R v McKnight, 2018 ABQB 1011

Court of Queen’s Bench of Alberta Citation: R v McKnight, 2018 ABQB 1011 Date: 20181212 Docket: 161396254Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Matthew Lloyd McKnight Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5. By Court Order, information that may identify the witness or complainant, IC, KC, AA, must not be published, broadcast, or transmitted in any way. 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. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling M. Sanderman _______________________________________________________

[ 1 ] Mr. McKnight faces a 16-count Indictment, including 14 counts of sexual assault, one count of confinement and one count alleging assault simpliciteur. These matters are scheduled for trial in the fall of 2019. The trial is scheduled to begin on September 30, 2019, and run for 48 days. [ 2 ] Mr. McKnight filed an application with the court to sever each count from the present Indictment. The Crown wishes to call similar fact evidence at Mr. McKnight’s trial. Accordingly, the Crown asks for a ruling in relation to whether this would be allowed.

The Crown takes the position that the determination of the admissibility of potential similar fact evidence would be determinative of the severance application. Mr. McKnight does not necessarily agree with that position but concedes that the admissibility of similar fact evidence would be a strong factor in determining whether severance should be granted.

The similar fact evidence proposed encompasses the evidence of each complainant and does not include any evidence outside the matters charged. [ 3 ] I was appointed as the Case Management Justice pursuant to s. 551.1 of the Criminal Code in relation to this matter to ensure that all matters necessary to be dealt with prior to the commencement of the trial would be completed expeditiously. A three-day hearing in relation to the Crown’s application to call similar fact evidence was held. This is the ruling in relation to the Crown’s application. Mr.

McKnight still reserves the right to make his application for severance prior to the commencement of the trial if the Crown’s application is successful. [ 4 ] No evidence was called at the application. Legal argument was made by counsel for the Crown and Mr. McKnight at the hearing. The evidentiary basis that counsel relied upon to support their arguments was the 2200 page transcript of the Preliminary Inquiry held in relation to this matter. This was not necessarily the best way of proceeding because there was no way of properly assessing the demeanor of any of the witnesses.

Having regard to the need for a ruling well in advance of the commencement of trial, this was the best use of court time in order to effect this. Counsel proposed this approach and I agreed with it. [ 5 ] The Crown alleges serious criminal conduct on the part of Mr. McKnight. It is alleged that for a period extending over six years, he used his managerial position at an Edmonton nightclub to ply young women with liquor, and on occasion drugs, in order to vitiate their consent in relation to sexual activity that took place in his bedroom located in an apartment close to his place of employment.

The Crown alleges that the complainants were invited back to this residence to party after the bar closed and were attacked by Mr. McKnight after having their consciousness altered in some fashion. [ 6 ] Mr. McKnight denies the allegations and suggests that the complainants were willing participants in any activity and that this was part of the hook-up culture they embraced. [ 7 ] As indicated earlier, the evidentiary foundation for the legal argument comes from the transcript of the Preliminary Inquiry.

I have read the evidence of all the witnesses called at that proceeding, including the complainants and others who were in a position to make relevant observations in relation to the matters in dispute. [ 8 ] The law that governs this application for the admission of similar fact evidence has been settled for some time. In the companion decisions of R v Handy , 2002 SCC 56 and R v Shearing , 2002 SCC 58 , the Supreme Court of Canada approved the schematic analysis that must be followed by trial judges whenever there is an application to lead similar fact evidence.

At paragraph 55, Justice Binnie writing for the court stated: 55. 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. [ 9 ] This is the standard that must be met in any case. There is no special rule for sexual assault cases.

At paragraph 42, Justice Binnie stated: 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. [ 10 ] It has long been understood by judges that in cases involving similar fact evidence the probative value overcomes the inherent prejudice because the force of similar circumstances defies coincidence or other innocent explanations.

Before analyzing whether similar fact evidence should be allowed, the Crown must identify the live issue in the trial that permits the consideration of such evidence. The importance of the issue in any trial will have a bearing on the factors that have to be considered in ruling upon admissibility. In any case, the probative value of the similar fact evidence will be determined by the nexus established between the offence alleged and the similar fact evidence proposed to be called.

