



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. J.C., 2021 ONCA 787

DATE: 20211105

DOCKET: C66566

Fairburn A.C.J.O., Doherty and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.C.

Appellant

Mark Sandler and Wayne Cunningham, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: April 15, 2021 by video conference

On appeal from the convictions entered by Justice Paul R.
    Sweeny of the Superior Court of Justice, sitting with a jury, on December 18,
    2018.

Fairburn A.C.J.O.:

A.

Overview

[1]

The appellants and complainants families had a very close bond. They
    travelled together and spent a great deal of time with one another. The
    appellant is not related to the complainants, but they viewed one another as
    family.

[2]

The two complainants are brothers, about two years apart in age. K.M. was born in 1995 and C.M. was born in 1993. In 2016, K.M. and C.M. disclosed to the police that they had been repeatedly sexually assaulted by the appellant over about a five-year period, ranging from 2006 to 2011. The appellant was charged with one count of sexual assault, one count of sexual interference, and one count of invitation to sexual touching with respect to K.M.; and a second count of sexual assault with respect to C.M.

[3]

In the fall of 2018, shortly before the appellants trial started, the
    appellants nephew C.Y., who was born in 1999, also alleged that he had been
    sexually assaulted by the appellant over a lengthy period of time, ranging from
    about 2007 to 2013. The Crown successfully brought a pre-trial application to
    admit C.Y.s similar act evidence.

[4]

The appellant testified at trial. While he admitted that he had engaged
    in awful, embarrassing[, and] shameful sexualized communications with K.M.,
    he denied that he ever committed the assaults being alleged. Therefore, as the
    trial judge put it in his charge to the jury, The real issue in this case
    [was] whether the events alleged to form the basis of the crime(s) charged ever
    took place.

[5]

Ultimately, the jury found the appellant guilty of all three counts related
    to K.M. and found the appellant not guilty of the one count related to C.M.

[6]

The appellant appeals his convictions. This appeal requires the court to
    answer the following four questions:

(1
)   Did the trial judge err in allowing C.Y. to testify as
    a similar act witness?

(2)   Did
    the trial judge err in permitting the jury to consider cross-count similar act evidence
    as between K.M. and C.M.?

(3)   Did
    the trial judge err in failing to instruct the jury on the prohibited use of
    bad character evidence arising from the Facebook communications between K.M.
    and the appellant?

(4)   Did
    the trial judge err in refusing to permit a challenge for cause during the jury
    selection process?

[7]

The answer to each of these questions is no.

B.

Brief Background: The Charges

(1)

C.M.: Sexual Assault,
from
September
    1, 2006 to June 30, 2010

[8]

C.M. was born in 1993. He is K.M.s older brother. He alleged that the
    appellant touched him inappropriately between about 2006 and 2010, when he was
    in grades 8 through 11. He alleged that the appellant had kissed him on the
    cheeks and hugged him prior to 2006, but that the appellants actions then progressed
    to touching C.M.s buttocks (described as a grab and lift), kissing his lips,
    and touching his genital area over and later under his clothes.

[9]

C.M. testified about five specific incidents involving the touching of his
    genitals and buttocks over and under his clothes. He said that someone was either
    present on the premises or close by when each touching occurred. He also
    testified that the appellant would make sexualized jokes as he touched C.M.s
    testicles, such as commenting on whether C.M.s pubic hair was groomed or
    ungroomed; asking C.M., How is it hanging?; commenting that C.M.s testicles
    were hanging like a little to the left; and questioning whether C.M. was
    circumcised. The appellant also shared with C.M. that he would trim his own
    pubic hair while sitting on the side of the bathtub.

[10]

C.M.
    testified that, at the time that the acts were taking place, he did not
    consider the touching to be sexual in nature. Indeed, he agreed during
    cross-examination that he perceived the touching to be a joke. The jury was
    instructed to take C.M.s perceptions about the acts into account when
    determining whether the touching occurred in circumstances of a sexual nature. The
    jury found the appellant not guilty of the single count of sexual assault.

(2)

K.M.: Sexual Assault, Sexual
    Interference, and Invitation to Sexual Touching,
from
March
    1, 2010 to March 31, 2011

[11]

K.M.
    was born in 1995. He is a couple years younger than C.M.

[12]

K.M.
    testified that the appellant started hugging him and kissing him on the cheeks when
    he was in grade four or five. That conduct progressed to kissing on the lips,
    to bum taps, to bum grabbing during hugs, to the appellants hand wrapping
    around to  grab [K.M.s]  private area. K.M. testified that, because of the
    progression over time, it all became somewhat blurred. K.M. recalled numerous
    sexualized conversations with the appellant, including the appellant speaking
    about sexual matters involving his wife and sharing a sexual fantasy he had involving
    K.M.

[13]

Eventually
    the touching progressed to the appellants hands being under K.M.s clothes.
    Like C.M., K.M. testified that the appellant would make jokes while engaged in
    the touching, such as commenting upon K.M.s penis size, the shape of K.M.s genitals,
    and K.M.s romantic relationships and interests. K.M. testified that the
    behaviour became almost normal, that he became quite used to it.

