r v ., 2018 QCCQ 20455

R. c. Boucher 2018 QCCQ 20455 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division N° : 500-01-149312-172 DATE : January 8, 2019 _____________________________________________________________________ BEFORE THE HONORABLE JUSTICE E ONORABLE P PAT PATRICIA COMPAGNONE, J.C.Q. _____________________________________________________________________ HER MAJESTY THE QUEEN Prosecuter-Petitioner v .

BRIAN BOUCHER Accused-Respondent _____________________________________________________________________ DECISION ON MOTION TO ADDUCE SIMILAR FACT EVIDENCE [1] This decision is subject to a publication ban (486.4(1) Cr.C.). _____________________________________________________________________ [ 1 ] The accused is on trial for having sexually assaulted a young boy, X, while acting as his parish priest, and confirmation sponsor, between 2008 and 2011. [ 2 ] The Crown wishes to adduce similar fact evidence in relation to sexual assaults allegedly committed by the accused, on another young boy he knew while acting as his parish priest, Y, years before, between 1995 and 1999.

THE ISSUE [ 3 ] Is the testimony of Y admissible as similar fact evidence? CONTEXT [ 4 ] The complainant, X, gets acquainted, at a young age, with the accused, through his parent’s involvement in their religious community. More precisely, they are involved in catechism at their church, in the Town of Mont-Royal.

The accused is their parish priest. [ 5 ] The accused is a close friend of X’s family, is invited regularly for supper at their home and is considered trustworthy. [ 6 ] At the end of grade 6, X, 12 years of age, chooses the accused as a confirmation sponsor. [ 7 ] Soon after that, the accused starts asking X questions of a sexual nature. He encourages X to answer him, and confide in him, so that he may help him.

Some of the questions concern masturbation and ejaculation. [ 8 ] In the fall of his Secondary I, when X is 12 or 13 years old, the accused sexually touches him for the first time. [ 9 ] While driving X, and a friend, back home after a reconciliation ceremony, the accused learns of a «grinding» incident between X and a girl at a high school dance. He drives X to church, brings him in the rectory and threathens to tell X’s parents about the incident. He tells X to trust him and that he has to be completely naked to be completely truthful.

Fearing the accused, X obeys and undresses. [ 10 ] The accused proceeds to touch him on his genitals and on the rest of his body, also asking him to sit on his lap. [ 11 ] Over the following three years, sexual touching by the accused on X continues and progresses. [ 12 ] The accused performs oral sex on X and asks him to perform oral sex on him as well. [ 13 ] On one occasion, the accused asks X to lick his anus. [ 14 ] On three different occasions, during the last year of the abuse, the accused sodomizes X. [ 15 ] These sexual encounters occur during the school year, in the church rectory, while X is present at church, on Tuesdays and during

the weekends, as he is an altar boy for Sunday Mass. [ 16 ] They also occur during the summer, while X works as a volunteer at church. [ 17 ] The three episodes of sodomy occur in the bedroom of the accused, in the rectory, after having him take a shower and putting Lubriderm on X’s genitals, before sexually assaulting him. The accused tells X that this is a sin but it’s okay for him to do so since he’s a priest. [ 18 ] Eventually, the sexual assaults against X cease towards the end of Secondary 3, in 2011.

He is then about 15 years old. [ 19 ] While X is in Secondary IV, the accused learns of a relationship between X and a girl, through the girl’s mother. He informs X’s parents, who then proceed to ground him up until his graduation, the following year. [ 20 ] Stating that he had sinned, the accused asks X the details of his relationship with the girl thereby claiming that, if he discloses them, he would be able to rebuild his relationship with God. X obeys and confides in the accused. Time passes and the accused and X still see each other through church functions and involvement in their community.

Throughout their relationship, X feels the power and authority of the accused over him and complies with his demands, fearing retaliation by him or his parents. [ 21 ] In the summer of 2015, while at church, the accused becomes angry towards X for refusing to accompany him at an oil change for his car. X tries to leave but the accused doesn’t let him. Eventually, X leaves to go home. The accused finds him there and, though X and his parents do not let the accused inside their house, he gets in through the back door. A shouting match ensues between the parties.

X’s mother goes for a car ride with the accused to help calm matters down. [ 22 ] A short time after this event, X meets with the police to press charges against the accused for having sexually assaulted him. [ 23 ] As similar fact evidence, the Crown presents the testimony of Y who states also having been a victim of sexual assaults committed by the accused while he was between the ages of 10 and 13. [ 24 ] Y meets the accused when he is approximately 9 or 10 years old, while attending Camp Jenny, a church summer camp, in Lasalle. [ 25 ] The accused is a priest at the church associated with the camp, St-John’s Brebeuf Church.

