Court File and Parties

COURT FILE NO.: CR-22-1000009-0000 DATE: 20230329 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Applicant

• and - JORGE NIETO-ZELAYA Respondent

Counsel: Cara Sweeney, for the Applicant Crown Jacob Stilman, for the accused Respondent Jorge Nieto-Zelaya

HEARD: March 27, 2023

Publication Ban

There is a publication ban under s.486.4 of the Criminal Code in relation to any information that could identify a witness. There is also a publication ban under s.648 in relation to any portion of the trial at which the jury is not present.

Ruling on Application to Admit Similar Fact Evidence

J.M. BARRETT J. (Orally)

A. Overview

[1] Jorge Nieto-Zelaya stands charged on a four-count indictment. All charges relate to allegations of sexual touching on RM between January 1, 2011 and June 14, 2016. For approximately 2 ½ years of this alleged offence period, he was subject to a recognizance that he not communicate directly with, or be in the company of, anyone under the age of 16 years unless in the constant presence of that young person’s parent or legal guardian. The recognizance arose from the subject matter of the Crown’s proffered similar fact evidence.

[2] The Crown seeks to admit as similar fact evidence prior convictions from September 2015 when Mr. Nieto-Zelaya was convicted after a judge alone trial before Justice Corrick of six counts relating to sexual touching involving MG. At the time of the said touching, MG was between the ages of 10 and 11 years.

[3] The Crown’s position is that the similar fact evidence is admissible for the following purposes: to prove the actus reus; to prove the mens rea; to negate the defence of accident; to rebut the defence of implausibility; and to support the credibility of the complainant RM that the alleged acts occurred.

[4] The defence admits there are some similarities but argues that these are generic in nature. The defence agrees that there is an absence of collusion. The defence argues, however, that the probative value of the proposed evidence is diminished by the dissimilarities, including the number of occurrences, the nature of the touching, and the risk level of the conduct engaged in by Mr. Nieto-Zelaya. Given the dissimilarities, the defence argues that the probative value of the proffered evidence does not outweigh the significant prejudice that will result from the admission of this evidence.

B. Background

[5] The prior conviction the Crown seeks to adduce as similar fact evidence relates to MG. MG was born in August 2002. Mr. Nieto-Zelaya became the family hairdresser in the fall of 2012. He would go to MG’s home every five or six weeks to colour his mother’s hair. During these visits, he would cut MG’s hair and that of his younger brother. After a trial before Justice Corrick, Mr. Nieto-Zelaya was convicted of six of the eleven offences charged. In her Reasons for Judgment, Justice Corrick found that between December 26, 2012 and August 5, 2013, when MG was 10 years old, Mr. Nieto-Zelaya hugged and kissed MG, touched MG’s buttocks and placed MG’s hand on his clothed penis. Justice Corrick also found that on October 21, 2013, Mr. Nieto-Zelaya hugged MG, grabbed MG’s buttocks, and twice exposed his penis to MG, inviting MG to touch it.

[6] The similarities and differences between the incidents are summarized in the chart below.

COMPLAINANT

MG
Prior Conviction from September 18, 2015. Sentenced on December 17, 2015. Appeal dismissed April 2017.

RM

Age and gender
Boy between 10 and 11 years old Born August 2002
Boy between 7 to 12 years old Born November 2003

Time frame
December 26, 2012 – August 5, 2013 and October 21, 2013 (Total of 10 months)
January 1, 2011 – June 2016 (Total of 5½ years)

How met
Family hairdresser
Family hairdresser

Frequency of contact
Coloured mom’s hair every five to six weeks Accused would cut MG and younger brother’s hair during visits Started after the third or fourth visit Between December 26, 2012 to August 5, 2013, saw 5-6 times
Hair services every two to three months RM would go with mom to accused’s studio apartment for haircut Accused started going to RM’s home and would join the family for dinner Nothing happened during first visit to RM’s home Accused sucked his penis on the fourth visit to RM’s home Last two visits to RM’s home were: December 19, 2015 and June 2016

How started
Nothing happened during the first three visits but then accused’s started speaking weird
After sixth visit, things “escalated” Started with accused whispering to RM and walking past RM making RM’s hand rub against his penis

Words spoken
MG told not to tell anyone Accused told MG he was “beautiful”
“I love you” “Don’t tell anyone” “You’re handsome” “I wanna lay naked in a bed with you”

