The Defence Toolkit - October 28, 2023: "An Inferential Gap"

This week’s top three summaries: R v Jackson, 2023 ONSC 5707: #knowledge & possession, R v Shylga, 2023 ABKB 583: #NCRMD, and R v Saucier, 2023 ONSC 5269: #similar fact for s.271.

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R v Jackson, 2023 ONSC 5707

[October 11, 2023] Possession: The element of Knowledge - Dismissal at Preliminary Inquiry [Allen J.]

AUTHOR’S NOTE: In law, possession is established by proof of knowledge and control. Here, a visitor was staying in the basement room of a friend's house over several nights. A police search discovered a gun in a jacket along with ammunition in a satchel in the basement closet. The question is whether there was any evidence on the directed verdict standard to prove that the temporary guest had knowledge over those times. Arguments advanced by the Crown included the usual "a person would not leave such a valuable item far away from themselves". However, beyond this there was not much to go on for the element of knowledge. Justice Allen outlines the law of possession and permissible inferences at a motion for a directed verdict and finds that the test in Sheppard could not be met in these circumstances. The case provides a great summary of the law in the area with a useful ending for the Defence.

BRIEF BACKGROUND

[1] On August 9, 2022, members of the Toronto Police Guns and Gangs Task Force were involved in a firearm investigation regarding Tyrone Jackson. A Criminal Code search warrant was executed in relation to 14 Auburndale Circle, Unit 105, and a black Mercedes. The police seized a loaded prohibited Charter Arms firearm and ammunition inside Unit 105. Nothing of any relevance was recovered in the Mercedes. Mr. Jackson was arrested and charged with possession of a firearm and ammunition and violations of prohibitions against possession of the same.

[2] At the completion of the Crown’s case the defence brought a motion for a directed verdict.

THE LAW

On Directed Verdicts

[3] The law on a directed verdict is a creature of common law. An application for a directed verdict may be brought by the defence or the judge on their own motion at the completion of the Crown’s case. The task for the trial judge is to direct a verdict of acquittal on a finding that the Crown has failed to adduce any evidence with respect to one of the essential elements of the crime, in this case, possession of a firearm and ammunition.

The principles governing a directed verdict are well known.

The test for a directed verdict is the same as the test for committal at a preliminary hearing and that is whether there is any evidence, which if believed, a reasonable jury, properly instructed, could return a finding of guilt: [United States of America v. Sheppard (1976), 30 C.C.C. (2d) 424 (S.C.C.), at p. 427; v. Charemski, [1998] 1 S.C.R. 679, at para. 28; R. v. Arcuri, [2001] 2 S.C.R. 828, at para. 21].
The Crown’s case must be taken at its highest. The judge does not assess credibility. The judge’s task is to determine whether, if the Crown’s evidence, whether direct or circumstantial, is believed, it would be reasonable for a properly instructed jury to infer guilt. [ v. Charemski, at para. 4; R. v. Arcuri, at para. 30].
Any reasonable interpretation or permissible inference from the evidence, properly admissible against the accused, beyond conjecture or speculation, is to be resolved in favour of the prosecution. Some evidence, if only at the level of a scintilla of evidence, must however exist respecting the constituent elements: [ v. Coke, [1996] O.J. No. 808, at para. 9].
Where the Crown’s evidence consists of or includes circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence to determine if the evidence can support the inferences that are required for a conviction on each element of the offence: [ v. Arcuri, at para. 29; R. v. Charemski, at para. 30].
The limited weighing does not require assessing the inherent reliability of the evidence but rather should be regarded as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. If the court determines there is no evidence meeting that threshold, the court shall order the entry of a judgment of acquittal: [ v. Arcuri, at para. 30].

On Possession

[4] The essential elements of possession are knowledge and control, both elements to be proved at trial by the Crown beyond a reasonable doubt. Possession can be proved by direct or circumstantial evidence or by a combination of direct and circumstantial evidence to be established on the totality of the evidence: [R. v. Pham, 2005 CanLII 44671 (ONCA), at para. 18. The Criminal Code defines “possession” in s. 4(3) to include personal or actual possession, constructive possession and joint possession.

[5] With regard to personal or actual possession the requirement of knowledge is comprised of two elements: the accused must be aware that he or she has physical custody of the thing in question and must be aware of what that thing is. Both elements must co-exist with an act of control: [R. v. Morelli, [2010] 1 S.C.R. 253, at para. 16)].

[6] Constructive possession is established where the accused: (a) has knowledge of the character of the object, (b) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (c) intends to have the object in the particular place for his use or benefit or that of another person: [R. v. Morelli, at para. 17]. Constructive possession requires: (a) knowledge of the item; (b) intent to possess the item; and (c) control over the location of the item: [R. v. Kocsis, 2001 CanLII 3593 (ON CA), at paras. 7 and 8].

[7] The court is entitled to draw appropriate inferences from the evidence that the unlawful item is found in a place under the control of an accused in circumstances where there is also evidence from which a proper inference may be drawn that the accused was aware of the presence of the item: [R. v. Pham, at para.18; R. v. Sparling, [1988] O.J. No.1877 (Ont. C.A.); and R. v. Chambers, 1985, C.C.C. (3d) 440, at p. 448, (Ont. C.A.)].

[8] The court must guard against speculation and conjecture in arriving at inferences. Courts have raised cautions against having resort to this erroneous tendency. An inference that does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation: [R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 551]. A gap in the chain of reasoning in the evidence cannot be overcome by speculation or conjecture: [R. v. Munoz, [2006] 86 O.R. (3d) 134, at para. 28]. The following passage from R. v. Arcuri offers guidance to distinguish conjecture and speculation from reasonable inferences drawn from the facts:

[W]ith circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established - that is, an inferential gap beyond the question of whether the evidence should be believed. ... The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.

[R. v. Arcuri, at paras. 31- 32]

[9] The case before this court is purely circumstantial. Constructive possession of an unlawful item found on a property can be established where the accused is shown to have control over the property searched and knowledge that the item is in the place. And further, in order to constitute constructive possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed: [R. v. Pham, at para. 15].

[11] In this case, the Crown must adduce circumstantial evidence sufficient to establish that Mr. Jackson had knowledge and control of the ammunition located in a satchel and the firearm found in a pocket of a black fur jacket, both recovered from closets in the basement where Mr. Jackson was found during the search. I am required to determine whether the evidence is rationally capable of supporting the inferences the Crown seeks to have drawn from the circumstantial evidence and to decide whether those inferences should be drawn.

