Ontario Criminal


Proposed similar fact evidence not sufficiently connected to charges before court

Application to adduce similar fact evidence. Complainant, sex worker, made date with accused. Accused attended at complainant’s motel room. Crown alleged that what occurred in room was sexual assault. Accused identified by means of DNA evidence. Accused charged with one count of sexual assault and one count of forcible confinement. He elected trial by jury. After incident with complainant but prior to his arrest on charges in this case, accused was charged with robbery and sexual assault with respect to another sex worker. He pleaded guilty to lesser and included offences of assault and theft. Crown applied to enter transcript of guilty plea proceedings into evidence before jury as similar fact evidence. Crown’s position was that accused had specific propensity to arrange dates with sex workers, refuse to pay, confine them, and then assault them. Application dismissed. Prejudicial effect of proposed similar fact evidence outweighed probative value of evidence. Both incidents involved assaults on sex workers by accused. Both incidents involved alleged refusal to pay for sex by accused. There were also important distinctions: accused pleaded guilty to assault on second worker; no finding of sexual assault was critical difference from this case. Accused stole second worker’s cell phone; there was no allegation of theft in this case. There was no allegation or finding that accused unlawfully confined second worker, although there were elements of unlawful confinement associated with facts that accused pleaded to. Proposed similar fact evidence not sufficiently connected to charges before court to admit it. There was obvious danger that jury would engage in prohibited chain of reasoning: accused sexually assaulted complainant because he was type of person who assaulted sex trade workers and refused to pay them.

R. v. Gayad (Jan. 13, 2014, Ont. S.C.J., R.F. Goldstein J., File No. CR1350000193) 111 W.C.B. (2d) 596.

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