COURT FILE NO.: CR-19-300000340-0000
DATE: 20221012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
H.W.
Kevin Pitt, for the Crown
John Fennel, for H.W.
HEARD: July 19, 2021
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner. This judgment complies with these restrictions so that it can be published.
R. MAXWELL J.
Introduction
[1] The accused is charged with sexual assault and sexual interference in relation to A.M. and S.M., two of his common-law partner’s daughters. The offences are alleged to have taken place at a home on Burrows Hall in Toronto, which the accused shared with the complainants’ mother, L.D.
[2] The accused elected to be tried by judge and jury.
[3] The Crown seeks to introduce, as similar fact evidence on the trial, the evidence of J.D., another of L.D.’s children and the half-sister of A.M. and S.M. The accused was originally charged with counts of sexual assault and sexual interference in relation to J.D. However, when the matter proceeded to its preliminary hearing on May 9, 2019, J.D. was unavailable for the preliminary hearing and the Crown withdrew the counts related to her. The Crown put counsel on notice of its intention to seek to have J.D.’s evidence admitted as similar fact evidence at the trial on the counts related to A.M. and S.M.
[4] Counsel agreed that the evidence on the voir dire would consist of the evidence of J.D., the transcripts of the statements provided by A.M. and S.M. on May 2, 2018, and the transcripts of A.M. and S.M.’s evidence at the preliminary hearing on May 9, 2019.
[5] The Crown also advised of its intention to seek an order to apply the evidence of each complainant “cross-count”, as similar fact evidence. This application will be brought in full at the close of the evidence once the record before the court is complete.
[6] On July 20, 2021, I provided brief oral reasons granting the Crown’s application to admit J.D.’s evidence, with reasons to follow. These are my reasons.
Summary of the Evidence
The Allegations Made by A.M. (complainant)
[7] A.M. provided a statement to the police on May 8, 2018 and testified at the preliminary hearing on May 9, 2019. She was 27 years old at the time of the preliminary hearing.
[8] In her statement to the police, A.M. stated that when she was 10 or 11 years old, she was visiting her mother at her address on Burrows Hall. She saw her mom “every blue moon” because she was living with her father at that time. She recalled it was a weekend in the summer. She believed it was 2001 or 2002.
[9] Late one night, she was watching a movie in the basement of Burrows Hall with the accused, her older brother, S.M., and J.D.
[10] A.M. was lying on top of a pair of large stereo speakers during the movie. Her brother and sisters were on the floor. The accused began rubbing A.M.’s feet. In her statement to the police, she described her reaction as follows: “I’m like, okay, like I’m 10 I’m not really, you know, I don’t, I don’t, I didn’t take anything in as bad as yet.” She then felt the accused begin to run his hand up the leg of her pajama pants to touch her calves and thighs.
[11] A.M. fell asleep during the movie but awoke to the sensation of the accused’s hand going up through the leg of her pajama pants, then up to her vagina. She stated that the accused touched her vagina directly with his hand to her bare skin. In her statement, she described the accused as “playing” with her vagina. Her description of the incident in her testimony on the preliminary hearing was very similar, although she added that the accused moved his hand in a circular motion around the outside of her vagina.
[12] Sometime later that night, she woke up to find her pants were half-way down and the accused was positioned behind her, saying “[short form of A.M.’s first name], can I?” and “[short form of A.M.’s first name], may I” while trying to put his penis in her vagina. She stated that she felt a burning sensation and warmth. She stated that the accused was not able to completely penetrate her, but that “the tip” of his penis entered her vagina. She “nudged” him away and fell back asleep.
[13] In both her statement to the police and in her testimony on the preliminary hearing, A.M. stated that her siblings were present in the room when the touching began. She was unsure of when they left, but recalled that none of her siblings were in the room when she awoke to the accused speaking to her and attempting to touch her vagina with his penis.
[14] A.M. also alleges that the next day, she and her mother were sleeping in the living room on the main floor, each on a couch. The accused knocked on the sliding door and her mother let him in, then went back to sleep on the couch. A.M. alleges that she awoke to the smell of peppermint tea in the kitchen. The accused came from the kitchen and knelt in front of her. He began touching her vagina with his hand, skin to skin. She “tightened up” her body to make it more difficult for him to touch her, at which point he stopped and left the room.
[15] In her statement and in her testimony on the preliminary hearing, A.M. stated that she discussed the allegations with an aunt in 2009 or 2010, at which time she learned about J.D.’s allegations. She also learned at that time that S.M. complained of being assaulted by the accused as well. Prior to this time, she was unaware of either S.M. or J.D.’s allegations.
[16] Later, in 2013, she and both of her sisters confronted their mother with the allegations. Their mother did not believe them. She, J.D., and S.M ultimately decided to speak to the police about what happened.
[17] The details around each complainants’ disclosure to the other, to J.D. to their mother, and to the police, will be discussed in greater detail below when I address the issue of collusion.
The Allegations Made by S.M. (complainant)
[18] S.M. provided a statement to the police and testified at the preliminary hearing. She was 28 years old at the time of the preliminary hearing.
