



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(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    that could identify the victim or a witness shall not be published in any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 at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

(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)     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.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(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.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bent, 2016 ONCA 722

DATE: 20161003

DOCKET: C59544

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jason Bent

Respondent

Craig Harper, for the appellant

Paul Calarco, for the respondent

Heard: April 18, 2016

Supplementary reasons to the judgment in
R. v. Bent
,
    2016 ONCA 651, released on August 31, 2016.

ADDENDUM

Gillese J.A. (concurring):

[1]

This appeal was argued and decided on a mistaken record.  Out of
    fairness to the trial judge, as well as the parties, that mistake needs to be
    corrected.

[2]

The appellant was acquitted of charges of assault, sexual
    interference, sexual assault, uttering threats, and forcible confinement
    arising out of allegations involving a 15-year old complainant in July 2009. 
    At trial, the Crown brought a similar fact application relating to the
    appellants 2011 conviction for a sexual offence involving a 14-year old
    victim.  The trial judge dismissed the application and promised that detailed
    reasons would follow.

[3]

The Crown appealed the acquittal.  Its factum on the appeal
    mistakenly stated that the trial judge had never provided the promised reasons
    and one of its two grounds of appeal was the inadequacy of the trial judges
    reasons for dismissing the application.  Through inadvertence,
defence
counsel had never received a copy of the reasons so counsel for the
    respondent also understood that the trial judge had never provided the promised
    reasons.

[4]

Consequently, the appeal was argued by counsel for both parties and
    decided by this court on the mistaken premise that the trial judge had failed
    to give detailed reasons for dismissing the application.

[5]

This court released its decision in respect of the appeal on August
    31, 2016.  Very shortly thereafter, it was made aware that the trial judge had
    in fact delivered the promised reasons.  Those reasons are now before the
    court.  In addition, the court has received written submissions by both parties
    on how it ought to deal with the matter of having heard and decided the appeal
    on the basis of the incorrect record.

[6]

As the majority would have dismissed the appeal, the enhanced record
    only reinforces its determination of the appeal.  I would have allowed the
    appeal on the basis of the inadequacy of the reasons.  On the basis of the
    rectified record, however, I would dismiss the appeal.

[7]

A trial judges determination of a similar fact application is
    entitled to substantial appellate deference:
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 153.  The Crown has not
    pointed to any specific error in the trial judges reasons and, having reviewed
    those reasons, I see none.

[8]

Accordingly, deference is owed to the trial judges determination of
    the application.  For these reasons, I concur that the appeal should be
    dismissed.

Released: October 3, 2016 (G.R.S.)


E.E. Gillese J.A.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bent, 2016 ONCA 651

DATE: 20160831

DOCKET: C59544

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jason Bent

Respondent

Craig Harper, for the appellant

Paul Calarco, for the respondent

Heard: April 18, 2016

On appeal from the acquittal entered on October 3, 2014
    by Justice P. Daley of the Superior Court of Justice, sitting with a jury.

Strathy C.J.O.:

[1]

The Crown appeals the
    respondents acquittal on a charge of sexual assault and related offences which
    were alleged to have occurred on July 3, 2009. The principal ground relates to
    the trial judges dismissal of a Crown application to admit similar fact
    evidence that formed the basis of the respondents conviction for a sexual
    assault in 2008. Other grounds are the sufficiency of the judges reasons for
    excluding the similar fact evidence and the effect, if any, of an erroneous
    instruction on consent.

[2]

For the reasons that follow,
    I would dismiss the appeal.


i.

THE FACTS

[3]

I will begin by setting out
    the evidence of the complainant and the respondent. The complainant described a
    violent sexual assault. The respondent said there was consensual kissing which
    she initiated and he ended.

(a)

The complainants evidence

[4]

At the time of the alleged
    offence, the complainant, K.A., was 15 years old and attended high school in
    Brampton. She testified that in May 2009 the respondent approached her on
    bicycle as she walked home from school. He gestured to her to come over. She ignored
    his request and continued walking. The respondent then poked her and stated
    that he knew her from school and also knew two of her friends. K.A. had never
    seen him at school. The respondent rode alongside as she continued walking. She
    tried to ignore him, in the hope that he would leave her alone.

[5]

On reaching her home, they
    spoke outside for a few minutes. The respondent asked K.A. if she would like to
    borrow a movie DVD. Hoping he would leave if she did so, she accepted the DVD.

[6]

K.A. next saw the respondent
    on July 3, 2009. She was alone in her home when he appeared unannounced at the
    front door at approximately 2:15 p.m. He demanded she return his DVD. K.A. went
    inside to get the DVD, locking the door behind her. The respondent was angry
    and impatient. K.A. felt threatened by his behaviour.

[7]

K.A. gave the DVD to him and
    attempted to close the door. He pushed his way into the covered front porch.
    K.A. asked him to leave. He became agitated, asking why she was being so rude.
    This frightened her. He asked for a glass of water and K.A. went to the kitchen
    to get it. He removed his shoes and walked further into the house.

[8]

After drinking the water,
    the respondent complained about not receiving the DVD earlier, mentioning that
    he had stopped by K.A.s home on a previous occasion, but that no one was home.
    Suddenly, he approached K.A. from behind, wrapping his arms around her. He
    covered her mouth with his hand, muffling her screams. He dragged her by her
    wrists, on her back, headfirst down the stairs to the basement. She tried,
    unsuccessfully, to hook her legs onto the staircase railing.

[9]

At the bottom of the
    staircase, the respondent tried to remove her shirt, shorts and underwear. She
    struggled to keep her clothes on. The respondent pushed her onto the basement
    couch, face first. He removed her shorts and underwear and pulled her off the
    couch and onto her knees. He forced her legs apart and vaginally penetrated her
    from behind. He ordered her not to look at him. He pushed her onto her back,
    covered her face with a pillow and penetrated her again. K.A. estimated that
    these sexual acts lasted somewhere between six and seven minutes. She did not
    know whether the respondent used a condom or whether he ejaculated. K.A.
    testified that it was possible the respondents tongue had touched her chest,
    but said her memory was foggy on this point. After the assault ended, the
    respondent stood up and punched her twice on the left side of her chest and
    once or twice on the right arm.

[10]

As
    he left, the respondent threatened to get his boys after K.A. if she told
    anyone what had happened. She remained downstairs for several minutes before
    checking to see if he had truly left.

[11]

K.A.
    called her neighbour. After speaking with him and his parents at their home,
    K.A. called her mother who, in turn, called the police. K.A. was taken to
    hospital and examined.

(b)

The respondents evidence

[12]


The respondent was 21 years of age when he
    first met K.A. in May or early June 2009. He was riding his bike when K.A.
    called him over, saying he looked familiar. Although he did not recognize her,
    she insisted she knew him. They spoke for approximately 15 minutes. K.A. asked
    if he had ever attended her high school. He said he did. She told him she was
    in grade 12.

[13]

They
    walked to K.A.s home and went inside. K.A. asked him to remove his shoes at
    the front door. They watched television in the living room, then YouTube videos
    in the dining room. The respondent had four movie DVDs in his knapsack. K.A.
    wanted to watch one of the movies, so they returned to the living room and
    watched for approximately 15-20 minutes. The respondent told K.A. he had to
    leave to meet up with a friend. He loaned K.A. the DVD, saying he would return
    for it in a week or so. He did not tell K.A. his age or leave her with any
    contact information.

