



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. T.C., 2019 ONCA 898

DATE: 20191114

DOCKET: C61064

Strathy C.J.O., Watt and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.C.

Appellant

Michael Davies and Meaghan McMahon, for the appellant

Frank Au, for the respondent

Heard: May 28, 2019

On appeal from the convictions entered by Justice Martin
    S. James of the Superior Court of Justice, sitting with a jury, on September
    10, 2014.

Zarnett J.A.:



I.

INTRODUCTION

[1]

The appellant was convicted by a jury of committing six sexual offences,
    five relating to his grandniece A.D. and one relating to his grandniece A.S.

[2]

A.D. was under ten years old at the time of the offences that
    related to her; A.S. was under thirteen at the time of the offence that related
    to her. At the time of trial, A.D. was fourteen and A.S. was sixteen.

[3]

The appellant appeals his convictions, advancing three grounds.
    The first pertains to the admission of evidence across counts as similar fact evidence,
    and the trial judges instruction to the jury on the use to be made of such
    evidence; the second to the trial judges ruling about the appellants ability
    to refer to various documents to assist his memory while testifying; and the
    third to language the trial judge used to refer to the appellant while
    instructing the jury.

[4]

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


II.

FACTUAL AND Procedural HISTORY GIVING RISE TO THE ISSUES ON APPEAL

A.

The Pre-Trial Conference Similar Fact Evidence Discussion

[5]

Following a preliminary inquiry in the Ontario Court of Justice,
    the appellant was ordered to stand trial on an indictment which alleged eight
    offences.

[6]

The appellant had not been represented by counsel at his
    preliminary inquiry. A lawyer, Peter Boushy, had been appointed under s. 486.3
    of the
Criminal Code
,
R.S.C. 1985, c. C-46, as counsel to cross-examine the complainants at the
    preliminary inquiry.

[7]

After the appellant was ordered to stand trial,
    a pre-trial conference was conducted in the Superior Court of Justice by Ray J.
    The appellant remained self-represented at the pre-trial conference, as he was
    throughout trial.

[8]

At the outset of the pre-trial conference, Mr.
    Boushy applied, with the consent of the Crown, to be appointed
amicus
    curiae
at the trial. Although certain matters were
    discussed at the pre-trial conference in advance of Ray J.s actual ruling on
    the request to appoint
amicus
, he did rule on
    the request before the pre-trial conference concluded. Ray J. appointed Mr.
    Boushy as
amicus
to, among other things,
    receive all relevant Crown disclosure on behalf of the appellant; inform the
    appellant about points of law and legal issues; discuss legal issues with the
    Crown on behalf of the appellant; speak to legal issues in court; and provide
    any other assistance to the court it might approve including to cross-examine
    the complainants and other witnesses.

[9]

One of the matters discussed at the
    pre-trial conference before the order was made actually appointing Mr. Boushy
    as
amicus
,

was the issue of similar fact evidence. Crown counsel requested that
    the evidence on each count in the indictment be used as similar fact evidence
    across the counts.


[10]

Mr. Boushy

advised the court that that was agreeable, pending conversations he
    intended to have with the appellant. He further advised that if as a result of
    the conversations the position changed, therell be ample notice to the Crown
    attorneys office, prior to the jury trial. As Ray J. put it, [y]oure
    agreeable until we hear differently.

[11]

No notice of a different position was provided prior
    to the trial, which commenced approximately six months after the pre-trial
    conference. The issue of similar fact evidence was next discussed at the
    pre-charge conference, after the conclusion of the evidence at trial.

B.

The Complainants Evidence at Trial

[12]

A.D. and A.S are cousins. The appellant is their great uncle.
    Through the family connection, the appellant was from time to time in the
    company of A.D., or A.S., or both.

[13]

A.D. and A.S. both gave evidence. I summarize first the evidence
    of A.D. that describes the substance of the alleged offences on which she was
    the complainant, then the evidence of A.S. about the offences alleged to have
    been committed against her, and then the evidence A.D. and A.S. each gave on
    the counts on which the other was the complainant.

(i)

Charges
    Relating to A.D

[14]

Count 1 on the indictment alleged sexual interference contrary to
    s. 151(a) of the
Code
. A.D. testified that when she was about six
    years old, the appellant, while visiting her home, put his hand down her shirt
    and touched her breast when they were sitting on a couch together.

