R. v. Hill, 2023 ONCJ 115

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

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 victim of the right to make an application for the order; and (

b) on application made by the victim, 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. ONTARIO COURT OF JUSTICE CITATION: R. v. Hill , 2023 ONCJ 115 DATE: February 17, 2023 COURT FILE No.: Central East Region: Oshawa Courthouse File #20-DV22782 BETWEEN: HIS MAJESTY THE KING Respondent

— AND — ALLAN HILL Applicant Before Justice Peter C. West Trial Evidence Heard on September 7, 8, 9, 12, 13, 28, 2022 Oral Submissions Heard on November 14, 15, and 21, 2022 Reasons on the Crown’s Similar Fact Application Dated February 17, 2023 Ms. M. Allan................................................................... counsel for the Crown Mr. M. Capotosto.................................... counsel for the defendant, Allan Hill WEST J.: Introduction [1] On December 7, 2020, Allan Hill was arrested and charged with the following charges: 1.

Between the 1st day of March 2020 to 31st day of March 2020, at the City of Oshawa in the Central East Region Allan Hill didcommit a sexual assault on JG; 2. Between the 1st day of March 2020 to 31st day of March 2020, at the City of Oshawa in the Central East Region Allan Hill didcommit an assault on JG; 3. Between the 1st day of March 2020 to 31st day of March 2020, at the City of Oshawa in the Central East Region Allan Hill didcommit an assault on JG; 4. On or about the 8th day of May 2020, at the City of Oshawa in the Central East Region Allan Hill did commit a sexual assault on JH;and 5.

On or about the 16th day of November 2020, at the Municipality of Clarington in the Central East Region Allan Hill did commit asexual assault on AS [2] The trial proper commenced on September 7, 2022, and the Crown called the three complainants, JG, JH and AS as witnesses.Allan Hill testified on his own behalf. The main issues in the trial was whether the sexual contact alleged occurred and, if it did, whetherit was non-consensual.

Central to my decision is my assessment of the honesty and reliability of the complainants’ and the Defendant’stestimony. [3] Before determining whether the Crown has proven its case beyond a reasonable doubt, I want to address the Crown’s similar factapplication. It was agreed by the parties that this application would be dealt with not as a pre-trial motion, but an argument as toadmissibility at the conclusion of the evidence. This procedure was confirmed in R. v. Last, 2009 SCC 45 , [2009] 3 S.C.R. 146,at para. 34.

The Crown’s Similar Fact Application [4] The Crown is seeking to have the evidence of the three complainants used as similar fact evidence between counts on the sameInformation. It is argued that the similar fact evidence supporting Allan Hill's situation-specific propensity is probative to the issues ofwhether the sexual activity happened and whether the activity was consensual. [5] Evidence of discreditable acts of bad character, disposition and general propensity are presumptively inadmissible.

The onus ison the Crown to “satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of theevidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception” (see R. v. Handy, 2002 SCC

56 , [2002] 2 S.C.R. 908, at para. 55; and R. v. Tsigirlash, 2019 ONCA 650 , [2019] O.J. No. 4112 (C.A.), at paras. 23-25;). The general exclusionary rule recognizes that such evidence, although potentially relevant to the ultimate issue of guilt orinnocence, poses grave dangers to a fair trial: see R. v. Handy (2002), 164 C.C.C. (3d) 481 (S.C.C.) (at paras. 31-36).

Such evidence hasthe great potential “for prejudice, distraction and time consumption” and these disadvantages will usually outweigh its probative value.(see Handy, para. 37) The serious potential prejudice arising from the admission of general propensity evidence encompasses both moralprejudice (stigma of “bad personhood”) and reasoning prejudice (potential confusion and distraction of the trial judge or jury from theactual charge against the accused) (see Handy, para. 100). [6] The Crown submits the issue the similar fact evidence relates to is the actus reus of the three sexual assault offences and that theevidence may be used in relation to one another in assessing the evidence of each complainant.

Further, it is proffered to demonstrate apattern of behaviour, to negate a defence that the complainants were fabricating and to defy coincidence with respect to the offencesalleged. [7] The Crown submits that the complainants' evidence demonstrates a consistent pattern of strikingly similar behavior by theaccused. which is probative of each of the issues for which admissibility of the evidence is sought.

The pattern, says the Crown, isdemonstrated by the following similar circumstances: • All three relationships are brief, each relationship moved very quickly and intensely, with the accused spending most or all of histime with each of three women; • All three women end up staying with the accused at his residence and bringing some of their personal belongings; • All three women are single mothers, and the accused introduced each of them to his daughter within days of meeting him; • There is a point where there is argument and almost a breakup and then reconciliation; • All three women notice and comment on his issue with alcohol and drugs; • All three women describe having a discussion with him early on as to what they would and would not consent to, including analintercourse, which at that stage of relationship they advised him they would not be comfortable doing; • All three women describe after the argument and eventual movement towards reconciling where consensual sexual contact isoccurring that the accused makes a derogatory comment and then forces non-consensual anal intercourse. [8] The defence position is that the probative value of the similar fact evidence is not of sufficient strength to overcome thepresumptive inadmissibility of the proffered evidence and points to what the defence asserts is an air of reality to both deliberatecollusion and inadvertent tainting and that the Crown cannot overcome the burden of demonstrating on a balance of probabilities that theapplication should succeed. [9] In Handy, at paras. 26-29, the Court states that the probative value of similar fact evidence flows from what is referred to as the“double inferences” as follows: i.

The evidence supports the inference that the accused has a particular propensity to engage in a specific type of conduct, and ii. The evidence supports the further inference that the accused engaged in that very type of conduct on the occasion charged,in keeping with his propensity to do so. [10] In Handy, at para. 82, the court suggested a non-exhaustive list of factors which assist the court's evaluation of the degree ofsimilarity between the proposed similar fact evidence and the offence(

s) charged: * The nature and strength of the similar fact evidence; * Proximity in time of the similar acts; * Extent to which the other acts are similar in detail to the charged conduct; * Number of occurrences of similar acts; * Circumstances surrounding or relating to the similar acts; * Any distinctive feature(

s) unifying the incidents; * Intervening events; * The relative importance of the issue to which the evidence relates; and * Any other factors which would tend to support or rebut the underlying unity of the similar acts. [11] After assessing the probative value, the court must then balance this factor against the potential for moral or reasoning prejudiceto determine if the probative value outweighs the potential prejudicial effects. Moral prejudice refers to the risk that the trier of fact willrely on the accused's general disposition or bad character to support an inference of guilt.

Reasoning prejudice focuses on the risk that thetrier of fact may be distracted or confused by evidence of multiple incidents or may put undue weight on the similar fact evidence.(Tsigirlash, supra, at paragraph 35). [12] As discussed above the serious potential prejudice arising from the admission of general propensity evidence encompasses both

moral prejudice (stigma of “bad personhood”) and reasoning prejudice (potential confusion and distraction of the trial judge or jury fromthe actual charge against the accused). Reasoning prejudice and moral prejudice raise legitimate concerns in a jury trial, but less so in ajudge-alone trial, which this trial is. A further consideration in assessing the potential prejudicial effect of the proposed similar factevidence is where the majority of the proposed similar fact evidence relates to the factual allegations underlying the counts in theinformation.

The evidence relating to each of the counts was led by the Crown as part of its case against Mr. Hill, notwithstanding theCrown’s application to admit the evidence count to count as similar fact. [13] In assessing prejudice, the Court must consider if the similar fact evidence is more serious or inflammatory than the conductcharged and if the case can be proved with less prejudicial evidence. This concern is reduced in a cross-count similar fact application asthe trier of fact has heard all of the allegations in the course of the trial.

