R. v. Fernandez, 2017 ONCJ 231

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (

i) if it occurred on or after that day; or (

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

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

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

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

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

summary conviction. CITATION: R. v. Fernandez , 2017 ONCJ 231 DATE: April 7, 2017 ONTARIO COURT OF JUSTICE Toronto Region BETWEEN: HER MAJESTY THE QUEEN Applicant - and – DANIEL FERNANDEZ Respondent Counsel for the Applicant: Tom Goddard

Counsel for the Respondent: Breese Davies R. Libman J.: - Ruling on Admissibility of Similar Act Evidence Heard: 1 March 2017; Judgment: 7 April 2017 (63 paras) Introduction [ 1 ] Mr. Fernandez is charged with sexually assaulting a woman, JB, whom he was standing behind in a line at the cashiers’ checkout counter in a Longo’s store on 10 November 2015. JB has testified that she felt her buttocks being touched inappropriately three times as the two of them were standing together in this line.

A video surveillance camera in the store recorded the accused and the complainant (and others) standing in this area of the store. [ 2 ] JB’s evidence concluded on the first day of the trial. It was preceded by that of the store manager, Cheryl Altenburg, who testified as to the operation of the video surveillance equipment in this particular store, which is located in the food court at First Canadian Place. [ 3 ] Crown counsel indicated that this evidence completes its viva voce case at the trial.

However, he seeks to additionally submit into evidence this video surveillance tape which further shows, he argues, an incident shortly before the alleged sexual assault of JB where Mr. Fernandez is standing closely behind another woman in the same cashier’s line at this Longo’s store, and another incident after the defendant lined up behind JB where Mr. Fernandez is in another portion of the store and appears to be standing very near to a woman at a food counter.

It is the Crown’s view that these two interactions show similar groping conduct by the accused and are therefore admissible as similar act evidence. [ 4 ] Ms. Davies, on behalf of the defendant, resists the application, and argues that the evidence is inadmissible as it is not sufficiently similar. Indeed, she submits that it is difficult to discern the precise nature of any interaction or contact between the defendant and these women from the playing of the tape.

The two women who are recorded in the surveillance tape are unknown, and hence have not given evidence on the application; there is therefore no evidence from them as to what, if anything, they say happened or felt when the accused was standing behind them. [ 5 ] It is within these confines that I am called on to determine the precise nature of the conduct that the video surveillance tape depicts, and whether such evidence satisfies the test governing the admissibility of similar act evidence. Evidence at Trial [ 6 ] The evidence I have heard has been put forth during the Crown’s case.

The defence has not yet been called upon to indicate whether it intends to present any evidence. Accordingly, I propose to review the trial evidence only to the extent necessary for the purposes of deciding this application. Cheryl Altenburg [ 7 ] Cheryl Altenburg, the store manager, was at work in First Canadian Place on 10 November 2015. She was made aware of the alleged incident involving JB by the cashier during her lunch hour that day.

As a result, she proceeded to look at the cameras to see what happened, and “pull” video from them to review it. [ 8 ] According to the witness, there are about 15 cameras in the store. These cameras do not capture anything beyond the store, that is, where it borders the mall. The incident that she was reviewing was specific to the bakery camera (Channel 008). Ms. Altenburg saved what the police requested on this camera, and provided it to them on a USB drive. The date and time of running of the camera is reflected on the tape.

However, the witness noted that when she viewed the cameras, there was a “continuous motion”. When the tape was saved, though, the images captured in motion and the frames were sometimes “chopped” as it was transferred to the USB. [ 9 ] Ms. Altenburg testified that the bakery camera is positioned at one end of the Longo’s, “looking along” the back of what is “a long narrow store”. The front end of the store, on the other hand, opens into the mall entrance underneath First Canadian Place.

As shown by the channel 8 camera, on the left of the screen just out of view of the camera is one of the cashiers where there are two cash registers. The camera itself is mounted in the ceiling of the store, and is “looking down onto the activity in the store,” that is, from above the people who are in the image. [ 10 ] There is another camera angle that is in the middle of the store (channel 12) that shows the diary aisle, which runs along the back. It is mounted in the ceiling of the store.

There is another camera that is mounted in the ceiling in the middle of the back side of the store that looks down the dairy aisle. Channel 9 is mounted in the ceiling above the deli counter that is positioned to the hot food counter. [ 11 ] Ms. Altenburg confirmed that she looked through all the camera surveillance to track the movements of the defendant through the store on 10 November 2015. There was no footage of him entering or leaving the store. As a result, the witness was not able to say when the defendant exited the store or if he purchased anything while he was there.