[15]

Count 2 alleged sexual assault contrary to s. 271 of the
Code
.
    A.D. testified that it occurred when she was six to seven years old, most
    likely in her bedroom at her home. A.D. gave evidence that she undressed with
    the appellant and lay on a bed with the appellant on top of her. She recalled a
    little bit of painlike a stabbing pain between her legs. The appellant then
    got off the bed, dressed himself and told her not to tell anyone.

[16]

Count 3 alleged invitation to sexual touching contrary to s. 152
    of the
Code
. A.D. testified that it occurred when she was around nine
    years old, when her family was moving to a new home and the appellant was
    helping with the move. A.D. was playing a game pretending that her room was a
    spa. The appellant played along, got undressed in the spa, and proposed that
    A.D. give him a massage. He lay down on A.D.s bed on his stomach, undressed
    except for a towel draped over his middle section covering his buttocks. As A.D.
    massaged the appellants shoulders, the appellant told her she could go lower.
    When she was massaging the appellants hip area, he told her not to be afraid
    to touch anything and she could massage anywhere she wanted. A.D. took this to
    mean, in her words, his butt. A.D. refused.

[17]

Count 7 alleged sexual interference contrary to s. 151(a) of the
Code
.
    A.D. testified it occurred when she was eight or nine years old, when A.S. and
    she were staying with another family member during the summer. A.D. and A.S.
    were in a bathroom adjusting the tops of their bathing suits. The appellant
    walked in and offered to help A.D. The appellant put both of his hands on her
    breasts.

[18]

Count 8 alleged sexual assault contrary to s. 271 of the
Code
.
    A.D. testified it also occurred while A.D. and A.S. were staying with that family
    member for the summer. A.D. and A.S. were in a bedroom putting on t-shirts over
    their bathing suits when the appellant entered the room and tackled A.D., pushing
    her on to the bed. The appellant pinned A.D.s arms over her head by gripping
    her wrists, licked her face, moved his front boy private part between her
    legs, and rubbed against her. Both A.D. and the appellant were fully clothed.

(ii)

Charges Relating to A.S.

[19]

Count 4 alleged invitation to sexual touching contrary to s. 152
    of the
Code
. A.S. testified that it occurred at A.D.s home when the
    appellant was babysitting both A.D. and A.S., and they were all in the kitchen.
    A.S. asked for something to eat, but the appellant told the complainants that
    they would not be allowed to eat anything unless they pinched his bum which
    they did.

[20]

Count 5 alleged sexual interference contrary to s. 151(a) of the
Code
,
    involving three alleged incidents.

[21]

The first incident occurred on the same occasion as the incident A.D.
    described in relation to count 7. A.S. was ten or eleven years old. A.S.
    testified that when A.D. and she were in the bathroom adjusting the tops of
    their bathing suits, the appellant walked in and adjusted A.S.s top in a way
    that made her breasts show. In doing so, the appellant touched A.S.s breasts
    with his hand.

[22]

The second incident took place when the appellant and
    complainants were swimming at a beach. A.S. testified that the appellant
    touched her buttocks area while he was helping her with a surfboard.

[23]

The third incident occurred on an occasion when A.S. was sitting on
    the appellants lap on the porch of a family members residence. A.S. was ten
    or eleven years old. A.S. testified that the appellant put his hand on her
    upper thigh and rubbed her leg from her knee to her hip, up and down.

[24]

Count 6 alleged sexual assault contrary to s. 271 of the
Code
based on the same three incidents as count 5.

(iii)

The Complainants
    Evidence About the Others Complaints

[25]

A.D. and A.S. also gave evidence that they witnessed specific
    events that supported certain of the others complaints.

[26]

On count 3, A.S. gave evidence that she had been helping A.D.
    with pretending to run a spa and left when she tired of the game, leaving A.D.
    and the appellant alone. On the second allegation of count 5, A.D. testified
    remembering an incident of the appellant throwing A.S. off a surfboard and
    touching her butt when the three were at a beach. On count 7 and on the first
    allegation of count 5, which allegedly occurred on the same occasion, both A.D.
    and A.S gave evidence describing what occurred. On count 8, A.S. testified that
    the appellant moved his hips up and down on top of A.D.

C.