THE EVIDENCE

Execution of the Search Warrant and the Search

[13] Surveillance was conducted at 14 Auburndale Circle on the afternoon of August 7th. On that day, police observed Mr. Jackson leaving the entrance of the building. Officers also observed Mr. Jackson leave a parking spot outside the building, drive away, and return to that spot shortly afterwards. On August 7th, the police learned from the property manager that Mr. Jackson parked his black Mercedes on a daily basis in one of the spots assigned to Unit 105. Officer Harris also saw the black Mercedes parked in the same spot on the morning of August 9th before the search.

[14] On August 9th at 7:31 a.m., on the authority of a search warrant, officers of the Toronto Police Emergency Task Force breached the door of 14 Auburndale Circle, Unit 105. Officer Hynek entered the basement and walked down a few steps where a few metres from the bottom of the stairs he encountered Mr. Jackson wearing a black t-shirt and shorts.

[15] Officer Simas searched the basement closet located on the stairway and recovered a loaded firearm in the inside pocket of a black fur jacket hanging in that closet. After retrieving the firearm, the officer got a sweater and running shoes from the basement for Mr. Jackson to wear.

[17] Officer Saccoccia searched what appeared to be a makeshift closet covered by a drape at the bottom of the basement stairs where he saw shoes and boxes of running shoes which he believed to be for men. He located a charcoal grey satchel where he found one round of ammunition in its front pocket and two boxes of ammunition in the main section of the satchel.

[18] Officer Saccoccia also located a blue backpack somewhere, he was not sure exactly where, in the basement that contained pieces of mail, two of which were addressed to Mr. Jackson at an address other than 14 Auburndale Circle, Unit 105.

[19] Officer Harris was the SOCO officer and while taking photographs in the basement, he located and seized a key fob for the black Mercedes that was subject to the warrant.

Evidence of Civilian Witnesses

[20] The Crown called Jordan Exton, the property manager of 14 Auburndale Circle. He advised the police that there were several people staying in Unit 105 on August 9th, both adults and children, who were related to Mr. Lewis in some way. The Crown also called some of those persons as witnesses.

[21] Mr. Exton gave information about his observations of Mr. Jackson at 14 Auburndale Circle. His evidence was that Mr. Jackson had first been parking in visitors’ parking and because at times he over-stayed, he was ticketed on some occasions. Mr. Exton eventually allowed him to park outside the building in one of the spots assigned to Unit 105, which one of the documented occupants, Mark Lewis, paid for. Mr. Exton saw Mr. Jackson drive in and out of the parking lot in his Mercedes during the day and would see his car parked in the assigned spot in the evening.

[22] Mr. Exton would occasionally see Mr. Jackson in the hallway of the building going to Unit 105. He estimated that he began seeing Mr. Jackson at 14 Auburndale Circle about one month or so before he spoke to the police officers on August 7th. From his communications with Mr. Jackson, Mr. Exton believed that he was staying with Mr. Lewis to walk the dogs.

[25] Mr. Thompson did not reside in Unit 105. He was invited to go there on the morning of August 9th to make breakfast and he arrived there at 5:00 a.m. He was in the kitchen on the main floor making breakfast when the police arrived and after the police pushed him to the floor he was allowed to take the dogs outside. He was ordered upstairs with the women and children.

[26] Mr. Thompson had known Mr. Jackson for many years. He had not been in the basement that day or previously. He had no information about Mr. Jackson living or being in the basement. Mr. Thompson had been in Unit 105 on previous occasions as Mr. Lewis would occasionally ask him to walk and feed his dogs when he worked in Fort Erie. Within the month before August 9^th, he was at Unit 105 a couple of times to walk the dogs. Mr. Thompson did not own the firearm or ammunition and had no knowledge of either.

[27] Mr. Lewis’s 14-year-old daughter, Zahara Bushie-Lewis, was asleep in a bedroom upstairs in Unit 105 at the time of the search. She did not live there but was staying there for the summer. She knew Mr. Jackson as a close friend of her father. By August 9th, she had been there for one to one-and-half weeks.

[28] Ms. Bushie-Lewis only went to the basement to do her laundry which she did every two weeks. On one occasion she picked up her grandmother’s laundry in the basement. Her evidence was that she was uncertain whether Mr. Jackson was already staying in the basement when she arrived. She was not sure where he was staying but she knew he left the basement during the day and returned in the night.

[29] Ms. Bushie-Lewis knew nothing about the firearm and ammunition. She believed she saw the black fur jacket in the basement on one occasion when she was doing laundry. She never saw her father wearing that jacket.

[30] As noted, Mr. Lewis is an occupant registered on the lease and has resided at 14 Auburndale Circle, Unit 105 for about five years. He occasionally works out of town. He was working in Fort Erie from June 2022 to the end of July/beginning of August 2022. Mr. Lewis returned home from Fort Erie about nine days before the search. Although he was in Toronto during the search, he was not present at Unit 105 when the search was conducted. He works two jobs during the hours of 4:00 a.m. to 4:00 p.m. everyday. He went to work before the search was conducted on August 9th.

[31] Mr. Lewis explained how it came to be that Mr. Jackson was at his home on August 9^th. Mr. Jackson asked if he could stay with him because he was having family problems. Mr. Lewis agreed in exchange for Mr. Jackson feeding and walking his dogs while he was working in Fort Erie. He testified that Mr. Jackson stayed in the basement during the months of June, July and August, 2022. Mr. Lewis described Mr. Jackson’s role in relation to Unit 105 during that period as “house sitting.” He gave Mr. Jackson a key to Unit 105 and left for Fort Erie.

[32] Mr. Lewis explained the many articles that were contained in the basement closets where the firearm and charcoal grey satchel were found. He ran a business in the basement in connection with a clothing brand he created and often had photo shoots there. Many friends and others came and went from Unit 105. Various family members came to live there for periods of time.

[33] The old jackets, shoes, and shoe boxes in closets in the basement belonged to Mr. Lewis and to others who had stayed there. There is no evidence that people came and went while he was in Fort Erie or during the nine days after he returned home. Mr. Lewis had no knowledge of whether Mr. Jackson stored his belongings there. Mr. Lewis’s evidence was that no one other than Mr. Jackson lived in the basement. He did not know whether Mr. Jackson stayed anywhere else.