As similar facts become more focused and specific to circumstances similar to other charges, the probative value of propensity generally not permitted becomes of greater evidentiary value. The probative value of similar fact evidence is directly tied to the degree of similarity between incidents. [ 11 ] In Handy , Justice Binnie set out a non-exhaustive list of factors that connect proposed similar fact evidence to the circumstances of the charges alleged.

At paragraph 82, he said they include: (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. [ 12 ] In paragraph 83, Justice Binnie reminds trial judges of the highly prejudicial potential of similar fact evidence. He states: 83 On the other hand, countervailing factors which have been found helpful in assessing prejudice include the inflammatory nature of the similar acts ( D. (L.E. ), at p. 124) and whether the Crown can prove its point with less prejudicial evidence.

In addition, as stated, the court was required to take into account the potential distraction of the trier of fact from its proper focus on the facts charged, and the potential for undue time consumption. These were collectively described earlier as moral prejudice and reasoning prejudice. [ 13 ] The schematic analysis embraced by Handy is simple. Similar fact evidence is presumptively inadmissible. The highly prejudicial nature of it demands this. Unless the Crown is able to establish on a balance of probabilities that the probative value exceeds the prejudicial nature of the evidence, it remains inadmissible.

If the Crown can meet this standard, the evidence is admissible. In Handy , the court points to certain factors that should be considered in making the determination of the value of the evidence and the potential harm to a fair trial that might be caused by its admission. Because of the inherent potential danger to a fair trial if improper propensity evidence is presented to a jury, Handy in addition to the analysis of the relevant factors, emphasizes the gatekeeping function a trial judge must perform when called upon to make such a ruling.

This function is exercised at two stages. [ 14 ] If collusion between witnesses is suggested, a judge ruling upon the proposed admission of similar fact evidence must perform a first gatekeeping function. If collusion is established to the satisfaction of the judge on a balance of probabilities, it would effectively destroy the reason that courts accept similar fact evidence in the first instance. It would destroy the improbability that witnesses would independently make up evidence with similar features. There must be evidence of real collusion before this concern need be addressed.

It matters not whether the alleged collusion is intentional or inadvertent. There must be some evidence of collusion that has the potential of corrupting the reliability of the testimony. If there is an air of reality to the claim of collusion, the Crown must show on a balance of probabilities that collusion does not exist in that case. If the Crown is unable to satisfy the judge to this standard, the evidence is not admissible and the jury cannot hear it.

If there is only a possibility of collusion and the Crown satisfies the judge on a balance of probabilities that there is no air of reality to the suggestion, the jury hears the evidence and decides the issue of whether or not the strength of the evidence is compromised by the potential for collusion. [ 15 ] There is a second instance where a trial judge is required to exercise his or her gatekeeping function when dealing with similar fact evidence.

Because of the potentially highly prejudicial nature of similar fact evidence, a judge should not allow a jury to hear similar fact evidence unless it meets the threshold of being “reasonably capable of belief”. This phrase is used by Justice Binnie in Handy at paragraph 134 . [ 16 ] It is noteworthy that in Handy , Justice Binnie considered standards of proof on four occasions. Of course there is the ultimate standard of proof in any criminal proceeding. Has the Crown proven the case alleged after a consideration of all the admissible evidence to the criminal standard of proof beyond a reasonable doubt?

He considered the standard of proof on a balance of probabilities twice. The trial judge must conclude that the probative value of the proposed evidence outweighs its potential prejudice on this standard. Secondly, any suggestion of real collusion must be decided on this basis. Justice Binnie does not employ this standard when addressing the second gatekeeping function of a trial judge. The standard of being reasonably capable of belief is a different standard. What standard is this? [ 17 ] It is not capable of belief on a balance of probabilities.

Justice Binnie avoided that standard although he applied it in two other situations in determining whether similar fact evidence should be admitted in any trial. A judge ruling on admissibility must look at the evidence being offered as similar fact evidence. The trial judge is to look at the totality of the evidence given, including any obvious deficiencies and frailties that may be inherent it. Could a jury hearing this evidence and acting reasonably find it credible?

If the trial judge cannot make this finding, he or she would be obliged to come to the conclusion that the necessary threshold for the receipt of this evidence had not been met. He or she would exercise their gatekeeping function at this point and not permit the evidence to be heard. If the judge determines that a jury acting reasonably could find the evidence credible, then the jury would hear it. The jury is charged with the ultimate assessment of credibility and deciding what evidence they accept or reject.