Furthermore, in a judge alone case, the concern for both moraland reasoning prejudice is lessened as it is assumed that judges are properly trained to refrain from misusing evidence and drawingimpermissible inferences (see Handy, supra, at para. 83; Regina v. J.H., 2018 ONCA 245 , [2018] O.J. No. 1354 (C.A.) atparas. 23-24; R. v. J.M., 2010 ONCA 117 , [2010] O.J. No 585 (C.A), at para. 88; Regina v. Norris, [2020] ONCA 847 at para.24; R. v. Cresswell, 2009 ONCA 95 , [2009] O.J. No. 363 (C.A.), at paras. 9 and 10; and R. v. T.B., 2009 ONCA 177 ,[2009] O.J.

No. 751 (C.A.).). [14] Based on the above cases, prejudice becomes less significant in a judge-alone trial and where the similar fact evidence ispredominantly count to count. The issue then is whether “the evidence regarding other counts [has] sufficient probative value to supporta legitimate chain of reasoning furnishing evidence of any individual count” (R. v. T.B., supra, at para. 34). This requires an analysis ofthe degree of connection between the counts in the information to properly assess the probative value of the similar fact evidence. [15] R. v. MacCormack, 2009 ONCA 72 , [2009] O.J. No. 302 (Ont.

C.A.), dealt with a multi-count indictment where theCrown was seeking count to count admissibility as similar facts before a judge without a jury. At para. 66, Watt J.A. said: 66 The test for the admissibility of evidence of similar acts offered to prove identity is the same whether the alleged similar acts areextrinsic to the counts in the indictment, or contained in other counts of the same indictment: Arp, (SCC), [1998] 3S.C.R. 339, at para. 51.

The same test notwithstanding, some of the factors relevant to an assessment of prejudice may have an attenuatedinfluence in cases in which the similar acts are restricted to other counts in a multi-count indictment. It may be all the more so where thecase is tried by a judge sitting without a jury. [16] Watt J.A. added at paras. 68 and 69: 68 This case involves the invocation of similar act principles across counts in a multi-count indictment. The evidence relating to eachcount is relevant to and admissible in proof of the allegation contained in that count.

Each incident is of equivalent gravity and ofminimal inflammatory potential. This is not a case, in other words, in which conduct extrinsic to the crimes alleged in the indictment isenlisted as evidence of similar acts to prove what is alleged, and lugs with it inflammatory claims of greater gravity or moral depravity. 69 In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extendbeyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice.

Thejudge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similaracts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts.

The onlyadditional time required is that needed for the argument on admissibility at the end of the trial. [17] Finally, in assessing the probative value of similar fact evidence, the “existence of collusion rebuts the premise on whichadmissibility depends” (see Handy, supra, at para. 110) as the probity of such evidence arises from the improbability of two or morewitnesses independently or coincidentally giving the same evidence: R. v. U.C., [2009] O.J. No. 1805 (Ont. C.A.), at para. 40 andHandy, supra, at para. 41, citing Sopinka J. dissenting in R. v. B. (C.R.), (SCC), [1990] S.C.J.

No. 31, at para. 72: The fact that the alleged similar facts had common characteristics with the acts charged, could render them admissible, and, therefore,supportive of the evidence of the complainant.

In order to be admissible, however, it would be necessary to conclude that the similaritieswere such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence…[Emphasis added] [18] Where there is some evidence of actual collusion, or at least an air of reality to it, the Crown must satisfy the trier of law as acondition precedent, on a balance of probabilities, that the evidence of similar acts is not tainted with collusion: Handy, supra, at para.112 and R. v. M.E., [2011] O.J.

No. 6177 (SCJ, Hill), at para. 198. [19] Before addressing whether there is an air of reality to either actual collusion or inadvertent tainting, which based on bothcounsel’s written and oral submissions is what I believe is the main issue in this application, it is my intention to assess the probativevalue of the similar fact evidence. [20] In assessing the similarity of the acts proposed for admission, the issue to which the evidence relates drives this factor.

In Handyat paragraph 78, Justice Binnie emphasized that where the actus reus is the issue, rather than identification, the cogency of the similarityassessment will be reduced. [21] The issue of differences with respect to the sexual touching itself has been addressed in the jurisprudence. In Regina v. J.H.,supra, the Ontario Court of Appeal opined on this issue as follows at paragraphs 20 to 21: ... 'The judge's task [was] not to add up similarities and dissimilarities and then, like an accountant, derive a net balance': R. v. Shearing,2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60.

The question is whether there were connecting factors between the alleged assaults, andwhether there was a 'persuasive degree of connection between the similar fact evidence and the offence charged': Shearing, at para. 48.The trial judge concluded that there was such a connection. [22] The Court in J.H. determined that in cases of sexual assault, the similarities or dissimilarities among sexual acts are relevant but

may not be as compelling as the circumstances surrounding the incidents themselves.

Summary of the Three Complainant’s Evidence (

a) JG [ 23 ] JG met Allan Hill on Plenty of Fish in December 2019. They initially communicated by text and email and first met on December 15, 2019. The relationship moved very quickly and she moved into his house at the beginning of January 2020. In the beginning it was a great relationship, very lovey dovey, romantic. She kept her place but moved many of her belongings to his house, even her cat. Her son, J., who was ten years old, also stayed at Mr. Hill’s house when he was with JG. Early in their relationship Mr. Hill introduced her to his daughter, M., who was also ten years old. [ 24 ] Mr.

Hill drank every day, he would wake up in the morning and pour himself a coffee mug of vodka and continue during the day. He used marijuana every day and JG found out a few weeks into the relationship that he also used cocaine. This was something she observed. He was a functional drinker in that he could still do activities and speak but usually by noon he would become more belligerent.

She spoke to him about his drinking as he was also supposed to take mood stabilizers. [ 25 ] JG described two incidents of assaultive behaviour committed by Allan Hill, which are reflected in the two charges of assault he is facing. I will address the factual background of those offences later in my reasons. Following the second assault in March 2020, JG packed up all of her belongings that she could, although Mr.

Hill would not let her take her son’s X-box, which had been the source of disagreements and arguments throughout their three months living together, put everything in her car and left his residence with her son. [ 26 ] She arranged to go back the next day and pick up belongings she had not taken and her son’s X-box. She went with a friend for safety. Mr. Hill had left her belongings outside on the deck but did not leave the X-box. She asked him where the X-box was and he did not respond, he was just filming her.

She gave him the middle finger at one point and then they left. [ 27 ] They were communicating by text after this and he said she had really fucked up and hurt him and M. She did not remember the other texts but there were others. He came over the third week in March to her house. He said he wanted to talk and she agreed to see if they could work things out and she wanted to know why he had hit her. [ 28 ] He came over and they kissed, which she testified was consensual. He then said he was going to make her pay for what she had done to him and M.

He turned her around and bent her over her bed and inserted his penis into her bum and wouldn’t get off even though she told him to stop. She was wearing pajama pants with just an elastic waistband, no drawstring, no buttons just pull up and pull down. He pulled her pajama pants down after he said he was going to make her pay for what she did. When he first started to put his penis into her anus she said to him, “No, don’t do that”, but he continued and penetrated her fully. She told him, “No, please stop” at least 50 times when he was doing it.

She just kept saying it over and over but he did not stop and he continued for 4 or 5 minutes, until he ejaculated. While he was doing this he had his hand on the back of her neck burying her face into the bed. He was squeezing almost like he was strangling her from the back. She was squirming underneath him trying to get out but the way he was holding her neck was causing her pain. When he ejaculated he said, “Now you’ve paid the price.” [ 29 ] After he had stopped he stayed for a while and was rubbing her hair because she was crying.