[34] Mr. Lewis did not possess a firearm or ammunition in his home and was not aware of the firearm or ammunition seized by the police from the basement. He did not recognize the black fur jacket, the firearm, the charcoal grey satchel containing the ammunition or the blue backpack containing the mail. Those items did not belong to him. He said the jacket did not look like it belonged in his house.

APPLICATION OF THE LAW

[37] In combination with the facts explaining why Mr. Jackson was occupying the basement, there are additional facts from which reasonable inferences can be drawn that he had control of the basement before and at the time of the search.

the fact that the property manager saw Mr. Jackson’s black Mercedes in the visitor’s parking lot on a daily basis and that he subsequently allowed him to park in a spot assigned to Unit 105;
the fact on August 7th officers saw Mr. Jackson drive from the assigned spot and return to it and that in the morning, shortly before the search, an officer saw his Mercedes was parked in the assigned spot;
the fact that during the search police officers encountered Mr. Jackson in the basement in the early hours of the morning wearing a black t-shirt and shorts;
the fact that officers assisted Mr. Jackson by retrieving clothing from the basement and helping him to dress in a sweater, pants and socks from which a reasonable inference can be drawn that those clothes belonged to Mr. Jackson given that he had been staying there for over two months by the August 9th, and would reasonably have his own clothing there;
the fact that a key to Mr. Jackson’s Mercedes was located on a table in the main area of the basement;
the fact that two pieces of mail bearing Mr. Jackson’s name were located by an officer in a blue knapsack in the basement;
the fact that Ms. Bushie-Lewis was staying in Unit 105 and was aware that Mr. Jackson was staying in the basement and knew he left in the morning and returned in the evening;
the fact that Mr. Lewis gave Mr. Jackson a key to Unit 105 when he left for Fort Erie;
the fact that Mr. Lewis described Mr. Jackson’s obligation at the home as “house sitting” which reasonably infers that Mr. Jackson was more than a found-in or mere visitor; and
the fact that there is no evidence that anyone else lived in the basement at the relevant time.

[38] I find that those facts in combination, in the totality of the evidence, offer sufficient circumstantial evidence that at the time of the search Mr. Jackson had control of the basement re the firearm and ammunition were found. Those inferences are drawn from the evidence before the court and are not based in conjecture or speculation. Thus, sufficient evidence of the essential element of control has been satisfied.

Knowledge

[39] There is no direct knowledge in this case. Knowledge must be inferred from circumstantial evidence. Circumstantial evidence of knowledge like circumstantial evidence of control must be found in the facts of the case. An inference of knowledge must flow logically and reasonably from established facts. If not, the inquiry falls into the forbidden realm of conjecture and speculation. Where an inferential gap exists, it can only be properly overcome by evidence. It cannot be overcome by speculation or conjecture.

[40] I find there is an inferential gap between Mr. Jackson’s control of the basement where the contraband was found and his knowledge of the contraband. There is a gap in the chain of reasoning that I conclude cannot be filled by the facts before the court. I find the Crown resorted to speculation to show Mr. Jackson had knowledge of the firearm and ammunition. While I found control of the basement in the established facts there is nothing beyond speculation that Mr. Jackson had knowledge of the firearm and ammunition found there. There must be more than control of the place.

[42] There were people coming and going from the basement before the search, although perhaps not within the nine days. The defence submitted that a reasonable inference can be drawn that the firearm and ammunition belonged to someone other than Mr. Jackson. The defence based the inference on a common practice among criminal elements, outside persons living in a household, to secretly stash contraband in a place in order to hide their criminal activity.

[43] The Crown’s submission on that argument focused on the value in a criminal context of a firearm and ammunition to make the point that it is not reasonable for someone to leave such valuable things in a place out of their presence. It follows from that submission, in the Crown’s estimation, that the firearm and ammunition which he kept proximate to him in the basement, belonged to Mr. Jackson. That is a possible inference that may be drawn.

[44] I am required to resolve any reasonable interpretation or permissible inference from the evidence in favour of the prosecution. But when I consider the inference the Crown wishes the court to make I find the Crown strayed into the realm of speculation and conjecture to establish Mr. Jackson’s knowledge.

[45] That is, there is no information, nothing in the surrounding circumstances, from which the court can reasonably infer that Mr. Jackson was connected to the contraband. There is nothing to show he was aware of the contraband. Both the firearm and ammunition were hidden from plain sight inside an interior jacket pocket and a satchel stored in closets filled with many shoes and boxes, old jackets, and clothing. There is, thus, an inferential gap in the evidence insofar as there is nothing in the established facts that connects Mr. Jackson to the contraband besides his control of the basement.

[47] In the case before this court, I see no evidence even of quiescent or passive knowledge. There is no circumstantial evidence of any measure of Mr. Jackson’s control of the contraband. There is evidence of control of the basement. But is this sufficient to establish knowledge of the contraband?

[48] There are cases that stand for the proposition that control of a place in itself is not sufficient to establish control of illegal items found in a place. I find instructive R. v. Grey, a decision of the Ontario Court of Appeal involving facts somewhat analogous to the case before this court.

[49] …[R. v. Grey, 1996 CanLII 35 (ON CA)].

[50] R. v. Grey, at page 32, cited a passage from a decision with facts apposite to the facts in the case before this court:

In my view the mere finding of an article buried in the garden of a householder does not, in itself, and in the absence of some evidence indicating his knowledge of its existence, or consent to its remaining in that place, or some other surrounding circumstances from which a reasonable inference could be drawn inculpating the householder, discharge the burden of proof of possession resting upon the Crown and thrust upon him the necessity of furnishing evidence of his own innocence.

[R. v. Haggarty (1946), 1946 CanLII 367 (BC CA)].

[51] R. v. Grey, at page 33, concluded as follows:

In the present case no other evidence connected the appellant to the drugs, there was no direct evidence of knowledge, the drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment, and the appellant was not a permanent occupant. The circumstantial evidence does not therefore support a finding that the appellant had knowledge of the crack cocaine. Accordingly, the finding that the Crown had proved possession was unreasonable.

[52] Another court held in a drug case that the occupancy of a room was not in itself evidence of possession and that even if there was some slight evidence that the accused knew of the presence of the cocaine, the accused lacked the necessary measure of control over the drug: [Re Chambers v. R. (1985), 1985 CanLII 169 ONCA, at p. 6].

[53] Taking the Crown’s case at its highest, I cannot conclude that circumstantial evidence of the essential element of knowledge has been made out.