[19] She alleges that when she was 10 or 11 years old, she was visiting her mother at her address on Burrows Hall. She could not remember the date. In her statement to the police, she estimated that the incidents occurred in “probably 2000, 2001, 2002”, but also indicated that she could not recall the date. In her evidence at the preliminary hearing, she stated that the incident occurred between 2001 and 2003.
[20] S.M. recalled that she had a boil on her hand. Her siblings were watching a movie in the basement. The accused asked her to come to his room so that he could drain the boil.
[21] Once inside his room, the accused pushed her onto the bed into a prone position and attempted to lift her shirt and pull down her pants. S.M. began to cry and the accused stopped and told her not to cry.
[22] In her statement to the police and in her evidence on the preliminary hearing, S.M. stated that she fell asleep.
[23] When she awoke around midnight, she felt the sensation of a warm touch on her vaginal area. She alleges that the accused was sitting in front of her on the floor, putting his hands or lips on her vaginal area. She described his face being at her vaginal area, making contact over her clothing.
[24] She was unsure of when her sister A.M. came into the room, but realized her sister was asleep in the bed with her when she awoke to the sensation of the accused touching her.
[25] She also stated that the accused continued to touch her while she slept throughout the summer. She described non-specific incidents of the accused touching her vaginal area with his hand while she slept in the living room. She would awake to find the accused quickly putting his head down and acting as though he was sleeping. She indicated this happened fairly regularly, at least once if not twice during weekend visits, every couple of weeks.
[26] The circumstances surrounding S.M.’s disclosure of the allegations to A.M., to her mother, to J.D., and to the police, will be discussed below.
The Allegations Made by J.D (proposed similar fact evidence)
[27] J.D., who is now 24 years old and testified on the voir dire. She was 21 at the time of her statement to the police in May of 2018.
[28] She testified that her mother met the accused when she (J.D.) was 6 years old and that the incident occurred about a year after they met, when the family moved to the Burrows Hall address. Of the incident, she stated that she was lying down on a bed in the basement when she awoke to find the accused rubbing his penis between her legs on her vaginal area. The accused stopped when she startled and was clearly awake. She testified that her brother and his sister were in the bed as well.
[29] She recalled being “very moist” when she woke up, but could not say whether or not the accused ejaculated on her. She acknowledged, in cross-examination, that she did not mention feeling “very moist” in her statement to the police in 2018.
[30] She testified that she told her brother shortly after the incident, telling him that the accused “rubbed his thing where my butt is”. Her brother told their mother. Her mother brought J.D. and the accused into the same room. The accused denied the allegations. J.D. testified that her mother did not believe her allegations.
[31] She testified that, after that, the accused periodically made inappropriate comments or contact with her, but nothing to the level of this incident. She recalled that when she was 12, the accused walked into the washroom while she was showering and asked her if she was ok while she tried to cover her genitals. J.D. found the accused’s conduct to be odd.
[32] In cross-examination, she recalled that after she reported the abuse to her mother, her mother checked her for bruises told her she would take her to a doctor. She testified that her mother never actually took her to see a doctor.
[33] She did not say anything further about the incident until years later when she spoke with A.M. and S.M. about it.
[34] The circumstances surrounding J.D.’s disclosure of the abuse to her mother, an aunt, to A.M. and S.M., and the police will be discussed in greater detail below.
The Applicable Law
[35] Similar fact evidence is presumptively inadmissible. The exclusionary rule prohibits the use of character evidence as circumstantial proof of conduct, i.e., to infer from the similar facts that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty.
[36] On a similar fact application, the onus is on the Crown to establish, on a balance of probabilities, that the proposed similar fact evidence is relevant and probative in relation to a material fact in issue, and that its probative value outweighs its prejudicial effect on the fairness of the trial.
[37] The Supreme Court of Canada in R. v. Handy, 2002 SCC 56, set out the steps to determine whether similar fact evidence is admissible.
[38] First, the probative value of the evidence must be assessed, having regard for (a) the issues in the case; (b) the similarities and dissimilarities between the facts charged and the similar fact evidence, (c) the strength of the evidence that the similar acts actually occurred, and; (d) the potential for collusion: See also R. v. Bent, 2016 ONCA 651, 342 C.C.C. (3d) 343, at paras. 38-44.
[39] Second, the potential prejudice of the similar fact evidence must be assessed, having regard for the risk of (a) moral prejudice, ie. the risk of the accused being convicted because his guilt is inferred from general disposition or tendencies; and (b) reasoning prejudice, ie. the risk that the jury may become distracted or that the evidence may consume too much time with issues other than the actual charges before the court.
[40] Finally, the probative value of the evidence must be weighed against its prejudicial effect. Only where the probative value of the evidence outweighs its potential prejudice should the evidence be left with the jury for consideration: Handy, at para. 55.
Analysis
The Probative Value of the Proposed Evidence
(a) Identification of the Issue(s) in Question
[41] An analysis of the probative value of the evidence must begin with an assessment of the relevance or materiality of the proposed evidence: Is the evidence of discreditable conduct relevant to a material issue in the case?: R. v. M.A.G. 1997 3187 (ON CA), [1997] O.J. No. 3042 (Ont. C.A.).