Nature of touching
The accused: • hugged and kissed MG • grabbed MG’s buttocks • placed MG’s hands over the accused’s clothed penis • twice invited MG to touch his exposed penis
The accused: • had RM touch his erect penis and told how to rub it up and down • sucked RM’s penis once in the bathroom

Location
Basement of MG’s home
Accused’s studio apartment Living room and bathroom of RM’s home

Presence of others in home
Mother present in home but not in basement
Mother present in home but not in living room or bathroom

Number of occurrences
6 to 7 incidents
8 or 9 incidents Conduct did not happen on every visit

How ended
On October 21, 2013, MG reported conduct to mother immediately after touching occurred Police called and statement provided within a few hours of last incident
When RM 12 years old spoke up and told accused “I don’t really love you” Accused moved to Windsor Disclosed to mom in February 2021 (17 years old, Grade 12)

C. Positions of Counsel

[7] In this case, counsel agree on the governing legal principles. They disagree on the result that ought to follow from a correct application of the framework set out by the Supreme Court in R. v. Handy, 2002 SCC 56.

[8] The Crown urges that the nature and circumstances of the two allegations are so similar that they establish a specific propensity to do the very thing alleged in the very circumstances alleged. The prior conviction for acts that occurred over a 10-month-period when MG was ten years old shows a pattern of behaviour by Mr. Nieto-Zelaya wherein he preys on young boys while performing hair care services for the family.

[9] Defence counsel disagrees. The defence argues that the similarities are just generalities that lack any distinctive features. The defence points out that the acts presently before the court are “more numerous”, “more brazen” and “more intrusive” than those involving MG as they include an allegation of Mr. Nieto-Zelaya sucking RM’s penis. Further, the defence argues that the exceptionally high risk of moral and reasoning prejudice outweighs any probative value, particularly in the circumstances of this case in which Mr. Nieto-Zelaya is expected to testify and deny the prior conduct involving MG.

D. The Governing Legal Principles and Analysis

[10] The starting point is that similar fact evidence is presumptively inadmissible. The onus is on the Crown to establish on a balance of probabilities that the proffered evidence is relevant and material as well as that the probative value of the evidence exceeds its prejudicial effect.

[11] The governing framework for determining the admissibility of similar fact evidence is found in Handy, 2002 SCC 56 see also R. v. Bent, 2016 ONCA 651, supplementary reasons at 2016 ONCA 722 and R. v. J.C., 2021 ONCA 787. The admissibility analysis begins with an assessment of probative value.

(1) Probative Value

[12] In Handy, the Court explicitly recognized that the probative value of similar fact evidence lies in propensity reasoning: the common-sense proposition that people act in conformity with their character. Such reasoning is generally precluded at a criminal trial because its potential for prejudice exceeds its probative value. However, Handy recognized that it may be permissible where the propensity is so specific, and the pattern of conduct so distinct, that it would be an “affront to common sense to suggest that the similarities were due to coincidence”: Handy, at para.41. In such a case, probative value will overtake both moral and reasoning prejudice.

[13] Probative value is assessed having regard to a number of factors including: (i) the strength of the evidence that the similar acts actually occurred, (ii) the connectedness or nexus between the similar acts and the conduct underlying the charges before the court, and (iii) the materiality of the evidence: Handy, at para. 76; R. v. B. (L.) (1997), 35 OR (3d) 35, (1997), 116 C.C.C. (3d) 481 (Ont. C.A.) at paras. 47, 54.

[14] I will deal first with the strength of the evidence. In this case, the prior conviction is “highly reliable evidence” and is the “best evidence” available to the Crown: R. v. Jesse, 2012 SCC 1, [2012] 1 S.C.R. 716, at para. 46; see also R. v. Joseph, 2017 ONCA 661. The prior conviction is “some evidence” as required at this threshold stage of determining the admissibility of the similar fact evidence: Jesse, at para. 46.

[15] With regards to the connectedness between the similar fact evidence and the offences before this court, this has been described as the “principal driver of probative value”: Handy, at para. 76. When I consider the evidence of the prior conviction in light of the factors set out in Handy, I am satisfied that the proffered evidence is relevant to material issues other than general propensity. In this case, the jury could conclude that the evidence shows such a specific and distinctive pattern of predatory conduct by Mr. Nieto-Zelaya towards young boys in the context of providing hair care services. It is evidence indicative of “a situation specific pattern of behaviour, making it more likely that he had engaged in the same conduct” with the complainant in this case: R. v. J.W., 2013 ONCA 89, at para. 49.

