Court File and Parties

Court File No.: CR-22-0126-00 Date: 2023-04-19

SUPERIOR COURT OF JUSTICE - ONTARIO

Re: R. v. Rene Carriere

Heard: April 18, 2023

Before: Fitzpatrick J.

Counsel: T. Boisvert, for the Crown K. Brindley, for the Accused

Endorsement on Similar Fact Issue Application

[1] The Crown brings an application to have certain presumptively inadmissible evidence admitted at trial on the basis that its probative value outweighs its prejudicial value as it is similar fact evidence legitimately probative of an issue in the present matter. The application was conducted on a record provided to the Court in Caselines. Both counsel filed excellent factums. Following submissions, I dismissed the application for reasons to follow. Here are those reasons.

[2] Mr. Carriere is before the Court on a three count indictment which alleges offices of a sexual nature against a youth. He has plead not guilty to all three charges. The accused Rene Carriere was previously convicted of one count of sexual inference, contrary to section 151 of the Criminal Code, on March 16, 2009. He plead guilty to the one count on that date.

[3] On the date of the plea in 2009, the parties had submitted to the Court an agreed statement of fact. That agreed statement of fact has been lost. The Crown in this application is relying on a transcript of the proceedings of March 16, 2009, and the facts as read into the record on that date.

[4] The defence resists this application on the basis that the alleged facts sought to be placed before the Court now, were not admitted by Mr. Carriere in 2009.

[5] The relevant sections of the transcript from which the facts are or are not established were placed before the Court. The relevant portion began at page six and ran to page 13. It was redacted by the Crown for the purposes of this case. The Crown asserts the facts established that Mr. Carriere admitted to;

• A sexual offence against female children aged 7-9;
• In a relationship where he had a familial connection to the children;
• Where he was in a position of authority;
• While their mothers were away and where other family members were proximate;
• The offences occurred in the bedroom of the children; and
• He had made a request for the children to disrobe.

[6] The defence points to the portion of the transcript where counsel for Mr. Carriere was asked to advise the court if the facts as read were admitted and accepted as substantially correct. The defence asserts Mr. Carriere’s acceptance of the facts was qualified and did not expressly or inferentially admit the facts as set out above by the Crown. The relevant section of the transcript began at page 12 line 13 of the transcript and continued to page 13 line 7. Counsel for Mr. Carrier says: Thank you. Yes, Your Honour, the accused, does not take violent objection to what is said as the facts that my friend has read in. His explanation as you can see is that he gets out of prison, ms. A is having a difficult time. She has two children at home and is pregnant with another. He tries to do what is best for the family... (redactions). At this point Ms. A has that first child and then has K who is this gentleman’s child. They move in together and you have it all before you. The accused points out on page two, last couple of lines of the second last paragraph, in a cautioned videotaped statement, the accused admitted to bathing M on one occasion and to examining her vaginal area when she complained of difficulty urinating. If this had been a family situation with no court orders, that might have been acceptable, it wasn't such a deal; this was the one where the court had earlier ordered that he have nothing to do with M and indeed nothing to do with persons under a certain age unless accompanied by another adult. Faced with that, Your Honour, the accused in my view meets the definition of the charge you have before you.

[7] In R. v. Bent, 2016 ONCA 651, [2016] O.J. No. 5103 at para. 44, the majority for the Ontario Court of Appeal stated that the court must consider the strength of the evidence that the similar acts occurred and suggested consideration of the following:

• Have the allegations been admitted in prior proceedings?
• Are the allegations the subject matter of outstanding charges?
• By what method of proof are the acts to be proved?
• Can the trier of fact fairly assess the evidence in the context of the trial without undue distraction?
• Will the defence be able to fairly respond to the allegations in the context of the prosecution?

[8] I agree with the submission of the defence that the facts admitted in the 2009 transcript do not match the alleged similar facts the Crown now seeks to have admitted as evidence on this trial. Therefore the alleged similar fact evidence is not strong. In my view a plain reading of the transcript indicates that Mr. Carriere did not admit or agree to the specific facts the Crown is now seeking to be admitted.

[9] The Court must always take a cautious approach to propensity type evidence. In this matter the alleged similar facts have not been admitted. Also, reliance on a transcript by which the Crown seeks to prove the acts does not provide the plain reading that is urged by the Crown. I am also concerned that the defence will be unable to fairly respond to the similar fact allegations in the context of this prosecution.

[10] For these reasons the application is dismissed.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: April 19, 2023