Court File and Parties

COURT FILE NO.: 23-11402051 DATE: 2024-11-21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – Victor Perez Accused

Counsel: Robert Thomson, for the Crown Michelle O’Doherty and Dawn Dickinson, for Mr. Perez

HEARD: October 29, 2024

Restriction on Publication

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.

Reasons for Decision Discreditable Conduct Application

Rees J.

I. Introduction

[1] Victor Perez is charged with several sexual offences against H.D., which he is alleged to have committed when he was 36 and H.D. was 12. Specifically, Mr. Perez is charged with invitation to sexual touching, sexual assault, sexual interference, two counts of luring a child, and making child pornography—all in relation to H.D. He is also charged with failing to comply with a prohibition order not to seek, obtain or continue any employment or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16.

[2] Mr. Perez has elected to be tried by a jury.

[3] The Crown seeks to introduce at trial evidence arising from Mr. Perez’s prior conviction on two counts of sexual interference in relation to B.C.L., a 14-year-old girl. Mr. Perez was sentenced to the equivalent of a three-year penitentiary term on February 20, 2020.

[4] The Crown seeks to introduce at trial the following prior discreditable conduct for the following purposes:

a. The details of the trial and sentencing of Mr. Perez’s previous sexual interference conviction, including what Mr. Perez testified to, and the trial judge’s reasons for decision and sentence, to show:

i. Mr. Perez’s awareness of what “reasonable steps” the law requires someone to take to ascertain the age of their intended sexual partner in advance of sexual activity.

ii. Mr. Perez’s awareness of the acute legal jeopardy that engaging in sexual activity with a minor would put him in. The lack of steps taken by Mr. Perez before engaging in sexual activity with H.D., while currently serving a penitentiary sentence for this same behaviour, shows Mr. Perez either wanted to engage in sexual activity with a minor, or was reckless or willfully blind to the age of H.D.

iii. To rebut any suggestion by Mr. Perez that he had innocent intent or made a mistake.

b. The details of Mr. Perez’s sexualized text messages to the previous complainant (B.C.L.), to show:

i. The identity of the person messaging H.D. was Mr. Perez based on the striking similarity in language.

c. The conditions the Parole Board imposed on Mr. Perez, and the reasons the Parole Board explained to Mr. Perez for imposing these conditions, during his release into the community. These conditions included a requirement that he report all sexual and non-sexual relationships and friendships with females to his parole supervisor, which Mr. Perez did not do in relation to H.D., to show:

i. Mr. Perez knew his relationship or friendship with H.D. was problematic.

d. The fact that Mr. Perez was in and out of custody on parole violations while living at the Kirkpatrick House:

i. To explain why Mr. Perez stopped and restarted communicating with H.D., and that he resided close to Dundonald Park where the allegations occurred.

[5] I will consider each of these proposed purposes below.

II. The Law

[6] Evidence of prior discreditable conduct by the accused is presumptively inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 SCR 908, at para. 55. Evidence is “discreditable” if it tends to show the accused has committed an offence that is not the subject matter of the charges before the court or tends to show other behaviour on the part of the accused which a reasonable person would disapprove of: R. v. J.W., 2022 ONCA 306 at para. 15.

[7] To overcome the presumption of inadmissibility, the Crown must establish, on a balance of probabilities, that the probative value of the proposed evidence outweighs its prejudicial effect: J.W., at para. 19.

[8] According to the Court of Appeal in J.W., the test for the admissibility of discreditable conduct evidence comprises four steps:

a. Identify the issue to which the evidence is directed, to assist the court in assessing probative value;

b. Demonstrate the probative value of the evidence;

c. Assess the prejudicial effect of the evidence; and

d. Weigh the prejudicial effect of the evidence against its probative value.

[9] First, the Crown must define with specificity the issue to which the evidence is asserted to be relevant: J.W., at para. 21. The utility of the evidence lies in its ability to advance or refute a live issue before the trier of fact: Handy, at para. 73. Demonstrating an accused’s general propensity for bad acts is never a permissible purpose for which prior discreditable conduct evidence can be led: Handy, at para. 72.

[10] Second, the Crown must demonstrate the probative value of the discreditable conduct evidence. The assessment of probative value will vary from case to case – identity cases differ from cased concerning motive: J.W., at paras. 22-23. That said, the “two critical elements are connectedness and similarity”: J.W., at para. 23. There must be a logical nexus between the discreditable conduct evidence and the offence that the evidence is offered to prove: R. v. Tsigirlash, 2019 ONCA 650, at para. 29.

[11] Third, the court must assess the prejudicial effect of the prior discreditable conduct evidence. Prior discreditable conduct evidence can give rise to two kinds of prejudice: moral prejudice and reasoning prejudice. “Moral prejudice” is the risk that the trier of fact will convict the accused because he is a bad person rather than because he committed the offence for which he is being tried. The risk is that “the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence”: Handy, at para. 139.

