern of conduct that it would defy coincidence that MB and JB are lying or mistaken. My only role at this stage is to decide whether the evidence is such that the jury could reach this conclusion, and therefore should be instructed about it.
[14] With that said, I will explain my application of the Handy factors to the circumstances of this case. The first step is to assess the probative value of the proposed similar fact evidence. This begins with determining the issue to which the similar fact evidence relates, and the chain of reasoning involved. In this case, the similar fact evidence is relevant to establish the actus reus of sexual assault (engaging in sexual acts in the absence of consent), and to support the credibility of the complainants. The chain of reasoning is the improbability of coincidence: (i) Mr. Hoggard has a specific propensity to virtually seduce young women and arrange to meet them alone in his hotel room where he sexually assaults them, including subjecting them to specific degrading acts, such as opening their mouths and spitting inside in the course of a forced sexual act; (ii) the evidence of each complainant that Mr. Hoggard acted in that particularized fashion.
[15] When I consider the evidence of both complainants, including the context giving rise to each encounter, I am satisfied that there is a strong nexus between the two allegations giving rise to an objective improbability that the complainants would coincidentally give the same evidence. In reaching this conclusion, I considered the following circumstances:
• The allegations of both complainants are proximate in time, occurring about six weeks apart. There is no suggestion that Mr. Hoggard changed or matured in this period that would tend to undermine the existence of the specific propensity alleged. Nor is there any evidence of an intervening act that could have had a similar effect.
• The context of both allegations includes distinctive similarities. Mr. Hoggard traded on his celebrity status to virtually seduce both young complainants and persuade them to meet him alone at his hotel during the day. While Mr. Hoggard met each complainant in a different context (MB was a fan; JB was a Tinder match), and the exact nature of the virtual seduction was different (he focused on romance with MB and sex with JB), for both he was charming and solicitous and built trust. He told MB he loved her and wanted her to have his babies. He told JB she was pretty and sang to her. The virtual seduction contained distinctive similarities: he invited both complainants back-stage at a Hedley concert; he exchanged nude photographs with both complainants; he sent both complainants a video of himself masturbating. Having built trust, Mr. Hoggard then invited each complainant to spend the day with him at his hotel when he was in Toronto. While the purpose of the plan was different, MB believed it was primarily romantic, whereas JB understood it to be essentially sexual, the logistics were very similar. For both the plan was to meet during the day, between about 11 am and 4 pm, at Mr. Hoggard’s hotel. Both complainants lived outside Toronto and Mr. Hoggard arranged for, and paid for, their transportation to and from the meeting (though JB had to pay for her own taxis to and from the train station). Both complainants were isolated and far from home and friends and family when they arrived at Mr. Hoggard’s hotel room.
• The specific allegations include distinctive similarities. Both complainants testified that Mr. Hoggard became a different person from the solicitous, charming person they believed him to be – MB described him as a “monster”; JB described him as a “psychopath”. Both were terrified. While the specific sexual acts alleged include generic acts, such as forced vaginal penetration with Mr. Hoggard’s penis, and forced fellatio, despite the pleas of both complainants to stop, and different sexual acts (cunnilingus and sitting on chest masturbating and ejaculating in face occurred only with MB; anal intercourse and requests for urination occurred only with JB), the sexual acts also included acts and circumstances that I find specific and distinctive, including:
o Physically controlling the complainants and flipping them back and forth from lying on their stomach and lying on their back (he anally penetrated JB with his penis while she was lying on her stomach then would flip her onto her back and force his penis into her mouth; despite repeated attempts, he was not successful in penetrating MB’s anus with his penis, but she testified that he flipped her from front to back while forcing unwanted sexual acts). While MB testified that Mr. Hoggard held her down during the entire encounter, whereas JB was not held down after the initial anal rape, I believe this difference is a function of necessity and not a distinguishing feature, i.e. he did not need to hold JB down after the initial anal rape.
o Deriding both complainants by calling them whores and sluts in the course of forced sexual acts.
o Spitting inside each complainant’s mouth during a forced sexual act (masturbating in MB’s face and penetrating JB’s anus with his penis).
o Stopping each complainant from breathing while forcing sex on them (he pushed MB’s face into the pillow until she thought she would pass out; he choked JB until she thought she was going to die).
o He did not wear a condom (though whether or not he ejaculated is different - MB had ejaculate on four places on her body whereas JB was not sure whether he ejaculated).
o Both complainants received similar injuries as a result of the sexual assault, including bleeding from the vagina, and similar bruising and soreness.