He asked if she wanted him to stay and she told him she did not want him there when J. woke up. She testified she didn’t want him to stay because she was scared and in pain. She had bruising and soreness as a result of his sexual assault (

b) JH [ 30 ] JH dated Allan Hill from April 25 to May 9, 2020. She was introduced by Steve R., who was a mutual friend and he suggested she should meet his good friend, Allan Hill and he exchanged their phone numbers to each of them. JH had dated Steve once six years before and they realized it would not work but they remained friends. The exchange of numbers was a week before JH and Allan Hill first met on April 25, when she went to his home and made him dinner. [ 31 ] Initially they got along great as they had a lot in common, they were both single parents.

The relationship after the first date moved very quickly and intensely, as he pursued her, constantly sending her messages, they continued seeing each other. She was working from home and the COVID pandemic had started, so she did not really want to be going out to date and meet guys at that time. Mr. Hill suggested since she was working from home why didn’t she just bring her laptop and some belongings to his house and work from there. As a result, within two or three or four days of meeting she was staying at his house, working from his kitchen.

He was working nights at that point, a temporary arrangement but full-time hours. He would normally be awake at the start of her workday, she started at 8 a.m. so he would be there just off his night shift. He would usually be up until 9:30 to 10:00 a.m., when he would go to bed. [ 32 ] He had started talking to her about moving in with him as he was financially strained. He had worked for TTC but was let go and had taken jobs through an employment agency. Within six days of dating he was talking to her about moving in with him to share costs and combine their incomes.

She testified for her this was utter insanity as it was too quick, too soon. He was asking her to stay over at night and then to work from his house as everybody was trying to stay in their bubbles because of COVID. [ 33 ] When she started living at his house she observed he was regularly consuming alcohol. She had gone with him to the LCBO and he would purchase a 60 oz. bottle of vodka and it would be all gone in two or three days. She questioned him about this whether it was atypical or typical behaviour for him, as if it was typical it would be a huge red flag for her. Mr.

Hill became defensive as he did not see this as an issue for him. He would mix the vodka with fruit juice. There was no one else drinking the vodka but him. He would drink in the morning and she believed he did this to take the edge off after working his night shift and he never seemed drunk or inebriated. He also consumed weed regularly and she tried it once with him but he would use it in the garage daily to get high. She did not have any ongoing conversations about alcohol or marijuana as it did not seem to be a huge red flag. [ 34 ] Mr. Hill had a daughter M. who was ten years old.

She met M. four or five days into the relationship. They hit it off as she was a precocious, bright child and very endearing. M. would ask her dad if JH could come over for dinner and have a sleepover. There was a

plan made for one day when JH would get to the house early to make dinner for everyone. When JH was about to leave she got called into an emergency meeting with the director of the company she worked for, which was in downtown Toronto. Mr. Hill kept calling her and saying why was she still at work because she was supposed to leave early. She described him becoming quite belligerent and hard to deal with. She finally finished work and went to get in her car to drive to Oshawa. She saw the low oil indicator light was on.

When she went to check the oil level she dropped the cap into the engine and was unable to retrieve it. When she called Mr. Hill to tell him what happened and sought his advice for what she should do he started freaking out. [ 35 ] He told her she was not serious about their relationship, she didn’t love him, and she had ruined his day by making false promises to his daughter. He was trying to make her feel guilty for not leaving from her office earlier. There was a big argument over this and she finally decided she could not get to Mr.

Hill’s house in time for dinner so she was just going to go home to her place. He was very upset and she felt she was unable to negotiate a solution with him because of that. The next day he apologized to her and wanted to reach out to her to discuss what happened. She was supposed to have gone over to his house on the Wednesday night. Mr. Hill asked her to come to his house the next day, which was Thursday, May 7. [ 36 ] She told him they had to discuss what had happened because his behaviour was unacceptable. It seemed like they could work this out by talking about it, so she went to his house in the morning.

He was getting off his night shift and was doing his usual routine of having a couple of alcoholic drinks to unwind and seemed absolutely fine. She told him she had a meeting around 12 noon or 1 p.m. Eastern Standard Time with her work and he wanted to have sex prior to her meeting.

He was pestering her about this for about a half an hour and she was telling him she didn’t want to, it was unprofessional but he was quite persistent so she agreed to have sex with him, which she believed would be vaginal intercourse. [ 37 ] They were in bed engaged in foreplay, everything seemed to be going okay and then he wanted to do it “doggie-style” from behind. She had told him they could have sex but it had to be quick because of her meeting as she had to clean up afterwards.

So she got on all fours with him behind her and when they were in this position she noticed he was trying to penetrate her anally, which was not something they had agreed to before starting to have sex. [ 38 ] JH testified they had spoken of this previously, a day or two before, when they discussed boundaries about sex and what her comfort level was versus what he was interested in and she told him there would be no anal sex.

She told him maybe it might be something she would try in the future but there needs to be preparation and there needs to be mutual consent involved. [ 39 ] When he tried to penetrate her she immediately said “No”. He grabbed her by the back of her neck and pushed her head down into the pillow and she became really uncomfortable and she kept telling him no. When she said no he told her, “Shut the fuck up.” He continued to penetrate her anally, multiple times. She was able to flip over and face him and she said, “No, like whatever you’re doing right now it needs to discontinue and stop right now”.

It was like something triggered, there was a flicker in his eyes with a realization that she said no, he was crossing a line. He got off and got dressed and then gave her a “look of disgust and pure filth” and he said she was a “sexual deviant” and she told him, “You think whatever you want but we’re not doing this.” [ 40 ] He did not have the full length of his penis in her anus, maybe an inch or two. She testified she said “no” clearly and that he had to stop. She had a bit of soreness and pain but not enough to have to seek medical attention.

She described feeling more shocked and dismayed, as someone she was beginning to trust and build a relationship with would cross that line. He called her a sexual deviant who liked to have rough sex and engage in other than normal sexual activities. [ 41 ] She had meetings to attend and he was asleep so she continued working because he was not around. She stayed because she had brought dishes and personal belongings over earlier in their relationship when she made dinner and stayed over night. This occurred on Thursday and the next day was Friday.

She believed his daughter came over that day and Friday was his last night working so she stayed over to gather her belongings to make an exit the next day on Saturday because she no longer felt comfortable or safe being involved with him. [ 42 ] She was concerned about leaving on Thursday night because of how he could react given how upset he was from what happened on Wednesday and what he had done Thursday afternoon. She testified she was trying to formulate how did she end this relationship without him throwing a tantrum and going ballistic. On Friday when Mr.

Hill went to work she looked after his daughter and was basically childcare. This was the last night she stayed. M. was not there the next morning when she left with her belongings so M.’s mom either got her Friday night or Saturday morning. [ 43 ] When she left it was very tense. He was awake still and had not yet gone to bed after he got home from work. He seemed off and very confrontational. She had decided she did not want him to come home to an empty house and then come chasing her down or he wouldn’t leave her alone. He was enraged, grasping the back of a chair as she was getting ready to leave.

He was also sweating profusely. After she left and got to her home she barred her doors and looked into getting a better home security system. She spoke to her neighbours to be on the lookout if Mr. Hill was to come around her place. She blocked Mr. Hill on social media and her phone. She also sent a Facebook message to his ex-wife to try to see if he had done anything abusive to her in the past. (

c) AS [ 44 ] AS met Allan Hill on Plenty of Fish in November 2020.They exchanged phone numbers and began texting, emailing and talking to each other. Their first date, which she testified may have been on November 4, 2020, or somewhere around there, was meeting up with Mr. Hill and deciding he would take her for a motorcycle ride to Port Hope, although the defence pointed out she told the police it was Port Perry and AS indicated she always got those places mixed up and couldn’t remember exactly where they went.