[14]

The
    respondent testified that he visited K.A.s home a second time to retrieve the
    DVD, but no one was there.

[15]

The
    respondent went to K.A.s home a third time on July 3, 2009 to collect the DVD.
    K.A. answered the door and invited him in. He removed his shoes and they walked
    to the living room where they sat on a couch watching DVDs he had brought with
    him. After about 30 minutes, they went to the kitchen where he asked for a glass
    of juice. They then went to the dining room and watched videos on K.A.s
    laptop.

[16]

The
    respondent testified that K.A. sat on his lap while he was sitting at the
    dining room table, and rubbed his arm while kissing him on the cheek, neck and
    lips. She started to unbutton his shirt. He responded by kissing her on the cheek,
    neck, lips, and then on the top of her left breast after she unbuttoned her
    shirt. She did not ask him to stop.

[17]

The
    respondent testified that he was not feeling the vibe after kissing for
    several minutes. He told K.A. that he was not into large women and asked her to
    get off his lap. K.A. was angered by his remarks. After retrieving his DVDs
    from the living room, he tried to placate her, suggesting that she could dress
    herself up a bit more, perhaps by wearing earrings or changing her hairstyle.
    She was insulted by his suggestions. He told her he was leaving and she
    escorted him out of the home.

(c)

Events following the incident

[18]

On
    July 3, 2009, K.A. was examined by a sexual assault nurse at Trillium Hospital.
    The nurse took several swabs and collected blood, urine and fingernail
    scrapings. She did not observe any blood or rips on K.A.s clothing. K.A. told
    the nurse that the respondent had licked her left breast and had punched her.
    During a physical examination, the nurse recorded bruising to K.A.s right arm
    and left breast. She found no injuries to K.A.s head and no bruising on her
    back, legs, hands or wrists.

[19]

The
    swabs and two drinking glasses collected by police from K.A.s home were submitted
    to the Centre of Forensic Sciences (CFS) for analysis. A report generated in
    September 2009 detected the DNA profile of an unidentified male on the swab
    taken from K.A.s left breast.  The profile was uploaded to the DNA databank.

[20]

On
    September 3, 2009 and October 15, 2009, K.A. attended the Special Victims Unit
    of the Peel Regional Police to review photo lineups based on descriptors she
    had provided to the police. She failed to identify the respondent, whose
    photograph was in the September 3 lineup.

(d)

The Crowns case

[21]

In
    the absence of the similar fact evidence, the Crowns case rested on the
    credibility of the complainant. That evidence presented some challenges. There
    were no signs of a struggle in the area where the assault was alleged to have
    occurred. Although the complainant speculated that someone may have cleaned up
    after the incident, there was no evidence that had happened. Nothing was out of
    place. The pillows, one of which the complainant asserted had been used to
    cover her face, were in their places. There were no marks on the stairs, which
    the complainant claimed she was pulled down by her wrists, head first. Nor were
    the marks on the stairway wall. The defence argued that the pictures taken of
    the scene did not show signs of the violent struggle described by the
    complainant.

[22]

While
    the complainant had some bruising on her arm and her left breast, there were no
    injuries, abrasions or bruises to her wrists, her back or her legs, in spite of
    her evidence that she had been dragged on her back down six carpeted steps and
    four wooden steps to the basement.

[23]

There
    was no forensic evidence linking the respondent to a sexual assault on the
    complainant, other than his DNA on her breast, which he admitted kissing. There
    was no forensic evidence on the floor of the alleged scene of the crime and no
    forensic evidence on the complainants body, which was examined for evidence of
    semen or pubic hairs, which might identify the alleged attacker.

(e)

The similar fact evidence

[24]

On
    July 19, 2011, the respondent was convicted of sexually assaulting S.P., a
    14-year-old girl, on February 23, 2008, approximately a year and a half before
    the K.A. incident.

[25]

The
    respondent provided a DNA sample as one of the terms of his sentence. Peel Police
    were notified that the respondents DNA had registered a hit on the DNA
    databank, linking him to the K.A. matter. The respondent was arrested and a DNA
    warrant was executed. A CFS report dated January 17, 2013 concluded that the
    respondent could not be excluded as the source of the male DNA profile on the
    swab taken from K.A.s left breast and from one of the drinking glasses in her
    kitchen.

[26]

The
    following facts were admitted in evidence at the trial, on consent, as part of
    the basis for the similar fact application:
[1]

·

S.P. was 14 years old at the time of the sexual assault. Communication
    between S.P. and the respondent began through an online chat website. S.P. knew
    the respondent as Junior Williams.

·

The respondent advised S.P. that he was 16 years old and a
    student at her high school. He said he knew her because he had observed her
    playing basketball. At the time of these conversations, S.P. had never
    physically met the respondent.

·

The respondent called S.P. one day as she was walking home from
    school. S.P. was on another call and let the respondent go. As she continued
    walking home she felt a push from behind. S.P. testified that she recognized
    the voice of the person who pushed her to be that of Junior Williams.

·

S.P. continued walking home with the respondent. The respondent
    accompanied her to the porch where he kissed her.  The respondent asked to come
    inside, but S.P. refused, saying that her mother would be coming home soon.

·

The respondent continued to talk and said he wanted to give her
    something. At that point he tried to hand her something, but she declined it.
    At the time, S.P. believed it to be a camera.

·

S.P. stayed home from school the next day. Around 2 or 3 p.m.,
    the respondent called her and asked her if he could stop by. She said no, because
    her father would be coming home soon.

·

Shortly thereafter the respondent knocked on her door.  He
    attempted to read her a letter professing his love for her. He asked if he
    could come inside because he was cold. She permitted him into the front door
    area, but the respondent requested further entry into the house, which she
    granted. He removed his shoes and made his way to the couch where he read her
    the love letter.

·

S.P. asked the respondent to leave because her father would soon
    be home. He did not believe her and asked to go to her bedroom. She said no,
    but he proceeded up the stairs. When he attempted to pull him back, he grabbed
    her hand and pulled her upstairs with him.

·

The respondent asked S.P. if she was wearing a thong and she told
    him she was. He asked to see it and she showed it to him by pulling down the
    top part of her track pants. The respondent pulled down her pants.  Ultimately,
    he removed her underwear and top. When S.P. attempted to redress herself, he
    slapped her hand away, pushed her down on the bed and digitally penetrated her.

·

The respondent instructed S.P. to close her eyes. When she
    refused, he swore at her. She complied. The respondent put a condom on, and
    then forced vaginal intercourse on her.

·

When the incident was over, S.P. asked the respondent to leave. He
    asked if she was going to stop talking to him. She stated that would not
    happen. The respondent then kissed her goodbye.

·

The respondent made several subsequent phone calls to S.P.s cell
    phone and attempted to contact her through the internet. She declined all of
    the calls but agreed to speak with him on one occasion, when he stated there
    was a reason he needed to see her. She declined to meet with him in person. The
    respondent told S.P. that she was not allowed to speak with other guys and
    threatened her if she did.

