ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-23-0006
DATE: 2024 01 09
BETWEEN:
HIS MAJESTY THE KING
– and –
S.J.
N. Galaszewicz, for the Crown/Applicant
R. Johnston, for the Accused/Respondent
HEARD: October 5, 2023
RULING ON APPLICATION TO ADDUCE EVIDENCE OF OTHER DISCREDITABLE CONDUCT
CHOZIK J.
INTRODUCTION:
[1] The accused, S. J. (age 57), is charged with sexual assault contrary to section 271 of the Criminal Code of Canada. It is alleged that on October 9, 2011, he had anal intercourse with the complainant, M.H.R., without M.H.R.’s consent when M.H.R. was incapacitated due to his intoxication by alcohol.
[2] At the time of the alleged offence, M.H.R. worked for the accused in his landscaping business in Milton, Ontario. The landscaping business was run out of the accused’s home. The accused rented rooms to some of his employees, including M.H.R., who were mostly seasonal workers, often young men like M.H.R. M.H.R. started working for the accused in 2009, when he was 18 or 19 years old. At the time of the alleged offence, he was 21.
[3] M.H.R. alleged that on October 9, 2011, after he had passed out from drinking alcohol on the couch upstairs, he awoke lying on his stomach on a bed in the basement. His pants were pulled down. His shirt was pulled up. The accused was behind him, penetrating his anus with his penis. M.H.R. drifted in and out of consciousness. The next day, he bled from his anus. He went to the hospital and was diagnosed with anal fissures. He disclosed this event to the police in March of 2022.
[4] In his March 2022 statement to the police, M.H.R. said that the day after the alleged assault, he could not remember what had happened to him the night before. He described it as “a very bad dream that [he] couldn’t comprehend and accept”. He told the police that for years after the memory remained “fuzzy”.
[5] M.H.R. also told the police that the accused would hire “strays” – young men who appeared to be lost in life or down on their luck. The accused hired almost exclusively males, many of whom were in high school and ranged in age from 14 to 18 years. According to M.H.R., the accused often encouraged his employees to drink alcohol and hang out after work at the “office” in his house. The lines between work, friends, and roommates were quite “blurred”. According to M.H.R., the accused supplied large amounts of alcohol and drugs to his employees.
[6] M.H.R. also told the police that the accused would often cut deep slits in the work t-shirts of staff, exposing their physique. M.H.R. alleged that the accused disclosed to him that this “turned him on”. According to M.H.R., the accused would often touch the employees’ biceps. The accused would also sit one-on-one with his employees and tell fantasy stories with sexual aspects. This happened more than once with M.H.R. It made him feel uncomfortable and he would walk away.
[7] According to M.H.R., the accused would also make inappropriate sexual remarks to his employees. On one occasion, after M.H.R. had been involved in a driving accident with a work vehicle, he asked the accused about what he owed for the damage to the vehicle. The accused responded, “well you can suck my dick if you want to”.
[8] M.H.R. told the police that there were a few occasions when he would fall asleep on the couch upstairs after drinking and socializing, but then end up in his bed downstairs. One time, he fell asleep on the couch in his work clothes but awoke in his bed in his pajamas. The accused told him that he had moved M.H.R. downstairs and changed him as he looked uncomfortable.
[9] On this Application, the Crown sought an order permitting it to adduce evidence of the accused’s alleged other discreditable conduct extrinsic to the sexual assault charge. In particular, the Crown sought to adduce at the trial evidence of three other young men (B.R., M.P., J.W.) who worked for the accused in his landscaping business. B.R. worked for the accused for approximately 8 years, starting in high school. M.P. worked for the accused for 8 or 9 years, starting in 2008 or 2009. J.W. worked for the accused for 3.5 years, starting in 2014 or 2015.
[10] Their anticipated evidence, based on statements they gave to police in 2022, would be that:
Per M.P.:
(a) The landscaping business was run out of the accused’s house, and there was a grey area where business and social was blurred. The staff would often drink together in the “office”. The accused often supplied alcohol and cannabis which was “classic predatory behaviour”;
(b) The accused would hire young males who did not have a strong educational background and who were “easier to manipulate” and to whom alcohol and drugs would appeal;
(c) That one time while in the living room with the accused, he thought that the accused was touching his crotch which made him feel uncomfortable.
(d) Sexually suggestive remarks were common place and that accused would often comment on the muscular physique of his employees;
(e) The accused was gay and looking back it seemed “sort of creepy” and “not cool”;
(f) The accused was into science fiction and fantasy, and would engage with employees in “shapeshifting” games or stories that often has a sexual aspect. On a few occasions, the accused got aroused during the story telling exercise.
