COURT FILE NO.: 21-101 DATE: 2023/10/17
ONTARIO SUPERIOR COURT OF JUSTICE
IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4 (victim) OF THE CRIMINAL CODE OF CANADA.
BETWEEN:
HER MAJESTY THE QUEEN – and – RAOUL SAUCIER
Counsel: Lorne Goldstein, counsel for the Crown Jonatan Larochelle, counsel for the Accused
HEARD: December 12, 13, 2022 and June 13-16, 2023
RULING ON SIMILAR FACT EVIDENCE APPLICATION
BRAMWELL, J.
Introduction
[1] The accused is charged with one count of sexual assault against T.L. At the time of the alleged offence, the accused was the boyfriend of a friend of T.L.
[2] The Crown applies to admit evidence of prior discreditable conduct, or similar fact evidence, in the trial of the accused. The terms prior discreditable conduct and similar fact evidence will be used interchangeably throughout this decision. The Crown seeks admission of the facts surrounding the accused’s conviction for sexual assaulting K.D. There is no admissible evidence before me as to when the sexual assault of K.D. happened other than that it must have happened prior to May 10, 2012. I say that because the publication ban at his trial for that offence was put in place on that date. He was sentenced for that offence on September 20, 2013.
[3] The issue I must decide is whether the proposed similar fact evidence meets the test for admissibility as set out in the decision of the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 (“Handy”). Ultimately, the issue before the Court is whether the Crown has established that the probative value of the proposed evidence outweighs its prejudicial effect.
The Positions of the Parties
[4] The Crown submits that the proposed similar fact evidence meets the test set out in Handy. The Crown argues that the evidence is probative because it is relevant to the issue of consent and the proper determination of consent. He highlights the similarities in the conduct of the accused, and in particular, the circumstances surrounding the accused’s conduct with T.L. as compared to those surrounding his conduct with K.D. He argues that in each case:
a. The accused exploited a vulnerable victim/complainant; b. The accused accessed the victim/complainant through a friend or relative of the victim/complainant; c. There was isolation of the victim/complainant; d. There was digital penetration of the victim/complainant while standing; e. The accused told the victim/complainant that he wanted to have sex; and f. The accused ignored the fact that the victim/complainant said “no.”
[5] The Crown relies on the above-noted asserted similarities to argue that the accused has a situation specific propensity to sexually exploit vulnerable females. He argues the evidence is highly probative, and minimally prejudicial.
[6] The Crown suggests that the prejudicial effect of the evidence is diminished since this is not a jury trial, and the court will not be at risk of engaging in general propensity reasoning.
[7] The accused argues that, because the proposed evidence relates to only one prior instance, from many years before the date of the alleged offence and given that the circumstances surrounding the sexual assault of K.D. are really not very similar to the allegations of T.L, the probative value of the proposed similar fact evidence is minimal to none and any probative value that it may have is outweighed by its prejudicial effect.
[8] The accused also argues that there is an “air of reality” to the possibility that there was collusion between T.L. and K.D. because:
a. T.L. has K.D. as a friend on Facebook, though she does not know K.D.’s last name; b. T.L. knows that the accused went to jail for “raping” K.D., which she knows because the accused told her; and c. both T.L. and K.D. describe the accused putting his hand down their “pants” even though in T.L.’s case, she was wearing a dress.
Overview of the Evidence
The Current Allegations
[9] T.L. alleges that one day in July 2020, she went to her friend Shannon’s house. While she was there, Shannon’s boyfriend, the accused, came over to Shannon’s. The three of them were in the living room on the couch together when the accused began touching T.L., hugging her and pulling her towards him and kissing her. T.L. told the accused “no”. At some point, the accused told Shannon, either by speaking to her or texting her, that Shannon should go to Shannon’s room. Shannon left the living room. T.L. and the accused were now alone, both sitting on the couch in the living room.
[10] The accused then began touching T.L.’s vagina, pulling her towards him and kissing her. The accused then stood up, took T.L.’s arms and stood her up and then put his penis in her vagina. T.L. said “no” throughout.
The Proposed Similar Fact Evidence
[11] The proposed similar fact evidence ultimately tendered by the Crown consisted solely of the transcript of the sentencing decision of Justice Brunet dated September 20, 2013.
[12] At some point prior to September 20, 2013, K.D. was at a mall in Cornwall with her sister. K.D., her sister and the accused went to the parking garage which had multiple stacked levels. All three of them went up to the top level of the parking garage. K.D. found herself alone there with the accused. She thought her sister was behind her but then realized that her sister was on the other side of the door to the top floor of the garage.