·

The respondent made another call to S.P. and asked her if she was
    talking to other guys. It was at that point that S.P. disclosed the sexual
    assault to her mother, who then took S.P. to the police station.

[27]

I
    turn to the trial judges reasons for excluding the similar fact evidence of
    S.P.


ii.

THE TRIAL JUDGES REASONS

[28]

The
    judge trial judge gave brief reasons for dismissing the similar fact
    application. As noted above, the sufficiency of his reasons forms one of the
    grounds of appeal. His reasons were as follows:

I will now provide my brief reasons with respect to the Crowns
    application in respect of similar fact evidence. The Crown has brought an
    application to adduce evidence of prior discreditable conduct by the accused.
    The accused was convicted by Justice Miller of the offence of sexual assault
    upon a young woman, as outlined in her reasons for judgment of July 19th, 2011.
    The Crown seeks to adduce evidence from the victim of that sexual assault for
    the stated purpose of corroborating the testimony of the complainant in this
    matter and to establish the accuseds specific propensity towards teenage
    females and to rebut any potential defence of innocent association or accident.

With detailed reasons to follow, I have determined the result
    of this application and I have concluded that it must be dismissed. In reaching
    this conclusion I have examined the purpose for which the proposed evidence is
    to be used, its probative value, including similarities and dissimilarities to
    the evidence to be offered in this case and its strengths in terms of proving
    matters at stake in the trial.

I have also considered the prejudicial effect of the proposed
    evidence in terms of determining whether the evidence might be improperly and
    unfairly used by the jury. In considering the prejudicial effect I have
    examined the evidence in terms of how discreditable it is, the extent to which
    it may support an inference of guilt based solely on bad character, the extent
    to which it may confuse issues and the accuseds ability to respond to it.

Having weighed the probative value and the prejudicial effect
    of the proposed evidence, I have concluded that the prejudicial effect exceeds
    the probative value, and as such, the Crowns application to introduce the
    proposed evidence is dismissed.

[29]

Although
    the trial judge said he would give detailed reasons for his ruling, he did not
    do so.


iii.

THE ISSUES ON APPEAL

[30]

The
    Crown advances three grounds of appeal:

(a)

the trial
    judge erred by excluding the similar fact evidence;

(b)

the trial
    judge gave inadequate reasons for excluding the evidence; and

(c)

the trial
    judge erred in failing to instruct the jury that the complainant, who was under
    16, was incapable of legally consenting to sexual touching.

[31]

I
    will deal with these in order.


iv.

analysis

A.

The Similar Fact Evidence

1.

The framework for analysis

[32]

The
    leading authority on the admissibility of similar fact evidence is the decision
    of the Supreme Court of Canada in
R. v. Handy
, 2002 SCC 56, [2002] 2
    S.C.R. 908.

[33]

The
    starting point is that evidence linking the accused to other discreditable acts
    or conduct is presumptively inadmissible. This is due to the general
    exclusionary rule against the reception of evidence of general propensity,
    disposition or bad character:
Handy
at para. 36;
R. v. B. (C.R.)
,
    [1990] 1 S.C.R. 717, at p. 731-32.

[34]

The
    onus is on the Crown to satisfy the trial judge on a balance of probabilities
    that the probative value of the evidence in relation to a particular issue sufficiently
    outweighs its potential prejudice. The analysis requires an assessment of (a)
    the probative value of the evidence; (b) its potential prejudicial effect; and (c)
    whether the probative value displaces the prejudicial effect.

[35]

The
    analysis outlined in
Handy
provides the structure for a consideration
    of the admissibility of the evidence. I will explain that structure and will
    then apply it to the facts and issues in this case.

(a)

Probative value

[36]

The
    probative value of the evidence is based on the improbability of coincidence
    between the similar acts and the acts at issue in the proceeding.

[37]

In
    determining the probative value of the similar fact evidence, the court must
    consider the degree of its relevance to the facts in issue and the strength of
    the inferences that can be drawn from it. In
Handy
, at para. 42,
    Binnie J. noted that the inferences sought to be drawn must accord with common
    sense, intuitive notions of probability and the unlikelihood of coincidence.
    The threshold for probative value is very high. The connection must be so
    strong that it would be an affront to common sense to suggest that the
    similarities were due to coincidence:
Handy
at para. 41, quoting
    Sopinka J.s dissenting reasons in
B. (C.R.)
, at p. 751. However, the
    probative value of the evidence need not be so high that it is virtually
    conclusive of guilt, for a conclusiveness requirement would take the trial
    judges gatekeeper function too far into the domain of the trier of fact:
Handy
at paras. 94-97.

[38]

The
    probative value analysis includes four inquiries.

[39]

First,
the evidence must relate to a specific issue, so that it is plainly not
    adduced merely to show that the defendant is of bad character. Evidence adduced
    merely to show that the defendant is a bad person who is likely to engage in
    criminal acts is inadmissible propensity evidence. As Binnie J. noted at para.
    71 of
Handy
, the general disposition of the accused does not qualify
    as an issue in question.

[40]

In
    assessing the probative value of the evidence, the court must identify the
    issue in question and ask how the similar acts tend to prove that issue. In
Handy
,
    Binnie J. noted that in cases such as this, where the issue is
actus reus
rather than identification, the degree of similarity required is not
    necessarily higher or lower, but rather the issue is different and the drivers
    of cogency in relation to the desired inferences will therefore not be the
    same:
Handy
at para. 78.

[41]

Second
,
    the court must determine whether the similar fact evidence is tainted by collusion,
    which undermines the improbability of coincidence.

[42]

Third
,
    the court should consider the similarities and differences between the evidence
    that forms the basis of the charge and the evidence of similar acts sought to
    be admitted. In considering the cogency of the similar fact evidence in
    relation to the inferences sought to be drawn, Binnie J. suggested, at paras.
    82, 122, 128 and 132 of
Handy
, that the following factors may be
    examined:

·

the proximity in time between past act and current offence: a
    greater lapse of time tends to undermine the premise of continuity of character
    or disposition; remoteness in time may also affect relevance and reliability;

·

the extent to which the other acts are similar in detail to the
    charged conduct;

·

the number of occurrences of the similar acts: an alleged pattern
    of conduct may gain strength if a greater number of instances compose it;

·

the circumstances surrounding or relating to the similar acts:
    depending on the circumstances, these considerations could strengthen or weaken
    the probative value;

·

any distinctive features unifying the incidents: greater
    distinctiveness would tend to increase the probative value;

·

any intervening events: certain intervening events might
    undermine the probative value, such as evidence of supervening physical
    incapacity; and

·

any other factor that would tend to support or rebut the underlying
    unity of the similar acts.

[43]

Not
    all factors will exist or be necessary in every case.

[44]

Fourth
,
    the court must consider the strength of the evidence that the similar acts
    occurred. S. Casey Hill, David M. Tanovich and Louis P. Srezos, the authors of
McWilliams
    Canadian Criminal Evidence
, 5
th
ed., looseleaf (Toronto: Canada
    Law Book, 2013) suggest at p. 10-8 that under this inquiry the court should
    consider the following questions:

·

have the allegations been admitted in prior proceedings?

·

are the allegations the subject matter of outstanding charges?

