R. v. Keough, 2010 ABQB 736

Court of Queen ’ s Bench of Alberta Citation: R. v. Keough, 2010 ABQB 736 Date: 20101126 Docket: 090409517Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Jason Andrew Keough Accused Restriction on Publication: By Court Order, information that may identify the Complainant or Witness described in this judgment as the Complainant or Witness, May not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 _______________________________________________________ Oral Memorandum of Decision Regarding Admissibility of Certain Exhibits of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ 1. Facts

[ 1 ] This is my Decision on the Defence application to exclude from evidence or restrict the relevance of certain video recording evidence which has been advanced by the Crown in the present matter. This Decision is delivered orally, so this Court reserves the right to make any changes to the transcript of this Decision as I see fit. Any changes will not affect the substance of the Decision.

Citations for cases and statutes as stated in this Decision will not be provided unless requested by counsel. [ 2 ] The disputed items are the following: Exhibits 2A, 2B - which include recordings of sexual activities between complainant S.C. and witness M.S.A., complainants J.W. and C.V., and several unidentified lone males; Exhibits 3A, 3B - which include recordings of an unidentified male, and complainant C.V. masturbating; Exhibits 4A, 4B - which include recordings of complainants S.H. and L.C. engaged in sexual activities, and recordings of other unidentified individuals engaged in sexual activities; Exhibits 8A, 8B - which include recordings of complainants J.W. and C.V. engaged in sexual activities, and recordings of other unidentified individuals engaged in sexual activities; Exhibits 9A, 9B - which include recordings of unidentified individuals engaged in sexual activities; and Exhibits 12A, 12B - which include recordings of complainants J.W. and C.V. engaged in sexual activities.

The recordings of sexual activity do not make up all the material on these exhibits, for example Exhibit 12A and 12B include what appears to be recordings of a social gathering of youths, with the sexual activity ‘taped over’ a part of that record. Other tapes include additional innocuous recordings of social activities and television programming. [ 3 ] The Defence asks the Court to exclude from evidence those components of the recordings which do not involve either a complainant and/or a witness, and argues those other parts of the recordings are irrelevant and thus inadmissible.

That would mean parts of Exhibits 2A, 2B, 3A, 3B, 4A, 4B, 8A, 8B, 12A and 12B would be excluded.

Exhibits 9A and 9B should be excluded en toto . [ 4 ] Counsel for the Defence concedes that it is relevant that I consider that Exhibits 3A, 3B, 4A, 4B, 8A and 8B are part of a ‘compilation’ of recordings that incorporate both recordings of sexual activities involving witnesses and complainants, and other sexually explicit material. [ 5 ] The Crown opposes the Defence motion, and stresses all these materials are relevant, and certain components are also admissible as “similar fact evidence”. [ 6 ] The focus of the Crown’s argument on relevance is that the combination of the location where these materials were recovered from within the Accused’s apartment, and the format in which the materials were identified are relevant for the question of knowledge and control of these materials by the Accused. [ 7 ] The Crown stresses these items are together part of a ‘collection’ of related materials, and the ‘format’ of these recordings is relevant to the manner in which those materials were created.

Exhibits 3A and 3B are also relevant as they support the credibility of

witness C.V. The Crown stated that possession of sexually explicit materials should not be used by the Court to infer any predilection of the Accused to engage in criminal conduct, or that the Accused was of bad character. [ 8 ] The Crown also made some comment on a “similar fact” argument, which I understand relates to Exhibits 4A and 4B, in that the Crown says that recordings of sexual activities between two unknown persons should be admitted as those records were made in the same room as the recording of complainants S.H. and L.C.

The “similar fact” argument was not developed in any detail in the oral submissions to the Court. Subsequently, the Crown provided additional case-law and written argument on the separate subject of parallels and similarities between the alleged facts of the various counts against the Accused. Certain of the case-law cited in that material parallels what I identify below. 2. Relevant Law A. Admission of Evidence [ 9 ] In a criminal proceeding the general principle is that all relevant evidence is admissible: R. v. Robertson , 1987 CanLII 61 (SCC) , [1987] 1 S.C.R. 918, at p. 941.

Evidence is relevant if it flows from an issue before the Court, that is it derives “... from the facts alleged in the charge and the defences advanced or reasonably anticipated.” ( R. v. Handy , 2002 SCC 56 at para. 74 , [2002] 2 S.C.R. 908). [ 10 ] Relevant evidence may still be excluded on the basis of judicial discretion. Lamer J. in Morris v.

