R v Bueti, 2023 MBPC 58

CITATION : R v Bueti , 2023 MBPC 58 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) J. Mays ) for the Crown – and – ) ) David Bueti ) L. LaBossiere J. Weinstein ) for the Accused ) ) ) Reasons for Decision ) Delivered November 16, 2023 RULING ON THE CROWN’S SIMILAR FACT APPLICATION Restriction on Publication Pursuant to s. 486.4(1) of the Criminal Code , any information that could identify the complainant s shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of th ese offence s. GARRECK, P.J.

INTRODUCTION [ 1 ] At the time of these allegations, the accused, David Bueti, was a high school teacher assisting with coaching the girls’ rugby team. Mr. Bueti assisted with three women; the head coach who testified before me, an assistant coach and a manager. All three were present at the practices when Mr. Bueti was assisting. [ 2 ] The rugby season began in February 2022, with between 20 to 25 high school girls on the team. Mr. Bueti assisted from February until some time in March of 2022, at which time the head coach asked him to find something else to coach.

She testified they had very different styles of coaching that made it difficult to coach together. She testified she never saw any inappropriate interaction between Mr. Bueti and any of the players on the team. [ 3 ] The Crown called four complainants on the application, and entered a stay of proceedings on the charges involving one, partway through the cross examination.

For the purpose of this application, the remaining charges involve three complainants, all of whom were players on the rugby team during the 2022 season. [ 4 ] The Crown seeks a ruling that evidence of similar facts from the remaining three complainants be admitted in relation to each of the others on the Information, referred to as a cross-count similar fact evidence application. The defence opposed the application.

SUMMARY OF THE EVIDENCE [ 5 ] This

summary is as extensive as needed for balancing the probative value versus the prejudicial effect of the evidence on this application. [ 6 ] BO joined the rugby team in February. She said the practices were twice a week. She estimated Mr. Bueti was there for only three to four practices. [ 7 ] She said all coaches were present and involved in the drills. All players were expected to take turns with the drills and to watch when others were doing the drills. [ 8 ] She described Mr.

Bueti as a coach who liked to show or demonstrate the drills while holding you, so you could see how to do it, while the other coaches described verbally or demonstrated by doing it themselves. [ 9 ] She said during a drill, Mr. Bueti would grab her hips or shoulders and kind of shake her out a little bit to get her loose, because you need the body to be loose. When asked to describe this, she said he would grab her hips and brush up against her with his pelvic area against her butt.

He would just show her the movements and show her how it was supposed to be done. [ 10 ] She was asked, “When you say he was rubbing up against your butt, can you describe that a little bit clearer?” She said, “Yeah,

of course. He would pull me into his body and he would kind of just sway his hips and I was like stiff. Like, I didn’t know what was happening. So he would swing -- like, kind of sway his hips to make my hips sway. And while doing that, he rubbed his pubic area against my butt.” Asked if he said anything, she answered, “Other than showing me and telling me ... what to do and how to make my -- how to like adjust my body to do the hits for rucking.” [ 11 ] In direct examination, she was asked how many times Mr. Bueti was holding her hips as mentioned. She said two to three, maybe four times.

She was then asked to clarify specifically about the incident just described with the holding of the hips, if it happened in the same or different practices. She answered, “Yes, this happened in the same practice . . . The second practice”. [ 12 ] She was asked if anything else happened at practices that made her uncomfortable with Mr. Bueti, she said, “He would call me babe sometimes or, like, make kissy faces.

Like, the kiss emoji.” [ 13 ] When asked if anything else happened in the practice other than that, she said, “Not that I remember.” When asked if anything happened in any other practices, she said, “Yes, it would happen for the next few practices, kind of the -- just the same thing, a grabbing of the hips and calling me babe and making a kissy face or a pursing of the lips.” [ 14 ] She described the incident at the second practice with Mr. Bueti was during a rucking drill.

She was asked, “You had indicated that he was . . . talking about your form, did he say anything specific to you about why you needed to -- to correct your form or --”. [ 15 ] There was an objection to use of, “to correct your form”, for not correctly putting the evidence as previously said by the witness. [ 16 ] She was asked, “When you were approached, did he indicate to you specifically why you needed to be approached?” She said, “No.” Question, “Did he indicate that you were doing anything wrong?” The question was clarified, “You’d indicated Mr. Bueti approached you.

You described him putting your hands on your hips. . . Did he indicate to you why . . . he did that?” Her answer was, “No, other than just saying to correct my form.” [ 17 ] When asked if any of the other coaches during drills approached her like this, she said “sort of”, and explained, “They’d usually ask first and they’d have a reason for clarifying… They would ask for permission to touch me or to help or show me how to do the drill.” [ 18 ] In cross examination, she agreed the first time she ever said Mr. Bueti would grab her hips and shake her out to make her loose, was in the courtroom.

