Reasons for Decision

Court File No.: CR-22-00000048-0000
Date: 2025-03-20
Ontario Superior Court of Justice
Between:
His Majesty the King
– and –
P.C.B. and M.B.O., Defendants

H. Chiavetti, for the Crown
S. Ellacott, for the defendants
Heard: February 10, 2025

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

Brian D. Tranmer

Table of Contents

I. Background
II. The Crown Similar Fact Evidence
III. Positions of Counsel on the Application
IV. Legal Principles
V. Timing of and Written Form of the Crown Application
VI. Collusion
VII. Application of the Principles to This Case
VIII. Conclusion

I. Background

[1] The accused are the mother and father of the 6 child complainants. The charges set out on a multi-count Indictment allege 2 sexual offences against one child, a threat, and physical assaults against 5 of their children.

[2] Details of the counts and the children’s ages are set out in previous pretrial and in-trial applications rulings, Section 715.1 Application at R. v. P.C.B., 2024 ONSC 399 and the Khan Application at R. v. P.C.B., 2024 ONSC 3956.

[3] This is a judge alone trial.

[4] Testimony in the trial began on February 8, 2024. The two accused both testified in October 2024. The final witness testified on November 8, 2024.

[5] The matter had been adjourned to January 23, 2025, for final submissions.

Procedural Background

[6] On January 23, 2024, the Crown served a Notice of Application in Form 1 stating it sought an order granting the use of similar fact evidence across counts in the Indictment “should the evidence adduced at trial permit it to meet the requisite legal threshold”. The notice read that “the Crown anticipates that the evidence might be such to justify an application for the judge to rely on similar fact evidence across counts”. The notice stated that “the Crown will likely bring this application, provided the evidence establishes a sufficient basis to do so at the conclusion of the Crown’s case”. The notice stated that the Applicant would rely upon, “The Applicant’s Position Paper. Viva voce evidence of witnesses at trial. The Applicant’s Book of Authorities. Submissions to be made at the conclusion of trial”.

[7] The Position Paper referred to and delivered with that Notice of Application consisted of 42 paragraphs setting out general legal principles applicable to similar fact evidence with caselaw citations. There were no case specific references.

[8] The Notice of Application and the Position Paper did not specify the evidence that was sought to be considered as similar fact evidence across the counts, did not specify the issue or issues for which such evidence was to be considered, and did not specify the purposes for which the Crown would be proffering such similar fact evidence. The authorities make it clear that the Crown must clearly articulate such details in advance of an admissibility hearing. See for example, R. v. Tsigirlash, 2019 ONCA 650.

[9] The Notice of Application did not comply with Rule 30 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) insofar as it did not, as mandated by the Rule, set out a detailed description of the presumptively inadmissible evidence that the applicant sought to introduce in the proceedings and it did not set out a precise case specific statement of the basis and grounds upon which the evidence is said to be admissible.

[10] At about the same time, the Crown filed another Notice of Application concerning a number of Khan applications. Only one of these Khan was brought, argued and adjudicated in the course of the evidentiary phase of the trial. No further reference to the others was made during the trial.

[11] Both counsel have filed final submissions on the trial in writing in advance of January 23, 2025. The Crown similar fact evidence application was not raised again until its final written submissions filed shortly before the January 23, 2025 date for final submissions.

[12] The defence objected to the Crown advancing that application on that date on the grounds of a failure of any real and serious advance notice to the defence.

[13] Final submissions were adjourned to be made on February 25, 2025, and the date of February 10, 2025 was set for the Crown similar fact application to be argued with written material to be filed in advance.

[14] On Friday, February 7, 2025, the Crown filed the same Position Paper, although not titled with those words, that was a repeat of the January 2024 Position Paper but had added to it paragraphs 43, 44, 45, 46.

[15] Paragraphs 43, 44 and 46 read as follows:

43. In the case before you, the Crown submits that the court may rely on similar fact evidence across counts when assessing the evidence before this Court. The evidence in this case involves numerous occurrences that happened during the same time period, in the same household, and perpetrated by the same accused under similar circumstances to a number of siblings.

