2019 QCCQ 7840, 2019 QCCQ 7840

R. c. Agapiadis 2019 QCCQ 7840 COURT OF QUEBEC Criminal & Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-139230-160 DATE : December 18 th 2019 ______________________________________________________________________ BEFORE THE HONOURABLE DENNIS GALIATSATOS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Applicant – Prosecution v.

NICOLAS AGAPIADIS Respondent – Accused ______________________________________________________________________ RULING ON THE ADMISSIBILITY OF SIMILAR FACT EVIDENCE AS BETWEEN DIFFERENT COUNTS ON A MULTI-COUNT INDICTMENT ______________________________________________________________________ Note: Restriction on publication – By Court order made under

section 486.4 of the Criminal Code , any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way. This judgment is intended to comply with the identification ban. OVERVIEW [ 1 ] The accused is charged on a 2-count indictment with sexual assault (s. 271(

a) C.C. ) allegedly committed on two different complainants. The events date back to June of 2014 and November of 2015. Both incidents occurred while the accused was providing services as a naturopath, in an office located above the restaurant he owned in Old Montreal. [ 2 ] A first trial – during which both complainants testified – resulted in a mistral for reasons having no bearing on these issues. [ 3 ] There is no suggestion that the complainants knew each other. In fact, both are from different walks of life. [ 4 ] Identity of the alleged perpetrator is not contested.

In fact, a formal admission was signed by the parties acknowledging identification. [1] The complainants knew the accused personally. Instead, at this juncture in the proceedings, it appears that defences of (1) denial of the sexual acts [2] and/or (2) actual consent by the complainant(

s) are contemplated. More specifically, it appears that the defence will allege that complainant B.B. extorted the accused and forced him to have sex with her in order to get impregnated by his fertile sperm. [ 5 ] The mere fact that several counts of sexual assault are being tried together does not entitle the trier of fact to consider evidence on one count when determining liability on another count, unless the evidence meets the test for the reception of similar fact evidence. [3] [ 6 ] For that reason, the Crown has brought an application seeking to have similar fact evidence “admitted”.

To be clear, the evidence is already technically on record. The prosecution does not seek to adduce evidence of any extrinsic misconduct by the accused, extending beyond what he is already charged with on this indictment. Instead, as required by the caselaw, the Crown seeks a ruling declaring that the evidence on each count is also admissible in relation to the other, in the Court’s eventual assessment of the evidence as a whole on the merits.

[ 7 ] Stated otherwise, in the case at bar, each complainant has already testified and has been duly cross-examined on her account of her particular alleged sexual assault. Hence, what is at issue is the permissible use to eventually be made by the Court of each woman’s testimony, in relation to one another. [ 8 ] Parenthetically, I note that the parties informed the Court that a previous judge in this matter, in her capacity as designated motions judge pursuant to s. 551 of the Criminal Code , dismissed the accused’s application to have the counts on the indictment severed.

The parties did not provide me with the reasons for said ruling. The Court assumes this was a conscious choice on their part, as opposed to some oversight. [4] [ 9 ] Finally, while the Crown announced this application at the outset of the trial proceedings, [5] arguments were only presented at the conclusion of the prosecution’s case. This was an appropriate practice to follow. As Watt J.A. explains in his Manual of Criminal Evidence 2019 , arguments concerning the admissibility across counts (as similar fact evidence) may be made at the end of the Crown’s case.

Fairness dictates that the determination of admissibility be made before the accused embarks upon his or her defence. [6] For these reasons, the Court endeavoured to deliver its ruling as quickly as possible in order to allow the accused to make an informed decision about how he would conduct his defence – if any. THE EVIDENCE PRESENTED AT THE VOIR DIRE [ 10 ] For the purposes of these reasons, a brief

summary of the testimony will suffice. It is intentionally concise, inevitably incomplete and refers only to the portions of the evidence that are relevant to the comparative exercise involved in assessing similar fact arguments. This is not a final judgment on the merits or anything of the sort. [ 11 ] To state the obvious, this interlocutory judgment deals only with the admissibility of the evidence. The Court is not making any findings regarding the ultimate credibility or probative value of the evidence tendered thus far.

That task belongs to the trier of fact at a later stage of the proceedings with the benefit of a full trial record. Any reference to credibility or weight will therefore only be incidental and limited to the threshold probative value. Although this trial is proceeding before a judge sitting alone, the analysis must follow the same procedure – and principles – that would apply in the course of a jury trial. [ 12 ] On consent, the evidence from both complainants already given in the course of the trial proper was applied to the voir dire .

In addition to their testimony, the Crown presented testimony from detective Patrick Parent at the voir dire . From the outset, the prosecution carefully specified that the investigator’s testimony was offered for the voir dire only and would not be applied to the trial proper. In other words, the officer’s testimony was useful insofar as he exposed the anticipated defence that might be presented at trial, based on his various conversations with the accused. However, the Crown had/has no intention to tender these statements in its case in chief.

That is the prosecution’s prerogative. [7] 1- The testimony of the complainants

a) The allegations of A.A. [ 13 ] A.A. was 19 years old when she started working for the accused in June of 2014. The accused owned and operated a restaurant in Old Montreal. [ 14 ] A.A. had three friends who were already working as waitresses there. They told the complainant that the accused was hiring. The complainant chose to give the position a try before resigning from her actual job where she was working at a bar. Mr.

Agapiadis told her that he would match her previous job’s salary and hours. [ 15 ] After the completion of her very first shift at the restaurant, the accused spoke to A.A. outside, complimenting the quality of her work. He then mentioned that he was also a naturopath and offered to provide services to the young woman for free if she accepted to keep the job. This was wholly unsolicited by the complainant.

