Decision Content
R v Tsetta, 2019 NWTSC 47 S-1-CR-2018-000002
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
-v-
PETER CHARLIE TSETTA
Transcript of the Similar Fact Ruling held before the Honourable Justice L. A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 3rd day of October, 2019
APPEARANCES:
A. Piché: Counsel for the Crown
E. McIntyre: Counsel for the Defence
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Charge(s) under s. 271 and 279(2) Criminal Code
There is a ban on the publication, broadcast or transmission of any information that could identify the complainant, M.A., pursuant to s. 486.4 of the Criminal Code. The publication ban that was in place to protect the identify of complainant , Cynthia Grandjambe, was lifted at her request on October 3rd, 2019
I N D E X
PAGE
RULINGS, REASONS
Ruling re similar fact evidence 52
i
1 Mr. Tsetta was tried in May and June
2 2018 on charges of sexual assault and unlawful
3 confinement arising from two separate incidents. One
4 of the issues that I had to decide during the course of
5 the trial was a similar fact application brought by the
6 Crown. I dismissed that application during the trial and
7 said reasons would follow. Today I will put brief
8 reasons on the record for why I dismissed that
9 application.
10 I reviewed the trial evidence in some
11 detail when I gave my reasons for judgment finding
12 Mr. Tsetta guilty, now reported at 2019 NWTSC 35. I
13 also referred to the evidence in two rulings that were
14 filed yesterday dealing with severance and the
15 admissibility of certain hearsay evidence. These
16 decisions are now reported at 2019 NWTSC 40 and 41.
17 So for this morning’s purposes, I will not summarize the
18 trial evidence again.
19 The admissibility of similar fact evidence
20 is governed by the framework set out in R. v. Handy,
21 2002 SCC 56. I summarized that legal framework in
22 R. v. Durocher, 2016 NWTSC 16 at pages 14 to 17.
23 There is also a very helpful review of the case law
24 interpreting that legal framework in R. v. White, 2015
25 ABQB 601. For present purposes I adopt my summary
26 of the framework in Durocher, and I will not repeat all of
27 that here this morning. 1
1 There are just a few basic principles that I
2 will reiterate. Similar fact evidence is presumptively
3 inadmissible. It is a form of character evidence which
4 courts are not normally permitted to rely on. The rule
5 that permits its use is an exception to that general
6 principle.
7 Similar fact evidence may be admissible
8 if the Crown establishes on a balance of probabilities
9 that its probative value outweighs its potential
10 prejudicial effect. The legal framework in Handy is
11 quite intricate but not all of its aspects were engaged in
12 this application, and I do not need to refer to all of them.
13 There are various things to consider
14 when weighing probative value: the strength of the
15 similar fact evidence, its materiality and the extent to
16 which it supports the inferences sought to be made.
17 Handy makes it clear that it is important at the outset to
18 identify the issue that the similar fact evidence is said to
19 be probative about and to then apply common sense to
20 determine the strength of the proposed evidence in
21 helping to resolve that issue.
22 In this case the Crown identified the
23 matter at issue to be effectively the actus reus of each
24 of these offences, whether these events actually took
25 place. This was not a case where the similar fact
26 evidence was presented to prove identity or to rebut a
27 defence of accident or to prove knowledge, for 2
1 example.
2
As is frequently the case, here the
3
probative value of the evidence
depended on what is
4 sometimes called “coincidence reasoning.” The Crown
5 argued that there were striking similarities between
6 M.A.’s allegations and Cynthia Grandjambe’s
7 allegations. The Crown argued it is highly improbable
8 that this is a coincidence.
9 The underlying reasoning when there are
10 striking similarities is that it refutes the possibility that
11 two people making independent allegations could be
12 mistaken, or lying, and end up with such similar
13 accounts of what a person did. The probative value
14 can come from one very striking similarity or it can
15 emerge from a combination of similarities that together
16 make the overall allegation strikingly similar.
17 In Handy, the Court gave a non-
18 exhaustive list of factors to consider in assessing the
19 similarity in the evidence: proximity and time, the
20 extent to which the other acts are similar in detail, the
21 number of similar acts, circumstances surrounding or
22 relating to the similar acts, any distinctive features
23 unifying the incidents, intervening events and any other
24 factor that would tend to support or rebut the underlying
25 unity of the similar acts.
26 Care must be taken, however, not to
27 seize on similarities that are too generic. As well, 3
1 dissimilarities must not be overlooked.
2 In this case, there was relative proximity
3 and time as the two alleged events were about a month
4 apart. In arguing that the two incidents were overall
5 strikingly similar, the Crown relied on a number of
6 things. Both women were adult, Indigenous women in
7 their mid to late 40s and of petite stature. They both
8 regularly abused alcohol at the time and were part of
9 the community of people who frequented the streets in
10 the downtown core in Yellowknife. Both had been
11 drinking on the day of events and were more vulnerable
12 for that reason. Both knew Mr. Tsetta. Both were
13 invited by him to his house to continue drinking. In both
14 cases they went by cab and he paid for the cab. Both
15 events happened on a Saturday. Both complainants
16 drank to the point of blacking out or passing out at his
17 house. And in both instances, they woke up on his bed
18 to him having forced intercourse with them and holding
19 them down.