Appellants Evidence and the Trial Judges Aide Mémoire Ruling

[27]

The appellant called one witness and then
    testified in his own defence. Prior to testifying, the appellant made the
    decision that
amicus
would lead him through
    his evidence and would address the jury in the closing arguments.

[28]

The appellant
asked the trial judge if he could,
    in order to refresh his memory while testifying, refer to portions of the Crown
    disclosure and some notes.
Mr
.
Boush
y,
as
amicus,
advised
    the court that he did not see a need for the appellant to do so given the
    appellants history with the litigation, his pre-trial preparations, and the
    fact that
amicus
would be leading the
    appellant through his testimony. He also expressed concern that the appellant
    might, in doing so, refer to the complainants statements that were part of the
    Crowns disclosure, rather than simply testify as to what happened as I lead
    him to the particular events.

[29]

The trial judge agreed with
amicus
, finding that it would be inappropriate for the appellant to refer
    to these documents because the appellant would have the benefit of
amicus
leading him through his examination-in-chief reducing the need for
    an
aide mémoire
to jog the appellants
    recollection of the different topics he wanted to talk about.

[30]

The appellant then gave evidence. He denied all the allegations
    and stated that he shared a playful relationship with the complainants. He
    testified that he never put his hand down A.D.s shirt and touched her breasts;
    never had sexual intercourse with A.D.; never had been massaged by A.D. or
    offered to give A.D. a massage; and never babysat A.D. or A.S. The appellant offered
    an alternative description of the other incidents, testifying that they had not
    occurred as alleged and, to the extent they involved any contact or touching,
    it had been initiated by the complainants, and in any event, occurred in
    non-sexual circumstances and without any sexual purpose.

[31]

At the conclusion of the appellants
    examination-in-chief, he was afforded an opportunity to refer to his notes to
    add anything to his testimony that he felt was relevant to the trial. After
    reviewing his notes, the appellant stated he had nothing to add. He was then cross-examined
    by the Crown and re-examined by
amicus
. At the
    conclusion of his testimony,
amicus
asked the
    appellant if that was all the evidence he wished to call in defence. The
    appellant said that it was.

D.

The Jury Charge Regarding Similar Fact Evidence

[32]

The trial judge conducted a pre-charge
    conference, and sought input on the manner in which the jury would be
    instructed on the use of similar fact evidence across counts.
Amicus

acknowledged there had not been an objection communicated
    about the use of similar fact evidence after the Crown had raised this issue at
    the pre-trial conference, but stated that the trial judge was the ultimate
    gate keeper. During discussion concerning what the jury would be told about what
    acts were similar, various views were expressed on the similarity issue. Crown
    counsel stated that the act of intercourse would be excludedbecause its not
    similar to anything else, an apparent reference to count 2. The trial judge
    noted that what he called the bikini incident (an apparent reference to count
    7 and the first allegation of count 5) was qualitatively different. After
    further discussion it was agreed that an example would be usefully included in the
    jury instruction. A similar fact evidence instruction was settled upon to which
    the Crown and
amicus

expressed agreement. The
    appellant was provided an opportunity to himself comment on the charge before
    it was delivered; other than grammatical edits, he expressed no objection.

[33]

The similar fact instruction given was as
    follows:

[Mr. C] is charged with eight offences. There are two
    complainants. Each charge requires its own proof. The real issue for you to
    decide in this case is whether the offences alleged by each complainant ever
    actually took place.

Be careful not to jump to the conclusion that if one
    complainant is telling the truth the others must be telling the truth as well,
    nor should you jump to the conclusion that because the complainants alleged
    similar conduct they all must have occurred if any one of them is proved. It is
    up to Crown counsel to prove each charge independently of the others.

You may, but you do not have to find that there is a pattern of
    similar conduct that confirms each complainants testimony that the offences
    took place. It is for you to say.

In considering this evidence, bear in mind the relationship
    between [Mr. C], the complainants, as well as the circumstances of both of the
    situations.

In deciding whether there is such a pattern of similar conduct,
    you should consider this example. Recall that there was an allegation that [Mr.
    C] invited the girls to pinch his buttocks to get their lunch or a snack when they
    were hungry. Also, [A.D.] said that [Mr. C] invited her to massage his buttocks
    in the spa incident. Both of these events, if true, involved an invitation by [Mr.
    C] to touch his buttocks.

