Guay v. The Queen, [1979] 1 SCR 18

Supreme Court of Canada

Guay v. The Queen, [1979] 1 S.C.R. 18

Date: 1978-10-03

Raymond Marie Guay Appellant;

and

Her Majesty The Queen Respondent.

1978: February 1; 1978: October 3.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Evidence—Gross indecency—Similar facts—Criminal Code, s. 157.

Appellant was convicted by a judge without a jury of three counts of gross indecency with three adolescents. The offences were committed in the office of appellant, who is a specialist in education and counselling. The Crown introduced similar fact evidence involving two other adolescents and this evidence was admitted by the trial judge. The majority of the Court of Appeal confirmed the conviction: Rinfret J.A. was of opinion that there had been no error in law, while Crête J.A. held that even though the similar fact evidence had been improperly admitted, appellant had not thereby suffered any serious prejudice. Dubé J.A., however, expressed his dissent: hence the appeal as of right to this Court.

Held: The appeal should be dismissed.

The trial judge showed that he was fully aware of the danger of convicting without corroboration in cases of gross indecency. There is thus no reason for substituting a different assessment of the facts for his, since the question is essentially one of credibility, and he had the inestimable advantage of seeing and hearing the witnesses.

On the admissibility of similar fact evidence, it is in the discernment of the trial judge. In exercising this discretion, he must have regard to the general principles established by the cases. There is no closed list of the sort of cases where such evidence is admissible. It is, however, well established that it may be admitted to rebut a defence of legitimate association for honest purposes, as well as to rebut evidence of good character. Since the defence in the case at bar was precisely, besides character evidence, that the visits of the young witnesses had been made for perfectly legitimate purposes, the similar fact evidence was certainly admissible in rebuttal. Nevertheless, since the accused could not possibly have asked for an acquittal without this defence, he suffered no prejudice from similar fact evidence having been admitted in chief.

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Secondly, where similar fact evidence is thus admissible, the evidence on each similar count may also be used to corroborate the evidence in each of the other cases. The evidence on each count therefore becomes admissible to rebut the defence on each of the other counts, with no necessity of having it repeated.

R. v. Campbell (1956), 40 Cr. App. R. 95, [1956] 2 All E.R. 272, applied; Harris v. Director of Public Prosecutions (1952), 36 Cr. App. R. 39, [1952] A.C. 694, discussed; Leblanc v. The Queen, [1977] 1 S.C.R. 339; R. v. Forage (1968), 3 C.R.N.S. 117; Horsburgh v. The Queen, [1967] S.C.R. 746; R. v. Kilbourne, [1973] A.C. 729, [1973] 1 All E.R. 440, reversing [1972] 3 All E.R. 545; R. v. Boardman, [1975] A.C. 421, [1974] 3 All E.R. 887; Alward and Mooney v. The Queen, [1978] 1 S.C.R. 559; R. v. Scarrott, [1978] 1 All E.R. 672; R. v. Gauthier, [1977] 1 S.C.R. 441, referred to.

APPEAL from a decision of the Court of Appeal of Quebec[1] affirming a conviction by a judge of the Court of the Sessions. Appeal dismissed.

Claude Filion and Gérard Beaudry, for the appellant.

Jean Montplaisir, for the respondent.

The judgment of the Court was delivered by

PIGEON J.—This appeal is from a judgment of the Court of Appeal of the Province of Quebec, [1976] C.A. 67, affirming a conviction by Dollard Dansereau J. of the Court of the Sessions. The three counts against appellant are of having committed acts of gross indecency on August 23, 1972, with Yvan…, on August 1, 1972, with Jean-Yves… and on July 24, 1972, with Perri… The appeal brought as of right is based on the dissent of Dubé J., who would have acquitted the appellant. The formal judgment does not specify the grounds in law upon which the dissent is based, as is required under s. 606 of the Criminal Code. I shall first summarize the facts which led to the prosecution.

Appellant, an unmarried man in his forties, has been a teacher, a school principal and a school inspector. Since 1967 he is a specialist in education

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with the Department of Education. He holds, inter alia, a B.A. in philosophy, a master’s degree in education and a master’s degree in academic and professional counselling. After receiving the last mentioned degree, he opened a counselling office at his residence in an apartment building, while still retaining his position with the Department of Education.