[13] The accused asked K.D. repeatedly to have sex with him. She refused. He took her arms and pinned her up against the wall, unzipped her pants, put his hand in her pants and rubbed her vagina. He then briefly digitally penetrated her. The incident ended with K.D. telling the accused to leave. He said he would leave if she kissed him. She refused and he took her hand and put it onto his crotch area where she felt his erect penis. K.D. was left with some bruises on her sides from where the accused had held her.
The Applicable Legal Principles
[14] The law governing this application is set out in Handy. In that decision, the Supreme Court of Canada re-affirmed that evidence of prior discreditable conduct, or of propensity or disposition, may be relevant to the crime charged, but is usually inadmissible because its slight probative value is ultimately outweighed by its highly prejudicial effect. Indeed, the presumption is that evidence of prior discreditable conduct is inadmissible. The Court explained the policy basis for the exclusion of this evidence as follows, at para. 37:
The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible … .
[15] In Handy and R. v. Shearing, (2002) 2002 SCC 58, S.C.J. No. 59, the Supreme Court of Canada reaffirmed that similar fact evidence, or evidence of prior discreditable conduct, is only admissible where the prosecution establishes on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect. The Court noted at paragraph 41 in Handy that “an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”. The Court summarized the test for admissibility as follows at para. 55:
Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.
[16] The Supreme Court in Handy provided further guidance in the application of that test in cases where the Crown seeks to rely on the evidence to prove issues other than identity. The framework of the analysis suggested by the Supreme Court is as follows. First, probative value may be assessed in the following manner:
a. By considering the strength of the similar fact evidence, including the extent to which the evidence can be proven and any allegations of collusion. In particular: i. Where there is an “air of reality” to allegations of collusion, the trial judge must be satisfied, on a balance of probabilities, that the similar fact evidence “is not tainted with collusion”; and ii. Similar fact evidence may be “potentially too prejudicial to be admitted unless the trial judge is of the view it meets the threshold of being reasonably capable of belief”; b. By identifying the “issue in question” (e.g. the live issue at trial to which the proposed similar fact evidence is said to be relevant and its relative importance in the particular trial.) If the evidence of prior discreditable conduct “is not properly capable of supporting the inferences sought by the Crown, generally, the analysis need go no further”; c. By identifying the factors that connect the similar fact evidence to or distinguish it from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible. These “connecting factors” may, but need not include: i. The 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. The 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. [Handy at para 82]
[17] When the issues to which the evidence may be relevant do not include the identity of the perpetrator, as regards the degree of similarity required in the evidence, the Supreme Court held at para. 78 that:
[t]he point is not that the degree of similarity in such a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. As Grange J.A. correctly pointed out 20 years ago in 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.
[18] In discussing the difference between general propensity evidence, which is always inadmissible, and evidence of a specific propensity, which may be admissible, the Supreme Court in Handy also noted at para. 87 that “cogency increases as the fact situation moves further to the specific end of the spectrum.”
[19] After the probative value of the evidence has been assessed, its prejudicial effect must be considered. Handy confirms that with respect to the issue of prejudice, potential prejudice to the accused is assessed by considering the moral prejudice and the reasoning prejudice. Moral prejudice against the accused means the risk of convicting the accused because he is a “bad person”, rather than based on proof that he committed the offence before the Court. Reasoning prejudice means the risk of distracting or confusing the trier of fact, or of undue consumption of time, and the danger that the jury may have difficulty in disentangling the subject matter of the charges from the evidence of prior discreditable conduct: Handy at para. 83, R. v. Shearing at paras. 38-74.
[20] I turn now to the application of these principles to the facts in this case.
Analysis
The Probative Value of the Evidence
[21] As indicated in Handy, “the issue at this stage is to determine whether the similar fact evidence is indeed strong enough to be capable of properly raising the inferences contended for it by the Crown.” Handy directs the review of various features of the evidence under this heading.
1. The Potential for Collusion
[22] I find that collusion is not a live issue on this Application. Although the accused argued, at the end of his submissions, that there is an “air of reality” to the idea that there was collusion between T.L. and K.D., there is absolutely no evidence of any such collusion before me.
