COURT FILE NO.: 6129/02
DATE: 20030828
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
B E T W E E N:
HER MAJESTY THE QUEEN
D. King, for the Crown
- and -
JODY RORY ROBINSON
M. Kerbel, for the Accused
HEARD: August 5 and 6, 2003
Pursuant to s. 486(3) of the Criminal Code of Canada, a non-publication and non-broadcast order has been made by The Honourable Justice Dunn.
RULING RE EVIDENCE OF DISCREDITABLE CONDUCT
Dunn J.
[1] The Crown seeks to call evidence regarding discreditable conduct of the accused. There are two discrete categories of such proposed evidence and I will deal with them in turn. They are:
(A) events reflecting assaultive behaviour by the accused on the complainant in the case before the Court in which it is alleged that the accused, in the process of assaultive behaviour, urinated and defecated upon the complainant and forced her to return to her apartment after she attempted to flee him and subsequently to accompany him to his car for the purpose of bringing her from London to Toronto;
(B) certain evidence in relation to sexual assault with a weapon, forcible confinement and uttering a threat in relation to a different complainant approximately two months subsequent to the events outlined in the indictment before the Court.
[2] The accused is charged with four counts in an indictment alleging:
(i) that he did commit a common assault on L.S. between March 1 and July 31, 1996 in London and in Mississauga, Ontario;
(ii) that he did unlawfully confine L.S. between the same dates and places;
(iii) that he did cause bodily harm in assaulting the complainant; and
(iv) that in committing a sexual assault on the complainant, L.S., he did use a weapon.
Overview of the Facts
[3] The facts in this matter are somewhat complex and it is quite dangerous to summarize them. As reflected in the indictment, the alleged actions of the accused took place in mid 1996. At that time Mr. Robinson was charged with some 18 counts of sexually assaultive behaviour, many of which took place in the City of London and only four of which occurred in Peel Region. The case was originally tried in 1997 before a jury, who convicted the accused on six of those 18 charges. Subsequently, on appeal, the convictions on those six charges were set aside and a new trial ordered largely because of the conduct of the Crown during the trial. The Crown has apparently decided, for unknown reasons, that it would not proceed on two of the counts in relation to acts that allegedly took place solely in the London area. Upon application of counsel for the accused a change of venue was granted to the Peel jurisdiction.
[4] Four counts now remain before me relative to allegations of criminal conduct which took place in Mississauga or in Peel Region.
[5] At the outset of a number of pre-trial motions the Crown requested that pursuant to s.715 of the Criminal Code it be allowed to introduce as evidence, the transcript of the testimony given by the complainant, L.S., at the original trial. After hearing the evidence and argument, I ruled in part on that application indicating that the threshold tests had been met: I was satisfied that the complainant was absent from Canada, and that the defence had a reasonable opportunity to cross-examine the complainant at the original trial. There remained the difficulty of deciding whether or not the admission of such evidence would be unfair to the accused.
[6] As the evidence of L.S. reflected allegations which were obviously not accepted by the jury in that they returned a not guilty verdict on some 12 of the 18 counts, it was necessary to do some extensive editing of the transcript of her evidence. That editing is currently ongoing. In the meantime, the evidence that the Crown seeks to have admitted as evidence of discreditable conduct is also reflected in that transcript and it is appropriate to consider at this time the Crown’s motion to admit such evidence, so that reasonable assessment of the existence of any unfairness to the accused be made.
276 Application
[7] Counsel have indicated that certain of the evidence of L.S., while prohibited by s.276 of the Criminal Code, is on consent admissible and that no formal s.276 voir dire would be necessary. This evidence generally relates to the prior sexual history of the complainant especially in relation to the accused. The evidence is relevant to the narrative of the case and perhaps the lifestyle and habits of both Robinson and L.S.
A. Evidence of Discreditable Conduct (L.S. Evidence)
[8] The evidence the Crown seeks to proffer at this trial are in part summarized by the Ontario Court of Appeal in their judgment allowing the appeal of the accused dated 28 March 2001 and are referred to as “the second incident” in the charges in which L.S. was the complainant.
