R. v. J.M., 2016 ONCJ 397

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. CITATION: R. v. J.M. , 2016 ONCJ 397 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. J.M. Before Justice David M. Paciocco – Ottawa ON Reasons for Decision on Similar Fact Evidence Application Released June 28, 2016 Ms. S. Schriek………………………………………………………………..for the Crown Mr. M. Ertel..………………………………………………...…for the young person, J.M.

I. Introduction [1] J.M., a young person, is charged with sexual offences against two different complainants, J.J. and C.G. The Crown asks to relyon the evidence offered by each of these two young children to support the allegations made against J.M. by the other.

What is beingsought is the “count-to-count” use of similar fact evidence – proof of the discreditable conduct of the accused on other occasions - tosupport each of the specific allegations made in the charge. [2] Specifically, the Crown wants to use the evidence of the 4 year-old complainant, J.J., to help prove that J.M., the 14 year-old sonof her day care operator, exposed his penis to C.G., as alleged in Count 1.

C.G. was 3 years old at the time. [3] The evidence of C.G. is that this happened in the basement of the day care on a number of occasions, and, on one occasion, J.M.lay back on a couch and played with his penis.

C.G.’s evidence is that whenever J.M. exposed himself to her, J.J. was present. [4] Meanwhile, the Crown seeks to have the evidence of C.G. about J.M.’s sexual misdeeds used to help prove that J.M. sexuallyassaulted J.J., also 3 years old at the time, as alleged in Count 2. [5] Specifically, the request is that C.G.’s testimony be used to help prove that J.M. touched J.J. for a sexual purpose, as alleged inCount 3; and that he invited J.J. to touch him for a sexual purpose as alleged in Count 4.

The factual allegations, particularized throughthe evidence of J.J. are, that in an upstairs bedroom, J.M. pulled J.J.’s head towards his penis and grabbed her arm while his penis wasexposed; that he licked her vagina; and that J.M. invited J.J. to touch his penis with her mouth. II. Analysis a. The General Rule [6] Similar fact evidence is presumptively inadmissible because its use compromises key principles of proof.

It raises the risk ofimproper and unfair adjudication through “moral prejudice,” and “reasoning prejudice,” concepts I will develop further below. [7] Because of the risk of prejudice it presents, similar fact evidence is not to be admitted or used, based on its relevance alone. Forsimilar fact evidence to be available to the Crown, the trial judge must determine, on the balance of probabilities, that its probative valueoutweighs the risk of prejudice the evidence presents: R. v. Handy 2002 SCC 56 , [2002] S.C.J.

No. 57. [8] This is a contextual evaluation, allowing for the reality that the probative value and risk of prejudice vary with the issues thatarise and the nature of the evidence. The risk of prejudice will also have differing intensity, depending upon the nature of the trial. [9] Although it is unconventional to do so, it is convenient in this case to begin the balancing act required, starting with the prejudiceevaluation. b. Prejudice [10] Invariably, similar fact evidence is inherently prejudicial because it exposes the general bad character of the accused.

Thispresents the risk of “moral prejudice,” in other words, incriminating reasoning that is based on the accused person’s capacity orapprehended potential to commit the kind of offence alleged, rather than on the specific proof of the crime: R. v. R. v. Handy, supra at

para 139; R. v. Shearing (2002), 2002 SCC 58 , 2 C.R. (6th) 213 at paras 71-72.

This kind of reasoning or inference isprohibited, as no-one should be convicted based on their general character, and it undermines the presumption of innocence to assumeguilty because of past behavior. [11] In this case, the moral prejudice risk I am to be concerned with, then, is that the testimony of J.J. may cast young J.M. in such anunfavourable light that I may be inclined to convict him of the offences against C.G., not because of the strength of the evidencesupporting the allegations relating to C.G., but because of the repulsive allegations made by J.J.

Reciprocally, I am to be troubled by theprospect that I might accept that J.M. committed the offences against J.J. because of how offensive his alleged acts involving C.G. are, orbecause of what the alleged offences against C.G. might say about J.M.’s general capacity to commit the offences against J.J. that arealleged. [12] Since judges are trained to avoid inferring that the accused may be guilty because they are the kind of persons capable of thecrime, and to avoid using the power to convict or punish accused persons because of their general reprehensible character, the risk ofmoral prejudice presents greater risks in a jury trial than a judge-alone trial.