[14]

After
    K.M. turned 14 years of age, the touching progressed to other activities. He
    testified about ten specific incidents that occurred in different locations,
    including at K.M.s home; at the appellants home, cottage, and Florida condominium;
    and at a rented
chalet in British Columbia
.

[15]

The
    first incident was at the appellants condominium in Florida, a trip that the two
    families took together in March of 2010. K.M. and one of the appellants
    children were in a bedroom when the appellant came in and started to tickle
    K.M. When K.M. fell between the bed and the wall, the appellant fondled him.
    K.M. recalls that he got an erection.

[16]

The
    appellants child was present for this tickling episode, yet he testified about
    seeing nothing inappropriate. And, as with all of the alleged incidents, the appellant
    denied that the fondling occurred.

[17]

Over
    the following nine incidents, the conduct progressed from fondling to mutual
    touching, mutual masturbation, and mutual oral sex. K.M. testified that he and
    the appellant would often ejaculate into tissues and then dispose of them.

[18]

K.M.
    testified that he knew or believed that at least one other person was nearby
    for all of the incidents, with the exception of one incident (a mutual
    masturbation that began in the appellants living room then moved upstairs to
    the appellants bedroom).

[19]

In
    March of 2011, when K.M. was 16 years of age and in grade 10, he participated
    in an academic exchange program. While abroad, K.M. and the appellant stayed in
    touch via Facebook communication. One day, after a conversation about the
    appellants sexual encounter with his wife, K.M. confronted the appellant
and asked if they could

stop doing
    stuff when he returned to Canada. The appellant agreed and said there would
    be no more talk about it:

Appellant:    hope you have as good a time in bed as i did!

haha

K.M.:           ahahah!

im sure!

what was going on this morning?

Appellant:    just a real good one last night with the
    [nickname for the appellants wife]

K.M.:           yeah!? i bet!

any more details?

what happened?

Appellant:    dangerous to share over the net but from one side
    of the bed to the other - making me ready again just thinking about it

K.M.:           what do you mean one side of the bed to the
    other? can you just expand a little? [winking emoticon]

Appellant:    different positions - up -down, sideways,
    standing etc yahoo

youre back - you in bed yet

K.M.:           sorry! ahah

and sweeet!


i need to tell you
    something also
!

Appellant:    go for itr

K.M.:
i know i shouldnt be
    saying this over net... but as you know! ive matured alot since ive been here!
    and learned many things! and one is that i shouldnt be doing stuff with you.
    So i wanted to say if it could stop, please. And if we could just [have a] normal
    [relationship]?


does that sound
    alright
?

Appellant:    sounds perfect !!

K.M.:
alright! great!


so when I come back we
    cant do it anymore


ok
?

Appellant:    ok, of course ,

K.M.:            ok! great !

thanks for understanding !

Appellant:    no more talk about it at all

[Emphasis added.]

[20]

A little over five
years after that Facebook communication,
    in the summer of 2016, K.M. reported the assaults to the police. He explained
    that his decision to disclose the allegations was triggered by two factors. First,
    he was in medical school. During a rotation in psychiatry, he was exposed to
    the serious effects of sexual abuse on children, at which point he knew that
    this was something that he wanted to finally address. Second, he was
    concerned that others may still be at risk.

C.

Analysis

(1)

Did the Trial Judge Err in Allowing C.Y. to Testify as a Similar Act Witness?

(a)

Overview

[21]

As
    his primary ground of appeal, the appellant raises concerns over the admission
    of extraneous similar act evidence, namely C.Y.s evidence.

[22]

I
    will start by summarizing C.Y.s
voir dire
evidence, followed by a
    discussion of the general framework for the admission of similar act evidence.
    I will then discuss each of the alleged errors as they pertain to the C.Y.
    similar act ruling.

(b)

C.Y.s
Voir Dire
Evidence

[23]

C.Y.
    was born in 1999. He is the appellants nephew by marriage. C.Y.s family and
    the appellants family were very close. Like the complainants
family, C.Y.s family saw the appellants family quite often: they
    travelled, socialized
, and attended cottages together.

[24]

After
    the appellant was charged in 2016, C.Y.s parents asked C.Y. and his sibling whether
    the appellant had ever done anything sexually inappropriate to them. They both
    denied that anything untoward had ever occurred.

[25]

Two
    years later, shortly before the appellants trial was set to commence, C.Y.
    disclosed to his parents that he had also been sexually assaulted by the
    appellant. C.Y. then disclosed to the police. Charges were laid.
[1]

[26]

As
    the impugned ruling rests on C.Y.s
voir dire
evidence, it is there
    that I focus my attention.

[27]

C.Y.
    claimed that he was touched by the appellant from about the ages of
7

to 15 years old. He testified about
    being groped by the appellant whenever the families got together. He further
    testified about four specific incidents that stuck out in his mind. They each occurred
    in different locations: at C.Y.s home; and at the appellants home, cottage,
    and Florida condominium.

[28]

C.Y.
    was not sure about the precise order of incidents. He explained that it was
    difficult to recall because they occurred so frequent[ly]. He knew that the
    Florida and cottage incidents were chronologically third and fourth but could
    not recall which of the other two incidents occurred first.

