BARRIE COURT FILE NO.: CR-20-57-00 DATE: 20230418 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – ANTHONY HOLTORF Applicant

Counsel: Miriam Villamil-Pallister, Katherine Spensieri, for the Respondent Mary Cremer, for the Applicant

HEARD: February 7, 10-11, March 16, 17, May 26, July 28-29, September 9, 19, 2022

RULING ON CROWN’S SIMILAR FACT EVIDENCE APPLICATION

CASULLO J.:

Introduction

[1] This trial proceeded as a blended trial/ voir dire, with all of the Crown’s evidence going in on the voir dire, to be applied to the trial as I find it admissible. The Defence called no evidence on the voir dire, although may still call evidence at trial.

[2] At the close of the Crown’s case I heard two applications: Mr. Holtorf’s application to exclude evidence based on a number of alleged breaches of the Canadian Charter of Rights and Freedoms (the “Charter”), and the Crown’s application to admit similar fact evidence. No viva voce evidence was called on either application.

[3] On March 8, 2023, I released my Reasons for Decision in respect of Mr. Holtorf’s Charter application: see 2023 ONSC 1565. At the same time I advised counsel that I was granting the Crown’s application to admit similar fact evidence in its entirety, with written reasons to follow. These are my reasons.

Overview of the Evidence

[4] A summary of the evidence can be found in my Reasons for Decision on Mr. Holtorf’s Charter application. I rely on that summary and will not repeat it here.

[5] By way of broad overview, on March 21, 2019, a woman called police to report a man who was approaching young girls at the park across the street from her home. That man was Mr. Holtorf.

[6] One of the girls Mr. Holtorf approached was the woman’s daughter. Mr. Holtorf reportedly asked the girl and her friends whether they wanted to play a game and “taste stuff,” and he would give them money. They declined. Mr. Holtorf then left the park.

[7] Mr. Holtorf returned a short time later and was seen approaching a different group of young girls. Police were called again, and this time attended at the scene. Based on the ensuing investigation Mr. Holtorf was charged with two counts of criminal harassment and two counts of child luring.

The Nature of the Evidence Sought to be Admitted

[8] There are two sets of similar fact evidence the Crown seeks to have admitted, both stemming from criminal harassment charges. The first is the s. 810 peace bond Mr. Holtorf entered into on July 29, 2008, and the events preceding it; the second is the guilty plea on November 20, 2015, and the events preceding it.

2008 Peace Bond

[9] The following evidence was provided by way of an Agreed Statement of Fact.

[10] In the fall of 2007, N.M-V (age 13) and E.F. (age 13) were walking along a street in Stayner when Mr. Holtorf drove by them a number of times back and forth, turning around in laneways in order to do so.

[11] Later that month A.N. (age 13) and K.D. (age 13) were walking home from a park in Stayner when Mr. Holtorf pulled his car over and asked for directions.

[12] On October 9, 2007, N.M-V., K.L., and E.F. were walking home from school in Stayner when they noticed that a red dodge pick-up truck appeared to be following them. The three girls could see Mr. Holtorf as he drove past, and he seemed to be staring at them. He drove around the block several times to follow them, and always slowed down when he was close to them. N.M-V estimates Mr. Holtorf circled them six times. While he did not talk to them, he waved from inside his car.

[13] The girls noted his license plate and told their parents, who called police.

[14] Mr. Holtorf was charged with criminal harassment. On July 29, 2008 Mr. Holtorf, through counsel, did not show cause why he should not enter into a recognizance in relation to the allegations. Consequently a s. 810 peace bond was ordered for a period of 12 months, during which time Mr. Holtorf was to have no contact with the girls. He was also required to report the incidents to his physician.

2015 Guilty Plea

[15] On September 6, 2014, E.P. (age 10) and her two younger sisters (ages 6 and 4) were making the two-kilometre walk home from a convenience store in Barrie when a small red car drove past them, turned around in a school parking lot, and drove past them slowly. The car then turned around in another parking lot and drove back by the three girls again. E.P. began to feel that the car was following them.

[16] The car circled back to them once more and the man inside waved. E.P.’s middle sister waved back. E.P. was now nervous and began walking faster. They stopped at a friend’s house for a short while, which was located halfway between the convenience store and their home, and then continued toward home.

