ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 20-088

DATE: 2022/11/30

B E T W E E N:

HIS MAJESTY THE KING

Z. Huywan, for the Crown

• and -

J.H.

Defendant

G. Clark, for the defendant

HEARD: October 14, 2021, and November 16, 2022

m.g. ellies r.s.j.

REASONS FOR DECISION

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, no information that might identify the person described in this judgment as the complainant shall be published, broadcast or transmitted in any manner.

OVERVIEW

[1] The defendant, J.H., faces three charges of a sexual nature in which the complainant is his biological daughter. For the purposes of these reasons, I will refer to the allegations made by her as “the North Bay allegations”.

[2] In this pre-trial application, the Crown seeks a ruling permitting it to adduce evidence of allegations being made against the defendant by two other complainants, M.C. and M.A. The allegations of M.C. and M.A. are the subject of charges against the defendant which have yet to go to trial in the Collingwood area. I will call these allegations “the Collingwood allegations”.

[3] The Crown contends that the Collingwood allegations are so similar in nature to the North Bay allegations that their probative value outweighs their presumptively prejudicial effect as evidence. I agree. As I will explain, although the Collingwood allegations are removed in time from the North Bay allegations, they are highly probative of the actus reus (the physical element) of the North Bay allegations mainly because of the aberrant nature of the sexual act in issue here: sexual intercourse with a prepubescent blood relative.

FACTUAL BACKGROUND

The North Bay Allegations

[4] The complainant in the North Bay allegations provided the police with a videotaped statement in February 2019 in which she said that the defendant began to sexually abuse her when she was 10 or 11 years old. She said that, on the first occasion, the defendant called her into the basement and asked her if she wanted to play a game. He sent her brothers away, pulled down her pants and raped her, she said. She told the police that the defendant “continuously” raped her over a period of two-to-three years. She said that, on one occasion he attempted unsuccessfully to get her to fellate him, and on another, he succeeded.

[5] The complainant told the police that there were sometimes others in the house at the time of the abuse, including her siblings and her mother. She said that most of the abuse occurred in the basement of the family home. She described the defendant putting a blanket on the floor, taking his and her pants off, and laying on top of her. She said that the defendant would cover her mouth during the abuse and tell her afterward to “shut up and not say anything”.

[6] The allegations came to the attention of the police after the complainant told a friend at school about the abuse.

The Collingwood Allegations

M.C.’s Allegations

[7] After she learned about the North Bay allegations, the defendant’s biological sister, M.C., contacted the police. In a videotaped interview conducted in November 2020, M.C. told the police that the defendant had sexually abused her from the time that she was 8 years old until she was approximately 14 years old. The defendant would have been between the ages of 10 and 16 years old during the abuse. She said that she was vaginally and anally raped and that it happened “a lot”.

[8] M.C. told the police that the abuse generally occurred at night when her siblings and her parents were sleeping.

M.A.’s Allegations

[9] As a result of M.C.’s allegations, the defendant’s other two sisters were contacted. One of them, M.A., told the police that she had also been sexually abused by the defendant. She told them she had been raped by the defendant, first vaginally and then anally, on one occasion when she was 6 years old and her brother was about 16 years old.

[10] M.A. told the police that the defendant was babysitting her at the time of the assault. Her younger sister, K.F., was home. The defendant asked M.A. if she wanted to play a game. He told her that they were going to take their clothes off. He grabbed her, put her on a windowsill, spread her legs, and penetrated her vagina. She said that, when she started to bleed, he put her face-down on the kitchen table, covered her mouth, and anally raped her.

[11] The younger sister, K.F., denied being sexually abused by the defendant, but provided the police with a videotaped statement in which she said she witnessed the defendant rape M.A.

LEGAL BACKGROUND

[12] The evidence of M.C. and M.A. involves allegations of discreditable conduct by the defendant other than the acts comprising the North Bay allegations. Such evidence brings with it two threats to the truth-finding trial process. One of them is that the evidence of the Collingwood allegations may distract the trier of fact from its proper focus on evidence of the North Bay allegations ("reasoning prejudice"). The other is that the trier of fact may convict the defendant on the basis of bad personhood ("moral prejudice"). As such, this evidence is presumptively inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31 and 55.

[13] However, similar fact evidence such as the evidence at issue here may be admitted as an exception to the rule where the Crown can establish on a balance of probabilities that its probative value on an issue in the trial outweighs it potentially prejudicial effect: Handy, at para. 101.

