R. v. T.L.M.

Date: 20110408 Docket: 10/26 Citation: R. v. T.L.M., 2011 NLCA 24 Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: T.L.M. APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 200901T2365 Appeal Heard: March 7, 2011 Judgment Rendered: April 8, 2011 Reasons for Judgment by Rowe, J.A. Concurred in by Welsh, J.A. Dissenting Reasons by Hoegg, J.A. Counsel for the Appellant: Bob Buckingham Counsel for the Respondent: Stephen Dawson Page: 2 Rowe, J.A.: INTRODUCTION [1] This is an appeal from conviction for two counts of sexual assault (s. 271), two of sexual interference (s. 151) and two of invitation to touch for a sexual purpose (s. 152). The accused, T.L.M., was the uncle by marriage of the complainant. She was 8 to 10 years old at the time of the alleged offences. [2] While there were several witnesses, the case turned on the credibility of the complainant and the accused. In each instance, the offence was alleged to have occurred with only the complainant and the accused present, although others were alleged to have been nearby on several occasions. The accused denied that any of the alleged offences occurred. [3] The central issue on appeal is the admissibility of similar fact evidence relating to conviction of the accused for sexual assault against K.T., an eight year old girl, around the time when the assaults against the complainant are alleged to have occurred. The trial judge accorded considerable weight to this evidence in convicting the accused on all counts. FACTS [4] The trial judge gave the following overview of the case in his decision (2010 NLTD 12) to admit similar fact evidence. 3 [T]he evidence of the complainant is that [the accused], her uncle by marriage to her mother’s sister, committed these alleged assaults and other crimes (collectively referred to as “the alleged assaults”) between 1 January 1996 and 31 December 1999 in two small rural communities in Newfoundland and Labrador which are 10 to 12 kilometres apart. 4 The complainant … says that between the ages of 8 and 10 years of age she was repeatedly assaulted by [the accused]. These alleged assaults included but were not limited to oral sex by her on [the accused], anal sex by [the accused] on her, fondling and sucking of her bare breasts and fondling of her vagina inside her clothing. The alleged assaults ceased when [the complainant] commenced menstruation. 5 Initially, when the alleged assaults started, [the accused] told [the complainant] not to tell anyone, a direction with which she said she complied Page: 3 until these charges were laid in the summer of 2008. She said the alleged assaults occurred in her parents’ house and her grandparents’ house and her family’s business premises, all in one of the communities, as well as in [the accused’s] house in the other. On most alleged instances, there were other children and/or adults in close proximity, often in another room just feet away from her and even in the same room, sometimes when he was babysitting [the complainant] and the other children. [5] Several incidents were described by the complainant in her testimony: (a) The complainant was at her grandparents’ home. She went down to the basement where the accused was working. Her grandmother was upstairs. The accused exposed his erect penis and asked the complainant to perform oral sex. She put her lips on his penis. (b) The complainant was at her grandparents’ house. She went into a room where the accused was. He had his pants down and started to unbuckle hers. In response to a noise, the accused quickly pulled up his pants. (c) The accused and his wife visited the complainant’s family home. The accused came to the door of the complainant’s bedroom. She told him to get out, but he came in, partly closing the door behind him. The accused put his hand under her pajamas and he felt her vagina. The living room where her parents were was down the hall. (d) The accused brought the complainant down to the basement in her parents’ house. He pulled up her skirt and bra, and began sucking her breasts, hard enough to cause bruising. (e) A couple of days later, at the same location, he did the same things. She was unsure if anyone was home at the time. (f) In the basement of her parents’ home, the complainant was watching TV with her brother and the accused’s son. The accused called her into the hall, told her to pull down her pants and bend over. He told her to keep talking to the boys. He had anal sex with her while she was leaning in through the doorway talking to the boys. The boys were between 5 and 8, and 4 and 6 at the time. [While the trial judge said that he believed the complainant’s testimony regarding the alleged assaults, he found regarding this one that anal intercourse had been attempted, but that no penetration had occurred.] (g) The accused was doing some carpentry work in an extension to the business premises of the complainant’s family. The complainant was with Page: 4 her family, who were viewing the extension. The accused asked for some help passing things up to him; her parents sent the complainant to do so. The accused got down off the ladder and touched her chest outside her clothing. Her parents were close by. (h) The accused and his wife were babysitting the complainant, as her parents were out of town. The accused and the complainant were home alone. The accused asked for sex; the complainant refused. Then, the accused’s wife arrived home, so the accused left her alone. (i) The accused was driving the complainant to his house to play with other children. While driving, he undid his pants and had the complainant perform oral sex on his erect penis. (j) The complainant was playing with her brother and the accused’s son in the latter’s room. The accused called her to come into his bedroom. When she went in, he asked her to perform oral sex. The accused’s wife arrived home, so the accused sent the complainant back to his son’s room. (k) The complainant, her brother and the accused’s son were in the living room of the accused’s house watching TV. The accused sat next to her on the couch. He put a blanket over her lap and put his hand down