If you conclude that there is a pattern of similar conduct between
    or among any offences with which [Mr. C] is charged, you may use that evidence
    of similar conduct on each charge together with the rest of the evidence
    relating to that charge in reaching your verdict on any other charge.

If you conclude that [Mr. C] did the acts alleged on any
    offence charged, you must not use the evidence of that conduct to conclude or
    to help you conclude that [Mr. C] is a person of general bad character or
    disposition who likely committed the acts charged in any other count because of
    that bad character or disposition.

Further, if you conclude that [Mr. C] did the acts alleged in
    any offence charged, you must not punish [Mr. C] by finding him guilty of any
    other offence simply because he did those other acts.

If you do not, or are unable to conclude that the acts charged
    in some counts are so similar to those charged in others that they show a
    pattern of similar conduct, you must not use the evidence on those charges in
    reaching your verdict on any other charge.

Whether or not you use the evidence of any complainant to help
    you decide whether any other complainant is telling the truth, you must not
    find [Mr. C] guilty of any offence unless Crown counsel has satisfied you
    beyond a reasonable doubt that the offence charged actually took place and that
    [Mr. C] committed it.

E.

The Trial Judges Refences to The Appellant During the Jury Charge

[34]

During his charge to the jury, the trial judge twice
    referred to the appellant as Mr. Guilty.

[35]

The first instance occurred while the trial
    judge was reviewing the law related to assessing the testimony of the two
    complainants. He said:

Both complainants testified from outside the courtroom and had
    a support person present with them when they testified. This procedure is
    designed to help young people give evidence but by providing more comfortable
    surroundings to do so. This procedure has nothing to do with the guilt or
    innocence of [Mr. C]. You must not draw any inference of any kind from its use.
    To be more specific, do not
use it to conclude that Mr. Guilty
    (sic)  [Mr. C] is guilty of the offences charged.

[36]

The trial judge again referred to the appellant
    as Mr. Guilty while reviewing the law and evidence relating to count 3:

If you are satisfied beyond a reasonable doubt that the
    touching that [Mr. C] invited
[A.D.] to do was for a sexual
    purpose, you must find Mr. Guilty (sic)  [Mr. C] guilty of invitation to
    sexual touching.

[37]

Following a break in the charge,
amicus
applied for a mistrial, and alternatively, for a correcting jury
    instruction. The trial judge dismissed the application for a mistrial, but gave
    the following corrective instruction to the jury:

And were now going to carry on with my final
    instructions, picking up with Count 6.

However, before I do that, you probably
    noticed that on one, maybe two occasions while I was reading too quickly in a
    spot on a line where [Mr. Cs] name appeared with the word guilty I said Mr.
    Guilty instead of [Mr. C]. This was obviously an inadvertent error on  a
    mistake on my part and it would be wrong to draw any inference or conclusion
    from my slip.

So thank you. Ill try not to read as quickly.
    We still have a fairs way to go. And now Im going to carry on, as I indicated,
    with a discussion of Count 6.

F.

The Result at Trial

[38]

The jury convicted the appellant on six counts:
    all of the counts that related to A.D., and count 5 which related to A.S. The
    appellant was acquitted on counts 4 and 6.


III.

Analysis

A.

The Similar Fact Evidence Ground of Appeal

(i)

The Parties Positions

[39]

The appellant argues that the trial judge erred
    in admitting evidence across counts as similar fact evidence and in the instruction
    he gave the jury about its use. He points to the absence of a formal
    application by the Crown to admit evidence across counts  one that defined the
    purpose for which the evidence was to be admitted, the issue to which it was
    relevant, and the inference it was said to support. He argues that discussions
    at the pre-trial and pre-charge conferences did not overcome this deficiency. The
    appellant was self-represented and was not expressly canvassed for his views; some
    of the discussions took place before Mr. Boushy was even appointed
amicus
, and in any event,
amicus
is not
    defence counsel.

[40]

The appellant further argues that the discussions
    at the pre-charge conference resulted in a number of agreements among the
    Crown,
amicus
,
and the trial judge that certain counts did not involve acts that
    were similar to those involved in other counts. He says those agreements should
    have resulted in an instruction that evidence on those counts could not be used
    on other counts, together with a warning against engaging in propensity
    reasoning arising from that evidence:
R
.
v.