Perri, an eleven-and-a-half-year-old boy who had already seen the accused in his counselling office, some ten times starting in the summer of 1970, had an appointment with him on August 21, 1972. To justify his refusal to go, he told his mother he had had enough indecent manipulation. His mother then phoned to postpone the interview and called the police. On August 23, between five and six p.m., two police officers went to the accused’s apartment with a search warrant issued by the Social Welfare Court. While one spoke to the accused in the living room, the other went into the counselling office. There he found fifteen-year-old Yvan, sitting on a chair in front of a desk on which lay a mental aptitude test form. This test is made up of seventy-five questions which must be answered quickly, since the test is timed. The time-clock was running on the desk, but Yvan was sitting with his head down, “bent over himself in an unusual manner… with his hands crossed below the belt”. The police officer noted that the boy’s fly was down and commented on this. The boy answered that he had just been to the washroom. Both officers questioned him, but obtained no information. After giving them his name and address, the boy was allowed to leave. The two officers arranged to meet with him at his parents’ home in Longueuil a week later. They saw him alone first and obtained an incriminating statement from him, confirming what he had told his mother, a school teacher, when returning home “white as a sheet”, she says, on August 23. It should be noted that Yvan too had gone to accused’s office some ten times in 1972, and had at times shown great reluctance to return, although never giving any indication of the reason for his reluctance.

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During their search, the officers found a large brown envelope in a filing cabinet. The return address on it was that of a presbytery on the outskirts of Quebec City, the address of the accused was written in ink as the destination. It was marked “Personnel” and, in red ink, there was written [TRANSLATION] “TO be destroyed after examination”. It contained a half-dozen obscene publications dealing with the male sex. One in particular was not only obscene, but perversive: “HUSTLER”, “a story in photo of a young man’s search for himself”. This fifty-page story in photographs (many in full colour) is that of a homosexual liaison, depicted in all its manifestations—even the most disgusting—in the most explicit manner possible, and presented as the happy development of a young man’s personality. Fully conscious of the perversive character of this pornography, the publisher has printed in bold yellow type at the top of the cover page: “For the private contemplation of ADULTS ONLY”. At the trial Jean‑Yves, who was fifteen-and-a-half years old in August 1972, and who had also seen the accused at his office some ten times, testified that in addition to having committed the alleged acts, the accused had shown him this magazine. The accused denied it, like the rest, but the evidence presented for the defence by Richard and Robert, two young men, brothers, living with the accused and sharing his bedroom, seriously weakened his denial. In fact, although testifying for the accused, they both admitted that he had shown them this filth which he had received at the beginning of the year and kept in his possession instead of destroying it. While these two young men were adults, in 1972 they were twenty-one and twenty-two respectively, the priest who sent him this progaganda for homosexuality, this incitement to debauchery, surely did not intend it for such use.

The trial was held in camera without a jury. I find it necessary to quote five pages from the judgment stating in the main the judge’s reasons for the conviction:

[TRANSLATION] The evidence submitted by the prosecution and the defence on the whole has shown that the

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main purpose of the accused’s meetings with the five alleged victims (including two cases of similar acts) was to try to solve psychological or guidance problems. According to his alleged victims, however, this was not the accused’s only purpose: he took advantage of these meetings to commit acts of gross indecency on or with them. The scenario was almost always the same: from the first meetings, the accused made the victim sit on his knees, felt his penis, sometimes masturbated him and even had the victim masturbate him on one or two occasions. The accused advised each of the boys to keep silent about this sexual activity during the interviews. In view of the circumstances, the Court considers that it had good reason to admit as it did the similar fact evidence which, in any case, merely supplemented that presented on the indictment.

In his testimony, the accused absolutely denied the acts of gross indecency with which his five alleged victims charged him, although he did admit meeting with each of them in his office. The interviews, he said, were spent studying psychological or academic problems submitted to him. He admitted that he did show interest in these adolescents’ sexual behaviour, but stated that he never took part in criminal acts such as those with which he is charged. Richard and Robert…, called by the defence, have been living with the accused for some months and share his bedroom. Both these young men were originally counselled by the accused as adolescents, with the consent of their parents, and especially of their father,… These two witnesses for the defence stated that they never saw or heard anything from the office of the accused which suggested that acts of gross indecency were being committed. It is true, however, that neither was ever present at these interviews of the accused with young boys or girls.

Yvan… told the Court with obvious sincerity of the immoral and illegal acts the accused committed with him. He explained why at first he lied to the police officer. This explanation is adequate when one takes into account the age and education of the boy at the time of these incriminating incidents and lies.