inside her underwear, touching her vagina. The accused’s wife arrived home, which ended the incident. [6] The trial judge admitted as similar fact evidence the following agreed statement of facts relating to the conviction of the accused for sexual assault on K.T., an eight year old girl, in August 1998 at the accused’s home: On or about the 1st day of August, 1997, K.T. attended the home of the [accused] to play with the [accused’s] son. K.T., who is female, was 8 years of age. K.T. recalled the [accused’s] son being approximately 5-6 years of age. K.T. believes she attended the [accused’s] home after supper. K.T. advised that she lived close to the [accused’s] home and knew the [accused]. K.T. attended the [accused’s] home by herself. Upon arrival K.T. initially watched a video on a television in an entertainment room (the “Video Room”). The latter activity was engaged in by K.T. with and in the presence of only the [accused’s] son and another neighbourhood child, C.M.. The video was watched by K.T. for 5-10 minutes. At that point, K.T. left the Video Room and proceeded to the [accused’s] son’s room to play a Nintendo game on another television (the “Nintendo Room”). When K.T. left the Video Room, the [accused’s] son and C.M. remained in the Video Room and did not leave with K.T. From Page: 5 the Video Room only the door of the Nintendo Room and a portion of the bed in the Nintendo Room can be seen. Upon entering the Nintendo Room, K.T. began to play the Nintendo and sat at a small plastic picnic table. During that time K.T. was alone in the Nintendo Room. Shortly thereafter, the [accused] entered the Nintendo Room and sat on a bed. At that point, K.T., who was still in the Nintendo Room, sat on the floor and continued to play Nintendo. At that time, K.T. moved and sat on the floor and continued to play the Nintendo. The [accused] then moved and sat on the floor besides (sic) K.T. The [accused] proceeded to place his hand through a hole in the crotch of the jogging pants of K.T. Underneath K.T.’s pants was a swimsuit. The [accused] touched K.T. on the flesh underneath her swimsuit. K.T. described the touch as a rubbing. K.T. described the touching as between her legs on her private front area. K.T. described the touch as lasting a few minutes. After the incident, the [accused] told K.T. not to tell anyone. Shortly thereafter the telephone rang. The phone was answered by the [accused] and K.T. was advised that her father, who was on the telephone line, required her to return home. K.T. who had since left the Nintendo Room and was again in the Video Room with the [accused’s] son and C.M., headed alone towards the kitchen to proceed outside the [accused’s] home to leave. The [accused] followed her to the kitchen. The [accused] told K.T. to stop and stated to her “let me do that again”. At that point the [accused] proceeded to touch K.T. again in a similar fashion as before. The latter incident lasted about 20 seconds. Immediately thereafter, K.T. proceeded to put on her boots to leave the [accused’s] residence. As K.T. was putting on her boots, the [accused] said to her “never tell that to anyone”. K.T. then left the residence. That evening, K.T. awoke from her sleep and disclosed to her mother the above noted incident. The matter was subsequently reported to the Royal Canadian Mounted Police at … . On 17 September 1997, the [accused] was charged with committing a sexual assault on K.T. pursuant to s. 271(1) of the Criminal Code of Canada. The [Crown] subsequently proceeded by way of Summary Conviction to which the [accused] entered a plea of not guilty. A trial was completed at … Provincial Court on 9 January 1998. On 13 February 1998, the [accused] was convicted of the above noted charge. [7] In his reasons for decision, the trial judge wrote (at para. 101): … I must now assess the weight to be assigned to [the similar fact evidence]. I assess that weight as high. It clearly, in my view, serves to rebut the defences of Page: 6 innocent association and lack of opportunity. It also bolsters the credibility of the complainant’s testimony. [Emphasis added.] [8] The trial judge entered convictions on all six counts, as follows: 106 I find that I do not believe the evidence of the accused nor has it raised a reasonable doubt in my mind. I accept the evidence of the complainant and the other witnesses for the Crown, except where otherwise stated in these reasons. On the basis of all of the evidence I accept, I find that the Crown has proved beyond a reasonable doubt that the accused is guilty on all counts. 107 I therefore find the accused, T.L.M., guilty on all counts. [9] While the trial judge in his review of the complainant’s evidence noted which incident in the Crown’s view related to which count in the indictment, in his conclusion he did not specify which incident formed the basis for his verdict with respect to each of the counts. ISSUES [10] Did the trial judge err in law by: (1) admitting the similar fact evidence, or (2) providing a composite verdict. ANALYSIS Similar Fact Evidence Generally [11] The leading statement of the law on similar fact evidence is contained in R. v. Handy, [2002] 2 S.C.R. 908. This Court in R. v. Conway, 2004 NLCA 51 adopted with approval an outline of the law in Handy, as set out by Barry J. (as he then was) at trial in R. v. Conway (2004), 218 Nfld. & P.E.I.R. 139. I reproduce here a portion of what Justice Barry wrote: [81] The law governing the admissibility of similar fact evidence is well summarized in Boilard, Guide to Criminal Evidence (updated to July, 2002), c. 4 and in the recent decision of the Supreme Court of Canada, R. v. Handy (J.) 2002 SCC 56 (2002), 290 N.R. 1; 164 C.C.C.(3d) 481 (S.C.C.). Although, as noted by Professional R.J. Delisle in his article “The Direct Approach to Similar Fact Evidence” (1996), 50 C.R.