T.B., R. c.

  • Document:
  • Date: 2018

Her Majesty the Queen v. T.B.

[Indexed as: R. v. B. (T.)]

95 O.R. (3d) 21

Court of Appeal for Ontario,

Moldaver, Borins and Blair JJ.A.

February 25, 2009

 

 

Criminal law — Evidence — Similar fact evidence (past discreditable conduct) — Accused charged with multiple counts of sexual offences against two young girls — Trial judge erring in rejecting Crown’s application to use evidence on all counts as similar fact evidence on each of other counts

— Trial judge mischaracterizing Crown’s purpose in seeking to admit similar fact evidence in stating that it was to attack accused’s credibility — Trial judge erring in excluding evidence on grounds of reasoning prejudice and moral prejudice in judge alone and evidence in question was already before court — Evidence properly admissible as similar fact evidence to refute coincidence and provide confirmation of each victim’s evidence — Crown appeal from acquittal allowed and new trial ordered.

The accused was charged with 11 sexual offences involving one of his step-nieces and three involving a second step-niece. The trial was before a judge alone. The trial judge rejected the Crown’s application to use evidence on all counts as similar fact evidence on each of the other counts. The accused was acquitted on all counts. The Crown appealed the acquittal on nine of those counts. [page22 ]

 

Held, the appeal should be allowed.

The trial judge erred in finding that the Crown sought admission of the evidence to attack the credibility of the accused. The predominant purpose was to show a pattern of similar behaviour that confirmed each complainant’s testimony. The trial judge also erred in excluding the evidence on the ground of prejudice to the accused. In a judge alone trial, neither reasoning prejudice (improper weight being assigned to the similar fact evidence or confusion from too many incidents) nor moral prejudice (improper inferences from bad “personhood” evidence) were significant risks. The trial judge had already heard the evidence as part of the Crown’s case. His knowledge of evidence casting the accused in a poor light was not eliminated by its exclusion as similar fact evidence. Had the trial judge admitted the similar fact evidence, he would have had the very thing that he felt was missing to support a conviction on all counts — corroboration. The evidence of the accused’s misconduct was so relevant and cogent that its probative value in the search for truth outweighed any potential for misuse.

 

Cases referred to

 

R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908,

[2002] S.C.J. No. 57, 2002 SCC 56, 213 D.L.R. (4th) 385,

290 N.R. 1, J.E. 2002-1226, 160 O.A.C. 201, 164 C.C.C. (3d)

481, 1 C.R. (6th) 203, 53 W.C.B. (2d) 286, consd

Other cases referred to

R. v. B. (R.) (2005), 77 O.R. (3d) 171, [2005] O.J. No. 3575,

202 O.A.C. 115, 66 W.C.B. (2d) 462 (C.A.); R. v. Cresswell,

[2009] O.J. No. 363, 2009 ONCA 95; R. v. MacCormack,

[2009] O.J. No. 302, 2009 ONCA 72, 245 O.A.C. 271; R. v.

T. (L.), [2005] O.J. No. 139, 196 O.A.C. 394, 63 W.C.B. (2d)

242 (C.A.); R. v. Thomas (2004), 72 O.R. (3d) 401, [2004]

O.J. No. 4158, 191 O.A.C. 144, 190 C.C.C. (3d) 31, 26 C.R.

(6th) 274, 63 W.C.B. (2d) 404 (C.A.); R. v. W. (D.),

[1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277,

J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th)

302, 12 W.C.B. (2d) 551; R. v. W. (L.), [2004] O.J. No. 4163,

191 O.A.C. 22, 63 W.C.B. (2d) 405 (C.A.)

 

Statutes referred to

 

Criminal Code, R.S.C. 1985, c. C-46, s. 274 [as am.] Authorities referred to

Rosenberg, J.A., “Similar Fact Evidence” in Bryant, Alan W., Marie Henein and Janet A. Leiper, eds. Special Lectures 2003: The Law of Evidence (Toronto: Irwin Law, 2004)

 

APPEAL by Crown from the acquittal entered by McCartney J. of the Superior Court of Justice dated April 10, 2007.