He got her a sweater and helmet drove to the town, they had a coffee, talked a little bit and then he drove her home. [ 45 ] After meeting him that first time she went to his house on a weekend, met his daughter and then the next time he was at her house. She stayed over the first weekend at his house. She felt the relationship was very rushed, he wanted more than what she wanted as he was talking about the future and she was not wanting that at that time as she did not want to rush into things. [ 46 ] She had concerns early on about his drinking.

Every time they were together she could smell alcohol on his breath. She would

see him making drinks. He would become more loud, outgoing after he had been drinking. His drinking concerned her. They were sitting in his car and she raised this concern with him. She did not want to date an alcoholic; her ex-partner was an alcoholic so she told him she was not comfortable with his drinking or being around anyone who drinks. He got upset, raised his voice and asked what had he done wrong. She tried to tell him he had done nothing wrong but alcohol was a problem for her. They were arguing about this in his car for about a half an hour and the conversation got a little heated with Mr.

Hill yelling at her. She tried to explain she had been in a long term relationship where her partner was an alcoholic and she could not tolerate somebody drinking. He became very defensive, saying he didn’t have a drinking problem but she told him every time they were together he was drinking. He finally calmed down and he had another cigarette and they reconciled to some extent. [ 47 ] They each showered then and went into the bedroom to have what she thought was to be vaginal intercourse.

They were having consensual sex when he suddenly asked her to pull out sex toys, which she told him she was not comfortable with. They had talked about this before but there was no discussion on this night. He got upset with that. They were having intercourse and he flipped her onto her stomach and she asked him to stop for a minute because they had an accident at his house where the condom had come off and was stuck inside her. She testified she wanted to make sure the condom was still on and when she turned she saw it was no longer there. She asked where it was and Mr.

Hill told her what was the difference if they had an accident, it had come off before so why did one need to be used then. AS testified she consented to engaging in vaginal intercourse with Mr. Hill because he was going to be using a condom. [ 48 ] Then Mr. Hill told her that he was going to stick his dick in every hole in her body and she told him “No, you’re not”, to which he proceeded to insert his penis into her anus. She asked him to stop but he pushed it in further. He said, “What the fuck is wrong with you” as he inserted it in farther and she asked him to stop again because it hurt.

He continued to push it in further and she asked him a third time to stop. He finally pulled it out and she rolled over on the bed.

He was upset and said, “What the fuck is wrong with you because you don’t like to do anything I like to do?” AS explained to him she was not comfortable doing that and he kept asking her what the fuck was wrong with her because she didn’t like anything he likes to do. [ 49 ] AS described how she was shocked he would do that without consent and mad because it went from being consensual and they were getting along to something she was not comfortable with – one minute he was nice and then a totally different person the next.

She was upset because he did that without consent, asked her “What the fuck was wrong with her” because she was uncomfortable with anal sex and then proceeded to just get up and get dressed and leave. He never asked her if he could engage in anal sex with her. There was no conversation as to whether she was willing to do that at all in that moment. When he got home he sent her a text which said, “Thanks.” She did not speak with him again after this. This happened late November 16 to early November 17, 2020.

He left her house around 1:00 and 1:30 a.m. [ 50 ] AS told the police there is a difference between being tempted and saying yes to something sexual but she never said yes. She denied there was conversation with Mr. Hill before he stuck his penis in her anus. He just did it and didn’t stop when she asked him to stop. AS testified she never agreed to Allan Hill having anal intercourse with her.

AS made it very clear the only time she might have agreed to anal intercourse might have been after they had been seeing each for some period of time, she might possibly be open to maybe trying new things but not in that moment. The moment she said stop he should have stopped, not put it in any further but he didn’t stop until she had told him to stop for the third time.

Assessing the Probative Value of the Similar Fact Evidence [ 51 ] The Crown argues that JG, JH, and AS’s accounts of their physical and sexual interactions with Allan Hill satisfy the legal threshold for admissibility, and are relevant and probative to the following issues: • Proof of a ctus reus • Rebut any defence of fabrication • Support credibility of 3 complainants • Show pattern of behaviour in similar circumstances • Evidence supports the inference that accused has a particular propensity to engage in specific type of conduct [ 52 ] It is important to note that in Handy the Court cautioned against the admission of similar act evidence as probative of the general issue of credibility, as it was stated at paras. 115 and 116: The Crown says the issue generally is "the credibility of the complainant" and more specifically "that the accused has a strong disposition to do the very act alleged in the charges against him", but this requires some refinement.

Care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown's case (Sopinka, Lederman and Bryant, supra, at s. 11.26). Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence. Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant.

Identification of credibility as the "issue in question" may, unless circumscribed, risk the admission of evidence of nothing more than general disposition ("bad personhood"). [ 53 ] If the Crown was simply seeking to tender the evidence for the sole purpose of enhancing the credibility of the witnesses, I would not conclude that the similar fact evidence is probative of an issue at trial. However, in her written and oral submissions, Ms.

Allan has narrowed the issue in question to the issue of consent as it relates to the "distinctive nature" of the types of sexual conduct alleged to have been committed with each complainant, the actus reus . She submits that the similar act evidence is probative of a "situation-specific" propensity to engage in such conduct demonstrating a pattern of behaviour, and to rebut the inference of innocent association or fabrication by the complainants.

[54] The probative value of similar fact evidence has been recognized in cases were the similarity between the allegations shows anunderlying unity or system of course of conduct which provides a connecting link between them. The evidence in these circumstances isprobative of truthfulness of the accounts of the complainants in relation to whether the offences occurred, and to show a pattern of similarbehavior that confirms that the offences took place as described. (R. v. R.B., (ON CA), [2005] O.J. No. 3575 (C.A.)at para. 11; R. v. T.C., (ON CA), [2005] O.J.

No. 24 (C.A.) at para. 56.) [55] In considering the similarities between the evidence of the three complainants, JG, JH, and AS, I find the following factors to bepresent: * All three women describe Allan Hill moving the relationship forward very quickly, a very early introduction to his daughter, andinviting them to move in with him; * All three women describe becoming aware early in the relationship that Allan Hill had issues concerning his consumption ofalcohol and that he used marijuana regularly; * When Allan Hill is confronted about his drinking he becomes upset and confrontational; * All three women describe discussions initiated by Allan Hill as to what sexual activities they are comfortable or uncomfortableparticipating in, for example, use of sex toys, anal intercourse; * All three women advised Allan Hill they were not comfortable about certain sexual activities at an early point in the relationshipbut maybe after the passage of time where the relationship had developed and further discussion and mutual agreement and preparationhad occurred, they might be comfortable; * All three women describe an occasion(

s) where an argument occurred during the relationship, Allan Hill becomes upset and angrywith each of the complainants, he makes offensive, pejorative comments against them, there is a breakup or breakdown in therelationship and then Allan Hill initiates the possibility of reconciliation; * All three women describe during this attempt at reconciliation some form of consensual sexual activity occurs, during which Mr.Hill makes a derogatory comment and either flipped them onto their stomach from their back or if they were already on their stomachengaging in vaginal intercourse, he then engaged in anal intercourse without prior discussion or agreement, during which he grabbed theback of their neck and forced their face into the bed or pillow to prevent them from moving or preventing the anal intercourse fromcontinuing; and * All three women describe how despite saying “No” and repeatedly telling him to stop, he would continue until he had completedthe act or they were able to get out from under him. [56] There are some differences between the three complainant’s allegations, however, it is my assessment these can only bedescribed as minor.

JG’s evidence was she was not comfortable with engaging in anal intercourse and this was not likely to change. JH’sand AS’s evidence was given the brief length of time their relationship with Allan Hill had been going on, they were not comfortablewith anal intercourse. They both seemed to indicate that after an extended period of time, where their relationship with a partner haddeveloped in terms of trust and their feelings had strengthened and deepened, with preparation, prior discussion and agreement maybethey might be comfortable with trying something new or different.

