R. v. Harding, 2021 MBPC 22

CITATION: R. v. Harding , 2021 MBPC 22 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) D. Queau-Guzzi ) for the Crown ) - and - ) ) Harley Harding ) A. Munce Accused ) for the Accused ) ) ) Reasons for Decision delivered: ) May 25, 2021 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] The Crown has brought a motion to admit similar fact evidence in Mr. Harding’s trial on charges of making audio child pornography, indecent phone calls and public mischief.

The charges relate to “prank” 911 calls to emergency services that he allegedly made between December 24, 2018 and May 26, 2019 (“the 2019 calls”) and on August 5, 2020. Mr. Harding admits that he made the calls on August 5, 2020. The Crown is seeking to tender evidence of previous “prank” calls to which Mr.

Harding pleaded guilty in 2015 and 2018 as well as the August 5, 2020 calls (“the admitted calls”), as probative of the identity and modus operandi of the caller of the 2019 calls. [ 2 ] We entered into a voir dire to determine whether evidence of the admitted calls are admissible as similar fact evidence. [ 3 ] This is my decision on the voir dire . [ 4 ] The tests and analytical framework for determining the admissibility of similar fact evidence are largely agreed. [ 5 ] At its simplest, the test is comprised of four parts: i).

Identification of the issue or purpose for which the similar fact evidence is tendered; ii). Determination of the probative value of the evidence; iii). Assessment of the prejudice to the accused; iv). Determination of whether the probative value outweighs the prejudicial effect to allow for admission of the evidence. [ 6 ] This case can be resolved by answering the second question. I have determined that the probative value of the proposed evidence is so low as to be misleading and unhelpful. It will not be admitted. These are my reasons.

THE LAW [ 7 ] Generally, evidence of propensity or previous immoral or illegal actions is inadmissible. But where the facts or acts are so strikingly similar that their coincidence would be objectively unreasonable, then the matter is no longer one of general propensity but

rather similar fact evidence (Sweitzer v. The Queen, (SCC), [1982] 1 S.C.R. 949; R. v. Arp, (SCC),[1998] 3 S.C.R. 339; R. v. Handy, 2002 SCC 56). [8] Similar fact evidence is admissible only where, in exceptional cases, its probative value outweighs the prejudice to theaccused. [9] The party tendering the similar fact evidence must prove on a balance of probabilities that its probative value outweighs itsprejudicial effect. [10] Identification of the issue to which the evidence relates is important to assist in determining the probative value of theevidence.

In this case the issue is how the admitted calls demonstrate a modus operandi or striking similarity to the 2019 calls that Mr.Harding denies he made, such that they bear on the identity of the caller. [11] The only issue it is necessary for me to determine in this case is probative value.

In similar fact evidence motions probativevalue is determined by analyzing the connectedness or nexus between the similar fact evidence and the offences alleged, particularlywhere the connections reveal “a degree of distinctiveness or uniqueness.” This connectedness or nexus, or the required degree ofsimilarity, was referred to as the “principal driver” of probative value by Justice Binnie in Handy (at para. 76). I turn to the approach thejurisprudence requires.

PROBATIVE VALUE The Degree of Similarity Required [12] The degree of similarity required depends on the issue for which the similar fact evidence is being tendered. For a caseinvolving the identity of the accused person, the Ontario Court of Appeal stated that a very high degree of similarity is required, “. . . sohighly distinctive or unique as to constitute a signature” (R. v. Scopelliti (1981), (ON CA), 63 C.C.C. (2d) 481 at 496(Ont. C.A.) cited in Handy at para. 77).

No matter how the issue may be described in this case, ultimately, the similar fact evidence willbe used to show that it is so similar to the 2019 phone calls or demonstrates the same modus operandi as the 2019 phone calls that itpoints to Mr. Harding as the maker of the calls. In other words, it goes to the issue of identity of the caller of the 2019 calls.

As JusticeBinnie stated in Handy, “. . . in essence, the idea of “modus operandi” or “system” is simply the observed pattern of propensity operatingin a closely defined and circumscribed context” (at para. 91). [13] The degree of similarity must therefore be high. Similarities and Dissimilarities between the Facts Charged and the Similar Fact Evidence [14] A list of the factors the trial judge considered in Handy was noted by the Supreme Court.

