Court File and Parties

Court File No.: CR-19-8147
Date: 2025-04-25
Ontario Superior Court of Justice
Between:
His Majesty the King – and – T.D.

Appearances:
K. Pritchard, for the Crown
K. Walker, for T.D.

Heard: April 3, 2025

Reasons – Similar Fact Application
M. Varpio

Introduction

[1] T.D. is accused of having engaged in sexual conduct with two complainants, H.M. and E.C., during an approximate three-year period ending in or around April 2018. T.D. is alleged to have engaged in a variety of sexual conduct towards H.M., his stepdaughter, beginning when she was in Grade 7. This alleged sexual conduct included the touching of H.D.’s buttocks, the touching of her vagina, the forcible touching of T.D.’s penis and the digital penetration of H.D.’s vagina.

[2] T.D. is also accused of touching E.C.’s buttocks during the summer of 2017 and of kissing her neck in early 2018.

[3] Both complainants testified in this trial and the Crown brought an inter-count similar fact application at the close of its case.

[4] I granted the application with reasons to follow.

[5] These are those reasons.

Facts

Allegations Involving H.M.

The Video Statement

[6] H.M. attended at the police station on April 9, 2018 and gave a video statement. She testified before me and adopted that video statement as per s. 715.1 of the Criminal Code of Canada.

[7] In her statement, H.M. stated that she was born in 2002. At the time she gave the statement, H.M. was 15 years old and in Grade 10. T.D. lived with H.M., H.M.’s mother and H.M.’s three younger siblings. T.D. was effectively H.M.’s stepfather.

[8] T.D. began sexually assaulting H.M. when she was in Grade 7. The accused grabbed H.M.’s buttocks and kissed her on the lips. These acts occurred frequently.

[9] During this time period, an incident occurred where H.M. was having a shower at her house. H.M.’s siblings were home but H.M.’s mother was not. T.D. came into the bathroom, poked H.M. on the chest and, at one point, opened the shower curtain.

[10] In September 2017, H.M. was in her bedroom and H.M.’s siblings were home. H.M.’s mother was not home. H.M. was lying down on her bed and the accused put his hands down the front of her pants and underwear. T.D. put his fingers inside her. H.M. screamed at T.D. to get out of her room.

[11] In December 2017, H.M. was home alone with T.D. They were in the living room and T.D. asked H.M. to sit on his knee. She refused. She sat on the couch beside him. T.D. moved his pants and H.M. saw his erect penis. T.D. asked H.M. to touch it and she said no. H.M. advised in her statement that there were multiple times where the accused had grabbed her by the wrist and asked her to “touch him” but that she said no on every occasion.

[12] On April 2, 2018, T.D. came into H.M.’s bedroom, pushed her onto the bed, pulled her pants down and tried to put his mouth on her (“down there”). H.M. told him to stop, and she kicked him off. At the time, H.M.’s siblings were at home but H.M.’s mother was at work. T.D. then drove H.M. to the mall.

Viva Voce Evidence

[13] H.M. added some specificity to her involvement with the accused during her testimony. She described an incident in the laundry room. She also described incidents where the accused forcefully put H.M.’s hands on the accused’s penis.

[14] H.M. testified that she and E.C. were friends. H.M. was a year older than E.C. In the summer of 2017, E.C. would often come to H.M.’s house to “hang out”. The pair began to drift apart after that summer and the relationship ended in January of 2018.

[15] In cross-examination, H.M. testified that she did not typically confide in E.C.

[16] H.M. denied speaking with E.C. during the week leading up to her April 9, 2018 statement. H.M. denied speaking with E.C. on April 9, 2018.

[17] H.M. testified that she did not speak with E.C. about the allegations prior to going to the police station on April 9, 2018. H.M. also denied ever speaking with E.C. about the specifics of the sexual encounters. However, H.M. testified that she did not believe that E.C. knew “what was going on” until E.C. went to the police station.