In my view all three women were clear in their evidence, there was noforewarning or planning or preparation or discussion or prior consent given by any of them to the sexual activity initiated by Mr. Hill andno meant no, which Mr.

Hill did not comply with, despite being told this repeatedly. [57] The nature, subject-matter and circumstances of the arguments that occurred between each complainant and Allan Hill aredifferent; however, in each complainant’s relationship with Allan Hill there was an argument where it appeared the relationship mightend: JG alleged Allan Hill assaulted her and she then packed up most of her belongings and left Allan Hill’s house; JH’s argument withAllan Hill occurred over the telephone involving her not being able to return to his residence in time to prepare dinner for his daughterbecause of work meetings and car trouble, which resulted in a possible breakup and AS confronted Allan Hill about his consumption ofalcohol, which resulted in a heated argument between them.

Although the arguments were over different issues, they each resulted in apurported reconciliation and then some form of consensual sexual activity, which ended in non-consensual anal intercourse. [58] In assessing the probative value of the similar fact evidence, as outlined above, I must consider the connectedness or nexusbetween the similar acts in line with the factors delineated in Handy.

Regarding the assessment of similarity, I find that there was apersuasive degree of connection when considering the circumstances surrounding the incidents. [59] I find there is a preponderance of similarities between the allegations of the complainants, as they relate to the progression of therelationship each of them had with Allan Hill in terms of the context and circumstances surrounding the eventual sexual misconduct.

Inmy view there could be no possibility of coincidence as an explanation.[1] While the allegations at this stage of the analysis areunproven, that alone is not a basis to dismiss the application, as that is always the case in a cross-count similar fact analysis. When theevidence is weighed to determine the ultimate issue, the inconsistencies uncovered with respect to the evidence of each complainant willbe carefully considered.

However, at this stage, it is my view that the reliability and veracity of the evidence of each complainant wassuch as to favour admissibility of the similar fact evidence. [60] Before turning to the analysis of collusion, I must balance the probative value that I have found in the evidence with thepotential for moral or reasoning prejudice.

The authorities are replete with indications that the potential for both forms of prejudice aresubstantially reduced in a judge alone trial given the understanding that I do have and will use to avoid mischaracterizing evidence ordrawing impermissible inferences with respect to propensity reasoning. [61] At this stage of the inquiry, the issue is simply admissibility, not use of the evidence.

When it comes to weighing all of theevidence and applying the applicable legal test to the Crown's ultimate burden of proving the charges beyond a reasonable doubt, I willbe cognizant of avoiding any improper use of the similar fact evidence. The evaluation of similar fact evidence at the two different stages

of the analysis was aptly set out in Regina v. F.(J.), (ON CA), [2003] O.J. No. 3241 (C.A.), at para. 86, as follows: The Supreme Court has recently addressed the seriousness of the possibility that evidence has been tainted by collusion in the context ofthe treatment of similar fact evidence. In the cases of R. v. Handy and R. v. Shearing, the court held that before admitting similar factevidence, the trial judge must be satisfied of its reliability and exclude it if not satisfied on a balance of probabilities that the evidence isnot tainted by collusion.

Once admitted, the jury must still be warned to assess the evidence carefully and to consider whether it can beconsidered reliable given the possibility of deliberate or accidental tainting by collusion among the witnesses (Shearing at para. 44). [62] As a result, absent a finding that the complainant’s evidence is tainted by collusion, I find that the probative value outweighs thepotential for prejudice and the similar fact evidence is admissible.

Determination of Whether Advertent Collusion or Inadvertent Tainting Exists [63] I must therefore assess whether the defence submission that there is an air of reality respecting advertent collusion or inadvertenttainting is accurate on the evidence, and if so, the Crown will bear the onus of proving on a balance of probabilities that thecomplainants’ evidence is not tainted by collusion. [64] It is the Crown’s position that there is no air of reality respecting advertent collusion or inadvertent tainting.

There is no doubtthe three complainants, prior to filing a complaint and being interviewed by the police, had communicated with each other on socialmedia and met at least on one occasion. All three complainants advised the police and testified in court that this occurred. It is my viewthat the evidence in this matter does raise the prospect of both deliberate collusion or inadvertent tainting. As a result, it is my intentionto review the legal principles respecting collusion in greater detail in order to analyze the application of those principles to the facts.

Irecognize that the possibility of collusion can affect the balancing of probative value against the potential prejudicial effect at theadmissibility stage. In Shearing, supra, Justice Binnie clarified the interplay of these principles as follows 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. [65] The starting point therefore for collusion to play a role in the admissibility inquiry is for there to be an “air of reality” to itsexistence. In Handy, the Court held at para. 111 that "…the issue is concoction or collaboration, not contact. If the evidence amounts tono more than opportunity, it will usually best be left to the jury".

In Shearing, supra, at para. 44, Justice Binnie, for the majority, furtherelaborated as to the factors to consider in determining if an air of reality exists for the prospect of collusion as follows: The evidence here is far more speculative than in Handy. In that case, there was consultation between the complainant and the similarfact witness prior to the alleged offence about the prospect of financial profit. Here, there is some evidence of opportunity for collusionor collaboration and motive, but nothing sufficiently persuasive to trigger the trial judge's gatekeeper function.

There is no reason here tointerfere with the trial judge's decision to let the collusion issue go to the jury. He instructed the jury to consider "all of the circumstanceswhich affect the reliability of that evidence including the possibility of collusion or collaboration between the complainants". He definedcollusion as the possibility that the complainants, in sharing their stories with one another, intentionally or accidentally allowedthemselves to change or modify their stories in order that their testimony would seem more similar or more convincing.

It was for thejury to make the ultimate determination whether the evidence was "reliable despite the opportunity for collaboration" or that "less weightor no weight should be given to evidence which may have been influenced by the sharing of information". [66] In my view, a judge cannot properly assess "the objective improbability of coincidence" without addressing the issue of whetherthe apparent "coincidence" is in fact the product of collusion.

The judge is obligated to consider whether the Crown has proven on abalance of probabilities that the evidence was not tainted by collusion (see Shearing, supra, at para. 41; R. v. Burnie, [2013] O.J. No. 747(Ont. C.A.) at paras. 37-40; and R. v. F. (J.) (2003), (ON CA), 177 C.C.C.(3d) 1(Ont. C.A.) at para. 86). [67] When assessing unconscious, innocent or accidental collusion, the authorities recognize that in many cases involving multiplecomplainants, some communication is inevitable but not necessarily sufficient to trigger the gatekeeping role of the trial judge (see:Regina v. M.A., [2017] O.J.

No. 3136 (C.A.), at para. 7). [68] Where the “similar fact evidence is admitted and there is evidence of the possibility of collusion, which falls short of tainting theevidence so as to render it inadmissible,” the trial judge, where he is the trier of fact, must “instruct himself to consider the possibility ofcollusion in his assessment of what effect to give the similar fact evidence in his ultimate decision on the guilt of the defendant on thewhole of the evidence” (see Burnie, supra, at para. 41). [69] It is clear from the authorities that collusion can come in two forms: deliberate concoction and unconscious or inadvertenttainting.

The Ontario Court of Appeal has made it clear in several decisions that both forms of collusion must be subject to the sameanalysis at the admissibility stage (see R. v. Wilkinson, [2017] O.J. No. 5056 (C.A.); R. v. F.(J.), supra, at para. 77; and R. v. B.C., (ON CA), [2003] O.J. No. 11 (C.A.)). [70] In R. v.