Indeed, the risk of moral prejudice is considerably reduced injudge alone trials: R. v. W.(J.) 2013 ONCA 89 at para 40; R. v. B.(T.) (2009), 2009 ONCA 177 , 95 O.R. (3d) 21 at para 26-29;R. v. Roks 2011 ONCA 526 at para 94. [13] Still, this risk of moral prejudice cannot be entirely disregarded in a judge alone trial, for the evidence can leave a damagingimpression of the accused even with experienced jurists: R. v. Villeda [2011] A.J. No. 316 at para 18 (C.A.).

When it is heard, badcharacter evidence can burden the judge in discharging their obligation to try the case on the true value of the proof offered. [14] Similar fact evidence also presents the risk of “reasoning prejudice,” that is to say, the risk that the evidence will distort theability of the adjudicator to reason properly through a measured focus on the evidence that matters, giving it its due: R. v.

Handy, supra.The intensity of “reasoning prejudice” varies from case to case. [15] Reasoning prejudice can arise with intensity where the Crown seeks to prove misconduct by the accused as similar fact evidence,where that misconduct is not the subject of a charge. The admission of proof about uncharged conduct adds to the complexity and lengthof a criminal trial. Proof of such extrinsic or uncharged similar fact events can also divert the focus from the charges laid, since the judgeis compelled to conduct a side-trial into whether the alleged similar fact events probably occurred.

Moreover, proof about extraneousevents can lead to confusion between the evidence that pertains to the charged offences, and the proof that addresses the similar factevent. [16] Overlapping with the risk of moral prejudice is the “reasoning prejudice” concern that exposing the adjudicator to unchargedreprehensible conduct can create an unhealthy and distracting preoccupation with the discreditable character of the accused, diminishingthe proper evaluation of evidence that is more directly related to the incidents charged. [17] Where extrinsic or uncharged bad character evidence is offered, the accused can also be disadvantaged, having to expendresources and energy defending not only the charges laid, but also the similar fact event. [18] When uncharged misconduct is presented as similar fact evidence, the risk of reasoning prejudice is therefore apt to besignificant.

In a “count-to-count” application, such as the one before me, however, the risk of reasoning prejudice of the kinds justdescribed is significantly attenuated. Some authorities even claim it to be non-existent: R. v. McCormack 2009 ONCA 72 at para 39; R. v.B.(T.), supra at paras 27-32 (Ont. C.A.). [19] This is because the evidence the Crown seeks to rely upon is already before the court as proof of other specific allegations beingtried in the same proceedings.

The court is therefore not being asked to receive additional information that will complicate or lengthenthe hearing, and the accused is not being called upon to defend uncharged allegations. The risk of confusing evidence about the events isalready presented, and there is no risk of distraction for the adjudicator, beyond the need to avoid the moral prejudice described. [20] In this case, then, the request by the Crown to have me consider the evidence of each complainant in adjudicating the chargesinvolving the other complainant does not pose a pressing risk of prejudice.

All of the “similar fact events” require proof, in any event.The only real concerns, ones that I must be guarded against whether or not I grant the Crown’s request that I use count-to-count similarfact evidence, are that

(1) I do not confuse the evidence relating to the relevant events, and (2) that I do not permit the fact that I amhearing the disturbing allegations involving two children to taint the way I evaluate the charges through general bad character inferences.

[21] The fact the risk of prejudice in this case is significantly reduced does not automatically make it permissible for me to draw theinferences the Crown seeks. The Crown must still satisfy me that the evidence has sufficient probative value through permissible lines ofreasoning both to justify the inferences requested, and to overcome the limited risk of prejudice I have described. c. Probative Value [22] Probative value does not exist in a vacuum.

For probative value to exist, evidence must be relevant to a material issue in the case,and the inference that the evidence invites must be compelling enough to have at least some degree of influence in the case. [23] In R. v. Handy, supra at para 76, Justice Binnie referred to the logical link between the evidence and the material issue as the“connectedness” of the evidence, and he referred to this as the driver of probative value.

