R. v. J.M.S. Date:, 2015 BCPC 421

Citation: R. v. J.M.S. Date: 20151203 2015 BCPC 0421 File No: 204026-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.M.S. BAN ON PUBLICATION s. 486.4(2) CCC RULING OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R.N. HAMILTON Counsel for the Crown: W. Sayson, Q.C., C. Stewart Counsel for the Defendant: K. Johnston Place of Hearing: Surrey , B.C.

Dates of Hearing: November 23, 24, 25, 30, December 1, 2015 Date of Judgment: December 3, 2015 [1] THE COURT: J.M.S. is before the court on an 11-count Information charging him with a number of sexual offences allegedlycommitted against four of his grandchildren. These offences are alleged to have occurred between 1992 and 2009.

The Crown isproceeding by indictment. [2] At this stage of the proceeding, both the Crown and the defence have closed their cases and they have each argued on apreliminary ruling on an issue of whether the Crown may use the evidence of each of the three female complainants to prove beyond areasonable doubt that Mr. S. committed the offences against all three of the female complainants. [3] In legal terms, this is my ruling on an issue of the use of similar fact evidence.

I want to be clear at the outset I have reached noconclusions at this point as to whether the Crown has met its burden on the substantive charges.

This ruling is only to determine whatuse the Crown may make of the evidence of the female complainants. [4] The issue is this; is the evidence of each of the three female complainants only admissible with respect to the allegationsrelating to each complainant alone, or is the evidence of each complainant admissible with respect to all of the allegations before thecourt relating to the female complainants? [5] Generally speaking, evidence that is admissible with respect to one count is not admissible evidence of offences charged onother counts. Each count must be proven separately beyond a reasonable doubt.

In order for the Crown to be able to rely on evidencetendered with respect to one count in proving offences charged on other counts, the Crown must establish that the legal doctrine ofsimilar fact offence applies, thus permitting the Crown to rely on presumptively inadmissible evidence. [6] I have had the benefit of reading a number of authorities, as well as a written argument from Ms. Stewart on behalf of theCrown. I have considered the legal principles set out in the following cases; R. v. Handy (2002 SCC 56 , 2002 S.C.C. 56) fromthe Supreme Court of Canada, R. v.

Greenhalgh (2010 BCSC 1606) from the British Columbia Supreme Court, and (2012 BCCA 148, 2012 B.C.C.A. 148) from the B.C. Court of Appeal, R. v. D.L.W. (2013 BCSC 1016 , 2013 B.C.S.C. 1016) from ourSupreme Court, R. v. J.B. (2011 YKYC 4) from the Yukon Territorial Court, and R. v. J.G.E.S. 2005 BCSC 1915, a decision from ourSupreme Court. I do not propose to review those cases in any detail in these oral reasons for judgment. [7] In order for the Crown to rely on presumptively inadmissible similar fact evidence, I have to be satisfied that the testimony ofeach complainant is reasonably capable of belief.

If I conclude that each complainant's evidence is reasonably capable of belief, I mustthen consider whether the Crown has established, on a balance of probabilities, that the probative value of the evidence outweighs itsprejudicial effect. [8] I heard evidence in this trial from four complainants, S.S., a step-grandson of the accused, M.P., a granddaughter of Mr. S., andR.F. and M.F., both step-granddaughters of Mr. S.

This ruling with respect to similar fact evidence relates only to the evidence of thethree female complainants. [9] I will not review in detail the evidence of the three female complainants for the purposes of this ruling, but I will briefly statethe evidence they gave that lies at the heart of the Crown application on this similar fact ruling. [10] M.P. was the first female complainant to testify. She told me that as a young child, she lived on and off with her grandmotherand her grandfather, Mr. S.

M.P.’s mother, M., was unstable and often found herself turning to her mother and father for support andassistance. [11] M.P. testified that she would sleep in her grandparents' bed, at times with both grandparents, and at other times with only hergrandfather, Mr. S. She gave evidence that at times when she and her grandfather were alone at night, she would be sitting on his bedand her grandfather would come into the bedroom, take off his housecoat or robe, and he would climb naked into bed with M.P. Whenin bed, M.P. alleges that Mr.

S. would touch her vagina and would take her hand in his, place her hand on his erect penis, and using herhand, he would rub his penis until he ejaculated. [12] In addition to these sexual activities in bed, M.P. would at times kiss her grandfather. She would kiss his cheek, and she allegesthat Mr. S. would say that was not the way to kiss her grandfather, and he would kiss M.P. on her lips and put his tongue in her mouth.

This alleged French kissing, as well as the sexual activities in bed, occurred when no one else was present. [13] R.F. testified that as a young child growing up, she had fond memories of times spent at her grandparents' home. With respectto this ruling on similar fact evidence, she testified that on two occasions when she was sleeping over at her grandfather's home, she wasin her grandfather's bed and she awoke to find that her grandfather had taken her hand in his, placed her hand on his erect penis, and wasrubbing her hand up and down his penis until he ejaculated.

She said that happened on two occasions in her grandfather's bed, and shealso alleges that it happened two times while she was camping with her grandfather. [14] As well, R.F. testified, in very similar respects to M.P.’s evidence, as to her grandfather kissing her on her lips and putting histongue into her mouth. [15] M.F. testified as well about her fond memories of time spent at her grandparents' home, but she, too, told me of how, when shekissed her grandfather on his lips, he would place his tongue into her mouth. [16] Mr.