M.E., supra, at paras. 199-202, Hill J. sets out the analysis a trial judge must consider when dealing with “innocentcollusion” or what is now referred to as inadvertent tainting: On occasion, the facts of a case may raise a concern about “innocent collusion or influencing” or the possibility of “innocent tainting”:R. v. M.B. (2011), 2011 ONCA 76 , 267 C.C.C. (3d) 72 (Ont. C.A.), at paras. 18-20; R. v. Baggio, 2011 ONCA 80, at paras. 1-5;R. v. J.F. (2003), (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 77.

To the extent that the jurisprudence dealing with collusion speaks of collusion "or some other form of tainting" (U.C., at para. 40; B.(T.),at para. 22), or of other non-collusive conduct (B.(R.) (2005), at para. 5 (no evidence complainants colluded with each other "or evendiscussed the appellant's misconduct with each other")), the court, in deliberating upon the admissibility issue, should be alive toinstances of witness contamination, deliberate or innocent, of a sufficiently serious nature as to threaten the true existence of coincidence.

The evidence may disclose limited contact between complainants as in R. v. L.G., 2009 ONCA 895, at para. 5. Opportunity for collusionmay well be the context "in many cases alleging sexual abuse with multiple complainants" (Handy, at para. 111) and communicationamong sibling complainants is "almost inevitable": R. v. Shearing (2002), 2002 SCC 58 , 165 C.C.C. (3d) 225 (S.C.C.), at para.43. But "[t]he issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually bebest left to the jury": Handy, at para. 112; R. v. Dueck, 2011 SKCA 45, at paras. 51-8.

Accordingly, there may exist the opportunity for collusion, or the potential for collusion, without the evidentiary record disclosing an airof reality to collusion having in fact transpired. Where the trial judge is satisfied that the reliability of the evidence is not jeopardized bycollusion or similar tainting, the trier(

s) of fact will then decide the ultimate worth of the evidence: Handy, at para. 112; U.C., at para.19. At trial, of course, it is "not incumbent on the defence to prove collusion": Handy, at para. 112. [71] Recently in R. v. C.G., [2021] O.J.

No. 6434 (C.A.), Justice Nordheimer for the Court addressed the issue as to the nature of thetwo forms of collusion – advertent collusion and inadvertent collusion or as he described: trial judges should refer to this as “inadvertenttainting.” It was Justice Nordheimer’s view that advertent collusion affects the credibility of evidence and inadvertent tainting does notdo so as it affects only the reliability of such evidence (para. 30). He continued: 31 I will begin with advertent collusion. It is self-evident that this first form of collusion is particularly problematic.

Deliberate collusionamong witnesses will inevitably undermine the credibility of the evidence given. No court would be comfortable relying on evidencefrom witnesses who have gotten together and decided on what they are going to say when questioned under oath, at least not withoutindependent corroborating evidence establishing that their evidence is reliable, notwithstanding the collusion. 32 The second form of collusion, "inadvertent collusion", is more difficult.

The fact that one witness has heard what another witness willsay, or for that matter has even discussed what another person's recollections were, does not mean that either witness is not telling thetruth, or is not giving their independent recollection, or that their evidence has been tainted.

Indeed, even where the evidence of one ofthe parties to the discussion is inadvertently affected by what another person has said, the account of that other person may notchange…. [72] A further observation of Justice Nordheimer, which I adopt, is the following: “While the issue of collusion most often ariseswhen a court is considering the admissibility of similar fact evidence, it is an issue that has relevance to the evaluation of a witness’evidence in general” (para. 29).

Analysis of Whether the Crown has Proven on a Balance of Probabilities that the Complainants’ Evidence Was Not Tainted byCollusion [73] I will therefore examine the evidence of the three complainants as it relates to the issue of collusion and determine whether thereis any evidence that they deliberately concocted evidence or collaborated with each other. If I find this occurred it is my view theCrown’s similar fact application should fail and be dismissed.

If I find there is no evidence to support deliberate or advertent collusion onthe part of the three complainants, I must next consider whether “inadvertent tainting” occurred as a result of their sharing with eachother what Allan Hill did to them, such that they may have unintentionally changed or modified their stories. [74] The defence submits I should not grant the Crown’s similar fact application.

He argues that there is an air of reality to bothadvertent collusion and inadvertent collusion, which arises because the three woman were all part of a Facebook group chat and they alltalked to each other before going to the police within a day or hours of each other.[2] He points to the fact that all of their stories are verysimilar, they each said there was a fight or argument, they each talked about Allan Hill being an alcoholic. Only reason their stories areso similar is because they colluded with each other.

He argued that JG and JH made up their version of events after hearing AS’s detailsjust before going to the police on November 27, 2020. According to Mr. Capotosto, JG lied in her evidence when she testified she onlytold the other two woman she was physically assaulted by Allan Hill and did not tell them she was sexually assaulted by him, as both JHand AS testified each of the women indicated they had been sexually assaulted by Allan Hill. JG also lied when she testified she did notknow that JH and AS had been sexually assaulted until she saw her subpoena that listed the charges Mr. Hill was facing. [75] Mr.

Capotosto also pointed to the text exchange between JH and Mr. Hill’s ex-wife, Michelle C., where JH did not say anythingabout Mr. Hill forcing himself on her, despite having told the police in her video interview that she told Michelle C. that Mr. Hill hadforced himself on her. Mr. Capotosto submits this demonstrates that JH’s evidence was tainted. [76] The defence pointed to the fact that JG was driven to the police by JH’s, boyfriend, Colin A. although as it turned out he wasJG’s best friend and had known her for years, before he had met JH.

Another member of the Facebook group chat was KW,[3] who hadpreviously been with Allan Hill for two years before their relationship ended. All of the three women expressed sympathy and concernfor KW and the defence pointed to this as evidence of collusion. It is Mr.

Capotosto’s position that the “coincidence” of the similarity ofthe three complainant’s allegations is clearly the product of collusion and that the Crown has not met its onus of proving on a balance ofprobabilities that the complainants’ evidence was not tainted by collusion. [77] It was the Crown’s argument that there was no evidence to support the defence argument that the three complainant’s changedwhat they said happened to them as a result of their discussions with each other.

It was never disputed that they spoke to each other, infact, JH and AS advised the police in their video interviews that they had spoken to each other. All of the complainants testified that theyknew from their discussions that Allan Hill had sexually assaulted each of them. They all testified in chief their belief that none of themwent into specific details of exactly what Allan Hill did to them. It was the Crown’s position that the way in which this Facebook groupchat came into existence is important and demonstrates that there was no inadvertent tainting of their evidence as a result of the contact. [78] Ms.

Allan also pointed out that none of these women knew each other before. Their involvement with each other was directlyrelated to what Allan Hill did to each of them. On the evidence there was no compelling reason to explain why any of them would makeup a story about being sexually assaulted by Allan Hill having anal intercourse with them. The Crown submits that there is no evidenceat all that could support a finding that the three complainants deliberately concocted their allegations. [79] The evidence demonstrated that it was not JG that initiated contacting other women who had been involved with Allan Hill. Her

relationship ended with Mr. Hill in March 2020. She did not seek out KW at that point. She did not go to the police to complain about Allan Hill. JG testified the reason why she did not go to the police was because Allan Hill had told her if she ever said anything about what he had done to her, he would kill her and she was afraid to do anything as a result. [ 80 ] It was JH who first contacted others about Allan Hill.

She first contacted his ex-wife, Michelle C., by text because she was concerned and fearful Allan Hill was going to hurt her, as he had her address and she was “really worried she might need to contact the police,” as she described how he “lost it on [her] for two days in a row.” JH indicated in the texts that Michelle C. had reassured her that she should not be worried. JH talked about her belief Mr. Hill had issues with alcohol and he needed therapy or medication but she could not talk to him about that and when she tried, he would fly into a rage.