According to the complainant, about two weeks after the first incident, she again agreed to the appellant’s request to visit her. The appellant arrived in an intoxicated state and they began to argue. The appellant told her to change into one of her dancing costumes. He pushed her onto the bed and tied a gag around her mouth. He then tied her arms to the bed frame. The appellant performed oral sex on the complainant and had forced anal and vaginal intercourse. He then grabbed her arms and forced her into the bathtub where he urinated and defecated on her. The appellant then permitted her to have a shower. After she dressed, the appellant told her that she was going to accompany him back to Mississauga. When the appellant was in another room, the complainant ran out of the apartment and out of the building. The appellant ran after her and caught up to her in the parking lot. He grabbed her hair and clothing and walked her back into the apartment. This episode in the parking lot was witnessed by another tenant, F.R.
After the appellant retrieved his car keys from the apartment, they returned to the car. The appellant held the complainant by the neck and forced her into the car. According to the complainant, on the drive back to Mississauga the appellant ordered her to remove her clothes and have sexual intercourse with him while he continued to drive.
The appellant gave a very different version of these events. He testified that he invited the complainant to come to his mother’s house while his mother was away on vacation. Mrs. Robinson was away on vacation from May 4th to May 18th. The appellant drove to London and stayed at the complainant’s apartment for several hours to watch a hockey game on television. The appellant denied that any of the events testified to by the complainant occurred and denied having chased the complainant outside her apartment as witnessed by Mr. F.R.
The appellant testified that he and the complainant then drove to Mississauga. The appellant denied forcing the complainant to have intercourse with him while they were driving on the highway. At the apartment they “fooled around” and ended up having sex. They engaged in consensual bondage and consensual vaginal intercourse. The appellant then went to the kitchen and returned with a cucumber to use as a sex toy. The complainant objected because it was cold and so it was never used. The appellant agreed that he kissed the complainant passionately, which resulted in some redness to her chin from his goatee. In the morning, he went to work and after work drove the complainant back to London.
[9] In relation to these incidents the jury apparently convicted the accused of two counts of assault, two counts of unlawful confinement and of assault causing bodily harm and sexual assault with a weapon. The incidents which the Crown seeks to introduce as evidence of discreditable conduct with respect to Incident No. 2 were in part reflected in the jury decision against the accused of one count of assault and one count of unlawful confinement. Some of that evidence relates to allegations on which the accused was found not guilty.
[10] The Crown apparently also seeks to introduce evidence from the transcript as to the conduct of the accused on a prior occasion when he attended the complainant’s apartment with a rope and in discussions with her told her that the rope was for the purpose of assisting him in committing suicide and that he contemplated doing so by going to a local golf course and hanging himself. This particular evidence was given at trial in relation to what was known as Incident No. 1 and which involved allegations of sexual assault and confinement but upon which the jury at the original trial found the accused not guilty.
The Law
[11] Two recent cases provide definitive direction with respect to the law as it now exists concerning “similar facts” or as the case may be evidence of ‘discreditable conduct’. The general principles are extensively examined in R. v. Handy, (2002) 164 C.C.C. (3d) (S.C.C.) at 481. These principles and the recommended methodology are also reflected in the case of R. v. K. (C.P.) (2002) 171 C.C.C. (3d) (Ont. C.A.) at 173.
[12] A convenient summary of the applicable principles appears at p.180 of the R. v. K. (C.P.) judgment and for reference it is produced here.
A. The Handy Framework for Admissibility of Similar Fact Evidence
The main components of the Handy framework are as follows:
• evidence of other discreditable conduct is presumptively inadmissible;
• evidence of other discreditable conduct may be admitted where the prosecution establishes, on a balance of probabilities, “that in the context of a particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception”;
• probative value may be assessed in the following manner:
• by considering the strength of the similar fact evidence, including the extent to which the evidence can be proven and any allegations of collusion. In particular:
(i) where there is an “air of reality” to allegations of collusion, the trial judge must be satisfied, on a balance of probabilities, that the similar fact evidence “is not tainted with collusion”; and
(ii) similar fact evidence may be “potentially too prejudicial to be admitted unless the [trial] judge [is] of the view that it [meets] the threshold of being reasonably capable of belief.” [Emphasis in the original.]
