) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 7071

CITATION: R. v. Saucier, 2017 ONSC 7071 COURT FILE NO.: 14-39 DATE: 20171219 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – Gilles Saucier Defendant ) ) ) ) ) ) ) ) Michael Purcell, counsel for the CrownLawrence Greenspon and Ninetta Caparelli ,counsel for the Respondent ) ) HEARD: By written submissions receivedbetween September 15 and October 4, 2017 RULING ON APPLICATION to ADMIT EVIDENCE OF PRIOR DISCREDITABLE CONDUCT LACELLE, J.

Introduction [1] Following the close of its case, the Crown seeks a ruling admitting evidence of other discreditable conduct, or similar factevidence, in the trial of the accused. The Crown seeks admission of the facts supporting each individual count in the indictment acrosscounts. The accused opposes the application. [2] The issue I must decide is whether the proposed similar fact evidence meets the test for admissibility set out in the decisionof the Supreme Court of Canada in R. v. Handy, 2002 SCC 56 , [2002] S.C.J. 57.

Ultimately, the issue is whether the Crown hasproved on the balance of probabilities that the probative value of the proposed evidence outweighs its prejudicial effect. Overview of the evidence The allegations and the evidence called by the Crown [3] A

summary of the evidence is included in my reasons for decision on the defence motion for a directed verdict. I rely on thatsummary and will not repeat it here. [4] By way of general overview, the accused is a financial advisor who operates a corporation called Gilden Financial Solutions.He is charged in a thirty-seven count indictment with various offences. He is alleged to have committed the offences of Fraud over$5000, Theft by fraud, Misappropriation of funds, forgery, and using a forged document. The charges relate to conduct with ten of hisclients.

For the most part, these clients had dealings with the accused in respect of financial products from London Life. [5] In 2003, by way of his corporation, the accused entered into an agreement with London Life Insurance Company that wouldpermit him to sell their products. That agreement sets out both his authority and obligations. It includes a clause with respect to money

received for London Life and its intercorporate partners which provides that all money received “will be paid to London Life fordistribution to the appropriate company, without any deduction or delay”. [6] As part of its case, the Crown has called evidence from each of the ten clients about their dealings with the accused.

It hasalso filed various documents and called the investigator who conducted the investigation of the matter on behalf of London Life beforereferring it on to police. [7] The Crown alleges that the accused received funds from his clients for the purposes of paying for the life insurancepremiums on their London Life policies, or in some instances, for the purpose of other investment or financial transaction. It is allegedthat in each case, after receiving those funds, the accused deposited them into an account operated by him personally or by hiscorporation.

The Crown alleges that the accused retained those funds for overlapping periods of time ranging from 44 to 670 days, anddid not remit them to London Life “without delay” as he was required to do by his Incorporated Sales Agreement with London Life, orotherwise deal with the funds as directed by the client. [8] The Crown further alleges that in a number of instances, the accused uttered misleading documentation indicating that thefunds received were applied as directed by the client, or that they were invested with another financial institution.

The Crown also ledevidence that ultimately, the accused returned all funds received from these clients to them or provided them to London Life. When thefunds were returned to the client directly, the funds were returned with interest. The positions of the parties The position of the Crown [9] The Crown submits that the proposed similar fact evidence meets the test set out in Handy. The Crown argues that theevidence is probative because it is relevant and material to a number of issues, including proof of the actus reus, the accused’s mens rea,and to rebut anticipated defences.

The Crown argues that the probative value of the evidence is enhanced by the proximity in time andplace of the similar acts, all of which are alleged to have occurred between 2009 and 2011, and that this is a “principal driver of probativevalue”. He also emphasizes the extent to which the other acts are similar in detail and circumstances, the number of occurrences ofsimilar acts, and some distinctive features of the evidence which unify the incidents. On this point, the Crown argues that the evidenceshows the accused had a modus operandi which included the following elements:

i) using his position with London Life to engendertrust; ii) using his business account to retain funds from clients provided for the purposes of payment of a life insurance premium orother investment; iii) using other documentation associated with London Life, Manulife or financial institutions to explain improprietiesin the use of those funds; iv) paying “interest” to each client from the same business accounts used to retain their funds;

v) all withoutproviding any proof of investment. All of these features of the evidence, he argues, further enhance its probative value. [10] With respect to the issue of the potential prejudice caused by the admission of the evidence across counts, the Crown submitsthat because this is a judge alone trial, and the evidence on each count is of comparable gravity and already before the court, thepossibility of either moral or reasoning prejudice is extremely low, if not non-existent.

