COURT FILE NO.: CR-15-21
DATE: 2022-06-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.M.
Mr. M. Godinho, for the Crown
Mr. R.M., Self-Represented
Mr. B. Neil, Amicus Curiae
Mr. D. Hotz, as 486.3 counsel
HEARD: June 14, 2022
REASONS FOR DECISION – CROWN’S SIMILAR ACT APPLICATION
CONLAN J.
I. Introduction
The Charges
[1] Mr. R.M. stands charged with two counts of attempted abduction of his son from the boy’s school, on two consecutive days in December 2018, plus one count of assault and one count of unlawful confinement, both of those charges also involving the same child and also stemming from the same offence date as the second attempted abduction. There is a fifth count on the Indictment, unrelated to this application.
[2] The matters are being tried in the Superior Court of Justice, with a jury. The jury will start deliberating tomorrow.
The Application
[3] The Crown brings a count-to-count similar act application, specifically with regard to counts 1 and 5 – the two attempted abductions of the accused’s son from the boy’s school on two consecutive days in December 2018.
The Positions of the Trial Participants
[4] R.M. acts for himself. He made no submissions on the application. Mr. Neil, appointed as amicus curiae, reminded this Court of the presumptive inadmissibility of similar act evidence, although he rightly acknowledged the rather strong similarity between what allegedly happened at the school on the first day and what allegedly happened at the school the day after. Mr. Hotz, counsel appointed to cross-examine two child witnesses at trial, including the son of the accused, submitted that he might have questioned the son of the accused differently, especially regarding the events on the first day, had he known about the Crown’s application. Through no fault of the Crown, Mr. Hotz was unaware of it (at least not turning his mind to it) at the time of his questioning of the said child.
[5] The argument by the Crown, a solid one, is that the application ought to be granted as the evidence at trial (now completed) suggests a strong similarity between the two alleged events at the school, high probative value in terms of whether R.M. had the necessary criminal intent on either or both dates, but especially on day one, and minimal prejudicial effect.
The Hearing of the Application
[6] Submissions on the application took only a few minutes of Court time. The Crown had previously filed a factum (dated 17 September 2021), which I have now read.
II. Analysis
The Law
[7] Similar act evidence is presumptively inadmissible. That is because it amounts to evidence of bad character, disposition, and general propensity. The burden is on the Crown to rebut that presumption on a balance of probabilities. The Crown must show that the proffered evidence is relevant to an issue in the case and that its probative value exceeds its prejudicial effect. R. v. Handy, 2002 SCC 56, at paragraph 55, and R. v. Tsigirlash, 2019 ONCA 650, at paragraph 26.
[8] There are several steps in the process to admitting similar act evidence, but the first two require (i) a clear identification of the issue that the proposed evidence goes toward, and (ii) an assessment of the degree of similarity between the events in question. R. v. Handy, supra.
[9] To address a potential mens rea argument is a legitimate reason for which similar act evidence may be ruled admissible. It is also true that the test for admission of count-to-count similar act evidence is not quite as rigorous as it is regarding extrinsic similar act evidence.
[10] There is no closed list of factors that the Court can consider in assessing the degree of similarity between the events in question, and the Court’s function is not to simply add up the number of similarities and the number of differences, but rather the task is to determine whether there is a “persuasive degree of connection” between the alleged events. R. v. Handy, supra, at paragraphs 82 and 123, and R. v. Johnson, 2011 ONSC 195, at paragraphs 136-137, and R. v. Bent, 2016 ONCA 651, at paragraphs 42-44, and R. v. Shearing, 2002 SCC 58, at paragraphs 48 and 60, and R. v. J.H., 2018 ONCA 245, at paragraph 20, and R. v. S.C., 2018 ONCA 454, at paragraph 23.
The Application of the Law to our Case
[11] I am persuaded on balance that the Crown has satisfied all necessary ingredients of a successful similar act application but for one – the overall balancing of probative value versus prejudicial effect. I have decided to dismiss the application on the latter basis.
[12] I would describe the probative value of the proffered evidence as being moderately high but not very high. It is not very high because, according to the child’s evidence at trial, the persistence or determination of the accused (things related to criminal intent) on day two were markedly different than what they were on day one. Essentially, per the child, on day two, R.M. forcefully grabbed him and pulled him towards a waiting car, while on day one R.M. exchanged a pleasant hello with the boy and then the boy ran away, with some uncertainty in the evidence as to whether R.M. gave any chase. On that evidence, I agree with the Crown that what allegedly happened on day two could strengthen the Crown’s argument that the accused intended to abduct the child on day one, but I also think that an equally strong inference is that the man had no such intention on day one but rather was angered by the boy’s reaction on that day, which anger spawned the accused’s intention on day two.
[13] On the other side of the coin, I would describe the prejudice to R.M. as very high. The first mention of the application at trial was after the accused elected not to testify and after the completion of the defence evidence. I am concerned that he might have made a different decision about his defence strategy if the application had been raised before any defence evidence was called. Further, I am concerned that Mr. Hotz may have employed his questioning of the child differently had he been thinking about the application at the time. Finally, I am concerned that the jury will use the evidence on count 5, which frankly is overwhelming, for much more than the issue of criminal intent as it applies to count 1. The practical result, I fear, despite any instructions that this Court may give, will be an automatic verdict of guilty on count 1. That would be an injustice.
III. Conclusion
[14] For these brief reasons, the application by the Crown is, therefore, dismissed. I reserve the right to deliver more fulsome reasons at a later date, but I wanted the trial participants to have something before their closing addresses are delivered.
Conlan J.
Released: June 14, 2022
COURT FILE NO.: CR-15-21
DATE: 2022-06-14
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R.M.
REASONS FOR DECISION – CROWN’S SIMILAR ACT APPLICATION
Conlan J.
Released: June 14, 2022