When JH was asked if she told Michelle C. in those same texts that Allan Hill had “forced himself on [her],” as she had said to D/C Whelan on December 3, 2020, in her police interview, she testified she believed she had. When she was confronted that there was nothing in the texts about this, she responded that she could not recall now if she had told Michelle C. that Allan had forced himself on her. When she gave her interview she believed she had said in the texts that Allan Hill had forced himself on her but she did not keep the texts and she did not remember exactly what they said. Mr.

Capotosto told her he wanted to show her the “text messages we have”, [4] where JH reached out to Mr. Hill’s ex-wife through Facebook because she was concerned for her safety from Allan Hill. JH described texting Mr. Hill’s ex-wife as being something atypical, “you don’t usually reach out to someone’s ex-wife and give them a whole diatribe of a rape incident right off the bat.” She testified she felt Michelle C. seemed pretty distant in the texts and that she was “giving minimal feedback and minimal response” to JH.

In cross JH testified she had a gut feeling what Michelle C. was saying to her was said in order to protect Michelle C. and her daughter or Michelle C. had closed that

chapter of her life and wanted to move on. [ 81 ] As a result of this JH decided to contact Allan Hill’s two previous girlfriends, JG and KW and this was exactly what she did. She testified she first contacted JG on social media because Michelle had seemed disinterested and didn’t want to be part of the conversation with her. JG testified the first question asked by JH was “Is he (referring to Allan Hill) going to kill [her]”. JH testified she knew of the other two women because Mr. Hill told her about them, that they were crazy and had cheated on him and KW was even charged by the police.

In my view this demonstrates a continued concern and fear by JH of Allan Hill, even after she was reassured by Michelle C. she had nothing to be worried about. [ 82 ] JH contacted JG first and described hearing from JG a very similar description of Allan Hill’s treatment of her, to her experience in respect of Allan Hill’s reaction to conflict and his reaction to things that were out of his control. JH heard from JG that Allan Hill had raped her as well. She testified she could not recall exactly what JG told her but she did not believe it was in great detail.

JG told her about some violent incidents that had occurred during arguments as well and JG painted Mr. Hill as an angry, volatile person. JG told JH about incidents involving Allan Hill and KW that were very different from Mr. Hill’s descriptions of his relationship with KW.

JH could not recall if JG had spoken to KW before JH’s call or if JG had received this information from someone else. [ 83 ] The evidence from JG and JH was that they decided to search out KW together after they had talked to each other and as a result KW and the two of them first spoke together during a conference call on Teams or a Facebook Messenger three-way call. This was on Mother’s Day, May 10, 2020, the day after JH left Mr. Hill’s house and had texted Michelle C. before she connected with JG.

In my view this is an important circumstance to consider when assessing whether there was either advertent collusion or inadvertent tainting between the complainants. [ 84 ] JH also testified she went to the police station and spoke on the telephone to an officer because the station was closed due to COVID about her concerns respecting Allan Hill. She was directed to go to the courthouse in Oshawa and she went there but it was also not open. She was trying to get a peace bond against Mr. Hill to stay away from her to protect her and give her peace of mind.

She did not follow up on pursing a complaint with the police. She basically was told if Allan Hill came around her home or he did anything to her that she should call 911. There was no date provided in the evidence when JH went to the police station or the courthouse shortly after her break-up with Allan Hill in May 2020. In my view JH attempting to speak to the police in May 2020, during the beginning of the COVID pandemic, is an important circumstance in assessing the issue of advertent collusion or inadvertent tainting.

She was not challenged on her evidence in respect of this during her cross-examination. [ 85 ] Both JH and JG described the Facebook group chat involving JH, JG and KW as a support group for all of them with greater focus on KW. Both JH and JG testified in the early days of the group chat they did talk about Allan Hill and their fear and anger toward him but the group transitioned into a group of women who would talk about their work, their kids and life in general and that the focus was not really on Mr. Hill after a period of time had passed. It became over time a support group.

Both women denied that their involvement with this group chat influenced them in going to the police or resulted in them making up a version of events to get back at Allan Hill or changed in any way their individual story of what Allan Hill did to them. In support of this evidence is the fact that JH and JG did not make any complainant against Mr. Hill to the police until AS contacted JG sometime after November 16/17, 2020. [ 86 ] As I indicated previously, Mr. Capotosto submitted that JG lied in her evidence concerning what was discussed between the women during their interaction in the Facebook group chat.

It was the defence position that JG testified she did not tell the other women she was sexually assaulted by Allan Hill during her relationship with him. Further, he submitted JG lied when she testified JH and AS did not tell her they had been sexually assaulted by Allan Hill. If Mr. Capotosto’s submission proved to be accurate, it is my view this would have detrimentally affected JG’s credibility. I carefully examined JG’s evidence respecting this issue by referring to her transcript, which I had ordered. JG’s evidence in chief [5] on this issue indicates the following: Q.

So with respect to [JH], does she ever tell you specifics of what Allan Hill did to her? A. No specifics, no. I still don’t know exactly what happened. That wasn’t something that we were all overly comfortable about talking about with anybody at that point. Q. Did you ever tell [JH] the specifics, like, what you’ve told us here in court? A. I don’t believe so. I think I might have said about him hitting me before, that he was physically abusive but nobody – none of us told anybody specifics on what exactly happened. So they wouldn’t know that he came down into my apartment and for the third event.

Q. Sorry, your voice dropped off. You did not tell them about the third event, is that what you said? A. No, they wouldn’t know that, like, he came down in my apartment. They know that there was a sexual assault but they don’t know details on the sexual assault. ( Emphasis added ) Q. Okay. So then now just asking about [AS], did you ever – does that go for her as well that you never told her the specifics, it was just that he sexually assaulted you? A. Yes. Q. And I think you’ve already said that even today you don’t know the specifics of what happened to [JH]? A. No. Q.

And what about with respect to [AS], do you know the… A. No. Q. No? A. No. Q. Okay. So I understand neither one of them told you any specific, did they say whether it was physical assault or sexual assault? A. Yes. Q. And which did they tell you it was or both? A. [AS] said sexual assault and [JH] I can’t recall. It’s been a long time . ( Emphasis added ) [ 87 ] JG was questioned about this by Mr. Capotosto and the following are excerpts from the transcript: [6] Q. …you told us in-chief that you spoke to Allan’s ex-girlfriends about Allan? A.

Yes, not in detail about what happened, like I said I haven’t spoken to anybody in detail about what happened except Detective Whelan and now in the court . ( Emphasis added ) Q. So I’m saying here – you’re saying here “he’s a chronic abuser, as you know, I’m not the first, as you know” so they spoke about they – how they were abused by Allan? A. Yes, we all knew that we were abused by Allan. That came into context the first day [AS] approached me at my son’s school. As well as when [JH] reached out to me and to ask if he was going to kill her. Q.

The reason these – these came into touch, touch with – came into touch with you is because of Allan Hill’s abuse? A. Correct. Q. And they spoke to you about what happened with them? A. Not in detail, no, I still do not know to this day what exactly happened with [JH] or with [AS]. ( Emphasis added ) Q. And you’re saying at no point in time did they ever describe the abuse that happened to them that made them get in touch with you? A.

This type of abuse is, to be frank, embarrassing to talk about and I don’t feel comfortable talking to – with a bunch of strange girls that I barely knew and I’m sure they felt the same way. I can’t speak for them though. Q. I would agree you would not just share it with a stranger but you did share it with a stranger, you spoke with these women? A. I did not go into detail about what happened to me as I previously mentioned. Q. But I’m saying they brought up, I’ve been abused by Allan Hill, the next logical question, the next logical thing you would talk about is what particularly happened with you? A. No. Q.

