Court File and Parties

COURT FILE NO.: CR - 19-70000258 DATE: 20230317 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – MARCO GUTIERREZ

Counsel: Tom Schreiter, for the Crown Ingrid Grant, for Mr. Gutierrez

HEARD: January 17, 2023

Ruling on Crown’s Similar Fact (cross-Count) Application

P.J. Monahan J.

[1] Marco Gutierrez was tried before me, sitting with a jury, on various sexual offenses alleged to have been committed in relation to two complainants, (respectively, “Complainant One” and “Complainant Two”) in the 1990s, at a time when the complainants were under the age of 14.

[2] After Crown counsel closed his case, he brought an application for an instruction that the jury be permitted to consider the evidence of one complainant in determining whether the Crown had proven that the incident(s) described by the other complainant actually occurred, and vice versa.

[3] After hearing submissions from counsel, I advised the parties that the Crown’s application was dismissed, with written reasons to follow. These are my reasons.

Similar Fact Evidence

a. Evidence of Complainant One

[4] Complainant One testified that he was sexually touched by Mr. Gutierrez on two occasions in either 1993 or 1994, when he would have been eight or nine years old. At the time, Complainant One was living with Mr. Gutierrez (who was his stepfather), his mother, and his two younger stepbrothers, in a three-bedroom apartment in Toronto.

[5] Complainant One testified that, one night, while he was sleeping in his bedroom, he awakened to find Mr. Gutierrez kneeling on the floor on the left side of his bed performing oral sex on his penis. Mr. Gutierrez had pulled down Complainant One’s pajama pants in order to do this. Complainant One said that he froze, closed his eyes, and pretended to be asleep.

[6] Complainant One said that Mr. Gutierrez then stopped what he was doing for a moment, before pulling back the foreskin of Complainant One’s penis and putting his mouth on Complainant One’s penis a second time.

[7] Complainant One was not able to estimate how long Mr. Gutierrez performed oral sex on him in this manner. He remembers Mr. Gutierrez pulling his pajama pants back up, standing up and walking away. Neither Complainant One nor Mr. Gutierrez said anything during this incident. Complainant One also could not remember whether his two stepbrothers, who normally also slept in the same bedroom, were there on the night when this incident occurred.

[8] Complainant One said that the second incident occurred shortly after the first incident. Complainant One testified that as a young boy he sometimes had nightmares and would ask for an adult to sleep in his bed to help him get to sleep. Sometimes this adult would be Mr. Gutierrez.

[9] One night when Mr. Gutierrez was lying beside him in bed, Complainant One was awakened because his right arm had been taken by the wrist. Complainant One said he realized that Mr. Gutierrez, who was lying to his right on the bed, had taken hold of his wrist and was directing his hand towards Mr. Gutierrez’s genitals. Complainant One pulled his arm back before it reached Mr. Gutierrez’s genitals, turned away, pulled the sheets up around him and pretended to go back to sleep. Neither of Complainant One nor Mr. Gutierrez said anything during this incident.

b. Evidence of Complainant Two

[10] Complainant Two is Complainant One’s cousin, and Mr. Gutierrez’s step-nephew. Both complainants said that they were very close growing up, in part because they had been born just one month apart, and Complainant Two would often sleep over at Complainant One’s apartment.

[11] Complainant Two said that he slept over at Complainant One’s apartment one night around the time the World Cup soccer tournament was held in France in the summer of 1998. (Complainant Two was born in June 1985 and would have been around 13 years old in the summer of 1998). On this particular occasion, he was sleeping on a sofa in the living room, lying on his stomach with his head facing in towards the back of the sofa. He was wearing shorts and a T-shirt but did not have a blanket covering him.

[12] Sometime during the night, Complainant Two said that he woke up because he sensed someone standing very close to him. This person then came over him and rubbed their erect penis on Complainant Two’s backside while also reaching around and attempting to touch Complainant Two’s genitals through his clothing.