(4th) 286, at p. 288, the first principle of rational fact- finding is that all relevant evidence should be received, evidence that an accused Page: 7 has a propensity to commit criminal acts, adduced for the purpose of leading to the conclusion that the accused is a person likely from criminal conduct or character to have committed the offence for which the accused is being tried, is excluded as a “forbidden chain of reasoning” because of the dangers arising from its potential for prejudice and its ability to distract the trier of fact and to consume excessive time. It ignores the ability of people to change their ways and may encourage police to focus upon the “usual suspects” instead of “making a proper unblinkered investigation of each particular case”. Handy, paras. 31-40. [82] Despite the general rule of exclusion, if evidence of previous misconduct is “so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse” similar fact evidence may be admissible. Handy, at para. 41. The strength of the similar fact evidence must be such as to outweigh the danger that the trier of fact might be confused by the multiplicity of incidents and put more weight than is logically justified on the testimony relating to incidents outside of the indictment (“reasoning prejudice”) and outweigh the danger of convicting on the basis of criminal disposition (“moral prejudice”). Handy, paras. 31 and 42. [83] As Justice Binnie noted in Handy, at para. 27: “The contest over the admissibility of similar fact evidence is all about inferences, i.e., when do they arise? What are they intended to prove? By what process of reasoning do they prove it? How strong is the proof they provide? When are they so unfair as to be excluded on the grounds of judicial policy and the presumption of innocence?” [84] In certain cases, as noted by Sopinka, J., in R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, dissenting, at p. 751 [S.C.R.]: “The fact that the alleged similar facts had common characteristics with the acts charged, could render them admissible, and, therefore, supportive of the evidence of the complainant. In order to be admissible, however, it would be necessary to conclude that the similarities were such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence. …” The probative value of the inferences drawn from “common sense, intuitive notions of probability and the unlikelihood of coincidence” must be sufficient to show on a balance of probabilities that the probative value of the sound inferences exceeds any prejudice likely to be created. Handy, para. 42. As the “similar facts” become more focused and specific to circumstances similar to the charge, the probative value of propensity becomes more cogent. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a Page: 8 particular issue outweighs its potential prejudice and thereby justifies its reception. Handy, para. 55. [85] Whether or not probative value exceeds prejudicial effect can only be determined in light of the purpose for which the evidence is proffered. Handy, para. 69. The utility of evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact. Handy, para. 73. [86] The trial judge must evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted. Handy, para. 76. The degree of similarity required will depend upon the issues in a particular case, the purpose for which the evidence is sought to be introduced and the other evidence. Handy, para. 78. [Emphasis added.] Relevance in this Case [12] The similar fact evidence, if admissible, is relevant to credibility in the following way. At trial, Defence counsel attacked the credibility of the complainant on the basis that the incidents described by her were improbable, in that they had the accused risking discovery from persons nearby when he committed the offences. Defence counsel said: We would submit that this is perhaps the most unbelievable and farfetched of all the incidents that she alleges. She described that her pants were down, and [the accused’s] pants were down. The two little boys, one of which was her brother, the other was [the accused’s] son, were just feet away around the corner. It is unfathomable that [the accused] would take such a chance in the presence of his son and her brother. Quickly touching her privates would have been one thing, my lord. But again this is an incident where their pants were down and they were having anal sex for a period of time, and I believe she described it as being approaching the ten-minute mark. Had one or both of the boys decided to get up and come over, this would only have taken seconds, again they were only feet away, and, it would have been – you know, it could have very quickly happened that one or both of the boys could have gotten up and come over. If that was the case, there was no way that [the accused] would have been able to stop what he was doing and avoid being caught by either his son or his nephew. Transcript, Volume VI, page 2. And I can’t say to the Court that it’s impossible, but it’s highly, highly unlikely, and it would have been unbelievably bold and brave for [the accused], and Page: 9 reckless for [the accused], to attempt that (sic) such a thing with such a possibility that he would be caught. Transcript, Volume VI, page 3. We heard of another incident where he invited [the complainant] into his room; she sat on his lap; he asked her for oral sex. During this time the two boys, again her brother and [the accused’s] son, were diagonally across the hall in their bedroom. They could have run in at any point. Now the oral sex, as I remember the testimony, didn’t occur, but as she alleges if [the accused] had his way it would have been going on in the bedroom. And again there’s no way that he could avoid getting caught if they were right in the middle of it, and one or two of the boys decides – decided to get up and run into the room. Transcript, Volume VI, page 6. [13] Defence counsel said, in effect, “No one would be so reckless in committing an offence”. The Crown’s response, relying on the similar fact evidence, is that the accused is just such a person, that he has demonstrated a propensity to commit offences in the manner alleged and, accordingly, the complainant’s allegations should be believed and the accused’s denial of those allegations should be disbelieved. In short, because he did it before, you should now conclude that he has done it again. Probative Value [14] The analysis under