In fact, she did not even know what a naturopath was, although she had a vague notion that it involved natural remedies. [ 16 ] In the course of that discussion, the accused asked the girl personal questions regarding her health and her emotional state, adding that his services would help her. He asked if she suffered from anxiety, asked about her previous job and asked if she had a boyfriend. He then suggested that she quit her other job at the bar. He would offer a better work environment, in addition to the free naturopathic services. [ 17 ] The complainant accepted the offer and took the job.

The main factor in making that decision was the fact that she would be working with her friends. When she was formally hired, Mr. Agapiadis told her that he would “study and look at her” in order to determine how he would provide treatment. He would observe her energy balances, her emotions and monitor her chakras. [8] [ 18 ] The naturopath office was on the building’s second floor, above the restaurant.

The accused had often told the other waitresses that they could go upstairs and lay on his “magnetic table” if they were tired. [ 19 ] Three weeks after starting her employment there (and days after her 20 th birthday), on June 23 rd 2014, A.A. finished working the daytime shift. The accused had been working in the kitchen. At the end of the shift, the accused announced that he had already had enough time to sufficiently study and observe her. He was therefore ready to provide his first naturopathic treatment session. [ 20 ] They went upstairs to the office where they were alone.

Once they entered, the accused took A.A.’s cell phone and placed it on a desk. He pulled a chair out and told her to sit. She complied. As he stood up, facing her from approximately 10 cm away, the accused massaged her shoulders. The entire time, the accused talked to A.A., telling her to relax and to breathe. At one point, he told the girl to

lean her head against his stomach; in doing so, he placed his hand on the back of A.A.’s head and pulled it forward towards him. [ 21 ] A.A. described the scene as “pretty intense”. It was weird, she felt uncomfortable and was unable to relax. [ 22 ] The accused then sat in front of her. He took off A.A.’s shoes and even began taking off her socks. A.A. told him “I’d rather not. I just worked”. Despite her objection, the accused nevertheless took the socks off and started to massage her feet, adding “It’s my job, just relax”. [ 23 ] Mr.

Agapiadis then invited her to lay on a fabric-covered table. [9] In order to continue the session, she would have to lie on her back. By then, A.A. had developed trust in the accused. Days earlier, the accused and his family had thrown her a nice birthday dinner, which she particularly appreciated. The accused’s son had also gone out after work with A.A. and her friends to celebrate her birthday. As such, A.A. did not have her guard up. [ 24 ] Thus, even though she had been uncomfortable earlier with her head leaning on his stomach, A.A. did not anticipate that anything would go wrong if she lied on the table.

As she lay there, the accused started massaging her head. As he did from the start, the accused continued telling her to relax and that she was doing a good job. Still talking, the massage moved from her head to her shoulders. [ 25 ] At that point, Mr. Agapiadis spoke about chakras and, without asking, he placed his hands inside her shirt. The shirt in question was a zipper-back t-shirt made of material that was not stretchy. A.A. immediately told him that she was not comfortable with that. [ 26 ] The accused did not stop or withdraw in the face of A.A.’s comment.

Instead, he merely kept discussing chakra theory, specifying that there was one near the heart, near her breasts, adding that he needed to treat all the chakras in order to properly do his work. [ 27 ] Mr.

Agapiadis then placed his hand inside A.A.’s bra and touched the side of her left breast, rubbing it. [10] As he did this, he justified his actions by claiming that he could feel little bumps under the skin. [11] There was a chakra that he needed to massage and she needed to let him do his job. [ 28 ] As his hand was on her breast, the accused quickly mentioned his “sperm theory”: he told A.A. that the bumps might have been caused by “bad sperm”. For a moment, A.A. thought that she misheard him. [ 29 ] Again, A.A. expressed that she was uncomfortable with his hand being inside her bra.

The accused removed his hand, but then proceeded to lift the bottom of the girl’s shirt in order to expose her stomach. He pressed hard on her abdomen, mentioning various organs. This part of the interaction felt less weird to the complainant, as it seemed more scientific. She started thinking that she might have been unduly nervous regarding him being inside her bra. [ 30 ] The accused looked at her navel, which had been previously pierced, and commented that it was cute.

He then moved his hands lower and lower, towards the pubic area, reaching the border of her panties. [ 31 ] At first, he entered his hand only slightly, but then proceeded to move his hand deeper in, underneath the underwear (touching the skin directly), near the groin. A.A. again expressed that she was uncomfortable and that she did not want him to touch inside her pants. The accused responded that there were bumps there too. She needed to let him do his job. [ 32 ] As his hand proceeded further down, A.A. repeated that she was not comfortable with his actions.

The accused’s hand reached the bottom of her pubis, without however touching her labia. [ 33 ] A.A. then physically used her arm to swat the accused’s hand away, again repeating that she did not want him going there. The accused simply repeated that she had bumps there, adding that they may have been caused by bad sperm. [ 34 ] It was at that moment that Mr. Agapiadis further explained his “sperm theory”: he told her she had bumps in her groin because she had been receiving bad sperm.

Women needed to receive “good sperm” in order to obtain good proteins for their brain. [ 35 ] He then asked A.A. to turn and lay on her stomach. The complainant thought she would be better off; at least that way, he could not touch the front of her body any more. [ 36 ] Mr. Agapiadis continued massaging her shoulders, telling her that everything was great and that she was doing a good job. Without asking, he lifted her shirt and unclipped her bar, specifying that it would be better for the massaging. As he stood next to the table, he proceeded to pull her body towards him.

A.A. resisted, applying pressure in the opposite direction. She was clearly pushing against his pull, making it obvious that she did not want to cuddle with him. The accused disregarded the complainant’s resistance. [ 37 ] He continued to massage her lower back, moving his hands towards her buttocks, repeating “relax, you’re doing great”. Then all of a sudden, he jumped on her, mounting her atop the massage table, as one would sit on a horse’s saddle. [ 38 ] Very quickly, he sat on her thighs, pinning down her legs and pulling down her panties.

