CITATION: R. v. Shapwaykeesic et al, 2026 ONSC 595

COURT FILE NO.: CR-24-0255-00

DATE: 2026-01-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

L. Taylor and S. Ernst, for the Crown

• and -

JUSTIN SHAPWAYKEESIC and VINCENT SHAPWAYKEESIC

R. Habjan, for the Accused Justin Shapwaykeesic

R. Garret, for the Accused Vincent Shapwaykeesic

Accused

HEARD: November 26, 2025, at Thunder Bay, Ontario

Regional Senior Justice W. D. Newton

WARNING

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons on Similar Fact Application

Overview

1Justin Shapwaykeesic and Vincent Shapwaykeesic are jointly charged with sexually assaulting ACS on or about April 11, 2024.

2Vincent Shapwaykeesic is also charged with breaching two probation orders prohibiting contact with ACS.

3Their judge alone trial is scheduled to begin before me on May 19, 2026.

4The Crown brings this application for leave to admit extrinsic similar fact evidence: a conviction of Justin Shapwaykeesic for sexual assault on October 12, 2021 and a conviction of Vincent Shapwaykeesic for sexual assault on May 18, 2022.

The Facts

5The Crown anticipates that ACS, EN, and CN will give the following testimony at trial.

6ACS attended the local OPP detachment on April 11, 2024. She reported that she was drinking alcohol and smoking cannabis at a house party the night before and lost consciousness. The next day, she believed that she had been sexually assaulted. EN advised her that she had been sexually assaulted by Vincent Shapwaykeesic.

7EN had put ACS to sleep on the previous afternoon in an upstairs bedroom. He closed the door so no-one would disturb her. When he left the home, Vincent Shapwaykeesic was in the home.

8When he returned and went upstairs to check on ACS, he saw Vincent Shapwaykeesic sexually assaulting ACS with his penis from behind while ACS was on her side. He said that Vincent Shapwaykeesic did not have any pants on. Vincent told him to leave the room and then shut the door.

9CN was also present at the house and saw Vincent Shapwaykeesic touching the area of ACS’ vagina over her clothing while she was unconscious in an upstairs bedroom.

10A sexual assault evidence kit was completed at the hospital. The nurse observed injuries consistent with a vaginal penetration sexual assault. Swabs for DNA testing were obtained and matched the DNA profile of Justin Shapwaykeesic, a convicted offender on the National DNA databank.

The Similar Fact Evidence

11Vincent Shapwaykeesic pleaded guilty to sexually assaulting ACS on July 2, 2021. The admitted facts were that a witness saw Vincent Shapwaykeesic with his hand down the pants of ACS while she was intoxicated and passed out.

12Justin Shapwaykeesic pleaded guilty to sexually assaulting BMF on May 29, 2018. The admitted facts were that Justin Shapwaykeesic was performing cunnilingus on BMF while she was unconscious due to intoxication.

Positions of the Parties

Position of the Crown

13The Crown submits the following based on R. v. Handy.¹

[14] Bad character, disposition, and general propensity, other discreditable conduct evidence including similar fact is presumptively inadmissible. It will, however, exceptionally earn admission where the prosecution establishes, on a balance of probabilities, that:

• It is legitimately probative of an issue in the case (i.e., the evidence shows more than just the accused is a bad person with general criminal propensity); and

• Its probative value outweighs its prejudicial effect.

[15] Typically, the probative value of the similar fact evidence flows from what is referred to as the “double inferences”:

(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.

16This evidence gains admission because the force of similar circumstances defies coincidence or another innocent explanation. The inferences sought must “accord with common sense, intuitive notions of probability and the unlikelihood of coincidence.”

[17] In assessing admissibility, trial judges are to consider the relevance and probative value of the evidence, evaluate the potential for “moral” or “reasoning” prejudice, and then determine whether the probative value outweighs the potentially prejudicial effects having regard to all the circumstances. The purpose for which the evidence is being proffered is central to this analysis.

18The Court in Handy outlined several steps to determine the probative value of the proposed evidence:

a. Identification of the issue that the similar fact evidence/other discreditable conduct is probative toward;

b. Identification of the specific factors that connect the similar fact evidence to the facts alleged in the charge(s) and the degree of similarity required to make the proposed evidence admissible;

c. Strength of the evidence; and

d. The possibility of collusion.

19The Crown submits that the similar facts have a direct bearing on the actus reus and mens rea of the offences, that is the identity and intention of the alleged offenders and is, therefore, highly probative.

20The Crown notes that the prior convictions are:

a. Proximate in time to the alleged offences;

b. Similar, very, in detail to the alleged offences;

c. Distinctive in that the prior convictions and the alleged offences involve sexual assaults on unconscious women.

21The Crown notes that there are no intervening events to undermine the probative value of the proposed evidence.

22As this is a judge alone trial, the Crown argues that the reasoning prejudice is reduced and that, therefore, is outweighed by the high probative value of the evidence.

