R. v. C.D.

Summary

Ontario Court of Appeal dismissed a conviction appeal in a historical sexual offence case tried by judge alone. It held the trial judge reasonably found, on a balance of probabilities, that the cross-count similar fact evidence was not tainted, and that dissimilarities may support independence but not similarity. The accused's admission of opportunity was properly used to rebut an implausibility argument. Publication ban applies.

Outcome

Appeal dismissed; convictions stand (para. 29). Unanimous, Paciocco J.A. for the panel. No error found in admission or use of similar fact evidence (para. 27) or in treatment of the opportunity admission (para. 28).

Why this case matters

The Court of Appeal confirmed that the Crown must disprove inadvertent tainting of cross-count similar fact evidence on a balance of probabilities, and that dissimilarities go to independence rather than similarity.

Paragraph references

Tainting standard and framework: paras. 10, 15 (balance of probabilities; certainty not required). Complainant's continuous memory can circumstantially rebut tainting; bare self-assertion lacks probative value: para. 16. Prior disclosures relevant where tainting alleged against the whole of the evidence: paras. 20-21. Similarity vs independence requirements; dissimilarities relevant only to independence: paras. 22-25. Harmless even if error: para. 26. Opportunity admission: para. 28. Disposition: para. 29.