The same observations apply mutatis mutandis to Jean-Yves… He would not admit to his mother that he and the accused were committing immoral acts. He did, however, reveal these acts when questioned by the police. In Court, during the examination‑in‑chief and the cross-examination, he answered the questions without hesitation and with a ring of truth. This Court believes his testimony.

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Lastly, there is Perri…, who triggered the original police investigation which led to the charges in the case at bar. His impatience and ill humour when his mother insisted that he go to the accused’s office, when he wanted to enjoy a school holiday and play, exploded and resulted in the serious charge against the accused. His mother corroborated this part of her son’s testimony. The facts described by the boy to the Court were similar to those described in Court by Yvan… and Jean-Yves…—indecent manipulation and advice to say nothing. This Court does not find any reason or reasons in Perri …’s testimony sufficient to justify rejecting it.

In their testimony, Michel… and Jean (brother of Richard and Robert) showed that the accused took advantage of the parents’ trust and the private consultations which the latter had their children attend, to commit acts of gross indecency on and with them. The accused also advised them to remain silent. The Court feels that these two youths, who appeared before the Court to relate facts which are humiliating for them at their present age, told the truth.

The credibility of the witnesses for the defence, Richard and Robert…, is vitiated by the fact that in Court they showed an excessive admiration for and attachment to the accused. These feelings make them still prefer a suspicious cohabitation in the apartment of the accused to life in their family’s home. In any case, their testimony is hardly positive with respect to what may have gone on in the counselling office between the accused and the three young men named in the indictment, as visual witnesses they knew nothing.

The accused’s interest in denying the facts upon which the charges rest is only natural, considering the effect a conviction may have on his career. The accused placed great emphasis on the tests administered to his three alleged victims. In defence, he could do no more than deny the accusatory facts advanced by the three alleged victims. Further, the five youths have nothing to gain from harassing the accused. This Court must also keep in mind that the trial was held in camera. In this way, the witnesses for the prosecution were heard separately from each other. Further, they did not know each other, at least not well, before the case at bar began. It cannot be seriously argued that officers Brault and Clermont prevailed upon the witnesses for the prosecution to commit perjury for having the accused convicted. The absence of spontaneous admissions on their part is a neutral fact on which the defence cannot really rely.

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The statute and case law require the presiding judge to be on guard against the danger of error in convicting the accused in the case at bar unless the testimony of the three alleged victims is corroborated on facts implicating the accused in the crimes with which he is charged. However, the absence of corroboration does not necessarily imply the acquittal of a person charged with gross indecency.

There is no doubt that the accused’s private interviews with the three young boys afforded him perfect opportunities to carry out his perverted intentions. The occasion or opportunity to commit a criminal offence however, should not be confused with corroboration as defined in the case law. Nevertheless, both can guide us in assessing the credibility of the witnesses in the case at bar. Had the occasion or opportunity never existed, the acts with which the accused is charged would probably never have been committed. This opportunity is also shown in the similar fact evidence concerning Michel… and Jean…

The discovery of obscene publications in the accused’s counselling office can be considered a factor which tends to lessen the credibility of the accused with respect to a charge of gross indecency, even though such publications cannot be accepted as corroboration of the testimony of the three alleged victims. The accused had easy access to these publications, and young Jean-Yves… claims to have been shown those magazines. The fact that the accused received the publications from Rev. Marcel Fournier, of Quebec City, is of little importance—what matters is that he kept them.

Lastly, the visits by the accused and Richard, Robert, Jean and their brother Pierre to a transvestite show in Quebec City, and to an establishment frequented by transvestites, denote questionable tendencies on the part of the accused when the charges against him are read and the approximate ages of the youths at that time are calculated.

Above all, the accumulation of similar fact evidence through the testimony of not only Michel… and Jean…, but also of each of the three young boys involved in the indictment, cannot be regarded as corroboration, but it cannot fail to make an impression on a jury called up on to decide on the veracity of the accused’s denials. The CAMPBELL case, mentioned above, invites them to do so.

Basing his opinion, as the trial judge did, mainly on what Lord Goddard stated in Campbell[2], Rinfret J.A. (now Chief Justice) held that the trial judge had not erred in law:

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[TRANSLATION] I feel that the trial judge was right in admitting evidence of a first similar fact as evidence in chief since, as he explained, due to questions in cross-examination, “the presiding judge anticipated a defence based on the completely honourable nature of the relations between the accused and the young men mentioned in the indictment”.

The defence was in fact a denial of the alleged acts, and evidence of excellent reputation.

In addition to the persons previously mentioned, who could have no knowledge of accused’s private life, the defence called two witnesses, the brothers Richard and Robert…, who both live with appellant.