This is how I interpret the standard of being reasonably capable of belief. [ 18 ] In determining whether the proposed similar fact evidence is admissible against Mr. McKnight, I will identify the issue for which the Crown says it is relevant. The next step in the determination of whether or not the evidence should be heard by the jury is to perform the gatekeeping functions identified by Handy . Is there any evidence of collusion that rises to the standard of air of reality? If so, has the Crown established on a balance of probabilities that the collusion has not tainted or corrupted the proposed evidence.

If the Crown fails to meet this standard, the basis for admitting the similar fact evidence has been undermined and should not be admitted. [ 19 ] The second gatekeeping function is performed by examining the evidence of the witnesses to determine whether it is reasonably capable of belief. If so, the jury should not be denied hearing the evidence.

If it is not reasonably capable of belief, the evidence should not be admitted because it would have no probative value and only an overwhelming prejudicial affect. [ 20 ] If the proposed evidence survives the gatekeeping analysis, I will look at the factors suggested by Handy to determine the degree of similarity between the separate incidents. Is there a degree of connectedness that gives the evidence its probative strength and suggests admission? [ 21 ] Lastly, I will assess the prejudicial nature of the evidence and determine whether the probative value outweighs this on a balance of probabilities.

This is the schematic analysis suggested by Handy that I will follow in determining whether or not the similar fact evidence proposed by the Crown will be permitted to be called against Mr. McKnight. [ 22 ] The Crown argues that the similar fact evidence has a direct bearing upon the consent component of the actus res in relation to the charges of sexual assault. The Crown suggests that this evidence indicates a situation specific propensity on the part of Mr.

McKnight. It is alleged that he provides young women with alcohol that may or may not be spiked with drugs in order to overcome their ability to give a meaningful consent to the sexual advances he directs towards them. The Crown argues that the similar fact evidence in relation to each complainant would show a pattern of behaviour embraced in order to vitiate the need to obtain an informed consent from those targeted by Mr.

McKnight. [ 23 ] The Crown suggests that the similar fact evidence is highly probative of the consent component of the actus res of the offences as it is inherently implausible that these varied complainants would report assaultive behaviour directed towards them by Mr. McKnight in a manner containing a high degree of similarity. The fact that this evidence might enhance the credibility of the individual complainants is secondary to the need to show a lack of consent as part of the actus res . [ 24 ] Is there an air of reality to the suggestion made by Mr. McKnight that collusion is a live issue?

In support of this claim, he points to four factors. He suggests that the media releases issued by the Edmonton Police Service in relation to their investigation, an inquiry by an investigating detective of a complainant whether she knew of other potential victims, a text communication between a complainant and a sister of another one and general electronic chatter dealing with Mr. McKnight’s behaviour in relation to young women, supports his contention. [ 25 ] In investigating certain types of alleged criminal activity, policing agencies resort to a variety of techniques.

If they believe that the criminal activity is widespread, it is not uncommon for them to resort to information releases in the community in order to encourage reluctant witnesses to come forward. In doing so, steps are generally taken to ensure that the overall investigation is not compromised in any material fashion. The media releases in this case did not contain details in relation to the specific allegations made by the complainants. They were general in nature.

The mere fact that the Edmonton Police Service utilized this technique and that the contents of the media release were repeated a number of times in the community does not, by itself, suggest that there is an air of reality to the claim of collusion. [ 26 ] The media releases merely state that women accompanied Mr. McKnight back to his residence after being in bars with him. While at his residence, they were sexually assaulted and he has been charged. The media releases ask the general public to come forward if they have information in relation to the events that took place on specific dates.

The complainants are not identified. The second media release does not give any further detail than this but does indicate that individuals have come forward resulting in further charges against Mr. McKnight. The second release asks potential complainants and witnesses to come forward to provide information to the investigating police service. No specific information is provided in these media releases that refer to allegations about the conduct of Mr. McKnight. [ 27 ] The fact that a detective involved in the case suggested to a complainant that she should encourage others who may have had involvement with Mr.

McKnight to come forward is not sufficient to support the contention that collusion is present. It is instructive to look at the evidence that was given at the Preliminary Inquiry in relation to this particular matter. At page 1725 and 1726 of the Preliminary Inquiry transcript this exchange is found: [ 28 ] Q Did you tell I.C. or any other complainant that you interviewed, either before the interview or during the interview, that you wanted more complainants to come forward? A Yes, I believe I did tell I.C. that. It was information that she had brought up, and I asked if she knew of others to bring them forward.