Dawson
, 2016 ONCA 880, 343 C.C.C. (3d) 499, at paras
    22-27. But those agreements were not reflected in the charge itself, which only
    provided an example of counts that might be similar and left it to the jury to
    decide whether to consider all counts as similar, leaving them free to apply
    all the evidence on all the counts.

[41]

The Crown submits that each of the complainants was
    a witness on counts that pertained to the other, and their credibility was a
    central issue in the case. It was necessary for the jury to consider the
    totality of the evidence on each count to decide this issue, even if similar
    facts were not involved. Moreover, the Crown argues that it made a sufficient
    request for evidence on each count to be admitted as similar fact evidence on each
    other count, to which there was no objection. The evidence was properly
    admissible as similar fact evidence on each count. There was only one agreement
    reached at the pre-charge conference, and that was that the wording of the
    final charge to the jury was appropriate.

(ii)

Discussion

[42]

The presumptive rule is that evidence on one
    count of an indictment may not be used to prove the guilt of the accused on
    another count where the counts do not arise out of the same events:
R. v.
    MacCormack
, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 48;
R. v.
    Tsigirlash
, 2019 ONCA 650, at para. 23. This is an aspect of what is
    commonly referred to as the rule against similar fact evidence.

[43]

The rule exists to prevent prejudice to the
    accused, including that arising from a jury reasoning that a person who has engaged
    in disreputable conduct alleged in one count has a propensity or disposition to
    do the type of act charged in another count:
R. v. Handy
, 2002 SCC 56,
    [2002] 2 S.C.R. 908, at para. 31.

[44]

Where the presumptive rule applies, such that
    evidence on one count is not admissible on another, a particular jury
    instruction is warranted. As this court said in
Dawson
, at paras 25-26:

[25]
three related points must be
    brought home to the jury to counter the prejudice inherent in a multi-count
    indictment.  the second two are really just examples of the first. The first
    is that only the evidence admissible with respect to the particular count can
    be considered when determining guilt or innocence on that count (the
    instruction to keep the evidence relating to each count separate). The second
    is that a finding of guilt on one count is not evidence of guilt on another.
    And the third is that evidence of discreditable conduct or criminal acts cannot
    be used to reason that the accused is the type of person who would have
    committed any of the offences (the propensity reasoning instruction).

[26] The fact that the second two are actually examples of the
    first critical instruction  that the jury must keep the evidence on each count
    separate  means that failure to give a propensity warning is not always fatal.
    Rather, the court may tailor the charge in a particular case to suit the
    circumstances of that case. [Internal citations omitted]

[45]

The presumptive inadmissibility rule does not
    apply to credibility assessments of witnesses who have testified to facts
    admissible on more than one count. The verdict on each count of an indictment
    must, of course, be based on evidence admissible with respect to that count; in
    assessing the credibility of each witness, including the accused, the trial
    judge was entitled, however, to consider the totality of the evidence given by
    that witness:
R. v. P.E.C.
, 2005 SCC 19, [2005] 1 S.C.R. 290, at p. 291.

[46]

The Crown relies on
P.E.C.
to argue
    that the credibility issues here  the appellants attack on the credibility of
    the complainants, the need for the jury to consider the totality of their
    evidence to assess their credibility, and the need for the appellants
    credibility to be assessed on the totality of his evidence on all the counts  made
    the across count evidence admissible entirely apart from any similar fact
    considerations. I do not accept that argument as a complete answer to the
    appellants complaint.

[47]

Using the totality of the evidence to assess the
    credibility of a witness does not make the evidence on one count admissible on
    other counts; it does not permit the evidence to be used to support what would
    otherwise be a prohibited line of reasoning contrary to the rule against
    similar fact evidence:
P.E.C.
, at p. 291. Here, the appellants
    complaint is that the trial judge instructed the jury that, if they found
    counts to be similar, they could consider evidence on one count in support of
    the proof of guilt of the appellant on other counts. This goes beyond its use
    for assessing credibility to a use that would only be permitted if the evidence
    were actually admissible on each count.

[48]

Evidence on one count can be admissible on
    another if it meets the test for the admission of similar fact evidence, thus displacing,
    for that evidence, the presumptive inadmissibility rule. The test for admission
    of similar fact evidence involves considering whether the probative value of
    the evidence on a particular issue outweighs its prejudicial effect, thus
    justifying its reception:
Handy
, at para. 55. If the test is met, the
    evidence may be admitted to support a factual contention or inference advanced
    by the Crown, including that it shows a specific propensity of the accused to
    do the act charged:
Handy
, at paras 59-68.