This resulted in throwing the book of the… family’s troubles wide open, which compelled the Crown to call in rebuttal the father, …, and one of his sons, Jean (the brother of Richard and Robert) who had also been under the care of appellant at one time.

Jean contradicted the testimony of his own brothers. He was led to describe appellant’s undue influence on his family, appellant’s behaviour toward him, and his personal experience. In this witness’ testimony several similar acts were revealed; this evidence contradicted that of the two brothers, and was admissible as such.

Crête J.A., relying on Harris[3], felt that the similar fact evidence had been improperly admitted, but concluded that the conviction should stand, saying:

[TRANSLATION] Excluding this evidence, I still feel that the only finding which the evidence at the trial as a whole can lead to, is that appellant is guilty and that he suffered no substantial wrong, and there was no miscarriage of justice (s. 613(1)(b)(iii) Cr. C).

It is extremely difficult to ascertain to what extent dissent of Dubé J.A. involved questions of law rather than fact. After pointing out that in Leblanc v. The Queen[4], this Court had held similar fact evidence admissible, not to prove the criminal act, but to establish guilty intent, he stressed that

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in the case at bar the act itself was what had to be proved. He then stated that the trial judge had based his decision to allow the similar fact evidence on the judgment in Harris from which he quotes, and goes on to say:

[TRANSLATION] It would seem that the trial judge did not take into account the fact that it that case it is explained that similar fact evidence can only be admitted in very definite cases:

“to prove intention or mens rea, as well as to rebut a possible defence of accident.”

Although it is true that the trial judge referred to Harris, he nevertheless relied mostly on Campbell, as appears from the last sentence I have quoted from his judgment. Dubé J.A. later stated:

[TRANSLATION] On the other hand, some cases, especially R. ex rel. Taggart v. Forage, reported in C.R.N.S., Vol. 3 (1968), pp. 117 et seq, allow similar fact evidence to show homosexual tendencies of the accused, but the judge does insist on the need for extreme caution in admitting such evidence and stresses this should only be done in very definite cases.

In the case at bar, appellant saw thousands of adolescents at interviews, yet only five of these youngsters accused appellant of having committed homosexual acts. In the circumstances, I feel it cannot be said that in allowing similar fact evidence, homosexual tendencies in appellant, or a system to commit homosexual acts, were proven.

It should also be noted that in R. ex rel. Taggart v. Forage, where similar fact evidence was admitted, the accused was acquitted because it was found that, on the whole, the evidence would not support a verdict of guilty with a sufficient degree of certainty.

Apart from the danger of admitting similar fact evidence, there is in the case at bar an even greater danger resulting from the fact that the similar facts in question are as uncorroborated as the charges themselves. In fact, not one of those facts is corroborated by anything; in each case, the testimony of a young adolescent is denied by the accused and in no way proven by corroborating evidence.

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It is true that the charges against appellant are not such as to require corroboration, but the courts have consistently warned of the danger of convicting a person accused of this type of crime solely on the word of the victim. It is even more dangerous to accept such evidence when it is given by a child or adolescent.

The trial judge seems to have considered that in the case at bar each count was a link added to the chain, as was each similar fact admitted as evidence. But, in my view, since each of the links is as weak as the next in terms of evidence, it adds no strength to the chain: however it must be presumed that the repetition of charges of this nature can have an enormous influence on the person who has to pass judgment. In the case at bar, for example, I have great doubt that the trial judge would have found appellant guilty if only one of the adolescents had testified against him. I therefore conclude that the verdict of guilt was the result of letting himself be influenced by the addition of other charges and similar facts.

I fail to see how the decision of Hartt J. in Forage[5] can be urged against the verdict of Dansereau J. The latter does not appear to disagree of any question of law with his colleague from Ontario. He came to a different conclusion on the facts, but I see no reason to suspect that he did it without the required care and caution.

With respect, I must say that I do not find judicious at all Dubé J.A.’s comment on the small number of cases found amongst the thousands of adolescents the accused saw in interviews. If such misconduct were generalized, it could not go on without being immediately denounced. Furthermore, there is evidence showing that the number of cases possible is not in the thousands or hundreds, not even in scores. In fact, after searching and examining all of the accused’s files, where complete information on interviews with each adolescent was found, the officers interrogated six or seven boys only, and of these, two or three were witnesses for the prosecution.