[42] It is trite to say that general disposition of the accused does not qualify as an “issue in question” for which similar fact evidence may be admissible. Evidence that tends to show bad character or a criminal disposition on the part of the accused is admissible only if it is relevant to some other issue beyond disposition or character and the probative value outweighs the prejudicial effect: R. v. B. (F.F.), 1993 167 (SCC), 1 S.C.R. 697, at p. 731.
[43] The Crown must establish “the specific factual issue on which the evidence is probative of the improbability of coincidence,”: Handy, at para. 74; R. v. M.B., [2008] O.J. No. 2358 (Ont. S.C.), at para. 41.
[44] The Crown submits that the similar fact evidence is probative and material to the issue of fabrication, the credibility of the complainants, and to the actus reus of the present charges in establishing the particularly distinct circumstances surrounding the commission of the offences, including the accused’s willingness to engage in sexual acts in the family home and the accused’s willingness to sexually abuse the daughters of his long-term partner over whom he had a measure of parent-like authority.
[45] While credibility, on its own, is not a factual issue on which similar fact evidence can be admitted, the Crown may tender similar fact evidence to support the credibility of the complainants provided that the Crown has identified a material issue to which the complainant’s credibility is probative.
[46] The Crown submits that the similar fact evidence of specific propensity is admissible to support the credibility of each complainant's claim that they were assaulted in the manner that they described: R. v. R.B. (2005), 2005 30693 (ON CA), 77 O.R. (3d) 171 (C.A.), at paras. 10-11, leave to appeal refused, 2006 4730 (S.C.C.); R. v. T.C. (2005), 2005 371 (ON CA), 74 O.R. (3d) 100 (C.A.), at para. 56; R. v. D.(T.J.) (2004), 2004 39037 (ON CA), 185 O.A.C. 336 (C.A.), at para. 6; R. v. Whitehead (2004), 2004 32255 (ON CA), 190 O.A.C. 264 (C.A.), at para. 15. Evidence that the accused has an established, defined, situation-specific propensity to engage in a similar pattern of conduct is probative of whether the incidents that A.M. and S.M. describe actually occurred.
[47] In my view, the proposed similar fact evidence is probative of a material issue, that is, the complainants’ credibility as it relates to the actus reus of the offence. The cogency of the similar fact evidence as it relates to the actus reus lies in the fact that the similar fact evidence is capable of giving rise to an inference that the accused has a specific propensity to engage in sexual touching of pre-pubescent children, who are female and not his biological children, within the family home, exploiting his status as the boyfriend of their mother.
[48] The surrounding circumstances of the incidents, including consideration of the relationship between the accused and the complainants and the location of the incidents, contribute to the probative value of the similar fact evidence: R. v. J.M., 2010 ONCA 117, at para. 91; R. v. J.H., 2018 ONCA 245, at para. 21; R. v. S.C., 2018 ONCA 454, at para. 23; R. v. T.C., 2019 ONCA 898, at paras. 50-52, 60.
[49] The evidence is probative of the truth of the accounts in that it shows a pattern of behaviour that tends to confirm the complainants’ testimony that the abuse took place: R. v. Brown, [2006] O.J. No. 5276 (CA), at para. 8; R. v. T.B. 2009 ONCA 177, [2009] O.J. No. 751 (CA), at paras. 22-25.
[50] In addition, the similar fact evidence may be probative of the issue of fabrication.
[51] The similar fact evidence is not being adduced for the purpose of demonstrating a general disposition to engage in sexual misconduct against children.
(b) The Similarities and Dissimilarities Between the Facts Charged and the Similar Fact Evidence
[52] The principal driver of probative value is the nexus or connectedness of the similar fact evidence to the offences alleged, particularly where the connections reveal a degree of distinctiveness: R. v. B.(C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717; R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339
[53] The degree of similarity required will depend upon the issues in the particular case, and the purpose for which the evidence is sought to be introduced. The Court of Appeal for Ontario noted in R. v. Cresswell, 2009 ONCA 95, [2009] O.J. No. 363 (Ont. C.A.), at para. 19, that admissibility is conditioned by the issue to which the evidence is directed. The court observed that for certain issues, for example identity, distinctive features of conduct which amount to a “signature” may be required to establish the evidence’s probative value. However, where the issue is actus reus, similar fact evidence with “less cogent similarities” may nevertheless be admissible because the evidence supports compelling inferences.
[54] In Handy, at para. 82, the Supreme Court set out a non-exhaustive list of factors connecting the similar fact evidence to the circumstances set out in the charges. Those factors include:
Proximity in time of the similar acts;
Extent to which the other acts are similar in detail to the charged conduct;
Number of occurrences of the similar acts;
Circumstances surrounding or relating to the similar acts;
Any distinctive features unifying the incidents;
Intervening events;
Any other factor which would tend to support or rebut the underlying unity of the similar acts.
[55] The Crown argues that the allegations as between J.D., A.M., and S.M. are sufficiently similar to pass the threshold admissibility criteria for similar fact evidence set out in Handy.
[56] The defence submits that the evidence is not sufficiently similar to pass the threshold admissibility criteria set out in Handy in that that there are few similarities and a lack of distinctive features between the similar fact evidence and the anticipated evidence of A.M. and S.M.