[29]

The
    first three incidents occurred temporally close together. C.Y. believes he was
    around ten years old during the first incident. C.Y. was seated on a couch in the
    piano room at the appellants home. The appellant entered, sat next to C.Y.,
    and touched C.Y.s genitals over his pants. C.Y. believes the conduct stopped
    when his sibling walked into the room. C.Y. does not remember thinking that the
    conduct was wrong.

[30]

The
    next incident was around the same time or maybe about one year later. This
    incident occurred in C.Y.s own home. The appellant and his family were over
    for dinner. C.Y. had retreated to his bedroom following dinner. The appellant
    entered C.Y.s room and touched C.Y.s genitals over his clothing. Their
    families remained downstairs during the incident.

[31]

The
    third incident occurred about one year later when C.Y. was around 11 years of
    age. C.Y. was alone in the appellants Florida condominium while everyone else
    was at the beach. The appellant walked in and suggested that C.Y. was
    masturbating, which C.Y. denied. The appellant then pinned him onto the bed,
    took off C.Y.s pants and underwear, and touched him on his genitals. C.Y.
    struggled and told the appellant to stop. The incident lasted about five
    minutes. C.Y. thinks the conduct stopped when someone walked into the condominium,
    but it is possible that the conduct just stopped on its own.

[32]

The
    final incident that C.Y. could recall occurred at the appellants cottage. C.Y.
    thought this happened when he was around 13 years of age. The appellant spoke
    to C.Y. about sexual experiences as they drove to the cottage, which made him
    uncomfortable because of the gap between [their] ages. C.Y. expected the
    appellants wife would be at the cottage when they arrived. She was not present
    upon arrival, but C.Y. knew that she would be
returning. While
    C.Y. and the appellant were still alone, the appellant pinned him
onto
    the couch, pulled C.Y.s pants and underwear off, and touched him on his
    genitals. C.Y. asked the appellant to stop. The incident lasted five to ten
    minutes. During the incident, the appellant was poking fun at the fact that
    [C.Y.] was growing pubic hair.

(c)

Applicable Legal Principles for
    Admitting Similar Act Evidence

[33]

Similar
    act evidence is presumptively inadmissible. This exclusionary rule is rooted in
    a general prohibition against the admission of bad character evidence. To rebut
    this presumption, the Crown must satisfy the court on a balance of
    probabilities that the probative value of the evidence in relation to a
    particular issue or issues at trial outweighs its prejudicial effect:
R. v.
Handy
,
    2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55;
R. v. R.C.
, 2020 ONCA
    159,

at para. 54.

[34]

Determining
    the admissibility of similar act evidence involves a three-step inquiry.

[35]

First,
    the court considers the probative value arising from the evidence. Probative
    value is derived from the objective improbability of coincidence that more
    than one person (acting independently) would coincidentally give the same type
    of evidence:
R. v. Norris
, 2020 ONCA 847, at para. 17, referring to
R.
    v. Arp
, [1998] 3 S.C.R. 339, at
    para.
48
;
Handy
, at paras.

76,
    110
;
and
R. v. Durant
,
2019 ONCA 74,
144 O.R. (3d)
    465
,
at
    para.

87. Despite
    the prejudicial quality of similar act evidence, its probative value will
    overtake that prejudice where it would be an affront to common sense to
    suggest that the similarities were due to coincidence:
Handy
, at para.
    41, citing
R. v. B. (C.R.)
,
[1990] 1 S.C.R.
    717,
at p. 751.

[36]

As a
    pre-condition to the assessment of probative value, the trial judge must consider
    whether there exist any alternative explanations for the evidence, such as
    whether it is tainted by collusion or otherwise. If this is the case, the
    foundation upon which the admissibility of similar act evidence rests  the
    objective improbability of coincidence  evaporates. Therefore, if there is an
    air of reality to the allegation of collusion, the Crown bears the onus of
    disproving collusion on a balance of probabilities:
Handy
, at paras.
    99, 104, and 112.

[37]

If
    the court is satisfied that the integrity of the similar act evidence has not been
    undermined by collusion, then the trial judge must calculate the probative
    value of that evidence. This is not a theoretical exercise. It must be
    understood in relation to the specific issue(s) at trial which the evidence is
    elicited to address:
Handy
,

at para. 69;
B. (C.R.)
, at
    p. 732. Determining the issue(s) to which the evidence relates is key to
    understanding the drivers of cogency in relation to the desired inferences:
Handy
,

at para. 78.

[38]

The
    court in
Handy
set out a helpful, non-exhaustive list of factors at
    para. 82, which assist in determining the cogency between the proffered similar
    act evidence and the circumstances set out in the charges: proximity in time, similarity
    in detail, number of occurrences, surrounding circumstances, distinctive
    features, intervening acts, and any other factors supporting or rebutting the
    underlying unity of the similar acts.

[39]

Second,
    the court considers the prejudice that would result from introducing the
    evidence into the trial. There are two aspects to this inquiry: moral prejudice
    and reasoning prejudice.

[40]

Both
    forms of prejudice may cause the trier of fact to stray from its proper focus. Moral
    prejudice arises from concerns that the trier of fact may decide a case based
    on the perceived bad character of the accused:
Handy
, at paras. 31,
    36;
R. v.
Lo
, 2020 ONCA 622, 393 C.C.C. (3d) 543, at para. 110.
    Reasoning prejudice considers whether the trier of fact may become confused by
    the multiplicity of incidents, and become distracted by the cumulative force of
    so many allegations:
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33,
    at para. 68. A further detrimental consequence flowing from reasoning prejudice
    is the potential lengthening of criminal trials.