Handy involves three main steps: (1) the probative value of the evidence, (2) the prejudice to the accused, and (3) weighing the probative value and prejudice. [15] In para. 82 of Handy, Binnie J. (for the Court) set out seven factors relevant to probative value: (1) proximity in time of the similar acts, (2) extent to which the other acts are similar in detail to the charged conduct, (3) number of occurrences of the similar acts, (4) circumstances surrounding or relating to the similar acts, Page: 10 (5) any distinctive feature(s) unifying the incidents, (6) intervening events, and (7) any other factors which would tend to support or rebut the underlying unity of the similar acts. [16] The trial judge considered each of these in turn (with the exception of (7), “any other factors”). [17] Regarding proximity, he noted that the assault on K.T. occurred during the same time period as the alleged assaults on the complainant. [18] Regarding the extent of similarity, the trial judge wrote in his decision admitting the similar fact evidence: 29 The actual assault on K.T. bears some resemblance to all the alleged assaults on [the complainant] in that it is a sexual assault on a female of 8 to 10 years of age. However, except for in one instance (and without diminishing the seriousness of the assault on K.T.), the severity of the assault on K.T. is far less invasive than those alleged on [the complainant]. 30 Most of the alleged assaults on [the complainant] were as invasive as sexual assault can get involving oral sex, anal sex and digital penetration, whereas the assault on K.T. involved touching her flesh in the vaginal area through a hole in her pants. There was no evidence of penetration. These are significant points of dissimilarity. [19] The trial judge went on to say that the accused might have continued to assault K.T. and these assaults might have become more “invasive” save that K.T. told her mother shortly after the complainant had assaulted her, thus heading off the possibility of further assaults. [20] Regarding the number of occurrences, the trial judge noted there was one occurrence (albeit two incidents in one day) involving K.T. [21] Regarding the circumstances surrounding or relating to the similar acts, the trial judge wrote: 33 I find that the contextual circumstances are quite similar between the alleged assaults on [the complainant] and the similar fact evidence: (a) both complainants were 8-10-year old females; Page: 11 (b) [The accused] stood in a position of trust at the time of each of the incidents; (c) [The accused] told both K.T. and [the complainant] not to tell anyone; (d) the assault in the similar fact evidence and most of the alleged assaults involving [the complainant] occurred while other people were close by in another room or indeed in the same room; (e) they were each invasive assaults, although the ones in the similar fact evidence were less serious than the allegations respecting [the complainant]. [22] I will consider each of these five factors in turn. - Regarding “both complainants were 8-10 year old females”, that points towards a propensity to assault pre-teen females. - Regarding “position of trust”, I am not confident this is correct. In any case, it adds little or nothing on the facts of this case. - Regarding “don’t tell anyone”, this adds little or nothing. - Regarding assaults “while other people were close by”, this is an important similarity. - Regarding “invasive assaults”, it seems to me this is a dissimilarity, rather than a similarity, in that what the accused did to K.T. was far less invasive than what he is alleged to have done to the complainant. [23] Regarding distinctive features, the trial judge wrote: 34 In my view there were at least a couple of distinctive features between the similar fact evidence and the alleged assaults on [the complainant]. In each case the victim was an 8 to 10-year-old female. There were other male children just a couple of years younger in respect of whom [the accused] also had opportunity but there is no evidence of assaults on them. Most striking, however, is the presence of other people in very close proximity to the location of the assaults, in either the next room or the same room, in both the similar fact evidence and the alleged assaults on [the complainant], which demonstrate a somewhat bizarre sense of bravado by [the accused]. One of these people who was only a few feet away (even though in several incidents they were children of tender years) could have walked in and caught [the accused] in the act. I find that this sense of Page: 12 recklessness is unusual and a unifying characteristic between the similar acts and the alleged assaults. [Emphasis added.] [24] The trial judge noted there were no relevant intervening events. Prejudice [25] The trial judge dealt with prejudice briefly, emphasizing the diminished possibility of both moral and reasoning prejudice because he was sitting as judge alone and not with a jury. He also underlined that there was no concern with the accused facing unproven allegations, as the similar fact evidence arose from an earlier conviction. [26] I would note what Binnie J. wrote at para. 139 in Handy, dealing with “moral prejudice”: It is frequently mentioned that “prejudice” in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Probative Value vs. Prejudice [27] Regarding weighing probative value and prejudice, the trial judge wrote: 42 In this case I find that, on a balance of probabilities, the Crown has proved that the probative value of the evidence outweighs its prejudicial effect. There has been no collusion established. There are significant similarities between the similar fact evidence and the allegations involving [the complainant]. The prejudice is somewhat reduced because the accused was convicted of the sexual assaults on K.T. arising out of the similar fact evidence and he has admitted the actus reus of the crime in the agreed statement of facts. As well, the prejudice is diminished because this is a judge alone trial. The similar fact evidence is relevant to the issues of the defences of innocent association and the lack of opportunity as well as the credibility of the complainant. Admissible and Inadmissible Propensity Evidence Page: 13 [28] In Handy, Binnie J. (under the heading “Differentiating Admissible from Inadmissible Propensity Evidence”) wrote at paras. 