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Court File and Parties

Court File No.: CR-24-140 Date: 2025-10-09 Ontario Superior Court of Justice

Between: His Majesty the King – and – Cody Scarff, Defendant

Counsel: S. Dickson, for the Crown Self-represented

Heard: August 26, 2025

Before: M.G. Ellies J.

REASONS FOR DECISION ON SIMILAR FACT EVIDENCE APPLICATION

OVERVIEW

[1] The defendant is accused of six offences relating to allegations that he sexually touched the complainant and extorted a nude photo of her by means of the Snapchat social platform in 2018, when the complainant was 13 years old.

[2] The Crown applies for permission to introduce evidence from a friend of the complainant that the defendant also attempted to obtain a nude photo of her at about the same time ("extrinsic similar fact evidence").

[3] In addition, the Crown seeks to have the evidence called in support of the charges relating to the photo admitted in support of the charges relating to the sexual touching ("cross-count similar fact evidence").

[4] For the reasons that follow, the extrinsic similar fact evidence application is granted, but the cross-count similar fact evidence application is denied.

FACTUAL BACKGROUND

[5] The following background facts are taken from the statements given to the police by the complainant, P.N., and her friend, I.H.

[6] According to the complainant, the defendant lived as a tenant with the complainant and her mother from about October or November 2017 to March 2018. The complainant alleges that, while the defendant was living there, he entered her bedroom while she was asleep and touched her leg and her vagina.

[7] The complainant also alleges that, after the defendant moved out of the house, he communicated with her using the Snapchat social media platform. According to the complainant, she had posted a picture of herself in a t-shirt that had ties up the front. The defendant sent the complainant a message asking her to let him look underneath the t-shirt. The complainant told the police that, when she did not immediately comply, the defendant threatened to tell her mother that she had been "sleeping around" and doing "bad stuff with guys". After receiving the threat, the complainant sent the defendant a picture of her bare chest. According to the complainant, within seconds, the defendant sent her back a picture of his penis.

[8] The complainant told the police that, because of the nature of the social platform at the time, neither photo could be preserved, nor is there a record of the messages exchanged between the complainant and the defendant.

[9] The complainant told the police that, after he received a picture of the complainant, the defendant "moved on" to her friend, I.H., but that I.H. refused to provide him with a similar picture. At the time of her interview in 2022, the complainant had a screenshot of part of an online conversation between the defendant and I.H. that took place after the refusal.

[10] The police interviewed I.H. later in 2022. She told them she had posted a picture of herself on Snapchat in which she was wearing a dress with a tube top. Shortly after posting the picture, the defendant wrote to her and said that she should send him the "uncensored" version. Rather than doing so, however, I.H. responded by saying that she was pretty sure that the defendant was over 18 years old and that he knew that she was not (she was 14 at the time).

[11] Unlike the situation with the complainant, however, I.H. managed to take a photo of the part of the conversation that took place after she wrote about her age. In it, an individual alleged to be the defendant attempts to resile from the request.

[12] The charges that resulted from the interviews of the complainant and I.H. are scheduled to be tried before me, sitting without a jury, during the sittings that begin on October 20, 2025.

LEGAL PRINCIPLES

[13] The proposed extrinsic and cross-count similar fact evidence involves allegations of discreditable conduct by the defendant other than the acts allegedly underlying each charge. Such evidence brings with it two threats to the truth-finding trial process. One of them is that the similar fact evidence may distract the trier of fact from properly focusing on the evidence relating specifically to each individual allegation ("reasoning prejudice"). The other is that the trier of fact may convict the defendant on the basis of bad personhood ("moral prejudice"). As such, similar fact evidence is presumptively inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31 and 55. This is true with respect to both extrinsic and cross-count similar fact evidence: R. v. Tsigirlash, 2019 ONCA 650, at para. 25, citing R. v. MacCormack, 2009 ONCA 72, at para. 48.

[14] However, similar fact evidence may be admitted as an exception to the rule against evidence of other discreditable conduct where the Crown can establish on a balance of probabilities that its probative value on an issue in the trial outweighs its potentially prejudicial effect: Handy, at para. 101.

