




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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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.

6.

(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

7.

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

8.

(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. Wilkinson, 2017 ONCA 756

DATE: 20170929

DOCKET: C60778

Rouleau, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Wilkinson

Appellant

Delmar Doucette and Andrew Furgiuele
,
    for the appellant

Michael Fawcett, for the respondent

Heard: May 17, 2017

On appeal from the conviction entered on April 26, 2014 by
    Justice Gordon D. Lemon of the Superior Court of Justice, sitting with a jury.

Trotter J.A.:

A.

introduction

[1]

The appellant was convicted of multiple sexual offences against his
    girlfriends daughter and four of her friends. All of the victims were primary
    school girls. All of them were between 10 and 12 years old when they first
    disclosed the abuse. The victims were rarely, if ever, violated alone; offences
    were committed in the presence of some, if not all, of the others. When they
    were abused, the victims were told to remove their bottom clothing only.

[2]

The appellant argues that the trial judge erred by allowing the jury to
    engage in similar fact reasoning as between the victims. Specifically, he
    submits that the Crown failed to discharge its burden to prove that the
    evidence of the victims was not tainted by unintentional collusion. The
    appellant also complains that the trial judge failed to consider or
    misapprehended evidence on this issue.

[3]

For the following reasons, I would dismiss this appeal.

B.

the facts

[4]

The appellant originally faced a 20-count indictment, involving seven
    complainants. He was acquitted on charges related to two complainants.

[5]

The case has its origins in the appellants relationship with his former
    girlfriend and her daughter, N.M. They lived together between 2006 and 2009. Except
    for the counts involving the complainants that resulted in acquittals, N.M. was
    present when all of the offences were committed.

(1)

Evidence of N.M.

[6]

N.M. testified that the appellant sexually assaulted her when he lived
    with her mother. The appellant sexually assaulted her friend D.A. around the
    same time. N.M. said that the appellant licked and rubbed his penis on their
    vaginas; he made them put it in their mouths. The girls were asked to remove
    their bottom clothing, but not their tops. She testified about a similar
    incident in the appellants van with De. A. The girls masturbated the appellant
    while he touched their vaginas. Their tops remained on.

[7]

After the appellants relationship with N.M.s mother ended, he
    eventually moved to a different house. At the new location, the sexual abuse
    involved a number of the victims at the same time. They took turns masturbating
    the appellant and putting his penis in their mouths. Their tops remained on.

(2)

Evidence of D.A.

[8]

D.A., who was 14 at the time of trial, testified that, on several
    occasions, the appellant touched her vagina with his hands, penis and mouth.
    She was told to touch his penis with her hand and to put his penis in her
    mouth. N.M. was always present when this happened. Their tops remained on the
    whole time. D.A. said the appellant threatened her if she told anyone.

(3)

Evidence of De. A.

[9]

De. A., who was 12 at the time of her testimony at trial, also testified
    about the incident in the appellants van with N.M. The appellant sexually
    assaulted her on another occasion, when she was at his residence with N.M.

[10]

De. A. testified about other incidents at the appellants residence that
    involved herself, N.M., M.G., and A.G. Sometimes two of them would be involved;
    at other times, four. They touched the appellants penis. Some of them put it
    in their mouths. De. A. testified that her top never came off during these
    incidents. She also said that the appellant threatened her.

(4)

Evidence of M.G. and A.G.

[11]

M.G. and A.G. are sisters. The appellant rented an apartment above their
    residence.

[12]

M.G. was 13 at the time of trial. She described events that occurred
    with N.M., A.G. and De. A. M.G. testified that the appellant kissed them and
    had N.M. masturbate him. The appellant unsuccessfully tried to penetrate N.M.,
    A.G. and herself. M.G. said that her top never came off.

[13]

A.G. was 11 at the time of the trial. She said that she went into the
    appellants room with N.M. and A.G. The girls were instructed to line up in
    front of the appellant. N.M. told the girls to do things involving their
    vaginas and the appellants penis. She said that hands and mouths were
    involved. A.G. was instructed to kiss the appellant. She touched his penis, but
    did not think that she put her mouth on it. The appellant put his penis and
    mouth near the three girls vaginas. A.G. testified that the appellant took her
    pants off in the line-up. A.G. also saw N.M. and M.G. touch the appellants
    penis with their hands and mouths.

(5)

Evidence of A.M. and D.W.