[12] By contrast, “reasoning prejudice” is the risk that the prior discreditable conduct evidence will confuse or distract the trier of fact from their proper focus on the charge itself: Handy, at para. 144. One form of distraction is emotional. The evidence may raise “in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process should rest”: Handy, at para. 145, citing R. v. D. (L.E.) (1987), 20 B.C.L.R. (2d) 384 at p. 399 (C.A.), per McLachlin J.A. (as she then was). A second form of distraction arises when the evidence distracts the trier of fact from the issues on which liability turns by instead focusing on the discreditable conduct itself: Handy, at para. 146; J.W., at para. 29.

[13] The Court of Appeal directs that trial judges should assess the prejudicial effect 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: J.W., at para. 30.

[14] Finally, the court must weigh the probative value of the discreditable conduct evidence against its prejudicial effects. As the Court of Appeal explained in J.W. (internal citations omitted):

Generally, the more highly probative the evidence, the more likely it is that the interests of justice will require it to be admitted because of society’s interests in getting to the truth of the charges. However, the interests of both society and the accused in a fair trial process require that the dangers of propensity evidence be taken extremely seriously; the criminal justice system “should not (and does not) take lightly the dangers of misapplied propensity evidence”.

[15] With this framework in mind, I turn to the proposed prior discreditable conduct evidence.

III. Analysis

A. To establish Mr. Perez’s awareness of what ‘reasonable steps’ the law requires

[16] Exactly what evidence the Crown seeks to adduce under this prong was a moving target. At one point in the Crown’s factum, the Crown sought to introduce the details of the trial and sentencing of Mr. Perez’s previous sexual interference conviction, including what Mr. Perez testified to, and the trial judge’s reasons for decision and sentence.

[17] Elsewhere in its factum and in oral submissions, the Crown narrowed its application to adduce evidence that the trial judge explained, in his reasons for judgment convicting Mr. Perez of sexual interference with respect to B.C.L, that Mr. Perez should have confirmed the age of the complainant with an adult who knew the complainant, and that it was unreasonable for Mr. Perez to rely on the appearance and apparent confidence of the complainant as indications that she was 16 years old.

[18] The Crown argues that the fact that Mr. Perez had previously been told by a court about these reasonable steps forms part of the factual matrix of whether Mr. Perez took reasonable steps to ascertain H.D.’s age. The Crown contends that the fact that Mr. Perez did not take these steps to confirm H.D.’s age shows he did not want to know how old she was.

The proposed evidence is immaterial

[19] I disagree that this evidence is relevant to a material issue. The accused’s knowledge of what the law of “all reasonable steps” requires is not the issue. The determination of whether an accused took “all reasonable steps” to ascertain the complainant’s age does not turn on the accused’s knowledge of the law.

[20] When an accused raises a mistake of age defence under s. 150.1(4) of the Criminal Code, the analysis proceeds according to the following steps, according to the Court of Appeal in R. v. Carbone, 2020 ONCA 394, at para. 129:

a. Step 1: The trial judge will first determine whether there is an air of reality to the s. 150.1(4) defence, that is, is there a basis in the evidence to support the claim the accused believed the complainant was the required age and took all reasonable steps to determine the complainant's age.

b. Step 2: If the answer to step 1 is no, the s. 150.1(4) defence is not in play, and any claim the accused believed the complainant was the required age is removed from the evidentiary mix. If the answer at step 1 is yes, the trial judge (or jury) will decide whether the Crown has negated the defence by proving beyond a reasonable doubt, either that the accused did not believe the complainant was the required age, or did not take all reasonable steps to determine her age. If the Crown fails to negate the defence, the accused will be acquitted. If the Crown negates the defence, the judge will go on to step 3.

c. Step 3: The trial judge will consider, having determined there is no basis for the claim the accused believed the complainant was the required age, whether the Crown has proved that the accused believed (or was wilfully blind) that the complainant was underage, or was reckless as to her underage status. If the answer is yes, the trial judge will convict. If the answer is no, the trial judge will acquit.

[21] In determining what reasonable steps require, the British Columbia Court of Appeal provided the following guidance in R. v. P (L.T.) (1997), 113 C.C.C. (3d) 42, at para. 20:

Whether further steps would be reasonable would depend upon the apparent indicia of the complainant's age, and the accused's knowledge of same, including: the accused's knowledge of the complainant's physical appearance and behaviour; the ages and appearance of others in whose company the complainant is found; the activities engaged in either by the complainant individually, or as part of a group; and the times, places, and other circumstances in which the complainant and her conduct are observed by the accused.