There was confusion in the evidence about what happened on the first time versus what happened at more than one practice, and about the frequency of the hip swaying to loosen her body versus touching with the pelvis. She described both happened in the course of a drill when repositioning on form. She could recall the specific circumstances of only one rucking drill when his pelvis touched her butt. [ 19 ] BO acknowledged speaking to other players on the team about their experiences with Mr. Bueti, including with JB, AG and three other named players.

They spoke about it on many occasions before June of 2022, which was before speaking to police. She agreed over time she came to know what happened with a bunch of teammates including JB, AG and LF. [ 20 ] When asked in direct if she ever told JB about what happened to her with Mr. Bueti, she said, “No, [JB] told me.” Asked what she told JB, she said, “I just told her that she wasn’t alone and it’s okay to feel how she feels.” Asked if that is all she told her, she answered, “From what I remember yes”.

She said she did not tell any other teammates anything specific that happened to her. [ 21 ] She was asked if JB told her anything specific about what happened to her, she said, “Just that he was being inappropriate with other team members.” [ 22 ] When asked did JB say anything that happened to her, she answered yes.

She was asked, “Did [JB] tell you anything specific that had happened to her?” She answered, “Not specific, but generalized.” [ 23 ] In cross examination BO confirmed, “[JB] didn't specifically tell me what he did, she just told me that he touched her and she didn't like it.” She said JB did not tell her where it was that he was touching her. [ 24 ] BO agreed she told the truth in her police statement and that her memory was better then. In the statement, referring to JB she said, “She told me he was touching her, like in the same way he was touching me… Mr.

Bueti would grab her hips the same way he grabbed mine.” [ 25 ] During cross examination she agreed that JB didn't just tell her she was touched inappropriately and didn't like it, she told her where she was touched. BO agreed that from what JB told her, she was able to conclude JB was touched in the same way as her. She agreed there was some context provided for her to conclude it was the same. [ 26 ] When asked if JB told her she saw it happen to a lot of people. She said, “Roughly, yeah. . . I don’t recall specifically.” She agreed she told the police JB saw it happen to a lot of other people.

She agreed JB told her not just to one or two, but a lot of other teammates. [ 27 ] BO agreed that AG and LF also told her about what happened with Mr. Bueti that made them uncomfortable. She agreed she talked to them and to JB about how Mr. Bueti was inappropriately touching teammates and that discussion occurred on many occasions. [ 28 ] She agreed in these discussions they exchanged experiences and shared about what happened to each of them. She agreed over time, based on what she was told, she came to learn it happened to a bunch of teammates.

She agreed she became familiar with what others were sharing about Mr. Bueti and they were able to compare and decide if it was the same or different. All the discussions happened well before they talked to the police. It was a significant topic of discussion until they went to Ms. Hendricks ( sic ), which she was part of with AG.

[ 29 ] In cross examination, she agreed the time when his pelvic area brushed up against her butt, was a pretty quick contact, she was not looking at him, he was behind her, she could not see what part of his body was touching her butt, she did not at anytime feel anything hard. She agreed he could have been explaining or talking while this move was happening during a rucking drill. [ 30 ] In cross examination, she agreed to the following suggestions made by counsel: Q . . . that the first time it happened, you didn't really think much of it? A Correct.

Q There was nothing really obvious about it being inappropriate that stood out to you the first time that it happened, right? A Yes. Q And even the second time, you weren’t quite sure if it was intended to be inappropriate, right? A Correct. Q You’re thinking kind of, like, Okay, maybe it was an accident, right? Maybe he doesn’t even realize that he’s doing it, right? A Yeah. Q Because it’s quick and it’s fast, right? A Yes. Q And it’s happening in the context of a drill being taught? A Yes. [ 31 ] She agreed, in total the hip sway with the pelvic area touching happened at least at one or two practices.

Although she said it was three or four practices in her police statement, she is not sure now. She could only remember the circumstances of the one time during a rucking drill and could not describe any of the other circumstances. [ 32 ] She agreed that one of the first things she said in direct examination about what happened to her was, “He would grab me by the hips or shoulders and shake me out to get me loose.” She agreed she never mentioned that to the police or the Crown attorney before court. She said that is because she forgot the majority because it was a traumatic experience.

She didn’t remember if she told the Crown attorney, but she believed she did, and if she did not, it was because she just didn’t remember it until now; she didn't touch that memory before now. [ 33 ] She agreed when she first asked JB why Mr. Bueti was not at practice anymore, JB never said anything about inappropriate touching. She said he was disruptive and talking over the other coaches and it made it hard for them to teach. [ 34 ] When asked about Mr. Bueti calling her babe, she said if anyone not her age called her that it would make her uncomfortable.