[14]

A.M. is the stepsister of A.G. and M.G., and was living with them at the
    time. D.W. was A.M.s friend. Both were 16 at the time of trial. They testified
    that they were in the appellants room on one occasion, and he offered to pay
    them for oral sex. They refused. The appellant was acquitted on these counts.

(6)

The Disclosure

[15]

The incidents came to light when N.M.s mother saw the appellants text
    messages on her daughters phone. She thought that they were inappropriate. She
    asked her daughter about them, but N.M. denied that anything had happened. N.M.
    eventually disclosed the sexual abuse. N.M.s mother was shocked by the
    disclosure, but needed time to consider the implications of what she had been
    told. She told N.M. not to tell anyone in the meantime.

[16]

N.M. did tell someone. She called D.A. and told her, My mom knows.
    This led D.A. to tell her own mother, who called N.M.s mother two days after
    the initial disclosure. The police investigated. They told all involved not to
    talk about the allegations. However, N.M.s mother acknowledged that there were
    times when her daughter wanted to talk about things. At that point she learned
    of the involvement of some of the other girls.

[17]

D.A. recounted the phone call when N.M. told her, My mom knows. It
    took about 10 minutes. She denied that N.M. told her exactly what she reported
    to her own mother. D.A. promptly disclosed to her mother what had happened.

(7)

Collusion

[18]

Collusion was an important issue at trial. It was thoroughly canvassed
    in the cross-examinations of the victims, and in the examination of other
    witnesses, including the parents of some of the victims.

[19]

The evidence as a whole revealed communication between the victims,
    especially N.M. and the other victims. N.M. denied that she ever asked any of
    the other victims to lie. D.A. said that she was super close with N.M. She
    did not know what N.M. had told her mother about the allegations. D.A.
    testified that N.M. never asked her to lie.

[20]

N.M. and M.G. admitted that they created a fake Facebook page that made
    it look like the appellant was attempting to contact De. A. N.M. said that she
    knew that the appellant could get into trouble if he contacted any of the
    victims. She said she did it, not to get the appellant into trouble, but to
    trick De. A. N.M. said she did not know if she cared about getting the
    appellant into trouble. It was meant as a joke.

[21]

M.G. testified that she did not like De. A. because she was mean. M.G.
    said the Facebook page was a joke and she did not care if the appellant got
    into trouble because of it. M.G. testified that N.M. did not ask her to lie;
    she told M.G. to tell the truth. N.M. did not give her a story to tell the
    police.

[22]

De. A. testified that she was a best friend of N.M. She did not initially
    tell the police about A.G. and M.G. because N.M. told her that their dad was
    going to kill them. By the time De. A. told her father what had happened, she
    knew exactly what N.M. had told her own mother. De. A. spoke to the police on
    two occasions. In between statements, she spoke to N.M., who told her what she
    (N.M.) had told the police. She also told De. A. the type of questions she was
    asked. They agreed to get their stories straight. De. A. agreed that N.M.
    told her to stick to her story, but the story was true. The talk about getting
    their stories straight meant that they would tell the truth and make sure that
    nothing was left out.

[23]

A.G. admitted that, after giving her statement to the police, she spoke
    to M.G., A.M., and N.M. about the appellant. N.M. told her about the questions
    she was asked, but she did not tell the others what she told the police. N.M.
    did not ask A.G. to change her story. A.G. said that the girls told each other
    their versions. A.G. admitted that she changed her story to the police over
    time. She did so because she was not ready to talk at first. A.G. denied
    lying.

C.

trial judges ruling

[24]

As discussed in more detail below, the trial judge gave lengthy reasons
    for his decision to allow the evidence of each of the complainants to be used
    as similar fact evidence. At trial, defence counsel argued that there was collusion
    between the complainants, conscious or otherwise. However, the focus of the defence
    was that N.M. fabricated the allegations against the appellant, and enlisted
    the others to lie to support her story.

[25]

The trial judge reviewed the evidence of collusion in considerable
    detail. He ultimately concluded that the Crown had proved on a balance of
    probabilities that there was no collusion between the complainants.

D.

issues on appeal

(1)

Introduction

[26]

The appellant submits that the trial judge erred by: (1) reversing the burden
    of proof on the issue of unintentional collusion; (2) failing to consider
    relevant evidence on unintentional collusion; and (3) misapprehending evidence
    relating to unintentional collusion.