·

by what method of proof are the acts to be proved?

·

can the trier of fact fairly assess the evidence in the context
    of the trial without undue distraction?

·

will the defence be able to fairly respond to the allegations in
    the context of the prosecution?

[45]

The
    next question considered is the prejudicial effect of the evidence.

(b)

Prejudicial effect

[46]

The
    prejudicial effect of the similar fact evidence must be considered in the
    context of all the evidence in the case, both Crown and defence evidence.
    Prejudice takes two forms. The first is
moral prejudice
, which may
    cause the jury to convict the accused not on the basis of the evidence but on
    the basis that he is a bad person who deserves to be punished. The second form
    of prejudice,
reasoning prejudice
, diverts the jury from its task and
    risks the jury giving the evidence more weight than it deserves. The authors of
McWilliams
suggest at p. 10-9 the following factors should be
    considered when addressing prejudice:

·

prejudice exists on a continuum  some evidence may be so
    repugnant that it raises real concerns about trial fairness, whereas other
    evidence may be at a lower level of prejudice;

·

the evidence must be considered in the context of all the
    evidence in the case; and

·

the prejudicial effect of the evidence does not necessarily
    diminish as its probative value increases.

(c)

Does the probative value outweigh the prejudicial effect?

[47]

The
    final step of the analysis requires an assessment of whether the probative
    value of the similar fact evidence outweighs its prejudicial effect. In
R.
    v. B. (C.R.)
, McLachlin J., as she then was, stated at p. 732: evidence
    of propensity, while generally inadmissible, may exceptionally be admitted
    where the probative value of the evidence in relation to an issue in question is
    so high that it displaces the heavy prejudice which will inevitably inure to
    the accused where evidence of prior immoral or illegal acts is presented to the
    jury.

[48]

Absent
    an error in principle, substantial deference should be given to the trial
    judges balancing of probative value versus prejudicial effect. This deference
    recognizes that the trial judge is best equipped to assess the impact of the
    evidence on the jury, in the context of the issues and evidence at trial. See:
Handy
at para. 153;
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at
    para. 73;
R. v. B (C.R.)
at p. 733.

2.

Application to this case

[49]

The
    Crown submits that the trial judge erred in excluding highly probative similar fact
    evidence of the respondents specific propensity to sexually assault female
    teenagers in their homes after school before the workday ends and parents
    return home. The evidence clearly links the respondent to such conduct in the
    case of S.P. It is clearly discreditable and prejudicial and it is clearly
    caught by the presumption that it is inadmissible unless the Crown discharges
    its burden of proving, on the balance of probabilities, that its probative
    value outweighs its prejudicial effect.

(a)

Probative Value

[50]

The
first question
in relation to probative value addresses the issue to
    which the similar fact evidence is directed. What is it intended to prove? The
    Crown argued that the similar fact evidence was directed to the
actus reus
.
    It would enable the jury to make the double inference: first, the inference
    that the respondent had a sexual attraction to young teenaged girls, a method
    of approaching them and gaining entry to their homes and a propensity to
    sexually assault them. Second, that this propensity gave rise to the further
    inference that he proceeded in that fashion with the complainant in this case.
    Thus, the evidence would be used to establish the
actus

reus
 that the appellant sexually assaulted K.A. Indirectly, it would support K.A.s
    credibility by confirming her evidence that the sexual assault occurred in the
    manner she described.

[51]

The
second question
is whether the evidence is tainted by collusion. There
    is no suggestion that it was and no evidence that it was. The two complainants
    were unknown to each other.

[52]

The
third question
concerns the similarities and dissimilarities between
    the events. Each complainant reported that the respondent followed her home
    after making some kind of connection with her, and gained entry to her house on
    a school day afternoon when her parents were out, presumably at work. He
    returned uninvited at a later date, talked or pushed his way into the house and
    once inside carried out a sexual assault.

[53]

The
    following similarities exist between K.A.s allegations and the evidence
    admitted at the respondents trial for the sexual assault of S.P.:

·

both girls were white and approximately the same age (14 and 15);

·

during their first personal encounter, the respondent approached
    both girls while they walked home from school, and either pushed or poked them
    in order to get their attention;

·

the respondent told both girls that he was a current student at
    their high school;

·

the respondent told both girls that he knew them  he told K.A.
    he knew her during their first encounter, and had told S.P. he knew her during
    their initial online and telephone contact;

·

the respondent walked both girls to their respective homes during
    their first encounter;

·

the respondent offered each girl something during their first
    encounter  he offered a DVD to K.A. and something else to S.P.;

·

he asked each girl for something in order to make his way inside
    their homes  he asked K.A. for water and S.P. if he could come inside for
    warmth;

·

at a later date, the respondent showed up uninvited at the home
    and attacked each girl while she was home alone;

·

the respondent removed his shoes on entering each home;

·

both attacks were in mid-afternoon, at approximately 2-3 p.m., a
    time when parents would be at work;

·

the respondent forcefully dragged or pulled both girls to
    different locations of the home where he carried out the assault;

·

the respondent undressed both girls;

·

the respondent sexually assaulted both girls through forced
    vaginal penetration;

·

the respondent instructed both girls to avoid looking at him
    during the sexual assaults; and

·

the respondent threatened both girls after the attacks.

[54]

There
    were some differences between the two sets of allegations:

·

there was online communication between the respondent and S.P.
    before their first meeting  she had given him her phone number and they had
    spoken on the phone and he had identified her address. There was no similar
    telephone or online contact between the respondent and K.A.;

·

when the respondent and S.P. reached her home, the respondent
    kissed her. He did not kiss K.A. during their first meeting;

·

the day after their first meeting, the respondent called S.P.
    asking if he could come over. He made no such call to K.A., though he did not
    have her telephone number;

·

the respondent returned to K.A.s home approximately two months
    after he was first there. He returned to S.P.s home the day after he was first
    there;

·

the day of the attack on S.P., the respondent attempted to read
    her a letter in which he professed his love for her. He had no such letter for
    K.A.;

·

the respondent forcibly digitally penetrated K.A. before vaginal
    penetration. He did not digitally penetrate S.P.;

·

S.P. recalled the use of a condom. K.A. did not know whether a
    condom was used or not;

·

the respondent contacted S.P. by telephone after the attack. He
    did not subsequently contact K.A.;

·

though the respondent threatened both girls, the nature of the
    threat differed. He warned S.P. not to speak to other guys and warned K.A. not
    to tell anyone about the sexual assault and threatened to get his boys after
    her; and

·

there was no gratuitous violence directed to S.P. after the
    sexual assault. After assaulting K.A., the respondent punched her twice on the
    left side of her chest and once or twice on the right arm.

[55]

The
    purpose of the analysis of the similarities and differences between the similar
    fact evidence and the acts that form the subject of the charge is to assess the
    strength or cogency of the evidence to support the desired inferences  its
    probative value.

[56]

In
R. v. B. (C.R.)
, McLachlin J. noted at p. 735 that, in considering
    whether to admit similar fact evidence, the trial judge must consider such
    factors as the degree of distinctiveness or uniqueness between the similar fact
    evidence and the offences alleged against the accused.