• by identifying the “issue in question” and its relative importance in the particular trial;
The “issue in question” refers to the live issue at the trial which the proposed similar fact is said to be relevant.
• by identifying the factors that connect or distinguish the similar fact evidence to or from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible.
These “connecting factors” may, but need not, include:
• the proximity in time of the similar acts to the offence charged;
• the extent to which the other acts are similar in detail to the offence alleged;
• the number of occurrences of the similar acts;
• circumstances surrounding or relating to the similar acts;
• any distinctive features unifying the similar acts and the offence charged;
• any intervening events; and
• any other factor which would tend to support or rebut the underlying unity of the similar acts and the offence alleged.
• if the similar fact evidence “is not properly capable of supporting the inferences sought by the Crown, the analysis generally need go no further”;
• potential prejudice to the accused may be assessed in the following manner:
• by considering the potential for “moral prejudice” against the accused, meaning the risk of convicting the accused because he is a “bad person” rather than based on proof that he committed this offence.
• by considering the potential for “reasoning prejudice” against the accused, meaning the risk of distracting or confusing the jury, or of undue consumption of time, and the danger that the jury may have difficulty disentangling the subject matter of the charges from the similar fact evidence.
Position of the Parties
[13] To be considered as an exception to the general rule, and admissible, the proposed evidence must be relevant to a time issue at trial. The Crown argues that the evidence in question is admissible on several issues including:
(i) the completion of the narrative of the interaction between the complainant and the respondent in the time period immediately preceding the charges;
(ii) the issue of whether the complainant consented to the activities alleged in the indictment;
(iii) the animus of the respondent towards the complainant at the time of the activities; and
(iv) the mistaken belief as to the consent of the complainant to those activities.
[14] The defence contends that the evidence is not probative of the issues the Crown has outlined, and points out that while the accused was convicted of some of the incidents complained of in such evidence, that the Court of Appeal has ordered a new trial and that subsequent to such a decision the Crown elected not to proceed with the charges reflected in such evidence. Such evidence is highly inflammatory and in effect the Crown seeks to introduce certain evidence on a balance of probabilities where the withdrawal by the Crown of the charges relating to such evidence would have had to been proven beyond a reasonable doubt. Defence counsel also points out that the evidence in relation to the issues of narrative, consent, animus and mistaken belief in consent is still contained in the edited version of the original transcript of the complainant or, as the case may be, would be reflected in the viva voce evidence of the complainant without recourse to evidence that reflects charges that were withdrawn, a decision that the Crown has made and must live with.
Analysis
[15] Using the approach outlined in R. v. Handy and reflected in R. v. K. (C.P.) the following is my analysis of the issues, bearing always in mind that evidence of discreditable conduct is presumptively inadmissible.
Assessing Probative Value (London Evidence)
(a) Collusion
[16] There appears to be no suggestion of any evidence of collusion with respect to the proposed evidence.
(b) Strength of Evidence
[17] The fact that the accused has been convicted on a prior occasion of the incidents in question is of no assistance in determining this issue, since the Court of Appeal ordered a new trial on these counts. The Court of Appeal did opine that the verdicts on the evidence in question were not inconsistent in the circumstances of the original trial.
[18] The evidence generally reflects the domination or control of the complainant by the accused and while several of the acts reflected in that evidence are demeaning and could be considered inflammatory, they are capable of belief.