In total, she disclosed video evidence to the police from three different cameras. All of the channels are on the same system. They get their time from the same source. JB [ 12 ] Ms. B testified that on the date in question she went to the deli counter at the Longo’s grocery store to buy two slices of cheddar cheese for her lunch. The time was approximately 12:25 in the afternoon. It was very busy then. After going to the meat deli, she got her cheese and went to stand in the lineup for the cashier. There were approximately seven people in front of her.

[ 13 ] The witness was facing the checkout counter at the time. She explained that there was not a lot of room to move as there was another counter with bread and cookies where people were also lining up. As a result, her space to move was “very limited” because “of all the people that were there.” [ 14 ] According to JB, while she was in the lineup she felt being touched on her hip and backside. She thought, “maybe this was just an accident” as the person was leaning over her to get deli bread, and accidentally bumped her. She then moved forward “a little bit.” However, there was not a lot of space to do so.

As she moved forward in this manner, she felt a second contact, a “brushing touch” on her other hip. [ 15 ] In examination in chief, Ms. B was asked to describe the first touching incident in greater detail. She explained that she could feel a “brushing of a hand” that felt like it was covered.

While she was unable to see it, she could feel it go over her: it was not a “heavy pressure” but “a feeling of it going across my hip and my backside.” She demonstrated in court that this motion was from the back part of her hip, to the upper part of her buttocks, sliding down, but not all the way around, “just on the top portion.” She felt the person’s hand or fingers move “across and down.” It happened very quickly, taking about five seconds.

She did not turn around to speak to the person behind her as she “just gave the benefit of the doubt and moved forward as best I could.” [ 16 ] As for the second incident, it happened very quickly, about five seconds after she had stepped forward a bit following the first contact with the person’s hand. This time it was on her other hip. It was “exactly the same”: it was the top going into the centre but not underneath. She demonstrated by pointing to her left side, starting at her hip and going to the upper part of her buttocks.

The hand travelled the same distance; it felt covered. [ 17 ] After this second touching of her buttocks, Ms. B moved forward again. She explained that she was being careful as there was another lady in front of her and she was trying not to encroach on her space. She tried to turn, but could not do so all the way around so as to confront the person behind her, and say, “did you mind, give me my space.” Instead, she just moved closer by shuffling her feet. [ 18 ] The witness was asked how each of these incidents made her feel.

She stated that the first time she took what happened to be “an accident”, as if someone was “just moving something and picking something up and accidentally brushed me.” As a result, she became “a little bit more aware of what was – that someone was very close to me.” [ 19 ] With respect to the second time she felt contact on her buttocks, she “questioned I thought that didn’t feel right.” Given this reaction, she was “trying to see to tell the person to just give me some space.” [ 20 ] On each of these two occasions, she thought the person in line behind her used both hands: “one on one side and one on the other.” [ 21 ] After the second touching incident, the line proceeded forward.

According to JB, she wasn’t touched further during this period, which lasted about 20 or 30 seconds. There were three people left in front of her. Two ladies paid for their purchases at the cashier. It was then her turn to pay. At this time, she felt “both hands go across in the identical area again” as she leaned forward to put her cheese on the counter. [ 22 ] The witness described this third touching as her feeling two hands, once again, at the top of her hip and the top of her buttocks, but not lower and not around in the front.

The person’s hands moved across her body, from one hip to the other to the top of the buttocks. When asked how this made her feel, she said: Shocked. I was in disbelief. I couldn’t believe it. I thought I can’t believe that - and I was trying not to think like that, but it was in my mind and I’m a pretty quiet person and I turned and the individual was standing outside of the store … [ 23 ] The complainant did not confront the person after the third time she was touched. She explained that she did not know what to do. She did put the cheese down and turned to see the person.

She could see the person’s face and jacket. His hands were in his pocket. He looked at her and then left. No words were exchanged between JB and this man, who is acknowledged to be the accused. [ 24 ] Subsequently, JB went to her office at the Toronto Stock Exchange to compose herself, but she was still in a state of shock and disbelief. She was “trying to make sense of what happened.” A few hours later, she decided to return to the Longo’s store where she spoke to the manager, Ms. Altenburg. She then returned to her office.