[57]

There
    are some obvious similarities and some equally obvious differences between the
    evidence of K.A. on the one hand and the evidence on which the respondent was
    convicted following the S.P. trial on the other hand. The similarities and
    differences are of varying degrees, ranging from the general to the specific.
    This is important, because as Binnie J. observed at para. 87 of
Handy,
[C]ogency
    increases as the fact situation moves further to the specific end of the
    spectrum. The more general the similarities, the less the cogency of the
    evidence in support of the inference and the greater the likelihood of
    coincidence.

[58]

Some
    of the similarities arise at a high level of generality. For example, the
    conversations and events leading up to the entry into each girls home are the
    kind of mundane activities that take place in routine interactions between
    young people after school on a daily basis. The appellants removal of his
    shoes is a common innocuous, even courteous, act.

[59]

There
    are two aspects of the similar fact evidence that reduce its cogency.

[60]

First,
    there is only one similar act  the attack on S.P. As Binnie J. noted in
Handy
,
    an alleged pattern of conduct may gain strength if it emerges from a number of
    similar instances. The likelihood of coincidence diminishes. By the same token,
    the cogency of the evidence is significantly reduced by only one instance of
    propensity. As this court observed in
R. v. J.M.
, 2010 ONCA 117 at
    para. 91, the cogency of evidence of similar acts may arise from the
    repetitive and predictable nature of an accuseds conduct in closely defined
    circumstances. While a single similar act may be admissible, depending on the
    circumstances, it may have less cogency than a series of acts.

[61]

I
    compare this case to the facts in this courts decision in
R. v. Whitehead
,
    [2004] O.J. No. 4030, 190 O.A.C. 264. There, the appellant was charged with
    sexual assault, unlawful confinement and uttering a death threat. The
    complainant testified that she had admitted the appellant to her home to
    service a computer. After the work was done, he grabbed her from behind and
    told her he had a knife and would cut her if she struggled. He then dragged her
    to her bed and raped her.

[62]

Twelve
    years earlier the appellant had pleaded guilty to four counts of sexual assault
    with a weapon and one count of attempted sexual assault with a weapon. Three of
    the victims of the prior offences testified at his trial. The court noted that
    the similarities between the similar acts and the subject charges arose from
    the appellants
modus operandi
: a legitimate pretext to gain entry to
    the victims home; a sneak attack from behind; the use of a knife; and the use
    of a threat of physical harm with the knife. Armstrong J.A. described the
    similar fact evidence as relevant and compelling.

[63]

The
    cogency in that case arose from the nature of the similarities and the number
    of occurrences. Here, there is only one previous event.

[64]

The
    second reason why cogency is reduced in this case is that, while there are
    similarities between the two events, as I have noted, many occur at a high
    level of generality. In
Handy
, at para. 127, Binnie J. observed that [s]exual
    activity may not show much diversity or distinctiveness. Not every
    dissimilarity is fatal, but  substantial dissimilarities may dilute probative
    strength and, by compounding the confusion and distraction, aggravate
    prejudice. Even the nature of the descriptions of the sexual acts, but for one
    distinguishing feature, are at a level of generality  taking the victim to
    another room, removing her clothes, forced sexual acts. The more specific
    similarity relates to S.P.s evidence that the respondent told her to close her
    eyes and K.A.s evidence that the respondent told her not to look at him and
    then covered her face with a pillow. This similarity, if established, has a
    higher level of cogency and reduces the possibility of coincidence. However, it
    must be considered in the context of the cogency of all the other evidence to
    determine whether the inference is made out.

[65]

That
    being said, as this court observed in
J.M.
at para. 11, the underlying
    unity between the similar acts and the offence at issue need not lie in the
    distinctive nature of the acts themselves but may reside in the circumstances
    in which those acts occurred. Here, broadly speaking, the unity lies in the
    timing of the two encounters, the development of familiarity with the
    complainant and the method of gaining entry to the home.

[66]

The
fourth question
considers the strength of the evidence of the similar
    acts, the manner in which they will be proven, the effect of the evidence on
    the trier of fact and the ability of the accused to respond.

[67]

This
    question really asks whether the proposed similar fact evidence is capable of
    supporting the inferences sought by the Crown. Here, the Crown proposed to call
    S.P. as a witness and to adduce her evidence from the witness box. It did not
    propose to introduce evidence of the respondents conviction. The evidence that
    she was assaulted in the manner she described was obviously strong, in light of
    the respondents conviction.

(b)

Prejudicial Effect

[68]

In
    my view, there was a risk of both moral prejudice and reasoning prejudice through
    the introduction of the similar fact evidence. As to moral prejudice, the jury
    might well conclude, as a result of the evidence of S.P., that the respondent
    was a bad person who deserved to be punished. Or, not knowing the outcome of
    the S.P. allegations, they might conclude that he was guilty of those
    allegations and he ought to be punished for at least one of the incidents.

[69]

The
    risk of reasoning prejudice also existed. The respondents conviction for the
    assault on S.P. followed a contested trial, although he did not testify. If he
    did not admit the sexual assault of S.P., the jury would be called on to decide
    whether the attack actually occurred. There was a real risk that the jury could
    convict the respondent based on melding the evidence of the two incidents  using
    the K.A. incident, the very fact at issue, to find a pattern or propensity.
    Alternatively, the jury might conclude that if they were satisfied beyond a
    reasonable doubt that the respondent sexually assaulted S.P., they could also
    be satisfied that he sexually assaulted K.A.

[70]

There
    is a risk of another form of reasoning prejudice in this case. There was only
    one prior incident and many of the similarities in the underlying facts were
    generic. This was not strongly suggestive of a situation-specific propensity to
    sexually assault young women. But there was a real risk that the jury would
    give the evidence more weight than it deserved because of the repugnant nature
    of the similar fact evidence.

(c)

Does the probative value
    outweigh the prejudicial effect?

[71]

Before
    engaging in the balancing exercise, it is appropriate to remind ourselves that
    by reason of its prejudicial effect propensity evidence is
presumptively inadmissible
and it is admitted
only
where its probative value in relation to the issue
    is
so high
that it displaces the heavy prejudice
    that
inevitably
arises when it is put before the
    jury.

[72]

It
    is also necessary to conduct the balancing exercise  probative value balanced
    against prejudicial effect  in the context of all the evidence in the case. The
    Crowns case depended entirely on the credibility of the complainant.

[73]

While
    similar fact evidence may tip the scales past a reasonable doubt and in favour
    of conviction, the risk in this case was clearly that it would do so not on its
    own strength but by painting the respondent as a bad person and distracting the
    jury from the other evidence on the charges before them.

[74]

In
    my view, the cogency of the similar fact evidence is relatively low. First, the
    existence of only one set of similar acts does not establish a pattern.
    Second, most of the similarities arise at a high level of generality. There is,
    on the other hand, a real risk of prejudice. The appellant, a 21-year-old man,
    was charged with sexually assaulting a young and vulnerable teenaged girl, in
    her home. Evidence of the prior sexual assault would run a risk of inflaming
    the jury, causing them to give the similar fact evidence more weight than it
    deserved, diverting them from the evidence on the charge in issue, and judging
    the appellant on a blending of the evidence of S.P. and the evidence of K.A.