He, along with Father Timmins, are the two priests assigned to this church, both living in its rectory. [ 26 ] Given that Y’s father is incarcerated, his grand-father asks the accused to take him under his wing and look over him. The accused becomes a good friend, almost a father-figure, for Y, thus becoming a good friend of the family also. [ 27 ] The first time Y experiences sexuality with the accused is while doing homework with him in his rectory. It’s while using the computer with Y that the accused asks him questions about sexuality and pornography as banners of such matters appear on the computer screen.

The accused specifies that this is bad considering Y is young and unmarried. [ 28 ] As time passes, the accused is often alone with Y, sometimes in his car, touching Y regularly on his lap with his hand and progressing to his crotch. [ 29 ] These car rides sometimes end at a motel, where the accused takes a shower, telling Y to take one also.

After, the accused gives Y lessons about unallowed sexual behavior that eventually end with the accused sexually assaulting him. [ 30 ] The accused tells Y to lie down on the bed, naked, to tuck his penis between his legs and to get on top of him, straddling him while using lubricant. [ 31 ] On the way back home, the accused regularly stops at a church for them to confess their previous inappropriate sexual behavior. [ 32 ] Y also recounts touching and sucking the accused’s penis, at his request, though most of the acts he remembers are of the accused touching him.

More particularly, oral sex and «general foreplay» to use his expression. [ 33 ] Y remembers the sexual assaults occurring at least once a week, sometimes twice a week, lasting until he has a girlfriend, around the age of 13. [ 34 ] The sexual assaults end when Y decides to distance himself from the accused, making friends with stronger counterparts. He then stops answering his phone calls or accepting his requests. [ 35 ] On one occasion, the accused phones Y’s house, his sister answers and pretends he’s not home, though he his.

The accused then shows up at their house, insisting to meet with Y, trying to enter their home. [ 36 ] This event marks the end of the relationship between the accused and Y. [ 37 ] About a year or two ago, Y is sought out by a church bishop and asked to come forward to report the sexual assaults committed by the accused. He does so by going to the police and to the church council. [ 38 ] Y does not know X and has never acquired knowledge of the content of any complaint against the accused.

The first time he heard X’s name was the day before his testimony when he learned through the prosecutor that he would be testifying in support of the present motion. [ 39 ] Finally, X does not know Y and has also never acquired knowledge of the content of any complaint against the accused. ANALYSIS

[ 40 ] The principles governing admissibility of similar fact evidence are now well established since the Supreme Court decisions in R. v. Handy [2] and R. v. Shearing [3] . [ 41 ] Evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible.

Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect [4] . [ 42 ] Similar fact evidence is thus presumptively inadmissible. [ 43 ] 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 [5] . [ 44 ] Similar fact evidence may be admissible if, but only if , it goes beyond showing general propensity and is more probative than prejudicial in relation to an issue in the crime charged [6] . [ 45 ] Bad character is not a criminal offence.

The Crown is not entitled to meet its burden by stigmatizing the accused as a bad person [7] . [ 46 ] The proposed similar fact evidence will be useful if it advances, or refutes, a live issue pending before the trier of fact [8] . [ 47 ] The issue in question derives from the facts alleged in the charge and the defenses advanced or reasonably anticipated [9] .

Identifying the live issue in the trial to which the evidence of disposition is said to relate is therefore of the upmost importance because the evidence may then be used in relation to that issue and not otherwise [10] . [ 48 ] Though bolstering the credibility of a witness is not allowed, in a general manner, by the admission of similar fact evidence, it may occur as an indirect consequence of accepting such evidence [11] . [ 49 ] Furthermore, accepting similar fact evidence may serve to establish the actus reus, which, again, can also, as an indirect consequence, bolster the credibility of a witness [12] . [ 50 ] The admissibility of the testimony of Y, concerning sexual assaults committed by the accused towards him, as «similar fact» in relation to the charges, must be considered in terms of (1) the probative value of the evidence, (2) assessment of the potential prejudice, and (3) the weighing up of probative value versus prejudice.

This means following the steps described in Handy . 1) Probative value 1.1) Potential for collusion [ 51 ] Both X and Y testified that they have never been made aware of the content of any other complaint made against the accused. [ 52 ] X has never even heard the name of Y in his entire life. He does not know him. [ 53 ] Y had never heard the name X until the day before testifying. More precisely, he was informed, that X had filed a complaint and had testified.