[15] The probative value of similar fact evidence lies in the improbability of coincidence, meaning the improbability that the events described by the witnesses could be explained by coincidence: Handy, at para. 110. In a case involving allegations of sex with prepubescent girls, Spies J. put the probative value of the proposed similar fact evidence into focus by asking herself whether, as a matter of common sense, it was against all probability that, in light of what the Crown could show that the defendant did to the similar fact witnesses on other occasions, it was a mere coincidence that the complainant was not telling the truth when she described what she alleges the defendant did to her on the occasion in question: R. v. Finelli, [2008] O.J. No. 2242 (S.C.J.), at para. 29.

[16] Because similar fact evidence derives its probative value from the improbability of coincidence, such evidence may lose its probative value where one witness has influenced the evidence of another: Handy, at para. 110. This "tainting" of the evidence may be intended or unintended. Where it is intentioned, it is collusion. Where it is unintended, some courts have described it as "unconscious collusion": R. v. Wilkinson, 2017 ONCA 756, at para. 39. With respect, I prefer the term "contamination" where the tainting is unintended, as the term "collusion" implies an agreement, which usually cannot be reached unintentionally: Canadian Oxford Dictionary, 2d ed., sub verbo "collusion".

[17] Regardless of the terminology used, where there is evidence of tainting or even an air of reality to the possibility that the evidence of one similar fact witness has been tainted by another, the Crown is required to disprove tainting on the same standard as it must prove probative value (i.e. on a balance of probabilities) before it may be considered by the trier of fact: Handy, at para. 112; Wilkinson, at paras. 39 and 45.

POSITIONS OF THE PARTIES

[18] On behalf of the Crown, counsel submits that there are significant similarities between the events involving P.N. and those involving I.H. as they relate to the allegations regarding the photo. She points to the similarity in their ages, the proximity in time of the events, the nature of the requests, and the use of Snapchat to make the requests. As the evidence relates to the sexual touching, counsel highlights the sexual nature of the contact and the fact that it was perpetrated upon the same complainant, P.N.

[19] Crown counsel submits that the similar fact evidence is relevant to a number of issues, including proof of the actus reus (whether the alleged acts happened), proof of the mens rea (whether the acts were committed with the required mental state), and identity (whether the acts were committed by the defendant). While counsel concedes that there is a possibility of tainting regarding the extrinsic similar fact evidence, she submits that this should affect the weight to be given to the similar fact evidence, and not its admissibility.

[20] With respect to the effect of tainting, the defendant highlights the fact that P.N. and I.H. are best friends. With respect to the probative value of I.H.'s evidence, he points to dissimilarities in the appearance of the "bit moji's" of the alleged sender in several screenshots captured by I.H. of messages allegedly to her sent by him.

ISSUES

[21] Two main issues arise in this application:

(1) Is the similar fact evidence sufficiently probative to justify its admission?

(2) If so, has the evidence of tainting deprived the similar fact evidence of its probative value?

[22] I will deal with these issues by considering them first with respect to the proposed cross-count similar fact evidence before addressing them in the context of the proposed extrinsic similar fact evidence.

ANALYSIS

Is the similar fact evidence sufficiently probative to justify its admission?

The Cross-count Evidence

[23] In my view, there is far too little similarity between the evidence relating to the pictures and the evidence relating to the sexual touching to justify admitting the former in support of the charges relating to the latter.

[24] The only commonality between the evidence relating to each group of charges is the allegation that they involved the same parties. However, in my view, the nature of the acts and the context in which they occurred are so distinct as to make it impossible to say that the evidence relating to one set of charges supports any inference of identity relating to the other. Indeed, it might be easier to argue that the differences in the evidence support the inference that the defendant was not the perpetrator of the sexual touching. In the case of the sexual touching, there was actual physical contact, for one thing. For another, the areas alleged touched were completely different than the area P.N. was asked to photograph.

[25] With respect, to admit the evidence relating to the photo in support of the allegation of sexual touching would be a classic example of the misuse of similar fact evidence. It would invite the court to reason that, because the defendant was capable of actually sexually touching the complainant, he must have been capable of simply asking for a naked photo of her.