44. In this case, the children speak to a shared experience of suffering abuse while residing in the custody of their parents. Much of this abuse was prefaced by the short temper of the M.B.O., and his general practice of resorting to physical abuse when angry. All of the charges play into a larger narrative of a family dynamic and shared experience. This pattern of behaviour exemplified by the accused, to physically lash out as his children when he was upset, was consistent across all the children’s accounts. Many of the acts described of were consistent across complainants – being cuffed upside the head, having tools thrown at them, being lifted off the ground by their necks, etc. Because a number of these counts are enumerated on the same indictment, the risk of prejudice is much lower.

45. The Crown submits that the similar fact evidence speaks to the nature of the way in which M.B.O. ran his household – with an iron fist and constant threat of violence. The Court is entitled to find that, if M.B.O. treated some of the children like this, it is reasonable to assume that other children’s evidence of being treated in the same manner is bolstered by the similarity of their experience. The propensity of M.B.O. to treat his children in a similar way under similar circumstances is clearly borne out.

[16] In paragraph 45, the Crown refers to narrative. I have discussed narrative led by the Crown in this case in other Application decisions. Recently, Justice Paciocco described the limited purpose of narrative and what it cannot be used for. (MJL Enterprises Inc. v. SAL Marketing Inc., 2025 ONCA 120, paras. 20, 21).

[17] The Crown advised orally that the application is with respect to the counts against the accused M.B.O. only. It is not brought with respect to the sexual misconduct counts or the threat count or the count of assault against P.C.B. only.

[18] In response to my questions from the bench, the Crown indicated that the reference in paragraph 43 to “numerous occurrences” referred to the evidence from the trial that was directly relevant to each count.

[19] Further in answer to my question about what “many of the acts described of were consistent across complaints…” referenced in paragraph 44 were, the Crown said that these related to the counts in the Indictment and that the reference to “being cuffed upside the head”, actually referred to the count involving the child B. on August 22, 2019 alleging that he was punched in the head by his father. (Count 16).

II. The Crown Similar Fact Evidence

[20] From the oral submissions by the Crown, I understand that the trial evidence which the Crown proffers as similar fact evidence across counts includes the following.

Count 6 – C. - Shovel

[21] B. testified that the accused M.B.O. hit C. with a shovel and shoved him into the side of the barn. He was not sure where C. was hit with a shovel. When C. got up, M.B.O. smacked him.

[22] M.B.O. denies that this occurred.

Count 8 – B. - Grabbed by Neck

[23] In a statement to police, B. said that once when they were living in Limoges, that would be between August 2013 and September 2016, he wanted to go upstairs to see his mother, but M.B.O. grabbed him by the neck and put him on the wall, and then punched him.

[24] He also testified about a time when G. had wanted to get a book. He was grounded for three days, then his father came in and grabbed him by the neck and put him up against the wall.

[25] B. was firm in his testimony that he was grabbed by the neck under the chin, not on the clothes. He testified that M.B.O. would pick them up and put them against the wall, with his second hand on his stomach. He said that happened to him a number of times and that he also saw that happen to C. and K.. K. gave similar testimony. C. did not.

[26] In his final written submissions, M.B.O. stated that his evidence is that he did not choke B., or K. in Count 12, or grab the neck of either child, but rather held the child’s jaw while keeping the child in place against the wall to enforce them to pay attention. With respect to K., count 12, his evidence is that he did so out of anger, for discipline, in an attempt to physically force her to calm down and listen.

Count 10 – K. - Forced to Ground

[27] P.C.B. described an incident where she saw M.B.O. shove or push K. to the ground. As a result of seeing this, she called the police right away. In a message to her best friend, she wrote that he slammed her onto the ground. P.C.B. testified that she saw him put his hands on K.’s shoulder and push her to the ground. She testified that she had seen K. slammed to the ground by M.B.O..

[28] M.B.O. testified about this incident. K. was not doing what he wanted her to do. He used 2 hands on her shoulders and pushed her down into a sitting position. He agreed that he applied force to shove her down enough to overpower her. He agreed that he used a raised voice when doing so. K. was about 11 years of age. He agreed that he had forced her to the ground. He testified that this was the time that P.C.B. called the police who attended.

[29] In his final written submissions, M.B.O. concedes that he is guilty of this offence.