You would tell your story? A. We’re not going to go into detail on that because none of us wanted each other to know exactly what happened. I don’t want people knowing that some guy raped me from behind, that’s not something that I want broadcast out everywhere. They know that there is – there was abuse present. I don’t know exactly what happened to [JH] or to [AS] and that was it. There was no detail talked about. [ 88 ] Throughout her cross-examination JG maintained that in her discussions with JH and then later with AS there was never any details described by any of them as to exactly what Allan Hill did.

At one point when Mr. Capotosto was closely questioning JG on this issue, she said, “She didn’t go into detail on absolutely anything as I previously mentioned…like I said before we did not go into detail. I – to this day they do not know exactly what happened to me. I don’t know exactly what happened to them.” [7] The defence suggested they all did tell each other their stories and JG said that was not true. The defence suggested she was lying about this to the Court

because she knew if she told the court that they did share their stories that would be evidence of them colluding with each other. JG said if she told them things she didn’t tell her friends that would make her a kind of hypocrite and that what he suggested was not true. The defence suggested they made their stories similar enough to one another so they would be more believed.

JG testified this was not true in the least. [8] Of course, if JG had discussed with the other two women what Allan Hill had done to her this would not necessarily be evidence of collusion, as that would be something I would have to assess and make a finding in respect of. [ 89 ] JH testified that when she spoke with JG she told her that Allan Hill was abusive towards her and that he had raped her but she did not provide great detail. JG talked to JH about some violent incidents that had happened to her.

JH testified that she, JG and KW had started out as developing a safety network and then a support network more than anything. JG had told she and KW that AS had approached her and AS joined the group three days before JH went to the police to complain about Allan Hill on November 27, 2020. AS told them she was raped by Allan Hill but she did not describe the rape in detail. JH believed she told JG and KW at some point what Allan Hill had done to her but she could not recall word for word what she said to them.

She did not believe she told AS details of what happened to her as she only met her just before she went to the police. She thought AS “most likely” reported to her what happened to her but JH could not recall AS’s exact words. [9] [ 90 ] AS met Allan Hill on Plenty of Fish and they contacted each other by text from about November 4, 2020. They got together the weekend after that when AS went to Allan Hill’s home, met his daughter and then stayed over. AS described an occasion after this that she was sitting with Mr. Hill on his back deck and he asked if her son went to school with a boy named J.

She testified she told Mr. Hill, “No”, although she knew her son had gone to a birthday party for a boy from school called J. She testified she did not want Mr. Hill to know at that point in their relationship the school her son went to and this was why she said no. She did not know J.’s mother’s name at that point in time, as she had never met her. [ 91 ] It was later in their brief relationship, on November 16, 2020, that Allan Hill drove her to her son’s school to pick him up and bring him back to her house where AS first saw JG. Mr.

Hill had parked in the front of her son’s school in Bowmanville and as they were waiting for her son to come out, Mr. Hill suddenly slid down in the driver’s seat as if he was hiding from someone. When AS asked him what he was doing he indicated the woman standing on the sidewalk in front of the school was his ex-girlfriend, JG, and he did not want her to see him, so he was hiding from her. Mr. Hill in his evidence agreed such an incident occurred in front of the school. This was the first time AS ever saw JG. Mr.

Hill had spoken to AS about his previous girlfriends, KW and JG, and advised her of his difficulties with them, just as he had discussed his previous girlfriends with JG and JH. [ 92 ] After dropping off her son at her home (her son stayed there with another friend of AS) Mr. Hill drove AS and her daughter to look at an apartment she was interested in renting. When they finished looking at the apartment, Mr. Hill came back to AS’s home and he had dinner with AS and her two children. After dinner they watched a movie and at some point after 10:30 or later, after the children had gone to bed, AS and Mr.

Hill each had a shower and then went into AS’s bedroom. AS testified they initially were having consensual sexual contact, foreplay and then vaginal intercourse. There had been an earlier occasion at Mr. Hill’s house where they had been engaged in consensual vaginal intercourse and during this they noticed that Mr. Hill’s condom had come off. AS testified when they were having vaginal sexual in her bedroom on November 16, 2020, she asked if Mr. Hill’s condom was still on and when she looked she saw he did not have one on. They had words concerning this as she told him to stop. Mr.

Hill said to her, “I’m going to fuck you in every hole of your body,” and then he put his penis in her anus. She asked him to stop and he pushed it further in, she said stop again because it hurts and the third time he pushed it all the way in and asked her “What the fuck is wrong with you.” She told him it hurt and to stop again and he then pulled out, rolled over on the bed and said again, “What the fuck is wrong with you because you don’t like to do anything I like to do?” On the evidence this incident probably went into the early hours of November 17, 2020. There was an argument over this between AS and Mr.

Hill and he finally left her house around 1:00 or 1:30 a.m. [ 93 ] AS went to her pain management doctor’s office and spoke to “Amelia”, who turned out to be a nurse practitioner in that office. She was having pain and discomfort as a result of what had occurred with Mr. Hill. During her examination AS broke down crying and told “Amelia” about the incident with Mr. Hill. Amelia, the nurse practitioner, talked to her about going to Lakeridge Hospital to have a sexual assault kit done, which AS did.

She was questioned about her visit to her doctor’s office and to the hospital in cross-examination but the date when this occurred was never referred to in the evidence. However, it was clear that the defence had the Medical Clinic’s records of this consultation. It was also clear that the defence and Crown had the sexual assault kit report from Lakeridge Hospital. Based on the evidence and questions asked by Mr. Capotosto it was clear this occurred shortly after November 16/17, 2020, given the nurse practitioner sent AS to Lakeridge Hospital and a sexual assault kit was conducted.

I was advised by counsel that such a kit had been part of disclosure. In my view this leads to a reasonable inference that her attendance at the doctor’s office occurred very shortly after the incident alleged by AS, within a day or two at most. [ 94 ] In my view I must consider the circumstances surrounding AS’s initial disclosure to her doctor and the nurse practitioner and then immediately after spending an extended period of time speaking with the nurse practitioner, AS attended Lakeridge Hospital to have a sexual assault kit performed and a report prepared.

As a result of doing this, AS had been told she could go to the police to make a complaint, which is exactly what she did. It is my view this is a very significant circumstance, which demonstrates and supports the evidence of these three women that there is no air of reality to advertent collusion or inadvertent tainting occurring. [ 95 ] AS was also asked when she asked her son to point out J.’s mom at the school and she indicated it was in November, after the incident and that was when AS approached JG at the school.

In cross-examination she testified she asked her son a few days after November 16/17, 2020, but she was not sure of the exact date. It was after she was sexually assaulted by Allan Hill. AS was also challenged in cross as to why she had to ask her son to point out JG as Allan Hill had already pointed out JG when he slid down in his driver’s seat to prevent JG from seeing him.

AS testified she asked her son to do this to be sure of who JG was, so that she approached the correct person. [ 96 ] JG testified she believed AS approached her at the school at the end of May or in June, 2020, the end of the school year; however, this was clearly inaccurate given JG’s evidence concerning how AS approached her at her son’s school and the fact that JG and AS’s evidence as to that first interaction is very similar. Also, there is agreement as to when AS dated Allan Hill in November 2020. Further, Mr. Capotosto put to JG she had told P.C.

Harding, the first officer she spoke to, that AS first contacted her at the school a couple of days before she was talking to the officer on November 27, 2020. This would mean AS approached JG at the school sometime

between Monday, November 23 and Wednesday, November 25, 2020. [97] AS testified she told JG they had someone in common and JG asked, “Who?” and AS said, “Allan Hill”. AS described JGspinning around looking to see if Allan Hill was there and she asked AS “Are you here with him?” AS said, “No,” and JG asked, “Areyou sure he’s not here?” AS said, “Yes, I’m sure” Then JG asked if they were dating. AS said they were dating, they were talking andseeing each other and she told JG from the look on her face, “He is not a very nice person.” JG replied, “You should run, he’s not a n

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