[17] The red car had by that time parked in a small dead end area that the girls had to walk by. The man then waved “frantically” at the girls, motioning them to get into the car. No words were exchanged, but E.P. and her sisters started walking faster. The car then pulled right up beside them, again the man motioning for them to get into the car. E.P. began to panic, and as the car drove away she called out to a boy riding his bike. She told him the driver of the car was following them and that she was scared. E.P. and the boy signalled for help to a man who was also out on his bike. The man told the driver to leave, which he did.

[18] The car’s license plate revealed the driver to be Mr. Holtorf, who was charged with criminal harassment. On November 20, 2015, Mr. Holtorf changed his plea from not guilty to guilty, acknowledging that E.P. was harassed, which caused her to fear for her safety. Mr. Holtorf received a suspended sentence and 18 months’ probation, a 10-year s. 109 weapons ban, and a DNA order.

The Positions of the Parties

The Position of the Crown

[19] The Crown submits that the similar fact evidence sought to be introduced is probative and relates to a number of issues, namely proof of Mr. Holtorf’s mens rea, as well as to rebut the anticipated defence of innocent explanation or association.

[20] In terms of the mens rea, by entering into the peace bond, Mr. Holtorf acknowledged that the children had a reasonable basis to fear for their safety in light of his actions. In other words, it would have been abundantly clear to him that his behaviour scared the young girls.

[21] Further, Mr. Holtorf repeated similar behaviour, resulting in another charge of criminal harassment. By pleading guilty, Mr. Holtorf conceded he knowingly harassed the 2014 complainants, or was reckless as to whether they were harassed.

[22] The Crown concedes that the similar fact evidence is not proximate to the charges before the court, but contends that the similar acts enhance the probative value of the evidence.

[23] In respect of rebutting the defence of innocent association, the Crown anticipates Mr. Holtorf will advance this defence to explain his behaviour in respect of the charges before this court; further, he will advance the defence of innocent explanation to justify having the items in the satchel he carried around with him in the park.

[24] With respect to any potential prejudice that may be caused by admitting the evidence, the Crown submits that because this is a judge-alone trial and the similar fact evidence is of comparable gravity, the possibility of either moral or reasoning prejudice will be attenuated.

The Position of the Defence

[25] The Defence argues that one of the purposes for seeking to introduce the proposed evidence is to establish that Mr. Holtorf had an affinity for young, underage girls. Another purpose is to lead the trier of fact to the inevitable conclusion that because Mr. Holtorf had previously been convicted of following young, underage girls, he is therefore likely to have committed the acts before this court.

[26] Instead, the Defence suggests that what the Crown is really seeking to do is shore up the credibility of the complainants.

[27] The two incidents have no evidentiary link with the case at bar for the following reasons: (a) they are remote in time to the current offences before the court; (b) they do not contribute to the narrative or context of the current case; (c) there is no link between the complainants in the three incidents; and, (d) the prior incidents do not contribute to or explain any alleged relationship between Mr. Holtorf and the current complainants.

[28] The Defence also argues that there are a number of dissimilarities between the conduct alleged in 2007 and 2014, when contrasted with the conduct alleged in 2019.

[29] Finally, the Defence argues that Mr. Holtorf would be prejudiced by the admission of the proposed evidence, which is not outweighed by its probative value.

The Applicable Legal Principles

[30] The leading authority on the admission of similar fact evidence is the Supreme Court of Canada’s decision in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[31] As counsel have correctly pointed out, similar fact evidence linking the accused to other disreputable acts is presumptively inadmissible. Evidence of general propensity, disposition, or bad character is subject to a general exclusionary rule: Handy at para 36.

[32] This rule is in place to avoid the trier of fact inferring, on the basis of similar facts, that the accused is disposed to carry out the acts in question, and that she or he is therefore guilty: Handy at para. 31.

[33] However, there is a narrow exception of admissibility where the evidence is so highly relevant and cogent that its probative value outweighs any prejudice to the accused. This occurs where the force of similar circumstances makes coincidence improbable or defies other innocent explanation.

[34] The Supreme Court set out a roadmap in Handy to assist trial judges when grappling with similar fact evidence applications. First, the probative value of the evidence must be determined and considered. Second, there is to be a weighing of the probative value versus prejudice.

[35] The Crown bears the onus of establishing, on a balance of probabilities, that the likely probative value of the evidence will outweigh the potential prejudice: see Handy at para. 55.

Assessing Probative Value

[36] As outlined in Handy at para. 99, in examining the probative value of the evidence, the court should: (a) identify the issue to which the similar fact evidence is directed – in other words, what the evidence proposed to prove; (b) consider the similarities and dissimilarities (the connecting factors); and (c) assess the strength of the evidence of the similar acts, including the potential for collusion.