The position of the defence [11] The defence argues that the Crown has not met the strict test for admissibility of similar fact evidence and that the evidenceshould not be admitted across counts. The defence relies on the presumption that similar fact evidence is presumptively inadmissible,and that in a multi-count indictment each count should be considered separately.

With respect to the strength of the evidence, the defenceargues that while there is no evidence of intentional collusion between the complainants, there has been inadvertent or innocent collusionas a result of the conduct of the London Life investigator who initially investigated the accused’s actions. With respect to the probativevalue of the evidence, the defence argues that the factors relied upon by the Crown do not demonstrate any probative value.

The defenceargues that the similarities in the evidence across counts consist of legal acts that were appropriate conduct for a financial advisor orbusiness person. The similarities, it says, are not indicative of any discreditable conduct, do not meet the threshold of justifying a similarfact analysis, and have no probative value.

Further, any acts that are discreditable are not similar, do not form a pattern, and do not tendto prove a matter in issue. [12] Finally the defence argues that the accused would be prejudiced by the admission of the evidence, particularly since theCrown seeks to use the evidence to bolster its case in proving essential elements of the offences alleged, particularly the mens rea for theoffences. The defence urges the court to find that the potential prejudice to the accused caused by admission of the proposed evidencegreatly outweighs the probative value of that evidence.

The applicable legal principles [13] The current framework for the analysis of similar fact evidence is set out in R. v. Handy, 2002 SCC 56 , [2002] S.C.J.57. There, the Supreme Court of Canada re-affirmed that evidence of discreditable conduct, or of propensity or disposition, may berelevant to the crime charged, but is usually inadmissible because its slight probative value is ultimately outweighed by its highlyprejudicial effect. The presumption is that evidence of prior discreditable conduct is inadmissible.

The Court explained the policy basisfor the exclusion of this evidence as follows, at paragraph 37: The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capturethe attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great andthese disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused iscalled on to answer.

It is excluded notwithstanding the general rule that all relevant evidence is admissible …

[14] In Handy and R. v. Shearing, (2002) 2002 SCC 58 , S.C.J. No. 59, the Supreme Court of Canada reaffirmed thatevidence of prior discreditable conduct is only admissible where the prosecution establishes on a balance of probabilities that theprobative value of the evidence outweighs its prejudicial effect. The Court noted at paragraph 41 of Handy that “an issue may arise in thetrial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value inthe search for truth outweighs any potential for misuse”.

The Court summarized the test for admissibility as follows at para. 55: Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance ofprobabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs itspotential prejudice and thereby justifies its reception. [15] The court in Handy provided further guidance in the application of that test in cases where the Crown seeks to rely on theevidence to prove issues other than identity.

The framework of the analysis suggested by the court is as follows. Assessing the probative value of the proposed evidence [16] First, probative value may be assessed by considering the strength of the similar fact evidence, including the extent to whichthe evidence can be proven and any allegations of collusion. Where there is an “air of reality” to allegations of collusion, the trial judgemust be satisfied, on a balance of probabilities, that the similar fact evidence “is not tainted with collusion”.

Further, a trial judge mustconsider that similar fact evidence may be potentially too prejudicial to be admitted unless the trial judge is of the view it meets thethreshold of being reasonably capable of belief. [17] Secondly, the probative value of the evidence may be assessed by identifying the “issue in question”, that is the live issue attrial to which the proposed similar fact is said to be relevant, and its relative importance in the particular trial.

If the evidence ofdiscreditable conduct “is not properly capable of supporting the inferences sought by the Crown, generally, the analysis need go nofurther”. [18] Third, the probative value of the evidence may be assessed by considering the factors that connect or distinguish the similarfact evidence to or from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible.These “connecting factors” set out at para 82 of Handy, may, but need not, include: 1. The proximity in time of the similar acts; 2.

The extent to which the other acts are similar in detail to the charged conduct; 3. The number of occurrences of the similar acts; 4. The circumstances surrounding or relating to the similar acts; 5. Any distinctive features unifying the incidents; 6. Intervening events; 7.

Any other factor which would tend to support or rebut the underlying unity of the similar acts. [19] With respect to the degree of similarity required in the evidence, as indicated in Handy (where the live issue was the actusreus of the offence) at para. 78, “[t]he point is not that the degree of similarity in such a case must be higher or lower than in anidentification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will thereforenot be the same”.

