Court File and Parties

Court File No.: 8811/23 Date: 2025-10-28 Ontario Superior Court of Justice

Between: His Majesty the King – and – C.B., Defendant/Respondent

Counsel: H. Mitchell/A. Mucciarelli, for the Crown/Applicant Eric D. McCooeye, for the Defendant/Respondent

Heard: December 11, 2024

Rasaiah J.

Reasons on Similar Fact Application

Introduction

[1] An application brought by the Crown was argued during submissions following the close of the trial evidence. The case was argued, and submissions made on the trial to cover the granting of the application if it was granted, and if it was not. The applicable law and legal principles were set out in the factums of the parties, and I considered same, and will not repeat them all. The parties both agreed that the law was accurately set out by the other essentially. I orally advised that I was dismissing the application with written reasons. These are my written reasons.

Overview

[2] I appreciate that C.B. is charged with several sexual offences in relation to his biological daughter, M.B., his stepdaughter, R.B., and another young person, S.C. The complainant, M.B., was between the ages of 6 and 19 years old at the time of the allegations. M.B. and the complainant R.B. are half-sisters. The complainant, S.C., is an acquaintance/childhood neighbour/friend of M.B. and R.B. and was between the ages of 9 and 13 years old at the time of the allegations. M.B. alleges that they were present for a portion/some of the incidents involving S.C. Some of the allegations involving the three complainants are alleged to have taken place in C.B.'s residence.

[3] The Crown sought to have admitted, the evidence of M.B. and S.C. for the court to consider across all counts on the Indictment. The Crown submits there is very high probative value of same in respect of actus reus of the offences; rebuttal of any allegation of implausibility of facts; motive to fabricate and/or collusion theories; and negate defence of innocent association or accident, if raised. The Crown submits that prejudicial effect does not outweigh probative value. The Crown relied on some of the evidence of M.B. and S.C., and some of the evidence of R.B. for their application.

[4] The Crown highlights the ages and vulnerability of each of the complainants; the position of the accused being as a position of trust; the time frame of the alleged offences; the location/environment of the alleged offences; the presence of others in the home; the circumstances following which the assaults would occur (walks; massages; playing games); the alleged physical acts (the complainants touching of the accused, consistency, and similarity); the nature of games played; the clothing worn by the accused; the manner the accused is alleged to have lowered/removed his lower body clothing; the camera placement; bribing of the complainants; threats; purchases by the accused of gifts that can be characterized as sexual in nature; sexually under toned inappropriate conversations of the accused; and the accused's alleged controlling behaviour. The Crown also highlights that questioning at trial related to a theory of fabrication and motive to lie. The Crown acknowledges that there are some dissimilarities in the evidence but that there are connecting factors to find similar fact evidence of high probative value and prejudice is reduced as the application involves only counts already on the Indictment.

[5] The defence highlights that similar fact evidence is presumptively inadmissible and that the facts must be so strikingly similar that it creates a pattern. The defence acknowledges that rebuttal of collusion can in some cases render similar fact evidence admissible. The defence however has advised that collusion is not an issue and/or was not be part of the defence theory, based on their view, namely that the evidence of the complainants M.B. and S.C. is strikingly dissimilar. The defence highlights that even if there is some probative value to similar fact evidence, the court must consider prejudicial effect. In this case, the defence submits that the probative value of any evidence found to be similar fact evidence is weak, as set out in the accused's factum, paragraph 9. The defence also highlights the danger of using facts that are in general common to many sexual assaults and classifying same as similar fact evidence. Finally, as set out in paragraph 11 of the accused's factum, the defence submits that factors set out by the Crown simply are not similar between counts, the prejudicial effect is extreme, that the evidence of R.B. should also be considered, and if the court finds similar fact evidence, that the court should take care in its use, namely ensuring it is used solely for that purpose unless it can be used (for other proper purposes); even a judge sitting alone must instruct themselves against misuse of evidence from one count to another.

Legal Principles

[6] Summarily stated, determination is a modern, principled, and purposive approach to the question of admissibility that is not dependent on fixed categories and rigid rules with respect to evidence that is discreditable and attributable to the accused (linking the accused to the acts). Similar fact evidence is presumptively inadmissible. It may be admissible where the Crown establishes on a balance of probabilities that (a) it is legitimately probative of an issue in the case beyond showing just that the accused is a bad person with general criminal propensity, and (b) its probative value outweighs its prejudicial effect. The similar fact evidence to be admissible does not need to be conclusive or determinative of guilt. See Handy at paras. 55, 56, 94-96; and R. v. Tsigirlash, 2019 ONCA 650 at para. 26 ("Tsigirlash").

[7] The utility of similar fact evidence lies in its ability to advance or refute a particular issue at trial (i.e. its relevance). "An item of evidence is relevant if it renders the fact that is seeks to establish slightly more or less probable than that fact would be without the evidence, through the application of everyday experience and common sense". See R. v. MacDonald, 2017 ONCA 568 at para. 66 ("MacDonald").

[8] I appreciate this is a judge-alone trial and as such, the risk of prejudice is reduced because it is assumed that a trained jurist is better equipped to refrain from prejudicial misuse of the evidence. This does not mean however that similar fact evidence ought to be permitted.

[9] I appreciate that the incidents alleged involve predatory sexual behaviour in the context of female children. Notable, on age, is that M.B.'s allegations span a significant age progression, on this point made by the Crown.

[10] C.B.'s relationship with S.C. presented as different, and S.C. herself did not testify viewing C.B. as a father figure to her. She viewed herself as a guest at the residence. There was no evidence of a special bond between S.C. and C.B.

[11] Collusion is not an issue confirmed by defence (or even supported by the versions of events of the witnesses involved) as a basis for the application.