Count 11 – H. - Door

[30] B. and H. gave evidence about an incident where M.B.O. shut the door from the kitchen to the basement on H..

[31] M.B.O. denied that this occurred.

Count 12 – K. - Grabbed by Neck

[32] K. said in her police statement that one time when they were living at Limoges, M.B.O. got mad at her and picked her up by the neck and pushed her to the wall and then dropped her. She said that this hurt because her legs were shaking. She said this happened a couple of years ago, which would be 2018. She said that he did that in the basement of the house. She said there was another time 4 or 5 years ago when he pushed her on the wall.

[33] She testified that he picked her up by the neck and put her against the wall using one hand.

Count 13 – B. - Tape Measure

[34] B. testified that his father had thrown a tape measure at him that hit him in the chest. The tape measure was big and yellow. His father threw it overhand at him and it hit him hard. It left a bruise on his chest. His father did not toss it at him.

[35] G. testified that he saw a bruise on B.’s chest on his 10th birthday, which would have been July 21, 2018.

[36] M.B.O. testified that he did do this in July 2019. He was teaching the children how to use various tools. He said that B. was not paying attention, “he was being B.” B. was 11 years of age. He testified that he threw the tape measure underhand. But he knew that B. would not catch it. He admitted that he knew that B. did not see it coming. “I had no intention that he would catch it.”. M.B.O. testified that he was a little bit frustrated but denied that he was angry. It hit B. in the chest.

[37] M.B.O. admits his guilt to this offence. But he denies that a bruise resulted.

Counts 14, 15 and 16 - August 22, 2019

[38] These counts relate to physical assaults on M., K. and B. on the date of M.B.O.’s arrest.

Count 14

[39] B. saw M. kicked in the back by M.B.O. downstairs. M.B.O. was angry.

[40] K. saw M.B.O. kick M. also. This was downstairs by the patio door. This caused M. to cry. K. testified that this was not merely a foot sweep to move M. out of the way while M.B.O. was carrying drywall into the house. “It wasn’t to move her. It was to kick her”.

[41] M.B.O. testified that he used his foot to sweep or skooch M. out of the way while he was carrying drywall. He testified that he used no force at all to brush her out of the way.

Count 15

[42] All of the children described M.B.O. dumping a liquid on K.’s head and pushing her into the side of the van or against the van. As a result, K. ran in tears down to her grandparents’ house. The police were called and attended.

[43] M.B.O. concedes that by pouring water on her head while holding her against the van, he committed an assault on K.

Count 16

[44] B.’s evidence is that on this occasion, M.B.O. punched him in the back of the head behind the left ear at the hairline. This occurred upstairs in their mudroom as he was walking to go outside. He had seen his father behind him making a fist, so he turned his head around because he did not want to get punched in the face. He testified that this was not merely a cuff on the back of the head.

[45] M.B.O. testified that he cuffed B. across the back of the head saying words to the effect, “you need to smarten up”. He agreed that he did this out of frustration. He concedes that by cuffing B., he committed an assault.

[46] All of these incidents as described by the children occurred in circumstances where M.B.O. was angry or frustrated because the children were not doing what he wanted them to do.

[47] Except where I have otherwise indicated, the accused deny the allegations.

III. Positions of Counsel on the Application

[48] Crown counsel clarified in oral submissions that the application with respect to similar fact evidence was not being brought with respect to counts 2 and 3, alleging sexual misconduct by both parents with respect to their daughter G.. Counsel also clarified that the application with respect to similar fact evidence did not relate to count 7, uttering a threat to the son B.. Crown counsel also clarified that the application was not brought with respect to the accused P.C.B..

[49] Crown counsel submits that she expects that the Court will dismiss Count 1 for lack of evidence.

[50] Crown counsel submitted in her oral submissions that the similar fact evidence she wished the court to consider across counts was all of the physical assaults alleged across the remaining 9 counts which alleged separate counts of physical violence by M.B.O. against 5 of his children. She submitted that it indicated a pattern of behaviour on the part of the accused, M.B.O., of a specific propensity to lash out physically against his children when he was angry. She submitted that the use of the similar fact evidence across counts was for the purpose of bolstering the credibility of the witnesses.