(d)

Conclusion

[75]

The
    trial judge identified the correct test, made no error in principle in its
    application, and was in the best position to assess the nature of the similar fact
    evidence and its impact on the jury. I agree that the risk of prejudice
    associated with the similar fact evidence outweighed its probative value. I
    would not give effect to this ground of appeal.

B.

The Sufficiency of Reasons

[76]

I
    turn to the second ground of appeal: the sufficiency of the judges reasons for
    excluding the similar fact evidence.

[77]

The
    Crown acknowledged that this was a subsidiary ground of appeal. He submitted
    that if we found legal error in the trial judges similar fact analysis we
    could conduct our own analysis and find that the probative value of the similar
    fact evidence outweighs its prejudicial effect. In that event, he submitted, we
    should order a new trial because the judges error might reasonably be
    thought, in the concrete reality of the case at hand, to have had a material
    bearing on the acquittal:
R. v. Graveline
, 2006 SCC 16, [2006] 1 SCR
    609, at para. 14.

[78]

Reasons
    serve three purposes: to explain to the losing party why they have lost; to
    satisfy the public that justice has been done  or not done; and to permit
    meaningful appellate review:
R. v. Sheppard
, 2002 SCC 26, [2002] 1
    S.C.R. 869, at paras. 24-25;
R. v. Kendall
(2005), 75 O.R. (3d) 565
    (C.A.), at para. 38.

[79]

The
    issue here is whether the reasons permit appellate review. As Binnie J.
    observed in
Sheppard
, if deficiencies in the reasons in a particular
    case do not foreclose meaningful appellate review, but on the contrary allow
    for its full exercise, the deficiency will not justify interference under s.
    686 of the
Code
.

[80]

In
    my view, this is such a case. Notwithstanding the brevity of the reasons, there
    was full argument of the issue before us, based on a record that was not in
    dispute. The brevity of the reasons was not an impediment to our review. It is
    clear from the trial judges reasons that he applied the correct test and
    simply concluded that the prejudicial effect of the similar fact evidence
    exceeded its probative value.

[81]

For
    these reasons, I would dismiss this ground of appeal.

C.

The Instruction on Consent

[82]

The
    age of consent was raised from 14 to 16 in 2008. K.A. was 15 at the time of the
    alleged assault by the respondent in 2009 and therefore incapable of
    consenting.

[83]

The
    trial judges instruction on the sexual assault charge failed to explain that
    K.A.s consent was not a defence because she was incapable of providing legal
    consent. In fact, the trial judge compounded the error by instructing the jury
    that they must be satisfied beyond a reasonable doubt that the complainant did
    not consent to the force applied.

[84]

The
    Crown asserts that these errors are important because the jury may have
    concluded that K.A. engaged in consensual sexual touching, thereby leading to
    the respondents acquittal.

[85]

While
    the respondent concedes that the trial judge erred, he submits that there was
    no substantial wrong. I agree.

[86]

There
    are several reasons, but the principal one is that the jury acquitted the
    respondent on the sexual interference count, on which it was properly
    instructed. The sexual interference count was particularized: that the
    respondent did for a sexual purpose touch K.A., a person under the age of
    sixteen years directly with a part of his body, to wit: his penis. The jury
    was instructed that it did not matter whether the complainant consented to the
    sexual touching.

[87]

During
    deliberations, the jury asked whether they had to find that the respondents
    penis touched the complainant in order to convict the respondent of sexual
    interference. The trial judge answered their question by explaining that the
    charge was particularized in that way and that in order to convict on that
    count they had to find as a fact that the respondent had touched the
    complainant for a sexual purpose with his penis.

[88]

The
    trial judge also repeated the instruction in his charge on the sexual
    interference count that the jury must find as a fact that that the complainant
    was under 16 at the time of the alleged offence. In his original instruction,
    the trial judge told the jury that it did not matter whether the complainant
    consented to the touching.

[89]

It
    is not disputed that the jury was properly instructed on the sexual
    interference and the common assault counts. In acquitting the respondent on the
    sexual interference count, the jury must have had reasonable doubt about
    whether the respondent touched the complainant with his penis. The acquittal on
    the common assault charge indicates similar concerns with other aspects of the
    complainants evidence.

[90]

As
    I have indicated earlier, the jury clearly had concerns about whether any kind
    of attack, sexual or otherwise, occurred. While the respondent admitted kissing
    the complainant on the breast, the indictment referred only to touching with
    the penis. The Crown in its closing said that on the respondents own evidence
    he was guilty of sexual assault because the complainant could not consent to a
    kiss on the breast. The Crown continued, But like I said were not advocating.
    Our theory is that a violent sexual assault occurred; a violent rape that is
    corroborated by evidence, ladies and gentlemen. This, in my view, explains the
    jurys acquittal on the sexual assault count.

[91]

The
    Crown acknowledges that, given the jurys acquittal on the sexual interference
    count, it would not seek a new trial if the appeal is not allowed on the
    similar fact ground. This was an appropriate concession. In the circumstances,
    the  failure to properly instruct the jury on the issue of consent caused no
    substantial wrong.


v.

disposition

[92]

For
    these reasons, I would dismiss the appeal.

G.R. Strathy C.J.O.

I agree G. Pardu J.A.


Gillese J.A. (Dissenting):

[93]

I
    have had the privilege and advantage of reading the reasons of Strathy C.J.O.
    Respectfully, I do not agree that the trial judges reasons are adequate. In
    his reasons, the trial judge stated that he was dismissing the similar fact
    application (the Application) and that detailed reasons would follow. No
    further reasons were ever provided. Those that were given fail to explain why
    he dismissed the Application. Thus, the reasons are inadequate and not entitled
    to deference. The Crown has satisfied me that the verdict would not necessarily
    have been the same had the Application been granted and that there is merit to
    the Application. Consequently, in my view, the appeal should be allowed and a
    new trial ordered on all counts. I would leave it to the new trial judge to
    hear and decide the Application.

[94]

I
    need make only brief comments on the jurys acquittal on the sexual assault
    count. It cannot stand. I begin by noting that unlike the sexual interference
    count, the sexual assault count was not particularized.

[95]

The
    complainant, K.A., was 15 years of age at the time of the incident while the
    respondent was 21. The respondent admitted during cross-examination that he
    responded to the complainants alleged sexual advances by kissing her mouth,
    neck and breast. (The DNA testing confirmed that the respondents saliva was
    found on the complainants breast.)

[96]

Section
    150.1(1) of the
Criminal Code
provides that it is not a defence that
    the complainant consented to the activity that forms the subject-matter of the
    charge where the complainant is under the age of 16 years. Section 150.1(2.1)
    sets out certain exceptions where a complainant is 14 years of age or more but
    under the age of 16. As the respondent is more than five years older than the
    complainant and not married to her, the exceptions do not apply.
[2]


[97]

Section
    150.1(4) provides that an accuseds belief that the complainant was 16 years of
    age or more at the time the offence was alleged to be committed is not a
    defence unless the accused took all reasonable steps to ascertain the age of
    the complainant. The respondent testified that he did not ask K.A. how old she
    was nor did he advance a defence at trial that he had taken reasonable steps to
    ascertain her age.