[27]

Similar fact rulings are entitled to deference on appeal,
    especially in the balancing of probative value against its prejudicial effect:
    see
R. v. B. (C.R.)
, [1990] 1 S.C.R. 717, at p. 738;
R. v. Arp
,
[1998] 3 S.C.R. 339, at para. 42;
R. v. Shearing
,
2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73; and
R.
    v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 153.
    As Doherty J.A. explained i
n
R. v. James
(2006), 80 O.R. (3d)
    227 (C.A.), at para. 33:

The process of balancing probative value
    against prejudicial effect is the trial judge's responsibility. Appellate
    courts will defer to the trial judge's assessment of the comparative probative
    value and prejudicial effect of the proffered evidence unless an appellant can
    demonstrate that the result of the trial judge's analysis is unreasonable, or
    is undermined by a legal error or a misapprehension of material evidence:
    see
R. v. B. (C.R.)
(1990), 55 C.C.C. (3d) 1, at 23-24;
R.
    v. Harvey
(2002), 169 C.C.C. (3d) 576 (S.C.C.), aff'g (2001),
    160 C.C.C. (3d) 52 at para. 43 (Ont. C.A.);
R. v. Handy
,
supra
,
    at para. 153.

See also
R. v. Cresswell
, 2009 ONCA 95, at
    para. 7.

[28]

The appellant does not directly attack the balancing undertaken by the
    trial judge; instead, he contends that the trial judge committed legal error by
    failing to apply the proper burden of proof to unintentional collusion, and by
    misapprehending material evidence.

(2)

Collusion and the Burden of Proof

[29]

In similar fact evidence cases, at the admissibility stage, the
    trial judges main task is to weigh the probative value of the evidence against
    its potential prejudicial effect. The possibility of collusion may significantly
    affect this balancing. As Binnie J. said in
Handy
,

at para. 99:
    
An important element of the probative weight analysis is the
    issue of potential
collusion

between the complainant and the ex-wife (emphasis in original). In
Shearing
, Binnie J. again identified collusion as a matter related to the
    strength of the evidence. As he said, at para. 40:

The theory of similar fact evidence turns
    largely on the improbability of coincidence. Collusion, by offering an
    alternative explanation for the "coincidence" of evidence emanating
    from different witnesses, destroys its probative value, and therefore the basis
    for its admissibility.

[30]

Although collusion is a feature of probative
    value, it is singled out for special consideration at the admissibility stage.
    It is not simply part of the overall balancing undertaken by the trial judge; instead,
    the Crown must disprove the possibility of collusion. Justice Binnie
    articulated the test in
Handy
, at para. 112:

Accordingly where, as here, there is some
    evidence of actual
collusion
,
or
    at least an "air of reality" to the allegations, the Crown is
    required to satisfy the trial judge, on a balance of probabilities, that the
    evidence of similar facts is not tainted with
collusion
.
That much would gain admission. It
    would then be for the jury to make the ultimate determination of its worth.

[31]

The dividing line between cases in which collusion is a live issue, and
    cases in which it is not, is the presence of an air of reality. As Binnie J.
    held in
Handy
, at para. 111: The issue is concoction or collaboration,
    not contact. If the evidence amounts to no more than opportunity, it will
    usually best be left to the jury. In that case, the Court agreed that there
    was something more  an air of reality, based on a financial incentive on the
    part of the complainant.

[32]

The Court in
Shearing
also addressed the issue of collusion. As
    Binnie J. held, at para. 44:

The evidence here is far more speculative than
    in
Handy
.  In that case, there was consultation between the
    complainant and the similar fact witness
prior
to the alleged
    offence about the prospect of financial profit.
Here, there is some
    evidence of opportunity for collusion or collaboration and motive, but nothing
    sufficiently persuasive to trigger the trial judges gatekeeper function.
There is no reason here to interfere with the trial judges decision to let the
    collusion issue go to the jury.  He instructed the jury to consider all
    of the circumstances which affect the reliability of that evidence including
    the possibility of collusion or collaboration between the complainants.
He
    defined collusion as the possibility that the complainants, in sharing their
    stories with one another, intentionally or accidentally allowed themselves to
    change or modify their stories in order that their testimony would seem more
    similar or more convincing.
It was for the jury to make the ultimate
    determination whether the evidence was reliable despite the opportunity for
    collaboration or that less weight or no weight should be given to evidence
    which may have been influenced by the sharing of information. [Italics in
    original; underline added.]