In discussing the difference between general propensity evidence, which is always inadmissible, and evidence of aspecific propensity, which may be admissible, the court in Handy also noted at para. 87 that “cogency increases as the fact situationmoves further to the specific end of the spectrum”. [20] As has been noted since Handy in the case of R. v. Kirk, [2004] O.J. No. 3443 (C.A.) at para. 13, the “principal driver ofprobative value” may not rest in the degree of similarity in certain aspects of the evidence.

In that case, which also involved anapplication to admit evidence across counts in a fraud trial, it was “the temporal connection and consequent interconnectedness of theevents from which an inference could be drawn about [the accused’s intention] … Evidence of discreditable conduct other than thatwhich pertains to the particular offence in question may be compelling without being similar. It all depends on the issue to which itrelates”. In that case, the primary issue at trial was the accused’s intention.

In upholding the trial judge’s ruling admitting the evidenceacross counts, the Court of Appeal held: Indeed, it is often the case that evidence going to intent, although dissimilar, can nonetheless be compelling and, therefore, admissible.… In the circumstances of this case, the cogency of the evidence can be best expressed in the words of Doherty J., as he then was, in R. v.Sahaidak, [1990] O. J. No. 3228 (Ont. H.C.) at para. 150: In most cases where a multi-count indictment is before the Court, evidence adduced on one count is not admissible for or against anaccused on the other counts.

Where, however, the events underlying the various counts are part of an ongoing course of dealings, andwhere those events are interwoven and interrelated so that as a matter of logic and common sense, the events underlying one count alsoenlighten and assist the trier of fact in understanding and assessing the evidence on the other counts, then evidence directly relevant toone count is admissible on the other counts as well. R. v. McNamera et al. (No. 1) (1981), (ON CA), 56 C.C.C. (2d)193 at 284 (Ont. C.A.), aff’d. without reference to this point (SCC), [1985] 1 S.C.R. 662.

Assessing the potential prejudice of the proposed evidence

[21] After the probative value of the evidence has been assessed, its prejudicial effect must be considered. Handy confirms thatwith respect to the issue of prejudice, potential prejudice to the accused is assessed by considering both the moral prejudice and thereasoning prejudice. Moral prejudice against the accused means the risk of convicting the accused because he is a “bad person”, ratherthan based on proof that he committed this offence.

Reasoning prejudice means the risk of distracting or confusing the trier of fact, or ofundue consumption of time, and the danger that the jury may have difficulty in disentangling the subject matter of the charges from theevidence of prior discreditable conduct: Handy at para. 83 and Shearing at paras. 38-74. [22] I turn now to the application of these principles to the facts in this case.

Analysis Threshold issue: is the conduct discreditable? [23] As a threshold matter, I have considered the argument by the defence that the conduct alleged by the Crown is notdiscreditable and therefore cannot be admitted across counts pursuant to this type of application because the bad character justificationfor the exclusionary rule is not engaged. If the defence is correct in that assertion, then as pointed out in R. v. Johnson, 2010 ONCA 646, [2010] O.J.

No. 4153 (C.A.) at para. 90, “the evidence, if relevant, will be admissible, unless excluded by some other rule”.Here, the evidence would be excluded by the general rule that evidence may not be considered across counts. [24] However, what is meant by “discreditable” conduct is not that it is manifestly criminal conduct, but that it is ““discreditable”to the accused, in the sense that an ordinary person would disapprove of their conduct”: Johnson at para. 90, citing Handy at para. 34.

Asnoted in Kowall at para. 24, “similar fact evidence is admissible even if that evidence does not itself constitute a crime: see R. v. R.(J.D.)(1987), (SCC), 33 C.C.C. (3d) 481 (S.C.C.).” I am satisfied on a balance of probabilities that the evidence adducedby the Crown in respect of the accused’s dealings with each of his clients is such that an ordinary person would disapprove of theconduct. I am satisfied that the conduct at issue is properly analysed as similar fact evidence under the rubric set out in Handy and maybe admissible across counts.

Assessing the probative value of the evidence Issue #1: The potential for collusion and the strength of the evidence that the discreditable conduct actually occurred [25] As indicated in Handy, “the issue at this stage is to determine whether the similar fact evidence is indeed strong enough to becapable of properly raising the inferences contended for it by the Crown”. Handy directs the review of various features of the evidenceunder this heading. [26] The issue of collusion is a live one in this application.