Allegations Involving E.C.

Video Statement

[18] On April 10, 2018, E.C. gave a video statement to police. She adopted that statement in her testimony pursuant to s. 715.1 of the Criminal Code of Canada.

[19] E.C. was born in 2003 and was H.M.’s best friend in the summer of 2017. During the friendship, E.C. would go to H.M.’s residence and “hang out” while H.M. babysat her siblings. E.C. considered T.D. to be “like another dad to me.” On occasion throughout that summer, T.D. touched E.C.’s buttocks and commented upon E.C.’s appearance.

[20] On one occasion, T.D. and E.C. were in the kitchen. T.D. gave E.C. a hug, lifted her up, and touched her buttocks while positioning his own body in such a way so as to prevent anyone from seeing what was happening. H.M.’s siblings may have been in the room at this time.

[21] In total, T.D. touched E.C.’s buttocks four or five times.

[22] On one occasion in early 2018, E.C. attended H.M.’s house. H.M. was in the bathroom while E.C. was lying on H.M.’s bed. T.D. entered the bedroom, lay down beside E.C. and hugged her while kissing her neck. It was an aggressive kiss, akin to getting a “hickey”.

[23] E.C. told the interviewing officer that she and H.M. had reconciled in or around January of 2018 and had spoken “all week” prior to E.C. giving her video statement. They had spoken about H.M. being kicked out of the house. [1]

Viva Voce Evidence

[24] On April 10, 2018, E.C.’s mother picked her up after work and took her to the police station. E.C. was informed that her sister had received a phone call about social media. E.C. believed that she was going to speak to the police about these social media issues. She did not know that the interview had to do with H.M. or T.D. prior to her attendance at the police station.

[25] She arrived at the police station, sat down on a bench between her mother and a police officer. The officer had a clipboard with names on it that included H.M.’s name, T.D.’s name as well as the name of a former boyfriend. E.C. stated that she did not know how she “connected it in my brain”, but she concluded that the matter had to do with sexual assaults, and she thought, “Oh, it happened to me too”. Nonetheless, E.C. testified that she had no indication that H.M. had been touched sexually by T.D. at that juncture. E.C. had an emotional reaction at that point and had what she described as a “breakdown” moment. E.C. testified that the first time she heard that H.M. had been victimized was from the police officer who took her video statement.

[26] E.C. described her friendship with H.M. as becoming strained after the “kiss incident” in early 2018. E.C. testified that she was scared of H.M.’s whole family at that point.

[27] With respect to the conversations with H.M. that she referred to in her video statement, E.C. indicated that one such conversation probably happened in the bathroom at school. She and H.M. continued to care about each other and the fact that H.M. was kicked out of the house was a “pretty big deal”. [2]

[28] E.C. testified that she and H.M. had two conversations about the allegations. These conversations occurred after E.C. gave her police statement. E.C. could identify the timing of these conversations because the weather was warmer when they happened. One conversation was in person, in E.C.’s bedroom. H.M. disclosed some pretty “horrific things” including the fact that T.D. would reveal his penis to H.M. and would “pleasure himself” in front of her. E.C. was shocked by the disclosure. When H.M. disclosed the masturbation allegation, E.C. told H.M. that T.D. had touched E.C.’s buttocks.

[29] The other conversation was a phone call wherein the pair discussed other issues but resolved to check in on each other.

[30] E.C. testified that she and H.M. currently have no relationship.

[31] In cross-examination, E.C. testified that she and H.M. confided in each other a lot during the time when they were close friends.

[32] E.C. confirmed that she did not know that sexual abuse would be the subject-matter of her video statement prior to attending the police station. She testified that she was confused when she attended the police station and she believed that she would be speaking about social media with the officers. The first time she learned the subject-matter of the interview was in the lobby of the police station.

[33] Prior to her attendance at the police station, E.C. believed that T.D. had physically assaulted H.M. by throwing a TV remote at her, but E.C. was not aware of any allegations of sexual impropriety. E.C. believed H.M.’s household was generally an abusive environment.