[22] And in R. v. Duran, 2013 ONCA 343, at para. 52, the Court of Appeal for Ontario held that “[w]hat constitutes “all reasonable steps” depends on the context and the circumstances. There is no automatic checklist of considerations applicable to every case. Indeed, in some cases, an accused’s visual observation of the complainant may be enough to constitute reasonable steps.”

[23] Similarly, the Supreme Court of Canada has explained that the analysis of whether the accused took “all reasonable steps” under s. 150.1(4) of the Criminal Code is a “highly contextual, fact-specific exercise”: R. v. George, 2017 SCC 38, at para. 9. In this regard, the Court went on to explain (at para. 9, internal citations omitted):

In some cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask a partner’s age in every case. Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given the commonly recognized motivation for young people to misrepresent their age. Such narrow approaches would contradict the open-ended language of the reasonable steps provision. That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence and academic commentary.

[24] The Supreme Court provided further guidance regarding reasonable steps – this time under the reasonable steps requirement in s. 172.1(4) of the Criminal Code in respect of child luring – in R. v. Morrison, 2019 SCC 15. In that case, the court explained that “reasonable steps” are those steps that a reasonable person, in the circumstances known to the accused at the time, would take to ascertain the other person’s age. This “has both objective and subjective dimensions: the steps must be objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time”: at para. 105.

[25] Reasonable steps are those that “provide information reasonably capable of supporting the accused’s belief that the other person was of legal age”: Morrison, at para. 106.

[26] In the context of a charge of child luring, the court in Morrison provides the following non-exhaustive reasonable steps, at para. 112:

a. asking for the other person’s age and receiving a response that supports that accused’s asserted belief;

b. noting the other person’s representation, whether solicited or unsolicited, that he or she is of legal age;

c. asking for and receiving proof of identification indicating that the other person is of legal age;

d. asking for and receiving a photograph or reviewing profile pictures suggesting the other person is of legal age;

e. observing conduct or behaviour suggesting the other person is of legal age;

f. choosing to communicate through a website that enforces age restrictions; and,

g. in the case of a personal ad, including language indicating that the accused is looking to speak only with adults.

[27] The court reminds us that “[t]he ultimate question is whether, in the totality of the circumstances, the accused’s steps to ascertain the other person’s age were sufficient to constitute “reasonable steps” — namely, those that provide information that is reasonably capable of supporting the accused’s belief that the other person was of legal age” (emphasis added): Morrison, at para. 112.

[28] What this review of the jurisprudence of reasonable steps reveals is that none of these factors relate to the accused’s knowledge of the law.

[29] This is not to say that the accused’s personal circumstances will never matter, but on the facts of this case, I reject the Crown’s argument that Mr. Perez’s knowledge of the law is legally relevant to determine whether he took all reasonable steps to ascertain H.D.’s age.

The proposed evidence has no probative value

[30] Even if I were wrong and the proposed evidence were legally relevant, I conclude the proposed evidence, even on the narrow version of what the Crown seeks to introduce, has no probative value. The trial judge’s reasons at paras. 135-136 are directed at different circumstances than are alleged to have occurred here.

[31] On the facts of Mr. Perez’s prior conviction, the complainant, B.C.L., provided shifting accounts of her age. Given these shifting accounts and the fact that for the most part those accounts put her under the age of 16, the trial judge wrote that “in the circumstances of this case, what was required at a minimum was independent corroboration of BCL’s age from an adult who knew her” (emphasis added). Relying on her appearance was plainly unreasonable, the trial judge concluded.

[32] Here, by contrast, when Mr. Perez is alleged to have asked H.D. in text messages how old she was, while stating that he was “smh” (shaking my head), the complainant responded, “17 tuning 18”, to which Mr. Perez is alleged to have responded, “Daddy likes”. The complainant then stated, “im 4’11”. Mr. Perez is alleged to have responded, “U sure ur not 12 thats tiny”. The complainant replied, “im not”, “im just small”.

[33] Unlike B.C.L., H.D. did not provide a shifting account of her age. Rather, it was the accused who allegedly expressed doubt given her size. In light of this, the trial judge’s conclusions about what reasonable steps required in respect of B.C.L. does not necessarily correspond to what reasonable steps were required for H.D.

The prejudicial effect is significant

[34] As discussed, discerning what evidence the Crown was seeking to adduce was difficult. At its broadest, the prejudicial effect of the evidence would be significant. There is the moral prejudice associated with Mr. Perez’s prior conviction for sexual interference. The facts of the prior conviction are objectively more serious than the allegations before the court, amplifying the moral prejudice to the accused: R. v. D. (L.E.), [1989] 2 S.C.R. 111, at p. 124. On the prior conviction, Mr. Perez was found to have sexually assaulted B.C.L. by digitally penetrating her vagina, and to have sexually assaulted her again three days later by digitally penetrating her vagina and anus and by performing oral sex on her. By contrast, the present allegations involve touching the complainant’s thigh.