[33]

The trial judge reviewed a number of the governing
    authorities. He was aware of t
he threshold the Crown was required to
    meet when an air of reality of collusion was established. He mentioned this
    standard several times in his reasons, but in a general way. That is, he did
    not specify whether he was talking about actual collusion, unconscious collusion,
    or both. The appellant points to the following passage in the trial judges
    ruling and submits that it reveals that he misapplied this burden of proof in
    relation to unconscious collusion, at paras. 116-117:

Although cross-examined vigorously on this topic, none of the
    witnesses were shaken in the denial that they had colluded with respect to the
    allegations. Although some agreed in cross-examination, that before going to
    the police, they had got their story straight, all explained that phrase to
    be entirely appropriate discussions between themselves

The stories told were simple ones to tell; even so, the
    complainants are children and one would expect that collusion would have become
    obvious over time. That did not occur here.
While there may have been
    unconscious tainting between the witnesses, there was no evidence that the
    possibility was so strong as to exclude the evidence
. [Emphasis added.]

The trial judge concluded his ruling by saying, I am
    therefore satisfied on a balance of probabilities that there was no collusion
    between the witnesses: at para. 120.

[34]

The appellant argues that, while the trial judge properly placed the
    burden on the Crown to disprove actual collusion, he failed to hold the Crown
    to the same standard with respect to unconscious tainting. He contends that
    the above-quoted passage reveals the trial judge was not satisfied on a balance
    of probabilities that the Crown had disproved tainting by unconscious
    collusion.

[35]

Read in the context of his reasons as a whole, the
    impugned passage suggests that the trial judge did not specifically consider
    whether the Crown met its burden in relation to unconscious collusion.

[36]

The trial judge erred in this respect. Although the
    case was fought largely on the basis of actual collusion,
there was
    clearly an air of reality to the assertion of unconscious collusion. The
    trial judge acknowledged as much in the underscored passage above. The law
    required that the Crown be held to the same standard of disproving that the
    evidence was tainted by unconscious collusion on a balance of probabilities.

[37]

In fairness to the trial judge, there is a lack of precision in the case
    law concerning the treatment of unconscious collusion at the admissibility
    stage. In
Handy
and
Shearing
, the Court addressed collusion
    in its most literal sense. In both cases, it was alleged that the allegations
    were fabricated, and that two or more witnesses had agreed to proceed with a
    false story. In its treatment of this issue, the Court used different
    terminology to describe the same thing.
Handy

employs the terms
    collusion, actual collusion and concoct.
Shearing

refers
    to collusion, concoction and concoct. Neither case directly discusses
    unconscious or inadvertent collusion or tainting of similar fact witnesses.
[1]

[38]

However, decisions from this court support the view that actual
    collusion and unconscious collusion ought to be treated the same way at the
    admissibility stage. In
R. v. F. (J.)
(2003), 177 C.C.C. (3d) 1 (Ont.
    C.A.), Feldman J.A. discusses both types of collusion, at para. 77:

The trial judge's finding that B.H. was
    sincere, a "straight shooter", and not influenced by E.T. and the
    others, fails to take into account that collusion and discussion among
    witnesses can have the effect of tainting a witness's evidence and perception
    of events innocently or accidentally and unknowingly, as well as deliberately
    and intentionally.
The reliability of a witness's account can be undermined
    not only by deliberate collusion for the purpose of concocting evidence, but also
    by the influence of hearing other people's stories, which can tend to colour
    one's interpretation of personal events or reinforce a perception about which
    one had doubts or concerns.
[Emphasis added.]

[39]


R. v. B. (C.)
(2003), 171 C.C.C. (3d)
    159 (Ont. C.A.) fosters the same approach. As the court said at paras. 40-41:

Collusion can arise both from a deliberate
    agreement to concoct evidence as well as from communication among witnesses
    that can have the effect, whether consciously or unconsciously, of colouring
    and tailoring their descriptions of the impugned events
. In this case there was evidence of, or at least the opportunity
    for collusion in the various discussions regarding the incidents reported by
    the complainants. Furthermore, taken together with the anger regarding the
    dismissal and pay issues between one complainant and the appellant and the
    joint lawsuit by the complainants for damages, there was clearly an air of
    reality to the possibility of collusion in this case.

It was therefore incumbent on the trial
    judge, in considering the admissibility of the similar fact evidence, to
    determine whether he was satisfied on a balance of probabilities that the
    evidence was not tainted by collusion.
In his
    ruling admitting the similar fact evidence, the trial judge did specifically
    refer to the fact that the witnesses had discussed some of the evidence with
    each other. [Emphasis added.]