[23] In her videotaped statement to the police, which was ruled admissible as part of her evidence during examination-in-chief, pursuant to s. 715.2 of the Criminal Code of Canada, T.L. discloses that she is aware that the accused went to jail for raping someone and that she knows that because the accused told her (ie. she was not told by the victim of that offence). She then goes on to refer to a person with the same first name as K.D. and with the surname initial of D. She tells the officer that she doesn’t know what the “D” stands for. She says this person is a Facebook friend of hers.
[24] At its highest, this evidence suggests that T.L.’s Facebook friend may be K.D., the victim of the prior sexual assault by the accused and T.L. may be aware of that. T.L. also knows about the accused’s prior conviction for sexual assault. But it is not evidence that T.L. is aware of any of the details of the proposed similar fact evidence or that she has ever even had a conversation with K.D. about it.
[25] The accused suggested that because both T.L. and K.D. described part of their sexual assault (alleged as it relates to T.L.) at the hands of the accused as involving him putting a hand down their pants, this is evidence of collusion, because they are both describing the same act. Again, there is absolutely no evidence that T.L. ever heard this detail of K.D.’s sexual assault. It is also, in my view, a rather generic detail.
[26] Lastly, I note that T.L. testified and was cross-examined at length, while the Crown’s similar fact application was pending. She was not asked any questions relating to collusion by either counsel.
2. The Strength of the Evidence that the Prior Discreditable Conduct Actually Occurred
[27] I find that the proposed general evidence of prior discreditable conduct is strong in the sense that it was the subject of a trial and resulted in a conviction. On the other hand, the evidence about many of the specifics of the prior discreditable conduct associated with the prior conviction for sexual assault are weak or non-existent as a result of the form in which the proposed evidence has been put before the court – namely, the transcript of the sentencing decision of Justice Brunet.
3. Identification of “the Issue in Question”
[28] The Crown indicates the issues to which the evidence of prior discreditable conduct relate are consent and the exploitation of vulnerable victims. Further, the Crown argues that this evidence is relevant to rebut potential defence arguments such as that the accused would never commit a sexual assault in such proximity to a known third party and/or that the accused would not ignore a prospective sexual partner saying “no” and/or that the accused could not meaningfully appreciate the non-consent given the cognitive disabilities of the complainant in the matter before the Court. The Crown argues that the proposed similar fact evidence suggests that the accused, having been convicted of such a similar offence, would be more – not less – aware of the issue of consent.
[29] The accused appears to take no issue with the framing of the proposed relevance of the evidence in this manner, but rather argues that the evidence is not sufficiently cogent to warrant admission for those purposes. The accused essentially argues that the proposed similar fact evidence is dated and is really not similar in terms of the circumstances so it would not provide any assistance to the court other than as highly prejudicial, general propensity evidence, which is presumptively inadmissible.
4. The Similarities and Dissimilarities between the Facts Charged and the Evidence of Prior Discreditable Conduct
The Similarities
[30] The Crown identifies a number of similarities between the conviction involving K.D. and the allegations of T.L., as follows:
a. The accused exploited vulnerable victims. T.L. is a cognitively and developmentally delayed adult woman who is quite small in stature. T.L. was 26 years old at the time of the alleged offence. There is no evidence before me as to how old K.D. was at the time the accused sexually assaulted her. In his sentencing of the accused, Justice Brunet referred to K.D. as a “young woman” and mentioned that she had difficulties “at school” as a result of being victimized. He also alluded to the fact that she lived with her family; b. The accused accessed the victims through a friend or relative of the victim. On the day of the alleged assault, T.L. was visiting her friend Shannon at Shannon’s home when the accused, who was Shannon’s boyfriend, came to the home. At one point, Shannon left the living room, where she, T.L. and the accused had been seated, and went to her room. This left T.L. alone with the accused and T.L. says that is when he sexually assaulted her. There is no evidence before me as to the nature of the relationship between K.D. and the accused or how they came to be together on the day he sexually assaulted her. All I know is that K.D., her sister and the accused were at the mall in Cornwall; c. There was isolation of the victim/complainant. At one point, during T.L.’s visit to Shannon’s on the date in question, Shannon left the living room, where she, T.L. and the accused had been seated, and went to her room. This left T.L. alone with the accused and T.L. says that is when he sexually assaulted her. K.D. was in the parking garage of the mall with her sister and the accused. They all went up towards the top floor of the garage and, once they arrived at the top, K.D., thought her sister was behind her but then realized that she was not. K.D. then realized that she was alone on the top level of the parking garage with the accused. K.D.’s sister was behind the closed door to that top level of the parking garage. The accused pinned K.D. against