DISPOSITION

[54] As held by the Ontario Court of Appeal in R. v. Kocsis, constructive possession requires knowledge of the item, intent to possess the item and control of the location of the item. Control of the location has been established but knowledge of the contraband has not and there can be no intent without knowledge.

[55] For reason that the Crown has failed to demonstrate from the circumstantial evidence facts from which reasonable inferences can be drawn that Mr. Jackson had both control and knowledge of the firearm and ammunition, I accordingly, acquit Mr. Jackson of all charges on the indictment.

R v Shylga, 2023 ABKB 583

[October 17, 2023] NCRMD: Incapacity to Know Their Act was Morally Wrong [Eric F. Jacklin J.]

AUTHOR’S NOTE: Knowledge that an act constitutes a criminal offence is not the same as knowledge that it was morally wrong. The reasons in this case examine how a person with no prior documented history of mental illness who is diagnosed with a delusional disorder can be successful in advancing the defence of NCRMD. The evidence here showed that the accused knew killing someone was a crime and that killing someone was generally wrong, but his delusional beliefs caused him to believe that killing the deceased in this matter was not morally wrong because he believed he was acting in self-defence. He believed that his former partner, and humanity faced an imminent existential threat.

I. Introduction

[1] Victor Shygla (Accused) is charged with first degree murder contrary to s 235(1) of the Criminal Code of Canada. On August 13, 2023, the Accused stabbed Sviatoslav Oliynichenko (Slava) in the neck, which caused his death. The Accused admits that he caused Slava’s death but pleads that he is not criminally responsible as he was suffering from a mental disorder at the time of the offence that rendered him incapable of knowing that his actions were wrong.

II. Agreed Facts

[2] On August 13, 2022, the Accused stabbed Slava in the neck, which caused Slava’s death. The stabbing occurred in the basement of the Accused’s home in Edmonton. The Accused invited to his home Slava and Slava’s girlfriend, Ekaterina Zviagina (Ekaterina). They arrived at approximately 20:00.

[3] After spending time in the back yard, all three went inside the home. Ekaterina went to the washroom. The Accused and Slava went to the basement where the Accused stabbed Slava in the neck. When Ekaterina went to the basement, she found Slava bleeding profusely from wounds to his neck. Ekaterina called 911 and a friend, Avi Sianov (Avi), who also called 911.

[5] Cst Johnson was the first EPS officer to have contact with the Accused. He noted the Accused to have a “rather expressionless look on his face” and that the Accused was cooperative with police commands.

[6] EPS officers went to the basement where they found Ekaterina with Slava, who was lying face down and motionless with significant wounds to his neck.

[7] The autopsy on Slava’s body confirmed two knife wounds to the back of his neck: one perforated the right jugular vein and the other partially penetrated the carotid artery and caused disarticulation of the C2 and C3 vertebrae in the neck. There were also multiple blunt force injuries to the face and scalp and an acute traumatic brain injury. The cause of death was determined to be sharp force injuries to the neck and blunt force injuries to the head.

[9] Where a defence of not criminally responsible due to mental disorder is raised, it must first be determined whether the actus reus has been proved beyond a reasonable doubt by the Crown. If the Crown meets its burden of proof with respect to the actus reus, the accused must prove on a balance of probabilities that a mental disorder exists. If the accused does not prove a mental disorder exists, the court must then consider whether the Crown has proved beyond a reasonable doubt the mens rea for the offence charged. In other words, the issue of capacity should be considered after the actus reus has been proved and prior to considering whether the Crown has established the mens rea for the offence charged: R v Chaulk, [1990] 3 SCR 1303; R v David, 2002 CanLII 45049, [2002] OJ No 3455 (QL) (ONCA); R v McClenaghan, 2008 ABCA 7, leave to appeal denied [2008] SCCA No 226.

[10] Since the Accused has acknowledged that he caused Slava’s death, the actus reus has been established beyond a reasonable doubt.

[11] The Accused pleads that he is not criminally responsible for Slava’s death because at the time he was suffering from a mental disorder that rendered him incapable of knowing that his actions were wrong. The onus is on the Accused to establish this defence on a balance of probabilities.

a) Criminal Responsibility

[12] The traditional fundamental principle of the common law is that an individual’s responsibility for criminal behaviour results only from voluntary actions. This important principle is based on a recognition that it would be unfair to impose the consequences and stigma of criminal responsibility on an accused who did not voluntarily commit an act that constitutes a criminal offence: R v Bouchard-Lebrun, 2011 SCC 58 at para 45.

[13] A voluntary act must be the product of a person’s free will. Accordingly, one cannot be found criminally responsible for an involuntary act. From a moral perspective, criminal responsibility is attributed where the individual has exercised a “true choice” or has acted with “free will.”

[14] Like voluntariness, the requirement of a guilty mind is rooted in respect for individual autonomy and free will and acknowledges the importance of those values to a free and democratic society. Criminal liability also depends on the capacity to choose – the ability to reason right from wrong: R v Ruzic, 2001 SCC 24 at para 45. The presumption that arises from this basis for attributing criminal responsibility is that each individual can ordinarily distinguish right from wrong.

[15] Section 16 of the Criminal Code recognizes that there may be exceptional circumstances that justify departing from the general principle that an accused is deemed to be autonomous and rational. It provides:

16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

[16] Section 16 addresses the situation where a mental disorder from which an accused is suffering renders that person incapable of appreciating the nature and quality of the act or of knowing that it was wrong. That is, it applies to a person who is not capable of morally voluntary conduct as his or her actions are not the product of free will. In such cases, s 16 exempts an accused from criminal liability.

b) Section 16 Requirements

[18] To successfully establish a defence of mental disorder, an accused must establish on a balance of probabilities that:

(a) he was suffering from a mental disorder in the legal sense at the time of the alleged events; and

(b) due to his mental condition, he was either incapable of appreciating the nature and quality of the act or knowing that it was wrong.

IV. Evidence

a) The Accused’s Background

[19] Information concerning the Accused’s background was given in evidence by his sister, Lidiya Shylga (Lidiya), by the Accused in a statement given to the police on August 14, 2022, and through interviews with medical experts by the Accused and his family.

[21] The Accused was born in Mariupol, Ukraine. Lidiya, his only sibling, is three years older. When the Accused was 17, he and Lidiya moved to Israel with their parents joining them about three months later. Lidiya described their home as a loving one with no violence or abuse. They were a normal, happy family and she described the Accused as a normal, happy child.