Per B.R.:
(g) Looking back, the accused said or made comments that were “totally left field” and one should not be saying in a work environment especially if he is your boss;
(h) He had no experiences like the complainant had and the accused was decent to him, other than “just comments here and there that kinda just threw [him] off and [he] thought were quite weird” (per B.R.);
(i) There was a “revolving door” of employees, mostly younger men in the accused’s landscaping business, some of whom thought that the accused was “creepy” (per B.R.);
(j) The accused would encourage the workers to take off their shirts and would make inappropriate comments abut their shorts or underwear when they bent over, which would “weird out” B.R. (per B.R.);
Per J.W.:
(k) Most of the accused’s employees were young men under the age of 25;
(l) The accused made “weird comments” to J.W.;
(m) When sexual comments were made, J.W. did not feel that he could just walk away because the accused was his boss;
(n) The accused complimented his muscles and touched them, but that he never really felt weird about anything the accused said or did to him;
(o) The accused sent him flirtatious texts including wink faces;
(p) The accused asked him if he was gay;
(q) The accused would have J.W. sit one on one in his office with him and engage in “shapeshifting storytelling” that was often sexual in nature.
[11] On the application, it was clarified that the “shapeshifting stories” of a sexual nature were based on science fiction, and referred to stories about turning into a tiny or small being and running up someone’s pants.
[12] The Crown sought to adduce the evidence of these three witnesses, arguing that it was to: (1) establish the actus reus of sexual assault, (2) to demonstrate a pattern of “grooming” behaviour by the accused with his young male employees, (3) to establish the mens rea of the offence or the propensity of the accused to target those who work and lived with him who were young men, and (4) to support the credibility of the complainant and negate the suggestions that the allegations were fabricated.
[13] Following a brief hearing, I dismissed the Crown’s application from the bench, with reasons to follow. These are those Reasons.
Legal Principles:
[14] Evidence of discernible conduct extrinsic to the charges is presumptively inadmissible. The use of character evidence as circumstantial proof of criminal conduct is presumptively impermissible. Reasoning that an accused person has the propensity or disposition to do crime or the type of acts he is charged with and is therefore guilty of the offence is prohibited: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31; R. v. J.W., 2022 ONCA 306, 161 O.R. (3d) 609, at para. 17. Such evidence is inadmissible regardless of whether it comes from the complainant or from third-party witnesses.
[15] To rebut the presumption of inadmissibility, the Crown must establish on a balance of probabilities that the evidence is probative to an issue at trial other than propensity, and that the probative value of the evidence outweighs its prejudicial effect: Handy, at paras. 55 and 101; J.W. at para. 19.
[16] It is only where the Crown can establish on a balance of probabilities that the evidence is relevant and probative to an issue at trial and that the probative value of the evidence outweighs its prejudicial effect that such evidence might be allowed at trial: J.W, at para. 19. To establish that the evidence is relevant, the Crown must (i) identify or define the issue or issues for which the evidence is proffered; (ii) identify the probative value of the discreditable conduct; (iii) identify the prejudicial effect on the discreditable conduct; and (iv) weight the probative value against the prejudicial effect: Handy; J.W, at paras. 21-36.
[17] The probative value of the evidence must outweigh its prejudicial effect. Prejudice arises from “reasoning prejudice” (the potential confusion and distraction of the jury from the actual issues in the trial) and “moral prejudice” (the potential that the jury will misuse the evidence to conclude that the accused is a person of bad character who because of his character was more likely to have committed the offence): Handy, at paras. 42, 100. To be admissible, evidence must be not only relevant, but its probative value must be sufficient to outweigh the risk that the evidence will be misused.
Analysis:
[18] In this case, I am not satisfied that the Crown has established that the evidence of the three witnesses has any probative value. Any probative value the evidence may have does not outweigh its significant prejudicial effect.
[19] First, I am not satisfied that the Crown has sufficiently defined the issues to which the evidence relates. The Crown argued in its factum (at para. 50) that the evidence was relevant because:
(a) It established the actus reus of the offence by demonstrating a pattern of behaviour by the accused to engage in “grooming” behavior with young male employees;
(b) It established the mens rea by showing the propensity of the accused to target those working for him and residing with him, who were exclusively young men;
(c) To support the credibility of the complainant and negate the suggestion that the allegations were fabricated by showing an underlying unity or course of conduct by the accused.
[20] However, elsewhere in its factum the Crown articulated the supposed probative value differently. In oral argument, the Crown relied only on narrative as the ground for admissibility.
[21] In my view, the Crown’s attempts to define the issue to which the proposed evidence is relevant is tenuous at best. The suggestion that the proposed evidence of the three witnesses is relevant to the actus reus, mens rea, and the credibility of the complainant is defined by the Crown at a high level of abstraction. In its factum, the Crown articulates the issues in multiple and various ways. In its oral argument, the Crown articulated the issue yet another way. The inability to define with precision the exact issues to which the proposed evidence is probative belies the fact that the proposed evidence is simply not probative of any legitimate issues.