The Queen , 1983 CanLII 28 (SCC) , [1983] 2 S.C.R. 190 at 201 provided the general rule, that evidence should be excluded where its probative value is outweighed by its prejudicial effect. [ 11 ] A key consideration in a Court’s consideration on the admission of evidence is whether that evidence relates to the probability that an accused has committed the specific alleged act, or instead whether the accused person ‘is the kind of person’ who would have engaged in blameworthy or illegal conduct. The latter category is commonly called “propensity” or “character”. In R. v.

Handy as para. 35 Binnie J. explained this kind of evidence has long been excluded from the finder of fact by the common-law: The dangers of propensity reasoning are well recognized. Not only can people change their ways but they are not robotic.

While juries in fourteenth-century England were expected to determine facts based on their personal knowledge of the character of the participants, it is now said that to infer guilt from a knowledge of the mere character of the accused is a “forbidden type of reasoning”: Boardman, supra , at p. 453, per Lord Hailsham. [ 12 ] “Similar fact” evidence is a special kind of evidence that relates to conduct by an accused that indicates a predilection on the part of an accused person to perform a specific kind of action.

The reasoning behind the admission of similar fact evidence is that when an accused person has engaged in a particular kind of conduct, that accused person is more likely to have engaged in alleged conduct of that specific kind. As such, similar fact evidence is an exception to the general exclusion of “propensity” evidence. [ 13 ] Where similar fact evidence is the basis to link an accused to an offense, the standard of admission of similar fact evidence is high, and requires a strong correlation between the details of the past “similar fact” evidence and the alleged wrongful conduct at trial.

The Courts often speak of similar fact evidence requiring a characteristic ‘fingerprint’, or that the linked conduct occur in a “peculiar and distinctive way”. As stated by Cory J. in R. v. Arp , 1998 CanLII 769 (SCC) , [1998] 3 S.C.R. 339, at para. 48 , 166 D.L.R. (4th) 296: . . . where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established.

Only then will the evidence have sufficient probative value to be admitted. [ 14 ] Different standards for similarity are necessary where the Court considers different contexts. In R. v. Handy , at para. 78 , Binnie J. explains:

78 The issue in the present case is not identification but the actus reus of the offence. The point is not that the degree of similarity in such a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. As Grange J.A. correctly pointed out 20 years ago in R. v. Carpenter (1982), 1982 CanLII 3308 (ON CA) , 142 D.L.R. (3d) 237 (Ont.

C.A.), at p. 244: The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence. [ 15 ] R. v. Handy at para. 82 also provides a list of helpful indicia to evaluate “similarity”, including: (1) proximity in time of the similar acts, (2) extent to which the other acts are similar in detail to the charged conduct, (3) number of occurrences of the similar acts, (4) circumstances surrounding or relating to the similar acts, (5) any distinctive feature(

s) unifying the incidents, (6) intervening events, (7) any other factor which would tend to support or rebut the underlying unity of the similar acts. [Citations omitted.] 3. Analysis [ 16 ] During the trial, Constable Roddick-Ament testified in regards to the recordings and commented on who, in his opinion, was depicted in the recorded video material. The complainants and witnesses also identified themselves in certain recordings.

This evidence forms the basis on which the Crown asserts that certain recordings are of known or unknown participants. [ 17 ] I will as a preliminary issue address the question of whether any of the recordings of unidentified individuals engaged in sexual activities represents similar fact evidence. The Crown identified a single example of this scenario, and that is found on Exhibits 4A and 4B. The only similarity identified was that the sexual activities of an unidentified couple and S.H. and L.C. had occurred in the same room. [ 18 ] It is worth looking at exactly what evidence the Crown advanced on that point.

Constable Roddick-Ament said: Q. And what about at the first? Was that -- did you recognize that couple that I asked you if it was the same room or --

A. I didn’t recognize that couple. I -- I had compared in my mind to scenes I had seen and individuals I had seen and although there was a similarity in the room, I couldn’t identify who the couple were. Q. So if I understand the sequence then, there is an unknown couple in a room that appears similar? A.

M-hm. [Emphasis added.] [ 19 ] I note that this is not Constable Roddick-Ament saying that he clearly sees features that place both recordings in the same location, rather there simply “... was a similarity in the room.” In other instances he does identify sexual activity that occurred in what appeared to be the same locations, noting for example a “whisky blanket” that was visible in several recordings.

He identified no such parallel when he compared these two sequences. [ 20 ] The Supreme Court of Canada has consistently made clear that similar fact evidence is only admitted with caution and where there are sufficient parallels between the alleged and historic activities.