[57] I will now consider each of the factors set out in Handy which guide the assessment of identifying similarities and dissimilarities in the evidence.
(i) Proximity in Time
[58] The alleged abuse took place in the time span between 2000 and 2005. Both of the complainants and J.D. were uncertain of the years and provided estimates. For example, in both her statement to the police and in her evidence at the preliminary hearing, A.M. stated that the incidents with the accused occurred in 2001 or 2002. She recalled that the incidents occurred during summer break in July or August at their mother’s house on Burrows Hall. She recalled being 10 or 11 years old.
[59] In her statement to the police, S.M. was uncertain of the date the incidents occurred, indicating “it was, probably 2000, 2001, 2002”. Later in her statement, she stated it could have been 2002, but that she “couldn’t tell you the exact year”. In her evidence at the preliminary hearing, S.M. stated that the incidents happened “between 2001, 2003”. She recalled the incidents occurring during summer weekend visits to their mother’s home on Burrows Hall. She recalled being 11 or 12 years old.
[60] J.D. testified that the abuse happened between 2003 and 2005 in the summertime at Burrows Hall. She testified she was 7 or 8 years old.
[61] Mr. Fennel argues that the time gap of as much as five years between the incidents involving A.M. and S.M. and those involving J.D. diminishes the probative value of the evidence. He further argues that, based on J.D.’s acceptance during her testimony that her mother only met the accused in 2003, it is not possible that he assaulted A.M between 2001 and 2002, as A.M. stated.
[62] Despite the uncertainty around the timing of the sexual assaults alleged by A.M. and S.M., I find that the similar fact evidence of J.D. is sufficiently proximate in time to the assaults alleged by the complainants. The total period of time of the alleged assaults is in the range of 4-5 years. The incidents are all temporally linked to the time period when the complainants and J.D.’s mother lived at the Burrows Hall address with the accused.
(ii) The extent to which the other acts are similar in detail to the charged conduct
[63] There are a number of similarities between the other acts the Crown seeks to rely on and the allegations related to A.M. and S.M.:
The allegations of abuse all took place in the family home. The anticipated evidence suggests that the family moved frequently, but J.D. and the complainants all recall the abuse taking place at the address on Burrows Hall in the summertime;
Both complainants and J.D. described similar types of sexual contact. All three allege that the accused touched their genital area with his hand, face, or his penis. All allege being asleep and waking up to find the accused touching them on the vaginal area; In the case of J.D., she alleges that the accused rubbed his penis between her legs near her vaginal area while she was sleeping. A.M. alleges that the accused touched her vagina with his hand while she dozed off during a movie. She alleges, during the same incident, that she awoke to find her pants halfway down and the accused attempting to insert his penis into on her vagina. Further, she alleges that, the next day, the accused touched her vagina with his hand while she lay sleeping on a couch in the living room. S.M. alleges that the accused put his face to her vaginal area, over her clothing and, at various times, touched her vagina with his hand while she slept;
The complainants and J.D. all share the same relationship with the accused. They are the daughters of the accused’s domestic partner. While perhaps not in a parent-like position over them, the accused was present in their lives with a measure of authority over them, as their mother’s boyfriend, for a number of years. They are also linked in that they are not the accused’s biological children;
Both complainants and J.D. were young, pre-pubescent girls when the abuse occurred. S.M. recalled being 11 or 12 years old, A.M. was 10 or 11 years old, and J.D. was 7 or 8 years old. Mr. Fennel argues that the age gap between J.D.’s age and the complainants’ ages at the time of their respective allegations is a dissimilarity between the circumstances. I do not agree. In all three cases, the girls were pre-pubescent girls. While J.D. was younger than the complainants, the complainants were not substantially older than J.D.;
In each instances, the alleged conduct took place when there were others immediately present, or in the house. J.D., A.M. and S.M. all allege that the accused engaged in the abuse despite the risk of discovery. In the case of A.M., the accused attempted to run his hand up the inside of her legs while they were in the basement, in the company of other family members. A second incident allegedly occurred when her mother was sleeping on the couch in the same room. In the case of S.M., the family was watching a movie in the basement when she was alleged assaulted inside a bedroom room just off of the main room in the basement. During another incident, her sister A.M. was sleeping in the bed with her. In the case of J.D., her brother and another child were in the bed when the accused allegedly assaulted her;
Both complainants and J.D. allege that the accused stopped when they awoke, changed their body position, or cried in order to stop the assault;
The narrative of reporting the incidents to their mother is similar. A.M. and S.M. stated that they went together to tell their mother about the abuse and she did not believe them. J.D. testified that she disclosed the abuse to her mother and her mother did not believe her.
[64] There are some dissimilarities between the evidence of the complainants and the evidence of J.D. In particular, S.M.’s first incident, in which the accused tried to lift her top and lower her pants while inspecting a boil on her hand, has different features from the other incident she complained of, or the incidents involving A.M. and J.D. Further, S.M was awake during this alleged incident.
[65] There are also some discrepancies between the anticipated evidence of A.M., S.M., and J.D. on some of the details surrounding the incidents. For example, as Mr. Fennel points out, A.M. recalls that the family was watching the movie “13 Ghosts” on the night of the first incident in the basement. S.M. stated that the family watched the movie “Ghost Ship” and does not recall watching the movie “13 Ghosts”. J.D. recalled watching the movie “13 Ghosts” but believed the family watched the movie in the living room. She could not recall whether there was a television in the basement. She had no recollection of seeing the movie “Ghost Ship”.