[35] Even on the Crown’s pared down version – i.e. tendering the trial judge’s reasons at paras. 135-136 – there is moral prejudice to the accused. It will be clear to the jury that Mr. Perez was convicted of a sexual offence in relation to an underage girl.

[36] There is also reasoning prejudice, which is serious in this case. The Crown seeks to adduce evidence of the trial judge’s reasons for conviction. Even in edited form, it is not practicable to separate the trial judge’s reasons relating to Mr. Perez’s credibility from his assessment of whether Mr. Perez took reasonable steps to ascertain B.C.L.’s age. Here, it will be for the jury to assess Mr. Perez’s credibility, if he were to testify. That assessment should not be coloured by the trial judge’s assessment at an earlier trial.

[37] I am not satisfied that a jury instruction could mitigate the prejudicial effect of the proposed evidence.

The proposed evidence is inadmissible

[38] There is nothing to weigh here. The evidence has no probative value. It is therefore inadmissible to establish Mr. Perez’s awareness of what ‘reasonable steps’ the law requires.

B. To establish Mr. Perez’s awareness of his legal jeopardy for engaging in sexual activity with a minor

[39] The Crown seeks to introduce that Mr. Perez received the equivalent of a three-year penitentiary sentence for sexual activity with a 14-year-old girl, whom he professed to believe was 16 years old.

[40] The Crown argues that this evidence is relevant to Mr. Perez’s subjective belief about H.D.’s age when he engaged her in sexual activity.

[41] The Crown contends that one would expect Mr. Perez, given his previous conviction and sentence, to make a heightened degree of inquiry into H.D.’s age if he truly wished to avoid engaging in sexual activity with a minor. The Crown reasons that Mr. Perez having not taken these heightened steps for this same behaviour shows that Mr. Perez either wanted to engage in sexual activity with a minor, or was reckless or willfully blind to the age of H.D.

[42] The Crown offers no authority in support of its argument.

[43] The proposed evidence is of limited probative value in assessing Mr. Perez’s subjective belief with respect to H.D.’s age. Although the Crown’s argument seems to rest on the common sense proposition that someone who has been convicted of a sexual offence involving a minor will be more careful next time to ensure that the other person is not underage, the probative value is limited because it distracts the trier of fact from more helpful factors in assessing the honesty of an accused’s belief. These factors include whether his explanation for his belief is credible, the reasons he gives for his belief, what he knew of the complaint’s age, her personal circumstances and characteristics, and the steps he took and didn’t take to ascertain her age. The focus in assessing the honesty of belief is not on whether he knew or didn’t know he could be in jeopardy for having a sexual relationship with a minor.

[44] Further, I reject the Crown’s argument that Mr. Perez was under a heightened standard or heightened duty to takes steps to ascertain H.D.’s age because of his prior convictions for sexual interference. This is not so. “Reasonable steps” are those steps that a reasonable person, in the circumstances known to the accused at the time, would take to ascertain the other person’s age.

[45] The prejudicial effect of the jury learning that Mr. Perez received the equivalent of a three-year penitentiary sentence for sexual activity with a 14-year-old girl, whom he professed to believe was 16 years old, is significant. There is moral prejudice – the jury would likely conclude that Mr. Perez is the kind of person who commits these offences. There is also reasoning prejudice in that it distracts the jury from the task at hand, which will be to assess the honesty of his belief based on the circumstances relating to H.D., and whether he took reasonable steps.

[46] I am not persuaded that a curative instruction adequately negates the risks.

[47] The limited probative value is significantly outweighed by the prejudicial effect. Thus, the proposed evidence is inadmissible.

C. To rebut any suggestion by Mr. Perez that he had innocent intent or made a mistake

[48] The Crown seeks to introduce the details about how Mr. Perez approached, initiated sexualized communications, solicited photos, and ultimately sexually touched B.C.L, and evidence of the post-offence sexual communications with B.C.L., from the trial decision.

[49] The Crown argues that the prior discreditable conduct evidence demonstrates Mr. Perez’s specific propensity to seek out and groom underage, vulnerable girls for sexual purposes. The Crown argues that proof that Mr. Perez previously engaged in sexual conduct with an underage girl logically weakens his defence of mistake in age. The coincidence that Mr. Perez would be mistaken about the age of an underage victim on more than one occasion supports the Crown theory that he intentionally sought out and groomed H.D. for a sexual purpose while either knowing, or being reckless or willfully blind, that she was underage.