Afterwards, the complainant called the police to report she had been “sexually touched without permission.” [ 25 ] During the witness’s examination in chief, the video surveillance tape channel 8 was played. It had never been viewed by her before. She identified the three touching incidents as the tape played in court. The recording commences at 12:26:58 on the day in question. The tape was played a number of times; it is not a continuous sequence. The first time the witness felt her buttocks being touched was at 12:27:02, according to the time counter on channel 8; the second incident occurred at 12:27:38.

The time that the witness is directly in front of the cash register and puts her cheese down, when she felt the third touching of hands to her buttocks, occurs at 12:29:24. [ 26 ] In cross-examination, Ms. B was referred to her statement to the police where she wrote, “I moved forward and it happened again, this time the right side. It felt like his hands were in his jacket as he brushed against me.” She explained that she could feel “a piece of jacket material” making contact with her buttocks on this second occasion, but also the person’s fingers and inside part of the knuckles and thumb.

The person did not have their hands in the front pockets of their pants which brushed against her. The third time, she felt two hands at the same time. [ 27 ] Although the witness told the police that the man who touched her ran out of the store after the third incident, she agreed that after watching the video surveillance tape in court it showed that he went to the back of the store, towards the deli counter.

As a result, she agreed that her recollection of this portion of what happened was wrong. [ 28 ] With respect to the motion she felt on her buttocks, she explained in cross-examination that they were not all the same kind of brushing or sweeping motions across her body. The third one, she stated, was “more prevalent.” On each occasion, though, the person’s

hands were moving and did not stop. In the witness’s words “... I don’t use harsh words but it’s touching, dragging, whatever word youwant to use, brushing. You feel it all the same.” The third touch was “a little bit longer than the first two touches.” The first two were “aquicker motion.” The last one was “a deliberate motion.” They all happened very quickly. Evidence on Similar Act Application [29] The Crown’s application in support of similar act evidence consisted of playing the video surveillance tape of two other interactionsin the Longo’s store on the same day that JB says she was sexually assaulted.

One of these incidents is said to have happened minutesbefore JB was in the cashier’s line; the other takes place a few minutes afterward. [30] The video surveillance tape was played a number of times in court. There is no accompanying testimony. The two women who areimmediately in front of Mr. Fernandez are unknown, and have thus not given viva voce evidence. Incident Previous to Alleged Sexual Assault of JB [31] The first of these two recordings is captured by channel 8. The time is 12:24:14, or about three minutes before the first time JBtestified she was touched. The tape ends at 12:25:29.

It shows the accused in the same line for the cashier, near the bakery aisle, standingbehind a woman. The accused has no merchandise in his hands. This occurs at about 12:25:04. [32] There appears to be a motion by the defendant’s left hand while he is standing behind this woman in the checkout line. His handextends towards her buttocks. She subsequently moves forward. The defendant’s hand then come backs, away from her. [33] In his written outline of this portion of the video surveillance, Mr.

Goddard describes this motion as consisting of the defendantslightly extending his left arm and left hand, and brushing his left hand along the right buttock area of the woman in line. Subsequently,the woman appears to move forward, as does the defendant. It then appears that he extends his left arm near the buttocks area of thewoman’s skirt, although it is not clear if contact is actually made. The woman proceeds to leave the checkout line; the defendant alsoexists the line. Neither one of them actually proceed to the checkout to purchase any items. [34] Ms.

Davies takes a different view as to the contents of the tape.[i] She notes that it appears at one point that the defendant did selectan item close to the cashier, but then returned it to the shelf. The surveillance tape does appear to depict this. However, at no time, shesays, does he ever make contact with the woman in front of him at the cashier’s counter.

Indeed, there is no reaction by this woman priorto her leaving the line, evidencing any awareness that she was touched inappropriately by the man behind her, such as by changing herlocation in the line, moving forward or to the side, or confronting him in any way immediately following any unwanted touching. Incident Subsequent to Alleged Sexual Assault of JB [35] Both parties agree that a few minutes after the defendant left the cashier’s line after he stood behind JB, camera 9 shows him at12:30:03 walking in the Longo’s store with no merchandise in his hands. The next time he is seen camera 12 is playing.