 

Christopher Webb, for appellant.

 

Francis J. Thatcher and Simon N. Owen, for respondent.

 

The judgment of the court was delivered by

BORINS J.A.: —

 

I

 

[1]  The Crown appeals against the respondent’s acquittal on nine charges of sexual offences that allegedly occurred between [page23 ]1981 and 1987. He was acquitted of two additional charges, which the Crown does not appeal. The victims are two sisters, R. and M., who are the respondent’s step-nieces. The Crown submits that the trial judge committed two errors — he rejected the Crown’s application to use evidence on all counts as similar fact evidence on each of the other counts and he held that there was no corroboration of the victims’ evidence.

 

II

 

[2]  It was alleged that the respondent had forced sexual intercourse with R. on one occasion when she was 14 or 15 years old. The respondent was acquitted of two additional offences alleged to have been committed against R., which the Crown does not appeal. These acquittals on counts ten and 11 came about as a result of amendments to the Criminal Code, R.S.C. 1985, c. C- 46. It was also alleged that the appellant committed eight sexual offences against M. when she was between 13 and 17 years old. The eight charges arose out of four incidents, in each of which M. was riding with the respondent in his truck when he drove to a remote area and sexually assaulted her.

 

[3]  The respondent testified and denied that he sexually assaulted R. and M.

 

[4]  The first incident involving M. gave rise to counts one and two, and was alleged to have occurred when M. was between the ages of 13 and 15 years old. M. testified that while she was in the respondent’s truck, he drove north on the highway away from their reserve and turned onto a side road and parked. The respondent kissed M., felt her breasts and rubbed himself on her. M. was scared and did not know what to do; she got out of the truck and lit a cigarette. The respondent got out and threw her cigarette on the ground. He put M. up against the truck and rubbed her breasts and vagina. She told him that she did not “want to do anything”. He then undid her jeans, put his hand inside her underwear and rubbed the outside of her vagina. She told him “not to do that”, pushed him away and told him to take her home.

 

[5]  The second incident involving M. gave rise to counts three and four, and was alleged to have occurred when M. was 15 or 16 years old. M. testified that she was riding in the respondent’s truck when he drove to a bush road outside their reserve. The respondent kissed her and “[felt her] up”. She told him that it was not right and tried to get out of the truck. He told her that if she did not “do anything with him”, she would have to walk home and that there were bears in the area. M. was afraid to walk home. The respondent continued to feel her breasts and [page24 ]vagina. He then removed one of her shoes and one of her pant legs, and had vaginal intercourse with her.

 

[6]  The third incident involving M. gave rise to counts five and six, and was alleged to have occurred during the same summer in which the second incident was alleged to have occurred. M. testified that she was in the respondent’s truck when he drove away from their reserve and stopped on a bush road. The respondent told her that he wanted her to give him a “blow-job”. M. refused. The respondent undid his pants, pulled out his penis and tried to make her touch his penis. She balled her hand in a fist. He rubbed her fist on his penis and pubic hair. He opened her hand and rubbed it up and down on his penis, and then pushed her head toward his penis. M. said “no”, kept her mouth closed, started to gag and then sat back up. She told him that she did not “want to put that in [her] mouth”. He told her that she would have to do something, or else she would have to walk home, after which he had vaginal intercourse with her.

 

[7]  The fourth incident involving M. gave rise to counts seven and eight, and was alleged to have occurred when M. was 16 or 17 years old. M. testified that she was riding with the respondent in his truck when he drove north of their reserve and stopped on a side road. He said that he wanted her to give him a “blow-job”; she said that she did not want to, and his response was “you gotta’ do something . . . it’s a long way back”. M. wanted to jump out of the truck, but she was too scared of being in the bush. She told the respondent that she was menstruating and that she did not want to do anything with him. He pulled his penis out of his jeans, held her hand around it and rubbed her hand up and down on his penis until he ejaculated.