[41]

In
    the final stage of the analysis, the court weighs the probative value of the
    evidence against its prejudicial effect. The trial judges decision to admit
    the evidence is entitled to substantial deference when it comes to where that
    balance lies:
Handy
, at para. 153; see also
Shearing
, at
    para. 73;
B. (C.R.)
,

at pp. 733, 739
.
This is so because trial judges are best positioned
    to consider the overall context of the trial, taking into account all factors
    in determining whether they should exercise their discretion in favour of
    admission.

[42]

The
    appellant argues that the trial judge erred in each of his three tasks: (1) he
    erroneously overestimated the probative value of the evidence; (2) he
    erroneously underestimated the prejudicial effect of the evidence; and (3) he
    failed in his balancing exercise.

[43]

Despite
    the very capable submissions advanced by the appellant, and as will become
    clear when addressing many of the objections on appeal, they largely distill
    into a request for this court to consider the matter afresh. It is not the role
    of this court to do so.

(d)

The Alleged Errors Relating to Probative Value

(i)

Collusion

[44]

As set
    out above, the existence of collusion will rebut the very foundation on which
    similar act evidence is predicated: the improbability of coincidence. The trial
    judge rejected the suggestion that C.Y.s evidence was tainted by collusion,
    finding that C.Y. had not spoken with either KM or CM in several years and
    that there was no evidence they had ever discussed the allegations.

[45]

The
    appellant argues that the trial judge misapprehended the defence position on
    this point. The appellant suggests that there was compelling support for a
    finding of collusion, not because C.Y. had colluded with the complainants to
    fabricate his allegations, but because C.Y.s parents spoke to him about the
    charges which inadvertently tainted his evidence.

[46]

As
    the appellant correctly notes, if a complainants allegations are shared with a
    purported similar act witness before that witness makes their accusation, then the
    similar act witnesss evidence may become tainted:
R. v. Dorsey
, 2012
    ONCA 185, 289 O.A.C. 118, at paras. 29-31.

[47]

While
    I accept that the evidence of a similar act witness can be inadvertently
    tainted through third-party discussions, I do not agree that the trial judge
    erred in his approach to this issue in this case.

[48]

The
    trial judge was factually right to note that the complainants and C.Y. had not
    spoken in several years. Therefore, C.Y.s parents were the only source of
    potential collusion or tainting. Yet this argument was not advanced before the
    trial judge. He cannot be faulted for failing to respond to arguments that were
    not made.

[49]

In
    any event, nothing in the record supports the suggestion that C.Y.s parents
    had tainted his evidence. For one thing, C.Y.s father testified, yet he was
    not asked about his knowledge of the allegations or what he told C.Y. about
    them.

[50]

As
    for C.Y., he was not asked at the
voir dire
if he had discussed the
    details of the sexual assaults with his family. When asked that question at the
    trial proper, C.Y. said that his parents told him what they knew about the
    charges, which he did not think was a whole lot. When his parents first
    approached him, shortly after the charges had been laid, C.Y. testified that he
    only knew that the complainants were boys. He only later came to learn that
    they were C.M. and K.M., whom he had met on previous occasions.

[51]

Therefore,
    if there was any inadvertent tainting by C.Y.s family (which is not at all evident
    on the
voir dire
evidence), it was not of the nature that would lead
    to a denial of admission of the evidence. There was nothing in the defence
    position that could not be handled through jury deliberations, assisted by a
    clear instruction:
Shearing
, at paras. 43-45;
Dorsey
, at
    para. 29. And, in fact, such an instruction was given in this case.

(ii)

The Issue(s) in Dispute

[52]

The
    appellant claims that the trial judge erred in how he described the issues which
    C.Y.s evidence was tendered to prove, which were, as he put it: (1) the
    complainants credibility; (2) addressing a defence of impossibility or the
    risk of discovery because others were alleged to be around at the time of the
    incidents; and (3) the existence of a propensity for a specific type of victim
    and grooming behaviour.

[53]

The
    appellant argues that the trial judge erred with respect to each of the
    identified issues in question.

[54]

First,
    the appellant contends that the trial judge erred when he described the
    complainants credibility as constituting one of the issues in question. The
    appellant argues that credibility cannot constitute a specific issue that
    overcomes the general exclusionary rule. In support of this position, the
    appellant relies upon
Handy
, at para. 115, where Binnie J. warned that
    defining the issue as the credibility of the complainant would require some
    refinement given that it is too broad a gateway for the admission of
    propensity evidence.

[55]

I
    agree that identifying the issue in question as one of credibility can risk
    admitting similar act evidence on the basis of nothing more than general disposition
    because [a]nything that blackens the character of an accused may, as a
    by-product, enhance the credibility of a complainant:
Handy
, at para.
    116.