She agreed telling police, “He would also call me babe a lot, but not like -- I’ve had teachers, like, it’s okay, babe or whatever, but this was kind of, like, icky.” Counsel started to ask, “So you -- other teachers did --”. BO interrupted, saying, “Have asked for permission.” She agreed she never told the police, that other teachers asked her permission to call her babe. [ 35 ] When suggested the kissy face was during practice, she said, “Or outside of classes when he saw me in the halls”. Counsel asked her if she was saying that Mr.

Bueti, while passing her in the halls, would make a kissy face at her, she answered, “Yes, but not when it was busy.” She agreed she never said before, that he would only do it in the halls when it was not busy. [ 36 ] HG, a player on the rugby team, observed the practice drills from the sidelines because of a pre-existing injury to her ribs and wrist. She could not fully remember, but thought Mr. Bueti was at six or seven practices. [ 37 ] At the first practice, she said Mr. Bueti approached her on the sideline to ask why she was not participating in the drills.

She told him her ribs were injured and showed him where. In direct examination she said Mr.

Bueti touched her rib area without asking permission after saying, “Oh let me feel it” and then he said he didn't really feel anything wrong with it. [ 38 ] She said one other time when they were walking in the hallway, “He asked how I was doing, gave me a high five and then asked how my ribs were and that’s when he touched there again.” She said he did not ask if he could touch them, and she didn’t ask him to check them. [ 39 ] She testified, “[AG] brought up to me that she was going -- coming forward about what happened to her and then that helped me to also do the same.” She testified that she read a note AG wrote and she spoke to AG about it.

Before that, HG had not gone to anyone or spoken to anyone about what Mr. Bueti had done. HG said she never told AG details about what happened. [ 40 ] She agreed that she and SF were present at a meeting together while they each told the school social worker what happened to each of them. Both were sharing their experiences with Mr. Bueti. She agreed it was possible she and SF may have talked about Mr. Bueti aside from in the social worker’s office, but she was not sure when. [ 41 ] HG testified having a clear recollection of Mr. Bueti saying, “Let me feel it,” when talking about the injury to her ribs.

In cross examination, HG agreed she told the police, “Yeah, that he touched me like, because of my ribs. He asked me like, ‘Oh, can I touch

them?’ And he’s like put his hands up and whatever.” She agreed he may also have asked, “Does this hurt?” She couldn't remember but said it was possible. [ 42 ] She agreed she told the police the truth and that it was different than what she said in court. She agreed that she was telling police Mr. Bueti was actually asking, “Can I touch them,” meaning her ribs. Then said she couldn’t remember but it certainly could be possible that is what he said. She agreed that is what she told the police he said. [ 43 ] During cross examination about the touch in the hallway, HG said he did not ask how she was doing.

She did not recall saying that during the direct examination. [ 44 ] In cross examination, she confirmed she and AG talked, and she told AG the inappropriate touch was a rib touch. She agreed, talking with AG and the social worker was support for her. She agreed with counsel’s suggestion: Q . . . and talking this through with -- with her and your friend, [ AG] , that that assisted you at least to, then, go back looking back at the incident that had happened with Mr. Bueti, to then process what had happened to you; is that fair to say?

Having [ AG] tell her story about what her -- happened to her, something like that at least help you go back and look back at this particular incident? A Yeah. Q And to -- to look back at it to then know that it was inappropriate? A Yes. [ 45 ] JB said Mr. Bueti was one of the coaches at the practices twice a week, for maybe a month. She believed he stopped coaching around the end of March. [ 46 ] She said Mr. Bueti often would like to physically touch the girls to move them if he wanted them to stand in a certain position.

She said it was something she saw and something that happened to her. [ 47 ] When asked to explain what happened she said, “I can’t remember specifically which drill it was, but standing the wrong position, the wrong way and coach wanting to show me the correct way to stand and the correct position to stand and the proper way to do it. Instead of verbally asking to readjust, he would put his hand on your body somewhere. And in my case, it happened to be on the side.

I don’t know how you want to -- what you want to call it.” [ 48 ] She continued, “He would attempt to move you or he did move -- he put his arm around me instead of doing it by the arms or something like that. It had to be around the upper waist, upper -- I don’t know what this is called, side boob part, whatever that’s called. And then go to adjust you that way, instead of just using words.” [ 49 ] Asked how she felt when it happened, she said, “Very uncomfortable. . .

It happened one time at one practice to me.” [ 50 ] JB said she talked to BO, who was one of the other females on the team about it, because BO had discussed other things with her. When first asked if she talked to any other players, she said no, only BO talked to her about Mr. Bueti and told her what happened to her in her situation.

She said BO probably told her specific information, but she could not remember it. [ 51 ] She agreed she did tell the police what BO said, “He would call her babe and touch her butt.” She agreed, “That is what BO told me, but I can’t remember if BO had mentioned that that happened to her or if that happened to other girls, or who that had happened to.” She agreed she told the police it was what BO said happened to her. [ 52 ] JB said she told BO what happened to her in the same level of detail she told the court. When JB was asked in court if Mr.