[13] Complainant Two pretended to be asleep and then coughed, in an attempt to convince this person to stop touching him. The person did stop for a few seconds, but then reached around towards Complainant Two’s genitals a second time.

[14] Complainant Two then heard footsteps in the hallway. This caused the person touching him to stop and stand up. At this point, Complainant Two looked back and saw that the person touching him was his step-uncle, Mr. Gutierrez. Complainant Two also saw that the person who had been coming down the hallway was his grandfather, who was going into the kitchen to get a drink of water.

[15] Complainant Two said that at this point Mr. Gutierrez left the living room.

Discussions Between the Complainants Prior to Reporting the Incidents to the Police

[16] Both complainants testified that neither of them disclosed any of these sexual touching incidents involving Mr. Gutierrez to anyone else for many years. However, in early 2016, Complainant One said that he decided to disclose these incidents to other members of his family.

[17] He initially told his wife, his mother, grandmother, his two stepbrothers, and a female cousin, TS. When he disclosed the incidents of sexual abuse involving Mr. Gutierrez to TS, Complainant One told her that he wanted to speak to Complainant Two, because he thought that something similar might have happened to Complainant Two.

[18] TS called Complainant Two and told him that Mr. Gutierrez had sexually touched Complainant One as a young boy. TS further told Complainant Two that Complainant One wanted to talk to him because he thought that something similar might have happened to Complainant Two. Complainant Two said he did not know what TS was talking about. He gave no indication to her that he had been sexually abused by Mr. Gutierrez.

[19] In July 2016, Complainant One called Complainant Two and provided Complainant Two with a detailed account of the sexual touching incidents involving Mr. Gutierrez he alleged to have been through. Complainant One asked Complainant Two whether anything similar had happened to him. Complainant Two said it had but that it had not gone as far as what had happened to Complainant One. Complainant Two did not provide Complainant One with any further details.

[20] In January 2018, both complainants separately reported the sexual touching incident(s) involving Mr. Gutierrez to the police.

Relevant Legal Principles

a. General Exclusionary Rule

[21] It is well established that so-called “bad character” evidence cannot be used as circumstantial proof of conduct alleged in an indictment. That is, it is generally impermissible to allow an inference from the fact that an accused has the propensity or disposition to do the types of acts charged, that they are therefore guilty of the offence charged.

[22] The policy basis for this general exclusionary rule is that the potential prejudicial effect of such propensity evidence outweighs its probative value. If an accused is to be convicted, it must be because the Crown has proven the specific allegations of misconduct alleged beyond a reasonable doubt. As Doherty J.A. put it succinctly in R. v. Batte, “an accused must be tried for what he or she did and not for who he or she is.”

b. Evidence Admissible Where Probative Value Exceeds Prejudicial Effect

[23] This general exclusionary rule is not absolute. Courts have recognized that an issue may arise in the trial of an offence to which the evidence of previous misconduct may be so highly relevant and cogent that its probative value outweighs any potential prejudice to the accused. In order for such evidence to be admissible, however, it would be necessary to conclude that the similarities between the alleged similar facts were such that “absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence.” R. v. Handy, 2002 SCC 56, at para. 41 (emphasis in original), citing R. v. B. (C.R.), at p. 751, per Sopinka J. (dissenting).

[24] The seminal case on this issue remains R. v. Handy in which Binnie J. emphasized that whether probative value exceeds prejudicial effect can only be determined in light of the purpose for which the evidence is offered. Ibid, at paras. 69-75. Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue at trial.

c. Assessing Probative Value and Prejudicial Effect

[25] In considering probative value, the key question is whether there is a nexus between the similar fact evidence and the offenses alleged. Factors connecting the similar facts to the circumstances set out in the charge may include: (i) proximity in time of the similar acts; (ii) the extent to which the other acts are similar in detail to the charged conduct; (iii) the number of occurrences of the similar acts; (iv) circumstances surrounding or relating to the similar acts; (v) any distinctive features unifying the incidents; (vi) intervening events; and (vii) any other factor which would tend to support or rebut the underlying unity of the similar acts. Ibid, at para. 82.