[22] Due to language issues in Israel, the Accused had to leave college. He joined the military for three years. Lidiya testified that when the Accused returned, he was a different and more mature person. After the Accused left the Army, he attended college where he studied security systems and began installing them as a business contractor.

[23] In 2013, the Accused moved to Canada. He worked for a short time as a truck driver in Toronto before relocating to Edmonton where he established a construction and home inspection company.

[24] The Accused uses cannabis every couple of months on average and does not drink alcohol regularly and rarely to excess.

[25] The Accused has no criminal record, no prior involvement with mental health services, and no history of head injuries or seizures. He did recall one period while he was living in Israel when he was “more than depressed” for a period of three weeks after his relationship with a girlfriend ended.

V. Analysis

a) The Accused’s Mental State

[75] Section 2 of the Criminal Code defines a mental disorder as “a disease of the mind.” A disease of the mind includes “any illness, disorder or abnormal condition which impairs the human mind and its functioning”: Cooper v The Queen, [1980] 1 SCR 1149.

[76] A disease of the mind is a legal concept with a medical dimension. The question of what mental conditions are included in the term "disease of the mind" is a question of law. The trial judge must determine whether the condition from which an accused claims to have suffered satisfies the legal test for disease of the mind. This involves an assessment of the particular evidence in the case rather than a general principle of law. Whether the accused actually suffered from a disease of the mind is a question of fact to be determined by the trier of fact: R v Stone, [1999] 2 SCR 290 at para 197, cited in Bouchard-Lebrun at para 63.

[77] A disease of the mind includes any illness, disorder, or abnormal condition that impairs a person’s mind and its functioning. It does not include self-induced states caused by alcohol or drugs, or transitory mental states such as hysteria or concussion: Cooper at 1159. An alternative approach to the determination of whether an individual suffers from a disease of the mind is to consider a holistic approach to whether the conduct resulted from an internal cause or whether the individual poses a continuing danger: Stone at para 213; Bouchard-Lebrun at paras 70-73; R v Peterson, 2023 ABKB 176 at paras 22 – 25.

Conclusion on the Mental State of Victor Shylga

[78] At the time that the offence was committed, the Accused was suffering from a “delusional disorder, persecutory type.” The Accused did, and continues to, suffer from a major mental disorder as contemplated by s 16 of the Criminal Code.

[79] There is no evidence to suggest that the Accused’s mental state was caused by the use of any alcohol or drugs. Rather, the evidence reinforces that the Accused’s mental state was internally caused. The Accused continues to suffer from a mental disorder and at this time there remains a possibility of recurring danger to others mandating the need to ensure public safety.

b) The Effects of the Accused’s Mental Disorder

[80] The requirement that an accused knows that the act was wrong will exempt them from criminal responsibility if, at the time of the act, a mental disorder rendered them incapable of knowing that their act was morally wrong. An accused may know that the act of killing another person is wrong, but because of mental disorder, may not be capable of knowing that killing a particular person in particular circumstances is wrong: Chaulk; R v Oommen, [1994] 2 SCR 507 at 516; R v Longridge, 2018 ABQB 145 at paras 111 – 114.

[83] Dr. Zedkova opines that the Accused did not know the moral wrongfulness of his actions, despite his general knowledge that killing a person is wrong. The Accused believed that killing Slava was the right thing to do to protect himself and others. In her report Dr. Zedkova states: “It appears that, although he appreciated the nature and quality of his act, Mr. Shylga’s psychotic ideation prevented him from knowing the moral wrongfulness of his act.” That is, the Accused did not appreciate that his actions were morally wrong. Dr. Zedkova formed her opinion after analyzing all the information, and particularly the Accused’s descriptions of what he believed Slava had been doing and the “need to kill the danger to protect others.”

[84] Dr. Ennis also opines that the Accused’s psychotic symptoms prevented him from appreciating the moral wrongfulness of his actions. Dr. Ennis recognizes that the Accused understood the nature and quality of his actions in plunging a knife into Slava’s neck and that doing so could result in death. However, the Accused believed he was acting in self-defence and that his actions were justified in a moral sense. That is, the Accused did not believe his actions were morally wrong.

[85] Dr. Ennis opines that the Accused’s search for the laws relating to the carrying of a knife in Canada exhibited his concern about safety and self-defence.

[86] In his report Dr. Ennis states: “within the context of his delusional belief system, one in which he, his former partner, and humanity faced an imminent existential threat, Mr. Shylga’s violent actions towards Mr. Oliynichenko were not only justified but necessary.”

[87] The Accused continues to hold this belief and continues to suffer from acute paranoia.

Conclusion on the Effects of the Accused’s Mental Disorder

[88] The Accused did appreciate the nature and quality of his acts when he stabbed Slava. However, the Accused did not know or appreciate that his actions were morally wrong. The Accused was acting under a delusion that he, Iana, and others were being threatened at the time. That is, at the time of the offence, the Accused was not capable of knowing that stabbing and killing Slava was wrong in the circumstances that he believed existed at the time.

[89] I find on a balance of probabilities that at the time the Accused stabbed and killed Slava, he did not know that his actions were morally wrong.

VI. Conclusion

[93] It has been established beyond a reasonable doubt that on August 13, 2022 Victor Shylga caused the death of Sviatoslav Oliynichenko by stabbing him in the neck.

[94] I find on a balance of probabilities that at the time he caused the death of Sviatoslav Oliynichenko, Victor Shylga was suffering from a mental disorder that rendered him incapable of knowing that his actions were wrong. He is exempt from criminal responsibility by virtue of s 16(1) of the Criminal Code.

[95] Therefore, and in accordance with s 672.34 of the Criminal Code, I find that Victor Shylga committed the acts that resulted in the death Sviatoslav Oliynichenko but he is not criminally responsible for his death on account of mental disorder. I will not hold a disposition hearing under s 672.45 and direct that the Review Board hold a disposition hearing not later than 45 days from today pursuant to s 672.47(1). An extension will be considered under s 672.47(2) if exceptional circumstances exist. An original or copy of the transcript of all court proceedings and exhibits shall be sent to the Review Board without delay in accordance with s 672.45 (1.1).

[96] Finally, I direct that Victor Shylga be detained at the Alberta Hospital Edmonton until the Review Board makes a disposition.