90-91: … Similar fact evidence is sometimes said to demonstrate a “system” or “modus operandi”, but in essence the idea of “modus operandi” or “system” is simply the observed pattern of propensity operating in a closely defined and circumscribed context. References to “calling cards” or “signatures” or “hallmarks” or “fingerprints” similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an 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. The issue at that stage is no longer “pure” propensity or “general disposition” but repeated conduct in a particular and highly specific type of situation. … [Emphasis added.] [29] Does the Agreed Statement of Facts relating to the accused’s assault on K.T. amount to a “calling card”, “signature” or “hallmark”? Does it constitute an “observed pattern of propensity operating in a closely defined and circumscribed context”? Does what the accused did to K.T. indicate “repeated conduct in a particular and highly specific type of situation”? [30] If there had been repeated occurences involving the accused and K.T. (or others), in which he committed sexual assaults while placing himself at risk of imminent detection, then I would say yes. However, there was only one. One occurence cannot be an “observed pattern of propensity”, nor can it be “repeated conduct in a particular or highly specific situation”. [31] Is there a “calling card”, “signature” or “hallmark” in the incident involving K.T. that links it with the alleged assaults on the complainant in this case? While there are similarities between what the accused did to K.T. and what he is alleged to have done to the complainant, it was not so distinctive as to constitute a “calling card”, “signature” or “hallmark”. [32] It would be different, of course, if the accused had been convicted of the alleged assaults against the complainant and those convictions were now being offered as similar fact evidence in a trial relating to the assault against K.T. In that situation, the accused would have shown an “observed pattern of propensity”/“repeated conduct in a particular and highly specific Page: 14 situation”. But that is not what we have here, as there was only one occurence involving the accused and K.T. CONCLUSION [33] In Handy, Binnie J. wrote at para. 153: A trial judge has no discretion to admit similar fact evidence whose prejudicial effect outweighs its probative value. Nevertheless, a trial judge’s decision to admit similar fact evidence is entitled to considerable deference: [R. v. B.(C.R.), [1990] 1 S.C.R. 717], at p. 739; and [R. v. Arp, [1998] 3 S.C.R. 339], at para. 42. [34] I will rely on the first part of Binnie J.’s formulation that a “trial judge has no discretion to admit similar fact evidence whose prejudicial effect outweighs its probative value”. In this case, the trial judge erred in principle by according undue probative value to the similar fact evidence in the context of the test for admissibility. He did so by failing to have regard to the guidance provided by the Supreme Court regarding admissible and inadmissible propensity evidence, as noted above. [35] The similar fact evidence not having been properly admitted, the conviction cannot stand. It is set aside and a new trial is ordered. Composite Verdict [36] In light of the foregoing, my comments on the form of the verdict are obiter. The trial judge should have stated which incident formed the basis for conviction with respect to each count in the indictment. He may have believed he had done so, in that when he reviewed the complainant’s evidence he noted the Crown’s view regarding this. However, nowhere does the trial judge state that he adopts that view. [37] This is a sufficiency of reasons issue, regarding which the Supreme Court of Canada provided guidance in R. v. M.(R.E.), [2008] 3 S.C.R. 3. R. v. Kienapple [38] As a further point in obiter, the “composite” verdict complicates an issue that would have arisen had the convictions been upheld. This further issue is the rule against conviction for multiple offences arising from the same conduct or, as it is usually referred to, the rule in R. v. Kienapple, Page: 15 [1975] 1 S.C.R. 729. (A more recent Supreme Court decision on this issue is R. v. Prince, [1986] 2 S.C.R. 480.) [39] On the facts of this case, if the accused was convicted of sexual assault (s. 271(1)) and sexual interference (s. 151) based on the same incident, there is jurisprudence (applying Kienapple) to the effect that both convictions could not be entered, that one would have to be stayed. See the Ontario Court of Appeal’s decision in R. v. S.J.M., 2009 ONCA 244. See also R. v. J.R. (1997), 157 Nfld. and P.E.I.R. 246 (Nfld. C.A.), para. 7. [40] To deal with potential Kienapple issues it is necessary to know which incidents are the basis for convictions for which counts. _____________________________ M. H. Rowe, J.A. I Concur: _____________________________ B. G. Welsh, J.A. Hoegg, J.A.: (Dissenting Reasons) [41] I cannot agree with my colleagues that the trial judge erroneously admitted the similar fact evidence in this case. In my view, the trial judge correctly stated and applied the law in concluding that the probative value of the proposed similar fact evidence outweighed its potential prejudice before deciding to admit it. There is no error in his approach or analysis. His decision to admit the similar fact evidence is deserving of deference and should stand. THE LAW [42] The law respecting admissibility of similar fact evidence is set out by the Supreme Court of Canada at paragraph 55 of R. v. Handy, 2002 S.C.C. 56: Page: 16 [55] Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception. In stating the above, Binnie J. noted this test to be an affirmation of the test stated by McLachlin J. (as she then was) in R. v. B.