 

[8]  The first incident involving R. gave rise to count nine and was alleged to have occurred when R. was 14 or 15 years old. She testified that she was walking down a trail towards her home when the respondent called out to her from a shack and invited her to listen to music on cassette tapes. She agreed and sat down on a chair in the shack. The respondent grabbed her from behind and put her onto the bed. She struggled and tried to fight back, ripping his shirt. The respondent shoved her down on the bed hard and hit her face or chin. He then pulled off one of her pant legs, leaving the other hooked around her ankle, and had vaginal intercourse with her.

 

[9]  The second incident involving R. gave rise to count 11 and was alleged to have occurred when R. was between 14 and 18 years old. She testified that the respondent asked her to go for a ride in his truck, drove to a logging road and stopped the truck. [page25 ]He pulled his erect penis out of his pants, “made it go in circles with no hands” and told her to look at it.

 

[10]  The third incident involving R. gave rise to count ten and was alleged to have occurred when R. was between 14 and 18 years old. She testified that the respondent put his penis into her anus without her consent while they were parked in his truck in a secluded area on a logging road.

 

[11]  M. testified that she continued to ride in the respondent’s truck because she sought acceptance from her step- father’s family and because the sexual assaults did not happen every time she rode in the respondent’s truck. R. testified that she continued to ride in the respondent’s truck because she wanted to be liked and accepted by her step- father’s family and because she was “optimistic that maybe this time it would be nice”.

 

[12]  The Crown invited the trial judge to apply the evidence adduced on all counts, including counts ten and 11, in reaching a conclusion on each individual count. In refusing to do so, the trial judge stated, at paras. 2-4:

When character evidence is called, which shows only that the accused is the type of person to have committed a crime, this is inadmissible. The rule that allows such evidence to be admitted in certain circumstances, for other purposes, is called [the] similar fact evidence rule and was set out in the case of [R. v. Handy, [2002] 2 S.C.R. 908] in the Supreme Court of Canada, at [para.] 55 as follows:

Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge 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.

Consequently, the first thing to determine in assessing admissibility of similar fact evidence is the purpose for which it is being admitted. As was set out in the Handy case, at [paras.] 115 and 116:

The Crown says the issue generally is “the credibility of the complainant” and more specifically “that the accused has a strong disposition to do the very act alleged in the charges against him”, but this requires some refinement.

Care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown’s case (Sopinka, Lederman and Bryant . . . at para. 11.26). Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence.

Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant.

Identification of credibility as the “issue in question” may, unless circumscribed, risk the admission of evidence of nothing more than a general disposition (“bad personhood”).

Now I can only assume from the Crown’s argument that its purpose in wanting to admit the similar fact evidence is to attack the credibility of the accused, who has flatly denied any improper involvement with the complainants. Such [page26] a lack of specificity is surely what Handy speaks out against. In this case, credibility is not just one of the issues, it is the issue. So for this reason alone, the similar fact evidence proposed should not be admitted.

 

[13]  The trial judge referred to the “formula” in Handy and concluded, at paras. 6-10:

Now regarding the evidence of [R.] being used in the counts relating to [M.], the evidence relating to count nine is very weak. It does not stand up in the face of the defence evidence, as to the use of the building, where the alleged rape was alleged to have taken place and as to the activity that was going on there at the time of [G.B.]’s funeral. This then weakens the evidence of the other similar evidence related by [R.], i.e., anal intercourse and gross indecency.

Furthermore, the alleged acts take place over a lengthy period of time and were not similar in detail to the allegations relating to [M.]

 

Now regarding [M.]’s evidence being used as similar fact evidence on count nine, which relates to [R.], this also has a very weak probative value. [M.] is quite clear in all of her evidence that all of the sexual assaults took place in the accused’s red G.M.C. truck. The evidence however, is quite clear that the accused did not own nor drive a red G.M.C. truck until February of 1985, well after the times alleged in counts one and two.

So again, this not only leaves count one and two in doubt, but weakens the allegations of [M.] with respect to the similar fact evidence asked to be admitted. Further, the events are not proximate in time, spanning a seven-year period and were not similar in detail to the acts alleged by [R.]

Finally, for the same reasons as set out above, the probative value of [M.]’s allegations are sufficiently weak as to be inadmissible as similar fact evidence to support each other.