S. testified and denied that he was involved in any sexual activities with his three granddaughters.

[ 17 ] Turning to my first consideration, is the evidence of M.P., R.F. and M.F. reasonably capable of belief, my conclusion is that in respect of each of these complainants, their evidence is reasonably capable of belief. That is not to say that I am weighing their evidence against the evidence of Mr. S. That is not my task at this stage of the proceedings. All I am doing is considering each woman's testimony to determine if it is reasonably capable of belief. [ 18 ] Each of these female complainants gave their evidence of these sexual allegations in a very emotional manner.

It was clear to me that each had considerable difficulty talking about these allegations. [ 19 ] Their evidence was internally consistent. Their evidence was, in many respects, consistent with other evidence I heard. None of these complainants were shaken on cross-examination.

In some cases, their police statements were put to them in cross-examination, but no significant inconsistencies came from that process. [ 20 ] Accordingly, I find that the evidence of each of M.P., R.F. and M.F. is reasonably capable of belief. [ 21 ] Turning to the next issue, I must consider if the Crown has established, on a balance of probabilities, that the probative value of this evidence outweighs its potential prejudicial effect. [ 22 ] I start my analysis by observing that the similar fact evidence the Crown seeks to rely upon is evidence tendered in respect of the various charges Mr.

S. faces in this trial. This is not a case like R. v. Handy where the Crown sought to rely on general evidence of bad character unrelated to the charges Mr. Handy faced in his trial. [ 23 ] So in the case before me, the evidence does not have the same potentially prejudicial effect as in cases where the Crown seeks to tender evidence of bad behaviour. [ 24 ] In R. v. Handy , Mr. Justice Binnie set out seven considerations for trial judges to keep in mind when engaging in this analysis of probative value versus prejudicial effect. [ 25 ] Firstly, proximity in time between similar acts on the charged conduct.

With respect to M.P., R.F., and M.F., they all testified that the sexual acts complained of occurred when they were young children between the ages of five to 11 or 12 years old. So while the charged conduct spans a period of time between 1992 and 2004, the similarity lies more in the ages of the complainants. [ 26 ] Secondly, similarity in detail between the similar acts and the charged conduct. The kissing allegations are all very similar. While there are some differences in the allegations of the three women with respect to the other sexual incidents, such as whether Mr.

S. was in bed naked or wearing boxer shorts or briefs, the detail with respect to the alleged masturbation is very similar between M.P. and R.F. [ 27 ] The third consideration is the number of occurrences. With respect to M.P., she testified that the alleged sexual incidents occurred on many occasions.

With respect to R.F., she told me about four occasions, not including the kissing allegations, and I have no number of occasions where M.F. alleges her grandfather kissed her in a sexual manner. [ 28 ] Those differences between the three female complainants may be attributed to, firstly, the ready accessibility to M.P., as she lived with Mr. S. The fact that R.F. came over for sleepovers, so she was somewhat less accessible, and M.F. did not allege any masturbation, but Mr. S. was impotent following a workplace injury in 2003. [ 29 ] The fourth consideration is the circumstances surrounding the similar acts.

M.P. and R.F. testified that on the occasions when they allege sexual contact, they were in bed, alone with Mr. S. R.F. also alleged sexual incidents on two occasions when she was camping with her grandfather. So while there are some differences there, the acts complained of are very similar. The children were alone with their grandfather, but I note that is to be expected with allegations of sexual contact with a child. It is bound to occur in private. [ 30 ] The fifth consideration is whether there are any distinctive features.

Aside from the alleged acts, there is nothing particularly distinctive aside from Mr. S. allegedly saying to the complainants with regard to the kissing, “That is not how you kiss your grandfather,” or words to that effect. [ 31 ] The sixth consideration is, are there any intervening events relevant to this discussion, and there are not really any intervening events, except for Mr.

S.'s workplace injury in 2003 that left him impotent. [ 32 ] The seventh consideration is any other fact that would tend to support or rebut the underlying unity of the acts, and there is none that I can think of at this stage. [ 33 ] The final consideration in this analysis of balancing the probative value versus the prejudicial effect is a consideration of evidence of collusion. While I am satisfied there was opportunity for contact between these three complainants, and indeed it is a fact that there was contact, I am not satisfied that there is an air of reality to the concern about collusion.

Because this is just a preliminary ruling on whether the Crown can argue on the basis of similar fact evidence, I do not propose to review this issue in much detail at this time. [ 34 ] In 2011, M.P. and R.F. got together and spoke briefly about what happened in their grandfather's bedroom. However, both women stated that they did not share details as to what specifically happened to each of them.

Neither M.P. nor R.F. were aware at all as to what M.F.’s evidence was concerning contact with their grandfather prior to M.F. taking the stand and testifying at this trial. [ 35 ] To conclude that there is collusion in this case would require me to speculate about these women sharing specific details of these alleged sexual incidents for which there is no evidence to support, and I am not prepared to reach that conclusion. [ 36 ] So for those reasons, I conclude that I will allow the Crown to rely on the doctrine of similar fact evidence in arguing this case.

(RULING CONCLUDED)