[98]

As
    both parties acknowledge, the trial judge failed to instruct the jury that
    because the complainant was under the age of 16, she could not legally consent
    to sexual touching. This was an error. The trial judge further erred by
    instructing the jury that they were to acquit the respondent if his testimony were
    believed. In light of these errors and the respondents admissions, the jurys
    acquittal on the sexual assault charge must be set aside.

THE REASONS ARE INADEQUATE

[99]

The
    object of reasons is to tell the parties not only what the trial judge decided
    but also why he or she made that decision. What is required is a logical
    connection between the what and the why so that the foundation of the
    decision is discernible: see
R. v. Morrissey
(1995), 22 O.R. (3d) 514
    (C.A.), at p. 525; quoted with approval in
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17.
In my view,
    the trial judges reasons say what was decided  namely, that the Application
    was dismissed  but they do not say why he decided it that way. Further, the
    foundation of his decision is not discernible.

[100]

The trial
    judges reasons for dismissing the Application consist of a total of four
    paragraphs. For ease of reference, the reasons, in their entirety, are set out
    below.

I will now provide my brief reasons with
    respect to the Crowns application in respect of similar fact evidence. The
    Crown has brought an application to adduce evidence of prior discreditable
    conduct by the accused.

The accused was
    convicted by Justice Miller of the offence of sexual assault upon a young
    woman, as outlined in her reasons for judgment of July 19th, 2011. The Crown
    seeks to adduce evidence from the victim of that sexual assault for the stated
    purpose of corroborating the testimony of the complainant in this matter and to
    establish the accuseds specific propensity towards teenage females and to
    rebut any potential defence of innocent association or accident.

With detailed
    reasons to follow, I have determined the result of this application and I have
    concluded that it must be dismissed. In reaching this conclusion I have
    examined the purpose for which the proposed evidence is to be used, its
    probative value, including similarities and dissimilarities to the evidence to
    be offered in this case and its strengths in terms of proving matters at stake
    in the trial. I have also considered the prejudicial effect of the proposed
    evidence in terms of determining whether the evidence might be improperly and
    unfairly used by the jury. In considering the prejudicial effect I have
    examined the evidence in terms of how discreditable it is, the extent to which
    it may support an inference of guilt based solely on bad character, the extent
    to which it may confuse issues and the accused's ability to respond to it.

Having weighed
    the probative value and the prejudicial effect of the proposed evidence, I have
    concluded that the prejudicial effect exceeds the probative value, and as such,
    the Crown's application to introduce the proposed evidence is dismissed.

[101]

The first
    paragraph of the reasons does nothing more than state that the Crown brought a
    similar fact application.

[102]

In the second
    paragraph, the trial judge briefly notes the nature of the proposed evidence
    and the purposes for which the Crown brought the Application.

[103]

In the third
    paragraph, the trial judge says that detailed reasons will follow and that he
    has concluded the Application should be dismissed. He then states some of the
    general legal principles that are to be used when assessing the probative value
    of the proposed evidence and the prejudice that could flow from admitting it.

[104]

In the fourth
    paragraph, the trial judge simply repeats his conclusion that the Application
    should be dismissed.

[105]

The
    respondent rightly notes that the adequacy of reasons must not be measured
    based on their length. However, it is not the mere brevity of the trial judges
    reasons that leads me to conclude that they are inadequate. Although the
    reasons refer to some of the applicable legal principles, they are devoid of
    substantive analysis. They make no reference to the evidence. They give no
    indication as to what the trial judge considered to be the similarities and
    dissimilarities between the proposed evidence and the evidence to be led in the
    case before him. The reasons do not explain how he viewed the probative value
    of the proposed evidence or give reasons for that view. And, while the trial
    judge states that he considered that admission of the proposed evidence would
    be prejudicial, his reasons do no more than set out some of the legal
    principles that apply when considering prejudice: they do not tell us what
    prejudice to this accused the trial judge thought might ensue from admission of
    the proposed evidence. Finally, the reasons do not explain why the trial judge
    concluded that
the prejudicial value of the proposed evidence
    exceeded its probative value.

[106]

In
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28, Binnie
    J., writing for the court, says that reasons are inadequate when the appellate
    court is unable to determine the correctness of the trial decision. These
    reasons do not permit me to determine the correctness of the trial judges
    decision on the Application.
Indeed
, the trial judge
    himself appears to have recognized that more detailed reasons were necessary to
    properly dispose of the Application because he promised that they would follow.
    However,
the promised reasons were never provided. I
t
    may be that oversight, in failing to provide the promised detailed reasons,
    explains the deficiencies in the reasons.

[107]

In assessing the adequacy of reasons, I am to read the reasons as
a
    whole and within the context in which the trial judge made his decision. In
    this case, the Application was heard at the outset of trial, before any
    evidence had been called. No oral evidence was called on the
voir dire
.
    The trial judge had the Crown application, which included both a summary of the
    prospective evidence in this case and of the facts which underlay the sexual
    assault for which the respondent had been convicted. He also had the
    respondents factum on the Application and books of authorities from both
    parties. As well, the trial judge had the relevant trial and video evidence
    transcripts relating to the prior conviction, plus the reasons for conviction.
    Both sides made oral submissions on the Application. The Crown made it clear
    that she sought to introduce the oral evidence of the victim of the sexual
    assault for which the respondent had been convicted but not evidence of the
    conviction itself.

[108]

To
    the extent that the record illuminates the reasons, the interjections of the
    trial judge during the Application hearing suggest that
he
    misapprehended certain of the applicable legal principles and that the
    misapprehensions informed his decision on the Application.

[109]

During the Crowns submissions on the Application, the trial judge
    expressed concern that a high degree of similarity between the proposed
    evidence and that which would be given by the complainant would enhance the
prejudicial
value of the proposed evidence, militating against its admission.
    He asked the Crown:

[A]re there any cases that say where the
    similarities are so  or may be considered as high in terms of their level that
    that can be a militating factor taking away from the ability of the Crown to
    use it because that triggers the moral prejudice and reasoning prejudice
    thought process?

[110]

This concern was misguided because the high degree of similarity
    enhanced the
probative
value of the proposed
    evidence. As Binnie J. explained in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 48, the more similar
the
    facts in the proposed evidence are to the allegations underlying the charges
    (i.e., the more situation specific), the more cogent is the proposed evidences
    probative value.

[111]

Further, the trial judge appears to have a misplaced concern about
    the respondents right to respond to the proposed evidence, given that he had
    been convicted of the offences against S.P. The trial judge asked the Crown:

[H]ow do you suggest that the evidence of
    [S.P.] would be dealt with in the context of the fact she  theres a
    conviction already in place with respect to [the respondent] so that
    effectively no evidence to the contrary of [S.P.] could be led.

[112]

I begin by noting that the Crown did not propose to lead evidence of
    the conviction registered against the respondent. Further, as the Crown
    indicated in response to the trial judge, the respondent was free to
    cross-examine S.P. Finally and very significantly,
while the fact of the
    conviction would undoubtedly have made it harder for the respondent to
    challenge S.P., that does not mean that admission of the proposed evidence
    rendered the trial unfair. Moldaver J., writing for the majority in
R. v.
    Jesse
, 2012 SCC 21, [2012] 1 S.C.R. 716, at para.
52,
    explains:

[A] prior conviction constitutes
    strong proof that the similar act conduct in question occurred. In that sense,
    it has greater probative value than an unproven allegation. While a conviction
    may be harder to respond to than an unproven allegation, that does not make the
    conviction inadmissible. Just because a piece of evidence operates unfortunately
    for an accused does not of itself render the evidence inadmissible or the trial
    unfair. [Citations excluded.]

