R. v. A.R., 2011 ONCJ 810

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. Citation: R. v. A.R. , 2011 ONCJ 810 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — A.R. Before Justice T. Lipson Heard on December 6, 2011 Ms. D. Kennedy ...................................................................................................... for the Crown Mr. F. Addario and Mr. W. Thompson ......................................................... for the accused A.R. Lipson J.:

RULING ON SIMILAR ACT APPLICATION [ 1 ] A.R. is charged with sexual interference and sexual assault. The complainant is M.K. and the charges arise from incidents alleged to have occurred between September 1, 1994 and June 30, 1995. Mr. R. was M.K.’s grade 8 teacher at the time. [ 2 ] The Crown seeks to introduce as similar act evidence, the evidence of D.C. who alleges that he was inappropriately kissed and hugged in 1998 or 1999 by the accused. At the time Mr. R. was D.C.’s counsellor at a summer day camp. Mr.

R. was not charged with any sexual offences relating to D.C.’s allegations. [ 3 ] On the consent of the parties, the evidence on the application consisted of the testimony in-chief of M.K. and a transcript of a January 14, 2011 police interview with D.C. [ 4 ] The Crown seeks to introduce the evidence of D.C. in order to establish the actus reus of the alleged sexual assault on M.K. The Crown submits that the acts in relation to D.C. show a specific propensity on the part of Mr.

R. to develop abnormally close relationships with young teenage boys while in a position of trust and then exploit his position of trust to sexually assault them. It is submitted that, as in the allegations concerning M.K., Mr. R. “groomed” D.C. for the purpose of sexually assaulting him. [ 5 ] The defence submits that the proposed evidence is inadmissible because, at most, it demonstrates a general propensity on the part of the accused to be attracted to young teenage males.

It is submitted that the allegations made by D.C. are so dissimilar to those relating to M.K. that the probative force of the evidence is negligible to non-existent and is far outweighed by its prejudicial impact.

Summary of allegations made by the complainant M.K. [ 6 ] M.K. is now 30 years old. Mr. R. was his grade 8 teacher. When the school year started in 1994. M.K. was 13 years old. M.K.’s father was very ill with cancer at the time and he looked up to the accused as a father figure. Mr. R. had coached M.K. when he was in grade 7. When M.K. entered grade 8, Mr. R. took him “under his wing” and often told him that he cared for him and that he loved him. The alleged sexual activity began in the classroom either before or after school when M.K. went to Mr. R. for extra help.

At first, the accused would kiss M.K. on his cheek. This turned into kissing M.K. on the lips and progressed to open-mouth French kissing. This activity took place not only in the classroom but also in Mr. R.’s car when he would drop M.K. off at his home. Mr. R. also tutored M.K. at the student’s home. M.K. described an incident that took place just before Christmas, 1994 in a small den on the lower level of M.K.’s house. He recalled sitting on the accused’s lap. A.R. aggressively French-kissed him and told M.K. that he loved him.

A.R. then put his hand down M.K.’s pants, touched the teenager’s penis and then masturbated M.K. to the point of ejaculation. M.K. testified that there were four to five incidents when the accused masturbated him. On one occasion at the accused’s home, A.R. gave M.K. a massage. M.K. was fully clothed at the time. The accused gave M.K. several gifts including a hockey net, deodorant, cheap cologne and a pendant. A.R. even helped M.K. cheat on school exams by providing his with the answers to test questions. The sexual assaults stopped by the end of the grade 8 school year in the spring of 1995.

Summary of allegations made by D.C.- the similar act witness [ 7 ] D.C. provided a statement to the police in response to a media release concerning Mr. R.. It should also be noted that before speaking to the police, D.C. had a conversation concerning the accused’s charges with the director of the camp where he had been a camper and A.R. was a counsellor. The director provided some information to D.C. about the relationship which existed between A.R. and M.K.

For example, he understood that M.K. and his family had been close with the A.R. family and that, unlike D.C., M.K. had an ongoing relationship with A.R. until M.K. disclosed the sexual allegations to the police. [ 8 ] Over the course of two summers, Mr. R. was D.C.’s counsellor at a day camp. D.C. said that, in hindsight, he believed A.R.’s conduct with him may have been inappropriate but there was “never anything sexual”. The accused would participate in conversations containing sexual themes with D.C. as well as other teenage campers. Mr.

R. once told D.C. that his wife masturbated him during an airplane flight. Mr. R. also gave D.C, advice on dating girls. Sometimes the accused would hug D.C. Sometimes he would give him a kiss on the cheek when saying hello or goodbye. D.C. told the police that this was like saying “goodbye to your…mom or dad kind of thing.” Sometimes the accused would point to his cheek and have D.C. give him a kiss on his cheek.