Justice Binnie emphasized that notall those factors exist in every case, nor is it necessary to consider all of them. [15] In this case, four of the factors that were listed in Handy are determinative of the probative value of the similar fact evidence: i. Extent to which the other acts are similar in detail to the charged conduct; ii. Circumstances surrounding or relating to the similar acts; iii. Any distinctive feature(

s) unifying the incidents; iv. Any factors rebutting the underlying unity of the similar acts. [16] The Crown argued that the admitted calls and the 2019 calls were all similar because they were all 911 calls made for thepurpose of sexual gratification. [17] That is true of the similar fact evidence calls, but it is not true of the calls constituting the new offences. [18] I listened to all the calls, that is, all the calls tendered as similar fact, and all the calls constituting the new charges. In theadmitted calls, Mr.

Harding expressed through words or sounds that he was masturbating or otherwise being sexually gratified in almostevery call. In 2015, 10 of the 12 calls involved the sounds of or words asserting sexual gratification. All three of the 2018 calls involvedsexual gratification, and one of the two 2020 calls involved sexual gratification. [19] Sexual gratification did not seem to be the main purpose of the calls at issue, however.

In the 40 calls from 2019, there areonly two instances where it is clear that sexual gratification is involved. [20] The particular sexual interests/fetishes or proclivities expressed in the admitted calls and the 2019 calls are also very different. [21] The calls that Mr. Harding admitted to involve adult men. In the calls, Mr.

Harding describes that he and an adult male areengaged in fellatio and touching of the penis and at some point it is obvious that he is masturbating or otherwise becoming sexuallyaroused and gratified. [22] As I indicated above, only two of the 40 calls from 2019 involve sexual gratification. The sexual activity or sexual languageused in the 2019 calls is also very different. The predominant theme is sexual and homicidal violence against young, female children,and, as the calls progress, the caller poses as the offender. [23] In the admitted calls that Mr.

Harding made there is a sexual fixation with men in football, firefighter or police uniforms. Mr.

Harding describes being involved with these men in graphic scenes of fellatio and hand stimulation of the penis and general sexual activity such as “doing stuff” and “indecent acts.” In the 2015 calls, Mr. Harding fantasizes about men in football gear in all but two of the calls; the other two calls involved a policemen and his cousin, involved in fellatio or hand stimulation of his penis. The 2018 calls also involve an adult male in football gear, this time his father, engaged in fellatio with him.

In the 2020 call involving sexual activity, he was involved in fellatio with a male firefighter. [ 24 ] The 2019 calls demonstrate very different interests or fixations. The calls are violent and involve sexual violence and murder of predominantly five year-old girls, on one occasion a four year-old girl and on two occasions his six or seven year-old sister. The caller talks about wanting to “fuck” a five year old, and about wanting her dead, about a five year-old dressed as a police woman who is dead in a dumpster, or another time in the bushes, once with a bleach bottle shoved into her vagina.

Another time, the little girl is dead and stuffed in a trash can, another time she is dressed like a police woman and stuffed half-way into a trash can. The victim is always a very young girl that he violently assaults or kills.

He says in one call, “I just want to say that I can do whatever the fuck I want and if I wanted to [inaudible] this girl and get away with it, I could.” The content of the calls becomes more violent, detailed and sinister over the December 2018 to May 2019 time frame. [ 25 ] On April 11, 2019, the caller talks about wanting to hurt a five year-old girl, and he wants her to be blonde and little. He talks about seeing a little three-year old girl in the grocery store in a little dress and “she looks perfect. . .

I just wanted to touch her hand, I wanted to hurt her.” He went on to say he could have easily taken her out of the grocery cart and slammed her head on the ground and killed her instantly or at least paralyzed her. He then said he was thinking about strangling a five year-old girl. In one of the calls he stated that he was holding a five year-old girl hostage. A little girl was on fire in another call.

In another a “lady” who was “approximately four years old” had a heart attack. [ 26 ] He talks about adult victims in only two calls and they are both female, but he reverts to talking about very young girls even in those calls. In one call he tells the operator that there is a police woman who looks like she is dead, but then he continues, saying there is a dead four year-old girl dressed up as a police officer.

In the other call involving an adult female, he stated that he needed help and that something happened, that he thought “she was going to die. . . she was hurt real bad” and he was trying to perform CPR on her. He told the police dispatch he was calling from a Crisis Response Centre on Bannatyne. The dispatcher asked if there was a nurse there that they could talk to. It was not until then he mentioned that the “she” was an adult; the idea came from the operator. The caller said the nurse was unconscious. He went on to describe that she was naked and how he was sexually assaulting her.