[51] Crown counsel acknowledged that the onus was on her to satisfy the court on a balance of probabilities that the probative value of such similar fact evidence outweighed the prejudicial effect it would have on the accused.

[52] Crown counsel submitted that even if the court admits such evidence on that basis, it is up to the court to determine what weight to give to it in reaching its final decision.

[53] She pointed out that it is a judge alone trial and that the similar fact evidence sought to be proffered is across counts and not extrinsic evidence.

[54] Crown counsel submitted that she did not seek to advance the similar fact evidence as general propensity or bad character evidence as against the accused.

[55] She said that the evidence she sought to proffer across counts was for the purpose of the court assessing the counts as a whole and to support the credibility of the child witnesses.

[56] Defence counsel submitted that there was no striking similarity to the acts sought to be introduced as similar fact. Defence counsel pointed out that the Crown led a great deal of narrative in which it can be seen that when angry or frustrated, M.B.O. would also yell at the children, ground the children, relegate them to the basement, not permit them to go outside, and keep them from seeing their mother, among other things.

[57] He pointed out that with respect to the complainant child K. count relating to the physical assault against her by grabbing her by the neck, it allegedly took place in another house previously owned by the accused, and therefore not in the same household as the remaining counts.

[58] Defence counsel strenuously argued that the Crown has still not identified the specific similar facts evidence it wished the court to consider, that the Crown still had not specifically identified the issues which it seeks to use the similar fact evidence for and that the Crown still has not specifically identified the purpose or purposes for which it is proffering such evidence. He submits that the Crown has not done that in writing in any fashion, and that the Crown has only done so to some extent in answer to questions from the bench during submissions.

[59] Defence also submits that there is a great deal of evidence of the opportunity for the children to collude with each other and with others including relatives, in that there is evidence that the events and allegations have been discussed, and furthermore that there is evidence that relatives and others have provided incentive to the children to embellish their testimony after the fact, for example by showing the children photographs of serious head and facial injuries suffered by the child M., which injuries the children had not seen on the child in person. They were shown those photographs after their father had been arrested and they had been apprehended by the CAS and placed with relatives and before they testified at trial. There are no charges related to those injuries.

[60] Defence counsel also submits that the timing of bringing this formal application is late and denies fairness to the accused and prejudices the accused. He relies on the text by Justice David Watts in Watt’s Manual of Criminal Evidence 2024 at s. 7:2 pg. 762, R. v. Last, 2009 SCC 45, para. 34, and R. v. R.K., 2020 ONSC 2568, for the proposition that this application should have been brought at the latest at the close of the Crown’s case, prior to the defence embarking upon its case, if any.

IV. Legal Principles

Similar Fact Evidence

[61] The principles applicable to similar fact evidence, either extrinsic or across counts, are set out in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. The following paragraphs are particularly relevant to the present case.

The full legal analysis and authorities are set out in the original reasons and are not repeated here for brevity.

V. Timing of and Written Form of the Crown Application

See original reasons for detailed discussion.

VI. Collusion

Legal Principles

See original reasons for detailed discussion.

VII. Application of the Principles to This Case

See original reasons for detailed discussion.

VIII. Conclusion

[279] The similar fact evidence is properly a matter for the jury, or trier of fact, to consider in reaching its final verdict in this case.

[280] The weight, if any, to be attributed to similar fact evidence is for the jury to decide. (Shearing, paras. 42, 44).

[281] The proffered similar fact evidence relates to an issue beyond general disposition or bad character. I do not and will not infer guilt from general bad character or disposition.

[282] If admitted, similar fact evidence may be considered in deciding whether the accused’s guilt has been proven beyond a reasonable doubt.

[283] In this case, for these reasons, similar fact evidence across counts is admissible for the issues and purposes identified in these reasons.

[284] The Crown application is granted.

[285] In reaching a final decision on the issue of whether the Crown has proven the charges against M.B.O., I do and will again instruct myself in accordance with the authorities, including TC, para. 33; Shearing, paras. 42 and 44; CG, para. 34; and Handy, para. 72. (See also R. v. A.V., 2025 ONCA 57, para. 11).

Brian D. Tranmer
Released: March 20, 2025