When one compares the probative value of the evidence, set out above, to the possible prejudice to the accused, in other words, that prejudice being that the accused runs the risk of being convicted because of his bad character, rather than because of proof that he committed the offences, the application to admit similar fact evidence by the Crown must fail.

 

[14]  The trial judge reviewed the evidence of the complainants with respect to the commission of the offences. R. testified that she was sexually assaulted on a bed in a shack behind her grandfather’s house that was commonly referred to by means of a distinctive name. The respondent testified that there was no furniture in that particular shack. M.’s evidence was that she was sexually assaulted in the respondent’s red truck. The respondent testified that he did not own a red truck during the period when the first incident was alleged to have occurred. The trial judge then made reference to the three-part rule in R. v. W. (D.), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 and applied it in respect of the charge involving R., at para. 15:

Applying this rule and considering the evidence presented by the defence, I have no reason not to believe the accused and so I find him not guilty on this count. [page27 ]

 

[15]  After reviewing the evidence concerning counts five to eight, alleging sexual assaults to M., the trial judge stated, at paras. 23 and 24:

Now these counts arose out of events around three incidents, each allegedly similar in nature, in which the complainant, [M.], says that she got into the accused’s red truck and then he drove to a bush road near [their community] where she was assaulted. The accused totally denies these allegations.

In a situation such as this, where there is a straight accusation on one side and a denial on the other, and no evidence to support either side and even if one were inclined to disbelieve the accused, on the basis of the Crown and W.D., he would have to be acquitted, since proof beyond a reasonable doubt requires more than this to convict.

(Emphasis added)

 

[16]  Next, the trial judge considered counts one and two, alleging the sexual assault of M., in paras. 16 to 19. Like the other assaults to M., she testified that they occurred when the respondent took her for a ride in his red truck, drove to a remote area and sexually assaulted her. The respondent testified that he owned a blue truck at this time. The trial judge concluded, at para. 19:

So once again, based on the evidence of the accused, supported by the evidence noted above and applying the rule in the Crown and W.D., I find the Crown has not proved guilt beyond a reasonable doubt and the accused must be acquitted on counts one and two.

 

III

 

[17]  The Crown relies on three grounds of appeal, only two of which need be considered. The Crown argues that the trial judge erred:

(1) in finding that proof beyond a reasonable doubt of sexual offences requires corroboration of the complainant’s evidence; and

(2)in dismissing the Crown’s application to permit evidence regarding each count to be used as similar fact evidence regarding all other counts. In particular, the Crown submitted:

(a)  in finding that the Crown sought admission of the evidence to “attack the credibility of the accused” and that “for this reason alone” the application should be dismissed, the trial judge misapprehended both the Crown’s position and the legitimate use that could be made of the evidence; and

(b)  the trial judge erred in finding that the application “must fail” because the probative value of the similar [page28 ]fact evidence was outweighed by the risk of moral prejudice in this non-jury trial.

 

IV

 

[18]  The Crown submits that in requiring corroboration of M.’ s testimony before he could convict, the trial judge erred in law. The impugned passage in the trial judge’s reasons is set out in para. 15. It would appear that in requiring “evidence to support” the complainant’s testimony, the trial judge concluded that he was legally required to acquit the respondent because of lack of corroboration of the complainant’s evidence. Section 274 of the Criminal Code, which came into force more than 20 years ago, provides that where an accused is charged with sexual assault, no corroboration of the complainant’s testimony is required for a conviction. Section 274 has retrospective application to counts three, four and seven.

 

[19]  It is not entirely clear what the trial judge meant. If what he meant was that there can never be a conviction absent confirmation of the complainant’s testimony in a case of sexual assault where the only witnesses are the complainant and the

accused, he was wrong. Given my view of the other ground of appeal, it is unnecessary to decide this ground.

 

V

 

[20]  I will now deal with the second ground of appeal involving the trial judge’s rejection of the similar fact evidence.