The time is now12:32:10. He is in a different part of the store. It appears that the defendant is in a line, standing behind another woman. He is notholding any merchandise in his hands. [36] The Crown states that the defendant can be seen standing close behind a woman in this small line. At 12:32:20 he gets out of theline, walking away without purchasing anything. Defence counsel, on the other hand, observes that there is no evidence that there is acashier close to this area. It merely appears that there is a salad bar around the corner from where Mr. Fernandez is seen standing.

Legal Positions of the Parties Position of the Crown [37] It is the position of Mr. Goddard that while evidence of discreditable conduct is presumptively inadmissible, similar act evidencebecomes admissible where the Crown is able to demonstrate, on a balance of probabilities, that the evidence is relevant and probative toan issue at trial and where its probative value outweighs its prejudicial effect.

He relies, in this regard, on the controlling authority of R vHandy, 2002 SCC 56. [38] Given that the proposed evidence is a form of character evidence, its relevance, he says, usually depends on the proposition thatpersons tend to act in a manner consistent with their character.

Relevant factors for consideration include: proximity in time of thesimilar acts; the extent to which other acts are similar in detail to the charged conduct; the number of occurrences of the similar acts;circumstances surrounding or relating to the similar acts; any distinctive features unifying the incidents, intervening acts; and any otherfactor which would tend to support or rebut the underlying unity of the similar acts.

However, in terms of the probative value of suchevidence, the similar act evidence need not be conclusive of guilt in order to meet the test for admissibility. [39] In support of his contention that the two incidents of the defendant touching other women in line ahead of him at the Longo’s storeshould be received as similar act evidence, Crown counsel submits that such evidence will assist the court in determining whether theevidence of the complainant in these proceedings is consistent with a deliberate or non-accidental touching of her buttocks.

That is, thedefendant’s doing the same thing to other women in the store shortly before and afterwards constitutes an unusual course of conduct thatbears a striking similarity to what JB says happened to her. Such evidence additionally shows that the presence of others and lack ofprivacy in the store did not inhibit the defendant from acting in this manner while standing in line, in a public setting, behind thesewomen: see, to this effect, R v Moore (1994), (ON CA), 73 O.A.C. 277 at para. 17. [40] Mr.

Goddard particularly relies on the defendant’s conduct standing behind the unidentified woman in the cashier’s line as beingvery proximate in time (a few minutes before he lined up behind JB); very similar in detail to the actual touching of JB as it shows himwaiting in line with nothing to buy, and leaving once he reached the front of the line with no one ahead of him to touch; and theintervening event of exiting the line and getting back in the line behind JB, without having picked up anything to purchase. As for thesubsequent incident, Mr.

Goddard again relies on the proximity in time to the previous incidents at the cashiers’ counter, and the

intervening event of the defendant leaving the line after he waited a few minutes, with no apparent purpose, and then getting back in aline behind another woman without picking up any item to purchase. Position of the Defence [41] Defence counsel takes the position that the evidence sought to be tendered by the Crown in support of its similar act evidenceconstitutes propensity evidence, which is generally inadmissible.

Indeed, she submits, relying on R v B. (C.R.), (SCC),[1990] 1 S.C.R. 717, the surveillance footage is “classic” similar act evidence, and carries with it all the risks associated with propensityevidence: its only probative value is to purportedly show another sexual assault committed in similar circumstances. [42] Ms. Davies contends, further, relying on the Supreme Court’s decision in Handy, that similar act evidence is only admissible wherethe proffered evidence is capable of proving the alleged similar act. This is a condition precedent to its reception.

However, if theevidence in issue is not properly capable of supporting the inferences sought by the Crown, the inquiry need not go any further. (Handy,paras. 134-136) The burden on the Crown in this regard is to establish that the proposed similar fact evidence is capable of belief, on thestandard of a balance of probabilities, when it is tendered for its admission. She cites as authority for this proposition R v Larsen, 2012NWTCA 9 at para. 26. [43] The video tape surveillance evidence, on its own, fails to meet this threshold, according to the Defence.

At its highest, it iscircumstantial evidence which falls short of clearly showing the defendant touching other woman. Indeed, it is not even clear that anycontact with these women was made, given their lack of any reaction, and the absence of evidence from them as to what, if anything,they say happened. [44] As a result, the video surveillance evidence tendered by the Crown in support of its application is not reasonably capable ofsupporting the inference it seeks to have drawn.