[56]

Even
    so, that is not what happened here. While the trial judge spoke in brief
    compass about the complainants credibility, read contextually, the evidence
    was admitted, in part, to support the complainants versions as to the
actus
    reus
of the assaults. This was a live issue at trial  indeed, it was the only
    issue at trial  and there is nothing that precludes the admission of similar
    act evidence to prove that fact. This was an entirely appropriate purpose and
    the mere imprecision around describing the issue in dispute does not constitute
    reversible error:
Handy
, at para. 120;
Shearing
, at para. 46;
    and
R. v.
J.H.
, 2018 ONCA 245,

at para. 14.

[57]

Second,
    the appellant claims that the trial judge erred in concluding that C.Y.s
    evidence was capable of addressing the defence of impossibility or risk of
    discovery because others were alleged to be around at the time of the
    incidents. The appellant contends that only two of the four incidents described
    by C.Y. carried the risk of discovery, while almost every incident described by
    K.M. and C.M. had people close by or present during the alleged acts. Therefore,
    C.Y.s evidence is said to carry little probative value on this issue.

[58]

There
    is no error in the trial judges conclusion on this point.

[59]

In
    each of the incidents described by C.Y., there was a risk of discovery, in the
    sense that there was a person present or very close by or expected to arrive.
    For instance: (1) C.Y.s sibling was said to have walked into the piano room
    during the assault; (2) C.Y.s family and the appellants family were
    downstairs in C.Y.s home when the assault was said to have occurred in C.Y.s
    bedroom; (3) while C.Y. said that he and the appellant were initially alone
    during the Florida assault, C.Y. thought that someone walked into the
    condominium during the assault; and (4) while the appellants wife was
    unexpectedly absent from the cottage when C.Y. and the appellant arrived, C.Y.
    expected her to return.

[60]

Finally,
    the appellant claims that the trial judge misapprehended C.Y.s evidence and therefore
    erred in his conclusion that it was capable of demonstrating the appellants
    propensity for a specific type of victim and grooming behaviour. Unlike K.M.s
    evidence, which showed an escalation in conduct from fondling to mutual
    masturbation, oral sex, and ejaculation, the appellant says that C.Y. testified
    about forced sexual abuse. The differences between K.M.s and C.Y.s scenarios
    are said to be so profound as to rob the purported similar act evidence of any
    probative value.

[61]

I do
    not agree with this characterization of C.Y.s evidence. First, the trial judge
    did not misapprehend the nature of C.Y.s evidence. To the contrary, he
    specifically addressed the fact that the appellant was said to have applied
    physical force to C.Y., a factor that did not feature into either C.M.s or
    K.M.s evidence.

[62]

Even
    so, the trial judge specifically noted that C.Y.s evidence stretched well
    beyond the four incidents testified to, covering many other acts that were said
    to have occurred on each interaction [C.Y.] had with the [appellant], meaning
    that there was not necessarily physical force every time they interacted. Accordingly,
    with two exceptions, this brought C.Y.s evidence closer to that of C.M. and
    K.M. It is against that context that the trial judge concluded that the
    additional application of force on two occasions did not make the acts
    significantly different. It was open to the trial judge to come to that
    conclusion.

[63]

The
    fact that two acts involved physical force does not undermine the trial judges
    conclusion that C.Y.s evidence showed strong similarities between specific
    type[s] of victim[s] and grooming behaviour. In particular, C.Y.s evidence
    was capable of supporting the suggestion that the appellant would create
    opportunities for himself to be around young boys with whom he was in a
    familial relationship (C.Y.) or a familial-like relationship (K.M. and C.M.). As
    I will discuss further, C.Y.s evidence supported the inference that this was
    precisely the appellants
modus operandi
. All of the boys testified to
    similar experiences, including inappropriate sexual conversations. And,
    importantly, C.Y.s evidence clearly demonstrated an escalation in behaviour,
    with the cottage incident being the last and most serious one.

[64]

Accordingly,
    I do not accept that the trial judge erred in his determination of the issues
    in question.

(iii)

Similarities and Differences

[65]

The
    appellant also argues that there are flaws in the trial judges assessment of
    the similarities and differences among the accounts of C.Y. and the
    complainants.

[66]

First,
    the appellant focuses upon what are said to be extreme dissimilarities between
    C.Y.s and the complainants accounts, particularly as they relate to C.Y.
    being physically dominated by the appellant. In support of this proposition, the
    appellant points to the following paragraph in the trial judges reasons:

The respondent points out the difference in behaviour.
    Specifically, CY spoke of two occasions where physical force was being applied

the respondent pinning him down.
    The evidence that inappropriate behaviour occurred on each interaction CY had
    with the respondent I take to mean that physical force was not applied on all
    occasions. In any event, the additional application of force does not make the
    acts significantly different. There was no assertion of any physical injury as
    a result of the application of force.

[67]

The
    appellant claims that the trial judge erred in: (1) undervaluing what is said
    to be a strong difference arising from the fact that C.Y. testified about two acts
    involving the use of force yet K.M. testified about mutuality in conduct; (2)
    emphasizing the irrelevant fact that there was no physical injury accompanying
    the assaults on C.Y.; and (3) relying on the fact that physical force was not
    used on every occasion.

[68]

The
    appellant suggests that the trial judge further erred in using what is
    described as largely generic aspects of the alleged acts from which to draw
    similarities. For instance, the trial judge identified the similarities between
    the ages of C.Y. and the complainants, the locations of the assaults, the
    extended period of time over which the incidents occurred, and the close
    relationships between the appellant and each of the complainants and C.Y.