[16] I will briefly explain how the Handy factors were assessed in the circumstances of this case. Before doing so, I will first address the defence arguments that the Handy factors cannot properly support this conclusion. Defence counsel argues that the “reasoning prejudice is so high that this factor alone defeats the crown application”. Defence also points out specific differences between the acts underlying the prior conviction and RM’s allegations, including the less serious nature of the sexual conduct towards MG, the lesser number of incidents involving MG, and the significantly higher degree of risk taking involved with RM.

[17] While these dissimilarities must be carefully considered, the defence approach appears to ignore the caution that judges are not to view the similarities and dissimilarities as an accounting exercise: R. v. J.W., at paras. 51-52; R. v. Shearing, 2002 SCC 58, at para. 60. The defence approach also diminishes the important role that context can play in assessing probative value.

[18] Context has long been recognized as an important part of the similar fact analysis. As Justice Charron noted in R. v. B. (L.) (1997), 35 OR (3d) 35, (1997), 116 C.C.C. (3d) 481 (Ont. C.A.) at paras. 37-39:

In cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents. This stands to reason, particularly where there is nothing unusual about the sexual acts in question. In most circumstances, the fact that one complainant was kissed as compared to the other being fondled may not have a whole lot of significance. The allegations all pertain to acts of a sexual nature. In the same way, and again depending on the circumstances, the fact that one assault occurred in the basement as opposed to the other in the bedroom may not be of consequence on the question of probative value. The different location may simply be attributable to a different opportunity for privacy. For example, in B. (C.R.), the similarities that the majority found to be sufficiently compelling essentially related to the context within which the assaults occurred and to what was distinctive about that context:

The fact that in each case the accused established a father-daughter relationship with the girl before the sexual violations began might be argued to go to showing, if not a system or design, a pattern of similar behaviour suggesting that the complainant’s story is true.

[19] In sexual assault cases, it is not uncommon to find differences in the physical acts but a high degree of similarity in the circumstances surrounding the conduct. As noted in R. v. J.C., 2021 ONCA 787, at para. 70 “[s]ometimes, the thread of similarity will lie in the perpetrator’s modus operandi. In the context of child sexual assaults, that that modus operandi may well be reflected in the very creation of sexual opportunities and the progression over time toward more serious acts”: see also Shearing, at para. 52; R. v. A.E.S.P., 2022 ONCA 405 at para. 25.

[20] The context in this case is unique and distinctive. Both MG and RM: allege sexual touching while having their hair cut; were similarly aged at the time of the conduct; and describe a progression in the nature of the conduct. Specifically, both describe no inappropriate conduct during the initial visits, but the inappropriate conduct starts with unusual spoken words, and progresses to touching over clothes and, ultimately, the exposure of the accused’s penis. The allegations also overlap in time. No alternate explanation has been suggested for the distinct similarities that could undermine the improbability of coincidence. Indeed, there is no evidence to suggest MG and RM know each other, or anything about each other, or their respective allegations. While there is some evidence that RM’s mother learned some details about MG’s allegations through the Internet, there is no evidence that any details were shared with RM prior to RM providing his police statement on February 16, 2021.

[21] In other words, applying the Handy factors: there is proximity in time; similarity in the number of occurrences and the surrounding circumstances; there are distinctive features in that both involve pre-pubescent boys and opportunistic behaviour by the accused while performing hair grooming services. Further, there are no intervening events, nor is any suggestion of collusion.

[22] Connectedness is a matter of logic. Considering all the circumstances in this case, in my view, the similarities described are all compelling such that – applying human experience and common sense – they support an inference of Mr. Nieto-Zelaya engaging in a pattern of similar behaviour. The chain of reasoning is the improbability of coincidence: (i) Mr. Nieto-Zelaya has a specific propensity to prey upon young boys as a trusted hairdresser for the family; and (ii) the evidence of the complainant that Mr. Nieto-Zelaya acted in that particularized fashion.

