



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. S.C., 2018 ONCA 454

DATE: 20180516

DOCKET: C63057

Rouleau, Tulloch and Fairburn JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

S. C.

Appellant

S. C., acting in person

Julianna Greenspan, appearing as duty counsel

Deborah Krick, for the respondent

Heard: April 5, 2018

On appeal from the conviction entered on March 10, 2016
    and the sentence imposed on December 8, 2016 by Justice Beth A. Allen of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of
    three counts of historical sexual assault against two of his teenage nieces,
    following a jury trial. These offences were committed between 1976 and 1986.
    The trial judge imposed a global sentence of six years.

[2]

The appellant appeals from his
    conviction and sentence. He argues that the trial judge erred in admitting similar
    fact evidence of his conviction in 2009 for sexual offences against his two
    teenage step-daughters.
[1]


[3]

For the reasons that follow, we see no error
    in either the trial judges ruling on the similar fact application or on the sentence
    imposed. We would dismiss the appeal.

The Offences

[4]

The appellant was convicted by a jury in relation to historical sexual
    offences against two of his nieces, GS and VS. The offences took place over a
    ten-year period between 1976 and 1986. GS was abused between 1976 and 1980; VS
    from 1983 to 1986. GS and VS were between the ages of 14 and 16 when the abuse
    started. The offences would occur routinely on weekend family gatherings at the
    complainants family home.

[5]

The appellant was convicted on one count of rape and one count of
    indecent assault against GS. The facts of the rape conviction were as follows.
    GS was upstairs preparing to take a shower. She was wrapped in a towel. The
    appellant pushed his way into the bathroom, locked the door and forced vaginal
    intercourse upon her.

[6]

GS testified that on many other occasions the appellant would grope her
    breasts and vagina over top of her clothes. This would occur when they were
    alone in a room of her family home. The appellant would also make lewd remarks
    towards her.

[7]

The appellant was convicted on one count of sexual assault of VS. VS
    testified that the appellant forcefully kissed her on the driveway outside her
    home. She also testified that the appellant caught her on a landing on a
    stairway in her home and groped her vagina and breasts when no one else was
    present. The appellant also repeatedly made sexually lewd comments towards her.

[8]

GS and VS testified that the appellant would bribe them with money and
    shopping not to tell anyone. GS also said that the appellant warned her that if
    she did tell someone, there would be trouble.

The 2009 Convictions

[9]

The appellant pled guilty to sexually assaulting his step-daughter CH
    and sexually exploiting his step-daughter DH in 2009. The offences occurred in
    2007.

[10]

The
    facts with respect to CH were as follows. CH had undergone minor surgery and
    was recovering at home in bed. The appellant was tasked with caring for her. On
    several occasions, he would take water to her, and while carrying the water,
    his hand would brush against her breasts. On another occasion, CH awoke to find
    the appellant near her vagina. She asked him what he was doing. He asked if he
    could kiss it. CH pushed him away.

[11]

With
    respect to DH, the appellant would repeatedly ask if he could rub lotion on her
    legs. On two occasions, DH pushed him away after he rubbed lotion too close to
    her vagina. The appellant also masturbated in front of DH on several occasions.
    This would happen when she was home from school and other members of the family
    were away from the house.

The Trial Judges Ruling

[12]

The
    Crown brought an application to admit the evidence of the appellants prior
    convictions as similar fact evidence. The trial judge reviewed the facts of the
    prior convictions and the anticipated evidence from GS and VS. She then set out
the applicable legal principles in
R.
    v. Handy
, 2002 SCC 56,
    [2002] 2 S.C.R. 908
, which provides
    that similar fact evidence is presumptively inadmissible and the Crown has the
    onus to establish that the probative value of the evidence outweighs its
    prejudicial effect.

Probative value depends on: (1) the
    strength of the similar fact evidence; (2) the live issue to which the evidence
    relates; and (3) the relative cogency of the factors connecting and
    distinguishing the similar fact evidence and the evidence of the charged
    offences.

[13]

The
    trial judge noted that the live issue to which the probative value related was the
    unlikelihood that the complainants would assert similar conduct by [the
    appellant] unless that conduct really happened. The trial judge proceeded to
    assess the degree of similarity between the proposed evidence and the current
    charges. She undertook a detailed review of the evidence, and found that while
    there were factual differences, such as the nature of acts, which varied from forced
    vaginal sex to groping, the circumstances in which the acts occurred demonstrated
    a high degree of similarity. The trial judge noted the following similarities
    in circumstances:

·

The appellant focused his attention on teenage girls;

·

The appellant had a familial relationship with the complainants
    (GS and VS were his nieces, CH and DH were his step-daughters);

·

The appellant occupied a position of trust in relation to the
    complainants and the complainants were vulnerable; and

·

The appellant took advantages of circumstances in private homes,
    when no one else was around to observe his conduct, to abuse the complainants.