(C.R.) [1990] 1 S.C.R. 717, an earlier decision of the same court. [43] The application of this test in any case involves the trial judge assessing the probative value of the proposed similar fact evidence in relation to matters in issue, assessing the potential prejudice to the accused by its admission, and then weighing these competing factors to arrive at a decision on admissibility which aids in the achievement of justice. As Binnie J. stated at paragraph 150 of Handy, justice “includes society’s interest in getting to the truth of the charges as well as the interest of both society and the accused in a fair process.” [44] Appellate review of a trial judge’s decision to admit similar fact evidence, provided it has been arrived at after proper consideration of the factors, is entitled to deference. McLachlin J. states this succinctly in R. v. B.(C.R.) at page 734: Where a trial judge has properly addressed these concerns and, after weighing the evidence and its potential prejudice, arrived at a conclusion as to its admissibility, appellate courts will not lightly intervene. and at page 738: …. deference must be paid to the trial judge's conclusion on where the balance between prejudice and probative value lies with respect to a particular piece of similar fact evidence. [45] Binnie J. affirmed this deferential standard at paragraph 153 of Handy: 153. A trial judge has no discretion to admit similar fact evidence whose prejudicial effect outweighs its probative value. Nevertheless, a trial judge’s decision to admit similar fact evidence is entitled to substantial deference: B. (C.R.), supra, at p. 739; and Arp, [[1998] 3 S.C.R. 339] at para. 42. Page: 17 [46] This Court applied the deferential standard in R. v. Conway, 2004 NLCA 51, where it was shown that the trial judge had considered the appropriate factors in weighing the probative value of the proposed similar fact evidence against the prejudicial effect of admitting it before deciding to admit it. (paragraph 4) The deferential standard has long been recognized, as Cameron J.A. of this Court observed in her comprehensive review of similar fact evidence in R. v. Oldford (1999), 180 Nfld. & P.E.I.R. 114 (NLCA), a pre Handy decision. Such a deferential standard is usually applied when the decision under review involves a weighing or balancing of factors. THE TRIAL JUDGE’S DECISION Probative value [47] The trial judge’s decision in this case (dated October 19, 2009) shows that he correctly apprised himself of the law and conducted his analysis of the admissibility issue along the lines of the template suggested in Handy. [48] The Handy template requires probative value to be assessed by first considering whether the proposed similar fact evidence could be the product of collusion. The trial judge analysed the evidence and found no collusion. [49] Second, the trial judge ought to identify the issue which the proposed similar fact evidence is meant to address. As Binnie J. observed at paragraphs 69 to 75 of Handy, identification of the issue in question is an important control in considering whether probative value exceeds prejudicial effect because it shows whether the similar fact evidence relates to an issue beyond mere propensity. In most cases, like in this case, the trial judge must identify the issue or issues in question during the Crown’s case, and before the accused testifies. Here, the trial judge correctly determined that consent was not an issue in the trial due to the age of the complainant, and that the accused’s defence was that the complainant’s allegations could not be believed because they did not happen. It is clear from his decision that he saw that the proposed similar fact evidence was relevant to the defences of innocent association and lack of opportunity, and to the credibility of the complainant’s allegations. The defences of innocent association and lack of opportunity essentially raise issues of the accused’s credibility and are intertwined with the issue of the complainant’s credibility. The trial judge correctly identified that the similar fact evidence was relevant to these live trial issues. Page: 18 [50] The third area of probative value inquiry for a trial judge is the degree of similarity and dissimilarity between the direct evidence on the charges before the court and the evidence of similar facts. In this regard, Handy sets out several “connecting” factors for the inquiry, listed in the majority decision at paragraph 15, and emphasizes that “not every factor is useful in every case, and that cogency also depends on the other evidence”. (paragraph 121.) [51] The trial judge considered each of the factors listed in Handy. He found that the proximity in time of the similar acts was the same as in the within case. He found that the complainants in each case were of the same tender age and gender. He found that the assaults resembled each other in some respects but that the two assaults comprising the similar fact evidence were far less severe than those alleged by the trial complainant and the frequency of the similar assaults - there being two assaults on the same occasion - differed significantly from the frequency of assaults alleged by the trial complainant. In these respects he noted dissimilarity. However, the trial judge observed that the similar fact evidence complainant reported the assaults to her parents the day they happened, and her parents reported the incident to the police forthwith, thereby foreclosing further occurances, whereas the trial complainant did not report the accused’s alleged conduct toward her for many years. [52] The trial judge found the circumstances in which the similar fact assaults were committed quite similar to the trial assaults, and that there were “distinctive” features common to both complainants’ evidence. In particular, he noted that several of the assaults the trial complainant alleged took place while other people were nearby and oftentimes when Mr. Molloy was in a position of trust toward her, and that the same was so respecting the similar fact complainant’s evidence. In these respects, the trial judge found “striking similarity”, saying at paragraph 34: … Most striking, however, is the presence of other people in very