[50] I agree that the evidence is relevant to Mr. Perez’s specific propensity to seek out and groom underage, vulnerable girls for sexual purposes.

[51] The probative value of the evidence will turn on its connectedness and similarity to the offences charged. I must consider whether there is a logical nexus between the discreditable conduct evidence and the offence charged: J.W., at para. 23; Tsigirlash, at para. 29. The connection need not be as high as when the issue is identity. “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”: R. v. Carpenter (1982), 142 D.L.R. (3d) 237 (Ont. C.A.), at p. 244, approved in Handy at para. 78.

[52] In Handy, the Supreme Court provided the following list of connecting factors which may give the evidence probative value:

a. proximity in time of the similar acts;

b. extent to which the other acts are similar in detail to the charged conduct;

c. number of occurrences of the similar acts;

d. circumstances surrounding or relating to the similar acts;

e. any distinctive feature(s) unifying the incidents;

f. intervening events; and

g. any other factor which would tend to support or rebut the underlying unity of the similar acts.

[53] The occurrences are separated by about four years. The passage of time is a factor that recognizes that people can change. That said, the passage of time between the similar acts and the offences charged can be explained by Mr. Perez having been incarcerated.

[54] Turning to the extent to which the other acts are similar in detail to the charged conduct, the Crown prepared the following chart regarding the prior discreditable conduct (in relation to B.C.L.) and the conduct that forms the subject matter of the offences charged (in relation to H.D.):

B.C.L. vs. H.D. Comparison

• Age, gender, when:
  • B.C.L.: 14 y/o female, Aug 2018.
  • H.D.: 12 y/o female, June 2022.
• How Mr. Perez first started interacting with complainant:
  • B.C.L.: Mr. Perez connected with B.C.L. over Kijij, where he purported to want to buy a bracelet from her. Mr. Perez had never met B.C.L. prior to this.
  • H.D.: Mr. Perez started talking to complainant at Dundonald park. Mr. Perez asked for H.D.’s phone number, which she gave him. Mr. Perez had never met H.D. prior to this.
• Next steps Mr. Perez took to interact with complainant:
  • B.C.L.: Mr. Perez solicited pictures of B.C.L. in short shorts in tight fitting clothing and made sexualized comments to her.
  • H.D.: Mr. Perez began sending H.D. highly sexual text messages.
• Meeting and touching / Driving around and smoking marijuana:
  • B.C.L.: Mr. Perez offered to employ B.C.L. B.C.L. agreed to meet him. They ended up in his car in a parking lot smoking marijuana. He started touching her thigh and kissing her, eventually proceeding to digitally penetrating her vagina.
  • H.D.: Mr. Perez met H.D. and her friends in Dundonald park. He was sitting beside H.D. rolling a marijuana cigarette. He rubbed H.D.’s leg, touching her thigh. He later messaged H.D.: “We can smoke, listen to music, drive around & take pics” “Last chance to smoke a Doobie?” “Meet at the car, on bay”
• Request for pictures from complainant:
  • B.C.L.: During Mr. Perez’s efforts to have B.C.L. work for him, Mr. Perez asked for photos of her showing off her body.
  • H.D.: Mr. Perez messaged HD “Send some nudes I wanna see ur pussy n tits”
• Mr. Perez’s knowledge of the complainant’s vulnerability:
  • B.C.L.: During their initial text message exchanges B.C.L. had told Mr. Perez that she desperately needed a job and was 15 or 16 years old.
  • H.D.: Mr. Perez knew that H.D. was in school and looked after by her grandmother.
• Comments about “tiny shorts” and “yummy”:
  • B.C.L.: Mr. Perez asked for photos of B.C.L.’s “tattoos and tiny shorts.” Mr. Perez texted BCL “Yeah, tinier the better… tiny shorts and tiny tank top”
  • H.D.: Mr. Perez messaged H.D.: “You looked good enough to eat” “Perfect little pussy under those tiny shorts, yummy”
• Use of “lil” instead of “little”:
  • B.C.L.: Mr. Perez referred by text to B.C.L. having shaved “bald and smooth” (in reference to her “pussy”) and followed up with the comment “Yummy” “A smile, your messy hair, show off your lil body” “Jean shorts to show off your cute lil body”
  • H.D.: “Im ready to fuk that lil puss”
• Mr. Perez referring to himself as “daddy”:
  • B.C.L.: “When you turn 16 you can call me “Big Boss Daddy” “Daddy can give his girl some advice about her pimples”
  • H.D.: Mr. Perez messaged H.D.: “Daddy is impatient send them nudes” “Take em off spread ur lips n send daddy a kiss” “How u like 2 get fukked by daddy” “U I mind if daddy cums inside u”
• Mr. Perez referring to the complainant as “baby girl”:
  • B.C.L.: Mr. Perez told B.C.L. she can be his “baby girl”
  • H.D.: Mr. Perez messaged H.D.: “I was out of town for a bit baby girl” “I’m at dundonald blazing,come meet me baby girl”