Issue in Question

[37] The issues in question are whether the mens rea of the offence occurred and to rebut the anticipated defence of innocent association. The Crown argues that the evidence demonstrates a pattern of harassing behaviour employed by the accused against young girls. Particularly, that Mr. Holtorf has a specific disposition to harass young girls while they are unsupervised by an adult.

[38] The proposed evidence will assist the Crown in proving Mr. Holtorf’s intent in respect of the charges before the court. To wit, by dint of his entering into the peace bond in 2008, Mr. Holtorf acknowledged that E.S. had a reasonable basis to fear for her and her sisters’ safety in the face of his actions. Mr. Holtorf elected not to show cause to contest the criminal harassment allegation, which leads the court to conclude that Mr. Holtorf knew his behaviour scared the girls.

[39] The Defence argues that the peace bond does not have the effect advanced by the Crown. In other words, it is not an admission of guilt, it does not provide evidence of intent, and it does not go to mens rea. It is true that Mr. Holtorf was not required to enter a plea of guilty, or make an admission of criminal conduct. However, before granting the application, the judge was required to find that the complainant(s) had reasonable grounds to fear for their safety.

[40] In respect of the proposed evidence being advanced to rebut Mr. Holtorf’s anticipated defences, there is no “closed list of the sort of cases where such evidence is admissible,” but that it is "well established that it may be admitted to rebut a defence of legitimate association for honest purposes, as well as to rebut evidence of good character.” See R. v. B. (C.R.), [1990] 1 S.C.R. 717, at p. 732.

[41] The proposed evidence discloses Mr. Holtorf’s involvement in two similar situations, for which he was also charged with criminal harassment.

[42] The threshold for probative value is high and requires both a significant degree of cogency of the similar fact evidence in relation to the inferences sought to be drawn and a demonstration of the strength of the proof of the similar facts themselves. Similarities in detail and proximity in time between the impugned evidence and the charged conduct will enhance the probative value, while differences in the evidence, lack of detail, and larger gaps in time between the events will diminish the probative value.

[43] I will now turn to the similarities and differences between the evidence.

Temporal Proximity of Similar Acts

[44] The allegations in respect of the peace bond took place in 2007, the allegations in respect of the guilty plea took place in 2014, and the allegations in respect of the case before the court took place in 2019.

[45] There is a significant gap between all three events. However, because all three are grounded in charges of criminal harassment, the lack of temporal proximity is less of a barrier to inclusion.

[46] Further, there is more than one act of criminal harassment. As noted in Handy, a pattern of conduct may gain strength if a greater number of instances compose it. Here, there was a finding of criminal harassment, and a finding of reasonable grounds for a person to fear for their safety. While not a particularly high occurrence rate, the incidences were carried out in a similar fashion, which further enhances the probative value of the evidence. The repetition of these acts is unlikely to have resulted from coincidence.

Similarity in Detail

[47] There are significant similarities between the three sets of events. All involved young girls, between the ages of 11 to 13, who at all material times were unsupervised by adults.

[48] A vehicle also factored heavily in each incident. In 2007 and 2014, Mr. Holtorf drove a car back and forth by the girls for a period of time, watching them as he drove past. In 2019 Mr. Holtorf drove his car to the park, got out and talked to one of the complainants in the area. He then returned to his car and sat inside, smoking and staring at the girls, who were by then sitting in the parking lot.

[49] In each instance the young girls feared for their safety.

[50] Finally, in all three instances, Mr. Holtorf was a stranger to the young girls.

Dissimilarities

[51] In 2007, Mr. Holtorf did not ask the girls to get in the car, although he did ask one group of girls for directions to Jane Street.

[52] In 2014, Mr. Holtorf motioned to the girls to “come over and get in” the car, but he did not speak to them.

[53] In 2019, there was verbal communication with the girls, but in the park, not from his car. Mr. Holtorf did not ask or motion for any of the girls to get in the car.

[54] The 2007 and 2014 incidents happened on public streets. The 2019 incident took place in a park.

[55] In Handy at para. 78, the Supreme Court quoted (with approval) the following from R. v. Carpenter (1982), 142 D.L.R. (3d) 237 (Ont. C.A.) at p. 244:

The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.

Strength of the Proposed Evidence

[56] The strength of the proposed evidence plays an important factor in my deliberations. The identity of Mr. Holtorf is not in question. The criminal harassment charges stemming from the 2007 and 2014 events arose out of the actions of Mr. Holtorf, and criminal harassment is one of the charges he faces in the case at bar.