Then he started talking about a little five year-old girl in the dumpster out back. [ 27 ] The calls involving his six or seven year-old sister had her having a heart attack, being tied in her bed, and then murdered by him. He told operators he then engaged in

an act of necrophilia. In that call there were sounds of sexual gratification. [ 28 ] The other call involving sounds of sexual gratification involving killing the five year-old girl he said he was holding hostage. He was also taunting and manipulating the operator, saying, “I’m going to kill her. Do you want me to kill her? I’m gonna kill her right now; I want you to listen to me.” After telling the operator that he was “jerking off” and she should “Help me touch myself”, the operator ended the call.

He called back, stating sarcastically, “Thank for hanging up on me. . .” and then went on to say he needed help or he was going to kill a little five year-old girl. He said, “I need some help you stupid fucking slut.” [ 29 ] In both calls where he says there are dead women, who are then dead girls, there is an additional violent factor of something being shoved into their vaginas, another time when it is his seven year-old sister. [ 30 ] Mr. Harding does not make comments about children in any of the admitted calls. He does not make comments about hurting anyone. There is no violence.

He is usually the one being dominated. The caller in the 2019 calls on the other hand, demonstrates aggression, violence and makes assertions of dominance. [ 31 ] The behaviour towards emergency operators of the caller in the 2019 calls is also very different. Notwithstanding the fact he was committing public mischief and making indecent calls, Mr. Harding was generally polite to the operators to whom he spoke. He was never rude nor demeaning to them. He was very straightforward in his recitation of the content that sexually aroused him, which was engagement in sexual acts with adult men.

He asked to speak to a male operator in one call. [ 32 ] The caller in the 2019 calls was distinctly rude, aggressive and misogynistic to the mostly female operators, saying things like, “Fuck you, you cunt”; “Can you go fuck yourself, now?”, “You stupid, fucking cunt”; “I said you’re a stupid, fucking slut.”; “Do you think you scare me (repeated three times); I think you’re a fucking whore.” He asked to speak to a female operator if he was speaking with a male. [ 33 ] The caller was also manipulative in several of the 2019 calls; this was not a feature of any of the calls made by Mr. Harding.

One example of this was “I don’t trust you; I need help. After talking to you I want to hurt a girl even more. I have a bad vibe coming from you.” [ 34 ] He clearly had issues with adult women, accusing the operator of being mad or angry at him when he had not done anything wrong, and then he says, “I feel scared. . . you remind me of my step-mom. . . you have the same tone of voice.” He tells the operator to apologize before he will supply his address. [ 35 ] He tried to control the operators in many of the calls. Again, this was a distinctive feature of these calls, absent from the calls made by Mr. Harding.

Some examples are, “You need to comply or I’ll kill her.” “I also want you to call me daddy when you speak to me. You need to do as you’re told.” “I’ll give you an option to listen to it or hang up” (after stating he was going to engage in

an act of necrophilia, described in graphic detail). [ 36 ] The circumstances in which Mr. Harding made his calls were also markedly different than the 2019 calls at issue. Mr. Harding’s calls were made without any sophisticated effort made to disguise his voice or evade detection. They were made on an unregistered cell phone, then on the landline where he lived, and finally, on the cell phone that Probation Services provided to him to stay in touch with his Probation Officer during the COVID-19 pandemic. The 2019 calls at issue are markedly different: they were all

made using Voice Over Internet Protocol software, which creates an untraceable number and requires the use of a cell phone app. This is particularly important, given that the August 4, 2020 calls used an easily-traced number. It is unlikely that Mr. Harper would revert to using an easily detectable method of making calls after utilizing more sophisticated technology in 2019 to evade detection. [ 37 ] The Crown argued that all the calls were made within a time frame that would reduce the probability of a change in behaviour. But the only similarity between Mr.

Harding’s calls and 2019 calls at issue are that they were calls involving fictitious emergencies involving sexual content to 911 operators. That is where the similarities end. The calls made by Mr. Harding involve fantasizing about male on male sexual activity by which he is clearly aroused. The 2019 calls involve violent sexual deviancy against young female children. They are predatory and frightening. [ 38 ] It is particularly telling that Mr.

Harding’s calls demonstrate the same modus operandi – the calls which he pleaded guilty to in 2015 and 2018 are very much like the calls he has admitted to making in 2020: he and adult men whether in police uniform, football uniform or in firefighter suits, are engaged in sexual acts, and Mr. Harding is obviously aroused in describing the acts to the operators. The 2019 calls – which are in the middle of all these similar calls – are not similar. [ 39 ] The fact that most of the calls are made late at night or early in the morning is not a helpful comparable.