[55] I turn to the similarities and dissimilarities between the prior discreditable conduct and the alleged conduct that forms the subject matter of the offences charged:

a. The manner in which Mr. Perez met H.D. and B.C.L. is dissimilar. Mr. Perez met B.C.L. online, through an online purchase. They continued to communicate because B.C.L. was looking for employment. By contrast, Mr. Perez met H.D. in person at Dundonald Park. He hung out at the park with H.D. and her friends. Afterwards, Mr. Perez is alleged to have communicated with H.D. by text message.

b. There are some surface similarities in the texting. Mr. Perez asked B.C.L. over texts for photos in tight clothing and sent her sexualized comments. Mr. Perez asked H.D. for nude photos and sent her sexualized comments. But Mr. Perez did not threaten H.D., unlike his threats not to give B.C.L. a job when she hesitated to comply. Moreover, sexualized texting and requests for nude photos are not distinctive conduct. The opposite is true: it is common behaviour.

c. The Crown argues that there are similarities between the two complainants based on Mr. Perez touching B.C.L.’s thigh, driving her around, and smoking marijuana. The Crown says this is similar to Mr. Perez touching H.D.’s thigh at the park and text messages asking H.D. to smoke and meet at his car.

There is some similarity in Mr. Perez’s use of his car and smoking marijuana. But Mr. Perez’s conduct towards B.C.L. is objectively more serious – he digitally penetrated her vagina and anus, and performed oral sex on her – than what is alleged by the Crown in respect of H.D.

d. Both B.C.L. and H.D. were vulnerable. B.C.L.’s vulnerability arose from her need for employment. By contrast, the Crown alleges that the nature of H.D.’s vulnerability arises from H.D. being in school and being looked after by her grandmother. Overall, however, I find that the vulnerability of the complainants has only a surface similarity.

e. As discussed, B.C.L. provided shifting accounts as to her age, mostly putting her under the age of 16. H.D. maintained that she was 17, despite her small size.

[56] Overall, the degree of similarity between the prior discreditable conduct and the conduct that forms the subject matter of the offences charged is low.

[57] The Court of Appeal has observed that “the cogency of the evidence is significantly reduced by only one instance of propensity”: R. v. Bent, 2016 ONCA 651, at para. 60. A single instance is far less powerful evidence of specific propensity than a number of similar acts indicating a pattern. As the Supreme Court of Canada held in R. v. Chan, 2004 SCC 57, [2004] 3 S.C.R. 245, at para. 1: “The use of one incident as evidence of others is only applicable where the similarities are so striking as to preclude coincidence.” Chan was a group similar fact evidence case, but the principle is equally applicable to an individual.

[58] Mr. Perez was convicted of two counts sexual interference in relation to B.C.L. They related to two instances of sexual touching, three days apart. This is much more akin to a single instance, than a pattern of similar acts. There is no “striking similarity” between the incidents here.

[59] There are no distinctive feature or features unifying the incidents. I will return to this below when I discuss the language used in the text messages in greater detail.

[60] Overall, the probative value of the prior discreditable conduct evidence in demonstrating Mr. Perez’s specific propensity to seek out and groom underage, vulnerable girls for sexual purposes is low.

[61] As discussed, the moral prejudice to the accused is significant given the objectively more serious nature of the prior conviction. The jury could conclude that Mr. Perez is the type of person who commits these kinds of offences.

[62] The reasoning prejudice is also significant. Although the trial judge made factual findings following a trial regarding Mr. Perez’s prior discreditable conduct, there is a real danger given the dissimilarities that the jury will be distracted by engaging in an exercise of discerning similarities and differences, rather than focussing on the alleged offences that are being tried. There is also a real potential for undue time consumption at trial given the debate between the Crown and defence on the degree of similarity and dissimilarity between the prior discreditable conduct and the conduct that forms the subject matter of the offences charged.

[63] In my view, neither form of prejudice is adequately mitigated through a curative instruction.

[64] Ultimately, I find that the prejudicial effect of this evidence significantly outweighs its modest probative value.

D. To establish identity – i.e. that Mr. Perez sent the text messages to H.D.

[65] The Crown seeks to introduce the details of the sexualized text messages Mr. Perez sent to B.C.L. The Crown seeks use this evidence to show that Mr. Perez was the person who sent the text messages to H.D. The defence advises that it does not presently admit that the text messages were from the accused.