The Extrinsic Similar Fact Evidence

[26] Unlike the cross-count evidence, however, the proposed evidence of I.H. does have many things in common with the allegations of P.N. regarding the picture. These include:

(a) the fact that the complainants were friends who both came to know the defendant at about the same time and in a similar way;

(b) the proximity in age of the two girls;

(c) the use of the same social media platform to communicate with the perpetrator;

(d) the similarities in the way that the perpetrator requested the images;

(e) the area of the body each girl was asked to photograph; and

(f) the proximity in time of the alleged incidents.

[27] These similarities give the evidence of I.H. significant probative value with respect, at least, to the actus reus of the offence.

[28] Of course, there are some dissimilarities. As the defendant points out, the appearance of the account holder sending the requests is different in the screenshots captured by I.H. Perhaps more importantly, the perpetrator does not threaten I.H. in the way P.N. was threatened when she refused at first to send the photos. However, in my view, while these dissimilarities affect the weight to be given the evidence of I.H., they are not enough to weigh against its admissibility.

[29] I turn now to the issue of tainting.

Has the evidence of tainting deprived the similar fact evidence of its probative value?

[30] As mentioned earlier, the Crown concedes the possibility of tainting in this case. However, it submits that the possibility is attenuated by three aspects of the evidence.

[31] First, the Crown relies on the statement by I.H. that she did not send P.N. the screenshots until after P.N. gave her statement to the police in March 2022. However, P.N. contradicts I.H. in this regard. P.N. told the police that I.H. sent her the screenshots years before P.N. gave her statement: Transcript, at p. 52, ll. 19-25. P.N. also told the police that I.H. told her about the photos I.H. was asked to send at the time she was asked to send them: Transcript, at p. 56, l. 5.

[32] Second, the Crown relies on P.N.'s statement to the police in which she denies telling I.H. about the sexual touching. The Crown also relies on I.H.'s statement to the police that she had a conversation about what happened to P.N. about four weeks before I.H. went to the police, when they went to lunch with P.N.'s mother. I believe I am asked to infer from this statement that there was no conversation between the witnesses about the sexual touching before that date. However, once again, contradictory statements were given by the two witnesses. I.H. told the police that P.N. told her about the sexual touching years before the lunch: Transcript, at p. 11, l. 11; p. 17, l. 25.

[33] Finally, the Crown relies on the screenshots taken by I.H. and on P.N.'s statement to the police that the defendant first sought a nude photo from her before moving on to I.H. The Crown submits that the screenshots give strength to I.H.'s proposed similar fact evidence and the fact that they were taken after the defendant obtained a nude photo from P.N. reduce the possibility that I.H.'s allegations were influenced by those of P.N. I agree with this submission.

[34] I have considered the fact that P.N. was the only one to tell the police that she was the first person from whom the defendant sought to obtain a nude photo. I can find nothing in I.H.'s statement to the same effect. However, it does not appear that I.H. was ever asked that question directly by the interviewer and nothing I.H. did say to the police would preclude the possibility that she might support P.N.'s testimony at trial about the order of events. If she testifies otherwise, her evidence will lose significant probative value because of the strong possibility that it tainted the evidence of P.N.

[35] Nonetheless, at this point, based on P.N.'s evidence about the order in which the events occurred, I am persuaded that tainting has not deprived I.H.'s evidence of the significant probative value referred to earlier.

CONCLUSION

[36] For the foregoing reasons, I find the evidence of I.H. to have sufficient probative value to be admissible in support of the allegations of P.N. relating to the nude photo and I am satisfied that the evidence of I.H. has not been tainted by the evidence of P.N. to such a degree that its probative value is exceeded by its potentially prejudicial effect.

[37] However, I find the evidence in support of the charges relating to the nude photo to lack sufficient probative value to be admissible as evidence in support of the charges relating to the sexual touching.

[38] Therefore, the extrinsic similar fact evidence application is allowed and the cross-count similar fact evidence application is dismissed.

M.G. Ellies J.

Released: October 9, 2025