Here, I need to determine whether it is more than a coincidence that the Accused allegedly possessed a video recording which included two recordings of a couple engaged in sexual activities within a poorly lit room which had no clearly identifiable common features. [ 21 ] That standard has not been met, the Crown has not identified any common aspects that would lead me to believe with any confidence that the sole parallel (a vaguely similar room) is not a coincidence. I reject any argument that a similar fact basis exists to admit this evidence. [ 22 ] I will now address the question of relevance.

The recorded materials can be broken into a number of categories. The first are those materials which record sexual activities but those activities do not involve any identified complainant or Crown witness. These recordings, Exhibits 9A and 9B, are irrelevant, beyond the relevance that is admitted by the Defence, that these Exhibits are recordings which include sexually explicit material. There was no evidence before the Court that the participants recorded in Exhibits 9A and 9B were in any way related to the charges which the Accused now faces. Accordingly, for that reason, I exclude these Exhibits.

I note that even if this evidence was in some way relevant, its probative value would be negligible at best. [ 23 ] The second category of material are those which include recordings of sexual activities between two complainants or a complainant and a witness, and other recordings of sexual activities involving one or more unidentified persons (Exhibits 2A, 2B, 4A, 4B, 8A, 8B, 12A and 12B). Here, the recordings of sexual activity among complainants and witnesses is clearly relevant and that is admitted by the Defence. The question therefore is whether the other recorded sexual activities are relevant.

Aside from the ‘similar fact’ allegation which I have already addressed separately, the Crown did not explain how the details of the actual recorded sexual activity of these unknown persons is relevant. Crown counsel emphasized that the crucial relevance was that these Exhibits included multiple recordings of sexual activities, together with the manner in which the various components of the recordings were assembled (“formatting”). That was admitted by the Defence. [ 24 ] Following on my reasoning above, the details of the sexual activities involving unidentified persons is irrelevant.

Again, the participants, location of the activities, and the character of the recordings did not relate to the charges against the Accused. Simply put, I have no idea where those recordings came from or how they provide any evidence of the actions of the Accused - beyond that the Accused probably watched pornography, and had perhaps assembled these clips of uncertain origin along with recordings of the witnesses and complainants. [ 25 ] The third category is the recording of the witness C.V. in Exhibits 3A and 3B where he is shown engaged in masturbation.

C.V. identified himself in this recording, and also gave evidence that he and the Accused had discussed a scheme in which C.V. would make a pornographic “demo” tape. That is relevant to C.V.’s credibility and to the production of pornographic materials in the Accused’s residence, and is admissible on that basis. However, the other unidentified male recorded in Exhibits 3A and 3B engaged in masturbation was not linked in any way to the Accused and the allegations in this case. Again, I have no idea where that recording was made, or by whom, for what purpose, or how it came into the Accused’s (alleged) possession.

The recorded sexual activity of the unidentified male in Exhibits 3A and 3B is therefore excluded as irrelevant.

[ 26 ] Last, there are the ‘background’ components of the various recorded media. Constable Roddick-Ament noted that in many instance the recordings appeared to have been ‘assembled’ by new, sexually explicit material, being recorded ‘over’ other kinds of recordings, including television programs, what appeared to be family events and social gatherings. The Defence identifies these as irrelevant, and I agree.

The only conclusion I will draw from these other and excluded components of the Exhibits is that whoever had assembled the Exhibits to add the sexually explicit components had, in certain instances, used old media. [ 27 ] On judicial discretion to exclude evidence that is more prejudicial than probative, I will simply note that the evidence which has been admitted directly relates to the allegations against the Accused, provides a physical record of those allegations, and is thus potentially highly probative.

The character of these materials obviously leads to prejudicial implications, however those are outweighed by potential relevance of these materials. 4. Conclusion [ 28 ] Exhibits 9A and 9B are excluded en toto . Only those components of Exhibits 2A, 2B, 3A, 3B, 4A, 4B, 8A, 8B, 12A and 12B that depict known individuals (complainants and witnesses) engaged in sexual activity is admissible.

Additionally, I will consider as relevant the ‘formatting’ of these Exhibits, specifically that a given Exhibit contained: 1. admissible recordings of sexual activity, and other sexually explicit material that sexually explicit material does not involve a complainant or witness, and 2. where an exhibit had been ‘assembled’ from an initial ‘background’ recording, and other components which were recorded ‘over’ that background. Heard on the 23 rd day of November, 2010. Delivered Orally the 24 th day of November, 2010. Dated at the City of Edmonton, Alberta this 25 th day of November, 2010. Don J.

Manderscheid J.C.Q.B.A. Appearances: Diane J. Hollinshead for the Crown

Anna Konye Pringle MacDonald & Bottos for the Accused