close proximity to the location of the assaults, in either the next room or the same room, in both the similar fact evidence and the alleged assaults on D.M.N., which demonstrate a somewhat bizarre sense of bravado by T.L.M. … [53] As for the strength of the similar fact evidence, the trial judge properly accepted it as true. Mr. Molloy had been convicted of sexual assault in relation to the proposed similar fact evidence and it was put before the court in this trial by way of an agreed statement of facts. Page: 19 [54] There was no issue of an intervening act. [55] The trial judge concluded that the similar fact evidence had probative value beyond mere propensity. Prejudice [56] Similar fact evidence is, by its nature, propensity evidence. It is presumptively prejudicial. Handy explains that prejudice will inevitably inure to an accused from the admission of similar fact evidence, and therefore this prejudice must be assessed in every case, and then weighed against the probative value to determine whether, in the balance, one outweighs the other. If the probative value outweighs the prejudice, the evidence is admissible. [57] The prejudice inuring to an accused may be the risk of an unfocussed trial and wrongful conviction, referred to as moral prejudice, and/or reasoning prejudice, which occurs when the trier of fact infers guilt from propensity or general disposition. Moral prejudice embodies concerns about the trial going off course in order for the court to address the reliability of the proposed similar fact evidence (including allowing an accused to answer the similar fact evidence), and instructing juries as to the proper use of similar fact evidence. [58] The trial judge acknowledged that both moral and reasoning prejudice could inure to the accused. However, he found the risk of both types of prejudice to be somewhat ameliorated in this case because he was sitting as a judge alone and his mind was less likely to be poisoned by the similar fact evidence than those of jurors could be. He noted there was no risk of the court being side-tracked by unproven allegations to which the accused would have to respond, because the similar fact evidence was to be taken as true. Finally, he correctly observed that the similar fact evidence was not as egregious as the direct evidence of the complainant, so it was less likely that the court would be overwhelmed by it. In all, he assessed the prejudice to be less than usual. [59] The trial judge then weighed the probative value of the proposed similar fact evidence against its prejudicial effect and determined, on a balance of probabilities, that the Crown proved that the probative value of the proposed similar fact evidence outweighed its prejudicial effect. Page: 20 DISCUSSION [60] As indicated above, in my view the trial judge properly applied the law as determined by Handy. He stated the correct test, considered each of the factors, and came to a reasoned conclusion. His conclusion is supported by the evidence. [61] The majority judgment makes much of the fact that the similar fact evidence was of one incident (although two assaults), and therefore does not demonstrate a pattern similar to the assaults of which the trial complainant testified, or amount to a “calling card”, “hallmark” or “signature”, or constitute a pattern of conduct or “repeated conduct in a particular and highly specific type of situation.” These features are characterized in paragraph 29 as necessary for admissibility. [62] With respect, this is not the test for admissibility of similar fact evidence. There is no requirement that there be either a pattern of propensity, hallmark evidence or repeated conduct in a particular situation in order for similar fact evidence to be admissible. The test is clearly set out in paragraph 55 of Handy following a history and explanation of this law in the preceding paragraphs. Binnie J.’s comments in paragraph 91 about hallmarks, a pattern of circumstances, and repeated particular conduct are examples of similar fact evidence that are clearly at the admissible end of the spectrum precisely because they are so clearly linked to the offence charged that there is almost no contest as to their admissibility. No where does he say that similar fact evidence must demonstrate a pattern of conduct. Similar pattern is but one of several factors informing the similarities and dissimilarities aspect of the probative value analysis. If it exists, it supports admissibility. However, it does not have to exist for the evidence to be admissible. Neither does Handy say that hallmark evidence or repeated particular conduct is necessary for admissibility. Again, if they exist, they support admissibility, but Handy does not require either of them. What Handy requires is that the proposed similar fact evidence have probative value beyond mere propensity, and that if there is such probative value, it must outweigh the inevitable prejudice. [63] My colleagues are of the view that evidence of more frequent similar conduct, i.e. repeated similar conduct, would make the evidence more likely to be admissible. While such evidence could well be admissible, the prejudice to an accused resulting from its admission would be greater, therefore affecting the balancing exercise in a way that would make it more Page: 21 difficult for the evidence to be admitted. To my mind, the fact that there was only one previous similar incident decreases the chance that a court could be overwhelmed by the evidence. In any event, the point is that frequency, pattern and repeated acts are not required for admissibility. What is required is relevance to a live issue beyond mere propensity, where the value of this relevance is not outweighed by the assessed prejudice. [64] In Handy, the similar fact evidence was far more egregious than the direct evidence relating to the charge before the court. Moreover, and quite aside from the serious collusion issue, the similar fact evidence arose in a completely different context than that of the allegation at trial. And, it was also unproven, which required reliability concerns to be addressed at trial. Consequently, the