Positions of the Accused

23Counsel for both accused do not disagree with the Crown’s summary of the applicable law, but challenge the Crown’s conclusion with the application of the law to the facts of this case.

24They argue that the shared vulnerability of the victims (intoxicated and unconscious) is of insufficient probative value and that these are features of the circumstances and not a distinctive dus operandi of both accused. They argue that a generalized propensity for opportunistic sexual assault is not of sufficient probative value to warrant admission, and rely upon R. v. L.B.²

25They argue that the sexual acts are “critically dissimilar” – cunnilingus v. anal penetration, or reaching into pants v. anal penetration, and therefore, there is no nexus between the actus reus of the offences.

26They argue that the offences are separated by time – Justin Shapwaykeesic 2018 v. 2024, and Vincent Shapwaykeesic 2021 v. 2024.

27Even though this is a judge alone trial, counsel for both accused submit that the possibility of reasoning prejudice still exists, and that judges are not immune to the trap of propensity reasoning. They submit that the probative value must be so high to displace this heavy prejudice.

28Finally, counsel submit the Crown has strong circumstantial evidence in the form of a DNA matched swab and need not resort of this highly prejudicial evidence.

Analysis and Disposition

29In January 2026, the Supreme Court of Canada released R. v. Hussein³ which re-iterated the principles from Handy and stressed that a strict test applies when seeking to introduce bad character evidence:

38Despite the inherent prejudice that accompanies bad character evidence, the exclusionary rule is not absolute. In exceptional circumstances, the Crown may lead evidence of bad character to support a primary inference on an issue related to the guilt or innocence of the accused (Handy, at paras. 62-68). When the Crown seeks to introduce this evidence, the trial judge must be satisfied on a balance of probabilities that “in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception” (para. 55). The test for the admission of bad character evidence is “strict” given that its probative value must be “so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury” (R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, at pp. 729 and 732). Accordingly, the evidence must go beyond showing the general disposition of the accused (Handy, at para. 71).

39Where the presumption of inadmissibility is successfully rebutted in the manner described above, the Crown is permitted to use bad character evidence to support a primary inference — that the accused likely did or did not act or think in a certain manner. [Emphasis added.]

30With respect to Vincent Shapwaykeesic, the particular propensities that the Crown submits are probative to identity, are the particular propensity to commit a sexual assault on women who are unconscious, and the particular propensity to commit a sexual assault on ACS when she was unconscious. The conviction arose from an assault less than three years prior to the offence before the Court and not so remote as to render the prior conviction not probative. As counsel for the accused notes, the sex acts were different, but the acts were sexual assaults. In my opinion, this evidence “goes beyond a mere general disposition of the accused”⁴ and “supports the inference that the Crown seeks to make”⁵ – that Vincent Shapwaykeesic sexually assaulted ACS while she was unconscious. I acknowledge the strong potential for “reasoning prejudice” but, in this case, I am satisfied, on a balance of probabilities, that the probative value of this evidence outweighs its prejudicial effect.

31I acknowledge that there is other evidence that might support a conviction but that does not preclude the Crown from relying on the similar fact evidence if required in the prosecution of this case.

32With respect to Justin Shapwaykeesic, the particular propensity that the Crown submits is probative to identity is the particular propensity to commit a sexual assault on women who are unconscious. The conviction is less proximate in time, six years prior to the offence before the court, but not so remote as to not be probative. As counsel for the accused notes, the sex acts were different, but the acts were sexual assaults. In my opinion, this evidence “goes beyond a mere general disposition of the accused”⁶ and “supports the inference that the Crown seeks to make”⁷ – that Justin Shapwaykeesic sexually assaulted ACS while she was unconscious. I acknowledge the strong potential for “reasoning prejudice” but, in this case, I am satisfied, on a balance of probabilities, that the probative value of this evidence outweighs its prejudicial effect.

33I acknowledge that there is other evidence that might support a conviction, but that does not preclude the Crown from relying on the similar fact evidence if required in the prosecution of this case.

34The Crown’s application is allowed.

______________________________________ The Hon. Regional Senior Justice W. D. Newton

Released: January 30, 2026

CITATION: R v. Shapwaykeesic et al., 2026 ONSC 595

Footnotes

1. 12002 SCC 56 (“Handy”).
2. 2(1997) 1997 3187 (ON CA), 35 O.R. (3d) 35 (C.A.).
3. 32026 SCC 2 (“Hussein”).
4. 4R. v. Chizanga, 2024 ONCA 545, at para.19 (“Chizanga”).
5. 5R. v. S.S., 2025 ONCA 865, at para. 20, citing R. v. Z.W.C., 2021 ONCA 116, at para. 98 (“Z.W.C.”).
6. 6Chizanga, at para.19.
7. 7S.S., at para. 20, citing Z.W.C., at para. 98.