[69]

The
    trial judge approached this matter correctly. In
Shearing
, at para. 60,
    the court warned trial judges not to address similar act evidence applications in
    an excessively mechanical manner:

The judges task is not to add up similarities and
    dissimilarities and then, like an accountant, derive a net balance. At
    microscopic levels of detail, dissimilarities can always be exaggerated and
    multiplied. This may result in distortion
:
Litchfield
,

supra
.

At an excessively
    macroscopic level of generality, on the other hand, the drawing of similarities
    may be too facile.
Where to draw the balance is a matter
    of judgment
. [Emphasis
    added.]

[70]

Similarity
    does not necessarily have to lie in the precise physical acts themselves. Some
    can be more serious than others. Sometimes, the thread of similarity will lie
    in the perpetrators
modus operandi
.
    In the context of child sexual assaults, that
modus operandi

may
    well be reflected in the very creation of
sexual opportunities and
    the progression over time toward more serious acts:
Shearing
, at para.
    52;
R.C.
, at para. 62.

[71]

While
    the trial judge did not express himself exactly in this way, that is the effect
    of the similarities he found. He was entitled to find C.Y.s evidence as
    similar to the complainants evidence and to discount the force applied to C.Y.
    on two of those occasions. I agree with the respondent that the distinction is
    not meaningful as between a young boy having his genitals touched while being hugged
    versus being pinned down.

[72]

All three boys
shared similar stories from the perspective of
    the appellants alleged
modus operandi
: connecting
with
    young boys
with whom he shared a close familial or quasi-familial
    relationship and exploiting that relationship in a way that carried some
    particular characteristics. These characteristics included
: starting
with touching over clothing and progressing from there; making sexual
    comments in connection with the touching; doing the touching in the presence of
    others, or at least close by, so there is a risk of discovery; and committing
    these acts with young boys who were part of the family or in a family-like
    relationship.

(iv)

The Strength of the Similar Act Evidence in Light of Delay

[73]

The
    appellant objects to the trial judges finding that C.Y.s delay in reporting
    had no impact on the probative value of the evidence.

[74]

The
    appellant says that the trial judge misapprehended the defence position. The
    defence was not suggesting that C.Y.s credibility was diminished simply by
    virtue of his delayed reporting. Rather, the defence position was that C.Y.s
    credibility was adversely impacted by the fact that: (1) he disclosed right
    before the appellants trial; and (2) he denied the inappropriate conduct when
    first asked about it by his parents in 2016. The appellant argues that it was
    inevitable that the strength of C.Y.s evidence would be seriously damaged as a
    result of these factors.

[75]

While
    the trial judge did not specifically address the fact that C.Y. denied being
    assaulted by the appellant when his parents addressed the issue with him in
    2016, this did not change how the issue had to be approached. In my view, it
    was not at all inevitable that the strength of C.Y.s evidence would be
    diminished by either the delayed disclosure or the initial denial. This was a
    matter for the jurys determination and the trial judge was right to leave the
    issue with the jurors.

(e)

The Alleged Errors Relating to Prejudicial Effect

[76]

The
    appellant also argues that the trial judge erred when he concluded that the
    prejudicial effect arising from C.Y.s evidence was modest. The appellant asserts
    that there is an inherent and well-known prejudice arising from this type of evidence;
    in particular, that the poisonous potential of similar fact evidence cannot be
    doubted:
Handy
, at para. 138. Therefore, according to the appellant, no
    similar act evidence is of modest prejudicial effect, and the trial judges
    observation to the contrary is said to reflect error.

[77]

I
    would not accede to this submission.

[78]

The
    trial judges reasons demonstrate that he was well-versed in the legal
    underpinnings for approaching prejudice in the context of a similar act
    evidence inquiry. He specifically addressed both moral and reasoning prejudice.

[79]

Despite
    C.Y.s evidence about having been pinned down on two occasions while being
    sexually assaulted  a very serious matter indeed  K.M.s evidence exceeded
    C.Y.s in terms of the sheer number of serious sexual assaults, invitations to
    sexual touching, and sexual interferences, ranging all the way from fondling to
    mutual oral sex and ejaculation.

[80]

In
    these circumstances, it was open to the trial judge to conclude that the prejudicial
    effect of C.Y.s evidence was modest in the sense that, relative to all the evidence
    already before the jury, accompanied by proper instructions, it was not likely
    to run a risk of inflaming the jury, causing them to give the similar fact evidence
    more weight than it deserved:
R. v. Bent
, 2016 ONCA 651, 342 C.C.C.
    (3d) 343, at para. 74, supplementary reasons at 2016 ONCA 722.

(2)

Did the Trial Judge Err in Permitting the Jury to Consider Cross-Count Similar
    Act Evidence as Between K.M. and C.M.?

[81]

The
    Crown successfully applied to have the evidence of K.M. and C.M. considered
    across all counts. During oral submissions on appeal, the appellant advanced
    the argument that the trial judge erred by failing to appreciate that the
    strength of C.M.s evidence was significantly reduced for two reasons: (1) the
    circumstances under which he disclosed; and (2) the fundamental differences
    between his and his brothers allegations.