Analysis

The Governing Law

[34] The Court of Appeal for Ontario recently synthesized the law of similar fact evidence in R. v. Vu, 2025 ONCA 242, paras. 36 and 37:

Similar act evidence is presumptively inadmissible. The Crown holds the onus of establishing, on a balance of probabilities, that the evidence should be admitted. That onus is met where the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. Although the trial judge did not refer to any case law, he correctly summarized these legal principles.

The probative value of the evidence comes from the objective improbability of coincidence: Handy, at paras. 47-48. The prejudice comes from both moral and reasoning prejudice that may result from the admission of the evidence. Moral prejudice concerns itself with whether the trier of fact will decide the case based upon the perceived bad character of the accused. Reasoning prejudice comes from the injection of delay and complexity into the trial: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 65, 68; Handy, at para. 31. Some of these concerns are attenuated in judge-alone trials such as this one: R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 88; R. v. T.B., 2009 ONCA 177, 95 O.R. (3d) 21, at paras. 27, 33; and R. v. MacCormack, 2009 ONCA 72, 95 O.R. (3d) 21, at paras. 56, 68-69.

[35] Typically, as in Handy, the probative value of the similar fact evidence flows from what is referred to as the “double inference”:

1. The evidence supports the inference that the accused has a particular propensity to engage in a specific type of conduct; and
2. The evidence supports the further inference that the accused engaged in that very type of conduct on the occasion charged, in keeping with his propensity to do so. (See Handy, at paras. 26-29, 42, 47).

[36] Any analysis of the admissibility of similar fact evidence must begin with the articulation of the purpose for which it is to be admitted (see Handy at para. 74; R. v. Johnson, 2011 ONSC 195, para. 133; R. v. MacDonald, 2017 ONCA 568, para. 80).

[37] In Handy, the court outlined helpful factors to consider when determining the admissibility of similar fact evidence (at para. 82):

The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 35 C.C.C. (2d) 337 (ON CA), p. 345; R. v. Huot (1993), 16 O.R. (3d) 214 (ON CA), p. 220;

(2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 134 C.C.C. (3d) 465 (ON CA), p. 471; C. (M.H.), supra, at p. 772;

(3) number of occurrences of the similar acts: Batte, supra, at pp. 227-28;

(4) circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358);

(5) any distinctive feature(s) unifying the incidents: Arp, [1998] 3 S.C.R. 339, paras. 43-45; R. v. Fleming (1999), 171 Nfld. & P.E.I.R. 183 (NL CA), paras. 104-105; Rulli, supra, at p. 472;

(6) intervening events: R. v. Dupras, 2000 BCSC 1128, para. 12;

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

[38] Collusion is also a concern when considering the admissibility of similar fact evidence. If there is an air of reality as to the prospect of collusion between the relevant witnesses, the prosecution must satisfy the court on a balance of probabilities that the evidence is not tainted by said collusion. Such collusion may be deliberate or unintentional and it may be made through direct communication or indirect communication. Mere opportunity to collude, however, may be insufficient so as to give rise to an air of reality because the issue to be determined is collusion, not contact. Evidence of opportunity therefore goes to weight and not admissibility (see Handy at para. 112; R. v. J.F.).

[39] Finally, a minute parsing of the evidence so as to add up similarities and dissimilarities of proposed similar fact evidence, like adding up wins and losses, is not the analysis that needs to be undertaken. Rather, I must examine the entirety of the evidence and determine whether the prosecution has met its burden (see Vu, at para. 41).

Positions of the Parties

Probative Value v. Prejudicial Effect

[40] The Crown submits that it wishes to admit the inter-count similar fact evidence of the two complainants in furtherance of three aims:

1. To prove the actus reus;
2. To prove the mens rea; and
3. To rebut the possible defence that the accused’s hugging/touch of the complainants was not sexual in nature.