[113]

To conclude, the
    trial judges reasons do not permit me, on appellate review, to discern why he
    found that the prejudicial value of the proposed evidence exceeded its
    probative value and whether his findings and reasoning were sound. The reasons
    are, therefore, inadequate and the trial judges decision to exclude the
    similar fact evidence is not entitled to deference.

THE VERDICT WOULD NOT NECESSARILY HAVE BEEN THE SAME

[114]

A new trial is
    the normal result of a successful appeal on the basis of insufficient reasons:
R.
    v. Garciacruz
, 2015 ONCA 27, 320 C.C.C. (3d) 414. However, on an appeal by
    the Crown from an acquittal, the Crown is also required to satisfy the court
    that the verdict would not necessarily have been the same had the error not
    occurred:
R. v. Graveline
, 2006 SCC 16, [2006] 1 SCR 609, at paras.
    14-16.  I am satisfied that a trial judge applying the relevant legal
    principles to the evidentiary record could well have admitted the similar fact
    evidence.  Had that evidence been admitted, the verdict would not necessarily
    have been the same.

[115]

Unfortunately,
    the insufficiency of the trial judges reasons renders the foundation of his
    decision not discernible and has foreclosed proper appellate review. In the
    circumstances, I would order a new trial and leave it to the new trial judge to
    hear and decide the Application. Accordingly, I will offer only brief reasons
    to show why there is merit to the Application. The facts and applicable legal
    principles are thoroughly set out in the reasons of the majority and need not
    be repeated.

[116]

I address first
    the probative value of the evidence.

[117]

The sexual
    assault against S.P. took place on February 12, 2008. The incident involving
    K.A. was relatively proximate in time. It took place on July 3, 2009,
    approximately 16 months after the incident involving S.P. There were no
    intervening events between the two incidents that undermined the proposed
    evidences probative value. Identity was never in issue and there was no
    suggestion of any collusion or collaboration between K.A. and S.P. Indeed,
    defence counsel expressly clarified that collusion was not in issue.

[118]

The proposed
    evidence bore materially on the central issue of whether K.A.s account of
    events was true. The respondent had been convicted of sexually assaulting S.P.,
    after a trial on the merits. A prior conviction constitutes strong proof that
    the similar act conduct occurred and has greater probative value than an
    unproven allegation:
Jesse
, at para. 52.

[119]

In
R. v.
    Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 52, Binnie J., writing
    for the majority, states that the similarities between the alleged offence and
    the proposed evidence lay not in the physical sexual acts themselves but in
    the
modus operandi
employed by the accused to create sexual
    opportunities.

[120]

That statement
    applies equally in the present case. While there are some similarities between
    the assaultive behaviour against S.P. and that which K.A. alleged took place,
    in my view, the real similarities lie in the time of day, location and manner
    in which the respondent first physically approached K.A. and S.P., and the
    design by which he worked his way into their homes. The similarities reveal a
    strategy for finding young women who were home, alone, in the hours after
    school let out and before the normal work day was over and, using a pretext,
    returning on a later date during that same time frame and gaining entry into
    their homes.

[121]

S.P. and K.A.
    lived within walking distance of the high schools which they attended. Those
    high schools were in the same neighborhood, adjacent to one another. The
    respondent approached each of S.P. and K.A. as they walked home from school. He
    accompanied them as they walked home and thus knew where they lived. He told
    them that he went to Fletchers Meadow high school, one of the high schools in
    question. He told them other things that would make them believe that he was a
    fellow student and let down their guards.  He told one that he had seen her
    playing basketball at school.  He told the other that he had seen her around
    school and knew friends of hers, whom he referred to by name. In the first
    encounter between the respondent and each of S.P. and K.A., on reaching their
    homes, the respondent engaged them in conversation for a period of time
    sufficient to allow him to have a good sense of whether anyone else was home at
    that time of day. The time in question was approximately 3pm, when working
    parents are often not at home. He offered each of K.A. and S.P. something in
    the first encounter, thereby creating an excuse for him to return to their
    homes. The respondent returned to each of their homes, uninvited, at
    approximately the same time of day (i.e. when no one else was likely to be
    present).

[122]

There
are dissimilarities in the circumstances surrounding the
    offences, however. For example, S.P. met and engaged with the respondent
    online before their first in-person encounter, while K.A. had no such
    interactions. Further, there is but one similar fact incident. These factors
    reduce the proposed evidences probative value.

[123]

In terms of
    prejudice, I see little risk of reasoning prejudice. Admission of the proposed
    evidence is not likely to distract the jury from their proper focus on the
    charge itself. Distraction takes many forms, including the consumption of the
    jurys time in dealing with allegations of multiple incidents involving two
    victims in divergent circumstances:
Handy
, at para. 144. Here, there
    was only a single similar fact incident for the jury to consider, which reduced
    the chance that the jury would be distracted from their proper focus.

[124]

Distraction can
    also arise from the courts need to avoid unfairness to the right of the
    accused to respond to the proposed evidence:
Handy
, at para. 146.
    However, as I have explained, this concern is lessened because the respondent
    was convicted of the offences against S.P. While the fact of the conviction
    would undoubtedly have made it harder for the respondent to challenge S.P.,
    that does not render the proposed evidence inadmissible or the trial unfair:
Jesse
,
    at para. 52.

[125]

As for moral
    prejudice, the conviction is not conduct of a more morally repugnant nature than
    that for which the respondent stood trial.  It is essentially the same
    conduct.  Nonetheless, admission of the proposed evidence does raise the
    spectre of moral prejudice. Although the Crown sought to have the proposed
    evidence admitted to show a specific propensity on the respondents part, there
    is no question that it could lead to impermissible disposition reasoning  i.e.
    that the respondent must be guilty of the charges in respect of K.A. because he
    had been convicted of sexual assault against S.P. However, a strict limiting
    instruction might well have contained this type of possible prejudice.

[126]

In the end, I am
    satisfied that the similar fact evidence could have been admitted and, if
    admitted, the verdicts would not necessarily have been the same.

DISPOSITION

[127]

For these
    reasons, I would allow the appeal and order a new trial on all counts.

Released: GRS August 31, 2016

E.E.
    Gillese J.A.





[1]

These facts have been edited to remove identifying
    information.



[2]

At the time the appellant was charged, s. 150.1(2.1) allowed
    for a defence of consent where the accused was married to the complainant.  As
    the accused was not married to the complainant in this case, this provision is
    not relevant.  For the sake of completeness, however, I would note that an
    amendment to s. 150.1(2.1) repealing the marriage exception came into force on
    July 17, 2015.  A transitional exception was added as s. 150(2.3) providing
    that if, on the day before the amendment came into force, the accused
referred
    to in subsection (2.1) is married to the complainant, it is a defence that the
    complainant consented to the activity that forms the subject-matter of the
    charge.