Frightened, A.A. attempted to pull her underwear back up, but the accused pinned her arm against the table with his weight to prevent her from moving. He warned that he was going to give her treatment and that she had to cooperate in order to get better. [ 39 ] Luckily, before things could progress further, there was a knock at the door, which prompted the accused to immediately jump off the table, release A.A. and replace his own clothes. The accused’s son was at the door. The accused and his son spoke to each other in Greek through the door (without opening it). A.A. was in shock.

She was still on the table, unable to move. She crossed her arms, placed her face in them and started to cry quietly. As for the accused, he behaved as if nothing had happened. He approached her head, started caressing her hair and told her that the session had gone well. [ 40 ] He added that they needed more sessions to continue the treatment. The accused then started kissing the side of her face, even

though her cheeks were drenched with tears. [ 41 ] He exited the room soon after, leaving her behind and telling her to take the time she needed. [ 42 ] Left alone, A.A. felt frozen. She sat up, reattached her bra, repositioned her clothes, put her shoes and socks back on and retrieved her cell phone. She immediately called her roommate and advised him that “something bad had happened”, keeping him on the line. [ 43 ] As she left the building from the back-yard area, the accused approached her, opened the gate and pulled her phone away from her ear, telling her to hang up.

Again, as she exited, the accused repeated that the session had gone well, that there would be more sessions in the future and that things would only improve.

b) The allegations of B.B. [ 44 ] B.B. was 31 years old when she met the accused. In the spring of 2015, she lived in Old Montreal. One evening, by happenstance as she was out for a walk, she entered the accused’s café for the first time, which was located near her home. [ 45 ] The accused introduced himself as the owner of the business and explained the organic concept of the café. In the course of their discussion, Mr.

Agapiadis also declared that he was a naturopath specializing in the digestive and nervous systems. [ 46 ] It so happened that B.B. had been experiencing various health issues and she had particular concerns about her digestive and hormonal systems. She had been very stressed and she still had an intestinal parasite from an earlier trip to Argentina that had not been properly cured. Moreover, she was worried about the fact that her menstrual cycle was irregular.

Since she and her boyfriend had started discussing having a child, this caused her concern. [ 47 ] In light of these pre-existing concerns, when she heard about the accused’s specialty, it triggered something in B.B. and she started to cry. [ 48 ] Seeing this, the accused invited her to go sit with him at a table in the back. There, he explained that his naturopath office was located upstairs; he was also an iridologist. [12] He specified that he only saw “very serious patients”. His practice was quiet and low- key. People came to him when traditional doctors had not worked for them.

At the end of their talk, the accused wrote his phone number on a piece of paper and offered to

schedule a consultation. [ 49 ] B.B. did in fact call him back and they met subsequently. During the subsequent meeting, the accused explained that the treatment program would last approximately one year, during which he would tell the complainant exactly what to do, such as what to eat and how to exercise. He would also act as her life coach. He advised her that his program would work if she carefully followed it. He also warned her that the program would be radical and intense.

He explained to B.B. that she had a weak constitution and that she needed to act now, otherwise her health problems would compound in her 40s and 50s, including serious medical conditions that would cost her a lot of money to treat later. [ 50 ] During that first meeting, they discussed the payment plan for the services, which would include coaching, visits as needed and pills or supplements. During that same meeting, the accused examined her eyes and told her that she had a lot of acid build-up in her neck, from drinking too much wine.

From looking in her eyes, the accused also concluded that her intestines were full of sulfites, also caused by drinking wine. [ 51 ] The program began in March of 2015. As the months progressed, the accused encouraged her to drop by the café, hang out there and say hi to his wife and children. B.B. did in fact often drop in and she got to know the accused’s family. In the following months, the accused often sold B.B. baskets of natural products. [ 52 ] Various consultations took the form of discussions in the café. Others took place in the naturopath office upstairs.

Before the events of November 24 th 2015, B.B. had never even noticed the massage table in the office. [ 53 ] In the course of the summer, after B.B. had quit her job, the accused on several occasions mentioned that she should go work for him, where she could be very close to him. That never materialized. In fact, the accused advised her against finding another job, due to her nervous system and the fact that she was making poor decisions. [ 54 ] Also during their consultations, the accused had asked her if she had ever had an orgasm. B.B. responded that she was unsure as to whether or not she had.

The accused had an “ah-ha” moment. “It all makes sense now. I know where your problems are coming from”, he said. He further explained that orgasms were necessary for women to be in good health. He told her that although she was pretty, she did not give off sexual energy. Her “magnet was broken”. [ 55 ] In a meeting leading up to the month of November, the accused brought up the importance of “quality sperm”. He told B.B. that her boyfriend did not have quality sperm; he was too acidic [it is noteworthy that the accused never examined the man in question].

He warned that her boyfriend would not be able to get her pregnant. Furthermore, even if he did, there would be a heightened probability of a miscarriage or a sick child. Having “read” her boyfriend [by looking at him], the accused concluded that their energies were incompatible. He expanded, explaining the “truth about fertility”: that the sexual juices of a man and a woman had to match to allow for the conception of a child. [ 56 ] On November 24 th 2015, the consultation began downstairs in the restaurant. The accused reiterated the importance of women getting orgasms and reintroduced the topic of good sperm.

He then volunteered that he had very good quality sperm; all the women in his life that had experienced his sperm started to improve. As an example, he mentioned that he gave his young wife orgasms every day, adding “look at T[…], she’s amazing, she does everything, she runs the café, things are going well”… all because of his sperm.