R v Saucier, 2023 ONSC 5269

[October 17, 2023] Sexual Assault: Similar Fact Application [Bramwell J.]

AUTHOR’S NOTE: This case exemplifies an attempt by the Crown to suggest, on the slimmest of bases, that a prior sexual assault conviction was relevant to a current sexual assault charge as similar fact. Narrowed down to its essential elements, the submission that ultimately failed was to suggest that the similarity of: targeting vulnerable victims, who say NO, which included digital penetration, while standing during the assault, when the accused wanted to have sex was sufficient for similarity to be established. The method of tendering the prior evidence was through a reasons for sentencing from the concluded conviction. The attempt failed because in the court's opinion the similarities arose from too general of circumstances which could be applicable to almost any two sexual assaults. The probative value was incredibly low and amounted to an inference that the accused has engaged in unwanted sexual contact with a woman in the past. The application was rejected.

Introduction

[1] The accused is charged with one count of sexual assault against T.L. At the time of the alleged offence, the accused was the boyfriend of a friend of T.L.

[2] The Crown applies to admit evidence of prior discreditable conduct, or similar fact evidence, in the trial of the accused. The terms prior discreditable conduct and similar fact evidence will be used interchangeably throughout this decision. The Crown seeks admission of the facts surrounding the accused’s conviction for sexual assaulting K.D. There is no admissible evidence before me as to when the sexual assault of K.D. happened other than that it must have happened prior to May 10, 2012. I say that because the publication ban at his trial for that offence was put in place on that date. He was sentenced for that offence on September 20, 2013.

[3] The issue I must decide is whether the proposed similar fact evidence meets the test for admissibility as set out in the decision of the Supreme Court of Canada in R. v. Handy, [2002] S.C.J. No. 57 (“Handy”). Ultimately, the issue before the Court is whether the Crown has established that the probative value of the proposed evidence outweighs its prejudicial effect.

The positions of the parties

[4] The Crown submits that the proposed similar fact evidence meets the test set out in Handy. The Crown argues that the evidence is probative because it is relevant to the issue of consent and the proper determination of consent. He highlights the similarities in the conduct of the accused, and in particular, the circumstances surrounding the accused’s conduct with T.L. as compared to those surrounding his conduct with K.D. He argues that in each case:

a. The accused exploited a vulnerable victim/complainant;

b. The accused accessed the victim/complainant through a friend or relative of the victim/complainant;

c. There was isolation of the victim/complainant;

d. There was digital penetration of the victim/complainant while standing;

e. The accused told the victim/complainant that he wanted to have sex; and

f. The accused ignored the fact that the victim/complainant said “no.”

[5] The Crown relies on the above-noted asserted similarities to argue that the accused has a situation specific propensity to sexually exploit vulnerable females. He argues the evidence is highly probative, and minimally prejudicial.

[6] The Crown suggests that the prejudicial effect of the evidence is diminished since this is not a jury trial, and the court will not be at risk of engaging in general propensity reasoning.

[7] The accused argues that, because the proposed evidence relates to only one prior instance, from many years before the date of the alleged offence and given that the circumstances surrounding the sexual assault of K.D. are really not very similar to the allegations of T.L, the probative value of the proposed similar fact evidence is minimal to none and any probative value that it may have is outweighed by its prejudicial effect.

[8] The accused also argues that there is an “air of reality” to the possibility that there was

collusion between T.L. and K.D. because:

a. T.L. has K.D. as a friend on Facebook, though she does not know K.D.’s last name;

b. T.L. knows that the accused went to jail for “raping” K.D., which she knows because the accused told her; and

c. both T.L. and K.D. describe the accused putting his hand down their “pants” even though in T.L.’s case, she was wearing a dress.

Overview of the evidence

The current allegations

[9] T.L. alleges that one day in July 2020, she went to her friend Shannon’s house. While she was there, Shannon’s boyfriend, the accused, came over to Shannon’s. The three of them were in the living room on the couch together when the accused began touching T.L., hugging her and pulling her towards him and kissing her. T.L. told the accused “no”. At some point, the accused told Shannon, either by speaking to her or texting her, that Shannon should go to Shannon’s room. Shannon left the living room. T.L. and the accused were now alone, both sitting on the couch in the living room.

[10] The accused then began touching T.L.’s vagina, pulling her towards him and kissing her. The accused then stood up, took T.L.’s arms and stood her up and then put his penis in her vagina. T.L. said “no” throughout.

The proposed similar fact evidence

[11] The proposed similar fact evidence ultimately tendered by the Crown consisted solely of the transcript of the sentencing decision of Justice Brunet dated September 20, 2013.

[12] At some point prior to September 20, 2013, K.D. was at a mall in Cornwall with her sister. K.D., her sister and the accused went to the parking garage which had multiple stacked levels. All three of them went up to the top level of the parking garage. K.D. found herself alone there with the accused. She thought her sister was behind her but then realized that her sister was on the other side of the door to the top floor of the garage.

[13] The accused asked K.D. repeatedly to have sex with him. She refused. He took her arms and pinned her up against the wall, unzipped her pants, put his hand in her pants and rubbed her vagina. He then briefly digitally penetrated her. The incident ended with K.D. telling the accused to leave. He said he would leave if she kissed him. She refused and he took her hand and put it onto his crotch area where she felt his erect penis. K.D. was left with some bruises on her sides from where the accused had held her.

The applicable legal principles

[14] The law governing this application is set out in Handy….

…. The Court explained the policy basis for the exclusion of this evidence as follows, at para. 37:

The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible … .

[15] In Handy and R. v. Shearing, (2002) S.C.J. No. 59, the Supreme Court of Canada reaffirmed that similar fact evidence, or evidence of prior discreditable conduct, is only admissible where the prosecution establishes on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect. The Court noted at paragraph 41 in Handy that “an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”. The Court summarized the test for admissibility as follows at para. 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.