 

[21]  The trial judge said that the Crown’s purpose in seeking to admit the similar fact evidence was to attack the respondent’s credibility. This was a misapprehension of the Crown’s position. In argument before the trial judge, the Crown referred to the need to establish “a specific line of permissible reasoning”, as well as to this court’s decision in R. v. T. (L.), [2005] O.J. No. 139, 196 O.A.C. 394 (C.A.), concerning the use of similar fact evidence in cases of sexual offences against young people. The Crown’s position, therefore, was that the central issue on which the similar fact evidence bore was the actus reus of the offences and whether the respondent’s blanket denial of the commission of all 11 offences on which he was tried was credible. The Crown submitted at trial, and in this court, that the evidence ought to have been admitted because the compelling degree of similarity among the acts overcame the objective improbability of coincidence. In this respect, the Crown urged that the probative value of the evidence outweighed any prejudicial effect. [page29 ]

 

[22]  In my view, the trial judge misapprehended the Crown’s purpose in seeking to admit the similar fact evidence. Its purpose was not merely to attack the respondent’s credibility. The predominant purpose was to show a pattern of similar behaviour that confirmed each complainant’s testimony. Put simply, in the absence of collusion or some other form of tainting, none of which was found in this case, given the similarities in the evidence of R. and M. regarding the respondent’s conduct, it was unlikely that the conduct was the result of coincidence.

 

[23]  The Crown’s position regarding the permissible use of similar fact evidence to support a complainant’s allegations is consistent with decisions of this court. For example, in R. v. Thomas (2004), 72 O.R. (3d) 401, [2004] O.J. No. 4158 (C.A.), Rosenberg J.A., at para. 43, observed that the trial judge “did identify the permitted use of the evidence. He suggested that the jury might find that there was a pattern of similar behaviour that confirmed each complainant’s testimony that the offences took place. This was sufficient.” At para. 54, Rosenberg J.A. provided the following guidance “on the proper use of the evidence”:

If the jury finds this distinctive pattern, they might find it defies coincidence that students were lying or mistaken about what happened to them absent collusion or some other explanation such as tainting through the police investigation. The evidence accepted by the jury might therefore assist the jury in determining whether any of the complainants was credible and whether the acts they alleged really occurred . . . . They can use the evidence of one or more complainants in assessing the truthfulness of the other complainants only if there is this distinctive pattern of conduct that suggests that they were describing similar events.

(Footnotes omitted)

 

[24] At paras. 10-11 of R. v. B. (R.) (2005), 77 O.R. (3d)

171, [2005] O.J. No. 3575 (C.A.), Laskin J.A. wrote:

In Handy, . . . Binnie J. cautioned that “[I]dentification of credibility as the ‘issue in question’ may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (‘bad personhood’).”

I do not think that was a risk here. The trial judge’s ruling showed that he admitted the similar fact evidence not to show a general propensity to engage in sexual misconduct but to show the appellant’s specific propensity to engage in sexual misconduct with boys in his care who came to him in a vulnerable condition.

. . . . .

The question to be decided was whether the sexual assaults

occurred. The similar fact evidence was probative of the actus reus of the offences, which in turn depended on the credibility of the complainants’ evidence about the assaults, See R. v. T. (C.) (2005), 74 O.R. (3d) 100, . . . at para. 56. [page30 ]

 

[25]  Therefore, in finding that the purpose of the Crown’s application to admit the similar fact evidence was “to attack the credibility of the accused” and that “for this reason alone” the application should be dismissed, the trial judge misapprehended both the Crown’s purpose and the legitimate use that could be made of the evidence. It also led him to dismiss the application on the erroneous basis that if admitted the evidence would impermissibly “attack the credibility of the accused”.

 

VI

 

[26]  As explained in Handy, prejudice in the similar fact context involves two distinct concepts — “reasoning prejudice” and “moral prejudice”. One of the reasons the trial judge excluded the evidence was on the ground of moral prejudice. Reasoning prejudice includes the danger that the jury might be confused by the multiplicity of incidents and/or might put more weight than is logically justified on the similar fact evidence, and also raises concerns regarding undue consumption of time involved in receiving evidence of allegations unrelated to the charges against the accused. Moral prejudice concerns the risk that the evidence might lead to a conviction on nothing more than “bad personhood”. In other words, the trier of fact may find the accused guilty not because of the probative value of the evidence regarding the issue at trial, but rather because the evidence establishes that the accused is a bad person deserving of punishment. Reasoning prejudice and moral prejudice raise legitimate concerns in a jury trial, but less so in a non-jury trial, as this was. Nevertheless, the trial judge was concerned about moral prejudice.