[14] The probative value of similar fact evidence lies in the improbability of coincidence, meaning the improbability that the events described by the witnesses could be explained by coincidence: Handy, at para. 110. In another case involving allegations of sex with prepubescent girls, Spies J. put the probative value of the proposed similar fact evidence into focus by asking herself whether, as a matter of common sense, it was against all probability that, in light of what the Crown could show that the defendant did to the similar fact witnesses on other occasions, it was a mere coincidence that the complainant was not telling the truth when she described what she alleges the defendant did to her on the occasion in question: R. v. Finelli, [2008] O.J. No. 2242 (S.C.J.), at para. 29.

[15] Because similar fact evidence derives its probative value from the improbability of coincidence, such evidence may lose its probative value where one witness has influenced the evidence of another: Handy, at para. 110. The tainting may be intended or unintended. Where it is intentioned, it is collusion. Where it is unintended, some courts have described it as "unconscious collusion": R. v. Wilkinson, 2017 ONCA 756, at para. 39. With respect, I prefer the term "contamination" where the effect is unintended, as the term "collusion" implies an agreement, which usually cannot be reached unintentionally: Canadian Oxford Dictionary, 2d ed., sub verbo "collusion".

[16] Regardless of the terminology used, where there is evidence of tainting or even an air of reality to the possibility that the evidence of one similar fact witness has been tainted by another, the Crown is required to disprove contamination on the same standard as it must prove probative value (on a balance of probabilities) before it may be considered by the trier of fact: Handy, at para. 110; Wilkinson, at paras. 39 and 45.

POSITIONS OF THE PARTIES

[17] On behalf of the Crown, Mr. Huywan submits that the evidence of M.C. and M.A. is relevant to a number of issues in the trial, including proof of the actus reus, meaning whether the defendant committed the physical acts alleged. He submits that, with the exception of the length of time passing between the events alleged by the Collingwood complainants and those alleged by the North Bay complainant, the similarities in the allegations are sufficient to overcome the presumption against admission. Finally, he submits that there is no evidence of contamination of their evidence and no air of reality to the allegation by the defendant that there has been collusion between the witnesses.

[18] On behalf of the defendant, Mr. Clark resists the application on the basis that the Crown cannot fulfill its obligation in either respect. He submits that there is an air of reality to the possibility of collusion and that, in any event, the similar fact evidence has insufficient probative value to warrant admission.

ISSUES

[19] This application gives rise to three issues:

(1) Is there an air of reality to the possibility of collusion or contamination?

(2) If so, has the Crown proven that the evidence is not tainted by collusion?

(3) If so, is the evidence sufficiently probative to warrant admission?

ANALYSIS

Is there an air of reality to the possibility of collusion or contamination?

[20] There is no direct evidence of collusion. Rather, Mr. Clark relies on five facts to argue that there is an air of reality to the possibility, as a result of which he maintains that the Crown is obliged to disprove it.

[21] First, he relies on comments made by the investigating police officer to the complainant on February 5, 2019, and again on February 7, 2019, to the effect that there was not enough detail in the complainant's statement to support her allegations. He submits that these comments provided the complainant with a motive to collaborate with other witnesses who might support her.

[22] Second, he relies on a text message that the complainant sent to a witness whose evidence the complainant viewed as unhelpful to her allegations against the defendant. Following the preliminary inquiry on September 24, 2020, the complainant wrote to a witness whose name had been put to her during the hearing while she was cross-examined about dishonest conduct. In a series of texts to the witness, the complainant threatened to have a neighbour with a bad reputation become "involved". Mr. Clark submits that this incident demonstrates that the complainant is prepared to subvert justice to support her allegations.

[23] Third, Mr. Clark relies on an alleged contradiction in the evidence of M.C. and K.F. regarding the date upon which M.C. became aware of the North Bay allegations. On October 28, 2020, M.C. spoke by telephone to the officer investigating the allegations. M.C. told the officer that she had asked her sister, K.F., to reach out to the complainant after M.C. learned on social media that the complainant had moved out of her home. M.C. told the officer that K.F. learned about the North Bay allegations from the complainant and that K.F. then informed M.C. about them. According to Mr. Clark, the officer’s notes of the conversation indicate that M.C. told the officer that all of this happened after a telephone conversation she had with the complainant’s mother “yesterday”, whereas K.F. told another officer that the complainant had reached out to her a few months before November 9, 2020, the date K.F. first spoke with the officer.