[66] As already discussed, there are also some discrepancies on the issue of what year(s) these events took place. Neither of the complainants nor J.D. have a clear recollection of the years of the alleged assaults, although they each have a recollection of roughly how old they were when the incidents occurred.
[67] Mr. Fennel also points out that there are discrepancies in the anticipated evidence of the complainants and J.D.’s evidence about when the incidents were disclosed to their mother, and to each other. The timeline of the disclosure is discussed below.
[68] In considering the similarities and dissimilarities of the evidence, I am mindful of the Supreme Court’s direction in R. v. Shearing, (2002) 2002 SCC 58, 165 C.C.C. (3rd), 225 (SCC), at para. 60, to avoid an approach that is overly microscopic or macroscopic in analyzing the similarities and dissimilarities in the evidence.
[69] As the court in Shearing observed at para. 60, an overly microscopic approach can exaggerate and artificially multiply dissimilarities. A macroscopic approach may make identifying similarities to facile. The balance is best struck not by doing a tabulation of similarities and dissimilarities, but by assessing how much the similarities demonstrate a specific propensity by the accused to engage in sexual contact with children in circumstances that are uniquely unifying, or in contrast, how much the dissimilarities detract from the inference that the accused has a specific propensity to commit the offences in a similar manner.
[70] In my view, the similarities in the anticipated evidence of A.M. and S.M. and that of J.D. go beyond generic similarities that might suggest a general propensity on the part of the accused to sexually assault young girls. The particulars of J.D.’s allegations are sufficiently similar to the charged conduct to support an inference that the accused may have been acting in conformity with a specific disposition.
[71] The distinctive similarities between the charged conduct and the similar fact evidence include that (1) the complainants and J.D. all share the same relationship with the accused, in that they are the daughters of his girlfriend and they do not share a biological relationship with him; (2) they are all pre-pubescent girls; (3) the abuse took place in the family home, mostly in the basement; (4) the abuse involved sexual touching of the vaginal area; (5) the abuse occurred when others were in the home and even in the immediate vicinity; (6) the abuse occurred when the girls were asleep; (7) the accused stopped when the girls would startle, resist, or wake up.
[72] The differences that exist across the incidents do not undermine the inference that the Crown seeks to draw that the accused has a specific propensity to assault the female children of his common law partner in the family home. The unifying features are the ages of the girls (all pre-pubescent), their relationship to the accused, the location of the incidents, and the nature of the touching.
[73] In my view, the discrepancies in the anticipated evidence of A.M. and S.M. and the evidence of J.D. as to when they disclosed the abuse to each other and when they disclosed the abuse to their mother does not represent a dissimilarity that undermines the unifying aspects of the circumstances of abuse they each describe. Similarly, the inference of specific propensity does not rest on the particular year the incidents allegedly occurred.
(iii) Number of Occurrences of the Similar Acts
[74] A.M. alleges that there were three incidents of sexual touching, two on the same night and the third the next day. S.M. alleges two incidents of sexual touching on the same day as well as periodic incidents of the accused touching or attempting to touch her vaginal area while she slept. J.D. alleges one incident of sexual touching.
[75] While a greater number of incidents might tend to increase the overall probative value of the similar fact evidence, I note that the admissibility of similar fact evidence is not a numbers exercise. As the Court of Appeal for Ontario held in R. v. J.W., 2013 ONCA 89, [2013] O.J. No. 654 (CA), at para. 49, the question is whether the accused’s conduct with J.D. is indicative of a situation-specific pattern of conduct, making it more likely that he engaged in the same conduct with A.M. and S.M.
(iv) Circumstances Surrounding or Related to the Similar Acts
[76] I have already reviewed the similarities and dissimilarities in the circumstances surrounding the similar acts and the conduct which forms the subject matter of the charges.
(v) Any Distinctive Features Unifying the Incidents
[77] As summarized above, the charged conduct and the similar acts are unified in that they all involve pre-pubescent girls with the same relationship to the accused. They all involve sexual touching of the vaginal area. All the incidents took place in the family home in the presence of others.
[78] In addition, I would note that accused is the biological father of three children (not with L.D.), at least one of whom is a daughter. He also has biological daughters with L.D. While the accused’s biological children did not live with the accused full time, J.D. testified that they were often at the house. She testified that some of the accused’s biological children were present in the home when her incident with the accused occurred.
[79] There is no suggestion that the accused abused any of his own biological children or any of the complainants and J.D.’s male siblings.
[80] As such, based on the evidence, there is an inference available that the accused singled out A.M., S.M, and J.D., as female children with whom he did not share a biological relationship. This is a further distinctive feature unifying the incidents.
(vi) Intervening Events
[81] Neither party argues that there were any intervening events which impact the probative value of the similar fact evidence.
(c) Strength of the Evidence that the Similar Fact Evidence Actually Occurred
[82] Mr. Fennel argues that the Crown has not established the strength of the evidence that the similar facts actually occurred, as J.D.’s allegations have not been proven in court.