Ultimately, the case was decided on the basis of
    inadequacies in the trial judges instructions to the jury. Nevertheless, this
    passage supports the conclusion that, when there is an air of reality to
    conscious
or
unconscious collusion, the similar fact evidence will not
    be admissible unless the Crown proves on a balance of probabilities that
    conscious or unconscious collusion has not tainted the testimony.

[40]

Further support for the appellants position is found
    in the cases that require trial judges to instruct juries on the possibility of
    collusion, both actual and unconscious. As Feldman J.A. wrote
in
F. (J.)
,
    at para. 86:

Once admitted, the jury must still be warned
    to assess the evidence carefully and to consider whether it can be considered
    reliable given the possibility of deliberate or accidental tainting by
    collusion among the witnesses.

See also
R. v. M.B.
, 2011 ONCA 76, 267 C.C.C. (3d) 72: and
David Watt,
Watts
    Manual of Criminal Jury Instructions
, 2nd ed. (Toronto: Carswell, 2015),
    pp. 367-368 (Final 28-E  Collusion Amongst Similar Act Witnesses).

[41]

The respondent argues that the trial judge did not err in dealing with
    unconscious collusion. It relies on
R. v. Dorsey
, 2012 ONCA 185, 288
    C.C.C. (3d) 62, a case in which the trial judge allowed the jury to consider
    the evidence of six sexual assault complainants as similar fact evidence. Defence
    counsel at trial submitted that the evidence of the complainants, who were
    strangers, was tainted by media reports about the case. The trial judge concluded
    that there was no air of reality to the suggestion of inadvertent or
    unintentional collusion. In response to defence counsels jury address, which
    stressed the possibility of inadvertent tainting, the trial judge instructed
    the jury that there was no evidence of collusion that should concern them in
    assessing the similarities in the accounts of the witnesses.

[42]

This court allowed the appeal from conviction, holding that the
    trial judge erred in her jury instructions on collusion. The respondent relies
    upon the following passage from the judgment of
the court
,
    at para. 29:

Here, it is clear that there was at least some
    evidence of possible inadvertent collusion, perhaps not enough to deny the
    similar fact application, but sufficient to raise concerns that the opportunity
    for tainting of the evidence existed.
Put another way, there was at least an
    air of reality to the possibility of inadvertent collusion.
As discussed
    in
Shearing
, the trial judge should have left it with the jury to
    decide the effect that possible collusion may have had on the weight to be
    assigned to the evidence of the complainants. [Emphasis added.]

[43]

The language used in
Dorsey
is resonant of the trial judges
    ruling in this case. Whereas the court in
Dorsey
spoke of,
    inadvertent collusion, perhaps not enough to deny the similar fact
    application, the trial judge (who cited
Dorsey
in his ruling) said,
    [w]hile there may have been unconscious tainting between the witnesses, there
    was no evidence that the possibility was so strong as to exclude the evidence:
    at para. 117.

[44]

I would not attach the same weight to the passage from

Dorsey
as the respondent urges us to do. The decision did not turn on the question of
    admissibility. The appeal was allowed on the basis that there was an air of
    reality and the trial judge erred in taking away from the jury any consideration
    whatsoever of the potential for inadvertent collusion or tainting.

[45]

On the basis of
Handy
and
Shearing
, and its treatment
    in other judgments of this court, the proper approach is to treat actual and
    unconscious collusion in the same manner at the admissibility stage. This
    conclusion is supported by academic commentators: see, for example, Sidney N.
    Lederman, Alan W. Bryant and Michelle K. Fuerst,
The Law of Evidence in
    Canada
, 4th ed. (Toronto: LexisNexis Canada Inc., 2014), at pp. 724-726;
    and S. Casey Hill, David M. Tanovich and Louis P. Strezos,
McWilliams
    Canadian Criminal Evidence
, 5th ed. (Toronto: Thomson Reuters Canada
    Limited, 2016), Vol. 1, at pp. 10-64 to 10-68. Consequently, the trial judge
    erred by not subjecting the issue of unconscious collusion to the same
    treatment as actual collusion.

[46]

While the trial judge erred in the application of the burden of proof, I
    would apply the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
,
    R.S.C. 1985, c. C-46 to dismiss the appeal. No substantial wrong or miscarriage
    of justice was occasioned by the trial judges legal error. I reach this
    conclusion for the following reasons.