[ 57 ] He added that B.B. was experiencing health problems due to “years of not having received good quality sperm”. He similarly blamed condoms for being plastic, toxic, disgusting and detrimental to women’s health. The “missing link” to B.B.’s well-being were orgasms. According to him, it was affecting her nervous system. [ 58 ] After having a meal, the consultation shifted upstairs to the office. The office was dark, which felt unusual to B.B. She followed him to the front of a massage table: a fabric covered padded table.

Without asking and without prior explanation or warning, the accused picked her up by the hips and sat her on the table. B.B. said “what are you doing? This is not a good idea”. He took off her glasses and told her to “trust him”. [ 59 ] Mr. Agapiadis coaxed her body onto the table in a lying position, telling her that if she wanted to heal, she needed this. B.B. closed her eyes and she started to cry. The accused started to kiss her on the mouth and B.B. expressed that she “does not want to do this, it’s a bad idea, stop”. The accused continued nonetheless. [ 60 ] B.B. felt frozen at that point.

The accused took off her shoes, lifted her shirt and pulled up her bra. All the while, B.B. did not reciprocate any of these actions. The accused proceeded to kiss and touch her breasts, before pulling her pants and underwear halfway down. [ 61 ] While still standing, the accused lowered his own pants, took B.B.’s hand and placed it on his penis, saying “this is the first contact”. At this point, his penis still felt flaccid. [ 62 ] The accused then climbed on top of B.B., sitting on her while kneeling on the massage table. For much of this sequence, B.B. kept her teary eyes closed.

B.B. anticipated that he would try to penetrate her. She voiced “don’t do that”. The accused responded by whispering that if she wanted to heal, she needed to comply. He licked his hand and then touched either his own penis or B.B.’s vagina. [ 63 ] The accused then penetrated B.B. as she told him to stop. It did not last long before he ejaculated. While it happened, B.B. did not look down. Even though she felt the fluids, B.B. still asked “did you just come inside of me?”, to which the accused answered “yes, but shhhh!”, anticipating that B.B. might scream.

As she cried and protested, the accused responded “cool it! shhh! cool it!”, adding that she should be grateful. [ 64 ] He insisted that his sperm would not get her pregnant, since he had programmed it. It was the “healing-type” sperm, not the reproductive type. The sperm would create a blueprint in her body, which in turn would help him better understand the root of her ailments. [ 65 ] B.B. kept crying, which T[…] apparently heard from upstairs.

After the intercourse, the accused loudly belched, explaining that the burping was caused by the “air inside B.B.” which was “like a tornado”. 2- The testimony of detective Patrick Parent [ 66 ] The Crown produced detective Parent as a witness on the voir dire for a very specific purpose. [ 67 ] Following his arrest, the accused allegedly made a verbal statement to the investigator, which contained a defence to the charge involving B.B. [13] The Crown contends that since a potential defence is announced, it may be considered in assessing the admissibility of the proposed similar fact evidence.

In fact, one of the intended uses of the similar fact evidence is to rebut said defence if it is in fact presented by Mr. Agapiadis at trial. [ 68 ] On January 21 st 2016, as the accused’s videotaped interrogation was set to begin, he looked visibly unwell: he was pale and was shaking. Seeing this, the investigator asked him if he wanted to exit the room and speak off camera. The accused accepted the offer. They relocated to another interview room where Mr.

Agapiadis explained that despite his lawyer’s advice to remain silent, he felt stuck in the process and he wanted to speak to detective Parent, since the latter seemed like a “good person”. [ 69 ] The accused then proceeded to explain that he and B.B. had had sexual intercourse in his office, although he believed it occurred on November 21 st as opposed to November 24 th . The accused explained that it had been very quick since he had trouble achieving an erection. It was B.B. that forced him to engage in the sexual activity since she insisted on receiving his fertile sperm in order to get pregnant.

To that end, she threatened that if he did not comply, she would make problems for him. Feeling threatened and manipulated, the accused accepted to have sex that one time. [ 70 ] The accused also explained that B.B. was a manipulative, diabolical woman who had infiltrated his life and who wanted to replace his wife. ANALYSIS 1- The applicable burden [ 71 ] Similar fact evidence is presumptively inadmissible. That presumption of inadmissibility is rooted in the general exclusionary rule against evidence going only to disposition.

Evidence adduced solely to show that the accused is the sort of person likely to commit an offence is inadmissible.

[ 72 ] The presumption may be rebutted. [ 73 ] Should the Crown wish to adduce such evidence, [14] it bears the onus of establishing on a balance of probabilities that the probative value of said evidence on an issue in question (and on which it is tendered) is so high that it outweighs its prejudicial effect.

This may justify the reception of the evidence. [ 74 ] It is essential that the Crown specify the basis on which it proposes to tender the similar acts before the judge is called upon to make any ruling about such evidence. [15] That is because the Crown must establish the evidence’s probative value with respect to that specific issue . [16] [ 75 ] I must consider what inference is sought to be made from the proposed evidence and whether it has some tendency to advance the inquiry before the Court. [ 76 ] Where the similar fact evidence is tendered for multiple purposes, the judge must decide which issues predominate in order to correctly weigh the probative value of the evidence against its prejudicial effect. [17] [ 77 ] In the case at bar, the Crown proposes three bases upon which it seeks to tender the similar acts as relevant evidence: 1.

To refute the anticipated defence of “extortion by B.B. for sperm”, which essentially alleges that the complainant sexually assaulted the accused and subsequently fabricated the allegations. 2. To refute the anticipated defence that A.A. fabricated her allegations against the accused due to frustration about her work schedule. 3. To bolster the credibility of both complainants, albeit indirectly. 2- The governing principles regarding similar fact evidence

a) Distinguishing similar fact evidence from prohibited propensity reasoning [ 78 ] The rules governing the exceptional admissibility of evidence of similar facts have migrated from the traditional pigeonhole approach to a principled approach. The admissibility does not depend on whether the proposed evidence fits into a particular category or type of case. [18] Admissibility is determined by: 1. The relevance of the evidence to an issue in the case, other than by merely demonstrating the propensity of the accused to commit crimes or to engage in disreputable or repugnant acts; 2.