[12] Accident is not an issue, as all acts are denied and there is no evidence of accidental touching on the trial record.

[13] While appreciating all allegations are denied, the issue of implausibility (or opportunity), namely not having contact with S.C. and/or M.B. when others were in the home and/or when they were together in the basement, was not an issue raised by defence; just that the acts complained of simply did not occur. Again, S.C. has placed M.B. as a witness for the issue of plausibility of the events occurring in the locations described. It is notable on this application, that this is not a case of the acts being alleged to have been perpetrated against S.C. without witnesses thus calling for the "transactions" of these acts to be looked at individually. S.C. places M.B. as at the home with respect to her allegations and vice versa. Each provides different memories of what transpired. In my view, the differences are not minor. The detailed descriptions are set out in my trial decision. Regarding the game incident, internally, the general fact of playing a game or requesting massages of M.B. and/or S.C. is not enough. The game on the trial record was presented as different games (name of/how they were played, what was done, even the "sexual connotation"/circumstances" are very different, one involving touching, one not, and different body parts involved) which I have written more on in the trial decision. The Crown suggests that time and age explain the dissimilarities or trauma for the inconsistencies on the event itself. Again, the modus operandi with R.B. and M.B. did not involve games and/or walks and thus there is no persuasive connection. It is notable that the circumstances underlying the offences involving M.B. alone, or M.B. and R.B. together do not involve games of any kind or walks. They were alleged to be direct requests to perform specific acts.

[14] Motive to fabricate and lie was essentially only suggested on the part of M.B. by defence in this case. While there was some focus on a time S.C. was not permitted to come to the B.-residence in the evidence, those issues by C.B.'s own evidence were all resolved and there were no lingering issues, not contradicted by S.C. The utility thus is not there in respect of offences concerning S.C.

[15] On the massage incident, M.B.'s allegations on the first massage were directly related to C.B.'s testicles, as a much younger child and did not arise from a request to massage his leg during which he then took M.B.'s hand as alleged with S.C. Additionally, massages on the trial record were commonly asked for and given by many members of the household that were not sexual in nature. Not all incidents involving M.B. alone, or the incidents involving M.B. and R.B. together were related to massage requests made by C.B. at all. His alleged acts with them were different.

[16] While most incidents underlying the offences are alleged to have occurred in the B.-family residence, this is not enough.

[17] Clothing worn by the accused in this case is not probative on the trial record to linking him to the acts complained of. The qualitative strength is not there. The evidence supports his everyday clothing was the same and it was not uncommon for him to be in his boxers in the house, because he was warm.

[18] The overall physical acts alleged involving M.B. differ significantly from massaging C.B.'s testicles to anal intercourse to vaginal intercourse, varying degrees. The same can be said with respect to the incidents involving R.B.

[19] The purchase of a vibrator as a gift for M.B. testified to by M.B. and S.C. when M.B. was a teenager, the fact that C.B. did this, does not assist in determining if the acts occurred as alleged by S.C. There is no trial evidence of C.B. buying a gift of a sexual nature for S.C.

[20] The alleged sexually under-toned conversations in the B.-family residence on the record do not assist in determining whether the acts occurred. There is no evidence of sexual talk during the offences. The game incident evidence in fact when it comes to the touching, was prompted by M.B. and S.C. There is no evidence that C.B. was specifically guiding either on the dares to make.

[21] The purchase of a "grow a boyfriend" doll as a birthday present for R.B. as a "joke" gift that C.B. videorecorded and gave to her in the presence of others; the fact that he did this, does not assist in determining if the acts occurred. There is no trial evidence of C.B. buying a gift of a sexual nature for S.C. This purchase also occurred when R.B. was 15.

[22] As for walks, walks were a common occurrence as a family activity. Only one allegation related to an occurrence after a walk. There are no real patterns of "going on walks" as being a preceding activity in the circumstances leading to any of the other alleged offences.

[23] Having home cameras and/or the camera placement on the trial record is not probative to determining if the acts occurred, or even arise to related "misconduct" for that matter. On the whole of the credible evidence, they were there for some time and cameras were located in other areas of the home, not just the basement. They are not related to any offences outside of the one incident accounted by S.C. M.B. does not allege that they were recorded by C.B. under any of the allegations involving themself and/or when with R.B. with those cameras. M.B. thought the cameras were to listen to them, to what they were saying (because they could not see into her room due to the blanket walls). M.B. never looked to see what any camera was recording, if it was, and thought the one in the basement was akin to a baby monitor. The camera evidence coincided more so with and is relevant to the described controlling behaviour of C.B. towards family members, monitoring them, a family dynamic, not a modus operandi for offending.

[24] The alleged history of "bribing" as characterized by the Crown does not assist in determining if the acts occurred. First, while M.B. did state that they were promised things not to tell in the past, like toys, when they were younger, M.B. stated they were only ever delivered on occasionally if M.B. was doing well in school and keeping their mouth shut. These promises had transitioned to physical violence for compliance or threats by the time S.C. came into the picture. As a distinctive feature, there is no evidence that R.B. was ever "bribed" or compensated to maintain silence. Additionally, and more importantly, in the end, are the differences in the accounts between S.C. and M.B. with respect to the "transaction" of the acts complained of by S.C. when considering the subject matter of those charges. With the game incident, there was no evidence that the gift card was being offered in exchange for keeping the playing of the game a secret. The fact that C.B. offered and gave S.C. a sim card and promised toys to M.B. when she was young does not in the grand scheme of the analysis assist when the accounts of what happened internally are so different.

[25] Overall, the facts submitted as being "similar facts" in did not meet the high probative value suggested and in this specific case on these specific facts, each offence must be considered separately with the evidence that applies to each.

[26] For these reasons, the application is dismissed.

Rasaiah J.

Released: October 28, 2025