D.C. stated that A.R. “tried to act like a father and back then it felt a little weird… it felt uncomfortable but …as a student at a school, perhaps it would been a lot weirder.” D.C. said that the activity never went beyond hugs and kisses on the cheek. A.R. told D.C. several times that he loved him. A.R. was never in D.C.’s home. The accused gave him a birthday card with some money. He may have bought him the occasional lunch at the mall. A.R. either bought D.C. a watch or discussed buying him a watch but D.C.’s parents disapproved. A.R. returned it or didn’t complete the purchase.

He believed he got the watch for hanging up posters in A.R.’s classroom. A.R. told him he was his favourite camper. D.C. told the police that his home life was good and that he didn’t consider himself as particularly vulnerable at the time. [ 9 ] During his interview, D.C. made the following comments concerning his perception of his relationship with the accused: • “Looking back, it seemed kind of his behaviour may have been inappropriate. There was never anything sexual but …it just didn’t seem right.” • “…I felt this was –like, such a borderline situation.

Like, he would kiss me …quickly but not so quickly that it was just like a peck…but I would respond with a fast--, like, get it over kind of thing.” • “It felt like he was trying to be almost—like, my father. Like, I never felt like—like he was trying to like a boyfriend or—like, a sexual thing. • When asked if A.R. ever touched him anywhere sexually, D.C. said “No…besides the hugs and that kind of stuff and the weird playfulness, no. He never..touched me or made me touch him for that matter.”

Analysis [10] The leading authority dealing with the test for the admissibility of similar act evidence is R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.). The court held that similar fact evidence and other evidence of discreditable conduct by anaccused person is 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 material fact in issue outweighs its prejudicialeffect on the fairness of the trial and justifies its admission. [11] In Handy the court says that in determining the probative value of the tendered evidence, it is essential at the outset toidentify the purpose for which the evidence is being adduced. Here, the Crown argues that the D.C.’s evidence is relevant to prove theactus reus of the offences for which the accused is charged.

The Crown submits that in his relationships with both D.C. and M.K., Mr.R. occupied a position of trust. The Crown submits that the tendered evidence demonstrates a specific propensity on the part of theaccused to exploit a position of trust in order to sexually assault teenage boys and, secondly, that he acted in conformity with thispropensity at the time he sexually assaulted M.K. The Crown contends that, as a matter of common sense, the similar behaviour by theaccused with both boys cannot be explained by sheer coincidence.

The tendered evidence is therefore probative on the issue of whetherthe accused committed the charged offences. [12] There is no debate that the closer the circumstances of the similar acts resemble the circumstances under which the chargedacts, the less likely the similarity can be explained by coincidence.

The real issue in this application centres on whether the proposedevidence is sufficiently strong to be capable of establishing the inferences argued for by the Crown. [13] The analytic framework set out in Handy requires the trial judge to identify the “connecting factors” which exist betweenthe similar fact evidence and the facts alleged in the charges.

Those factors include proximity in time, the extent to which the other actsare similar in detail to the charged conduct, the number of occurrences of similar acts, circumstances surrounding or relating to similaracts, any distinctive features which unify the incidents and intervening acts. The court must also consider the weight of the proposedsimilar fact evidence including the possibility of collusion. The trial judge must then assess the degree of similarity of the alleged acts,their cogency and decide whether the objective improbability of coincidence has been established.

If that is established, then the courtmust then engage in a balancing process. The question becomes whether the probative value of the similar act evidence is sufficientlygreat to admit it, notwithstanding its prejudicial effect. The court must assess the potential for both moral prejudice and reasoningprejudice. In considering the moral prejudice of the evidence, the risk is that there will be an unfocused trial that will result in a wrongfulconviction based upon prejudice rather than proof and based on an inference of guilt from the discreditable tendencies of the accused.

Inconsidering reasoning prejudice, the major concern is that the trier of fact will be confused and distracted from its proper focus,aggravated by the consumption of time dealing with allegations of multiple incidents. [14] In applying the test in Handy, I am mindful that the issue here is admissibility and not adjudication.

To be admissible thesimilar fact evidence need not have such great probative value as to be virtually conclusive of guilt. [15] As I indicated earlier, the most significant “connecting factor” in dispute concerns the degree of similarity between theproposed evidence of D.C. and the evidence of the complainant. [16] There are similarities between the proposed evidence of D.C. and that of the complainant’s evidence. D.C. and M.K. wereboth young teenagers when the alleged acts occurred.