He then learned that his testimony was requested by the Crown to produce similar fact evidence in the trial concerning X. [ 54 ] X and Y’s testimonies have neither been contradicted, nor shaken or undermined, on these matters. [ 55 ] The Crown has met its burden on the balance of probabilities that the similar fact evidence is not tainted by collusion. 1.2) Identification of the live issue [ 56 ] The Crown argues that the live issue here is the defense of recent fabrication. [ 57 ] In addition, the Crown concedes that, indirectly, if admitted, the similar fact evidence will bolster the credibility of X. [ 58 ] The defense recognizes that the accused will argue that X fabricated his claim.

As well, an affidavit of the accused announcing this defense was filed in support of an motion under

section 276.1 C.c.r., granted by the Court at the beginning of the trial. [ 59 ] The defense contends that, even though this defense is to be presented, the Crown is asking to produce similar fact evidence only to bolster the credibility of X and not to rebut this defense. This, because the main issue, at trial, is credibility. [ 60 ] Of course, the Court cannot ignore the fact that bolstering the credibility of X would be an indirect consequence of the admission of the proposed similar fact evidence. But, this is not prohibited reasoning [13] .

Our Supreme Court has recognized the possibility of similar fact evidence being used to determine the crucial question of credibility. Justice McLachlin’s 1990 opinion on this subject, in R. v. B (C.R.) [14] was not reversed nor called into question in Handy [15] . [ 61 ] The Court considers that an important issue of the trial is the allegation of the recent fabrication by X of his claim. This element will be inevitably be used to counter the evidence of the Crown. [ 62 ] A recent fabrication is one made up after the event about which the witness testifies [16] .

The fabrication need not be recent, in the sense of proximity to the witness’ testimony, but it must post-date the event that is the subject matter of the witness’ testimony [17] . [ 63 ] This means that X would have fabricated his claim after 2011 for events that would have occurred between 2008 and 2011, while filing a complaint in 2015. On the other hand, Y testifies to events occurring between 1995 and 1999, while filing a complaint less than 2 years ago. Both do not know each other and neither of them have ever acquired knowledge of the content of any complaint against the

accused. [ 64 ] Consequently, the question of the improbability that X and Y would independently concoct stories with similar features when it is alleged that X fabricated his claim, is the live issue. [ 65 ] The nature of the relationship in which the sexual acts took place, testified to by Y, their nature, context and frequency, and the sorts of things said and done by the accused to Y will, if ultimately believed, assist the Court, in assessing the credibility of an assertion by the accused that the X fabricated his claim. [ 66 ] Of course, the proposed similar fact evidence could be used, as an indirect consequence, to bolster the credibility of X in the broadest sense. 1.3) Similarities and dissimilarities between the facts charged and the similar fact evidence Proximity in time [ 67 ] Lapse of time opens up a greater possibility of character reform or “maturing out” personality change, and would tend to undermine the premise of continuity of character or disposition.

Remoteness in time may also affect relevance and reliability [18] . [ 68 ] Here, the indictment alleges that the assaults on X occurred between September 1st 2008 and September 1 st 2011. At that time, X would have been between the ages of 12 and 15. The assaults alleged to have been committed on Y between 1995 and 1999, when he is around 9 or 10 years old and lasting until he is 12 or 13. [ 69 ] There is no direct parallel with the times in both cases.

So, it is impossible to categorically affirm that there is proximity in time. [ 70 ] Still, it cannot go unnoticed that the timeline in both cases is consistent with the period in time when the accused is occupying a position as their priest and not before or after.

Extent to which the other acts are similar in detail to the charged conduct [ 71 ] Crown argues that the sexual assaults are similar because they are all of the same nature except for the anal penetration alleged by X. [ 72 ] Defense maintains that though some acts are similar, dissimilarities are present, more particularly the position of Y with his penis tucked inside his legs and the accused straddling him and, of course, the anal penetration in the case of X but not Y.

The defense argues that the sexual nature of the events concerning X mostly resemble a homosexual relationship while the sexual nature of the events concerning Y resemble more of a heterosexual relationship. [ 73 ] Though most of the sexual acts are similar, referring to mutual oral sex, similarity does not specifically lie in the physical sexual acts themselves [19] .

The incidents occur in private places when the accused is alone with either complainants because of their relationship, him being their priest. [ 74 ] Sexual touching occurs when the complainants are minor, more precisely when they are prepubescent, between the ages of 10 and 15 (10 to 13 for Y and 12 to 15 for X). [ 75 ] The abuse of authority and trust in addition to opportunities of being alone with either complainants because of this, combined with the discourse developed by the accused, in relation with this abuse of his authority, about sinning, confessing and lessons to be learned, can certainly be considered particular and distinctive [20] . [ 76 ] As was the case in R. v.