[22] Rather, the evidence the Crown wants to adduce does nothing more than suggest that the accused is the type of person who is likely to have committed an offence. This is not permissible: R. v. B.(C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at para. 10. The inference the Crown seeks to have the jury make is that because he was “creepy” and gay, said sexually inappropriate things, hired young men to work for him and supplied them with alcohol and cannabis, the accused is the type of person who is more likely to have sexually assaulted the complainant. Such reasoning is fundamentally wrong. It is prohibited in law.
[23] Some of the evidence put forward by the Crown is inadmissible quite apart from the rule against the admission of other discreditable conduct. For example, B.R.’s claim that there was a “revolving door” of employees because of the accused’s inappropriate sexual comments or that other people thought the accused was “creepy” is not admissible: B.R. cannot testify about other people’s states of mind. Similarly, M.P.’s evidence that the accused hired young men of a certain age and status because they were open to manipulation and attracted by drugs and alcohol or that the accused engaged in classic “predatory behaviour” by supplying alcohol and cannabis to these workers is impermissible opinion.
[24] Much of the complainant’s evidence about how the accused allegedly conducted himself in respect of his employees or the “culture” that existed in his business also strays into prohibited lines of reasoning.
[25] To be probative, evidence of the discreditable conduct must exhibit some similarity to the conduct underlying the charges faced by the accused. There must be a logical nexus between the evidence of similar acts and the offence that the evidence is offered to prove: R. v. Tsigirlash, 2019 ONCA 650, at paras. 29 and 34. There is no logical nexus here. The evidentiary value of the proposed evidence is pure character evidence, inviting impermissible propensity reasoning and nothing more. I agree with the defence submission that for evidence to be admissible in this case, one must do more than compare discreditable conduct to other discreditable conduct. There is no logical nexus between the evidence of the complainant about the accused’s other discreditable conduct and that of the other three proposed witnesses, or any alleged grooming, and the sexual assault of the complainant. The alleged sexual assault is an opportunistic crime. The nexus between it and the proposed other discreditable conduct is based on prohibited propensity reasoning alone.
[26] The three witnesses were adults. Each was easily able to rebuff whatever advances the accused might have made. It is only through the lens of hindsight, reinterpreting those events after becoming aware of the sexual assault allegations, that the evidence of the three witnesses takes on a sinister air.
[27] In this case, there is no similarity between the behaviour described by the three proposed witnesses and the sexual assault alleged by the complainant.
[28] The evidence shows only that there was a culture in the accused’s business and home that blurred work and social lines, where drinking alcohol and smoking joints was common. It shows that the accused maybe made some inappropriate, sexual comments, comments, which some people thought were “creepy” at times, but others thought nothing of it. And that the witnesses believed that the accused was a homosexual man. In my view, none of this evidence has a legitimate purpose at this trial. It has no probative value and is not relevant to any of the issues at trial. The accused is not to be tried based on his relationship with other employees, reputation or their impressions of him, or whether he said inappropriate things or behaved oddly towards them. A trial of whether he had anal intercourse with the complainant when the latter was too drunk to consent cannot be based on whether people thought he was “creepy”.
[29] None of these proposed witnesses can provide direct evidence about the alleged sexual assault. None of them allege that they are victims of a sexual assault, attempted sexual assault, or even any sexual advances. Instead, these witnesses are said to corroborate the complainant’s evidence that professional and personal lines were blurred at the landscaping business. The Crown characterizes this as evidence of “grooming”.
[30] In my view, such evidence of “grooming” must be excluded at the trial. The notion of “grooming” usually refers to manipulation, habituation or normalization, used by pedophiles to prey on children. The concept of “grooming” is not supported by the evidence of the complainant, who describes a one-time event that is highly opportunistic, when he was 21 years old.
[31] The concept of grooming is also highly prejudicial. I agree with the defence that here, as used by the Crown, it is used to describe behaviour predicate to sexual assault, presumes illicit sexual interests, and premeditated efforts to act on those interests. The three proposed witnesses have identified the accused as a homosexual man. There is no other evidence that he is a homosexual man (there is no evidence that the accused is in fact gay). The logic the Crown relies on involves the noxious theory that homosexual men are predisposed to “groom” younger men into homosexual activities. This court will not traffic in such outdated and harmful stereotypes.
[32] In conclusion, evidence of other discreditable conduct in this case, whether adduced from M.H.R. or the three other proposed witnesses, has no probative value other than supporting impermissible propensity reasoning. It is highly prejudicial. It distracts the jury from the real issue in the case, which is whether the sexual assault happened. This inquiry will necessarily focus on the credibility and reliability of the complainant, not the character or propensity of the accused. The risk of moral prejudice, if the evidence is admitted, is extremely high.
Conclusion:
[33] For these reasons, the Crown’s application was dismissed.
Chozik J.
Date: January 9, 2024
COURT FILE NO.: CR-23-0006
DATE: 2024 01 09
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
S.J.
RULING ON APPLICATION TO ADDUCE EVIDENCE OF OTHER DISCREDITABLE CONDUCT
Chozik J.
Released: January 9, 2024