[83] He also points out the lack of corroborative evidence to support J.D.’s claim. Specifically, he notes that J.D. testified that after she disclosed the incident to her mother, her mother said she would take her to the doctor for an examination. However, that never happened. Any medical or forensic evidence that might have confirmed or contradicted J.D.’s claim of sexual contact does not exist.
[84] To be admissible, the similar fact evidence must be reasonably capable of belief: Handy, at paras. 134-136. The evidence must also be capable of supporting the inferences identified by the Crown: Handy, at paras. 94-96.
[85] While J.D.’s evidence was not tested at the preliminary hearing because she did not attend, she was called as a witness on this voir dire and was thoroughly cross-examined by Mr. Fennel.
[86] The credibility of J.D.’s account was challenged on a few specific factual matters. For example, it was suggested that her evidence on the voir dire that she felt moisture after the accused put his penis between her legs was inconsistent with her statement to the police that the accused did not ejaculate on her.
[87] As another example, J.D. testified that she did not recall ever seeing the movie “Ghostship”, which is inconsistent with S.M.’s evidence about the family watching this movie. She also recalled watching movies in the living room. She did not recall there being a television in the basement.
[88] The discrete challenges to J.D.’s credibility and reliability are not, in my view, inconsistencies which fundamentally impact the question of whether J.D.’s evidence is reasonably capable of belief. The more significant point, which was the focus of Mr. Fennel’s examination, relates to J.D.’s possible motivation to fabricate allegations.
[89] The possibility of fabrication stems from the following circumstances which J.D. testified to on the voir dire:
J.D. testified that the accused forced L.D to kick A.M. and S.M. out of the house in 2009, when the family lived at an address on Crittenden Avenue. She believed it was because A.M. and S.M. were staying out late;
J.D. testified that she told a worker from the Children’s Aid Society about the allegations against the accused. It was suggested that J.D. asked the Children’s Aid Society to verify her allegation in order for her to apply for financial support through Ontario Works. J.D. was shown paperwork dated September of 2013 which confirmed that a file was opened for her with Ontario Works. J.D. accepted that she spoke with the Children’s Aid Society about the allegations, but only after her aunt reported the matter to them. A worker then contacted her directly. She denied making the application for Ontario Works. She testified that her aunt made the application on her behalf when she went to live with her in 2013. She testified that her mother kicked her out of their home at the accused’s request around that time and she went to live with her aunt. Her aunt applied for Ontario Works for her so that she could help with rent and household expenses. She denied that she spoke to the Children’s Aid Society about the abuse in aid of an application for financial support through Ontario Works.
J.D. testified that the accused had three other children with three other women while he and her mother were common law partners. She acknowledged that she found this behaviour to be disrespectful of her mother. She accepted that her sisters also thought the accused was disrespectful of their mother. However, she denied that this was her reason for making allegations against him;
J.D. acknowledged that, shortly before she and her sisters went to the police, A.M. had an argument with their mother about A.M. paying back money she borrowed from her mother, which her mother had obtained from the accused.
[90] I accept that it is relevant, in assessing J.D.’s credibility, whether she had a motive to fabricate allegations, either because of a personal vendetta against the accused, or to advance an application for financial support through Ontario Works.
[91] However, in my view, the possible motivations raised in the evidence are not so strong so as to render J.D.’s evidence incapable of belief. J.D. denied all suggestions that she was motivated by a dislike for the accused in reporting the abuse. J.D.’s evidence will be assessed by the triers of fact in its totality, include the relevant context of family discord and a degree of animus toward the accused. Those considerations may impact the trier’s overall assessment of J.D.’s credibility and how much weight to place on her evidence, but these considerations do not render J.D.’s evidence inadmissible.
[92] While J.D.’s evidence may be subject to further challenge on crosse-examination at trial, I find that it is capable of belief and supports the inferences sought by the Crown.
(d) Possibility of Collusion
[93] Collusion undermines the very basis upon which similar fact evidence is admitted. Recall that similar fact evidence becomes admissible if the similarity between the evidence of different witnesses, testifying independently of one another, is too similar to be credibly explained by coincidence. If collusion is present, then there is another explanation for the “coincidence” of the evidence. Collusion undermines the probative value of similar fact evidence by creating an alternate explanation for why the evidence is so similar.
[94] Where there is an air of reality to the presence of collusion, the Crown must negate the possible collusion as a precondition to the similar fact evidence being admitted: Handy, at paras. 104-112.
[95] As the Court of Appeal for Ontario stated in R. v. B.(C.), (2003) 2003 32894 (ON CA), 171 CCC (3d) 159, [2003] O.J. No. 11 (Ont. C.A.), at paras. 40-41:
Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events.
[96] Mr. Fennel submits that there is an air of reality to the presence of collusion based on the evidence that A.M. and S.M. discussed their allegations with J.D. and all three girls spoke to their mother about the allegations. He also points out that there are inconsistencies between A.M, S.M., and J.D.’s evidence about when they spoke to each other, and to their mother.
[97] In her statement to the police and in her evidence at the preliminary hearing, A.M. stated that she received a phone call from either her aunt or J.D. in 2010, in which she learned about J.D.’s incident with the accused. She realized that something had happened to her, S.M. and J.D. and was surprised that they had never discussed it before then.