[82]

As
    for the circumstances under which C.M. disclosed, it is uncontroverted that he
    did so after K.M. told him the details of what the appellant had done to him. This
    is really a suggestion of inadvertent tainting.

[83]

The
    trial judge squarely addressed this defence suggestion and dismissed it. He acknowledged
    that there was evidence of communication between the brothers. Even so, after reviewing
    the whole record and assessing the credibility and reliability of both K.M. and
    C.M., the trial judge was satisfied on a balance of probabilities that the
    evidence was not tainted with collusion, either conscious or unconscious in
    nature. I see no error in how the trial judge came to this conclusion.

[84]

The
    appellant also asserts that fundamental differences in the brothers accounts
    fatally undermined the utility of their evidence as similar acts.

[85]

I do
    not agree. The trial judge was very much alive to the differences in accounts,
    most significantly that the acts relating to K.M. progressed well beyond the
    genital touching experienced by C.M.

[86]

Even
    so, the trial judge clearly expressed what he saw as the similarities in
    accounts. I have already reviewed those similarities in relation to C.Y.,
    including: the boys ages at the time; their close relationships with the
    appellant; the locations of the acts; the joking behaviour attendant to the
    crimes; the similarity in jokes, including about pubic hair; and the fact that
    others were or may have been close by. As I concluded with respect to C.Y., the
    similarities defied coincidence.

(3)

Did the Trial Judge Err in Failing to Instruct the Jury on the Prohibited
    Use of Bad Character Evidence Arising from the Facebook Communications Between
    K.M. and the Appellant?

[87]

The
    appellant claims that the trial judge erred in failing to instruct the jury about
    the danger of propensity reasoning arising from the sexualized Facebook communications
    between K.M. and the appellant.

[88]

Most
    of the content of that communication was set out earlier in these reasons. In
    short, the appellant described to K.M. a recent sexual encounter he had with
    his wife. Then K.M. said that he had come to realize that he 
shouldn[]t
be doing
stuff

with the appellant and that he wanted it to stop. The
    appellant
replied with
sounds perfect
,
of course
,
and no more talk about it at all
.

[89]

K.M.
    testified that the stuff and the it were the sexual acts. In contrast, the appellant
    said the stuff and the it referred to nothing more than the sexualized
    conversations.

[90]

The
    sole question on appeal is whether the jury should have received an instruction
    to avoid using these sexualized communications
to infer that
    the appellant was of bad character or disposition and, therefore,
would
    be the type of person to have committed the crimes with which he was charged.
    The appellant says it was incumbent on the trial judge to provide that
    instruction.

[91]

For
    a number of reasons, I do not agree.

[92]

When
    deciding whether a non-direction gives rise to a misdirection, the evidence
    said to pose the risk of propensity reasoning must be considered within its
    proper context, including the other instructions given and the parties positions
    taken at trial:
R. v.
Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at
    paras. 11, 15-18.

[93]

I
    start by observing that there was no objection taken to the absence of the
    instruction, notwithstanding the fact that defence counsel reviewed the
    proposed charge ahead of delivery.

[94]

While
    I accept that there was no strategic reason to have failed to request the
    instruction or to have objected in the face of the charge, counsel were undoubtedly
    in the best position to determine whether such an instruction was necessary.
    While not determinative of the result, the failure to object is relevant to
    determining the seriousness of any alleged omission.

[95]

The
    likely reason there was no objection is that the similar act evidence instructions
    filled any potential void that may have arisen from not specifically
    instructing the jury as to the use of the sexualized communications for
    propensity reasoning purposes. The jury was instructed as follows:

If you conclude that [the appellant] likely committed the other
    acts, this may suggest to you that he has a general disposition or character to
    do bad things.
However, you must not infer from [the
    appellants] general character or disposition that he is more likely to have
    committed the offences charged
. Remember that [the appellant] is on trial only for
    the charges set out in the Indictment. It would be unfair to find someone
    guilty simply on the basis of a general disposition or character, since general
    disposition or character does not tell you anything useful about what happened
    on the specific occasions charged in the Indictment
. [Emphasis
    added.]

[96]

Although
    given in the context of instructions on how to approach similar act evidence,
    this instruction provided the jurors with robust guidance about avoiding
    inappropriate propensity reasoning. To repeat that instruction in relation to
    the Facebook communication would have added little to the jurys understanding
    of its task.

[97]

In
    any event, had the trial judge been asked to provide an instruction on
    prohibited propensity reasoning as it related to the Facebook communication, he
    would have also had to provide a clear instruction regarding how the jury could
    use that communication. The trial Crown relied upon the messages as a
    reflection of the appellants ongoing grooming behaviour. To highlight that
    position for the jurys attention would not have inured to the benefit of the
    appellant.

(4)

Did the Trial Judge Err in Refusing to Permit a Challenge for Cause During
    the Jury Selection Process?

[98]

The appellant
    argues that the trial judge erred in refusing to permit the defence to bring a
    challenge for cause. The appellant wanted to ask prospective jurors: (1)
    whether they had been exposed to any form of media about the case; if so, (
2
) based on
what they had heard, read,
or
seen
, whether they had formed views about the
    appellants guilt or innocence; and, if so,
(3)
whether
    they could set aside
those opinions
and decide the case
    based only the evidence heard in court and the instructions given by the trial
    judge.