[14]

The
    trial judge concluded that these similarities in circumstances outweighed the
    dissimilarities in the actual conduct. She found that the proposed similar evidence
    was sufficiently similar to raise the inference that the appellant had situation-specific
    propensity to seek out young females connected by family relationships. The similar
    fact evidence suggested that the appellant would approach the girls while they
    were vulnerable  for example when they were alone, on their way to the shower,
    or lying in bed recovering from surgery  and abuse them.

[15]

The
    trial judge next considered whether the prejudicial effect of the evidence
    outweighed its probative value. She noted that the danger in admitting similar
    fact evidence rests in the possibility that the jury may engage in moral and
    reasoning prejudice. Moral prejudice refers to the risk that the trier of fact
    may infer guilt from general disposition or propensity. Reasoning prejudice
    relates to the concern that introducing similar fact evidence may confuse or
    distract the trier of fact from the charges that are before the court.

[16]

The
    trial judge found that the prejudicial effect of the proposed evidence was
    diminished because of four factors:

1.

Regardless of
    whether the similar fact evidence was admitted, the jury would be aware of the
    appellants previous convictions. Knowledge of the appellants conviction was
    an essential component of the complainants narrative for explaining what
    prompted them to go to the police after so many years.

2.

The Crown did
    not intend to call CH or DH at trial. Consequently, the evidence of the
    previous convictions could be read into the record and the jury would not see
    or hear from sympathetic victims.

3.

The jury could
    be instructed on the proper and improper uses of the similar fact evidence.

4.

There was little
    risk of jury confusion or distraction given the simple set of facts underlying
    the proposed similar fact evidence.

[17]

The
    trial judge found that the probative value of the similar fact evidence
    outweighed its prejudicial effect and admitted the evidence of the appellants
    prior convictions.

Analysis

[18]

The
    appellant submits that the trial judge erred by focusing on the evidence
    linking the appellant to each incident of abuse, rather than the numerous and
    important dissimilarities between the actual acts of abuse. The appellant
    relies on this courts decision in
R. v. Woodcock
(2003), 177 C.C.C.
    (3d) 346 (Ont. C.A.),

in which Cronk J.A. held that generally,
    evidence connecting the accused to the alleged acts is only considered if the
    manner of commission of the alleged similar acts tends to suggest the
    likelihood that all the alleged acts were committed by the same person (at
    para. 81). See also:
R. v. MacCormack
, 2009 ONCA 72, 241 C.C.C. (3d)
    516, at paras. 80-81. In other words, there must be a similarity between the
    acts themselves before the trial judge can consider the evidence linking the
    accused to those acts.

[19]

The
    appellant submits that there are few similarities and overwhelming
    dissimilarities between the proposed similar fact evidence and charged conduct. 
    First, the proposed similar fact evidence and evidence underlying the present
    charges occurred thirty years apart. Second, the nature of the acts varied
    greatly. The 2009 convictions related to breast rubbing, applying lotion, and
    masturbation. The charged conduct includes vaginal penetration, breast and
    vaginal groping, and a kiss.

[20]

We
    disagree.

[21]

First,
    a trial judges ruling on similar fact evidence is owed deference. This court
    may only interfere if the analysis is unreasonable or there is a
    misapprehension of evidence:
R. v. J.H.
, 2018 ONCA 245, at para. 11;
R.
    v. Cresswell
, 2009 ONCA 95
, at
    para. 7.

[22]

Second,
    at para. 81 in
Woodcock
, Cronk J.A. acknowledged that the distinction
    between linkage evidence and similarity is blurred and that in certain
    circumstances the evidence connecting the accused to the acts may inform the
    analysis of similarity. This was confirmed by Watt J.A. in
MacCormack
at para. 81:

The rule against considering both evidence of the manner in
    which allegedly similar acts were committed and evidence of an accused's
    involvement in the acts and determining whether the similarity requirement has
    been met is a general prohibition, not an unyielding or invariable rule that
    brooks no exception:
Arp
at para. 49;
Woodcock
at paras.
    79-80. Sometimes, it is difficult to draw a bright line between similarities in
    the manner in which an act is committed and an accused's involvement in that
    act. To apply a test of whether the objective improbability that an accused's
    involvement in the alleged acts is the product of coincidence without any
    regard to the evidence connecting the accused and the acts seems unduly antiseptic.