In order to have probative value as similar act evidence, the Crown must demonstratethat the defendant went behind again, and stood closely proximate to, a woman in a line in the store, and either touched herinappropriately in the buttocks area, or intended to so touch her. Merely stopping in line in a crowded grocery for a few moments fails tosupport this inference. No reasonable inference of misconduct arises on such evidence of a pattern of “problematic conduct” on the partof the defendant, it is submitted. To the contrary, the footage shows that Mr.

Fernandez did the opposite of what one might expect ofsomeone who had been caught committing a sexual assault: he remained in the store and continued shopping. Test For Admission of Similar Act Evidence [45] The “similar act” evidence rule is an exception to the general rule of exclusion of evidence which prohibits the Crown or other partyfrom leading evidence of the “bad character” of the accused or another party: R v Arp, (SCC), [1998] 3 S.C.R. 339; R vB. (C.R.).

It applies where the Crown or other party seeks to tender evidence of “discreditable conduct of the accused or opposite partyon other occasions as evidence of the probability that he or she did or did not perform the act which is alleged or have the requisite state of mind”. See J. Sopinka, S. Lederman, A Bryant, M.

Fuerst, The Law of Evidence in Canada, 4th ed., (Markham: LexisNexis CanadaInc., 2014) 672. [46] In Handy, the Supreme Court explained that where similar act evidence becomes “more focused and specific to circumstancessimilar to the charge” the probative value of the evidence, thus circumscribed, becomes “more cogent.” (para. 48) The probative value ofsuch evidence exceeds prejudice where the force of the “similar circumstances defies coincidence or other innocent explanation.” (para.47) The more cogent the evidence and the greater its probative value, it is more likely that the evidence will be used for a legally relevantpurpose. [47] The similarity between or amongst acts is to be decided on a case by case basis by taking into account all of the relevant factors,such as proximity in time and place, the number of occurrences and similarities in circumstances and detail.

Once the trial judgedetermines that the crime charged and similar act were likely committed by the same person, the judge must then consider whether thereis “some evidence” that links the defendant to the similar act. However, evidence of mere opportunity or possibility is not sufficient: R vPerrier, 2004 SCC 56 , [2004] 3 S.C.R. 228. [48] In the assessment of similarity, the trial judge should only consider the manner in which the acts were committed, not the evidenceof the defendant’s involvement in each act.

As a general rule, where the trial judge is satisfied that there is a sufficient degree ofsimilarity between the acts that were likely to have been committed by the same person, similar fact evidence will usually have asufficient degree of probative value so as to outweigh its prejudicial effect, and thereby justify its reception into evidence.

The test as toadmissibility is not different where the similar acts which are alleged are definitively attributed to the defendant, or the subject ofseparate counts in a multi-count indictment: R v Arp. [49] The Supreme Court further held in Arp that the proper standard to apply to the primary inferences that are drawn from the similaract evidence is on the standard of proof on a balance of probabilities.

There is not a requirement that one of the allegations must beproven on the standard of proof beyond reasonable doubt in order for the trier of fact to consider it. [50] Dissimilarities that do not destroy the “striking similarities” amongst the allegedly similar acts, do not render the evidenceinadmissible as evidence of similar acts: see R v Hatton, (ON CA), [1978] O.J. No. 460 (C.A.), at para. 61.

Application of Law to Facts of Case [51] The Crown’s application for admission of the proffered similar act evidence consisting of the defendant lining up, in closeproximity, behind two other women in the Longo’s store, minutes before and after his alleged touching of JB, turns very much on what itis that the video surveillance tape depicts that Mr.

Fernandez is, or appears to be, doing during the relevant time. [52] With respect to the source of the similar act evidence, the surveillance camera videotape, as a general rule once it is established thata videotape has not been altered or changed, and that it depicts the scene of a crime, it becomes admissible and relevant evidence. Notonly is the tape real evidence, but it is also testimonial evidence as well. It can therefore be used by the judge or jury in the determination

as to whether a crime has occurred, and whether the accused committed the crime: R v Nikolovski, (SCC), [1996] 3S.C.R. 1197 at para. 28 [53] The Supreme Court went on to state in Nikolovski that while triers of fact are entitled to decide the issue of identification of theperpetrator of a crime based solely on videotape evidence, caution must be exercised in doing so.

It is essential to “consider carefully”whether the videotape is of sufficient clarity and quality, and shows the defendant for a sufficient time so as to enable them to concludethat identification has been proven beyond a reasonable doubt. (para. 30) [54] Although the case before me is not one, like Nikolovski, where the videotaped evidence is tendered in support of identification, thecautions expressed by the Supreme Court are equally applicable.