[16] The Supreme Court in Handy provided further guidance in the application of that test in cases where the Crown seeks to rely on the evidence to prove issues other than identity. The framework of the analysis suggested by the Supreme Court is as follows. First, probative value may be assessed in the following manner:

a. By considering the strength of the similar fact evidence, including the extent to which the evidence can be proven and any allegations of collusion. In particular:

i. Where there is an “air of reality” to allegations of collusion, the trial judge must be satisfied, on a balance of probabilities, that the similar fact evidence “is not tainted with collusion”; and

ii. Similar fact evidence may be “potentially too prejudicial to be admitted unless the trial judge is of the view it meets the threshold of being reasonably capable of belief”;

b. By identifying the “issue in question” (e.g. the live issue at trial to which the proposed similar fact evidence is said to be relevant and its relative importance in the particular trial.) If the evidence of prior discreditable conduct “is not properly capable of supporting the inferences sought by the Crown, generally, the analysis need go no further”;

c. By identifying the factors that connect the similar fact evidence to or distinguish it from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible. These “connecting factors” may, but need not include:

i. The proximity in time of the similar acts;

ii. The extent to which the other acts are similar in detail to the charged conduct;

iii. The number of occurrences of the similar acts;

iv. The circumstances surrounding or relating to the similar acts;

v. Any distinctive features unifying the incidents;

vi. Intervening events; and

vii. Any other factor which would tend to support or rebut the underlying unity of the similar acts. [Handy at para 82] [17] When the issues to which the evidence may be relevant do not include the identity of the perpetrator, as regards the degree of similarity required in the evidence, the Supreme Court held at para. 78 that:

[t]he point is not that the degree of similarity in such a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. As Grange J.A. correctly pointed out 20 years ago in R. v. Carpenter (1982), 142 D.L.R. (3d) 237 (Ont. C.A.) at p. 244:

The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.

[18] In discussing the difference between general propensity evidence, which is always inadmissible, and evidence of a specific propensity, which may be admissible, the Supreme Court in Handy also noted at para. 87 that “cogency increases as the fact situation moves further to the specific end of the spectrum.”

[19] After the probative value of the evidence has been assessed, its prejudicial effect must be considered. Handy confirms that with respect to the issue of prejudice, potential prejudice to the accused is assessed by considering the moral prejudice and the reasoning prejudice. Moral prejudice against the accused means the risk of convicting the accused because he is a “bad person”, rather than based on proof that he committed the offence before the Court. Reasoning prejudice means the risk of distracting or confusing the trier of fact, or of undue consumption of time, and the danger that the jury may have difficulty in disentangling the subject matter of the charges from the evidence of prior discreditable conduct: Handy at para. 83, R. v. Shearing at paras. 38-74.

Analysis

The probative value of the evidence

1. The potential for collusion

[22] I find that collusion is not a live issue on this Application. Although the accused argued, at the end of his submissions, that there is an “air of reality” to the idea that there was collusion between T.L. and K.D., there is absolutely no evidence of any such collusion before me.

2. The strength of the evidence that the prior discreditable conduct actually occurred

[27] I find that the proposed general evidence of prior discreditable conduct is strong in the sense that it was the subject of a trial and resulted in a conviction. On the other hand, the evidence about many of the specifics of the prior discreditable conduct associated with the prior conviction for sexual assault are weak or non-existent as a result of the form in which the proposed evidence has been put before the court – namely, the transcript of the sentencing decision of Justice Brunet.

3. Identification of “the Issue in Question”

[28] The Crown indicates the issues to which the evidence of prior discreditable conduct relate are consent and the exploitation of vulnerable victims…

…. The Crown argues that the proposed similar fact evidence suggests that the accused, having been convicted of such a similar offence, would be more – not less – aware of the issue of consent.

[29] The accused appears to take no issue with the framing of the proposed relevance of the evidence in this manner, but rather argues that the evidence is not sufficiently cogent to warrant admission for those purposes. The accused essentially argues that the proposed similar fact evidence is dated and is really not similar in terms of the circumstances so it would not provide any assistance to the court other than as highly prejudicial, general propensity evidence, which is presumptively inadmissible.

4. The similarities and dissimilarities between the facts charged and the evidence of prior discreditable conduct

The similarities

[32] In this case, I find that while some of the similarities asserted by the Crown arguably cogently connect the proposed similar fact evidence and the facts alleged in the charges before the Court, under closer scrutiny, they are, in my view, nothing more than generic similarities used to support an inference that the actus reus occurred. In arriving at this conclusion, I have considered the guidance provided in R. v. B.(R.), [2003] O.J. No. 4589 (C.A.) at paras. 61-64; aff’d [2004] S.C.J. No. 65. That guidance is summarized at para. 64:

The risk in relying primarily on generic similarities to support an inference that the actus reus occurred is twofold. One, the initial inference arising from the prior conduct becomes so general, that it approaches bad personhood. Two, because of their non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case.

[33] Mindful of that caution, I will review the connections asserted by the Crown and discuss my findings with respect to each.

[34] First is the assertion that the accused assaulted vulnerable victims. As stated earlier, I have no evidence before me as to the nature, cause or degree of the alleged vulnerability of the victim K.D. from the prior conviction. The Crown asserts that K.D. was vulnerable because she was young. I do not have evidence of her age. I have evidence that she was still “in school” and living with her family. If I were to infer from the evidence I do have that K.D. was a high school student, that would place her in the 14-18 year old age range. The accused was 22 years old in 2013 when he was sentenced for the offence on K.D. As stated earlier, I don’t know what the date of the offence was. If I were to assume that it took roughly 2 years for that case to proceed to trial, I could assume that the accused was roughly 20 years old at the time of the offence.

[35] It is against this unknown factual backdrop that I am asked to find that there is a similarity between K.D.’s vulnerability and that of T.L. who is vulnerable as a result of her cognitive and developmental delays. I cannot find that there is a cogent connection or similarity between the nature of the vulnerabilities of the victim and the complainant.

[36] Second is the assertion that the accused accessed the victim and complainant through a friend or relative of the victim. Again, there is no evidence before me as to whether the accused “accessed” K.D. and, if so, how. All I know is that she was at the mall with her sister and he was there too. Again, as I found with respect to the asserted similarity in vulnerability of the victim/complainant, there can be no similarity when half of the proposed equation is missing.

[37] Third is the assertion that the accused physically isolated the victim and complainant in order to sexually assault them. In the case of the prior conviction involving K.D., I have no evidence as to how K.D. came to be alone on the top level of the parking garage with the accused.

[38] Fourth is the assertion that the accused digitally penetrated K.D. while she was standing and is alleged to have penetrated T.L.’s vagina while she was standing. The fact that both women were standing while being sexually assaulted or allegedly sexually assaulted is a cogent similarity between the two cases. However, I find that it is also important to note that the sexual assault of K.D. took place in a parking garage where there was no furniture or bed for her to be put on. Further, the accused had K.D. under physical control because she was pinned up against a wall with her hands held. It is likely that that is the reason why she was sexually assaulted while standing. In other words, there was no other practical way for him to do what he did while controlling her and within a short period of time without her remaining standing.