concern of prejudice was great. [65] In this case, the similar fact evidence was far less serious than the trial complainant’s evidence, thus reducing the likelihood that the court would be unduly impressed by it. Also, there was no concern about its strength, because the evidence had already been proved and Mr. Molloy had already been given full opportunity to challenge or otherwise respond to it. Consequently, there was no chance that the trial would go off the rails, and no chance that a jury would be overwhelmed by or give undue weight to it. In short, there was less prejudice for the probative value of the evidence to outweigh. [66] In Conway, the seriousness of the similar fact evidence was on a par with that of the complainant (it was not more inflammatory) and it was unproven. The trial judge found little risk of moral prejudice but higher risk of reasoning prejudice due to the similar fact evidence showing the accused to have discreditable tendencies. Nevertheless, he found the allegations to be so similar with respect to a pattern of conduct and the use of certain locations for the alleged activity, which went to a live trial issue beyond propensity, that he found the high prejudice was outweighed by the probative value, and admitted the evidence. His decision was upheld by this Court. [67] The similar fact evidence admitted in this case related directly to a live issue at trial, that being the accused’s “innocent association” defence that the complainant’s allegations, by their nature and circumstances, were unbelievable because he would not have been so “unbelievably brave and bold” and “reckless” as to sexually assault a child when others were nearby. The similar fact evidence squarely addressed the accused’s denial of such Page: 22 bravery, boldness and recklessness. His assertion that he would not have been so foolish as to sexually assault a child when others were nearby was challenged by the similar fact evidence showing that he had done just that in remarkably similar circumstances before. In this regard, the similar fact evidence went directly to the credibility of the accused’s defence as well as to the credibility of the complainant’s allegations. The similar fact evidence is relevant, not to the accused having sexually assaulted someone in the past, but to his having done so in distinctly similar circumstances. The similar fact evidence derives its cogency not from mere propensity, but from the distinct circumstances of the impugned conduct. It was situation specific in a particular and highly specific way, as the trial judge found. In this regard, it accords with one of the standards referenced in the majority judgment, that being the “repeated conduct in a particular or highly specific type of situation” excepting only that the conduct was not “repeated”. [68] In B.(C.L.), the Supreme Court of Canada upheld a trial court’s admission of similar fact evidence because it was situation specific, in that the similar fact evidence showed the accused had a distinct propensity to abuse children to whom he stood in a parental relationship. The high court noted the admissibility of the evidence to be borderline, but deferred to the trial judge’s decision to admit it on the basis that its probative value outweighed its prejudicial effect. The same and more could be said about the similar fact evidence in this case. Specifically, the accused had a distinct propensity to sexually abuse young girls who were playing in his home, and was reckless as to detection given that others were in close proximity. [69] This case is also similar to the situation which existed in R. v. Lepage, [1995] 1 S.C.R. 654, a case noted by Binnie J. at paragraph 87 of Handy. In Lepage, Sopinka J., writing for the majority, ruled the similar fact evidence of a roommate that the accused “was a major [drug] dealer in the house” relevant to the specific issue of possession of drugs which was a live issue at trial, and therefore admissible. [70] In summary, the similar fact evidence in this case went beyond mere propensity; it was rationally connected to the credibility of the complainant’s allegations and the credibility of the accused’s defence. These were live issues at trial. The trial judge makes clear in his decision that the similar fact evidence was admitted for its relevance to whether the complainant’s allegations could be believed and not to general propensity. When he weighed this probative value against the inevitable prejudice, which he assessed to be lower than usual, as discussed in paragraphs 18 and 25 above, Page: 23 he determined that the Crown had met its burden of establishing that the probative value outweighed the prejudicial effect. His analysis was lawful and his determination is well supported by the evidence. [71] The Appellant has not shown that the trial judge proceeded on any wrong principle, that he committed any legal error or that he failed to address any appropriate issue. Moreover, it has not been demonstrated that the prejudice inuring to the accused by the admission of the similar fact evidence outweighed its probative value. In these circumstances, and having regard to the deference which must be accorded the trial judge in admitting similar fact evidence, his decision must stand. [72] I generally agree with my colleagues’ comments concerning composite verdict. However, I cannot say that the trial judgment is so deficient that the convictions cannot stand. To my mind there is an intelligible basis for the convictions based on the trial judge’s judgment of November 25, 2009. In this regard, I rely on the reasoning of the court in R. v. H.S.B., [2008] 3 S.C.R. 32 and in R. v. R.E.M., [2008] 3 S.C.R. 3. [73] As for whether the Kienapple principle is offended by the fact that the accused was found guilty on all charges, I agree with the submissions of both the Crown and the defence, which are the same, that a judicial stay in relation to the count #1, a charge of sexual assault, be entered. All other convictions stand, for they relate to separate incidents and do not engage Kienapple. ______________________________ L. R. Hoegg, J.A.