To satisfy this “connectedness” requirement,both the precise evidence and the material issue the evidence is said to inform must be identified, and the logical link needs to beidentified. In R. v.

Handy at para 82 Justice Binnie offered seven non-exhaustive factors that are instructive in discovering permissiblerelevance, or “connectedness.” These factors are not a formal checklist for reasoning but assist in discerning whether there is anappropriate link between the evidence and the issue being explored. [24] Since Handy, courts have stressed the importance, in this exercise of appropriately identifying the real issue the evidence may beconnected to: R. v. Johnson 2010 ONCA 646 , [2010] O.J. No. 4153 at para 92 (Ont. C.A.); R. v. Vuradin 2011 ABCA 280, [2011] A.J.

No. 1057 at para 31, aff’d 2013 SCC 38 , [2013] S.C.J. No. 38.

This is critical, so the real value of theevidence to the case can be properly understood. [25] In this case, based upon the arguments, it is clear that, in substance, the Crown seeks to use the evidence described above toassist in establishing two material things, (1) that both complainants are credible, and (2) that the actus reus of the alleged offencesoccurred. [26] The evidentiary theory the Crown is offering derives from two primary, overlapping contentions, that (1) since bothcomplainant’s referred, unusually, to “milk” coming out of J.M.’s penis, their evidence is more likely to be true, and (2) the allegedmisconduct involving each young complainant amounts to a modus operandi, again, showing that both young complainants are tellingthe truth, and that the acts complained of occurred. [27] In R. v.

Handy, supra at para 115-116, Justice Binnie cautioned that particular care must be employed when the offer is made touse similar fact evidence to enhance the credibility of a witness. The invitation to find that similar fact evidence is relevant to credibilitycan inspire too generous a gateway to admissibility, since any information that blackens the character of someone can enhance thecredibility of other allegations made against them. [28] Logically, the credibility of independent accounts can be enhanced when each account contains similar details that are unlikely tobe shared by mere co-incidence.

It is only where accounts are independent and have surprising overlap or share distinctive details, thatsimilar fact evidence is truly informative of credibility in this way. For example, in R. v.

Shearing, (2002), 2002 SCC 58 , 2 C.R. (6th) 213 (S.C.C.), the complainants each referred to the use by the accused, when grooming them, of pseudo-religious language, such asreference to “disembodied minds.” [29] In other cases, similar fact evidence can support credibility indirectly, by making it more likely that the acts complained ofoccurred; if the evidence tends to show that the acts complained of occurred, it must follow that a complainant is more credible in whatthey say. In such cases it is redundant to say that the evidence enhances credibility.

Given the danger in using “credibility” as thegateway, the analysis should be about whether the evidence truly assists in proving the act. In R. v. Handy, supra, Justice Binnietherefore rejected the attempt by the Crown to claim that the modus operandi evidence in that case enhanced credibility.

What theCrown was really attempting to show was that the acts complained of occurred – the actus reus - and that was the proper issue to use inanalysis. [30] In my view, credibility is an appropriate gateway for consideration for the first Crown theory, since the claim is that the use ofthe term “milk” to describe “semen” defies logical coincidence, and must therefore offer mutual confirmation that the two youngcomplainants are telling the truth. Credibility is not, in fact, an appropriate gateway for the modus operandi theory the Crown offers in

this case. The real claim being made is that the co-incidental, shared features between the alleged events show that the accused acts inthis specific way, making it more likely that the act complained of occurred. This is an attempt to use similar fact evidence to prove theactus reus of the offence. [31] I therefore propose to examine each theory of admissibility independently, beginning with the coincidental reference to milk, andthe theory that the use of the term by both complainants increases the prospect that the two complainants are telling the truth. i.

The “Co-incidental Reference to ‘Milk’” [32] J.J.’s evidence is that she saw “milk” come out of J.M.’s “elephant.” “Elephant” is a term she allegedly used to refer to J.M.’spenis, and “milk,” of course, suggests semen. J.J. said that during the event she recounted, J.M. had milk on his hand and then went towash his hand. She said that the “cow was giving [J.M.] the milk.” [33] C.G.’s evidence is somewhat different, but does contain similar references.