Q Did you tell her that that would strengthen the case against Mr. McKnight? A Not in so many words, but I believe I may have inferred that, yes. Q You got the message across? A Yes. [ 29 ] In this exchange, Detective Pelech candidly admits that he did have a conversation with Ms. C. and that he made a request of her. [ 30 ] Ms. C.’s recollection of the conversation is somewhat different. In her evidence at the Preliminary Inquiry she testified at page 922 and 923: Q Okay, and even after you saw Detective Pelech you heard about other people, other women coming forward or speaking with your sister about this?

A At that point, yeah, they -- I remember talking to Dave and him saying pretty much we wouldn’t bring you to court if it’s just you and that you, if you can try and find other girls to come forward with you, then you should do that. So that’s kind of what motivated me and my sister to start talking to people. Q Okay. So he said to you we wouldn't go forward if it was just you?

A Well, he didn’t say that, but he said it’s a harder case to win if it’s just you and, you know it's -- and he realized like it was an emotional thing for me, so maybe he just - Q So he told you to see if you can speak to other people about coming forward? A Yes, because I had heard about them. [ 31 ] Neither of these conversations reveal an effort by the members of the Edmonton Police Service to encourage witnesses to

adopt a certain version of events. This is a perfectly proper request made by the detective to Ms. C. to provide information of other potential complainants if she is aware that they exist. It is often difficult for policing agencies to get complainants to come forward in cases such as this for a variety of reasons. All Detective Pelech was attempting to do was to ensure that no stone was left unturned in relation to his investigation. [ 32 ] The actual evidence is difficult to reconcile with the suggestion made by Mr. McKnight in his written argument that Detective Pelech told Ms.

C. that he would not bring her allegations to court if she were the only complainant. It is difficult to come to this conclusion based upon the evidence on this point that was presented at the Preliminary Inquiry. [ 33 ] The fact that I.C.’s sister may have sent a text to one other complainant falls far short of raising the spectre of collusion. Lastly, the fact that rumors in relation to Mr. McKnight’s conduct were spread throughout the community on Facebook is not sufficient to give the claim of collusion any strength. Young people communicate almost exclusively via electronic devices and social media.

Texting, sharing information through Facebook, Snapchat, Instagram and other electronic platforms are the preferred forms of communication among this segment of society. The dissemination of information through these mediums to young people does not raise any concerns in relation to the validity of the claim of collusion. Ideas, notions, opinions and unsupported diatribes find their way to these vehicles and are readily available to those who care to embrace them.

The mere fact that they exist does not in any fashion support the argument that people are affected by and act upon these representations. [ 34 ] In order for there to be an air of reality to the claim of collusion, there must be more than the mere opportunity or possibility that it may have taken place. There must be positive evidence that supports the contention. Speculation that something may have happened is not a substitute for evidence. In this case, there is direct evidence given by the complainants at the Preliminary Inquiry that there was no collusion.

The evidence at the Preliminary Inquiry does not reveal any direct or indirect contact between the numerous complainants other than the one text mentioned earlier. There is no evidence emanating from any of the complainants that they discussed the matter of their respective involvements with Mr. McKnight with one another. [ 35 ] There is no air of reality to the suggestion that there was any collusion between the complainants.

Assuming that there was, the Crown is able to meet the onus to prove on a balance of probabilities that none of the evidence provided by the various complainants was corrupted by inappropriate discussions between them. [ 36 ] The suggestion made by Mr. McKnight that there was collusion is merely that. A mere allegation can never take the place of real evidence. The similar fact evidence is not deemed inadmissible because of collusion. [ 37 ] Mr.

McKnight suggests that the Crown should not be able to call any similar fact evidence within the confines of this Indictment because of the inherent unreliability of the evidence of all of the complainants. He takes the position that their evidence is not reasonably capable of belief. He sets out his concerns about this evidence in his written submissions.

He has examined the evidence of each complainant extensively and points to where their evidence conflicts with the evidence given by other individuals who were present in the licensed premises where drinking took place before the complainants made their way to Mr. McKnight’s residence. He also points out the differences in the evidence they gave in relation to events that took place back at Mr. McKnight’s apartment. The very careful comparison of this evidence undertaken by Mr.