[66] The rationale for the admission and use of similar fact evidence to prove the accused’s identity is the improbability that two persons would “display the same configuration of matching characteristics in committing a crime”: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 19. The jury is being asked to infer that the accused is the person who committed the offence. As the Supreme Court of Canada explained, “[t]his inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable”: Perrier, at para. 19. The acts must bear a high degree of similarity. This can be demonstrated through a unique trademark or signature. Or it can be demonstrated through a series of significant similarities, taken together: R. v. Arp, [1998], 3 S.C.R. 339, at para. 45. In either case, “[w]e want to be sure, on a balance of probabilities, that the same person committed the acts in question such that we can safely say it is not a coincidence nor a case of mistaken identity”: Perrier, at para. 20; Handy, at para. 91.

[67] The court must focus on the acts themselves and not on evidence of the accused’s involvement in those acts. A high degree of similarity between the acts is required to be admissible. The greater the similarity between the acts, the greater the probative value of the similar fact evidence. See Perrier, at paras. 21-22. Courts have sometimes characterized the high degree of similarity required as “striking”: see. e.g. Arp, at paras. 43-45; R. v. Woodcock (2003), 177 C.C.C. (3d) 346 (Ont. C.A.), at para. 64.

[68] Given the trial judge’s findings on Mr. Perez’s prior convictions for sexual interference, there is no question that Mr. Perez was the author of the similar acts – that is, the text messages to B.C.L. The only question is whether those text messages bear a high degree of similarity to the text messages he allegedly sent to H.D.

[69] I find that they do not bear a high degree of similarity. The cumulative use of the words “tiny shorts”, “yummy”, “lil”, “daddy” and “baby girl” in texts is not distinctive. The individual words are not uncommon in sexualised language. Nor can I conclude that the cumulative use of these words is so distinctive as to render the likelihood of coincidence objectively improbable.

[70] Accordingly, Mr. Perez’s text messages to B.C.L. are inadmissible to establish that he was the person who sent the text messages at issue to H.D.

E. To establish that Mr. Perez was aware that his sexual relationship with H.D. was problematic

[71] The Crown seeks to introduce the conditions the Parole Board imposed on Mr. Perez, and the reasons the Parole Board explained to Mr. Perez for imposing these conditions, during his release into the community. These conditions included a requirement that he report all sexual and non-sexual relationships and friendships with females to his parole supervisor. The Crown contends Mr. Perez did not do this in relation to H.D.

[72] The Crown argues that this evidence is relevant to whether Mr. Perez thought it was appropriate to have a sexual relationship with H.D.

[73] The Crown argues that the probative value of this evidence is that it suggests that Mr. Perez knew his sexual relationship with H.D. was problematic. The Crown contends that the only reason why Mr. Perez would not believe it was appropriate to have a sexual relationship with H.D. is if he thought she was a minor. Otherwise, there would be no reason not to report this relationship, and therefore avoid the risk of breaching his parole.

[74] The Crown further argues that the fact that Mr. Perez quickly re-established unreported communication with H.D. after his parole had been revoked for unreported communications with other women, reinforces that Mr. Perez knew he should not communicate with H.D.

[75] I agree that Mr. Perez not reporting his relationship with H.D. to his parole supervisor is relevant to whether Mr. Perez thought it was inappropriate to have a sexual relationship with H.D. because he believed her to be underage.

[76] I also agree that there is some probative value to the evidence, even if it is not high. The probative value of the evidence is diminished, however, because there are other inferences that can be drawn from this evidence than the one the Crown is asking the trier of fact to make. Mr. Perez may simply have not reported his contact with H.D. because he is disinclined to report relationships, not because he knew H.D. was underage. In this regard, Mr. Perez was found by the Parole Board on April 29, 2022 to have violated his conditions of release by not reporting his relationship with two other “young looking” women he says he met at a café.

[77] The Crown argues that the jury will necessarily know that Mr. Perez had a s. 161 order prohibiting him from seeking employment that involved him being in a position of trust towards a person under the age of sixteen years.

[78] I disagree. It remains a live issue whether the jury will know whether Mr. Perez is subject to a s. 161 order.

[79] The defence advises that if the Crown’s discreditable conduct application is unsuccessful, Mr. Perez will seek a severance of the s. 161(4) count, to be tried separately after the jury trial by the same judge who had heard the jury trial. Mr. Perez would agree that the evidence of the jury trial is to be admissible on this second trial to avoid the necessity of having to call the viva voce evidence a second time.

[80] I express no view on the outcome of an application for severance. I simply observe, however, that one of the considerations on a severance application is whether the discreditable conduct evidence would be adduced at trial: R. v. Last, 2009 SCC 45, at paras. 18 and 33.

[81] Returning to the admissibility analysis, I find that the conditions the Parole Board imposed on Mr. Perez, and especially the reasons the Parole Board explained to Mr. Perez for imposing these conditions, are highly prejudicial.