Bueti touched her on the hips, she said he did not touch her on the hips, there was no hip touching. [ 53 ] JB said she saw Mr. Bueti grab other players around the waist, but she was unable to say who the players were or to describe the circumstances in which she saw that happen. [ 54 ] She agreed that she and BO discussed their mutual experiences lots of times. She said she only talked to BO about Mr. Bueti touching her inappropriately. [ 55 ] During cross examination, JB agreed she and BO did have a discussion as part of a group of three with AG. She couldn't remember talking to any other girls about Mr.

Bueti. [ 56 ] When JB’s police statement was put to her with a suggestion she was part of a discussion on a team bus with a player named AL, she did recall that discussion. [ 57 ] JB agreed that she never saw Mr. Bueti do anything inappropriate with AL. She said the way he talked to AL was definitely not the way a teacher should be talking to females. Asked if she ever told the police that she witnessed Mr. Bueti speaking to other teammates in an inappropriate fashion, she said she could not remember. After reviewing the police statement, she agreed she did not ever tell police she witnessed Mr.

Bueti speaking inappropriately with AL, nor did she tell the Crown. [ 58 ] She agreed AL told her Mr. Bueti did nothing wrong. She said she didn't believe that. She was of the opinion something did happen, because of the way AL is flirty and suggestive with guys in high school and how she acts. She agreed even though she never saw or heard anything with AL, she still thinks something happened anyway. [ 59 ] She confirmed she saw Mr. Bueti touching other girls at the waist but that she can’t say who those people are or what the circumstances were, just that he would touch them on the waist.

She said, “Specifically just to move them around. Like, if he wanted somebody else to stand in a different position because they were standing the wrong way or in the wrong place, I don’t remember who,

but that’s how it happened, the situation.” [ 60 ] She confirmed it happened one time to her, during practice, he touched her in the context of wanting to move her to a different spot and he wanted to show her the right way to stand, to correct the position. She referred to him touching her side boob, and she agreed in court when she was demonstrating where, she was touching her breast, her side breast. [ 61 ] When asked whether she told the police that Mr. Bueti touched her breast, she said, “I believe so yes.” Counsel read the questions from the police statement, “‘Did he touch your breasts?

Like how far?’” Answer, “No”. [ 62 ] In court she said, “That’s because I don’t consider the side boob the breasts. That’s two different things”. The questions continued with her agreeing the side breast was part of her breast. She then said, but it was “hard to talk [to police] about what exactly happened. . .

It’s not comforting talking about something like that”. [ 63 ] Counsel then asked, “So . . . did you say, ‘No, he didn't touch my breast’ because you didn't consider it to be part of your breast or because you weren’t comfortable saying he touched your breast, which is it?” She answered, “The second option.” [ 64 ] I refer to the evidence of AG as it relates to the issue of collusion. [ 65 ] AG said she did not talk to the others until June about the incidents with Mr. Bueti.

She said some of the players came forward to her asking her how they could make a statement or a report, because things happened to them too. She said BO was one of the people who came to her. The other girls told her he touched them, but no details were shared. [ 66 ] AG said she did not go into detail or say anything specifically to any of them about what happened to her. She said no one told her anything either. [ 67 ] In cross examination, AG confirmed she did not tell the other players anything and that she never shared any details about what happened to her with the others.

She said she did not recall telling them anything. [ 68 ] She agreed that in her police statement she did have details from one girl that Mr. Bueti touched her while helping her stretch. AG said others came to her, including HG, SF, LF and BO. She said none of them shared any details with her. She said HG asked her how you get to go do a statement. [ 69 ] AG’s evidence on the interactions and discussions with others, is not consistent with what the other witnesses testified to about their interactions and that AG came forward to them about Mr.

Bueti. [ 70 ] In cross examination, AG confirmed telling the police that HG did say she had bad ribs and that Mr. Bueti touched her ribs near her breast area. She agreed after review of her statement that she did in fact talk about the touching with HG, because she was able to tell the police that it was on HG’s ribs. [ 71 ] Counsel suggested to AG that she actually wrote a letter and shared it with SF and HG before they went to the police. At that point, AG requested a break in the proceeding. When she returned, she said she did not recall the letter to them, but it was probably sent.

She said she did not recall writing that letter about her own experience with Mr. Bueti. She did not recall sharing it with HG or SF, nor did she remember if she sent it to others. She agreed it was possible and probable she did send it to others, but she could not recall. [ 72 ] She could not recall if she discussed mutual experiences with others but said she might have. She then agreed through the course of discussions with the others she became aware that things happened to them as well. [ 73 ] Before the cross examination was finished, AG said that she did not want to continue.

After a break, the Crown attorney entered a stay of proceedings on the relevant counts and the cross examination did not continue. ANALYSIS [ 74 ] On this similar fact application, the Crown seeks to tender evidence from three separate complainants in support of each other, on each count of the Information. [ 75 ] The evidence in each case is presumptively inadmissible on the unrelated counts.