[49]

The test is not met if the evidence does no more
    than show bad character or a mere or general propensity to engage in
    discreditable conduct such as a general disposition to criminal behaviour. Such
    evidence has little or no cogency on the issue whether specific criminal
    behaviour alleged in a specific charge occurred on the specific occasion alleged,
    let alone sufficient cogency to outweigh the significant prejudice it could
    cause:
Handy
, at paras. 71-72.

[50]

However, the test may be met where the evidence
    shows a particular distinctive propensity demonstrated by acts constituting
    particular manifestations or exemplifications of it  so long as it has some
    specific connection with or relation to the issues for decision in the subject
    case:
Handy
, at para. 92. This may be true of
    situation specific behaviour, or an observed pattern of propensity operating
    in a closely defined and circumscribed context, or repeated conduct in a
    particular and highly specific type of situation:
Handy
, at paras. 90-91. This sort of evidence has cogency because the
    pattern of circumstances in which [the] accused is disposed to act in a certain
    way are so clearly linked to the offence charged that the possibility of mere
    coincidence, or mistaken identity or a mistake in the character of the act, is
    so slight as to justify consideration of the similar fact evidence by the trier
    of fact:
Handy
, at para. 91. This evidence may
    be admissible if its probative value exceeds its prejudicial effect:
Handy
,
    at para. 55.

[51]

In
Handy
,

the accused was charged with sexual assault
    causing bodily harm. The complainant testified that consensual sex turned into
    non-consensual sex accompanied by physical abuse when the accused refused to
    take no for an answer. At issue was whether evidence of the accuseds ex-wife
    of incidents she had experienced at his hands should have been admitted. In the
    course of his reasons, Binnie J. at para. 120 explained how to conceptualize
    the type of reasoning the admission of such evidence would engage:

If the jury could legitimately infer sexual
    intransigence in closely comparable circumstances from the respondents past
    behavior and refusal to take his wifes no for an answer, the present
    complainants testimony that intercourse occurred despite her lack of consent gains
    in credibility. The issue broadly framed is credibility, but more accurately
    and precisely framed, the issue in question in this trial was the consent component
    of the
actus reus
and in

relation to that issue the
    respondents alleged propensity to refuse to take no for an

answer.

[52]

Such evidence could only be admitted to allow that
    type of reasoning if the test for admission of similar fact evidence were met.
    In my view, the use of evidence across counts in this case was designed to
    engage a similar type of reasoning. It was to show that the appellant had a
    specific propensity to molest his grandnieces  who were similar in age  in a
    defined context  when he was alone with them during family visits. Indeed,
    that was exactly what the Crown, in oral argument in this court, stated was relevant
    about the across count evidence. In order for the evidence to be used this way,
    the test for similar fact evidence admission needed to be met and the jury
    properly instructed on its use. I turn now to that issue.

[53]

The appellant complains that there was no formal
    application for the admission of similar fact evidence, and no precise
    identification of the issue or purpose for which the evidence was to be used. I
    would not give effect to those submissions.

[54]

Rule 30 of the
Criminal Proceedings Rules for the Superior
    Court of Justice (Ontario)
, SI/2012-7, requires the Crown to bring an
    application before trial if it is seeking to admit evidence of similar acts
    (whether included in other counts or not) (r. 30.02(1)). The Crown is required
    to file a notice of application, setting out, among other things, a detailed
    description of the presumptively inadmissible evidence the [Crown] seeks to
    introduce and a precise, case-specific statement of the basis and grounds
    upon which the evidence is said to be admissible (rr. 30.03(1)-(2)).

[55]

Non-compliance with the Rule is not something
    which should be treated lightly. A Crown request to admit such evidence is a
    requirement which flows from its presumptive inadmissibility and the need for
    an appropriate process to determine whether that presumption should be
    displaced in a specific case:
Tsigirlash
, at paras. 26-27. Here, a
    request but not a formal application was made at the pre-trial conference. On appellate
    review, the absence of a formal application may not be fatal if the request
    gave the defence a meaningful opportunity to respond and lay the groundwork for
    a proper admissibility inquiry:
Tsigirlash
, at para. 27,
R. v.