[82] Turning first to the Parole Board’s reasons for the decisions of April 29, 2022 and July 2, 2022, these contain considerable prejudicial information, including:

a. Mr. Perez’s other prior convictions, unrelated to his offences involving B.C.L.;

b. Mr. Perez’s drug use;

c. Mr. Perez’s contact with a sex worker;

d. his contact or relationship with other “young looking” females;

e. assessments of Mr. Perez’s candour and credibility;

f. assessments of Mr. Perez’s risk to reoffend and risk to society;

g. Mr. Perez’s social history; and

h. reference to a pretrial psychiatric assessment that Mr. Perez had a “history of seeing sex workers, and endorsed numerous child molester and rapist cognitive distortions”.

[83] The decisions also revoked Mr. Perez’s release given the Parole Board determined that he was an undue risk to society.

[84] Given this, permitting the Crown to introduce the Parole Board’s reasons would create a very high risk of moral prejudice to the accused. It would also distract the jury from its proper focus, which are the charges. I cannot see any viable way to edit the reasons that would sufficiently mitigate the prejudice to the accused. The prejudicial effect of the Parole Board’s reasons vastly outweighs their probative value.

[85] Turning to the conditions the Parole Board imposed on Mr. Perez, evidence of statutory release conditions will necessarily reveal to the jury that Mr. Perez was convicted of an offence or offences. It is readily inferable that the offence(s) were sexual in nature and may involve minors, given the conditions that Mr. Perez have no contact with children, is required to report all sexual and non-sexual relationships and friendships with females, and is not to be in the presence of a sex worker. It was also inferable that the offence was serious enough to warrant a penitentiary term, prior to his statutory release.

[86] The conditions the Parole Board imposed on Mr. Perez are less prejudicial than the Parole Board reasons. There remains moral prejudice to the accused, however, given the inferences the jury would likely draw. I am not convinced a curative instruction to the jury would sufficiently mitigate the risk of moral prejudice. That said, the conditions of release do not present a significant danger of reasoning prejudice because they can be concisely stated and would not confuse or distract the jury from its main task.

[87] Ultimately, I find that the relatively modest probative value of the evidence is outweighed by its prejudicial effect. Accordingly, the conditions the Parole Board imposed and its reasons for imposing these conditions are inadmissible to prove that Mr. Perez thought it was inappropriate to have a sexual relationship with H.D. because he believed her to be underage.

F. To establish that Mr. Perez had easy access to Dundonald Park and why he was stopped from communicating with H.D. for a period of time

[88] The Crown wishes to introduce evidence that Mr. Perez was in and out of custody on parole violations, and on parole to Kirkpatrick House.

[89] The Crown argues that this evidence is relevant to establishing that Mr. Perez had easy access to Dundonald Park, and why he was stopped from communicating with H.D. for a period of time.

[90] The Crown contends that the probative value of the evidence is that it corroborates H.D.’s testimony that she first met Mr. Perez at Dundonald Park and would see Mr. Perez hanging out in that park. It explains why Mr. Perez stopped communicating with H.D. and then resumed communication with her. It allows the trier of fact to understand that the only reason he could not communicate with H.D. was because he was physically prevented from it by incarceration.

[91] I agree that the evidence is both relevant to and probative in establishing that Mr. Perez had easy access to Dundonald Park, and that Mr. Perez stopped communicating with H.D. for a period of time because he was not able to text while incarcerated.

[92] The fact that Mr. Perez was on parole to Kirkpatrick House is somewhat prejudicial. The prejudice is moral prejudice: it leads to the inference that Mr. Perez was convicted of a crime, even if it does not reveal the nature of the earlier offence. But it is not as prejudicial as the other evidence concerning Mr. Perez’s prior sexual interference offences and his parole conditions and the Parole Board’s reasons.

[93] Evidence of parole violations is more prejudicial than Mr. Perez being on parole to Kirkpatrick House. It reveals to the jury that Mr. Perez did not abide by conditions of release and, as a result, could lead to an inference that he is likely to reoffend. This is a form of moral prejudice.

[94] The defence proposes admitting that Mr. Perez lived in close proximity to Dundonald Park at the time of the alleged conduct and that (during the period Mr. Perez was in custody following his parole violations) Mr. Perez was unavailable and had no access to phones or messaging.

[95] Given these proposed admissions, the contextual information becomes unnecessary, and the probative value of the evidence that Mr. Perez was in and out of custody on parole violations and on parole to Kirkpatrick House is greatly diminished, and is outweighed by its prejudicial effect. Accordingly, it is inadmissible.

IV. Disposition

[96] The Crown’s discreditable conduct application is dismissed.

Justice Owen Rees

Released: November 21, 2024