There is no evidence that the complainants know one another and I findthere has been no intentional or actual collusion. The issue is whether there is evidence of “unintentional” or “innocent” collusion assuggested by the defence. [27] The defence argues that the complaints in this case were solicited by Gary Schmidt, who initially investigated the accused’sactivities for London Life. The defence argues that the complainants did not complain independently about the accused’s actions, butthat they were made to believe by Mr.

Schmidt that there were problems with their investments such that they should reclaim their funds.In most instances, Mr. Schmidt drafted statements for the complainants. The defence argues that Mr. Schmidt lured the complainants tocome forward and then “guided” them through the complaint process. Mr. Schmidt’s involvement in the solicitation, collection anddrafting of complaints is, according to the defence, an intervening event that must be considered in determining the probative value ofthe evidence that resulted from his efforts.

As a related point, the defence argues that the impact of the unintentional collusion is todiminish the reliability of the evidence of each of the complainants. [28] In support of its position, the defence relies on R. v. M.B., 2011 ONCA 76 at para. 19, where the court explained the concernabout inadvertent tainting: Even without deliberate tainting by others of a witness’s evidence, innocent influencing of that evidence sufficient to affect its reliabilitycan arise in certain circumstances. In R. v. J.F. (2003), 2003 Can LII 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont.

C.A.), at para. 77, thiscourt described the concern this way: The trial judge’s finding that B.H. was sincere, a “straight shooter”, and not influenced by E.T. and the others, fails to take into accountthat collusion and discussion among witnesses can have the effect of tainting a witness’s evidence and perception of events innocently oraccidentally or unknowingly, as well as deliberately and intentionally.

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

interpretation of personal events or reinforce a perception about which one had doubts or concerns. [29] On this issue, I also consider the court’s comments in Handy at para. 111 that “[t]he issue is concoction or collaboration, notcontact. If the evidence amounts to no more than opportunity, it will usually best be left to the jury”.

Further, where there is someevidence of actual collusion, “or at least an “air of reality” to the allegations”, it is the Crown’s burden to show on a balance ofprobabilities that the evidence of similar facts is not tainted with collusion: Handy at para. 112. [30] Taking the defence position at its highest, and assuming there is an “air of reality” to the defence suggestion that inadvertentcollusion has resulted from the conduct of the London Life investigator, I am not satisfied that the evidence of each of the complainantswas influenced to the point that it is not sufficiently reliable to meet the threshold for admissibility as similar fact evidence. [31] In arriving at that conclusion I have considered that there is no compelling evidence that Mr.

Schmidt shared the details of onecomplaint with the complainant on another. I have also considered that it is Mr. Schmidt who provided the evidence that none of theclient funds at issue were received by London Life, and this feature of the evidence cannot be said to be affected in any way bycollusion. With respect to other significant aspects of the evidence given by the complainants, for instance evidence about when funds

were provided to the accused, under what terms, and when and how the funds were returned to the client, much of this evidence is confirmed by documentary evidence. There is no evidence that any of the complainants was told about discussions others had with the accused, or agreements with him about the use of their funds, or that Mr. Schmidt suggested facts on those issues to the complainants.

I am satisfied on the balance of probabilities that the evidence of the complainants is not tainted by inadvertent collusion. [ 32 ] On the balance of probabilities, I am satisfied that the Crown has shown that the evidence is of sufficient strength and reliability to be considered for admission across counts. The analysis of the probative value of the evidence as well as its potential for prejudicial effect is therefore necessary. Issue #2: Identification of “the Issue in Question” [ 33 ] The Crown identifies several predominant issues to which the evidence is relevant in this case.

One is to prove the actus reus by demonstrating a pattern of behaviour. The Crown also argues that the court may admit the evidence as relevant to the issue of the mens rea . The Crown argues that the evidence is relevant to this issue because it is capable of demonstrating knowledge or intent, it may assist in establishing the dishonestly element of fraud by proof of a scheme or design, and it may rebut the defence of innocent possession of goods or an honest belief in a right to possess those goods, or the defence of consent or belief in consent. [ 34 ] The Crown’s position is supported by the jurisprudence.