C.G. reported that J.M. said that “chocolate milk”comes out of his penis, (“my bum does chocolate milk”), but that she did not see this actually happen (“I think he was pretending.”).Once again, the suggestion is that C.G. meant “penis” when she said “bum.” C.G. also said that J.M. invited the girls to wiggle his “butt”or penis and chocolate milk will come out. [34] In addition C.G. said in her first

section 715.1 interview - adopted by her in her testimony - that on one occasion J.J. told her thatJ.M. keeps milk in his butt and that puke comes out of his butt onto the bed. C.G. said J.J. called her upstairs to come and see. C.G. saidshe went up, and although she initially said, “I saw Jaky’s pee puke with milk coming out,” she clarified during further questioning thatshe did not see it happen.

In her in-court testimony C.G. said she went upstairs and saw it was true, and J.M.’s mother, Tamara, wascleaning it up. [35] As indicated, the Crown urges that the fact that each young complainant refers to “milk” supports the credibility of eachallegation, because of the “improbability of co-incidence” that each complainant would use this term in describing what J.M. did. [36] Mr. Ertel argues, for J.M., that the law absolutely prohibits the use of the mutual “milk” references as similar fact evidence.

Thisis so, he claims, because there is a foundation for apprehending that C.G’s milk references are the product of “collusion,” and the law isclear that where this is so, before similar fact evidence can be admitted or used, the Crown must prove, on the balance of probabilities,that the evidence being offered has not been tainted by collusion: R. v. Handy, supra, at paras 112-113. [37] To be clear, although the term “collusion” ordinarily connotes a conspiracy between individuals, Mr. Ertel is not suggesting thatthe young girls have done anything corrupt.

He relies on C.G.’s evidence that J.J. told her that J.M. keeps milk in his butt, and that peepuke with milk coming out, on the footing that this communication has tainted C.G.’s testimony by influencing it. [38] The rule he invokes does indeed apply even where one witness inadvertently influences the similar fact features of the evidenceof the other witness: R. v. B.(C.) (2003), (ON CA), 171 C.C.C. (3d) 159 at para 40 (Ont. C.A.); R. v. Dorsey [2012]O.J. No. 1377 (C.A.).

It has this breadth because the theory of relevance rests on the improbability that witnesses would offer theintersecting testimony that they have by sheer coincidence, so it is likely to be true.

Where there has been a sharing of informationbetween the complainants, however, available options for understanding the overlapping use of an otherwise striking term are no longersimply “probable truth,” or an “objectively improbable coincidence that can fairly be disregarded.” A third option arises – in this casethat C.G. heard J.J. use the term “milk” and adopted it. [39] I do agree that there is an air of reality to the risk of tainting. In my view, however, the Crown’s evidence has established, on thebalance of probabilities, that C.G.’s reference to “milk” is not the product of collusion or tainting.

This is not simply a case where ayoung child, lacking mature language, may have heard and adopted the word “milk” as her term for semen. Nor is it a case where C.G.simply repeats the same particular milk allegations told to her by J.J. C.G.’s evidence is that she got the term “milk” from J.M.

Sheclaims he said that his “bum does chocolate milk” and that he said “Come and wiggle my butt, if you wiggle it chocolate milk will comeout.” For C.G.’s testimony to be the product of tainting, C.G. would have to have received the word “milk” from J.J., converted it into“chocolate milk,” and then used that concept to create the claim that it was J.M. who told her about “milk,” and informed her that hispenis can produce milk if it is wiggled. This is improbable. Indeed, it is more probable than not that there has been no tainting.

[40] As a result the firm exclusionary rule invoked by Mr. Ertel does not prevent admissibility. Whether the evidence is admissibledepends simply on whether the coincidental references to “milk” have probative value, and whether that probative value outweighs therisk of prejudice I have identified. [41] I am of the view that the co-incidental use of the term “milk” by the two complainants does have probative value. This probativevalue does not derive from the simple fact that both young girls use the term. That alone does nothing to prove the sexual allegationsunless the term “milk” is somehow linked to J.M..

Put more directly, the fact that two young girls would each use the term “milk” todescribe semen does nothing to prove that another person committed sexual offences. [42] In this case, however, the essence of C.G.’s testimony is that J.M. told all of the girls, including J.J., that his penis produces milk.In this context, J.J.’s coincidental use of the term “milk” - as a sexually naïve three year old - to describe what appears to be semen hasprobative value in proving that J.M. could well have told the girls that milk comes out of his penis, as C.G. alleges. [43] In my view, the probative value of this inference outweighs the prejudice its admission would bring about, and I will be admittingit.