The judgment of Dansereau J. shows that he was fully aware of the danger of convicting in

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cases of this kind. I see absolutely no reason for substituting a different assessment of the facts for his, since the question is essentially one of credibility, and he had the inestimable advantage of seeing and hearing the witnesses. I cannot understand that a judge of the Court of Appeal would seem to give greater weight to the opinion of a nun who believed in the innocence of the accused without having heard the evidence, even if she was Jean-Yves’ and Perri’s grade school teacher at a boarding school.

Everyone knows that the rule of caution so much relied by Dubé J.A. was specially stressed by this Court in Horsburgh[6]. What is perhaps not as well-known, because as far as I know it is unfortunately not reported, is the final outcome of the case: an acquittal at the retrial, on a finding that there had been a conspiracy by children who, as an excuse for their immorality, charged the accused with being their accomplice. In my opinion, the circumstances in the case at bar, which I considered necessary to state at some length after having read, reread and analysed the evidence and exhibits, exclude any possibility of a conspiracy against the accused by the witnesses for the prosecution.

I come now to what may be considered as questions of law on which the dissenting judge expressed an opinion contrary to the judgment of the majority. Although far from certain that they are really the grounds of dissent, I shall, in order to consider the appeal on the most favourable basis possible, assume that the dissent raises these two questions:

1. Is similar fact evidence inadmissible if it tends to prove another criminal act;

2. Where there are several counts in an indictment, may the evidence on one be used to decide on the others.

In Campbell[7], the headnote of which was quoted by the trial judge, Lord Goddard ended his

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opinion with the following remarks, at pp. 102-103:

As we are endeavouring in this judgment to deal comprehensively with the evidence of children, we may perhaps endeavour to give some guidance to courts who have from time to time to deal with cases of sexual assaults on children where the evidence of each child deals only with the assault on him or herself. In such cases, it is right to tell a jury that because A says that the accused assaulted him, it is no corroboration of his evidence that B says that he also was the victim of a similar assault, though both say it on oath. At the same time we think a jury may be told that a succession of these cases may help them to determine the truth of the matter, provided they are satisfied that there is no collaboration between the children to put up a false story. And if the defence is one of innocent association by the accused with the children, the case of Sims, 31 Cr. App. R. 158; [1946] K.B. 531, subsequently approved on this point by the House of Lords in Harris v. The Director of Public Prosecutions, 36 Cr. App. R. 39; [1952] A.C. 694, shows that such evidence can be given to rebut the defence.

Concerning the Harris case, which was mentioned by every judge on appeal, as well as by the trial judge, Viscount Simon said, at p. 705:

It is, I think, an error to attempt to draw up a closed list of the sort of cases in which the principle operates: such a list only provides instances of its general application, whereas what really matters is the principle itself and its proper application to the particular circumstances of the charge that is being tried…

In Kilbourne[8], a case which bears great similarity to the case at bar, since it deals with homosexual acts committed with six young boys less than fifteen years old, the House of Lords has reversed the judgment of the Court of Appeal[9] in which Lord Denning did not take part and the rule in the Campbell case was not applied in the same way as both the trial judge and the Court of Appeal applied it in the case at bar. Lord Hailsham, expressing views endorsed by Lord Morris and not contradicted by the others, said at p. 741:

I also agree with the Court of Appeal in saying that the evidence of each child went to contradict any possibility of innocent association. As such it was admissible as

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part of the prosecution case, and since, by the time the judge came to sum up, innocent association was the foundation of the defence put forward by the accused, the admissibility, relevance, and, indeed cogency of the evidence was beyond question…

In the case at bar, the defence was precisely, besides character evidence, that the visits of the young witnesses were made for perfectly legitimate purposes. This defence made the similar fact evidence admissible in rebuttal. Since, even without such similar fact evidence, the accused could not possibly have asked for an acquittal without this defence, he suffered no prejudice from similar fact evidence having been admitted in chief even assuming the trial judge had erred in this respect. In Kilbourne, as mentioned by Lord Hailsham, the Court of Appeal held the similar fact evidence inadmissible and quashed the verdict because the trial judge has told the jury that the evidence on each count could be considered as corroboration on the other counts. But Lord Hailsham said at pp. 748-749:

Whatever else it is, the rule about fellow accomplices is not authority for the proposition that no witness who may himself require corroboration may afford corroboration for another to whom the same consideration applies, and this alone is what would help the respondent. When a small boy relates a sexual incident implicating a given man he may be indulging in fantasy. If another small boy relates such an incident it may be a coincidence if the detail is insufficient. If a large number of small boys relate similar incidents in enough detail about the same person, if it is not conspiracy it may well be that the stories are true. Once there is a sufficient nexus it must be for the jury to say what weight is given to the combined testimony of a number of witnesses.

