IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The accused is charged with three Criminal Code offences, all of which are alleged to have occurred between July 1, 2017 and November 22, 2017. The offences may be summarized as follows:

[2]           The alleged victim in each case is identified by the initials B.T. She is the step-granddaughter of the accused and she had her 8^th birthday during the time period referred to in the Information.

[3]           In the course of the trial, a voir dire was held to determine the admissibility of certain similar fact evidence which the Crown proposed to introduce in proof of the charges. The defence objected to the admission of the similar fact evidence.

[4]           At the conclusion of the voir dire, I ruled that the proposed similar fact evidence was inadmissible in its entirety. I provided an oral summary of my conclusions at the time but indicated that I would provide written reasons in due course. These are the written reasons.

[5]           The trial has not yet concluded. Accordingly, it is important that in these Reasons I avoid commenting on any issues that are still to be resolved.

[6]           During the time period covered by the Information, B.T. lived with her parents. The accused, a middle-aged man, lived with B.T.’s paternal grandmother. The accused and the grandmother provided after-school care for B.T. two days of the week. They had done so for at least a couple of years.

[7]           On infrequent occasions the accused would provide after-school care for B.T. on his own. This occurred, for example, when the grandmother was out-of-town or was indisposed through illness.

[8]           The Crown alleges that the accused engaged in sexual misbehaviour toward B.T. on a number of occasions when he was supposed to be providing child care for her. Specifically, the allegations are that the accused engaged in the following misbehaviour:

[9]           On November 22, 2017, B.T. disclosed to her father that she was uncomfortable with the way in which the accused had been acting towards her. That disclosure led to B.T. providing a lengthy statement to the police the next day, outlining the specific allegations summarized above. That statement was audio-recorded and video-recorded.

[10]        At the trial the Crown invoked the procedure contemplated by section 715.1, seeking to introduce B.T.’s recorded statement into evidence. B.T. adopted the contents of the statement as her evidence and the statement was ultimately admitted into evidence without substantial objection.

[11]        Placing the allegations into deeper context, I note that in her evidence B.T. described the circumstances surrounding the first two allegations in much the same way. She described the accused engaging in these forms of behaviour within the home which he shared with B.T.’s grandmother. She said that the behaviour occurred at times when the grandmother had stepped outside or into the bathroom for a cigarette, or was engaged elsewhere in the home. B.T. testified that the accused said nothing when he engaged in these acts, but would sometimes hold up his index finger to indicate that B.T. should be quiet. He did not touch her private parts on any of these occasions. When the grandmother returned to the room the accused would quickly cease his inappropriate behaviour and would act as if nothing had happened.

[12]        The third allegation, involving the accused touching the accused in her vaginal area, appears to be a separate, isolated incident. As I understand B.T.’s evidence, the incident happened on the same day as the accused took her swimming at a nearby lake, in the summer of 2017. They apparently went to the lake because B.T.’s grandmother was not well that day and wanted to rest alone at home.

[13]        B.T. stated that after the swimming took place and after they had returned home, she was lying on the floor in her bathing suit watching television when the accused, as a sort of prank, poured cold water over her. She was surprised and upset by the accused’s action and he attempted to comfort her. This led to him placing his hand inside her bathing suit and touching her vagina. The touching lasted for perhaps twenty or thirty seconds and simply ended with the accused removing his hand and returning to the video game he had been playing.

[14]        The Crown proposed to introduce into evidence the similar fact testimony presented by the witness C.F. C.F. is the sister of B.T.’s father. Thus, C.F.’s mother is B.T.’s grandmother and C.F.’s stepfather is the accused.

[15]        C.F. was 30 years of age at the time that she testified on this voir dire. She testified that her biological father departed the family home when she was about 8 years of age. A few months later, the accused moved in with her mother. C.F. remained in that home until she was 17 years of age. Thus, she lived with her stepfather, the accused, for a period of eight or nine years.

[16]        On November 22, 2017, C.F. received a telephone call from B.T.’s mother advising her that B.T. had just disclosed being “touched” inappropriately by the accused. B.T.’s mother asked C.F. if the accused had ever done any such thing to her. C.F. replied that he had tried to touch her, but had not actually done so. C.F. said nothing more at that time.

[17]        B.T.’s mother called C.F. a second time and asked her if she would tell the police what the accused had done to her in the past. She told C.F. that her own disclosure to the police might help the police to believe what B.T. was saying.

[18]        C.F. gave her statement to the police on November 30, 2017. It was the first time that she had ever disclosed these events from her childhood to anyone.