The threshold for admission of similar fact evidence involves an assessment and balancing of the probative value, its potential prejudicial effect and whether the probative value displaces the prejudicial effect ( see R v Handy , 2002 SCC 56 ). [ 76 ] Evidence of other discreditable conduct may be admitted where the evidence is so “highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse” ( Handy , at para 41 ). [ 77 ] For the reasons that follow, the application to tender similar fact evidence is dismissed.

I have not been satisfied the evidence in this case meets the threshold test for admissibility. Issues 1. What is the Probative value of the evidence [ 78 ] Probative value of similar fact evidence is based on the improbability of coincidence between the similar facts and the facts at issue. It involves consideration of the degree of relevance to the questions in issue and the strength of the inferences that can be drawn from the similar facts. [ 79 ] For this assessment, I reviewed the cases filed, and use the outline set out by Justice Bond in R v Bissonnette , 2023 MBKB 113 , at paragraph 44 .

a) What is the issue in question to which the evidence relates and what chain of reasoning links the evidence to that issue? [80] The Crown seeks to tender the evidence as proof of the actus reus, in support of the credibility of each complainant and toshow a pattern of conduct that suggests a specific modus operandi.

The argument on the chain of reasoning being: if he touched threeplayers as described, it makes each one more credible and supports the inference they were in fact touched intentionally, and that it wassexual in nature. [81] The Crown asserts a specific pattern or modus operandi arises from the repetition of similar incidents, including use ofopportunity as a coach, to touch three players on parts of the body that was unnecessary during drills, and two were touched on similarareas.

They argue this similarity in pattern of conduct, supports the double inferences sought; that he has a specific propensity and heacted on that propensity.

b) How strong is the link between the evidence sought to be admitted and the issue in question? [82] In Bissonette (at paras 55-56): Admissibility of similar fact evidence is . . . a narrow exception to the general rule of exclusion of evidence of previous misconduct. It isrestricted to circumstances where, citing R. v. B.(C.R.), (SCC), [1990] 1 SCR 717 at p. 751, “...it would be an affront tocommon sense to suggest that the similarities were due to coincidence” (Handy, at para.41).

The Court in Handy continues as follows: “[T]he strength of the similar fact evidence must be such as to outweigh ‘reasoning prejudice’ and ‘moral prejudice’. The inferencessought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence.

Although anelement of “moral prejudice” may be introduced, it must be concluded . . . on a balance of probabilities that the probative value of thesound inferences exceeds any prejudice likely to be created.” [83] In Handy, the Court suggests a non-exhaustive list of factors for consideration: proximity in time, extent to which there issimilarity in detail, the number of occurrences of similar acts or an alleged pattern of conduct, circumstances surrounding or relating tothe acts, any distinctive features unifying the incidents, any intervening events that may undermine the probative value, any other factorsthat support or rebut the underlying unity of the similar acts (see para 82). [84] There is no issue with proximity between the alleged acts and each incident. [85] Similarities between the similar facts and alleged acts: - The three complainants were players on the rugby team that Mr.

Bueti assisted coaching from February to March of 2022. - The touches, with the exception of the hallway incident involving HG, happened during rugby practice in the gym. - BO and JB said they were touched during drills, to reposition or correct their form. - The touches happened while the other players were present and participating or observing the drill, waiting for their turn. - BO and JB described touching that happened in drills that were fast paced, with movement between players, involving eitherpassing drills or rucking drills. - JB and HG described a touch to an area above the side waist, under the armpit.

JB referred to it as side breast; HG referred to it asher ribs. - BO said he was the only coach to use physical touch to teach drills, the other coaches used words or demonstrated the drillthemselves, or asked permission to touch. - JB thought it was unnecessary for him to touch because the other coaches didn't do it. [86] Differences between the similar facts and the alleged acts: - HG described a touch during the course of discussion with Mr. Bueti about why she was on the sidelines and her rib injury.

Thetouch was to the injured rib area, after she pointed it out, and after he said, “Can I touch it.” - The second touch HG described was in the hallway to the same rib area. - JB described one touch only, at one practice. She described it happened during a passing drill; he touched the area she called herside boob to move her position. - BO described multiple touches – two, three or four – she was uncertain. The touches were on her hips to get her body loose for thedrill. - She recalled the circumstances of one during a rucking drill, to get the body loose.

He swayed his hips to get hers to sway, and hispelvic area brushed her butt. - Tahnee Grosskopf, the head coach, testified she was present and involved at every practice and she never saw anythinginappropriate between Mr. Bueti and any player.

[ 87 ] The Crown argues the similarities between the pattern of conduct described and the alleged acts are such that it would be an affront to common sense to suggest they are coincidental or capable of innocent explanation. This argument does not address the issue of innocent collusion or potential influence on the perception, memory and narrative within the similar fact evidence. [ 88 ] Some of the details in the similar facts are generic in nature. He was a rugby coach; he physically touched two players during practice drills while repositioning or correcting form for the drill.