(c) Identification of Issues in Question
(i) Completing the narrative
[19] The Crown contends that the proposed evidence completes the narrative of what transpired between the complainant and the accused in the time period immediately preceding the charges the accused now faces. This evidence raised allegations of conduct between the parties and helps to build the context of the overall relationship between them as occurred only a few hours before the activities which are alleged to have taken place in Mississauga. The undisputed evidence may not, in my opinion, sufficiently illustrate the relationship that existed between the complainant and the accused.
(ii) Consent of the complainant to the sexual activity alleged in the charges before the Court
[20] The complainant’s consent is a continuing and important issue on these charges. The accused originally gave evidence that the complainant consented to some of those activities. The proposed evidence reflecting as it does the interaction between the accused and the complainant immediately before leaving London to go to Toronto is a very relevant ingredient in whether or not the complainant consented to that trip and to the subsequent activity occurring a few hours later in Mississauga. The accused denied at trial that he forced or compelled the complainant to accompany him to Mississauga or that the incidents involving urination/defecation occurred at all.
(iii) Respondent’s animus toward the complainant
[21] The Crown contends the proposed evidence reflects the motive of the accused in assaulting and forcibly confining the complainant and that he either didn’t care for her or didn’t care about her feelings. Certainly the proposed evidence does reflect the accused’s animus toward the complainant. The way he is alleged to have treated her in the incidents in London, and his apparent domination of her will, reflect again on the existence of any consent and on the defence of honest but mistaken belief in consent.
(iv) Mistaken belief in consent
[22] The proposed evidence of the complainant reflects that the accused knew she was not consenting to travelling with him to Mississauga. This relates again to the general issue of consent as well as any issue that might arise at trial as to honest but mistaken belief in consent
(d) Connecting Factors
(i) Proximity in time
[23] The events reflecting the proposed evidence were immediately preceding the allegations before the Court. The proximity test has been met.
(ii) Similarity, dissimilarity in detail
[24] The proposed evidence reflects certain violent conduct toward the complainant allegedly performed without her consent and against her will. That evidence illustrates the compulsion by threat of violence or violence of the complainant to abide certain acts, including the defecation and urination by the accused upon the complainant and subsequent forcible compulsion of the complainant to accompany him to Mississauga. Alleged sexual assault acts also reflect certain violent conduct, although perhaps less demeaning than the defecation and urination details.
(iii) Number of occurrences: not relevant in the circumstances before me
(iv) Surrounding circumstances of similar acts
[25] The Crown I believe is correct in suggesting that the alleged conduct in London led to the compulsion of the complainant to travel to the location of the offences.
(v) Distinctive features
[26] Certainly there are distinctive features in the activities complained of. No defecation/urination is alleged to have occurred in Mississauga. The degree of physical force in the London evidence and in travel is no less violent for example.
[27] I conclude that the suggested evidence is, in fact, capable of supporting the inferences sought to be drawn by the Crown in regards to the issue of the consent of the complainant and perhaps less importantly the attitude or animus the accused apparently had against the complainant.
(v) Potential prejudice
(a) Moral prejudice
[28] The potential of a jury hearing the disputed evidence of discreditable conduct of convicting the accused simply because he is a “bad person” is always a concern. However, the proposed evidence in this case has a real and direct connection to the complainant and it also assists in explaining her submission to the alleged compulsion by the accused.
(b) Distraction of the jury from the issues before the Court (reasoning prejudice)
[29] The jury’s duty to decide whether the proposed discreditable conduct evidence reflects events that actually occurred is, in my opinion, to a degree minimized here since the London evidence is closely tied to events that are alleged to have occurred in Mississauga. The jury will be asked to apply the same analysis to the London incidents as they do to the charges in the indictment, and therefore the danger of distraction from a consideration of the charges that the accused now faces is somewhat lessened.
[30] For reasons that will become apparent later in my analysis I find that that evidence reflecting the acts of defecation/urination on the complainant should be edited from what is put to the jury. It is very inflammatory and may well poison or distract the jury unduly. While it bears a strong resemblance to other later conduct of the accused its prejudicial effect is not met by probative value.