[98] In cross-examination at the preliminary hearing, A.M. testified that she did not disclose any details of what happened to her during the call with her aunt. She testified that she only told her aunt, “Oh, me too” or “I’m in a similar situation”.
[99] Sometime in 2013, she, S.M. and J.D. spoke and decided to disclose the abuse to their mother. They spoke to their mother about the allegations while at a cousin’s house. She recalled they spoke to their mother in 2013 because she had given birth to her daughter that year. Their mother did not believe them. After that, she did not speak to her mom regularly.
[100] In cross-examination, A.M. accepted that, in December of 2017 and January of 2018, she borrowed money from her mother, which her mother explained was coming from the accused. She also testified that in March of 2018, her mother confronted her over text message about paying back the money. She testified that her mother called her a “bitch” in the text message. A.M. responded that she would “rather be called a bitch than be with a pedophile”. She stopped speaking to her mother after this exchange and did not repay the money.
[101] A.M. testified that although she was not speaking to her mother, she learned that S.M. and J.D. had conversations over Instagram with their mother, asking her why she did not believe them. Their mother continued to express that she did not believe the allegations and that they should take the matter to court to clear things up. At that point, she and her sisters decided to go to the police.
[102] A.M. testified that she met S.M. at the police station on May 2, 2018. They went to pick up J.D. then returned together to the police station. She denied that there were any discussions of the allegations as they drove to the police station.
[103] S.M. testified at the preliminary hearing that she told A.M. about her incidents with the accused within the same year that the incidents took place. She stated that a year later, in 2012, she told J.D. She also recalled that her aunt found out about her allegations, but she could not recall when this occurred. Sometime after she disclosed to J.D., she, A.M., and J.D. disclosed the abuse to their mother while they were gathered with other family members at a cousin’s home. Their mother did not believe them.
[104] She also acknowledged speaking to her mother over Instagram to ask her why she thought she and her sisters were lying about the abuse, but denied ever going into any detail about the allegations over Instagram. She also testified that the abuse allegations “came up” in Instagram conversations with J.D. She was unsure of whether she communicated with A.M. about the allegations over Instagram. She testified that did not go into detail about the allegations with anyone over Instagram.
[105] S.M. testified that when she went to the police station in May of 2018, she first went with her sister A.M. They filed a police report. When they advised the police that they had another sister who had a similar experience with the accused, it was suggested that they bring her to the station too. She and A.M. then went to pick up J.D. and they all returned to the station and provided videotaped statements.
[106] S.M. testified that she could not recall what was discussed on the way to the police station.
[107] J.D. testified on the voir dire that a couple of months after the incident, she spoke to her brother, who then spoke to their mother. Her mother confronted her to ask her if it was true. The accused then spoke with her, in her mother’s presence, and denied the allegations and suggested that perhaps she had been dreaming. J.D. testified that it was confusing and she stopped talking about the incident until years later, when she told A.M. and S.M.
[108] J.D. recalled speaking to A.M. and S.M. about the allegations when she was 12 or 13 years old and living at an address on Malvern Avenue. She testified that she told them what happened to her and they told her what happened to them. She could not recall the details of what A.M. and S.M. said. She testified that she recalled S.M. stating that her allegations occurred at a time when she had a cut on her leg and the accused was looking at it. She recalled S.M. stating that her pants were on during the assault, but that the accused had his mouth on her vaginal area.
[109] J.D. also recalled speaking to the Children’s Aid Society about the allegations when she was 16 years old after her aunt reported the matter to the agency.
[110] She testified that she and her sisters confronted their mother with the allegations together, but she did not believe them. She testified that the purpose of telling her mother was to make her understand that the accused was “not that great” and that if he was sexually assaulting her daughters, she had sufficient reason to leave him.
[111] It was suggested to J.D. in cross-examination that, based on her evidence that she spoke to her sisters about the abuse when she was 13 years old, she must have spoken to her mother about the abuse in 2010 (when she was 13 years old). J.D. accepted that she would have been 13 years old in 2010. However, she maintained that she could not recall the year she and her sisters spoke to their mother and that she spoke to her mother about the allegations often. She testified that although she cannot remember the year, she recalled that she and her sisters spoke to their mother together at a time when she and her mother were living with a woman on Parliament Street.
[112] She acknowledged that in 2018, she and her sisters decided they would go to the police after their mother told them over text message to take the matter to court. She recalled that, within hours of speaking to their mother, she and her sisters reported the incidents to the police.
[113] She denied that they discussed the allegations on the way to the station, or what each would say, before given their statements. She denied that she and her sisters discussed the allegations multiple times over the years. She acknowledged that it “came up” but that she did not like talking about it and they did not get into details when the topic arose.
[114] I accept that the possibility that J.D.’s evidence may have been impacted by what she knew or learned about A.M. and S.M.’s complaints is relevant to her credibility.
[115] With that said, Handy makes it clear that the mere opportunity for collusion is not enough. In my view, the evidence goes not further than to establish that there was an opportunity to collude. It is true that all three sisters spoke to each other and to their mother about their allegations. However, each independently spoke about what happened to them to their mother before speaking to each other or speaking to the police. Moreover, they all maintain that they did not speak about the allegations in detail with each other at any point.