[19]        In her testimony on the voir dire, C.F. described a series of six events, all of which happened about 20 years ago, when she was nine or 10 years of age.

[20]        C.F. testified that the first incident occurred when she was watching television in the bedroom which her mother shared with the accused. She said that the accused came into the room and began to play an adult pornographic DVD through the television. She had never seen pornography before. She did not know how long she watched the DVD but she felt uncomfortable with it and eventually left the room. She thought that her mother was at work at the time.

[21]        The second incident also occurred while C.F. was watching television in the accused’s bedroom. She testified that she became aware that he was masturbating at a computer that was in a corner of the room. She did not know about masturbation at the time. In cross-examination, she conceded that she could not see the accused’s penis, but only the rhythmic movement that was occurring. She did not know what was on the computer screen. Neither the accused nor C.F. said anything, but C.F. felt uncomfortable and left the room.

[22]        The third incident occurred when C.F. was in her own room at a computer. She testified that the accused entered the room and went down on his knees. He tried to undo her pants. When she asked what he was doing he replied that he was going to show her “what she had been watching on that video”. C.F. took him to be referring to the pornographic video which she believes she may have seen about a month earlier, in the circumstances that I have already mentioned. She pushed his hands away and told him to leave, which he did. Again, C.F. testified that she believed her mother to be at work when this incident occurred.

[23]        The fourth incident (or perhaps group of several incidents) again occurred when C.F. was at the computer in her own room. She testified that the accused would go outside and urinate directly below her window. There was a functioning toilet in the residence so that urination outside was unnecessary. In response to the accused’s actions, C.F. would pull down the blinds over the window. Her mother again would likely have been at work when this incident (or series of incidents) occurred.

[24]        The fifth incident occurred when C.F. was joking around and pretending to take photographs with a camera which the accused kept in his bedroom. When C.F. pretended to take a photo of the accused, he pulled up his shorts and exposed his penis to the camera. C.F. said nothing but stopped “pretty quick” and went to her bedroom. Nothing was said.

[25]        C.F. apparently only remembered the sixth incident as she was giving her evidence on the voir dire. She had not mention it to the police. She said that she now recalled the accused pulling down her pants on one occasion “as a joke”. She provided no further details in her testimony.

[26]        The leading case on similar fact evidence continues to be the Supreme Court of Canada decision in R. v. Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908. In view of the difficult decisions that must be made in this elusive area of the law and also bearing in mind the overriding importance of the Handy decision in such cases, I have taken the opportunity to review the Supreme Court of Canada’s reasoning very carefully in the course of preparing my written decision in this case. It would be useful, I think, if I set forth some of the important principles which I derive from Handy, as well as the method of analysis which that case contemplates.

[27]        At paragraph 26 in Handy the Court makes the often-overlooked observation that similar fact evidence is in fact a form of circumstantial evidence. Its admissibility depends upon the validity of two inferences which the trier of fact is necessarily called upon to assess. The first inference concerns the propensity of the accused to engage in certain behaviour based upon past performance, while the second concerns the likelihood that the accused actually did engage in that behaviour on the occasion or on the occasions that are the subject of the charge(s) before the Court.

[28]        The Court in Handy then proceeds to note the long-standing exclusionary rule that applies with respect to similar fact evidence generally. At paragraph 31, the Court says this:

[29]        The Court goes on to describe in more detail the policy reasons for the exclusion, and does so using rather strong language. At paragraph 37, the Court states:

[30]        In view of the Court’s views concerning the important policy basis for the exclusionary rule, it is not surprising that the Court then goes on to describe the exception to the exclusionary rule in carefully circumscribed form. Thus, at paragraph 41, the Court says this:

[31]        The Court in Handy is then careful to point out that there is to be no relaxation of general principles in sex abuse cases. At paragraph 42, the Court states:

[32]        After an extensive review of general principles and case authorities, Handy describes the task which the prosecution must perform when it seeks to inject similar fact evidence into a trial proceeding. At paragraph 55 the Court concludes:

[33]        Handy then describes the general methodology which the trial judge must follow in determining whether to admit the similar fact evidence, and I turn to that now.

[34]        There is a preliminary step to be taken. Before embarking on the exercise of weighing probative value against prejudicial effect, the trial judge must identify the purpose for which the evidence is sought to be adduced. As the Court in Handy says at paragraph 73:

[35]        Once the purpose for introducing the evidence has been identified, the analysis must focus first on an assessment of the probative value of the evidence. This must be followed by an assessment of its prejudicial effect. The two assessments are weighed up, one against the other. When reaching a conclusion in the weighing-up process, the starting point is presumed inadmissibility, but that presumption will be rebutted if the Crown has established that the likely probative value of the similar fact evidence outweighs its potential prejudicial effect, on balance of probabilities: Handy, paragraph 101; see also R. v. K. (C.P.) (2002), 2002 CanLII 23599 (ON CA), 62 O.R. 3d 487 (CA), helpfully summazing the methodology.