the wall of the parking garage and sexually assaulted her; d. There was digital penetration of the victim/complainant while standing. T.L. says that the accused hugged her, kissed her, touched her repeatedly on her genitals, then removed his pants, grabbed her by the arm and stood her up. She says that he then penetrated her vagina with his penis, while she was standing up in the living room; The accused pinned K.D. against the wall of the parking garage, held her arms in front of her and tried to repeatedly kiss her. He then unzipped her pants and forced his hand into her pants, rubbed her vagina and briefly digitally penetrated her. He also took her hand and placed it on his crotch area, over his clothes; e. The accused told the victim/complainant that he wanted to have sex. T.L. says that the accused told her and Shannon that he wanted to have sex with T.L. The accused told K.D. that he wanted to have sex with her and her sister but that her sister was too young. The accused repeatedly said, throughout the sexual assault, that he wanted to have sex with K.D. f. The accused ignored the fact that the victim/complainant said “no.” T.L. says that she kept telling the accused to stop and that she did not want “to do this.” The accused asked K.D. to have sex with him. She said no. He kept asking and pinned her up against the wall. The accused said he wanted to have sex with her and her sister but that her sister was too young. K.D. told the accused that she had a boyfriend and did not want to have sex with the accused. The accused told her that he knew that she “wanted to.” He told K.D. that “no one would know.” K.D. stated again that she “did not want to do this.” After putting his hand in her pants, the accused continued to ask K.D. to have sex with him. She continued to say no and asked him to let her go. He would not let her go but instead kept his hand in her pants and briefly digitally penetrated her vagina.
[31] As was noted in Handy, the drivers of cogency in relation to the desired inferences sought will not be the same in all cases. The degree of similarity required in the evidence “will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence”: Handy at para. 78. Regardless of the issue in question, cogency increases as the facts move from the general to the specific.
[32] In this case, I find that while some of the similarities asserted by the Crown arguably cogently connect the proposed similar fact evidence and the facts alleged in the charges before the Court, under closer scrutiny, they are, in my view, nothing more than generic similarities used to support an inference that the actus reus occurred. In arriving at this conclusion, I have considered the guidance provided in R. v. B.(R.), [2003] O.J. No. 4589 (C.A.) at paras. 61-64; aff’d [2004] S.C.J. No. 65. That guidance is summarized at para. 64:
The risk in relying primarily on generic similarities to support an inference that the actus reus occurred is twofold. One, the initial inference arising from the prior conduct becomes so general, that it approaches bad personhood. Two, because of their non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case.
[33] Mindful of that caution, I will review the connections asserted by the Crown and discuss my findings with respect to each.
[34] First is the assertion that the accused assaulted vulnerable victims. As stated earlier, I have no evidence before me as to the nature, cause or degree of the alleged vulnerability of the victim K.D. from the prior conviction. The Crown asserts that K.D. was vulnerable because she was young. I do not have evidence of her age. I have evidence that she was still “in school” and living with her family. If I were to infer from the evidence I do have that K.D. was a high school student, that would place her in the 14-18 year old age range. The accused was 22 years old in 2013 when he was sentenced for the offence on K.D. As stated earlier, I don’t know what the date of the offence was. If I were to assume that it took roughly 2 years for that case to proceed to trial, I could assume that the accused was roughly 20 years old at the time of the offence.
[35] It is against this unknown factual backdrop that I am asked to find that there is a similarity between K.D.’s vulnerability and that of T.L. who is vulnerable as a result of her cognitive and developmental delays. I cannot find that there is a cogent connection or similarity between the nature of the vulnerabilities of the victim and the complainant.
[36] Second is the assertion that the accused accessed the victim and complainant through a friend or relative of the victim. Again, there is no evidence before me as to whether the accused “accessed” K.D. and, if so, how. All I know is that she was at the mall with her sister and he was there too. Again, as I found with respect to the asserted similarity in vulnerability of the victim/complainant, there can be no similarity when half of the proposed equation is missing.
[37] Third is the assertion that the accused physically isolated the victim and complainant in order to sexually assault them. In the case of the prior conviction involving K.D., I have no evidence as to how K.D. came to be alone on the top level of the parking garage with the accused. I don’t know whether he specifically engineered that or whether he seized an opportunity that presented itself due to her sister’s tardiness. In the absence of more specific evidence connecting the case of K.D. with the case before the court involving T.L., I find that this is nothing more than a generic similarity that the accused was alone with the victim or complainant when she was sexually assaulted. That is the case with most sexual assaults. They rarely occur in the presence of witnesses.