McKnight does not establish that the evidence of these individuals is not reasonably capable of belief. [ 38 ] I have reviewed the evidence of the complainants who testified with care. I have also reviewed the evidence of their friends or acquaintances who were accompanying them on the night that they had dealings with Mr. McKnight. None of these witnesses were present in the room when the alleged offences took place. They are able to give evidence in relation to matters leading up to the encounters that gives rise to the various charges.

In certain instances, they are able to give evidence in relation to matters that occurred after the complainants had dealings with Mr. McKnight. Not one of them can give any meaningful evidence in relation to the allegations that form the basis of the charges. [ 39 ] Mr. McKnight has emphasized the minutia of certain inconsistencies in relation to non-essential or collateral matters surrounding the encounters between Mr. McKnight and the various complainants. Pointing to these relatively minor inconsistencies does not reach the standard of not being reasonably capable of belief.

He is not able to point to one instance where there is evidence coming from anyone that directly contradicts the version given by any complainant in relation to the alleged assaultive behaviour directed towards her. Microscopic inconsistencies do not detract from the core allegations made by any of the complainants. These types of inconsistencies are not material in determining whether the gatekeeping function should be exercised because the evidence is not reasonably capable of belief. [ 40 ] Mr.

McKnight’s second attack upon the inherently unreliable evidence of the complainants is that they all suffer from significant memory loss in relation to what took place in his residence. This is a true statement. All of the witnesses testified at the Preliminary Inquiry that there were deficiencies, sometimes extremely significant, in their memories. Some have no memory of what took place at Mr. McKnight’s apartment, but they were able to give testimony in relation to their belief that they had been assaulted because of circumstantial evidence.

Memory loss by itself does not establish the standard of not being reasonably capable of belief. [ 41 ] On a daily basis, courts hear evidence from individuals whose memory has been compromised by the consumption of alcohol, the ingestion of drugs, the passage of time and other factors. Courts may not embrace this evidence and act upon it in order to hold individuals responsible for alleged criminal activity, but the evidence is still received. A compromised memory does not mean that evidence is not reasonably capable of belief.

The totality of the circumstances of any case must be examined by a trier of fact in assessing whether or not evidence can be accepted and acted upon. To engage the gatekeeping function based upon this argument would usurp the function of the trier of fact. It would be inappropriate to do so. The trier of fact has a responsibility of hearing evidence and deciding whether or not in good conscience it can be acted upon. A compromised memory is only one of the factors a trier of fact would consider.

Having regard to the theory of the Crown and the evidence in relation to significant consumption of alcohol, it is not surprising that the memories of the complainants have been seriously compromised. It is to be expected. [ 42 ] The third attack that Mr. McKnight makes upon the inherent unreliability of this evidence is coupled with his argument in

relation to collusion. I have already dealt with this matter and found that there is not a basis to make this suggestion. In addition to there being no evidentiary basis for this suggestion, all of the complainants who were questioned on this possibility at the Preliminary Inquiry denied any suggestion of real collusion. [ 43 ] Having determined that all of the counts survive the gatekeeping function, it is necessary to look at the factors suggested by Handy to determine whether there is a degree of connectiveness that gives the evidence its probative strength and favors admission.

The factors suggested by Handy have been set out earlier. [ 44 ] Intervening events have been dealt with in the analysis in relation to collusion. It is not a factor that has to be considered a second time. [ 45 ] Counsel have gone to great lengths in their written and oral submissions in order to show the similarities and dissimilarities in relation to the activity alleged by Mr. McKnight against each complainant. That particular type of analysis is not overly helpful in determining whether there is the degree of connectiveness that gives this evidence probative strength.

Looking for similarities or dissimilarities in the evidence is not a quantitative analysis. Rather, it is the quality of the evidence and the core factors relating to each complainant that gives similar fact evidence its cogency. Although it is necessary to look at the basic scenario set out by each complainant, it is not merely a matter of counting how many factors are present in each complainant’s evidence or determining which factors are absent.

The charts that have been provided by both counsel have been helpful in focusing the court’s attention on the versions given by each complainant, but they are not determinative of this issue. [ 46 ] As Justice Binnie said in R v Shearing at paragraph 60 : The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion: Litchfield, supra .