20 The Crown argued that while none of
21 these features alone were particularly distinctive,
22 cumulatively they rendered the two allegations strikingly
23 similar and gave each of them strong probative value
24 leading to an inference that the other allegation is true.
25 Without doubt there were some
26 similarities between these two sets of allegations.
27 However, in my view, some of the things identified by 4
1 the Crown were fairly generic. For example, the fact
2 that these were both adult women is fairly generic. The
3 fact that they are Indigenous in the context of this
4 community is also somewhat generic.
5 The fact that they were drinking at the
6 time and were invited by Mr. Tsetta to continue drinking
7 with him at his house could be more compelling if all of
8 these people had not previously known each other and
9 in essence had not been part of the same community.
10 But they were part of the same community of people
11 who frequented the streets, drank together and
12 socialized in that matter.
13 Had Mr. Tsetta not been a part of that
14 community and approached women from that
15 community on these two occasions, this similarity may
16 have been more probative as it might indicate a pattern
17 of targeting women from that specific community. But
18 since he was himself part of that group and knew them
19 both, I found that similarity less significant.
20 The fact that the sexual assaults were
21 preceded by excessive consumption of alcohol to the
22 point that the complainants blacked out or passed out,
23 sadly, is not distinctive at all. A staggering number of
24 sexual assaults are committed in this jurisdiction under
25 those circumstances, and a large number are
26 committed on victims who know the perpetrator, often
27 friends or relatives.
5
1 The fact that both events happened on a
2 Saturday is not a distinguishing feature at all, in my
3 respectful view. And neither really is the fact that they
4 in both cases took a cab to N’Dilo. Some people walk
5 from that part of town to the downtown core on a
6 regular basis but maybe many do not. It struck me that
7 in M.A.’s statement at one point she made a comment
8 when she was explaining that Mr. Tsetta suggested
9 that they take a cab, she said, “of course we’re going to
10 take a cab; I’m not going to walk all the way to N’Dilo.”
11 So under the circumstances, the method of going to Mr.
12 Tsetta’s house is not particularly significant.
13 There were also some dissimilarities that
14 could not be overlooked. M.A. had been in a spousal
15 relationship with Mr. Tsetta in the past whereas Ms.
16 Grandjambe and him were only friends. M.A. said that
17 they went to Mr. Tsetta’s house with another person
18 whereas Ms. Grandjambe and Mr. Tsetta went to his
19 house alone. That is an important distinction.
20 Another important difference was the
21 duration of each event and the amount of force used.
22 Ms. Grandjambe sustained injuries as a result of having
23 tried to resist Mr. Tsetta and was sexually assaulted for
24 a lengthy period of time. M.A. was not physically
25 injured. Ms. GrandJambe was forced to give Mr. Tsetta
26 oral sex; M.A. was not.
27 There are cases where similar features of 6
1 independent allegations reach a point where it would
2 defy common sense to think that the similarities are
3 merely coincidental even in the absence of one or more
4 very distinctive features. But here, while I acknowledge
5 that there were some similarities between the two sets
6 of allegations, those had to be assessed in the context
7 of the overall circumstances and also taking into
8 account the dissimilarities that I have talked about.
9 As was my conclusion in Durocher, I
10 simply did not agree that the similarities, even
11 cumulatively, reached the level needed to give the
12 evidence the probative value that the Crown argued it
13 had. I concluded that whatever probative value this
14 evidence might have would be entirely outweighed by
15 its prejudicial effect. The case here was not one where
16 reasoning prejudice was particularly engaged; it was
17 more a question of moral prejudice.
18 Even though this matter proceeded
19 before me as a judge sitting alone, unlike the Durocher
20 matter, which was a jury trial, the gate-keeping function
21 of a judge remains very important. A judge, even sitting
22 alone, must ensure that evidence is used only for the
23 purposes for which it is admissible and that only
24 admissible evidence is used.
25 Those were my reasons for dismissing
26 the similar fact application and for concluding that the
27 allegations of each of the complainants were not 7
1 admissible to bolster the Crown’s case with respect to
2 the other.
3 Is any clarification needed for this ruling?
4 A. PICHÉ: No, thank you.
5 THE COURT: Mr. McIntyre?
6 E. McINTYRE: No, thank you. 7
8 (PROCEEDINGS ADJOURNED AT 10:36 AM)
9 (PROCEEDINGS RECONVENED AT 10:54 AM)
10
11 (OTHER MATTERS SPOKEN TO)
12
13 CERTIFICATE OF TRANSCRIPT
14 Neesons, the undersigned, hereby certify that the foregoing
15 pages are a complete and accurate transcript of the
16 proceedings transcribed from the audio recording to the best
17 of our skill and ability. Judicial amendments have been
18 applied to this transcript. 19
20 Dated at the City of Toronto, in the Province of Ontario, this
21 6th day of November, 2019. 22
23
24
25 Kim Neeson
26 Principal 27
8