[38] Fourth is the assertion that the accused digitally penetrated K.D. while she was standing and is alleged to have penetrated T.L.’s vagina while she was standing. The fact that both women were standing while being sexually assaulted or allegedly sexually assaulted is a cogent similarity between the two cases. However, I find that it is also important to note that the sexual assault of K.D. took place in a parking garage where there was no furniture or bed for her to be put on. Further, the accused had K.D. under physical control because she was pinned up against a wall with her hands held. It is likely that that is the reason why she was sexually assaulted while standing. In other words, there was no other practical way for him to do what he did while controlling her and within a short period of time without her remaining standing.
[39] Similarly, with respect to T.L., her evidence is that she was sitting on the couch and the accused was allegedly touching her and saying he wanted to have sex with her and she said no. He then stood up and pulled her off the couch in order to penetrate her vagina with his penis. He would not have been able to penetrate her vagina with his penis had she remained sitting on the couch. So, he had to either force her onto her back on the couch or she had to get off the couch. The point is that it is unclear to me whether this is a distinctive feature of both the sexual assault conviction and the alleged sexual assault on T.L. or whether it is a coincidental effect of the location in which each incident took place and the physical positions of the parties involved.
[40] Fifth, is the assertion that the accused told both K.D. and T.L. that he wanted to have sex. I find that there is nothing about this similarity that gives it any value in the assessment of the cogency of the evidence and the purported connection between the two cases. The fact that both K.D. and T.L. describe the accused as telling them he wanted to have sex does not tend to support the objective improbability of coincidence in the similarities in their accounts. Put simply, the aggressor communicating his wish or intention to have sex with the victim or complainant is a generic circumstance that is common to many sexual assaults.
[41] Last is the assertion that the accused ignored the fact that both K.D. and T.L. said “no.” Again, I find that this too is a generic similarity that is common to many sexual assaults. There is nothing about this fact being common in both cases that suggests the objective improbability of coincidence.
The Dissimilarities in the Evidence
[42] I also note the following dissimilarities in the evidence from the available evidence regarding the sexual assault of K.D. versus the alleged sexual assault of T.L.:
a. Location: The sexual assault of K.D. took place in a public shopping mall parking lot. The alleged sexual assault of T.L. took place in a private home; b. The type of sexual contact: The sexual assault of K.D. culminated in the accused rubbing her vagina and brief digital penetration. The alleged sexual assault of T.L. culminated in penile penetration of her vagina; and c. The gap in time: The sexual assault of K.D. took place sometime prior to September 2013. The alleged sexual assault of T.L. took place at least seven years later in 2020.
Conclusion
[43] I find that the asserted similarities between the facts of the sexual assault of K.D. and the alleged sexual assault of T.L. do not show a degree of connectedness and cogency that rises to a level beyond the generic. Further, there are significant dissimilarities that render the connection even more remote.
[44] I find myself in a situation similar to the one facing the Ontario Court of Appeal in R. v. B.(R.), supra in which the majority concluded, at para 65:
In this case, the initial inference that can be drawn from the identified similarities in the appellant’s past conduct amounts to little more than that he has engaged in genital touching of children aged ten or under in the past, in circumstances involving privacy, and that following the sexual abuse, he may apologize to the child. Although not irrelevant, this inference contributes only marginally to determining whether the specific incident described by the complainant actually took place.
[45] In the present case, I find that the initial inference that can be drawn from the identified similarities in the appellant’s past conduct amounts to little more than that he has engaged in unwanted sexual contact with a woman in the past. Accordingly, as regards the analysis of the probative value of the proposed similar fact evidence, I find it is not sufficiently probative of the issues the Crown asserts it is relevant to.
[46] However, in the event that I am incorrect in that conclusion, I will consider the prejudice that might be caused by the admission of this evidence in the trial.
Assessment of Prejudice
[47] The two forms of potential prejudice on the part of the trier of fact receiving discreditable conduct evidence are “moral prejudice” and “reasoning prejudice.”
[48] As the Ontario Court of Appeal recently set out in R. v. J.W., 2022 ONCA 306, at para. 27:
On the one hand, “moral prejudice” identifies “the risk of convicting the accused because he is a ‘bad person’ rather than based on proof that he committed this offence” for which he is being tried. On the other hand, “reasoning prejudice” specifies the risk that a trier of fact will be distracted from a “proper focus on the charge itself aggravated by the consumption of time in dealing with the allegations of multiple incidents…in divergent circumstances rather than the single offence charged.” [citations omitted]
[49] The Court of Appeal went on to instruct trial judges that they should assess the prejudicial effect of the admission of discreditable conduct evidence from three “perspectives”: moral prejudice, reasoning prejudice and the presence of any factors that might reduce the impact of prejudice in the specific circumstances of the case (at para. 30).