[41] The Crown submits that the following points of similarity in the evidence give it a powerful probative value:

1. Both complainants are females of a similar age;
2. Both complainants described their relationship with the accused as having been one of quasi father-daughter;
3. The allegations occurred during roughly the same time period;
4. The allegations occurred in the same location, that is the residence shared by H.M. and T.D.;
5. The allegations took place while H.M.’s mother was out of the house;
6. The allegations often occurred when H.M.’s siblings were present in the house; and
7. The allegations involved, inter alia, the touching of the buttocks and kissing.

[42] Defence counsel submits that the following points of dissimilarity within H.M. and E.C.’s evidence attenuate the probative value of their evidence such that the application should be dismissed:

1. The nature of the events was different in that H.M. described more intrusive events like vaginal penetration; and
2. E.C. testified that she consented to hugging and non-sexual contact but the contact evolved into non-consensual events whereas H.M. described events that included wholly non-consensual transactions.

Collusion

[43] The Crown submits that there is no air of reality to the suggestion that there was collusion because both complainants attended the police station without knowing about the other’s complaints. Further, the Crown submits that if there is an air of reality to collusion, the Crown has proven on a balance of probability that the evidence is not tainted by collusion because the complainants did not deviate from the statements given to police prior to the impugned discussions.

[44] The accused submits that the Crown has not met its burden because the two complainants had considerable opportunity to meet one another prior to going to the police and that they would surely have discussed the situation while they were close friends during and after the summer of 2017. Indeed, E.C. testified that the pair spoke around the time that they attended the police station. Further, E.C. admitted that the pair spoke regarding the allegations prior to the giving of viva voce evidence and, as such, there must be some meaningful collusion as between the two complainants.

Analysis

Collusion

[45] I will first deal with the possible presence of collusion in the testimony of H.M. and E.C.

[46] The complainants testified that they attended the police station to give a statement without knowing the other’s allegations. H.M. testified that she had no idea about E.C.’s allegations prior to going to the police station. For her part, E.C. testified that she only determined that her police interview would be about sexual assaults when the police officer sat down with her on the bench in the police station and she saw the names on a clipboard. The police officer then advised her of the nature of the investigation.

[47] The now young women were cross-examined about the fact that they did not know of the other’s involvement prior to attending the police station. They both indicated that they did not know about the other’s situation. Defence counsel asked them whether they had a discussion in this regard prior to giving their police statements and both conclusively stated that neither had had such a conversation. Neither was shaken on this point and neither appeared to have any evidential issues that suggested that they were either mistaken or dishonest in this regard.

[48] Contrary to H.M.’s evidence, it is clear that the complainants spoke about this case after going to the police station. Although both testified that they did not discuss the specifics of the case, E.C. knew that H.M. alleged that the accused had an erect penis in front of H.M. [3] while H.M. was aware that E.C. determined the nature of the investigation while sitting on the bench in the police station. This testimony demonstrates that the complainants knew some particulars of each other’s allegations.

[49] Defence counsel asked me to infer that the two complainants would have spoken with each other about their situations prior to going to the police station given their close relationship and given the fact that they spoke to each other about the alleged abuse after giving their statements. Since E.C. stated in her police interview that the pair spoke “all week” leading up to April 9, 2018, defence submitted that the nature of the events would have been such that the pair undoubtedly would have confided in one another about the allegations.

[50] I am not willing to draw that inference.

[51] I have no reason to reject the complainants’ evidence that neither of them knew anything about the other’s testimony prior to going to the police station. There is no evidence suggesting that this topic of conversation came up at any point prior to the giving of the statements. Therefore, I accept their evidence on that point for the purposes of this application. To hold otherwise would be to engage in speculation.

[52] Nonetheless, it is clear that some conversation occurred as between the two after the complainants gave their statements because they knew particulars of each other’s recollection.