[23] Such evidence not only supports RM’s account of what occurred, but it also negates the defence of accidental touching, and the defence theory that some of the alleged acts are implausible given the mother’s presence. In other words, the evidence is capable of supporting the double inference sought by the Crown, namely that Mr. Nieto-Zelaya had a “situation- specific propensity” to groom pre-pubescent boys for sexual gratification and that he acted in that manner with RM. It defies common sense to think that the similarities are a coincidence.

[24] After considering all these circumstances, I am satisfied that the nexus between the two allegations is strong and specific, and the potential probative value of the similar fact evidence is high. In my view, the scale tips in favour of probative value.

[25] Ultimately, it will be for the jury to assess the similarities and differences in the complainant’s evidence and determine whether they reveal such a distinctive pattern of conduct that it would defy coincidence that RM is lying or mistaken. My only role at this stage is to decide whether the evidence is such that the jury should hear this evidence and be instructed that they may reach this conclusion.

(2) Prejudice

[26] The second step in the analysis requires an assessment of prejudice. Evidence of discreditable conduct is inherently prejudicial. As observed in Handy, “[t]he poisonous potential of similar fact evidence cannot be doubted”: Handy, at para. 138. Prejudice in this context is twofold: moral prejudice and reasoning prejudice.

[27] Moral prejudice is the risk that the trier will engage in prohibited propensity reasoning i.e., that an accused has a general propensity to engage in the kind of conduct at issue and seek to punish the accused because he is generally a bad person, or has done bad things: Handy, at paras. 37-40, 137-142. In other words, it is the risk that the jury may find the accused guilty based on his bad character rather than the strength of the evidence. Reasoning prejudice considers whether the trier of fact “may become confused by the multiplicity of incidents and become distracted by the cumulative force of so many allegations”: Shearing, at para. 68.

[28] In my view, the moral prejudice can be addressed by proper instructions both mid-trial, at the time the similar fact evidence is adduced, and in the final instructions. The risk of moral prejudice is somewhat diminished in this case as the conduct involving MG was less serious. The most egregious act involving MG was the invitation to touch Mr. Nieto-Zelaya’s exposed penis. In contrast, the allegations in this case involve Mr. Nieto-Zelaya having RM masturbate him and that Mr. Nieto-Zelaya sucked RM’s penis.

[29] In my view, the focus of the jury’s attention will properly be on determining what happened when Mr. Nieto-Zelaya was with RM. I believe the risk of moral prejudice is manageable with the appropriate jury instructions. I do not believe there is a danger of “inflaming the jury, causing them to give the similar fact evidence more weight” than it deserves: Bent, at para.74.

[30] With regards to reasoning prejudice, the concern is the distraction of members of the jury from their proper focus on the charges involving RM. The risk of distraction in this case is enhanced because of the anticipated denial of the similar facts by Mr. Nieto-Zelaya. Accordingly, as in Handy, the “court will be caught in a conflict between seeking to admit what appears to be cogent evidence bearing on a material issue and the need to avoid unfairness to the right of the accused to respond”: Handy, at para. 146. However, the risk of reasoning prejudice can also be contained by restricting the manner in which this evidence is adduced. While I will invite further submissions from counsel on the issue, it may be that adducing the evidence through agreed facts will minimize the risk of reasoning prejudice.

[31] Defence counsel argues that admitting the similar fact evidence will make the jury instruction more complex. The jury will have to consider whether they accept the similar fact evidence in light of Mr. Nieto-Zelaya’s anticipated denial of the earlier incident. While this will add to the instructions that must be given to the jury, I am confident that the jury will be able to properly consider the evidence in deciding whether RM’s allegations have been proven beyond a reasonable doubt.

(3) Balancing the Probative Value Versus Prejudice

[32] In the third and final stage of the analysis I must weigh the probative value of the evidence against its prejudicial effect. When I do this, I am satisfied that the potential probative value of similar fact reasoning exceeds its potential for prejudice.

[33] Ultimately it will be for the jury to decide whether there is a distinctive pattern of conduct that defies coincidence, and if so, what if any weight to give it.

E. Disposition

[34] Having carefully considered the framework of analysis in Handy in the circumstances of this case and all of the submissions and evidence heard on the voir dire, I am satisfied that the probative value of the proffered similar fact evidence outweighs it prejudicial effect. Accordingly, it is admissible.

J.M. Barrett J. Released: March 29, 2023