In Boardman[10], a charge of homosexuality was again in issue. The accused was the principal of a boarding school for boys. The three counts involved three students aged sixteen, seventeen and eighteen. The Court of Appeal quashed the conviction on the third count and let the other two

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convictions stand. It must be noted that the trial judge had told the jury that it had to decide on the third count without considering the evidence presented on the other two, but that the evidence on each of the first two counts could serve to support the other as similar fact evidence. In view of the small number of similar acts, the House of Lords admitted that this case was “right on the borderline” (at p. 445). The headnote reads:

Held, dismissing the appeal, that there were circumstances in which, contrary to the general rule, evidence of criminal acts on the part of an accused other than those with which he was charged became admissible because of their striking similarity to other acts being investigated and because of their resulting probative force; that it was for the judge to decide whether the prejudice to the accused was outweighed by the probative force of the evidence and to rule accordingly; and that, on the facts of the present case, the judge had been entitled to direct the jury as he had done.

Finally, in the recent case of Alward and Mooney v. The Queen[11], this Court unanimously affirmed a conviction for a murder when, because it was committed in the course of a robbery with violence, evidence of two other robberies with violence had been admitted as similar fact evidence. Expressing the unanimous opinion of the Court on the question of the admissibility of such evidence as proof of the alleged criminal act, Spence J. stated at pp. 564-565:

…I find of considerable interest and relevance the decision of the Court of Criminal Appeal in R. v. Straffen, (1952), 36 Cr. App. R. 132, which dealt with the question of the accused’s admission that he had strangled two other little girls in circumstances remarkably like those proved to exist in the strangling of a third with which he was charged. There Slade J. said:

Mr. Elam said: How far, then, does the admissibility of such evidence go; does it go to a burglar, housebreaker, thief and so on? Lord Sumner, in THOMPSON’S CASE (supra), pointed out that they were merely examples of persons who fell within the genus of dishonest persons; but, speaking for myself, I think that if the question of identity arose in a case of housebreaking and it were possible to adduce evidence that there was some peculiarity in relation to earlier housebreakings, which was apparent also in the case

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of the housebreaking charged, so as to stamp the accused man not only with the housebreaking charged but with the earlier housebreakings, and there was evidence that he had committed the earlier housebreakings, that would fall within the same principle of admissibility, not to prove his propensity for housebreaking, but to prove that he was the person who committed the housebreaking charged.

So that Court was of the opinion that similar fact evidence was admissible to prove the very fact of identity.

On the admissibility of similar fact evidence, I think it should be said that it is essentially in the discretion of the trial judge. In exercising this discretion, he must have regard to the general principles established by the cases. There is no closed list of the sort of cases where such evidence is admissible. It is, however, well established that it may be admitted to rebut a defence of legitimate association for honest purposes, as well as to rebut evidence of good character. Where the evidence is admissible on the first mentioned basis, it may be admitted as part of the case for the prosecution.

Secondly, where similar fact evidence is thus admissible, the evidence on each similar count may also be used to corroborate the evidence for the prosecution on each of the other counts. Seeing that similar fact evidence may be used to rebut the kind of defence above mentioned, the evidence on each count becomes admissible to rebut the defence on each of the other counts. It cannot obviously be necessary to have it repeated for this purpose; it is enough to say that it may be taken into account.

Since I wrote the above, another judgment of the English Court of Appeal has been reported in which the law on these questions, in cases involving homosexual acts, has again been reviewed (R. v. Scarroti[12]). The conviction was affirmed on grounds which imply approval of the principles on which Dansereau J. relied in first instance to admit similar fact evidence and to judge all counts

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on the overall evidence.

I therefore conclude that the dissenting judge on appeal erred in holding that each count in the indictment should have been judged without taking into account the evidence on the others.

I wish to point out that no analogy should be sought between the questions examined in the instant case and those which may arise in respect of the use of evidence presented on what is commonly called a voir dire. The importance of the distinction between this kind of “trial within a trial” and the trial itself is due to the special rules governing it, see The Queen v. Gauthier[13]. These rules can in no way be likened to those governing rebuttal evidence.

I am of the opinion that the appeal should be dismissed.

Appeal dismissed.

Solicitors for the appellant: Daoust, Duceppe, Beaudry, Filion, Jolicoeur, Danis & Gagnon, Montreal.

Solicitor for the respondent: Jean Montplaisir, Montreal.