 

[27]  As the proposed similar fact evidence in this case was related to all the counts in the indictment and the evidence was already before the court, and because this was a non-jury trial, reasoning prejudice was not a real issue. Unlike cases such as Handy, this was not a case where the proposed similar fact evidence was extrinsic to the charges before the court and required extra witnesses to present it. The only additional time needed as a result of the similar fact evidence was the time required to argue the motion to admit it. As trial judges are presumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could be excluded in a non-jury trial based on the trial judge’s determination that the evidence would confuse him or induce him to put more weight on it than is logically justified. [page31 ]

 

[28]  In his lecture entitled “Similar Fact Evidence” in Special Lectures 2003: The Law of Evidence (Toronto: Irwin Law, 2004), Rosenberg J.A. wrote, at p. 414:

The similar fact rule is very much driven by the jury system and the danger that laypersons will give undue weight to frail but highly prejudicial evidence.

A similar view was expressed by this court in R. v. W. (L.), [2004] O.J. No. 4163, 191 O.A.C. 22 (C.A.), at para. 9:

It is important to keep in mind that the risk of prejudice was much reduced because of the fact that this was a trial by judge alone.

 

[29] R. v. MacCormack, [2009] O.J. No. 302, 2009 ONCA 72, released January 27, 2009, like this case, concerned a defendant on trial on multiple counts. At para. 56, Watt J.A. said:

The test for the admissibility of evidence of similar acts offered to prove identity is the same whether the alleged similar acts are extrinsic to the counts in the indictment, or contained in other counts of the same indictment: Arp at para. 51. The same test notwithstanding, some of the factors relevant to an assessment of prejudice may have an attenuated influence in cases in which the similar acts are restricted to other counts in a multi-count indictment. It may be all the more so where the case is tried by judge sitting without a jury.

 

[30] Watt J.A. added, at paras. 68 and 69:

This case involves the invocation of similar act principles across counts in a multi-count indictment. The evidence relating to each count is relevant to and admissible in proof of the allegation contained in that count. Each incident is of equivalent gravity and of minimal inflammatory potential. This is not a case, in other words, in which conduct extrinsic to the crimes alleged in the indictment is enlisted as evidence of similar acts to prove what is alleged, and lugs with it inflammatory claims of greater gravity or moral depravity.

In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument on admissibility at the end of the trial.

 

[31] In R. v. Cresswell, [2009] O.J. No. 363, 2009 ONCA 95, a decision of this court released January 30, 2009, the appellant was tried on six counts of sexual assault in a non-jury trial. The court rejected the appellant’s submissions that the trial judge erred by ruling that the evidence on each count was admissible as similar fact evidence on all the other counts. Relevant to this appeal is what the court said at paras. 9 and 10:

We note as well that Handy states that admissibility is conditioned by the issue to which the evidence is directed. Here, the evidence went not to identity, [page32 ]where distinctive features amounting to a “signature” may be required, but rather to the actus reus, where less cogent similarities may render the evidence admissible.

Finally, we observe that this was a judge alone trial on a multi-count indictment. There was no severance application and it was inevitable that the judge deciding the case would hear all of the evidence. While this, of course, does not by itself render the evidence admissible across all counts, it significantly reduces the risk of prejudice. Moreover, in his reasons, the trial judge properly identified the permitted use of similar fact evidence and cautioned himself against prohibited lines of reasoning.

 

[32]  Nevertheless, the trial judge in the case at bar dismissed the application to use the evidence on all counts as similar fact evidence on the others, in part on the basis that its moral prejudice would outweigh its probative value. He found:

When one compares the probative value of the evidence, set out above, to the possible prejudice to the accused, in other words, that prejudice being that the accused runs the risk of being convicted because of his bad character, rather than because of proof that he committed the offences, the application to admit similar fact evidence by the Crown must fail.