The probative value of the evidence; 3. The prejudicial effect of the evidence; and 4. A balancing of the probative value against the prejudicial effect of the evidence. [19] [ 79 ] In the recent case of R. v. D’Amico , [20] the Quebec Court of Appeal provided a useful review the applicable principles.

It explained that the probative value of similar fact evidence depends on the similar patterns found in the accused’s conduct and the objective improbability of coincidence. [21] Where such similar patterns are found, the probative value of the evidence is high enough to outweigh its potential prejudicial effect. [22] [ 80 ] The Court further specified that propensity evidence is admissible, provided it does more than demonstrate general propensity. [23] [ 81 ] In evaluating the probative value of similar fact evidence, it is not necessary to have concluded that any of the counts, considered individually, have been proved beyond a reasonable doubt.

In R. v. Arp , Cory J. recognized that the proposed similar fact evidence, standing alone, may fall short of that standard. Nevertheless, it can be relied upon to assist in proving another allegation beyond a reasonable doubt. Stated otherwise, two separate allegations can support each other to the point of constituting proof beyond a reasonable doubt, even where a reasonable doubt may have existed in relation to each in isolation. [24] The correct approach is a “cumulative” or “pooling” approach. [ 82 ] Although the issue in R. v.

Arp was the identity of the perpetrator, the principles enunciated therein apply equally to cases where the issue is whether or not the offences were in fact committed. [25] [ 83 ] In cases like the one at bar where the focus is not the identity of the perpetrator, but rather whether the offences were committed, the focus is on the objective improbability of coincidence being the reason that both complainants have made similar allegations against this same naturopath even though the two women do not know each other and have never crossed paths. [ 84 ] In assessing the probative value of the evidence, the Court should consider the strength of the evidence (which a special emphasis on the potential for collusion), identify the issues in question in the case and consider the similarities and dissimilarities between the facts in both counts. b) “Prejudice” defined [ 85 ] In assessing the prejudice generated by this sort of evidence, it must be underscored that “prejudice” does not signify “the risk of a conviction”.

Instead, it refers to the risk of an unfocussed trial or a wrongful conviction. The “prejudice” stems from the risk of

forbidden reasoning, such as inferring guilt from general disposition, propensity or “bad personhood”. [ 86 ] In all criminal trials, the trier of fact must scrupulously avoid inferring guilt from the evidence that the accused is a person of bad character likely to commit the offence charged. [ 87 ] The evidence must not create confusion or distract the trier of fact by the cumulative force of several allegations, which may deflect the Court from its task of deciding each charge carefully and separately. [26] [ 88 ] Recognized factors constituting prejudice which generally favour exclusion include the inflammatory nature of the similar acts, the availability of less prejudicial evidence to prove the same point, the potential for distraction of the trier of fact from his proper focus on the facts changed and the potential for undue time consumption.

These elements constitute moral prejudice and reasoning prejudice. [27] [ 89 ] In trials before a judge alone, the danger that a conviction will be rooted in reasoning or moral prejudice is significantly reduced.

c) Relying on similar fact evidence on the issue of the complainant’s credibility [ 90 ] One of the recognized and legitimate uses of similar fact evidence in sexual assault cases with multiple complainants is the fact that one woman’s evidence is potentially corroborative of that of the other. [ 91 ] Where the accused denies the offence or claims consent, evidence that he committed similar acts will increase the likelihood that the complainants’ allegations (or denial of consent to sexual activity) are true. [ 92 ] Said use has also been described as “supporting the credibility of the complainant”. [ 93 ] Ultimately, where the conduct element of the offence is at issue, presented for the above-mentioned purpose, by enhancing the credibility of the complainant(

s) and diminishing the credibility of an accused’s denial, similar fact evidence may constitute circumstantial evidence tending to prove the actus reus of the offence. [28] [ 94 ] Where the evidence of similar acts is summoned in support of proof of the actus reus , less cogent similarities may render the evidence admissible. [29] It is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared. [30] The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused’s conduct in closely defined circumstances. [ 95 ] For sexual assault cases in particular, in R. v.

B.(C.R.) , McLachlin J. (as she then was) explained that where identity is not an issue, the credibility of a complainant is an issue in which similar fact evidence may be received. [31] [ 96 ] Where similar fact evidence is admitted as supportive of the complainant’s credibility, the trier of fact may conclude, in view of the relationship between the accused and both complainants, as well as the facts of the two situations, that a pattern of similar behaviour existed, thereby suggesting that the complainants’ versions are true. [32] [ 97 ] In the recent case of R. c.

Demers (a sexual assault matter), the Quebec Court of Appeal again reiterated that similar fact evidence may be admitted for the purpose of corroborating the version of a complainant. [33] [ 98 ] Finally, I note that although in R. v.

Handy the Supreme Court warned against too readily admitting similar fact evidence on the issue of credibility (due to the risk that such evidence might go only to the accused’s general propensity), the Court did acknowledge that the evidence may nevertheless be admissible if relevant to an element of the actus reus of the offence. 3- The degree of similarity required by the appellate authorities [ 99 ] As a general rule, the more striking the similarities between the impugned events, the more probative will be the evidence. [34] [ 100 ] The degree of similarity required will vary in light of the purpose for which the similar fact evidence is presented and on the availability of other evidence. [35] [ 101 ] The principal driver of probative value is the connectedness of the evidence of similar acts to the alleged offences. [ 102 ] As expressed in R. v.