[36]        Handy provides specific guidance to the trial judge who is called upon to enter into the first stage of the analysis by assessing the probative value of the proposed similar fact evidence. The following passage appears at paragraph 76 of the decision:

[37]        A similar passage appears at paragraph 48 in Handy, as follows:

[38]        Handy then lists some specific factors for the trial judge to consider when determining the “cogency” of the proposed similar fact evidence. Those factors, as set out at paragraph 82 of the decision, are as follows:

[39]        The Court in Handy notes, at paragraph 84, that the list should be considered only as a general set of guideposts. Not all factors need be considered in any given case, and indeed there may be other factors not included in the list that are relevant to a particular set of circumstances.

[40]        When applying the form of analysis contemplated in Handy to the similar fact issue presented in any given case, it is important to start by identifying the purpose for which the introduction of the evidence is sought.

[41]        The Crown submits that the similar fact evidence is probative with respect to the issue of credibility and to rebut any defence of innocent intent. The Crown also suggested that the similar fact evidence could help prove the modus operandi of a person with sexual interest in pre-pubescent girls.

[42]        For precisely the reasons set forth in Handy, I find that defining one of the issues as “credibility” is problematic. At paragraphs 115 and 116 of the Handy decision, the Court said this:

[43]        The Court in Handy thus re-defined the issue in such a way that the determination of credibility became a by-product of the issue properly defined, rather than the issue itself. Thus, at paragraph 120 of its decision, having regard to the specific fact pattern that was subject to analysis in that case, the Court said this:

[44]        It seems to me that the issue properly framed in the case before me is whether the actus reus of the various offences charged in the Information actually took place. Describing the issue in that way rather subsumes the Crown’s identification of the issues as involving credibility and the identification of a “modus operandi”. The similar fact evidence may well shed light upon those things, but that illumination comes about as a by-product from the investigation into the essential issue of whether or not the actus reus took place.

[45]        At the same time, I do accept that it is appropriate to identify one of the live issues in this case as the defence of innocent explanation, or, to put it another way, the sufficiency of proof of sexual intent on the part of the accused even if the Court is ultimately satisfied that he did commit some or all of the acts alleged against him. The admissibility of the proposed similar fact evidence, at least in theory, can properly be assessed as against that issue. As I said in my oral decision, however, that exercise may be a little difficult at this stage of the trial. It is too early to know whether any defence of innocent explanation will be put forward by the defence, or what it might look like if it is presented. The best I can do with that problem is to say that I appreciate that there is at least an air of reality to the prospect that the defence of innocent intent could arise in this case. As a result, it is appropriate that I give a decision now on the similar fact issue, but note that it could be subject to reconsideration at a later stage, depending on the manner in which the trial unfolds.

[46]        I turn, then, to an assessment of the probative value of the similar fact evidence, set against the issues as I have described them.

[47]        One of the anomalies resulting from the methodology contemplated by Handy is that the trial judge, in order to determine the probative value of the proposed evidence, must to some extent assess its credibility. Normally, this is not a task to be undertaken by the trial judge as the gatekeeper of admissibility, but is left to the ultimate trier of fact. The test contemplated by Handy requires, however, that in this instance the trial judge should make a determination at the outset as to whether the proposed similar fact evidence is at least reasonably capable of belief: Handy, at paragraph 134. If it is not, the inquiry need go no further.

[48]        I have concluded that the similar fact evidence given by C.F. was not inherently unreliable. It was at least reasonably capable of belief, and probably should be described in terms that are a good deal more positive than that.

[49]        I do acknowledge that there were some weaknesses in C.F.’s testimony. There were some contradictions and some implausibilities in what she said, but I do not accept that her testimony is so shot full of flaws that it falls below the standard required at this stage of the analysis. In that respect, I have to firmly bear in mind that she was testifying about events that happened a long time ago, when she was a pre-pubescent child. It is well-established law that any assessment of credibility in such circumstances must take a different, and much more subtle, course than it does with respect to the analysis of testimony given by adults concerning events that have only recently occurred.