[47]

First, the real issue at trial was whether N.M. fabricated the
    allegations against the appellant and then enlisted the assistance of the other
    complainants to further her campaign. The similar fact application did not turn
    on the
minutiae
of the complainants accounts; it was fought on the
    basis of did this really happen?

[48]

It is clear from the trial judges ruling that he was alive to the possibility
    of unconscious collusion. He considered it in weighing the probative value of
    the evidence against its prejudicial effect and determined that it did not
    warrant exclusion. Far from not screening for unconscious collusion at all, the
    trial judge satisfied himself that it was safe to leave the matter with the
    jury.

[49]

The similar fact ruling related to witnesses whose evidence was already
    before the jury. In other words, the ruling did not relate to the admissibility
    of witnesses who the jury would not otherwise have had heard testify. The jury
    was properly instructed on how to assess the credibility and reliability of all
    of these witnesses. Their evidence was reviewed in great detail in the trial
    judges final instructions.

[50]

Finally, the trial judge provided the jury with appropriate guidance on
    how the evidence could be used for similar fact purposes. This included an
    instruction on the need to be aware of the possibility of conscious and
    unconscious tainting. His instructions were not objected to at trial; they are
    not challenged on appeal.

[51]

I would not allow the appeal on this basis.

(3)

Failing to Consider and Misapprehending Evidence of Unintentional
    Collusion

[52]

The appellant submits that the trial judge failed to consider certain
    aspects of the evidence that impacted on unintentional collusion, while
    misapprehending others. Although they were raised as separate grounds of
    appeal, I address them together because they essentially amount to the same
    complaint. This argument really goes to the heart of the balancing undertaken
    by the trial judge. It is at this juncture where deference should be most
    potent.

[53]

To succeed on this basis, the misapprehension must be relevant to
    a material issue: see
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.),
    at p. 538. As Binnie J. held in
R. v. Lohrer
, 2004 SCC 80, [2004] 3
    S.C.R. 732, at para. 2:
The misapprehension of the evidence
    must go to the substance rather than to the detail. It must be material rather
    than peripheral to the reasoning of the trial judge.

[54]

I agree with the respondent that none of the misapprehensions identified
    by the appellant are material in the sense considered in the case law; instead,
    the appellant complains that the trial judge failed to wade among the factual
minutiae
of seven young witnesses during a month-long jury trial.

[55]

In his factum and in oral argument, appellants counsel placed great
    emphasis on: (a) the internal inconsistencies in the testimony given by each of
    the complainants; (b) the inconsistencies between that testimony and the
    complainants prior statements to the police and at the preliminary inquiry;
    and (c) the fact that certain details of the allegations between the
    complainants were mutually inconsistent. The appellant tries to link these testimonial
    features to the similar fact evidence ruling. However, they are in reality
    arguments meant to attack the reasonableness of the jurys verdicts and an
    attempt to retry the case on appeal.

[56]

The trial judge spent a great deal of time focused on collusion among
    the complainants. Indeed, this was the focal point of his ruling. He considered
    the evidence of the witnesses in great detail. He determined that some
    inconsistencies between the witnesses were important, while others were not.
    The trial judges findings were available to him on the record and should not
    be disturbed on appeal: see R. v. Roy, 2017 ONCA 30, 136 W.C.B. (2d) 103, at para. 20.

[57]

I further agree with the respondent that the failure of the trial judge
    to mention certain pieces of evidence does not lead to the conclusion that he
    failed to consider them. The trial judge released his reasons on the similar
    fact ruling a few months after delivering his final instructions to the jury.
    However, he made his similar fact ruling (with reasons to follow) shortly
    before instructing the jury. The final instructions included a 10-page, 40-paragraph
    summary of the evidence under the heading, Collusion Among Similar Act Witnesses.
    Defence counsel did not object to this aspect of the jury charge. In the
    circumstances, it is difficult to see how the trial judge could have failed to
    properly consider this evidence when making his similar fact ruling. His
    subsequent reasons confirm that he did just that.

[58]

I would reject this ground of appeal.

E.

conclusion

[59]

I would dismiss the appeal.

Released: PR September 29, 2017

Gary T. Trotter
    J.A.

I agree. Paul
    Rouleau J.A.

"I agree. David Paciocco J.A."





[1]
However, I note that, in
Shearing
, at para. 44, Binnie J. rehearses the
    trial judges definition of collusion, without adverse comment, including,
    intentionally or accidentally allow[ing] themselves to change or modify their
    stories.