In R. v. Downey , [2002] O.J. No. 2228 (S.C.J.) , Hill J. reviewed the jurisprudence where other discreditable conduct has been admitted in fraud or fraud-like cases. He surmised following that review that … the probative force of other discreditable conduct may, in the circumstances, be considered significant in any of the following ways:

(1) Plan, scheme, system, design Similarities between the other discreditable conduct and the criminality alleged at trial may suggest a system of operation or behaviour on the part of the accused …

(2) Intention, state of mind, knowledge, motive The conduct of the accused on other occasions may assist in establishing intent … The evidence may be probative on the issues of state of mind and knowledge … The earlier conduct may in addition prove motive …

(3) Rebutting innocent intent, mistake, and other defences Other discreditable conduct may be “properly considered by the trial judge to rebut innocent intent or accident or to substantiate the scheme or deceitful plot … Discreditable conduct evidence may “rebut the defence of lack of knowledge or innocent intent” at the time various agreements were entered into … The evidence may, in establishing “a system of conduct directed at depriving persons of their property without any intention of compensating them” be relevant to rebut the defence in the current transaction that the accused “intended to follow through on his promises to pay” and that “at the relevant time, intended to pay the particular complainant”… Discreditable conduct evidence may “negative the defence of absence of intent” and may demonstrate “the individual acts in issue were not performed inadvertently or without guilty knowledge” … The evidence may contribute to rebutting a suggestion by the defence that a contract or agreement was entered into in good faith and then “because of financial downturns” the accused could not pay … [all citations omitted] [ 35 ] Do the facts and circumstances in this case also engage these issues?

I find that they do. The actus reus and mens rea are live issues in this trial. The proposed similar fact evidence is relevant and capable of supporting the inferences identified by the Crown. To the extent that one of the issues identified is to rebut anticipated defences, I consider that “relevance of the proposed evidence may emerge from defences reasonably anticipated, defences actually advanced, and from defence cross-examination of prosecution witnesses”: see Downey at para. 319.

It is apparent from the cross-examination of the Crown witnesses and defence submissions on this application and its motion for a directed verdict that proof of the criminal acts and the accompanying criminal intent are challenged for most counts on the indictment. I agree with the comments of Hill J. in Downey at para. 337 that [l]ogic and common sense suggest the evidence sought to be tendered by the Crown, and the evidentiary use of certain evidence already in the record, may put a different complexion on thematic currents introduced by the defence and reasonably anticipated defences.

While the evidence in question and its proposed usage incidentally may have a tendency of enhancing the probabilities of the complainants’ accounts, it cannot be said that the application here is an attempt to do nothing more than show [the accused] to have a general disposition or propensity to commit crimes. Issue #3: The connecting factors in the evidence The extent to which the other acts are similar in detail and circumstances to the conduct charged [ 36 ] The Crown identifies a number of similarities in this case, as follows: i. Depositing complainants funds into his business accounts; ii.

Receiving directions from complainants about the use of those funds; iii. Retaining complainants funds in his business accounts; iv. Failing to apply the funds without delay; v. Failing to advise complainants that the funds were retained in his account; vi. Uttering misleading documentation indicating that funds were applied as directed; AND/OR

vii. Uttering misleading documentation indicating that funds were invested with another financialinstitution; viii. Recording incorrect amounts of funds in documentation intended for complainants; ix. Failing to invest funds in the other financial institutions identified; x. Paying interest from his business account upon returning funds; xi. Failing to identify the source of interest rate upon returning funds; xii. Using different accounting terms to refer to the same funds; xiii. Requesting to be released from liability upon returning funds; and xiv.

Acknowledging that the funds were not applied as directed. [37] The Crown argues that at least five of these acts or omissions are present across the counts associated with each client namedin the Indictment, and a majority are present throughout. He highlights the jurisprudence (e.g. McNamara, Kowall, Downey, and R. v.Foley, [1996] B.C.J.

No. 985 (B.C.C.A.)) where similar fact evidence has been admitted because it was relevant to the issue of theaccused’s state of mind, knowledge or intent, and argues that “the running theme throughout these cases is that similarity in detaildemonstrates a plan, scheme, or system that the accused knowingly employed to defraud alleged victims”, notwithstanding that therewere also differences in the accounts of the witnesses. [38] The defence takes an opposing view, and emphasizes the generic nature of many of the acts highlighted by the Crown andtheir legitimacy and appropriateness in carrying out his business as a financial advisor.

