Stronach had pattern with women that led to sex assault charges, Crown alleges in closing arguments
In the early 1980s, when he was approaching 50 years old, auto parts billionaire Frank Stronach followed an alleged pattern in the sexual encounters that have brought him to trial today on criminal sexual assault charges, the Ontario Crown argued Wednesday in its closing submissions.
The pattern went like this. First there would be a dinner or drinks at a public location, said prosecutor Jelena Vlacic, either the midtown Toronto nightspot he owned called Rooney’s or a restaurant near his waterfront condo. Then he and the woman would shift locations to a nearby private place, typically that same condo. Then there would be an abrupt and unheralded change in Stronach’s demeanour “from the friendlier professional to the amorous,” Vlacic said. That change in demeanour was not preceded by any words or discussion, and the complainants only remained for the duration of offences, leaving immediately after.
All the alleged incidents involve similarly aged complainants, young women in their 20s. The similarity is not just that they were the same age, Vlacic argued, but that they had a similar age gap to Stronach, which Judge Anne Molloy observed stood to reason.
All the women had a similar level of familiarity to him. The relationships were not identical, and included both an employee and casual acquaintances, but none were strangers, nor intimates, nor family members.
“They sort of occupy a similar level of distance from Mr. Stronach,” Vlacic said.
“That’s not very distinctive,” Molloy said, but she agreed with the Crown that similarities need not be “striking” in order to qualify as corroborating circumstantial evidence.
These are the similar facts that the Crown argues support the allegations by the remaining complainants in his sexual assault trial.
Molloy must decide both whether this “similar fact evidence” is legally admissible, and if it is, what force it should have in her reasoning on each specific count in Stronach’s indictment.
As the Crown described it, the judge’s job is not to simply add up similarities and discrepancies to make some “formulaic” conclusion about the net balance. Rather, to use similar fact evidence as circumstantial corroboration for criminal allegations requires “a persuasive degree of connection” between similar fact evidence and facts charged, prosecutor Vlacic said. It need not be “striking” but it must be persuasive.
Vlacic mixed metaphors in describing this area of law, speaking about a house of cards built on shifting sands, to make the point that “you need the foundation before you can stack with the similar fact reasoning.”
But much has changed since the issue of “similar fact” was first raised on the trial’s opening day.
What began in February as a trial on 12 charges involving seven women returned to court this week as seven charges involving four women, after the Crown abandoned some charges as having no reasonable prospect of conviction, largely due to credibility concerns about the complainants’ testimony. Then, on Wednesday, Molloy indicated she could not possibly convict Stronach on the two charges involving the first woman to testify because her testimony was unreliable, even about the year the incident occurred. So now it is down to five charges involving three women.
As a result, some of the similarities are becoming less compelling, as the judge made clear in her back and forth comments with the prosecutor.
Molloy also wondered aloud whether similar fact evidence can “work both ways.” She said she had never before encountered this problem in her years on the bench, and is unaware of any case law on it, but if similar facts of alleged crimes can add up to a propensity to bad character, then maybe other similarities might arguably go to good character, or as Molloy put it, what’s sauce for the goose is sauce for the gander.
In two incidents, she said, Stronach allegedly made sexual advances but immediately stopped when the women said no, and then they went home, one on her own, another with Stronach’s driver. “If we’re looking at minor similarities, why not include the fact that he seemed to have stopped when told to?” Molloy asked prosecutor Vlacic, who did not immediately reply, but was instead granted time to reflect and consider her response over the lunch hour. It remains unsettled.
The persuasive power of similar facts is also arguably lessened by the possibility of what the Crown called “inadvertent tainting,” in which some complainants read media reports and learned details of other complainants’ stories, which then figured in their own. The key issue is whether sharing of stories led to changing of stories, and one key point is that two women described Stronach ripping through their pantyhose. One woman who alleged this happened to her acknowledged that she had seen an account of another woman who alleged the same.
Vlacic said there was nothing wrong with doing this research, that it was a “completely normal human response” for a sexual assault victim, and that now the Crown must prove a negative, that learning this detail did not taint the women’s evidence.
To rule on this, Vlacic said Molloy must consider whether this complainant sought this information out to make her own account better.
“I don’t think that’s right,” the judge said. “What it does is diminish the improbability of two people saying the same bizarre thing, about the pantyhose… The likelihood of that being a coincidence is remote, so that buttresses the evidence of one and the other. But she read about the pantyhose thing. She knew about it. It’s not such a big coincidence.”
This does not mean it was not true or was deliberately misleading, it just means it is no longer a provocative coincidence. “It loses its impact when she knew someone else said it too,” Molloy said.
To the defence complaint that the complainants were blindly believed with no questioning or investigation, Vlacic agreed that no one should be treated with a presumption of credibility. But likewise no complainant should be saddled with a “presumption of incredibility,” she said.
For the majority of Canadian legal history, much of the way courts have tested evidence of sexual assault was “in a word, wrong,” Vlacic said. Just because an accused has been brought to trial “is not tantamount to a presumption of guilt.” It is how the process works. “It is not for the police to assess reliability,” Vlacic said. That is for trial courts.
Before delivering her verdict, Molloy is set to hear a defence motion next week about whether police and prosecutors tainted the witnesses themselves by improperly coaching them on what to say and how to say it.
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