[99]

The evidence filed in support of the application included 18
    articles in local and regional newspapers. The first article was published at
    the time that the charges were laid and the final one was published about a
    year before the trial commenced.
The online articles contained
    comments from members of the public who had read them.

[100]

While the appellant
    acknowledges that the articles themselves were factual in nature, he emphasizes
    that the comments posted online
in response to those articles
    were overwhelmingly vitriolic and should have resulted in the requested
    challenge for cause being permitted.

These comments
    included disparaging remarks calling for extreme punishment, expressing general
    disdain about the alleged acts and the appellant, and using vulgar language.

[101]

The trial judge denied
    the request for a challenge for cause. He characterized the appellants
    application as akin to an offence based challenge. The trial judge observed
    that, in the absence of evidence, it is highly speculative to suggest that
    emotions surrounding sexual crimes will lead to prejudicial and unfair jury
    behaviour.

[102]

The appellant argues
    that the trial judge erred in two ways. First, by mischaracterizing the
    application as an offence-based challenge. Rather, this was a challenge based
    upon extreme views expressed and disseminated about the appellant, a prominent member
    of his community.

[103]

Second, by
    misdirecting himself as to the appellants primary concern. It was not the
    specific crimes nor the content of the articles with which the appellant took
    issue. According to the appellant, the danger was that the publicity had
    generated vitriol in the form of comments posted online, some of which were
    directed at the appellant as the person identified in those articles.

[104]

I start with the
    observation that deciding whether to permit a challenge for cause engages an
    exercise of judicial discretion:
R. v.
Parks
(1993)
, 15 O.R. (3d) 324 (C.A.), at p. 336,
    leave to appeal refused, [1993] S.C.C.A. No. 481. Therefore, an appellate
    courts function is a narrow one, confined to inquiring into whether the
    decision demonstrates an error in principle or caused a miscarriage of justice:
R. v.
Merz
(1999), 46 O.R. (3d) 161 (C.A.), at para. 31, leave
    to appeal refused, [2000] S.C.C.A. No. 240.

[105]

A challenge for cause may
    be made under s. 638(1)(b) of the
Criminal Code
, R.S.C., 1985, c. C-46,
    on the ground that a juror is not impartial, and that they will be unable to
    set aside their state of partiality so that they can decide the case fairly:
R.
    v. Find
, 2001 SCC 32, [2001] 1 S.C.R.
    863
, at paras. 30-31. Partiality reflects a predisposed state of
    mind inclining a juror prejudicially and unfairly toward a certain party or
    conclusion:
Find
, at para. 30, referring to
R. v. Williams
, [1998]
    1 S.C.R. 1128, at para. 9.

[106]

In order to
    demonstrate a realistic potential for juror partiality, the two factors laid
    out by the court in
Find

must
    be satisfied: (1) that there exists a widespread bias in the community; and (2)
    that, despite trial safeguards, including jury instructions, some jurors will
    not be able to set aside that bias.

[107]

The trial judges
    reasons demonstrate that he understood and applied this legal test appropriately
    and within the bounds of his discretion. He acknowledged that the comments made
    online were intemperate, inflammatory, [and] ignorant in nature, but concluded
    that they did not establish a widespread bias in the community, and that any
    offence-related biases could be addressed through the safeguards in place at
    trial.

[108]

The trial judge also
    understood precisely what drove the appellants concern: The applicants real
    issue is the comments that were posted online after two articles were
    published. This was a fair observation, particularly since the appellant
    conceded that the articles themselves were fair and representative. Moreover,
    the coverage was at best sporadic and had ended almost a year before the trial.

[109]

I
    accept the appellants submission that, given the online nature of the
    articles, they remained ever-present and accessible. At the same time, though,
    during his very first encounter with the jury pool, the trial judge instructed
    them that [a]n impartial juror is one who will approach the trial with an open
    mind and decide the case based on the evidence given at trial, the
    instructions on the law from the trial judge,
and on
    nothing else
 (emphasis added). He also told the jury not to do any
    external research, including using the internet, consulting with other people,
    or seeking out any sources of information, printed or electronic. He further warned
    them not to read, post, or discuss anything about the trial. As he put it
, You must decide the case solely on the basis of the evidence you
    hear in the courtroom.

[110]

Not
    only did the trial judge instruct the jury pool at the very outset of the
    trial, but
he also provided careful instructions in his final charge.
    Here, the trial judge provided the jury with multiple instructions to safeguard
    it from taking improper considerations into account. These included explicit
    instructions to not be influenced by public opinion, to disregard completely
    any information from various media sources, to consider only the evidence
    presented in [the] courtroom, and to decide the case only on the basis of such
    evidence.

[111]

The trial judges
    discretionary refusal to permit a challenge for cause demonstrated no error in
    principle and did not result in a miscarriage of justice in this case.

D.

Conclusion

[112]

I would dismiss the
    appeal.

Released: November 5, 2021 JMF

Fairburn A.C.J.O.

I agree Doherty
    J.A.

I agree. Sossin J.A.





[1]

There is a reference in the appellants factum to these
    charges being stayed on a later occasion. The record is silent as to the
    reason(s) for the stay of proceedings.