(Emphasis added)

This ruling reflected three misapprehensions.

 

[33]  First, this was a non-jury trial, in which the danger that an accused would be convicted solely on the basis of his general bad behaviour was not a significant concern. Moral prejudice is not a significant risk in a judge-alone trial. Second, dismissal of the application to introduce similar fact evidence did nothing to address the probability of moral prejudice. The trial judge had already heard the evidence as part of the Crown’s case. Thus, the trial judge’s knowledge of evidence casting the respondent in a poor light was not eliminated by its exclusion as similar fact evidence. The only issue was whether the already admitted evidence could be used for another purpose. Third, to the extent that there is a risk of moral prejudice in a judge-alone trial is possible, the trial judge failed to appreciate, with respect to counts one to nine, that prejudice was much reduced as none of the underlying incidents were more reprehensible than the others. The allegations regarding each count that applied to M. were virtually the same and were quite similar to the incidents related by R., especially those that took place in the respondent’s truck.

 

[34]  In summary, in this case of a multiple-count indictment, the issue for the trial judge was whether the evidence regarding other counts had sufficient probative value to support a legitimate chain of reasoning furnishing evidence of any individual count. However, the trial judge never reached this stage in his analysis. This was because he misapprehended both the Crown’s position and the law regarding the legitimate use of similar fact [page33 ]evidence in a multiple-count indictment tried by a judge without a jury. These errors were compounded by the trial judge’s misapprehension that the moral prejudice of the evidence was too great to admit the evidence. Moreover, had the trial judge admitted the similar fact evidence, the trial judge would have had the very thing that he felt was missing to support a conviction on all counts

— corroboration.

 

[35] In Handy [R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57], the Supreme Court of Canada developed a principled approach to the admissibility of similar fact evidence. In that case, the Crown tendered as similar fact evidence extrinsic evidence of alleged violent sexual behaviour between the accused and his ex-wife. Although the trial judge admitted the evidence, this ruling was set aside by the Supreme Court of Canada.

 

[36]  Unlike Handy, in this case there was no extrinsic evidence tendered as similar fact evidence. The proposed similar fact evidence was already before the court as evidence on the counts in the indictment. There was no likelihood that the evidence would take the defence by surprise. Unlike Handy, there was no extrinsic evidence that would capture the attention of the trier of fact to an unwarranted degree. In this non-jury trial, its potential for prejudice, distraction and time consumption was largely absent and its prejudicial effect, if any, did not outweigh its probative value. There was no danger of judging the respondent’s actions on the basis of character.

 

[37]  In my view, the evidence of the respondent’s misconduct is so relevant and cogent that its probative value in the search for truth outweighs any potential for misuse. The proposed evidence had common characteristics with acts charged in the indictment and, therefore, was admissible as supportive of the evidence of the complainants. It was highly probative in that the similarities make it unlikely that the complainants were lying or mistaken about what happened to them. As Binnie

J. said in Handy, at para. 42:

In any case, the strength of the similar fact evidence must be such as to outweigh “reasoning prejudice” and “moral prejudice”. The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence. Although an element of “moral prejudice” may be introduced, it must be concluded by the trial judge on a balance of probabilities that the probative value of the sound inferences exceeds any prejudice likely to be created.

(Emphasis in original)

 

[38]  Thus, the force of similar circumstances in this case refutes coincidence or other innocent explanation. This evidence [page34 ]is sufficiently compelling to safely draw the inference of many sexual assaults on the facts charged. In short, toward his step-nieces the respondent was a sexual predator. Moreover, as the complainants and the respondent lived in a small northern Ontario community, the evidence represents the observed pattern of propensity operating in a closely defined and circumscribed context. I have no doubt that its probative value pointing to the respondent as the perpetrator of the sexual assaults outweighs its prejudicial effect. As Binnie J. emphasized in Handy, the primary test for the admission of similar fact evidence is whether its probative value outweighs its prejudicial effect.

 

VII

 

[39] For the foregoing reasons, I would allow the appeal, set aside the acquittal of the respondent and order that there be a new trial.

 

Appeal allowed.