[31] The Crown also seeks to introduce evidence of the complainant relating to what is termed the “first incident” wherein the accused is described as attending the complainant’s residence on a prior occasion with a rope expressing the desire to take his own life by hanging himself from a tree on a nearby golf course. This evidence will be dealt in a general way in my consideration of the proposed evidence relating to the subsequent incident with a different complainant.
Conclusion With Respect To London Evidence
[32] I conclude, with the above exceptions, that the proposed evidence of discreditable conduct is admissible in the trial before me. The London evidence is close in time to the allegations in the indictment and responsive to the issues of consent, animus, and to a lesser degree to put the issues in context. To summarize, its probative value is great. Its prejudicial effect is not insignificant but is outweighed by probative value.
B. Evidence of discreditable conduct (re July 28, 1998 - S.N.)
[33] The Crown proposes to call evidence of discreditable conduct of the accused in relation to incidents that transpired some two months after those that the accused faces in this Court at the present time.
[34] Mr. Robinson was found guilty of sexual assault with a weapon, forcible confinement and uttering a death threat in relation to a complainant, S.N. These events occurred on July 28, 1996. The incidents are reflected in a statement of facts filed by the Crown and read on those proceedings and are mistakenly referred to in the Crown’s factum on this application as “agreed statement of facts”. They were not agreed at trial and subsequent to the accused’s plea of guilty to the offences a Gardiner hearing was held. The trial judge heard the evidence of the complainant and concluded that he could not find on that evidence beyond a reasonable doubt that the accused used a folding knife to coerce the complainant into his automobile or that he had reasonable doubt as to the suggestion that the accused had modified his automobile to prevent the escape of the complainant.
[35] The proposed evidence may be summarized as follows:
On July 27, 1996 the accused attended a bar in West Toronto and met there, with others, one S.N. In the company of other people they had drinks and conversation and talked about dating. When the bar closed the accused asked S.N. to accompany him to his car to continue their discussion about a possible future date. At the car they exchanged cards. It appears from the evidence given at a trial of the issues, that the complainant was convinced or coerced to enter the vehicle. There began hours of terror for S.N. She was unable to work the door handle on the vehicle and was trapped in the passenger seat.
The accused is alleged to have made statements to S.N. as to whether she had ever had anal sex, that she’ll get it tonight, asking whether she had ever been beaten, inquiring whether she wanted to be beaten in a sufficiently threatening manner that eventually S.N. responded in the affirmative. There ensued demands and compliance for oral sex while driving, that the complainant play with herself in the car and, after a stop on a remote and rural road, urinated and defecated in the complainant’s mouth. He wanted that the complainant swallow the product. The complainant was physically assaulted with the accused’s belt and forced anal sex on the complainant. He threatened to kill her for not performing well. There was a second incident of defecation in the complainant’s mouth and again the accused insisted that she swallow the product. There was a further incident of vaginal sex, the insistence by the accused that the complainant masturbate herself with the wooden handle of a squeegee. During the drive the accused insisted that she burn her own breasts and vagina with a lighted cigarette. The events of that night appear to have culminated with a stop in a wooded area where the accused indicated that he would use an exacto knife to kill her and then take his own life. The accused apparently removed an old white rope from the trunk of his car, took the complainant into a forest area by a small ditch in a clearing. A further act of anal sex was forced on the complainant followed by the accused’s insistence on oral sex performed by the complainant on him. Eventually the accused ejaculated at which time his attitude to the complainant radically changed. He cried and apologized to her and told the complainant that he was going to hang himself with the rope and wandered deeper into the woods apparently attempting to seek a suitable tree in which to use the rope on himself.
[36] Unsuccessful in finding a suitable support for a short rope, he returned the complainant to his car, drove back to the restaurant or bar in question and released her.
[37] During this long night for the complainant, reflecting as it does on unspeakable acts committed on a relative stranger, the accused apparently made at least two statements to her which the Crown feels are relevant in the issues in the trial before me.