Shearing , a persuasive degree of similarity is required to be capable of raising the double inferences. However, the Supreme Court rejected a “checklist” approach to the issue of similarities. The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion. Conversely, at an excessively macroscopic level of generality, the drawing of similarities may be too easy.

Where to draw the balance is a matter of judgment. [36] [ 103 ] “Similarity” does not require a strong peculiarity or unusual characteristics underlying the events to be compared. It does not necessarily require a “system” [37] or a set of “strikingly similar” features. It is determined on a case-by-case basis. Relevant factors in assessing probative value include – but are not limited to:

1. Temporal proximity of the similar acts; 2. Similarity in detail between the similar acts and the offences charged; 3. The number of similar acts;[38] 4. The circumstances surrounding the similar acts; 5. Any distinctive feature unifying the incidents; 6. Intervening events; and 7. Any other facts that tend to support or rebut the underlying unity of the similar acts.[39] [104] Not all factors will exist in every case. [105] In R. v.

S.C., the Ontario Court of Appeal held that in sexual assault cases, “similar circumstances” are often more compellingthan similarities or dissimilarities in the actual “sexual conduct”. While the similarities or dissimilarities between the alleged sexual actsper se are relevant, they are often not as compelling as the circumstances surrounding the incidents. In dismissing the accused’s appeal,the Court explained: The Crown brought an application to admit the evidence of the appellant's prior convictions as similar fact evidence.

The trial judgereviewed the facts of the prior convictions and the anticipated evidence from GS and VS. She then set out the applicable legal principlesin R. v. Handy, which provides that similar fact evidence is presumptively inadmissible and the Crown has the onus to establish that theprobative value of the evidence outweighs its prejudicial effect. Probative value depends on: (1) the strength of the similar fact evidence;(2) the live issue to which the evidence relates; and (3) the relative cogency of the factors connecting and distinguishing the similar factevidence and the evidence of the charged offences.

The trial judge noted that the live issue to which the probative value related was "the unlikelihood that the complainants would assertsimilar conduct by [the appellant] unless that conduct really happened." The trial judge proceeded to assess the degree of similaritybetween the proposed evidence and the current charges. She undertook a detailed review of the evidence, and found that while therewere factual differences, such as the nature of acts, which varied from forced vaginal sex to groping, the circumstances in which the actsoccurred demonstrated a high degree of similarity.

The trial judge noted the following similarities in circumstances : -The appellant focused his attention on teenage girls; -The appellant had a familial relationship with the complainants (GS and VS were his nieces, CH and DH were his step-daughters); -The appellant occupied a position of trust in relation to the complainants' and the complainants were vulnerable; and -The appellant took advantage of circumstances in private homes, when no one else was around to observe his conduct, to abuse thecomplainants.[40] […] Third, and most importantly, in sexual assault cases, similar circumstances are often more compelling than similarities or dissimilaritiesin conduct.

As noted by this court in R. v. B. (L.) (1997), (ON CA), 116 C.C.C. (3d) 481 (Ont.C.A.) at para. 37, "incases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not ascompelling as the circumstances surrounding the incidents". The trial judge expressly relied upon this court's decision in B. (L.) as wellas R. v.

J.M., 2010 ONCA 117 at para. 91.[41] [106] The question really boils down to human experience and common sense.[42] 4- The principles applied to the doctor-patient setting [107] The admissibility of similar fact evidence is often examined in cases where physicians are charged with sexual assault on theirpatients. The typical scenario in such cases involves the complainants consulting the accused about various medical problems.Ultimately, they each allege that while the accused examined them, under the ruse of medical examination, he engaged in invasive ornon-consensual sexual touching. [108] Although Mr.

Agapiadis is not a doctor, those cases remain useful since the functions he performed as a naturopath (purportedlytrying to heal his clients) presented a similar context: he met with the complainants in his office for the purpose of providing them withnaturopathic treatment. [109] As mentioned above, much like any assessment of similar fact evidence, the evidence must not be tendered solely to show thatthe respondent-accused is a person of bad character or of a disposition likely to commit the alleged crime.

Rather, the evidence mustprovide information that is logically relevant to understanding the context in which the alleged offences occurred and shed light on thenature of the accused’s relationship with his patients (or clients), particularly the standard of treatment he provided to them. [110] Particularly apposite on this issue are the remarks of the Court of Appeal in R. v. D’Amico.

In describing the degree ofsimilarity required, the Court expressly gave the example of cases where similar fact evidence is used to determine whether inappropriatetouching in a doctor/patient setting was accidental or done for sexual gratification.

[111] In such cases, the Court of Appeal observed that “the degree of similarity ought not to suggest more than ‘importing a sexualcomponent into the professional relationship’ and consequently, ‘the manner in which that is done need not be the same in eachincident’”.[43] [112] This approach is consistent with the British Columbia Court of Appeal’s decision in R. v. Stewart: As noted by Iacobucci J. in Litchfield, supra, at 345, it is important to consider all the circumstances surrounding an accused's impugnedconduct where a doctor-patient relationship is concerned.

The evidence concerning what the appellant did with R.D. (the intercourse)was indicative of his desire to participate in sexual activity with a patient. The sexual intercourse he engaged in with R.D. occurredconcurrently with medical consultations with that patient. Likewise, the alleged improper fondling of his other female patientsoccurred in the course of medical procedures. The common thread running through all of this evidence was that the appellantwas seeking in each of these instances to obtain sexual gratification from his patients.

Although matters had progressed ratherfurther in the case of R.D., all of the alleged wrongful conduct concerned efforts to sexually interact with the patients. As the trial judgeobserved at para. 73, what occurred with all of these patients had a sexual component: On the whole of the evidence, I am not left with any doubt that the accused sexualized the doctor/patient relationship.