At an excessively macroscopic level of generality, on the other hand, the drawing of similarities may be too facile. Where to draw the balance is a matter of judgment. [ 47 ] Fifteen complainants have come forward to allege that they were sexually assaulted by Mr. McKnight over a six year period. This is a significant number of complaints. The major unifying thread in relation to the proposed similar fact evidence is the alleged preparatory interaction between Mr. McKnight and the various complainants prior to the alleged sexual assaults. [ 48 ] The common thread is Mr.

McKnight’s targeting of young women who attend his place of employment and are provided complimentary drinks during the time that they are there. These young women do not have dates. They may be accompanied by other friends. Mr. McKnight invites the complainants back to his apartment towards the end of the operating hours of the establishment in which he works. They are invited there for an after party. All claim that they did not consent to any sexual activity that took place between them and Mr. McKnight. The majority of the assaults are penial-vaginal intercourse. Compromised memories are the norm.

The complainants attribute this to an over consumption of alcohol or drugs being placed in their drinks. One complainant alleges that the sexual activity took place in a manager’s room in a bar in which Mr. McKnight was employed. She embraces the basic scenario with the exception of the location. One of the complainants was not a patron at the nightclub in which Mr. McKnight worked, but was an employee that was asked to come to an after party. One of the complainants went on a date with Mr. McKnight and spent a considerable period of time barhopping before ending up at his residence.

Other than these differences, the pattern of interaction is extremely similar. [ 49 ] The Crown’s theory is that Mr. McKnight embraced a strategy in relation to each complainant that enabled him to have intercourse with them without their consent. It is alleged that he created a specific situation that enabled him to enact a predetermined abuse strategy. [ 50 ] The position taken by Mr. McKnight in relation to his contention that the evidence lacks the necessary connectedness is found in his written brief at paragraph 199. He states: 199.

In the case at bar, analysis of the connectedness factors as delineated in Handy , reveals a lack of sufficient similarity or distinctiveness. There are numerous and significant dissimilarities in the alleged incidents and any purported similarities in the allegations are superficial and non-distinct. Further, McKnight and the complainants’ participation in a party lifestyle or ‘hook-up culture’ explains almost entirely and accounts for any of connectedness in the alleged similar acts.

The fact that McKnight was a male in his twenties and met all the complainants at a bar that he helped manage, and as promotions manager provided them with a free supply of alcohol, is not distinctive. The fact that on all of the occasions these complainants consumed alcoholic drinks, accepted invitations to his residence, and further accepted invitations to his bedroom for consensual activity is a function of each complainant’s choice, and hardly that of engineered manipulation.

As will be shown, the alleged incidents lack the required level of connectedness to establish sufficient probative value. [ 51 ] The difficulty with this submission is that the complainants deny participating in the ‘hook-up culture’ alluded to in the submission. They also vehemently deny that the sexual activity was consensual. The conclusory statements found in this paragraph are not born out by the evidence that was presented at the Preliminary Inquiry. [ 52 ] Mr.

McKnight points to a number of pieces of evidence that he claims refutes the position that there is a nexus between the evidence of the complainants. He suggests that no script is followed in relation to the sexual activity between Mr. McKnight and the complainants. He claims that there is a difference between the levels of intoxication and the source of it in relation to the complainants. He points to the fact that his post-incident conduct varies from complainant to complainant. He points to the degree of familiarity between himself and the different complainants.

He points to the fact that some of the complainants were invited to the after party by him and others by other individuals. He points to the fact that there is a difference in the level of interest shown by some of the complainants towards him. [ 53 ] There is no doubt that there is validity to these points. That does not detract from the cogency of the similar fact evidence proposed to be called by the Crown. The dissimilarities that Mr. McKnight points out do not deal with the essential claim made by the Crown in relation to the preparatory activities engaged in by Mr. McKnight in order to achieve his purpose.

They deal with matters that

have little importance in relation to that aspect of the Crown’s case. The similar fact evidence proposed to be called by the Crown inrelation to a strategy adopted by Mr. McKnight in relation to these women is highly probative. Its admissibility cannot be denied on thebasis that there is an insufficient connectedness between the various complaints. The similarities are much more than generic. They arecompelling and have significant probative value. [54] Does the probative value of this evidence outweigh its prejudicial value on a balance of probabilities? As stated in Handy,prejudice can take two forms.