[50]        This initial assessment of C.F.’s credibility must also take into consideration the possibility of collusion in the creation of her evidence. As the Court pointed out in Handy, though, the term “collusion” must be carefully defined. In the early stages of a prosecution, especially in the time immediately following an initial disclosure by a child complainant, there will frequently be contact amongst family members closely related to the complainant, involving discussions about the substance of the allegations. Such contact inevitably leads to at least the opportunity for family members to “collude” in the creation of damning similar fact evidence against the accused. Without more, however, the contact amongst family members and the resulting discussions amongst them do not in themselves amount to collusion. As the Court said in Handy at paragraph 111:

[51]        In the present case, there is no evidence of concoction or collaboration between C.F. and other members of B.T.’s family. There was contact between C.F. and B.T.’s mother, to be sure, and the mother provided encouragement to C.F. to speak to the police in order to support B.T.’s credibility with the police, but that evidence falls a long way short of raising concerns about collusion.

[52]        Handy speaks of “connectedness” or “degrees of similarity” as being the “principal driver” of any determination concerning the cogency of the proposed similar fact evidence. It is to that aspect of the analysis that I now turn.

[53]        The Crown submits that the similar fact evidence provided by C.F., when taken cumulatively, shows that the accused is a person who is sexually attracted to pre-pubescent girls. Moreover, in this case the Crown points out that C.F., like B.T., was in the care of the accused at the time when the alleged events of wrongdoing occurred, and that he acted at times when his common-law wife was conveniently absent from the home, where the events occurred.

[54]        I agree that the evidence provided by C.F. does, if accepted, suggest a propensity on the part of the accused to be sexually expressive to young girls. It also suggests that he acted upon his predilections by misbehaving toward girls of approximately the same age who were in his care, at times when his common-law wife was not present in the home.

[55]        The difficulty which I have in using those observations as the basis for an assessment of probative value is that the focus suggested for analysis is simply too general and imprecise to be truly helpful. I entirely accept that it is error to subject proposed similar fact evidence to a form of analysis which is so minute that it turns up dissimilarities that ought to be left to the trier of fact. In my view, there must be a balanced analysis, one which is not too general but also not too fine.

[56]        In this case, if I examine the evidence provided by C.F. in the balanced manner which I think is appropriate, I find that at least two of the six incidents which she described are so disconnected from the sort of behaviour which form the subject of the Information that they have virtually no probative value. In that respect I refer to the “second incident” and the “fourth incident” that I have referred to earlier in these Reasons, and I will explain my reasoning in a bit more detail now.

[57]        In the second incident, C.F. described the accused masturbating in a corner of the room where she was trying to watch television. She became uncomfortable with his behaviour and left the room. Even if I disregard the weaknesses of this testimony arising from the fact that C.F. only had a partial view of what was happening, did not know anything about masturbation at the time and did not know what prompted his actions, I still would conclude that the incident is of no assistance at all in establishing the “two inferences” described in Handy. Most obviously, the offensive behaviour that is the subject of the Information does not include masturbation. To describe C.F.’s evidence in this instance as demonstrating a general sexual affinity for young girls and therefore admissible is to cast the net far too broadly.

[58]        I have reached a similar conclusion with respect to the fourth incident described by C.F., in which the accused is described as urinating beneath C.F.’s bedroom window on various occasions, perhaps when he had been drinking. The connection between that behaviour and the subject matter of the Information is tenuous at best, in my view.

[59]        The other four incidents bear greater similarity to the alleged misbehaviour directed toward B.T., but they are all nonetheless inadmissible, in my view.

[60]        The sixth incident described by C.F. involved the accused attempting to pull down her pants on one occasion, perhaps as a joke. That is the sort of behaviour which closely parallels some of the testimony given by B.T., and could therefore fairly be described as having potential probative value. The difficulty with C.F.’s evidence in this instance, however, is that it is so vague and lacking in context that it is almost entirely robbed of its potential value. That is perhaps because C.F. did not recall this instance when she made her initial disclosure to the police and apparently only recalled it in cross-examination during the present voir dire. Not surprisingly, defence counsel did not ask her for any further detail and the Crown did not seek to pursue the matter through re-direct examination. It was simply left “out there” without being sufficiently developed so that it might constitute evidence of any real probative value.

[61]        That leaves for consideration the first, third and fifth incidents that C.F. described, and these incidents can properly be assessed as a group.

[62]        The fifth incident concerns the accused exposing his penis to C.F. at a time when she was playing with a camera in the home and pretending to take pictures. C.F.’s mother was apparently out of the home, at work, at the time. C.F. was approximately nine or 10 years of age. Apparently, nothing was said by either C.F. or by the accused after the accused exposed his penis, but C.F. became so uncomfortable or upset that she left quickly to go to her bedroom.