[39] Similarly, with respect to T.L., her evidence is that she was sitting on the couch and the accused was allegedly touching her and saying he wanted to have sex with her and she said no. He then stood up and pulled her off the couch in order to penetrate her vagina with his penis. He would not have been able to penetrate her vagina with his penis had she remained sitting on the couch. So, he had to either force her onto her back on the couch or she had to get off the couch. The point is that it is unclear to me whether this is a distinctive feature of both the sexual assault conviction and the alleged sexual assault on T.L. or whether it is a coincidental effect of the location in which each incident took place and the physical positions of the parties involved.

[40] Fifth, is the assertion that the accused told both K.D. and T.L. that he wanted to have sex. I find that there is nothing about this similarity that gives it any value in the assessment of the cogency of the evidence and the purported connection between the two cases. The fact that both K.D. and T.L. describe the accused as telling them he wanted to have sex does not tend to support the objective improbability of coincidence in the similarities in their accounts. Put simply, the aggressor communicating his wish or intention to have sex with the victim or complainant is a generic circumstance that is common to many sexual assaults.

[41] Last is the assertion that the accused ignored the fact that both K.D. and T.L. said “no.” Again, I find that this too is a generic similarity that is common to many sexual assaults. There is nothing about this fact being common in both cases that suggests the objective improbability of coincidence.

The dissimilarities in the evidence

[42] I also note the following dissimilarities in the evidence from the available evidence regarding the sexual assault of K.D. versus the alleged sexual assault of T.L.:

a. Location: The sexual assault of K.D. took place in a public shopping mall parking lot. The alleged sexual assault of T.L. took place in a private home;

b. The type of sexual contact: The sexual assault of K.D. culminated in the accused rubbing her vagina and brief digital penetration. The alleged sexual assault of T.L. culminated in penile penetration of her vagina; and

c. The gap in time: The sexual assault of K.D. took place sometime prior to September 2013. The alleged sexual assault of T.L. took place at least seven years later in 2020.

Conclusion

[43] I find that the asserted similarities between the facts of the sexual assault of K.D. and the alleged sexual assault of T.L. do not show a degree of connectedness and cogency that rises to a level beyond the generic. Further, there are significant dissimilarities that render the connection even more remote.

[44] I find myself in a situation similar to the one facing the Ontario Court of Appeal in R. v. B.(R.), supra in which the majority concluded, at para 65:

In this case, the initial inference that can be drawn from the identified similarities in the appellant’s past conduct amounts to little more than that he has engaged in genital touching of children aged ten or under in the past, in circumstances involving privacy, and that following the sexual abuse, he may apologize to the child. Although not irrelevant, this inference contributes only marginally to determining whether the specific incident described by the complainant actually took place.

[45] In the present case, I find that the initial inference that can be drawn from the identified similarities in the appellant’s past conduct amounts to little more than that he has engaged in unwanted sexual contact with a woman in the past. Accordingly, as regards the analysis of the probative value of the proposed similar fact evidence, I find it is not sufficiently probative of the issues the Crown asserts it is relevant to.

[46] However, in the event that I am incorrect in that conclusion, I will consider the prejudice that might be caused by the admission of this evidence in the trial.

Assessment of Prejudice

[48] … R. v. J.W., 2022 ONCA 306,

[50] Regarding the first “perspective” of moral prejudice, the Court of Appeal addresses the oft- cited notion that the risk of moral prejudice is significantly less in a judge alone trial and the effect of between count versus off Indictment similar fact applications. Paras. 31 and 32 read:

The first perspective of “moral prejudice” requires the trial judge in a judge-alone trial to self-instruct against the tendency to infer guilt based upon what Handy called the “forbidden chain of reasoning…from general disposition or propensity.” However, Paciocco et al. observe that “self-instruction by judges can reduce, but will not eliminate, the risk of moral prejudice.” They add that: “[s]ince the extent to which restricted admissibility doctrines can prevent moral prejudice is limited, courts must maintain a high awareness of the potential prejudicial effect of admitting similar fact evidence, particularly where the similar fact conduct is reprehensible.

There is less moral prejudice when the similar acts in question are other counts on the indictment, and therefore, more moral prejudice where the discreditable conduct is outside of the facts in the case. [citations omitted]

[53] Further, and I find this particularly germane to the application before me, at para. 35, the Court of Appeal notes:

While the prospect that the accused might be able to testify in order to allay the prejudicial effects has been suggested to be a mitigating factor, this is doubtful, given what Binnie, J. described in Handy as the “poisonous nature” of the evidence. Further, admitting the discreditable conduct evidence might effectively force the accused to testify in a case where doing so might be inadvisable for other reasons. [citations omitted]

[54] I am guided by the Court of Appeal’s instruction that I cannot assume a lower risk of moral or reasoning prejudice simply because I sit alone on this case. Further, I note that this is not a situation in which between count similar fact evidence is being tendered. The proposed discreditable conduct is off the Indictment that is before the Court. There is therefore a higher risk of moral prejudice.

[55] I do not find that the risk of reasoning prejudice is particularly high in this case in the sense that the similar fact evidence was tendered in the form of a 14-page sentencing transcript.

[56] However, I do find that the absence of ways to alleviate what I find to be a significant risk of moral prejudice to the accused in this case is important. I have significant concerns that admission of the discreditable conduct evidence in this case could effectively force the accused to testify when he otherwise might not. This, coupled with the unfairness inherent in the fact that the accused cannot call evidence in this trial to try to shed a different light on the evidence tendered by the Crown as similar fact evidence, should it be admitted, leads me to conclude, that on the facts of this particular application, even if I were to find that the proposed similar fact evidence had sufficient probative value, I would find that the prejudicial effect of the evidence outweighed its probative value.

Conclusion

[57] I am not satisfied on a balance of probabilities that the probative value of the proposed similar fact evidence exceeds its prejudicial effect. There is insufficient cogency between the proposed similar fact evidence and the allegations at trial to establish an objective improbability of coincidence, and to connect the evidence to an issue at trial. The evidence is not sufficiently probative.

[58] I find that in the circumstances of this case, the Crown has not met the test in Handy, and so the presumption is not overcome. The proffered evidence of prior discreditable conduct remains inadmissible.

[59] The application is dismissed.

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