[26] Cogency increases as the fact situation moves further to the specific end of the spectrum. The similar fact evidence should be admitted where “the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence … is so slight as to justify consideration of the similar fact evidence by the trier of fact.” Ibid, at para. 91.

[27] It is also well established that any apparent cogency of similar fact evidence will be rebutted by the presence of collusion between complainants. Collusion can arise either 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 or tailoring their descriptions of the impugned events. See R. v. C.B., at para. 40. As Feldman J.A. noted in R. v. F.(J.), at para. 77, one person can be unconsciously influenced by “hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.”

[28] If there is an “air of reality” to the allegation of conscious or unconscious collusion, the similar fact evidence will not be admissible unless the Crown proves on a balance of probabilities that the conscious or unconscious collusion has not tainted the testimonies. Handy, at para. 112. See also R. v. Wilkinson, 2017 ONCA 756, at para. 39.

[29] Assuming the evidence has sufficient probative value to potentially warrant its admission, its prejudicial effect must then be assessed. Similar fact evidence is not prejudicial simply because it increases the chances of conviction. The concern is, rather, that admission of the evidence might give rise to moral prejudice (namely, inferring guilt from a general propensity or disposition to act in a certain way), or reasoning prejudice (the danger that the trier of fact will be distracted or confused by a multiplicity of incidents).

[30] Finally, the probative value of the evidence must be weighed against any likely moral or reasoning prejudice that would result if the evidence were admitted to determine if the probative value outweighs the prejudicial effect.

Analysis

[31] The Crown’s application cannot succeed because there is an air of reality to the allegation of conscious or unconscious collusion in this case and the Crown has not shown on a balance of probabilities that such conscious or unconscious collusion has not tainted the complainants’ testimonies.

[32] Crown counsel fairly conceded in his submissions that there is an air of reality to the possibility of unconscious collusion between the complainants, given the discussion between them of Complainant One’s specific allegations of abuse prior to either of them disclosing these incidents to the police.

[33] As described above, when TS first raised with Complainant Two the possibility that he may have been sexually abused by Mr. Gutierrez as a young boy, Complainant Two gave no indication that any such abuse had occurred. He then had a conversation with Complainant One in which Complainant One described in detail the sexual touching incidents that he experienced involving Mr. Gutierrez. Both complainants then reported their allegations of abuse to the police in January 2018.

[34] This is not a case where there was a mere opportunity for two complainants to share in a general way the fact that they had been sexually touched by an adult. See R. v. J.W., 2013 ONCA 89, at para. 37. Rather, both complainants acknowledged that Complainant One provided a detailed account to Complainant Two of the incidents involving Mr. Gutierrez. Moreover, Complainant Two had previously told his cousin TS that he had not been sexually abused by Mr. Gutierrez. The complainants then waited 18 months before going to the police.

[35] Given the Crown’s concession that there is an air of reality to the suggestion of unconscious collusion between the complainants, the Crown had to satisfy the court on a balance of probabilities that the evidence of similar fact is not tainted with collusion.

[36] In my view, the Crown failed to satisfy its onus. In particular, the Crown did not explore with Complainant Two the possibility that his recollection of the incident involving Mr. Gutierrez might have been coloured or influenced by what Complainant One told him. The failure to do so is, in my view, fatal to the Crown’s application.

[37] I should emphasize that in coming to this conclusion, I am not finding as a matter of fact that there was actual collusion (whether conscious or unconscious) between the complainants. That is not my role at this stage of the proceeding. My responsibility, rather, is merely to act as a gatekeeper and ensure that, given the evidential foundation to the allegation of collusion, the Crown properly rebuts that allegation. Because it has failed to do so, the similar fact evidence cannot be considered cross-count.

Disposition

[38] The Crown’s application is dismissed. The jury will be instructed that in determining whether the incidents described by Complainant One actually occurred, they cannot rely upon the evidence of Complainant Two, and vice versa.

P. J. Monahan J.

Released: March 17, 2023