[23]

Third,
    and most importantly, in sexual assault cases, similar circumstances are often
    more compelling than similarities or dissimilarities in conduct. As noted by
    this court in
R. v. B. (L.)
(1997), 116 C.C.C. (3d) 481
(Ont.
    C.A.), at para. 37, "in cases of sexual assault, the similarities or
    dissimilarities between the sexual acts that are alleged are, of course,
    relevant, but often not as compelling as the circumstances surrounding the
    incidents".  The trial judge expressly relied upon this courts decision
    in
B. (L.)
as well as
R. v. J.M.,
2010 ONCA 117, 251 C.C.C.
    (3d) 325, at para. 91.

[24]

The
    trial judge provided careful and thorough reasons. She considered each point of
    dissimilarity, but concluded that the similarity in the circumstances of the incidents
    provided the requisite degree of connection. She placed particular emphasis on
    the fact that: (1) the abuse occurred within a private family home while the
    complainants were isolated; and (2) the complainants were vulnerable to the
    appellant as he occupied a position of trust as an uncle/step-father. We see no
    error in her analysis or conclusion that there was a persuasive degree of
    connection.

[25]

In
J.H.
this court upheld a trial judges similar fact ruling despite the
    fact that none of the sexual abuse described by the complainants was exactly
    the same (at para. 16). In that case the allegations involved: (1) the
    appellants children and step-child; (2) the abuse occurred inside the family
    home; (3) the biological complainants were between the ages of six and 17; and
    (4) some of the conduct was very similar (at para. 16). While the appellant
    correctly points out that
J.H.
was a case involving cross-count
    similar fact evidence, the point is that similarity in the circumstances of the
    incidents can suffice notwithstanding some dissimilarity in the nature of the
    acts.

[26]

In
    this case the allegations involve: (1) the appellants nieces and step-daughters;
    (2) abuse inside a private family home (the appellants and the complainants);
    (3) the complainants were all teenage girls; and (4) some of the conduct, in
    particular the allegations that the appellant would grope or attempt to touch
    the complainants vaginal area and breasts, is similar. We see no error in the
    trial judges analysis of the degree of connection between the charged conduct
    and similar fact evidence.

[27]

Nor
    do we see any error in the trial judges assessment that the probative value of
    the similar fact evidence outweighed its prejudicial effect. This determination
    was open to the trial judge. She was alive to the dangers of moral and
    reasoning prejudice. However, she found that the prejudicial effect did not
    outweigh the probative value given that: (1) the jury would hear about the
    convictions in any event (a finding the appellant does not challenge); and (2) the
    jury could be carefully instructed regarding the permissible and impermissible
    uses of similar fact evidence.

[28]

We
    note as well that the trial judge did provide strong limiting instructions to
    the jury about the use of similar fact evidence:

If you conclude there is a pattern of similar behaviour between
    the other things that [the appellant] did in 2007 and the conduct with which he
    has been charged in this case, you may use the evidence of that similar
    behaviour to conclude or help you to conclude that the offences alleged before
    this court actually took place.

[The appellant] pleaded guilty in 2009 to the sexual assault
    and to sexual exploitation in relation to the other two girls. You must not use
    the evidence of that conduct  to conclude or help you conclude that the
    offences charged in the case before you likely took place because [the
    appellant] is a person of general bad character or disposition who likely
    committed the offences charged because of that character or disposition.

Further you must not punish [the appellant] for that past
    conduct by finding that the offences charged before this court actually took
    place, and that he is guilty of them simply because those other things happened
    before.

[29]

As
    a result, we would not give effect to this ground of appeal.

Appeal from Sentence

[30]

The
    appellant also seeks to appeal from his sentence. He maintains that the global
    sentence of six years is too harsh. We disagree. The appellant repeatedly
    sexually abused his teenage nieces. The abuse spanned many years. The acts
    escalated over time, including a full act of vaginal intercourse. The appellant
    bribed the complainants to remain quiet or threatened them that things would
    get worse if they told anyone. In these circumstances, it cannot be said that
    this was an unfit sentence. The appellant directed us to no error in principle
    on the part of the trial judge. In these circumstances, we see no error in the
    sentence imposed.

Conclusion

[31]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted but the
    appeal dismissed.

Paul Rouleau J.A.

M. Tulloch J.A.

Fairburn
    J.A.





[1]

The appellant does not challenge the trial judges ruling on
    the use of the similar fact evidence across counts.