One player was touched one time. The other player was touched an uncertain number of times, possibly two to four in total. [ 89 ] BO described a very different manner of touch than JB did, but both said it was during drills, for the purpose of repositioning or correction of form. Both said he did not have permission to touch them.

Both said it happened in the gym with the other coaches and players present, participating in the same drills. [ 90 ] The Crown argues where there is strong (cogent) and credible evidence which establishes a recognizable pattern of conduct, it can be admitted as similar fact. [ 91 ] Do the similarities and differences support the cogency of the evidence to the link sought. In other words, is it sufficiently strong enough to support an inference that he acted in accord with a particular propensity that supports the inference he did so in each individual count.

Is it cogent evidence to support finding that the touches did in fact occur, that they were for a sexual purpose, and they were without consent. [ 92 ] With respect to the touch described by HG: I do not find a high level of probative value or cogency, or sufficient similarity (appreciating it does not have to be strikingly similar), between the circumstances and the other counts on the Information, to support a link on the issues in question. [ 93 ] The only similarity is, Mr. Bueti was her coach, the touch was in the gym at a rugby practice.

The Crown argued the touch was to an area similar to where JB described being touched. The circumstances of the touches are very different; one was a discussion of a rib injury, the other was during a drill while repositioning the player. [ 94 ] As set out in R vs Shearing , 2002 SCC 58 (at para 48 ), there must be “a persuasive degree of connection … in order to be capable of raising the double inferences” (emphasis in original). In this case, the Crown asserts Mr.

Bueti has a specific propensity to touch players sexually during coaching, that he did so in the similar fact incident, which supports the inference he did so as charged in the other counts on the Information. [ 95 ] I am unable to find a persuasive degree of connection between the incident involving HG and the other alleged acts to meet the high level of cogency for admission as similar fact evidence on the other counts on the Information. [ 96 ] Turning to the incident described by JB: Considering the question of whether it meets the high level of cogency to overcome the presumption of inadmissibility, I am unable to conclude it does. [ 97 ] The evidence is one touch at one practice, during a drill to reposition the player.

I do not find it is cogent evidence of a pattern of behavior of sexual touching under the guise of coaching. I do not find a persuasive connection or pattern between it and the incidents involving BO. I do not find the circumstances described in this one incident are sufficiently similar or probative to the issues in question on the other counts. [ 98 ] Turning to the incidents described by BO: I am not satisfied the circumstances are sufficiently similar to that described by HG. There are striking differences between the descriptions and the nature of the circumstances described.

The incident with HG was at a first practice, between coach and player about why she was not participating, and discussion of a rib injury. The touching was in the context of an area pointed out as injured. The difference in circumstances leaves me unable to conclude there is any persuasive connection or probative value between what BO describes to the issues in question on the incident described by HG. [ 99 ] BO described his pelvic area brushing against her butt while he was swaying her hips and his, during the drill.

She described this happened more than one time. [ 100 ] Given my decision on the impact of collusion or innocent tainting of the similar fact evidence, it is difficult to determine if there is a sufficiently strong link between these incidents and the issues in question, on the counts involving JB. [ 101 ] If BO’s evidence did meet the limited threshold of being capable of belief, it could be probative of a situation specific propensity that could potentially lead to an inference he acted on that propensity during the one alleged act involving JB. [ 102 ] However, consideration of cogency of the evidence does not end here – the influence of collusion, if any, actual or innocent, must be considered, when deciding if there is a sufficiently persuasive connection or high probative value that could lead to the double inferences sought on the counts involving JB.

c) Is the link undermined by collusion or innocent contamination? [ 103 ] This is a key factor when assessing the probative value of the similar facts. Is the similar fact evidence tainted by collusion or innocent contamination, such that it undermines the improbability of coincidence to explain the similarity. Improbability of coincidence is the foundation upon which admissibility depends. [ 104 ] In R v Abbasi , 2020 MBCA 119 , Justice Simonsen summarized the law and the importance of how the possibility of collusion may undermine the foundation for admissibility.

These considerations were outlined in Abbasi , at paragraphs 26 and 27 : - In similar fact applications, it is at the admissibility stage, when balancing probative value with potential prejudicial effect, that the possibility of collusion may significantly affect this balancing ( see R v Wilkinson , 2017 ONCA 756 , at para 29 ).

- An important element of the probative weight analysis is the impact or effect potential collusion may have on the strength of the evidence (see Handy, at para 99). - From Shearing (at para 40): “The theory of similar fact evidence turns largely on the improbability of coincidence.