[38] At one point of the evening the accused apparently made a statement to the complainant S.N. that “he’s always wanted to do this to his girlfriend and his girlfriend is the one that deserved this”. A second reference to his girlfriend apparently came after the abusive incidents of the evening were over and the complainant and the accused had returned to his car for the drive back to Toronto at which time the accused is alleged to have said that “when he did these things to her, he didn’t see her but only saw his ex-girlfriend”. There was a further alleged statement in the evidence of S.N. that identified his ex-girlfriend as one for whom he used his mother’s credit card to furnish their apartment and further that he had recently broken up with his girlfriend.
[39] I have attempted to very briefly summarize the facts reflected in the evidence of S.N. That summary does not begin to approach the terror that the evidence of S.N. reflects as she was in the hands of the accused in the evening in question.
[40] Again applying the framework suggested in R. v. Handy and R. v. C. (C.P.) I analyze this evidence as follows:
Assessing Probative Value (re S.N. Evidence)
(a) Collusion
[41] There is no suggestion of collusion between any of the witnesses or between the complainant Ms. S.N. or the complainant in our case, Ms. L.S.
(b) Strength of Evidence
[42] We have quite a different consideration of the evidence relating to Ms. S.N. The underlying facts reflected in her evidence have founded a conclusion of guilt as determined by the trial judge and upon consideration of the accused’s plea to these offences. With the exceptions of those things found by the trial judge not to be supported in the evidence given by S.N., there is no reason to conclude that her testimony is not reasonably capable of belief. I would go so far as to conclude on the contrary that it is compelling.
(c) Identification of Issues in Question
[43] While the evidence relating to the complainant S.N. occurred some two months after the incidents alleged in the trial before me, it is clear that such discreditable conduct need not be prior to the incidents before the Court. See Alward and Mooney v. The Queen (1977), 35 C.C.C. (2d) 392 S.C.C.
[44] The Crown alleges that the evidence of S.N. is relevant to prove the motive or animus of the respondent toward the complainant in our case.
[45] The statements made by Robinson to S.N. to the effect that he wished to do the same thing to his girlfriend in order to punish her, or that when he did these things to S.N. he didn’t see her but only saw his ex-girlfriend is relevant cogent evidence of how the accused felt toward our complainant L.S. S.N. was also told how the accused has charged up “his Mom’s Leon’s card” to buy furniture for this apartment, the apartment shared with his girlfriend, and that she slept with other men and he couldn’t trust her. He also told S.N. that he was apologizing now and saying, “I’m so sorry. All I saw was her. I didn’t even see you. Because those are all the things I always wanted to do to her.”
[46] As to motive or animus the Crown contends that either the accused did not like Ms. L.S. or in the alternative didn’t care about how she felt. The evidence of the acts committed upon S.N. then would be relevant to whether or not the accused committed the alleged acts in our indictment and further it would be relevant to the accused’s state of mind during such activities including whether there was, of course, consent or an honest but mistaken belief in that consent.
(d) Connecting Factors
[47] The Crown further suggests that there are many similarities between what the respondent did to S.N. and the allegations before this Court including pushing an object into the complainant’s vagina against her will, anally raping her, crying and apologizing after the sexual assault. As well, if the evidence of disreputable conduct in the London incident is admitted, there are further similarities of confining the victim in a vehicle against her will, urinating and defecating upon the complainant and finally producing a rope and threatening to hang himself.
[48] The Crown points out that such evidence would also be admissible to address the issue of whether the sexual assault and violent offences alleged in our indictment actually happened.