T.B.L
. (2003), 173 O.A.C. 159 (C.A.), at pp. 161-162;
R. v. Graham
,
    2015 ONCA 113, 330 O.A.C. 394, at para. 32.

[56]

Here, the Crowns request provided the defence a
    meaningful opportunity to respond at the pre-trial conference. Further, the
    defence also had a meaningful opportunity to respond in the six months between
    the pre-trial conference and trial. It was left open at the pre-trial conference
    for
amicus

to advise the Crown and the court
    if there was an objection to evidence being admitted across counts as similar
    fact evidence.
Amicus
, who had been appointed
    to advise the appellant about legal issues, advised at the pre-trial conference
    that he would be speaking to the appellant about the issue. And the defence also
    had a meaningful opportunity to respond at the pre-charge conference.

[57]

The Crown request as articulated at the
    pre-trial conference did not expressly identify the purpose for which the
    similar fact evidence would be used. The purpose for which the evidence is to
    be used is critical to determine if there is a basis for admissibility:
Handy
, at paras. 73, 82 and 99. However, I would not view that deficiency
    as determinative in this specific situation, for two reasons. First, the
    specificity of the Crowns request was a function of the position the defence
    was taking. That position was a lack of objection to the evidence being used
    across counts. At no time did the defence or
amicus
indicate that more specificity was needed before a response was
    articulated. Second, this was at its core a case with one overarching issue:
    did the offences occur as the complainants described them? The appellants
    defence was a denial either of what occurred or that what occurred had the
    character alleged. The purpose of the evidencethe issue the evidence would go
    to--namely whether there was a pattern of behaviour showing the appellant engaged
    in acts of a certain character in specific circumstances--was obvious. Indeed,
    the trial judge in his charge described that purpose: a pattern of similar
    conduct that confirms each complainants testimony that the offences took
    place.

[58]

An admissibility inquiry is required when
    similar fact evidence is in issue. The trial judge has a gatekeeper function,
    namely, to decide the threshold admissibility question of whether the evidence
    on one count may be considered by the jury on any of the others. As outlined
    above, the trial judge decides this question based in part on whether the
    allegations reveal a pattern of similar conduct. However, once the trial judge
    determines the evidence is admissible across counts, it is entirely within the
    province of the jury to decide whether they consider the conduct
sufficiently
similar to make any inference based on a pattern of similar
    conduct:
R. v. Simpson
(1977), 35 C.C.C. (2d)
    337 (Ont. C.A.), at pp. 345-46,
per
Martin
    J.A., quoted with approval in
R. v. Arp
,
    [1998] 3 S.C.R. 339, at para. 65. Once the evidence is before the jury, the trial
    judges duty is to guide the jury through that process with an adequate
    instruction about the permitted and prohibited uses of this evidence:
R.
    v. J.A.T.,
2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 50
.

[59]

The trial judge effectively considered
    admissibility of the evidence across counts in the context of how he would
    charge the jury. This was appropriate. In a multi-count indictment case, the
    similar fact evidence issue is not whether the evidence will be heard at all,
    but whether evidence the jury has heard, because it was properly admissible on
    one count, can properly be taken into account on another. The trial judge
    invited submissions, in the pre-charge conference, on what the jury should be
    told they could and could not do with such evidence. Failing to conduct a
    separate admissibility hearing in these circumstances does not justify
    appellate interference, especially given the absence of any defence objection:
Graham
,
    at para. 32.

[60]

In my view, the across count evidence here was
    admissible as similar fact evidence. It was not evidence of a general
    disposition. The evidence can fairly be described as showing a pattern of
    behaviour in a closely defined and circumscribed context demonstrating a
    specific propensity of the appellant to act in a certain way in certain
    circumstances, namely when he was alone with his grandnieces and could take
    advantage of the opportunity provided by family visits. The differences among
    the offences did not materially detract from their relevant similarity. In
    cases of sexual offences, the dissimilarities between the sexual acts or the
    body parts involved are often not as compelling as the similarity in the
    circumstances surrounding the incidents:
R. v. B.(L.)
(1997), 35 O.R.
    (3d) 35 (C.A.), at pp. 52-54.