[53] Accordingly, there is an air of reality to the allegation that the two complainants colluded (advertently or inadvertently) when they spoke to each other after the giving of the video statements. Some details of their respective recitation of events were shared and that fact, at the very least, meets the test for inadvertent collusion given that the impugned conversations occurred before the complainants gave viva voce evidence. Despite this concern, I nonetheless find that the Crown has proven on a balance of probabilities that the evidence is untainted by collusion because:

1. The complainants were not shaken that they did not discuss the allegations prior to giving their police statements;
2. E.C.’s testimony did not change in any material way as between her video statement and her viva voce evidence before me; and
3. Although H.M.’s evidence expanded to include new and/or more specific allegations of sexual abuse, the new evidence did not in any way relate to the versions of events given by E.C.

[54] Accordingly, the Crown has satisfied me on a balance of probabilities that the evidence is not tainted by collusion.

The Balancing of Probative Value and Prejudicial Effect

[55] I can deal with the Crown’s third proposed ground of admission quickly, that is the proposed rebuttal of an “innocent touching” defence. On the facts of this case, the innocent touching defence does not appear to be available to the accused. Grasping teenagers’ buttocks, digital penetration of the vagina, a “spooning hug” coupled with a hard kiss on the neck, and allegations involving the accused’s erect penis are inherently sexual acts. For example, the accused cannot say that he engaged in digital penetration of H.M.’s vagina without it being sexual in nature. As such, the third ground of admission as proposed by the Crown is not available on these facts.

[56] When I consider the other two grounds of proposed admissibility and look at the entirety of the evidence presented by the Crown on this application, I am satisfied that the probative value of the evidence outweighs its prejudicial effect, and that the application should be granted.

[57] The probative value of the evidence is strong because, despite some dissimilarity as between the nature of the conduct alleged by the two complainants [4], the evidence described by both complainants is quite similar given:

a. The similar age of each complainant at the time of the allegations;
b. The proximity in time within which the allegations are said to have occurred;
c. The identical location of the allegations;
d. The similar description of many of the sexual acts made by each complainant (i.e. the ostensibly random touching of the buttocks);
e. The fact that other children were often in the house when the events are alleged to have occurred; and
f. The fact that the accused stood in quasi loco parentis to each complainant.

[58] These are powerful factors that would allow the trier of fact, if the trier were to accept the complainants’ evidence, to conclude that there is a heightened objective improbability of coincidence that both H.M. and E.C. would attend the police station within days of each other and describe similar sexual conduct. This evidence therefore has substantial probative value.

[59] The possibility of moral prejudice in this case is limited. I will not consider the possibility that the accused is a person of bad character and is therefore more likely to have committed the offences charged: See Vu at para. 37.

[60] There is a risk of reasoning prejudice arising from the fact that the complainants spoke with one another about the allegations after going to the police. An analysis of the evidence will be required whereby the court will need to consider each complainant’s evidence both before and after the impugned conversations while balancing the principles governing delayed disclosure. This is a complicated task. Despite this concern, I must remind myself that I am sitting in a judge-alone trial and that the analysis ought not, therefore, be unduly confusing: again, see Vu at para. 37.

[61] Thus, while there is some reasoning prejudice that may flow from the nuanced analysis required of me, the probative value of the proposed evidence is strong and it outweighs any prejudicial effect that may flow from its admission. I therefore admit the intra-count similar fact evidence as going towards the proof of both the actus reus and the mens rea of the offences before the court.

Conclusion

The Honourable M. Varpio
Released: April 25, 2025

Endnotes

[1] I note that H.M. was kicked out of the house the Wednesday before H.M. gave her video statement (April 9, 2018), that is April 4, 2018.

[2] This bathroom conversation must have, therefore, occurred after April 4, 2018.

[3] I need not address whether there is any evidence before me that H.M. in fact masturbated in front of H.M. as it is not relevant to my analysis of this application.

[4] That is, H.M. described more intrusive events than did E.C.