[24] Fourth, Mr. Clark relies on a related discrepancy alleged between the evidence of M.C. and the complainant's mother regarding the dates of the former's contact with the latter. As set out above, the officer’s notes of October 28, 2020, indicate that M.C. told her that she spoke with the complainant’s mother the day before she spoke with the officer. However, in a statement given to counsel for the defendant, the complainant’s mother said that, according to her telephone, that conversation took place in August, not October.

[25] Finally, Mr. Clark relies on an alleged discrepancy between the evidence of M.A. and K.F. relating the allegations by M.A. against the defendant. In a statement she gave to the police, M.A. said that the only person she had ever told about the sexual abuse by the defendant was her mother, who did not believe her. However, when the police asked K.F. why “they” had waited for months after learning of the North Bay allegations to go to the police, she told them that M.A. “wanted to leave it alone until she was comfortable”. Mr. Clark alleges that this gives rise to an air of reality that M.A. and K.F. were colluding.

[26] In my view, none of these facts, alone or in combination, give rise to the realistic possibility of collusion. I will explain why by starting with the last alleged discrepancy.

[27] According to both M.A. and K.F., although K.F. was never assaulted by the defendant, she was a witness to the sexual assaults perpetrated by the defendant on M.A. As a witness, of course, she has been aware of the allegations being made by M.A. since the incidents upon which they are based took place. There is, therefore, no contradiction between the evidence of M.A. and K.F. about M.A telling no one other than her mother.

[28] With respect to the third and fourth concerns listed above, I do not interpret the evidence in the same clear way that Mr. Clark does. Although the officer did make a note that M.C. had spoken with the defendant’s wife “yesterday”, other notes she made at the same time lead me to question whether that note was accurate. Many of the other notes speak of events that occurred significantly in the past, at around the time the defendant’s wife says that she spoke with M.C. For example, the notes state that M.C. saw on social media that the complainant was not living at home “a while back”, which gave M.C. a “sinking feeling”. The notes also indicate that, “a few weeks [past]”, K.F. had sent M.C. a picture and asked M.C. why the defendant had looked at “her” in a certain way in the photo (although it is unclear from the note, I assume K.F. was referring to the way in which the defendant was looking at M.C.). According to the notes, M.C. “put [K.F.] off but now after speaking with [the defendant’s wife] [M.C.] contacted [K.F.] and asked her why [the complainant] wasn’t at home”. The officer’s notes make it appear as though K.F. then contacted the complainant. However, I question the accuracy of that note. It seems more in keeping with K.F.’s evidence to assume that she wrote to M.C. about the picture because she had already learned about the complainant’s allegations and was wondering if the same thing had happened to M.C. that she had just learned had happened to both M.A. and the complainant.

[29] The statement given by K.F. to Officer Lesage is also less than clear. Mr. Clark suggests that she told the officer that the complainant disclosed the North Bay allegations to her a few months before K.F. spoke to Officer Lesage on November 9, 2020. However, the entire note of the officer in relation to this evidence reads:

• [K.F.]’s niece reached out letting her know that she was sexually assaulted by the father [the defendant]. It was disclosed a few months ago.

[30] It is not clear to me whether the disclosure referred to in the second sentence is the complainant’s disclosure to the police or her disclosure to K.F. If it refers to the disclosure to K.F., one would have thought the officer might have added those two little words to the sentence.

[31] In any event, even if the discrepancies in the evidence of M.C. and K.F. are exactly as alleged by Mr. Clark, I still do not believe that they offer any evidence of collusion. At most, they show that there might have been a period of a few months from the time that M.C. became aware of the North Bay allegations until the time she contacted the investigating officer. However, there is no evidence of any contact between the complainant and either M.C. or M.A. at any time. According to the defendant’s wife, the complainant was not in touch with her aunts on social media prior to her making the North Bay allegations in February 2019, nor did she have their telephone numbers. It was only after the North Bay allegations were made that the sisters became friends with the complainant on Facebook and only for a period from October 2019 to July or September 2021. As Facebook friends, the only evidence of contact is of the postings by the similar fact witnesses on the complainant’s Facebook page, for example, on the complainant’s birthday or upon the passing of her great-grandmother. Indeed, the evidence is that M.C. told the investigating officer that she did not want to “contaminate” the evidence by speaking to anyone in her family about her own abuse and there is no evidence that either she or M.A. ever did, with the exception of their mother.