[61]

Although the trial judge did not expressly weigh
    probative value against prejudice, or engage in a precise review of
    similarities and dissimilarities as contemplated in
Handy
, at paras. 121-131, this is understandable given the way the matter
    was discussed before him. No submission was made that the evidence lacked
    probative value. There was no argument that prejudice outweighed probative
    value. The focus of some of the discussion appears to have been about the
    similarity of the acts or body parts, but I do not take those as indicative of
    an agreement of lack of essential similarity of circumstances. I agree with the
    Crown that all we can take as having been agreed at the pre-charge conference
    was the content of the final jury charge itself. It was clear from the
    discussion, and the final jury charge, that to the extent there might be
    prejudice to the appellant, that was properly dealt with by the limiting
    instructions in the charge itself.

[62]

Accordingly, the trial judge did not err in his
    gatekeeper function in allowing the jury to consider whether the acts alleged
    in any particular count were similar to the others, and if so found, to use the
    evidence on the other counts, to decide whether each offence took place.

[63]

Nor was there any error in the way the jury was
    instructed. The jury was instructed that each count required its own proof. It
    would have been clear to the jury that to the extent they did not find the acts
    similar, they could only convict the appellant of a count based on the evidence
    related to that count. As well, the charge made it clear that in no event could
    the jury use prohibited propensity reasoning; they were expressly told that
    even if they found the appellant guilty of any of the counts they could not use
    that to conclude he
is a person of general bad character or disposition
    who likely committed the acts charged in any other count because of that bad
    character or disposition
.

[64]

Although the charge did not provide the jury
    with an invitation to list similarities and differences in order to decide if
    acts were similar, it instead provided an example of what might be considered
    similar. That example involved similarities of sexual acts and body parts
    involved, as well as of circumstances. If anything, this would set the bar for
    similarity higher, rather than lower, that it otherwise might have been. There
    was no prejudice to the appellant flowing from this approach.

[65]

In reaching these conclusions I do not equate
amicus
with defence counsel, nor consider the appellant bound by positions or
    statements of
amicus
. Nor in my view does anything turn on the timing
    of the appointment of
amicus
at the pre-trial conference, compared to
    when, at the pre-trial conference, similar fact evidence was discussed. The
    appellant had the benefit of being able to consult with
amicus
on the
    Crown request about across count evidence from the time of the appointment of
amicus
until and through trial, including about the jury charge.  Given the terms
    of the appointment of
amicus
and his involvement, the trial judge did
    not fail in any duty to assist the appellant in relation to the similar fact
    evidence issues.

B.

The Trial Judges Aide Mémoire Ruling

[66]

A trial judge has a duty, while maintaining
    impartiality, to assist a self-represented accused to understand the issues and
    conduct the defence. But the scope of the duty depends on what is reasonable in
    the circumstances, and must be considered in light of the trial judges other
    duties, including to ensure a fair and efficient trial in which the rules of
    evidence are respected:
R. v. McNeice
, 2019
    ONCA 836, at para. 9.

[67]

In my view, there was no error in the trial
    judges discretionary ruling on the appellants request to use documents to jog
    his memory. The appellants evidence was being led by
amicus
at the appellants request, and the trial judge was entitled to conclude
    that would obviate the need for an
aide mémoire
. Moreover, the appellant was invited to review documents before
    completing his evidence to ensure he had said all he wanted to.

[68]

I would not give effect to this ground of
    appeal.

C.

The Trial Judges References to the Appellant

[69]

An inadvertent misstatement by a trial judge in
    a charge, quickly corrected, does not justify a speculative assumption that the
    trial judge was expressing a personal opinion on the guilt of the accused or
    that the jury would take it that way:
R. v. Wilson
, 2013 ONCA 222, at para. 8.

[70]

The two references by the trial judge during the
    charge to the appellant as Mr. Guilty (a similar misstatement to that in
Wilson
) were promptly corrected, and were the subject of a clarifying
    instruction.

[71]

The jury could not be taken to have understood
    the trial judges statements to be other than inadvertent slips. Indeed, the
    first was made while he was explaining to the jury circumstances in which they
    must acquit.

[72]

In my view, these inadvertent misstatements did
    not cause prejudice. I would not give effect to this ground of appeal.


IV.

Conclusion

[73]

I would dismiss the appeal.

Released: G.R.S.

B.
    Zarnett J.A.

I
    agree. G. R. Strathy C.J.O.

I
    agree. David Watt J.A.