Sexualintercourse with his patient R.D. is a clear signal that he was not prepared to respect the boundaries of a doctor/patient relationship… The similarity in this case is the sexual component of his activity with all of these patients. What he did with all of the patients tendsto rebut the proffered defence of accident. Of course, what he did with R.D. perhaps more graphically demonstrates his wish toengage in sexual activity with his patients. But all of the activity with the patients has a common sexual quality about it.

Thesimilarity here lies in importing a sexual component into the professional relationship of doctor and patient. The conduct of intercourse with R.D. was simply a progression from his touching activity with the other complainants. In R. v.Shearing, 2002 SCC 58 , [2002] 3 S.C.R. 33 at para. 50, a case decided concurrently with Handy, Binnie J. observed that,although the sexual acts with various complainants were not particularly distinctive, the similarity or underlying unity lay in thecircumstance of the appellant's abuse of his authority as a cult leader.

Likewise, in this case, the underlying unity consists of thevarious types of sexual activity grafted onto the doctor-patient relationship. In my opinion, it can fairly be said that the appellant'ssexual activity with R.D. was properly admissible as similar fact evidence to be considered in relation to the other counts involving theother complainants. I therefore see no error in the trial judge considering the evidence of all of the other complainants relating to eachcharge or count concerning an individual complainant.[44] [emphasis added] 5- Application to the facts of this case

a) Findings on the issue of collusion [113] The complainants did not know each other. Nor did they ever discuss (or hear about) the allegations of the other regarding theaccused. On the record before me, there is not an iota of evidence suggesting collusion among the two women or even contamination. [114] A.A. testified that she did not know B.B. and had not heard about the other allegations against the accused.

In particular, otherthan her own testimony at the first trial, A.A. did not remain to watch the other witnesses. [115] As for B.B., there is no suggestion that she colluded with A.A., which she did not know and had never met. Even in the course ofthese judicial proceedings, she never spoke to her. [116] As for contamination, none was shown in the evidence. B.B. explained that when she reported the events for the first time to thepoliceman at the CLSC, the officer mentioned in passing, “ah, ça me dit quelque chose, cette histoire-là”.

This vague and generalcomment by the officer did not reveal and information capable of contamination. [117] During her videotaped interview, B.B. asked the investigator if there had been other reported cases. The investigator answered inthe affirmative, but refused to give her any details about the allegations. In fact, when she asked, detective Parent dismissively answered“we’ll talk about it afterwards” but they never did after the interview. [118] On this topic, detective Parent testified.

He confirmed that B.B. was told there was another complainant, but insisted that nodetails were disclosed about the nature of allegations. In fact, he explicitly told B.B. that this was in order to avoid any contaminationbetween the two. Similarly, he never informed A.A. about B.B.’s allegations either. [119] Detective Parent recognizes having told B.B. during the interview “we’ll talk about it later”, but insists that he never did.

In fact,he only told the witness that to dismiss the request and to ensure that she stayed focussed on her own account, which was in progress. [120] The Court believes the investigator’s testimony on this issue. It is entirely understandable that he would do so in order to keepthe focus on B.B.’s account, rather than derail the interview with unduly distracting explanations as to why he could not discuss the othercase. [121] B.B. acknowledges that after the first trial, she was briefly made aware of the nature of A.A.’s allegations.

Since no one hadanticipated the eventual mistrial, there was nothing improper about this. Quite the contrary, it perfectly understandable that a sexualassault complainant be curious about other allegations against the same accused. This typically happens after the witness’s testimony, ashappened here. [122] As such, the net result is that B.B. was made aware of contents of A.A.’s account before her testimony at trial #2. This is not

“collusion” in the sense of what is relevant in a similar fact evidence assessment. As for the fact that her testimony was contaminated, this is an issue properly left for the assessment on the merits. At this stage, suffice to say that had there been differences between B.B.’s testimony at trial #1 and her testimony at trial #2, they would have been exploited in cross-examination. None were revealed. Thus, the risk of the witness improving her evidence to conform to the other complainant’s account simply did not materialize here.

b) Comparing the similarities in both accounts [ 123 ] In the case at bar, there is a cluster of similar or common features between the two alleged incidents. [ 124 ] At this preliminary stage, the objective unlikelihood of coincidence is very high. [ 125 ] Turning to the Shearing criteria, the number of similar acts is rather small. There are only two, although that in itself is not an impediment to admitting the evidence. In fact, in R. v.

Burman , the British Columbia Court of Appeal held that two instances may suffice to constitute admissible similar fact evidence as between counts on a multi-count indictment. Incidentally, the charges in that case were counts of sexual assault. Moreover, the evidence was admitted (and cross-considered) to establish the actus reus of the assault and to bolster the credibility of one of the complainants. [45] [ 126 ] The defence argues that the level or similarity required should be inversely proportional to how many alleged acts there were.

Thus, since there are only two events here, the defence contends that the Court should require a very high degree of similarity, almost akin to a “calling card” or a “ modus operandi ”. The proposition seems logically attractive, although no single Shearing criterion is decisive. They must all be applied as a whole. [ 127 ] Thus, although the equation is not as clear-cut as proposed by the defence, the Court does caution itself against too easily finding “similarity” based on only two events. [ 128 ] The Court has considered the nature and the quality of the disparities between the two complainants’ allegations.

To be sure, there are disparities. The Crown is not suggesting – and the Court does not find – that the alleged incidents were exactly the same. However, as explained above, that is not the requisite standard for admissibility. [ 129 ] The Crown concedes that the length of the relationship between the accused and each complainant is different. He knew A.A. for 3 weeks, while he knew B.B. for approximately 9 months. [ 130 ] Moreover, the complainants’ ages are roughly 12 years apart. A.A. was 19/20 years old, while B.B. was 31/32 years old.