[63]        The first and third incidents must be viewed on a continuum. In the first incident, the accused placed a pornographic video into a VCR and began to play it, thereby interrupting a television program that C.F. had been watching. She became uncomfortable with the pornographic images and left the room, again without any conversation taking place between the accused and herself.

[64]        By itself that incident has nowhere near sufficient relevance to the matter charged in the Information to make it admissible. But it must be seen in conjunction with the third incident, occurring perhaps a month later, in which the accused is said to have attempted to have pulled C.F.’s pants down while she sat at a computer in her own room in the family home. When C.F. asked the accused what he was doing, he made reference to the pornographic video, saying that he was going to “show you what was on that video you watched”. Quite obviously, that comment could be taken as giving meaning to the accused’s actions in pulling down C.F.’s pants and could undercut any suggestion that when he later engaged in the same sort of actions with B.T. he was behaving with innocent intent.

[65]        The first, third and fifth incidents described by C.F. thus do contain features of sufficient similarity with the charges in the Information that they could be considered to have potential probative value at the present trial. Those incidents involve the exposure of the accused’s penis in the one instance and an attempt to pull down C.F.’s pants in the other instance, accompanied by an explanation regarding his intentions. The incidents took place in a context not unlike that described by B.T., although I must say that it is hardly a distinctive feature that a person engaged in the sorts of conduct described here would choose to do so only when he was alone in the home.

[66]        Unfortunately for the Crown, however, the process of analyzing the probative value of similar fact evidence does not end there. One of the other highly significant factors for the Court to consider is proximity in time between the similar fact evidence and the matter or matters actually before the Court for determination.

[67]        In the present case, the three incidents in C.F.’s evidence which I have identified as being at least worthy of careful scrutiny all took place nearly 20 years before the events described by B.T. The significance of that sort of time gap is referred to in Handy in the following terms, at paragraph 122:

[68]        If the behaviour which C.F. described in the first, third and fifth incidents had occurred reasonably close in time to the events described by B.T. they would have considerably greater probative value than they do in the present context. I have no information whatsoever about what has happened in the accused’s life in the meantime, whether involving counselling, treatment or punishment. I am merely being asked to infer, without more, that there is some probative value in the present case in determining whether or not the accused engaged in the behaviour which C.F. described as occurring at some time in the late 1990s. To my mind, that is a rather troubling proposition.

[69]        As against the assessment of probative value of the proposed similar fact evidence, I am required to consider its prejudicial effect. That aspect of the matter must be considered under two headings: moral prejudice and reasoning prejudice. I have essentially outlined the nature of the two types of prejudice in my reference to the reasons for the general policy of exclusion of similar fact evidence, and so my comments at this point will be somewhat limited.

[70]        The potential for “moral prejudice” should the similar fact evidence be admitted in this case is obvious. The nature of C.F.’s evidence is inflammatory. It reveals appalling behaviour on the part of the accused, reprehensible moral conduct of a sort that is at a very high level.

[71]        The risk is that evidence of morally reprehensible behaviour in another context in the past can lead the trier of fact to improper lines of reasoning in the matter before the Court. This is the “reasoning prejudice” of which the case law speaks. A trier of fact may be led into thinking that if the accused engaged in reprehensible behaviour in the past, he must have done it again, regardless of differences in fact patterns or events that may have happened in the intervening years. Equally, a trier of fact may be inclined to look at the matter before the Court now as deserving of a sort of rough justice: If the accused has engaged in this sort of behaviour in the past he does not deserve the same consideration now as a person without a disreputable past does.

[72]        There is a further aspect of the matter which deserves consideration under the heading of “reasoning prejudice”. There are many situations in which the exploration of previous discreditable conduct can be unduly distracting and time-consuming. That may well be true, for example, where the previous conduct is difficult to pin down in terms of detail or where there has been no prosecution and finding of guilt regarding the previous conduct. Those considerations apply fully here. C.F. has spoken of a number of different incidents a long time ago in the past, some of which she appears to recall only to a limited degree. The accused has never admitted to any of the incidents, either in court or elsewhere, and plainly is not inclined to admit any of them now. The potential for distraction from the central issue in the present case and the potential for considerable time to be taken up exploring C.F.’s allegations strike me as both being matters of serious concern.

[73]        Taking into account all relevant factors as best I can, I have concluded that none of the proposed similar fact evidence has been shown on balance of probabilities to be “so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”. Accordingly, the similar evidence will not be admitted.

[74]        I leave open the possibility that the Crown might renew its application for admissibility of the similar fact evidence depending on how the evidence at the trial unfolds.