• When the forced sex was over, Mr. Hoggard Gaslighted both complainants. He walked a shell-shocked MB out to the lobby and hugged her and told her he was so happy she came, and he “can’t wait” to see her again. He sent a shell-shocked JB a message while she was in the cab on the way to the train station that they had a wonderful day together, and he “can’t wait” to see her again.
• There is no alternate explanation for the distinct similarities that could undermine the improbability of coincidence. MB and JB do not know each other, or anything about each other, or their respective allegations. MB was aware that there was an article about allegations of sexual assault by Mr. Hoggard in 2018 (it related to JB), but she did not read it beyond checking to see if charges had been laid (they had not at the time).
[16] After considering all these circumstances, I am satisfied that the nexus between the two allegations is strong and specific and the potential probative value of the similar fact evidence is high. While the fact that there are only two events significantly diminishes the strength of the connection, each allegation arises from a very specific and similar context and suggests a distinct modus operandi. In addition, there is a striking similarity between an unusual feature both complainants describe happening during the alleged sexual assault – Mr. Hoggard opening their mouths and spitting inside. I believe that these features compensate for the fact that there are only two complainants.
[17] The second step in the analysis involves assessing the prejudice of permitting a similar fact instruction. Prejudice refers to both moral prejudice and reasoning prejudice. Moral prejudice includes both the risk that the trier will engage in prohibited propensity reasoning (that an accused has a general propensity to engage in the kind of conduct at issue) and seek to punish the accused because he is generally a bad person, or has done bad things: R. v. Handy, at paras.37-40, 137-142. Reasoning prejudice considers whether the trier of fact “may become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations”: R. v. Shearing, at para. 68.
[18] The fact that MB was only 16 years old at the time of the alleged sexual assault does give rise to a risk of moral prejudice. So does the inclusion of the charge of sexual interference in relation to MB on the same indictment. But even if the jury finds that Mr. Hoggard groomed, groped and deceived MB, that is a long way from being a rapist. As I noted in the severance application (R. v. Hoggard, 2020 ONSC 5588 at paras.24-25), the alleged misconduct in relation to MB leading up to the alleged sexual assault pales in comparison with what is alleged to have occurred in both hotel rooms. I believe that determining what happened in each hotel room will properly be the focus of the jury’s attention. In this regard, the two counts of sexual assault cause bodily harm are of similar seriousness. In sum, I believe the risk of moral prejudice is manageable with the appropriate jury instruction.
[19] Given that the two counts of sexual assault are together on the same indictment, the risk of reasoning prejudice is diminished. The jury must sort through both allegations regardless. Further, there are only two complainants. While this could diminish the potential probative value of the similar fact evidence (I have explained why I conclude it does not in this case), it limits the danger of distraction by too many allegations. I do not believe there is a danger of “inflaming the jury, causing them to give the similar fact evidence more weight” than it deserves: Bent, at para.74. Again, I believe the jury will be properly focussed on what happened in each hotel room.
[20] Defence counsel argues that a count to count similar fact instruction poses a risk of reasoning prejudice because it will make the jury instruction more complex. The jury must sort through the similar fact chart in deciding whether to consider the evidence of each complainant across counts, and then sort through the very same evidence in deciding what happened and whether the Crown has proven beyond a reasonable doubt that the sex was non-consensual. I do not view this as a problem. It simply means that the jury will analyze the very evidence that it must carefully consider in deciding the case. This is manifestly different from a case where the jury will have to spend time sorting out evidence which is of marginal value.
[21] In the third and final stage of the analysis I must weigh the probative value of the evidence against its prejudicial effect. When I do this, I am satisfied that the potential probative value of similar fact reasoning exceeds its potential for prejudice. As a result, I will give the jury a cross-count similar fact instruction. Ultimately it will be for the jury to decide whether there is a distinctive pattern of conduct that defies coincidence, and if so, what if any weight to give it.
G. ROBERTS J.
RELEASED: May 19, 2022
COURT FILE NO.: CR-19-10000463
DATE: 20220519
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
JACOB HOGGARD
REASONS FOR JUDGMENT
G. ROBERTS J.
RELEASED: May 19, 2022
[^1]: Defence counsel forcefully argues that I must consider Mr. Hoggard’s anticipated testimony. If I do not, defence counsel asserts she will simply seek to re-open the similar fact issue after the evidence is complete.