Shearing [21] , the similarities mostly lay in the modus operandi , or situation specific behavior, employed by the accused to create opportunities for sexual assaults.

Number of occurrences of the similar acts [ 77 ] An alleged pattern of conduct may gain strength in the number of instances that compose it [22] . [ 78 ] Here, both X and Y allege the sexual assaults occur on a regular basis, when they are present in church, after school, or for mass, but also in contexts relating to their relationship with the accused as their priest. [ 79 ] It seems that the assaults occur almost every time the accused is alone with the complainants during the period reported by each of them. As such, the assaults occur regularly, for approximately 3 years in both cases.

Circumstances surrounding or relating to the similar acts [ 80 ] The surrounding circumstances are united by the allegation of abuse of power by a church leader. The evidence reveals abuse of power by the accused to obtain sexual gratification by young boys entrusted in his care because of his role as their priest. [ 81 ] Both X and Y report the accused manipulating them. Defense concedes that the evidence reveals some manipulation but argues that it is not the same for both complainants. Effectively, the evidence supports manipulation of both complainants through fear or guilt.

This manipulation is used to control both of them and to secure there submission. [ 82 ] Finally, both X and Y place the end of their relationship with the accused after he seeks them out at their home, not accepting that they no longer want to spend time with him or communicate with him. Any distinctive features unifying the incidents

[ 83 ] While the sexual acts themselves may not be particularly distinctive, the underlying unity lies, for the most part, in the alleged abuse of a church leader’s authority [23] . [ 84 ] In addition, the accused, using his position in the Church, sends out a deceitful message when presenting sexual behavior to both complainants as being wrong but teaching them the prohibited behavior by committing the assaults. Intervening events [ 85 ] The evidence does not reveal any intervening events.

Conclusion with respect to probative value [ 86 ] The Court is of the view that the similar fact evidence meets the threshold of being reasonably capable of belief. [ 87 ] Thus, the Court concludes that the similar fact evidence is capable of supporting the theory of improbability that X and Y would independently concoct stories with similar features when X is accused of having fabricated his claim. 2) Assessment of the prejudice [ 88 ] Of course, the proposed similar fact evidence is highly prejudicial. It is bad enough for a spiritual leader to be accused of sexual assault against one of his disciples [24] .

It is only worse when it concerns a child. [ 89 ] Prejudice is not the risk of conviction, rather the risk of an unfocused and wrongful conviction [25] . The forbidden chain of reasoning is to infer guilt from general disposition or propensity [26] . [ 90 ] Moral prejudice has to do with potential for an inference of guilt based on bad personhood while reasoning prejudice may include juror confusion and distraction from the task at hand, deciding the charge. [ 91 ] Of course, the combination of sex and religion is inevitably inflammatory, especially when it involves children.

However, concerns about this moral prejudice is significantly reduced here as this is a judge without a jury. The fear that a jury might be led into the prohibited chain of reasoning due to their minds poisoned by the similar fact evidence does not exist [27] . [ 92 ] The danger of reasoning prejudice is also low here since there is no jury. And, though the practical realities of the trial process reinforce the prejudice inherent in the poisonous nature of the propensity evidence itself [28] , the Court finds that is not the case here.

The evidence of the crown has been tendered and the defense has anticipated, and even announced, the witnesses required to testify, whatever the outcome of the similar fact motion. The trial will go on. 3) Weighing probative value versus prejudice [ 93 ] The Court concludes that the Crown has met its burden of showing, on the balance of probabilities, that the probative value of the similar fact evidence outweighs its prejudicial effect. There has not been any demonstration of collusion between X and Y There are significant similarities between the similar fact evidence and testimony of X.

The dissimilarities are insufficient to deconstruct the results of the Handy test. [ 94 ] Also, the similar fact evidence’s probative value is important and is relevant to the issue of rebutting the allegation that X fabricated his claim. [ 95 ] Finally, moral and reasoning prejudice are greatly diminished for the reasons explained before in paragraphs 91 and 92. FOR THESE REASONS, THE COURT: GRANTS the motion to adduce similar fact evidence; DECLARES admissible the testimony of Y; WITHOUT COSTS. _________________________________ PATRICIA COMPAGNONE, J.C.Q.

Me Annabelle Sheppard Counsel for the Crown Me James Cocciardi and Me Mark Paci Counsel for the accused Date of hearing : November 19, 20 and 21, 2018