Collusion, by offering an alternative explanationfor the “coincidence” of evidence emanating from different witnesses, destroys its probative value, and therefore the basis for itsadmissibility.” [105] Where there is some evidence of actual – or “air of reality” to – suggestion of collusion, the Crown is required to satisfy thejudge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion, before the evidence will be admitted.It is not to be left for the overall assessment at the final stage of determining whether the charges have been proved beyond a reasonabledoubt. [106] Contamination of evidence may occur by innocent or “accidental” collusion, as opposed to deliberate tainting which are to betreated the same way at the admissibility stage. [107] As explained in the cases filed on this application, and from R v F(J), (ON CA), [2003] OJ No 3241, atparagraph 77: [C]ollusion and discussion among witnesses can have the effect of tainting a witness’s evidence and perception of events innocently oraccidentally and unknowingly, as well as deliberately and intentionally.

The reliability of a witness’s account can be undermined not onlyby deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tendto colour one’s

interpretation of personal events or reinforce a perception about which one had doubts or concerns. [108] Moving on to consider the evidence relevant to the issue of collusion: - There is evidence of communication and discussion between the first witness, AG, and all of the other three witnesses. - HG, received a note written from AG describing what happened to her with Mr. Bueti. HG said the discussion and the note fromAG helped her to come forward. She agreed it assisted her to look back in processing what happened with her and Mr.

Bueti. - BO and JB, agreed they had many discussions with each other about what happened between them and Mr. Bueti. - BO said from the discussions, she concluded Mr. Bueti touched JB on the hips in the same way he had touched her hips. - From the evidence, JB said Mr. Bueti never touched her on the hips. JB said Mr. Bueti touched her one time only and it was onher side breast area. - At first JB said she never discussed what happened with anyone other than BO. JB then agreed both she and BO discussed whathappened together with AG. - JB also agreed she discussed it with another girl, AL, during a team bus trip.

JB said despite being told by AL that Mr. Buetinever did anything inappropriate to her, JB still believed Mr. Bueti did something inappropriate to AL. [109] I am not going to repeat each specific interaction reviewed in the evidence. It was clear the players and specifically the four whotestified, all discussed Mr. Bueti and inappropriate touching on many or several occasions, before they went to make their statements topolice. [110] The discussions were not only general discussions but included the exchange of details of what they described Mr. Bueti did tothem and to each other.

In some instances, they discussed what they were told by others about what happened to them or to others. Theyeach shared their experiences with others. There were also discussions with other girls on the team who did not testify about whathappened with Mr. Bueti. [111] BO agreed the discussions with others allowed them to compare and decide if it was the same or different to their ownexperience. She said it was a significant topic of discussion in June before they talked to the school administration.

From the discussions,BO came to the conclusion JB’s hips were touched in the same way as hers, even though JB said that didn’t happen. [112] During cross examination, BO agreed with a suggestion that initially she may have been unsure if Mr. Bueti brushed his pelvicarea on her butt inadvertently or accidentally, and that it happened during a repositioning in a fast-moving drill. [113] HG and another player, SF, who was not called as a witness, were both present when they spoke to a social worker, and theyheard each others description of events with Mr. Bueti.

HG agreed she may also have talked to SF about the incidents outside of themeeting with the social worker. [114] HG acknowledged that the discussions with others helped her look back and process what happened to her and to know it wasinappropriate. [115] JB agreed she told BO that it happened to many other players. JB said Mr. Bueti was also inappropriate in how he spoke to thegirls. She agreed the first time she ever said that Mr. Bueti spoke to the girls inappropriately, was in court.

[ 116 ] JB believed something inappropriate happened to AL even though AL told her nothing happened with Mr. Bueti. JB agreed she believed things happened with Mr. Bueti and other players even though she never saw or heard any inappropriate talk by Mr. Bueti, and she never saw anything inappropriate between Mr. Bueti and AL. [ 117 ] The Court is left with probable concern that innocent contamination or accidental collusion in this case may affect and diminish the probative value of the similar fact evidence.

It raises significant concern about the very foundation upon which this type of evidence is admissible, that is, the improbability of coincidence to explain the similar acts. [ 118 ] This case is about more than simply opportunity to discuss the matter. In this case specifically, there was sharing of details between the individual experiences, between the complainants and other players. The nature of those discussions allowed comparison of similarities and differences. Two of the complainants agreed the discussions helped them to look back at their interactions with Mr.