As indicated, the risk of prejudice from moral prejudice or reasoning prejudice before me is low. When I valuate this evidence at theend of the case, however, I must continue to bear in mind the risks of tainting alluded to. The fact that the Crown proved that taintingprobably has not happened, does not make the risk that it did an irrelevant consideration in assessing probative value. ii.

The “Modus Operandi” Theory [44] As indicated, the Crown argues that the modus operandi evidence offered by both complainants about J.M.’s acts assist inproving that the acts described by the complainants actually occurred. [45] In my view the common use of the term modus operandi can, if care is not used, distort the evaluation of probative value. Thatterm originated in cases where the probative value of the evidence derived from the unique, hallmark or strikingly similar features sharedbetween the similar fact event and the crime charged.

As a result, the connotation of the term, modus operandi, along with the under-inclusive label, “similar fact evidence,”[1] has a tendency to create an expectation that probative value invariably depends on unique,hallmark or strikingly similar features. It does not. [46] To be sure, where there are unique, hallmark or strikingly similar features shared between a proved similar fact event linked to theaccused, and the crime charged, a variety of often powerful inferences can be drawn, based on the theory that it is improbable that eachwitness would independently make such unusual allegations.

Such evidence can support, for example, inferences that the act happened,or that the accused must have intended it, or even, where there is unexpected overlap in the stories told by independent witnesses. thatthe complainant’s must be telling the truth. [47] The admissibility question on the probative value side of the admissibility equation in a similar fact application is not, however,whether the evidence achieves modus operandi status.

In the context of the current issue before me, it is whether the evidence ofmisconduct offered by one complainant has probative value in showing that the misconduct towards the other complainant occurred. Asindicated, modus operandi reasoning can yield probative value, but modus operandi reasoning is not the only possible avenue in drawinginferences from similar fact evidence. [48] In R. v. Handy, supra the Court explained that probative value depends, ultimately, on the “connectedness” of the evidence to aproperly defined issue, other than through the prohibited inference of general propensity.

In other words, the evidence must logicallyyield informative inferences about a matter in issue, using a line of reasoning that is not predicated on the prohibited chain of reasoningthat relies solely on the general character of the accused: R. v. T.(J.A.), 2012 ONCA 177 , [2012] O.J. No. 1208. [49] Put another way, relevance cannot come from the moral prejudice reasoning described above. It is not appropriate to findrelevance in the demonstrated general capacity of the accused to engage in the kind of conduct in question.

To have permissible probativevalue the evidence must be relevant for other specific and identified purposes, and, before being available, the permissible relevantspecific inferences that are yielded must be probative enough to warrant the risk of prejudice they present. If that standard is met, it doesnot matter whether it is through modus operandi reasoning or not.

[50] An easy example illustrates the point. Imagine that the accused can be linked by fingerprints to the theft from a vehicle whereentry was gained through an unlocked door. He is discovered shortly after this theft opening the door of a nearby car. If he claims indefence of a charge of attempted theft relating to the second car that he was merely being a “Good Samaritan” finding and then lockingdoors left unlocked, his connection to the first theft has obvious probative value in rebutting this claim.

The earlier theft can assist inexposing his intention at the second car - even though there is nothing unique about stealing from cars through unlocked doors. Thiskind of theft happens all of the time. There are numerous cases where similar fact evidence gains admissibility in the absence of unique,hallmark or strikingly similar features: see, for example, R. v. Francis (1874), L.R. 2. C.C.R. 128; R. v. McLean (2002), (ON CA), 170 C.C.C. (3d) 330 (Ont. C.A.); and R. v.

Stewart (2004), 2004 BCCA 56 , 183 C.C.C. (3d) 421 (B.C.C.A.). [51] In the case before me there is not the kind of unique modus operandi pattern of the kind that I describe. There is no “strikingsimilarity” between the allegations, and no unique signature. Specifically, J.J. said, using her own immature language, that J.M. woke herup and pulled her head towards his penis, and held her arm while his penis was exposed to her, and that he licked her vagina while shewas upstairs at nap time. Meanwhile C.G.’s account is different.