[50] Regarding the first “perspective” of moral prejudice, the Court of Appeal addresses the oft-cited notion that the risk of moral prejudice is significantly less in a judge alone trial and the effect of between count versus off Indictment similar fact applications. Paras. 31 and 32 read:
The first perspective of “moral prejudice” requires the trial judge in a judge-alone trial to self-instruct against the tendency to infer guilt based upon what Handy called the “forbidden chain of reasoning…from general disposition or propensity.” However, Paciocco et al. observe that “self-instruction by judges can reduce, but will not eliminate, the risk of moral prejudice.” They add that: “[s]ince the extent to which restricted admissibility doctrines can prevent moral prejudice is limited, courts must maintain a high awareness of the potential prejudicial effect of admitting similar fact evidence, particularly where the similar fact conduct is reprehensible.
There is less moral prejudice when the similar acts in question are other counts on the indictment, and therefore, more moral prejudice where the discreditable conduct is outside of the facts in the case. [citations omitted]
[51] The second “perspective” is an examination of the potential for reasoning prejudice posed by the specific circumstances of the case. It is described in para. 33 as focussing on “both the emotional form of reasoning provoked by the discreditable conduct, and also on the distraction from the facts in issue in the case that trying the issue of discreditable conduct might encourage.”
[52] The third “perspective” is whether there are ways in which the possible prejudicial effects can be mitigated in the circumstances of the case. Again, the Court of Appeal addresses the notion of a perceived automatic reduction in the risk of prejudice in a judge-alone trial and notes that “even judges can struggle to overcome the tainting effect of discreditable information and may give it undue focus during a trial…Judges can by training and experience steel themselves against moral and reasoning prejudice, but only if they actively advert to the very point in the moment of decision (at para. 34).”
[53] Further, and I find this particularly germane to the application before me, at para. 35, the Court of Appeal notes:
While the prospect that the accused might be able to testify in order to allay the prejudicial effects has been suggested to be a mitigating factor, this is doubtful, given what Binnie, J. described in Handy as the “poisonous nature” of the evidence. Further, admitting the discreditable conduct evidence might effectively force the accused to testify in a case where doing so might be inadvisable for other reasons. [citations omitted]
[54] I am guided by the Court of Appeal’s instruction that I cannot assume a lower risk of moral or reasoning prejudice simply because I sit alone on this case. Further, I note that this is not a situation in which between count similar fact evidence is being tendered. The proposed discreditable conduct is off the Indictment that is before the Court. There is therefore a higher risk of moral prejudice.
[55] I do not find that the risk of reasoning prejudice is particularly high in this case in the sense that the similar fact evidence was tendered in the form of a 14-page sentencing transcript. There were no witnesses called to give first-hand evidence of the facts underlying the conviction involving K.D. nor were the trial transcripts filed. There is not, in my view, a serious risk that the similar fact evidence in this case will turn into a trial within a trial and therefore become a distraction.
[56] However, I do find that the absence of ways to alleviate what I find to be a significant risk of moral prejudice to the accused in this case is important. I have significant concerns that admission of the discreditable conduct evidence in this case could effectively force the accused to testify when he otherwise might not. This, coupled with the unfairness inherent in the fact that the accused cannot call evidence in this trial to try to shed a different light on the evidence tendered by the Crown as similar fact evidence, should it be admitted, leads me to conclude, that on the facts of this particular application, even if I were to find that the proposed similar fact evidence had sufficient probative value, I would find that the prejudicial effect of the evidence outweighed its probative value.
Conclusion
[57] I am not satisfied on a balance of probabilities that the probative value of the proposed similar fact evidence exceeds its prejudicial effect. There is insufficient cogency between the proposed similar fact evidence and the allegations at trial to establish an objective improbability of coincidence, and to connect the evidence to an issue at trial. The evidence is not sufficiently probative.
[58] I find that in the circumstances of this case, the Crown has not met the test in Handy, and so the presumption is not overcome. The proffered evidence of prior discreditable conduct remains inadmissible.
[59] The application is dismissed.
Justice Lia Bramwell Released: October 17, 2023