That is, there is no qualitative difference in a videotape that is played incourt in support of proof that the accused person is the perpetrator of a crime, or where it is played to prove he/she is committing whatconstitutes a crime.

In this particular instance, the videotaped surveillance evidence is being proffered, without anything more, as proofthat the accused sexually assaulted two other women in the Longo’s store, and in a manner strikingly similar to his alleged sexual assaultof JB. [55] I have viewed this videotaped evidence numerous times, both in court while it was played on the similar act evidence application,and subsequently in preparing these reasons. There is no question that the resolution of the tape, and its quality, is very high.

However,the clarity of what it is said to depict is very much uncertain and unclear, and indeed capable of competing

interpretations. [56] It will be recalled that in the case of JB, the videotaped surveillance evidence, augments her testimony. It has not been tendered insubstitution of it. Thus, the witness has given viva voce evidence as the tape was played for her, as to her descriptions of what she feltand how she reacted to the conduct of the man standing behind her, while she was waiting in the checkout line. There were three discreteinteractions during this approximately three minute period, according to the complainant.

They each involved her being touched in thebuttocks area, she has testified, by both hands of the person standing behind her, in a sweeping and deliberate manner. The three touchingincidents lasted for different time periods, and were separated by different time intervals. [57] By contrast, in the case of the preceding incident relied upon by Crown counsel as similar act evidence, the defendant is said to bestanding closely behind an unknown woman in the same checkout line as JB.

Taking the evidence over this one minute interval or so atits highest, there appears to be some contact, once only, by the defendant, with the woman waiting in the checkout line ahead of him.However, unlike the case of JB where she stated that she was touched with two hands on each of the three occasions, the defendantextends his left hand only in the person’s direction. It is not apparent on the videotape, though, that this woman is actually touched in herbuttocks area by the defendant’s hand, and certainly not in any sweeping or deliberate two-handed motion.

Neither does there appear tobe any reaction by her in response. Indeed, they both get out of the line without acknowledging the other, as if nothing happened. [58] In my respectful opinion, this evidence is equally consistent with an accidental or inadvertent touching, as it is with a deliberateapplication of force. It is ambiguous at best.

It certainly does not permit me to find that the defendant applied his hand to the buttocksarea of the woman ahead of him in a manner that would amount to a violation of her sexual integrity, and hence constitute a sexualassault: see R v Chase, (SCC), [1987] 2 S.C.R. 293 at para. 11 [59] The subsequent incident occurs in another portion of the store. It lasts for no more than 10 seconds.

It is not apparent, at all, whetherthe defendant and the woman in front of him are standing in a checkout line, as opposed to waiting to be served by a counter-person.Further, it is impossible to determine whether any physical contact is made between them, much less contact in a similar manner that isalleged to have occurred to JB, or indeed with the other woman in the checkout line beforehand. [60] It would be unsafe, as a result, to rely upon this portion of the evidence in satisfaction of proof that this unknown person was thesubject of any assault or sexual assault, much less that it took place in a manner similar to that alleged by JB.

Mr. Goddard, to his credit,acknowledged this this is the least compelling evidence, of all the other incidents, in support of his application. [61] To put it shortly, then, neither of the incidents put forth by the Crown in support of its application is highly similar in detail, norcomprise specific acts that are very distinctive, when assessed in light of the acts described by the complainant JB, and depicted by thevideo surveillance camera evidence in relation to her.

That is, there is no “striking similarity” between the other incidents or allegations,and no “unique signature”: see R v J.M., 2016 ONCJ 397 at para. 51, per Paciocco J. [62] I am therefore compelled to conclude that it has not been established, to the requisite degree of certainty, that the proffered evidenceis capable of proving the alleged similar act. This is a condition precedent to its reception. Given that the evidence in issue is not properlycapable of supporting the inferences sought by the Crown, the application must fail.

Disposition [63] The Crown’s application to adduce similar act evidence based on the two additional interactions shown on the videotapesurveillance evidence between the defendant and the two unknown women is therefore dismissed. It would be remiss of me, in sodeciding, not to acknowledge the very high quality of the written material and oral argument of both counsel, for which I am verygrateful. R. Libman J. Date: 7 April 2017

[i] The parties were unable to submit an agreed statement of facts on the similar act evidence application given their differing observations and

interpretation of the movements shown on the video surveillance camera.