While the accused’s involvement with D.C. occurred approximately four yearslater, I am of the view that they were sufficiently proximate in time. Mr. R. did occupy a position of trust in relation to both individuals.He was M.K.’s teacher and D.C.’s counsellor. A.R. told each boy that he was the accused’s “favourite” and that he loved them. Giftswere discussed or given. He kissed both boys. A.R. cultivated a father-like role with both D.C. and M.K. The acts occurred in private. Onthe basis of these similarities, the Crown argues that the proposed similar fact evidence is sufficiently strong to be admissible.

It was alsosubmitted that because this is a “judge alone” trial, there is a little likelihood that the court will be confused by the issues or engage inprohibited reasoning. [17] There are also significant dissimilarities. The most obvious is that D.C. himself does not allege similar sexual contact nordoes he believe that any of the acts were sexual in nature. A.R. never touched D.C.’s penis or masturbated him. The accused nevertouched him. He never sat on the accuser’s lap. There was no open mouth kissing. The contact consisted of hugs and kisses on the cheekin the course of saying hello and goodbye.

D.C. believed that the gift of a watch was for some work he had done in the accused’sclassroom. While M.K. was particularly vulnerable to the “fatherly” approach of the accused due to the serious illness of his father, D.C.was not in a similar position. [18] The court must also consider the broader context or the relationship out of which the similar fact evidence arose andwhether it is quite different from the charged incident. In his police interview, D.C. referred to dissimilar environments of camp andschool when he stated “At camp it’s different, you know. It’s not like you’re a teacher.

You don’t have the same necessarily type rules.You’re obviously hugging campers and stuff like that, but like he would hug me and say...”I love you” to me and he would buy...presentson my birthday...” I take from D.C. comments that, in his view, a counsellor hugging a camper at summer camp is not consideredparticularly out of the ordinary while a teacher hugging a student would be an entirely different matter. [19] In my view, there is significant ambiguity about the nature of the conduct of Mr. R. toward D.C.

Put another way, theevidence does not permit the court to conclude that the accused’s contact with D.C. was necessarily of a sexual nature as opposed tobeing inappropriate displays of affection. There is a difference. D.C. said that he never considered the accused’s behaviour to be sexual.More importantly, kisses on the cheek and hugs in the course of saying hello and goodbye do not, in my view, constitute the kind ofevidence that would be permissibly probative of the offences charged.

In all but one of the cases relied upon by the Crown, the tenderedsimilar facts involved clear and easily identifiable sexual offences such as genital fondling, masturbation, oral sex or intercourse. In R. v.R.T.J. [2003] O.J. No. 667 (S.C.O.) the trial judge did admit as similar act conduct that did not amount to a sexual assault. However, theevidence in that case was that the R.T.J. was prevented from assaulting the witness in her bedroom because she shouted out to her fatherwho was nearby. From all of the surrounding circumstances of the accused’s conduct, the court was in a position to infer that R.T.

J. wasabout to sexually assault the witness but was interrupted before he could. That type of scenario is not present in this case.

[ 20 ] The Crown contends that Mr. R. was engaged in a similar modus operandi of grooming D.C. for sexual contact, as he did in his relationship with M.K. On this record, that position is largely speculative. According to D.C., the accused had many opportunities at camp and elsewhere to commit a sexual assault. Nothing prevented the accused from sexually assaulting D.C. yet it is clear that Mr. R.’s behaviour never escalated beyond hugs and kisses on the cheek in the course of saying hello and goodbye. Also, Mr.

R. did not attempt to contact with D.C. after camp ended. [ 21 ] In my view, the probative value of the proposed evidence is far too weak to be probative of the charged offences. At most, D.C.’s evidence could possibly demonstrate a general propensity on the part of the accused to be attracted to teenage boys. Guilt cannot be inferred from general disposition or propensity. [ 22 ] In assessing the weight of the proposed similar act evidence, I have also taken into consideration that there is no evidence of collusion between M.K. and D.C.

Nevertheless, I do have some concern about the integrity of D.C.’s statement given that the witness had prior information about the accused’s charges from the media release as well as from a conversation about A.R.’s case with the camp director. D.C. told the police at the outset of his interview that he wished to offer a “character reference…in a negative way” regarding Mr. R.. [ 23 ] Turning to the “probative vs. prejudice” assessment, I am satisfied the prejudicial effect of the proposed evidence outweighs any probative value that it possesses.

I say that having regard to the issue of reasoning prejudice and, in particular, trial economy. Were this tendered evidence admitted, a significant amount of time would be devoted to the issues of whether the acts alleged by D.C. in fact took place and, if so, whether they were sexual in nature.

A considerable part of the case would be spent on a lengthy and distracting trial within a trial which, in all likelihood, would not assist the court in determining whether the accused is guilty or not guilty of the offences for which he is charged. [ 24 ] For all the above reasons, the evidence of D.C. is ruled inadmissible and the Crown’s application is dismissed. Justice T. Lipson Released: December 12, 2011