[49] Among the items of similarities are the following:
the sexual assault was preceded by the consumption of alcohol by the accused;
a motor vehicle was used in the commission of the alleged offences in both cases;
both incidents involve anal sex, in L.S.’s case a history of prior anal sex;
the accused is alleged to have urinated and defecated on both of the complainants;
anal rape occurred with respect to both of the complainants;
the sexual assault was interrupted by physical violence, slapping or whipping;
in both cases the accused drove the complainant around rural roads. In S.N.’s case, part of the scenario of sexual assaults was located in or on the motor vehicle in question. With respect to L.S., she was confined in the car for the purpose of bringing her to Toronto. Certain incidents of sexual assault in the car on the way to Toronto or Mississauga have of course been edited out as the jury in the original trial found the accused not guilty of them.
in both cases the accused apparently produced to the complainant a rope expressing the intention to commit suicide;
in the case of both of the complainants, at one time or another the accused in the midst of the violence began to speak in a friendly and quiet tone;
after the sexual assault the mood of the accused changed radically. He appeared shocked and began crying and apologized to both complainants.
[50] Arguably there is much in the conduct allegedly shown by the accused against both the victims that is strikingly similar. Some of those similarities reflect evidence given by L.S. on the prior proceeding, which as a result of the decision of the jury, find the accused not guilty of certain offences and must, in all fairness, be edited from the transcript of the evidence presented at our trial.
[51] Of the differences, the most obvious one is that the complainants differ widely in their relationship to the accused. S.N. met the accused only hours before the assault and L.S. was a person with whom the accused had established a sexual relationship which lasted many months. The location of the alleged sexual assaults differs. In S.N.’s case it was in or on a car or as the case may be in remote wooded areas as opposed to an apartment that the accused and L.S. once shared in London. As well, there are a number of distinctions between the allegations in the way the alleged assaults were carried out. Certainly in S.N.’s case, her transcript reflects the compelling by the accused of S.N. to hurt or disfigure herself by burning her breasts and vaginal area with a cigarette, by the continued threats to kill S.N. unless she caused him to ejaculate, and the number of threats to beat her or to break her jaw and nose. He apparently also told S.N. that he had a gun and had killed other people.
Similarity - Dissimilarity
[52] The striking similarity of some of the acts coupled with the statements allegedly made by the accused to S.N. make this evidence capable of belief as it might apply to the issues of consent.
(v) Potential Prejudice
(a) Moral Prejudice
[53] The real and direct connection to the complainant arises from statements allegedly made to S.N. as well as from striking similarity in some of the acts carried out by the accused. It is, however, grave evidence that the accused is a bad person.
[54] The accused has been found guilty of the offences in the S.N. incident. It is apparent that S.N.’s ordeal was an escalation of the violent actions committed by the accused. That escalation is not simply a question of slight variation. The elements of torture, terror, and dehumanizing conduct on this scale can only be viewed as highly inflammatory. I cannot conceive of instructing the jury on this evidence in a manner that would be limited to the permitted uses of such evidence and the exclusion of prohibited use.
(b) Reasoning Prejudice
[55] The danger of distracting the jury here is in one sense minimized. The accused has been found guilty of the offences, after his plea. The jury will not be required to determine if the events occurred at all.
[56] Would an edited version of the S.N. evidence be appropriate? The jury would of course be required to weigh the similarities and dissimilarities between the S.N. and the L.S. evidence. In doing so I find it would be distracting to ask them to consider an edited version of the S.N. events showing them opportunity to consider all offences. To that extent the potential evidence would be distracting.
Conclusion With Respect to S.N. Evidence
[57] While I find that the S.N. actions, for which the accused has been convicted and sentenced bear a striking resemblance to those acts committed on Ms. L.S., and that in spite of the differences they are highly probative as to the issues of consent and animus, I am unable to conclude that the probative value of such evidence outweighs the danger of prejudicial effect. Such evidence should not be put before the jury in such circumstances.
[58] That part of the evidence of both L.S. and S.N. relating to the accused’s use or intended use of a rope to end his life is one of the links between the different incidents. As the S.N. evidence will not be permitted, the L.S. evidence on this point cannot stand alone. Its probative value is reduced to insignificance and too must be excised from the transcript.
Dunn J.
Released: August 28, 2003
COURT FILE NO.: 6129/02
DATE: 20030828
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JODY RORY ROBINSON
RULING RE EVIDENCE OF DISCREDITABLE CONDUCT
Dunn J.
Released: August 28, 2003