Nevertheless, they were both significantly younger than the accused. [ 131 ] Even though the defence concedes that the events were “close to one another”, the Court is more apprehensive. It is true that the incidents are not a decade apart, but there was still one year and a half between them, which is not negligible. The temporal proximity is a moderate factor here.

That being said, as argued by the Crown, the time lapse is somewhat tempered by the fact that the accused knew that he had an outstanding sexual assault charge pending against him, which might explain the reluctance to engage in such conduct sooner. [ 132 ] Finally, there was allegedly penetration in one case, but not in the other. In the Court’s view, this difference is easily discounted. According to A.A., penetration was imminent.

The reason it did not occur was because the accused was interrupted by a knock at the door. [ 133 ] Despite the foregoing dissimilarities, having reviewed the evidence at this yet preliminary stage in the trial, it seems highly improbable that these collusion-free allegations against this same accused could be attributed to coincidence. The parallels in the accounts of both women are striking: 1. Both alleged sexual assaults occurred in the context of a naturopathic treatment session. 2. The accused had fostered a relationship of trust with both women.

In light of the very nature of the session, both women were in a vulnerable position. 3. Both alleged sexual assaults occurred in the accused’s 2 nd -floor office. 4. Both alleged sexual assaults occurred on the massage table. 5. Both complainants are significantly younger than the accused. 6. In both cases, the accused removed the complainant’s shoes before progressing to more overtly sexual acts. 7. In both cases, throughout the entire incident, the accused continuously repeated reassuring words, such as “relax”, “you’re doing a great job”, “everything is great”, “trust me”. 8.

In both cases, the accused placed his hand underneath the complainant’s shirt and then her bra. 9. In both cases, the accused continued to progress in the sexual touching despite the complainant’s repeated objections that she was not comfortable and that he should stop. 10. In both cases, in the face of objections, he told the complainant to let him do his job. He told A.A. that she had to cooperate in order to get better. He similarly told B.B. that if she wanted to heal, she needed to comply. 11.

In both cases, in the course of the touching, the accused explained his theories about how there is “good sperm” and “bad

sperm”. 12. In both cases, the accused told the complainant that she had been on the receiving end of “bad sperm”, which explained some condition or ailment. 13. In both cases, the accused jumped on top of the massage table and mounted the complainant, sitting on her as one would on a horse’s saddle. 14. In both cases, the accused pulled down the complainant’s panties. 15. In both cases, the accused kissed the complainant in the face, even though she was in tears. 16. The accused made claims of quasi-divine powers to both women.

He explained to A.A. that prior to her treatment, he would need to “study” her energy. Before the actual session, he had been able to sufficiently study her by simply looking at her. The accused made similar claims to B.B., suggesting that he had been able to “read” her boyfriend by merely looking at him. This observation was sufficient to allow him to conclude that the man lacked quality sperm (it was too acidic), he would be unable to impregnate her and his energy was incompatible to hers. 17. A.A. worked for the accused at the downstairs café.

Although B.B. did not, the accused often suggested that she come work for him at the café. [ 134 ] The similarities in detail between the two events are significant. In particular, points 10, 11 and 12 are highly specific, distinctive and in no way generic to most sexual assault allegations.

The improbability of coincidence that both complainants would fabricate such a specific concoction is self-evident. [ 135 ] Being told that you are receiving “bad sperm” is hardly a common occurrence for a woman in her normal day-to-day life, or even in the course of being raped. [ 136 ] The same can be said of points 6 and 13, which are particular and precise. [ 137 ] The threshold probative value of the combined versions is prima facie compelling.

The evidence shown entitles the Court to infer first a situation - specific propensity of the accused and second, that such propensity as established is present in each of the alleged victims' cases. [ 138 ] The circumstances surrounding the similar acts are also distinctive and similar. As expressed by the Ontario and British Columbia Courts of Appeal in R. v. S.C. and R. v. Stewart , the similar circumstances in sexual assault cases are often more compelling than similarities or dissimilarities in the actual “sexual acts”.

The position of trust, the naturopath-patient relationship and the private place where no one else was around to observe his conduct, all fit in that category. In fact, let us recall that in R. v.

D’Amico , the Quebec Court of Appeal suggested that in the physician setting, it is sufficient to show that the accused imported a sexual component into the professional relationship. [ 139 ] Based on the versions received thus far, it is alleged that in both cases, the accused sexualized the naturopath-patient relationship. [ 140 ] The probative value of the evidence goes directly to the live issues of (1) assessing the defence of fabrication and/or actual consent and (2) the credibility of the complainants in the Crown’s effort to establish the actus reus of the offences. [ 141 ] I am alive to the danger of prejudice and have instructed myself to scrupulously steer clear of general propensity reasoning on the merits.

The admission of this evidence does not permit the inference that Mr. Agapiadis is generally likely to commit crimes, even sexual offences. The permissible use is far more constrained. [ 142 ] I have also carefully considered the danger of subconscious moral prejudice. No adverse inference may be drawn against the accused on the basis that he is an “immoral”, disreputable or “bad” person. [ 143 ] The Crown has met its burden of establishing, on the balance of probabilities, that the probative value of the similar fact evidence amply outweighs its prejudicial effect.

CONCLUSION [ 144 ] I have carefully considered the evidence of the complainants, the evidence of the investigator and the able submissions of counsel. I am satisfied that the evidence of A.A. and of B.B. is properly considered as similar fact evidence. FOR THESE REASONS , the Court: GRANTS the Crown’s application; RULES that the evidence adduced on each count is relevant and admissible to the other count as well, as similar fact evidence.

__________________________________ D. GALIATSATOS, J.C.Q. M e Annabelle Sheppard Counsel for the applicant – Crown M e George Calaritis Counsel for the respondent – accused Hearing date: December 3rd, 4th, 5th, 10th, 11th, 12th and 13th 2019