[57] The similar fact evidence is also reasonably capable of belief – indeed, given the outcomes of the two criminal proceedings, there can be no other conclusion.

Conclusion of the Assessment of Probative Value

[58] I am satisfied the Crown has established that there is a pattern of similar behaviour and a similarity in approach employed by Mr. Holtorf in the proposed evidence, and that it is relevant and probative to the issues the Crown seeks to introduce it in respect of – both the mens rea of the criminal harassment charge and to rebut the anticipated defences.

[59] I agree there are some dissimilarities. However, the main similarities – a lone man, whether by car or on foot, approaching young, pre-teen girls who do not have the benefit of an adult present – help support my conclusion. The probative value of the proposed similar fact evidence is indeed probative of the issues at trial.

[60] Having so decided, I now turn to the prejudicial effect of the similar fact evidence.

Assessing Prejudice

[61] In Handy, Justice Binnie characterized the prejudicial effect of similar fact evidence as having two potential faces: moral prejudice and reasoning prejudice. Moral prejudice is “the potential stigma of bad personhood”: Handy, at para. 100. Moral prejudice may cause the trier of fact to convict on the basis of bad character. The risk of moral prejudice is particularly engaged when the conduct sought to be introduced demonstrates a propensity to engage in the same kind of conduct that is before the court.

[62] Reasoning prejudice is the potential that the proposed evidence might divert the trier of fact from their proper focus, and ascribe the proposed evidence more weight than it deserves.

[63] It is trite law that the meaning of “prejudice” in this context is not the risk of conviction, but the risk of an unfocussed trial and a wrongful conviction. The higher the probative value of the evidence, the lesser the prejudicial effect.

[64] In assessing prejudicial effect, consideration should be given to the following matters: (a) How discreditable the conduct is; (b) The extent to which it may support an inference of guilt based solely on bad character; (c) The extent to which it may confuse issues; and, (d) The accused’s ability to respond to it.

See R. v. L.B. (1997), 35 O.R. (3d) 35, at paras. 23-24.

[65] I do not find the proposed evidence to be any more discreditable than the charges faced by Mr. Holtorf. It does tend to support an inference of guilt, but not solely based on bad character. Rather, it establishes a pattern on the part of Mr. Holtorf to follow and/or approach young, unsupervised girls. However, I am mindful that I should not use this evidence to conclude that because Mr. Holtorf did not show cause why he should not enter the 2008 peace bond, and acknowledged his 2014 actions caused the young girls to fear for their safety, that he is more likely to have harassed the complainants in 2019.

[66] Allowing the proposed similar fact evidence will not confuse the issues nor lead to an unfocussed trial. I will not be distracted from the charge before me. No inordinate amount of time was wasted by the introduction of the similar fact evidence.

[67] While Mr. Holtorf’s ability to respond to the similar fact evidence may be limited, in light of the peace bond (2008) and the guilty plea (2015), there is likely little that Mr. Holtorf would want to add.

[68] The Defence submits that because the prior charges are proffered as evidence to show Mr. Holtorf’s general bad character, the prejudice inherent in the proposed evidence outweighs any probative value. Further, propensity evidence by any other name is still propensity evidence, and what the Crown is really trying to do is show that Mr. Holtorf is likely guilty of the 2019 offence because he chose not to show cause why he should not enter the 2008 peace bond and has admitted guilt for the 2014 offences.

[69] With respect, I disagree.

[70] It is trite law that propensity reasoning in and of itself is not prohibited. What is prohibited is propensity reasoning based solely on the general bad character of an accused which is demonstrated by way of evidence of discreditable conduct.

[71] The evidence the Crown seeks to introduce is being offered to establish that Mr. Holtorf has a pattern of behaviour when it comes to approaching young, unsupervised girls. It is not being tendered to besmirch his character.

[72] In this particular case, the proposed similar fact evidence is probative to the issues in the trial. As I have noted above, I am mindful of the limited purposes for which the proposed evidence is being proffered and will only use it for those purposes.

[73] In my view, the risk of prejudice in admitting the evidence is minimal.

Conclusion

[74] I am satisfied that the probative value of the proposed similar fact evidence exceeds its prejudicial effect. There is sufficient similarity in the evidence to rebut the likelihood of coincidence.

[75] The crown has met the test in Handy, and the application is allowed.

CASULLO J. Released: April 18, 2023