The defence also argues that there are a number ofdissimilarities in the conduct alleged between clients. [39] As was noted in Handy, the drivers of cogency in relation to the desired inferences sought will not be the same in all cases.The degree of similarity required in the evidence “will depend upon the issues in the particular case, the purpose for which the evidenceis sought to be introduced and the other evidence”: Handy at para. 78.

Regardless of the issue in question, cogency increases as the factsituation moves further to the specific end of the spectrum. [40] Here, the similarity in the acts alleged are only one factor in assessing the connecting factors between the evidence of eachcomplainant. I agree with the defence that there are dissimilarities in the acts alleged with each complainant. For instance, the allegationthat the accused used false documentation is not consistent across counts.

But considered cumulatively, the accused’s acts in relation toeach of his clients does give rise to a pattern of conduct that moves towards the specific end of the spectrum.

At a minimum, theretention of each client’s funds for periods of time outside the scope of his agreement with London Life and the return of those fundswith interest are particularly strong unifying features of the evidence across counts. [41] In addition, some of the evidence adduced about the accused’s dealings with his clients reaches the level of striking similarity.The “Letter of Direction” addressed to “Manulife Bank”, received by clients Roy and Breyer, is one example.

In other instances, theaccused explained the return of funds to the client in letters with identical language (e.g. the “funds are considered a return of deposit”(clients Ross, Nutting, Proulx). Other connecting factors [42] There are a number of additional connecting factors that enhance the probative value of the proposed similar fact evidence.The proximity in time of the alleged conduct is one of those. As in Kirk, I find that the temporal connection of the conduct may give riseto an inference about the accused’s intentions in relation to each client’s funds.

A second important connecting factor is the number ofoccurrences of similar acts. As noted in Handy, a pattern of conduct may gain strength if a greater number of instances compose it. Here,there are ten proximate complaints with a similar pattern. This further enhances the probative value of the evidence. Conclusion on the assessment of probative value [43] I find that there are “common threads running through the evidence” of the witnesses: see R. v. Kowall, (ONCA), [1996] O.J. No. 2715 (C.A.) at para. 20; McNamara et al. (No. 1) at 287.

The evidence shows a “pattern of similar behaviour andsimilarity in approach” by the accused, which is relevant and probative to the issues of the actus reus, the mens rea, and as a corollary, torebut anticipated defences. The connecting factors I have outlined above persuade me that the Crown has demonstrated a level ofcogency that moves the conduct at issue from the general toward the specific. The dissimilarities in the conduct do not undermine thatconclusion.

Accordingly, as regards the analysis of the probative value of the proposed similar fact evidence, I find it is highly probativeof the issues at trial. [44] I turn now to consideration of the prejudice that might be caused by the admission of this evidence in the trial. Assessment of the Prejudice [45] It is well established that the meaning of “prejudice” in this context is not the risk of conviction but the risk of an unfocussedtrial and a wrongful conviction. [46] As I have said, I find that the evidence is strongly probative to the issues in the trial.

I further find that there is a minimal riskof reasoning prejudice since this is not a jury trial. Further, since the proposed evidence is necessarily part of the trial, the admission ofthe similar fact evidence will not unduly consume time in the trial. [47] As regards moral prejudice, or the risk that the accused will be convicted because he is a “bad person”, the court is mindful of

the limited purposes for which the similar fact evidence is relevant in the analysis at trial and will use the evidence only for thosepurposes. The court will not rely on the inference that the accused is “merely of bad character and therefore more likely to havecommitted the offences alleged”: see Johnson at para. 93 citing R. v. Perrier, 2004 SCC 56 , [2004] 3 S.C.R. 228 at para. 18. [48] Overall, I find that the risk of prejudice in admitting the evidence is minimal.

Conclusion [49] On the balance or probabilities, I am satisfied that the probative value of the proposed similar fact evidence exceeds itsprejudicial effect. There is sufficient cogency between the evidence of each client about their dealings with the accused to establish anobjective improbability of coincidence. The evidence is highly probative and minimally prejudicial. In the circumstances of this case, theCrown has met the test in Handy, and has justified the departure from the general rule that evidence of discreditable conduct isinadmissible. [50] For these reasons, the application is allowed.

Madam Justice Laurie Lacelle Released: December 19, 2017 CITATION: R. v. Saucier, 2017 ONSC 7071 COURT FILE NO.: 14-39 DATE: December 19, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Gilles Saucier RULING ON APPLICATION to admit evidence of prior discreditable conduct Madam Justice Laurie Lacelle Released: December 19, 2017