[32] It is not reasonably possible on this evidence, in my view, to conclude that there was a possibility of collusion or contamination. While it can be argued that there is evidence of a motivated complainant who is prepared to threaten adverse witnesses, there is no evidence upon which to infer that the complainant and the similar fact witnesses shared any information or that they colluded for the purpose of supporting one another in their complaints against the defendant. The mere fact that they might have had two months, or even more, to do so is not evidence that they might have done so.

[33] For this reason, I do not find any air of reality to the possibility of collusion or contamination.

Has the Crown proven that the evidence is not tainted by collusion?

[34] Given my conclusion that there is no air of reality to the possibility of collusion, I do not need to determine whether the Crown has disproven it. However, if I am wrong in my conclusion, I would find that the Crown has satisfied its burden.

[35] If the facts do establish an air of reality to the possibility of collusion, they do so only to the slightest degree. They do not move the needle to a point that requires the Crown to do anything more than rely on the evidence as it exists to fulfill its obligation to disprove tainting on a balance of probabilities.

Is the evidence sufficiently probative to warrant admission?

[36] As the Supreme Court made clear in Handy, it is crucial to identify the issue with respect to which the Crown seeks to introduce similar fact evidence. Without identifying the issue to which the evidence is directed, one cannot properly assess the probative value of that evidence: Handy, at para. 73.

[37] In this case, the Crown submits the evidence is relevant to a number of issues, including: establishing the actus reus, establishing the mens rea (the mental element of the crime), rebutting “suggestions of recent fabrication (on the part of the complainant) or accidental misconduct (on the part of the defendant)” and to provide “context”. In my view, the only issue with respect to which the probative value of the similar fact evidence is sufficient to overcome its prejudicial effect is that of the actus reus.

[38] The defence here is that these acts did not happen. There is no suggestion by the defendant that, if he had sexual intercourse with his daughter, it happened accidentally. Nor, to my knowledge, is there any suggestion, for example, that the complainant in the North Bay allegations was aware of what had happened to her aunts at the time of the alleged abuse such that the similar fact evidence could provide any context to what happened to her. For these reasons, the probative value of the similar fact evidence is too low as it relates to these issues.

[39] However, as it relates to proving that the defendant committed the acts themselves, its probative value is high. This is because of the aberrant nature of the allegations. The complainant alleges that the defendant -- her father -- had sexual intercourse with her when she was a mere child. We need no expert evidence to conclude that this sort of behaviour is not normal. Fortunately, allegations of this nature are unusual. It is precisely the unusual nature of the Collingwood allegations that makes them so probative.

[40] It is difficult for most people to accept that a father could do what the defendant is alleged to have done here. That is why, in my view, evidence that he did it to his sisters when they were young is so probative. Of course, the evidence of the similar fact witnesses may not be accepted. That does not mean, however, that it cannot be probative. In my view, if accepted, the evidence may be highly probative.

[41] Of course, the allegations are both aberrant and abhorrent. The potential for prejudice is high. However, I believe that the similarities in the evidence make it sufficiently probative that it should be admitted, nonetheless. These similarities include:

(a) The ages of the complainants: M.A. was the youngest, at age 6. M.C. was the oldest, being 14 at the time of the last assault. The complainant was in the middle, at age 10. All were prepubescent girls when the assaults began.

(b) The nature of the assaults: While the allegations of the each of the complainants include other acts, all of them allege that the defendant had vaginal intercourse with them.

(c) The frequency of the assaults: Both M.C. and the complainant allege that the assaults happened more than once. While M.A. told the police that it happened only once, K.F. told the police that she witnessed it happen to M.A. “a few times”.

(d) The circumstances surrounding the assaults: In the case of each complainant, at least some of the assaults took place while others were home.

(e) The relationship of the defendant to the complainants: All of the complainants were blood relatives of the defendant.

[42] In my opinion, these similarities make the evidence of the Collingwood allegations highly probative of the North Bay allegations and give the Collingwood allegations sufficient weight to overcome their potentially prejudicial effect, notwithstanding the length of time that passed between the alleged assaults.

CONCLUSION

[43] For the foregoing reasons, the evidence of Collingwood allegations is admissible in the trial of the North Bay allegations, notwithstanding the potentially prejudicial nature of the evidence.

M.G. Ellies R.S.J.

Released: November 30, 2022

COURT FILE NO.: CR 20-088

DATE: 2022/11/30

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

J.H.

REASONS FOR decision

Ellies R.S.J.

Released: November 30, 2022