Justice Binnie classifies them as moral prejudice and reasoning prejudice. In relation to moral prejudice, hestates at paragraph 139: 139 It is frequently mentioned that "prejudice" in this context is not the risk of conviction. It is, more properly, the risk of anunfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. Theevidence, if believed, shows that an accused has discreditable tendencies.

In the end, the verdict may be based on prejudice rather thanproof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11 (

d) of the Canadian Charter of Rights and Freedoms. [55] His comments in relation to reasoning prejudice are found at paragraphs 144 and 145. They state: 144 The major issue here is the distraction of members of the jury from their proper focus on the charge itself aggravated by theconsumption of time in dealing with allegations of multiple incidents involving two victims in divergent circumstances rather than thesingle offence charged. 145 Distraction can take different forms. In R. v. D. (L.E.) (1987), (BC CA), 20 B.C.L.R. (2d) 384 (B.C.

C.A.),McLachlin J .A. (as she then was) observed at p. 399 that the similar facts may induce in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionateanalysis upon which the criminal process should rest. [56] The Crown concedes that there is risk of moral prejudice if the similar fact evidence is admitted in this case. It is submittedthat the probative value of this evidence is so great that it outweighs any potential prejudice to the accused. Mr. McKnight takes thecontrary position. [57] Mr.

McKnight has chosen to be tried by a judge and jury. That is his right. Making this election indicates that he has faith inthe jury system and the ability of jurors to follow legal instructions. In this case, those instructions would include the use that could bemade of the similar fact evidence and a strong caution about not extending its limited application. The Supreme Court of Canada onmany occasions has emphasized its confidence that jurors can follow legal instructions in order to reach a just verdict. [58] Long before any instruction would be given to the jury, Mr.

McKnight would have the added protection of his ability to havethe complainants cross examined to show any inconsistencies or dissimilarities in relation to the evidence as a whole. The credibility ofeach complainant will be fully put into question by Mr. McKnight. He takes great issue with the reliability of their evidence and willhave ample opportunity to buttress this position at trial. [59] The possibility of moral prejudice is high in this case. The probative value of the similar fact evidence is higher. It outweighsthe possible prejudice to Mr.

McKnight on a balance of probabilities when one considers the alleged major sexual assaults. There arethree counts in the Indictment that do not fit within this general characterization. Two counts do not encompass penial-vaginalintercourse. They are counts #5 and #13. Count #9 alleges an unlawful confinement that is tied to an allegation of a major sexual assault.Having these three counts tried with the others would be dangerous as the highly probative similar fact evidence in relation to the othercounts could result in improper moral reasoning in relation to these counts.

The Crown’s identification of the issue for which the similarfact evidence is required does not directly relate to these three counts. To allow them to remain on the Indictment creates the risk ofimproper moral reasoning in relation to them. They should not be heard with the others. [60] Much of Mr.

McKnight’s argument in relation to reasoning prejudice centered around his contention that it would beextremely difficult for a jury to properly assess the reliability of the various complainants due to their number and the length of the trial.He argues that it would be impossible for the jury to keep the allegations and the findings of credibility required to be madecompartmentalized. He submits that confusion would be the natural result. This argument does not establish the requisite prejudice thatoutweighs the probative value of this evidence to make it inadmissible.

It is an argument that is better made in relation to severance. [61] In paragraph 150 of Handy, Justice Binnie cautions judges about the potential danger in admitting similar fact evidence thatdoes not meet the requisite standard. He says: Justice includes society's interest in getting to the truth of the charges as well as the interest of both society and the accused in a fairprocess.

A criminal justice system that has suffered some serious wrongful convictions in part because of misconceived notions ofcharacter and propensity should not (and does not) take lightly the dangers of misapplied propensity evidence. [62] With this admonition clearly in mind, the Crown has established on the Handy test that the similar fact evidence in this caseshall be admitted other than those counts referred to. Heard on the 13th to the 15th days of November, 2018. Dated at the City of Edmonton, Alberta this 12th day of December, 2018.

Sterling M. Sanderman J.C.Q.B.A. Appearances: Mark Huyser-Wierenga, Katherine Fraser, Crown Prosecutors for the Crown Dino Bottos, Bottos Law Group for the Accused