Bueti and encouraged them to come forward. [ 119 ] BO and HG both acknowledged that hearing about others’ experience helped them look back and process what happened with them to see that it was inappropriate. That acknowledgement adds to the concern for innocent tainting or influence over their perception and their

interpretation of past events. [ 120 ] The probability of innocent contamination was reflected in the evidence. The degree to which it may actually impact the evidence cannot be measured. There is no way to know the extent to which being told the details,

interpretations, experiences and perceptions of others, may have influenced or changed the memories, perceptions and

interpretations of the similar fact evidence. [ 121 ] BO for the first time in court, disclosed an additional touch she said was inappropriate that she never mentioned to anyone before appearing in court. She also believed it was the same type of touching that JB disclosed, which was not correct according to JB’s evidence. [ 122 ] BO acknowledged in cross examination the possibility at first she wasn’t even sure Mr. Bueti was aware of or was intentionally touching her with his pelvis. She did not describe it that way on direct examination. [ 123 ] JB says she was touched on her side breast but told the police he did not touch her breast. Her explanation, her beliefs and her

interpretations cannot be separated from the probability of influence from retelling her own story to others, and others telling her their experiences. The beliefs she holds about what she heard or was told about others or from the stories, was reflected in the similar fact evidence and in her opinions and conclusions of Mr. Bueti’s actions with others. [ 124 ] HG, in direct said Mr. Bueti did not ask to touch the injured area she pointed out to him. However, in cross examination she agreed she did tell the police that Mr.

Bueti asked, “Can I touch them” before touching her ribs. [ 125 ] AG’s evidence of how this situation unfolded, differed from what HG said. It differed from what JB and BO said they discussed between them and AG. All four of the witnesses at first downplayed or did not recall what the discussions were, first saying they were only general without specific details for the most part.

That changed as memories were refreshed through questions or through use of the police statements. [ 126 ] From all of the evidence, I have not been satisfied by the Crown on a balance of probability that collusion is not a factor to explain the similarity in the facts he seeks to have admitted. There are real and articulable concerns about the reliability and probative value of the similar fact instances the Crown seeks to tender, because of the probability of innocent tainting, disclosed in the evidence.

I am mindful of the comments referred to in the quote set out above from paragraph 77 of F(J) . [ 127 ] Having found probable presence of collusion, the probative value of the similar fact evidence cannot meet the threshold for admissibility, and potential prejudice from admission would increase significantly.

d) Is the evidence reasonably capable of belief. [ 128 ] The reliability and credibility – or strength of the similar fact evidence – is a factor when weighing the probative value. It must at least be reasonably capable of belief. Having found the Crown has not negated on balance, the probability of collusion tainting the similar fact evidence, it is unnecessary to consider the similar fact evidence further. [ 129 ] If the concern for collusion had been negated on a balance of probabilities, the similar fact evidence before the court would still have to meet the threshold of “reasonably capable of belief”.

If not for collusion impacting that assessment, the discrepancies and differences within the similar fact evidence, or between direct and cross examination, or with police statements, could be a matter left to the trier of fact for the final determination of proof beyond a reasonable doubt. 2. Prejudicial Effect of Admitting the Evidence [ 130 ] This involves assessment of any potential for moral prejudice or reasoning prejudice.

The risk of moral prejudice arises when an accused may be found guilty simply because the evidence suggests he is a bad person or his actions are out of the norm; leading to a finding of guilt out of need to correct or punish rather than on assessment of whether the standard of proof has been met. [ 131 ] In this case, moral prejudice could arise if a trier of fact decided the coaching style was unnecessary, or different from the other coaches and the touching of teenage girls was “creepy” or bad, potentially leading to a finding of guilt based on moral prejudice rather than assessment on the evidence. [ 132 ] The second type of prejudice, reasoning prejudice, may occur if the misconduct evidence distracts or confuses the reasoning process.

This risk arises if more weight is placed on it than it deserves. In a cross count application, if similar facts are admitted on some counts but not others, or some are applied across to others but not back, this could lead to distraction away from or confusion on the issues in question.

[133] The concern with innocent collusion and the impact on probative value of the similar fact evidence, raises the potential prejudicesignificantly. [134] While a judge-alone trial reduces the risk of prejudice having safeguards against inappropriate use, judges are not immune to thepossibility, and it is a factor that cannot be ignored. 3. Is the Probative Value Outweighed by the Prejudicial effect [135] The probative value goes to proof of an issue, while prejudicial effect relates to fairness of the trial and whether it is just to admitthe evidence.

The question is what value does the evidence have on the determination of the case on its merits and is there a risk it maybe used improperly in determining guilt. [1] I refer to Justice McLachlin as she then was in R v B(CR), (SCC), [1990] 1 SCR 717, at page 732: [E]vidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence inrelation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where theevidence of prior immoral or illegal acts is presented to the jury. [136] The presence of collusion impacts the prejudicial effect and diminishes the probative value of the similar fact evidence.

In asimilar fact application, where collusion is a concern, it is not sufficient to simply leave it for the trier of fact to weigh on the ultimateissue of credibility. It is one that ought to be considered carefully at the admissibility stage when balancing prejudice with probativevalue.

CONCLUSION [143] After consideration of the circumstances and all the factors outlined, including the element of innocent tainting or innocentcollusion, I have not been satisfied on a balance of probabilities, that the similar fact evidence is of such high probative value that itdisplaces the prejudicial effect of admission. [137] The application to admit similar fact evidence is denied. Original signed by Judge Garreck W. GARRECK, P.J.