She says that on several occasions J.M. exposed himself to her, J.J., andhis sister Victoria, after going downstairs during playtime, and that he would ask the girls to touch his penis but only J.J. would, and thathe wanted the girls to smell his bum and wiggle his penis. The two complainants describe very different sexual actions. [52] In my view, even though the sexual acts described by each complainant are quite different, the accounts of the two youngcomplainants support logical, probative inferences on the material issue of whether J.M. committed the acts complained of.

Particularly,the complaints support the inference that, during the same time-frame, J.M. exploited his access to extremely young girls that hismother’s day care business gave him, for his sexual pleasure, while his mother – the children’s care giver - was home. If proved, the factthat he used one child in those circumstances and in that situation for his sexual pleasure increases the prospect that he did so withanother child in the same situation. [53] In saying this I am not drawing the prohibited, general inference that J.M. is the kind of person who could sexually exploit youngchildren.

The probative value I discern is situational and contextual. It comes from the kind of general factors identified in R. v. Handy,supra, namely, the “proximity in time of the similar acts” [the same few months that the two young girls were in care together]; the“circumstances surrounding or relating to the similar acts” [the identical opportunities presented by the day care arrangement]; and the“distinctive features relating to the incidents” [the extremely young age of the complainants, and J.M. allegedly committing these actswith his mother home]. [54] To be sure, the probative value of this evidence is modest.

It would, indeed, have been stronger had the sexual conduct itselfbeen more uniform or unique, or if there had been more occurrences alleged. I cannot, however, find that the evidence lacks probativevalue. [55] In coming to this conclusion I have not lost sight of the fact that, in considering probative value, there is room to consider howcredible and reliable the evidence is that the similar fact event even occurred. If the evidence is not reasonably capable of belief, it willlack probative value: R. v. Handy, supra, at para 133.

While there are serious reliability and possibly even credibility issues that willhave to be canvassed in this case, I cannot say that the allegations made by either of the complainants are not reasonably capable ofbelief. [56] Nor have I failed to consider the insightful critique offered by Mr. Ertel. He pointed out the paradox in the Crown seeking to doindirectly what it has been unable to do directly. Specifically, C.G. testified that when J.M. exposed himself, J.J. was also there, yet J.J.offers no direct support for those events in her testimony.

Yet the Crown is seeking to use the testimony of J.J. about other crimes againsther, to prove C.G.’s claims. [57] I appreciate the point. This unusual state of affairs does not, however, undercut the relevance or probative value of the evidence Iam asked to consider.

The concern about the absence of direct support by J.J. can be raised in submissions about the credibility andreliability of C.G.’s testimony. [58] Given that there is modest probative value in the context and manner in which the crimes are alleged to have occurred, I must goon and ask whether that probative value outweighs the risk of prejudice. [59] Had this case been a trial before a jury, this evidence would not have made the grade of admissibility, given its modest probativevalue. The increased risk of prejudice in such a setting would have overborne the probative value.

[ 60 ] Similarly, had the evidence of either complainant been offered as extrinsic proof at a trial of charges against either of the complainants alone, its probative value would not have outweighed the risk of prejudice. [ 61 ] Since this is a judge alone trial, and the evidence will be heard in any event, the probative value arising from the specific inference I have identified does outpoint the very modest risk of prejudice presented.

I will, therefore, “admit” the count-to-count evidence to invite the inference I have identified – that the acts alleged are more likely to have happened given the specific context in which each set of allegations is made. III.

Decision [ 62 ] I find admissible and available to the Crown, as similar fact evidence, the coincidental use of the term “milk” by each complainant, for the specific purpose of inviting the inference that J.M. may well have told J.J. and C.G. that he kept milk in his penis and that it would come out if his penis was wiggled, as C.G. claimed. [ 63 ] I also find admissible the allegations of sexual impropriety by each young complainant, as evidence increasing the likelihood that the acts alleged occurred, based on the line of reasoning described. [ 64 ] The weight that evidence receives will be determined in all of the circumstances, including the risk of collusion, during final deliberations.

Released this 28 day of June 2016 __________________________________ The Hon. David M. Paciocco