[116] While it is also true that they also went to the police together, there is nothing to suggest that their stories evolved or changed to be consistent with each other. Indeed, there are differences in their respective accounts, including the details of the touching and the circumstances leading up to the touching. There are also inconsistencies between their accounts on issues like dates. Their respective accounts have not changed over time.
[117] In my view, the evidence goes no further than to demonstrate that there was an opportunity to collude. The Crown has met its onus of establishing, on a balance of probabilities, that there is no air of reality to the possibility of collusion. On the evidence before me, I am not satisfied that J.D.’s evidence is tainted by collusion.
Assessment of the Overall Probative Value
[118] For the reasons set out above, in applying the factors set out in Handy, I find that the probative value of the similar fact evidence is high.
Assessment of Potential Prejudice
[119] Evidence of propensity or disposition can have a prejudicial effect in three general ways. The jury may find that the accused is a "bad person" and infer his guilt for the offences charged or they may punish the accused for past misconduct by finding the accused guilty of the offence charged. These types of prejudice are referred to as "moral prejudice."
[120] “Reasoning prejudice” is the risk of distracting or confusing the trier of fact with the prior discreditable conduct.
[121] Mr. Fennel argues that there is a significant risk of moral prejudice in this case, given that J.D. was as young as 7 years old at the time of the alleged incident with the accused, in contrast to A.M. and S.M., who were 10-12 years of age.
[122] Mr. Pitt argues that the jury will already be hearing evidence from two complainants and that the prejudicial effect of J.D.’s evidence is somewhat attenuated where there are already multiple complainants. Further, as the defence intends to pursue its argument that A.M. and S.M. colluded between themselves and with J.D. to fabricate the allegations, it is inevitable that the allegations of J.D. will be explored in the evidence of A.M. and S.M. As such, any prejudice already exists, whether or not J.D.’s evidence is called as part of the Crown’s case.
[123] In my view, the overall prejudicial effect of the evidence is fairly low. On the issue of reasoning prejudice, J.D.’s evidence is limited to one incident and will not confuse or distract from the offences charged, nor will it increase trial time significantly.
[124] Turning to moral prejudice, I accept that there is potential prejudice inherent in similar fact evidence such as this because the jury will hear about uncharged conduct of a similar nature.
[125] However, as the Crown points out, the prejudice of admitting the similar fact evidence is somewhat attenuated by the fact that the defence is alleging collusion between the two complainants and between the complainants and J.D. As such, evidence that J.D. reported allegations of sexual abuse at the hands of the accused to various family members, including the complainants will, in all likelihood, form part of the evidence the jury will hear. Some details of the accused’s alleged abuse of J.D. will likely be discussed in the context of challenging A.M. and S.M.’s credibility and reliability, and in exploring the possibility of collusion.
[126] I do not agree that there is particular prejudice arising from the J.D.’s age. While J.D. was younger than either A.M. or S.M at the time of the alleged abuse., the age gap is not so significant that it makes the allegations related to J.D. more serious or more morally repugnant. In addition, J.D.’s allegations are of similar gravity to the allegations of A.M. and S.M. I do not accept that J.D.’s allegations, because of her age or otherwise, are inflammatory.
[127] Any potential moral prejudice can be guarded against by mid-trial instructions (before J.D. testifies) and final instructions to the jury to consider the similar fact evidence solely for the purpose for which it was tendered and to refrain from prejudicial reasoning based on general disposition or propensity to commit sexual misconduct.
Weighing the Probative Value of the Proposed Evidence vs. Prejudicial Effect
[128] Assessing the overall probative value of the evidence, I am satisfied that the proposed evidence is highly probative, in that it is relevant to material issues to be determined at trial. In particular, the evidence is relevant to the actus reus of the offence; whether the offences actually occurred as alleged by A.M. and S.M. The similar fact evidence gives rise to an inference that the accused has a specific propensity to commit sexual abuse (specifically touching of the genital area) on the female children of his common-law partner (children with whom he does not share a biological relationship), in the family home.
[129] The probative value of the evidence outweighs the prejudicial effect. The jury will be given clear instructions about the proper use of the similar fact evidence and to refrain from engaging in prejudicial reasoning based on general disposition.
[130] For all of these reasons, the Crown’s application to admit J.D.’s evidence is granted. As indicated at the outset, both parties reserve their submissions on the application of “cross count” similar fact evidence until the close of the evidence.
R. Maxwell J.
Released: October 12, 2022[^1]
COURT FILE NO.: CR-19-300000340-0000
DATE: 20221012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
-and-
H.W.
REASONS FOR JUDGMENT – Application to admit similar fact evidence
R. Maxwell J.
Released: October 12, 2022
[^1]: These Reasons for Judgment were meant to be released on August 10, 2021, when the Reasons for Judgment on two other motions in this matter (R. v. H.W., 2021 ONSC 5477 and R. v. H.W., 2021 ONSC 5471) were released. Due to a clerical oversight, these reasons were not released on that date. The omission came to light on a subsequent review of the court file, at which time, the reasons were immediately released.