I expect that most calls to 911 of a prank or fictitious nature are made late at night or early in the morning. [ 40 ] The Crown also argued that the caller often gave operators fake names beginning with the letter “J.” Mr. Harding used the name Jordan in all but two of the 2015 calls; he also used his own name in one call (which may have been a legitimate call) and the name Evan. He used the name Justin in the two 2018 calls. He used the name Jamon in 2020. [ 41 ] The calls in 2019 used Jonathon several times and also Andrew, Alexander, Alan and Brian.

It is possible the caller was making his way through the alphabet. [ 42 ] The defence filed information about several calls near the end of December 2018 made to Klinic crisis line in Winnipeg in which the caller stated he wanted to dress up as Dracula, kill a little girl and then kill himself. Winnipeg Police learned that there were similarities between these calls and numerous calls to Mobile Crisis in Saskatoon in the preceding three months by a male expressing pleasure in extreme child abuse and violence against women.

All the calls utilized Voice over Internet Protocol and police believed the calls to originate from the United States. The Saskatoon caller often used the names “Jack, Jake, Jacob, Alex and John.” [ 43 ] The defence did not have sufficient evidence to put forward a third party suspect, but argued that these calls demonstrate more similarities to the calls at issue than Mr. Harding’s admitted calls. At the very least, this information demonstrates that there were calls whose content involved extreme violence and killing of children at the same time as the 911 calls in Winnipeg in 2019. I agree. Mr.

Harding’s Statement to Police as Linkage Evidence [ 44 ] The Crown also relied on the accused’s statement to police as evidence to strengthen the probative value of the proposed similar fact evidence. The defence is opposed. There are no issues as to the voluntariness or Charter compliance of the statement; the defence is opposed on the basis that it is irrelevant at this stage of the proceedings.

She states that the statement is admissible at the trial of the prank calls, but it is not relevant and is therefore inadmissible on the similar fact evidence motion. [ 45 ] The general rule is that linkage evidence is not admissible to determine the similarity between acts. It is from an examination of the acts themselves that the decision is made about whether they are similar enough to be considered as evidence to prove the charge ( R. v. MacCormack , 2009 ONCA 72 at paras. 57-58 ). Thus, in this case, I have considered the phone calls to determine whether the calls made by Mr.

Harding are similar enough to the phone calls at issue, the 2019 calls. [ 46 ] I am not convinced that the statement assists me in making that determination. [ 47 ] The statement does not provide any additional evidence that helps to bolster or make stronger the lack of similarity between the calls Mr. Harding admits to making and the calls that are at issue. He admitted in his statement that he makes 911 calls for the purpose of sexual gratification. That was already very obvious from the calls themselves. He confirms his sexual interest in men wearing police, firefighter and football gear.

That was also very evident in the calls themselves. And he denied any sexual interest in children, both to the police and when he was alone in the interview room and talking to himself. DECISION ON PROBATIVE VALUE [ 48 ] The proposed similar fact evidence consisting of evidence of the phone calls that Mr. Harding has admitted to making before and after the 2019 calls at issue is not admissible. It does not meet the first part of the analysis; the acts are not similar. They are in fact very dissimilar.

The similarities are only very general, that is, that they were 911 calls that sometimes involved sexual fantasy and sometimes for the purpose of sexual arousal. [ 49 ] The calls that Mr. Harding made (2015, 2018 and 2020) demonstrate sexual interests and fetishes involving adult men in football gear, police or firefighter uniforms engaging in sexual activity with him. He is aroused by his verbal fantasy and can almost always be heard to be masturbating. His attempts to avoid detection were extremely unsophisticated, basically, giving a fictitious name and address.

His use of his Probation Services-issued cellphone to make calls in August, 2020 is demonstrative of his unsophisticated approach to committing these offences. [ 50 ] The calls at issue from 2019 are not at all similar. The caller uses sophisticated technology to disguise his identity and avoid detection. He is misogynistic, manipulative and aggressive with the operators.

The content of the fantasies is about sexual violation, killing and necrophilia of very young girls. [ 51 ] In these circumstances, it is not necessary to conduct a lengthy assessment of the prejudicial effect of admitting the similar fact evidence and then weighing the probative value against the prejudicial effect. Even though this is a judge-alone trial, there is prejudice

in admitting any type of propensity evidence. The lack of similarities and the striking dissimilarities between the proposed similar acts and the acts constituting the offences charged make this weighing

summary: the prejudicial effect outweighs the probative value. [ 52 ] The similar fact evidence motion fails. “Original signed by:” DEVINE, P.J.