Publication Ban Warning
WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .
COURT OF APPEAL FOR ONTARIO
DATE: 20220421 DOCKET: C68966 Lauwers, Pardu and Sossin JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
J.W. Appellant
Counsel: Bryan Badali, for the appellant Amy Alyea, for the respondent
Heard: March 10, 2022 by video conference
On appeal from the conviction entered on February 20, 2018 by Justice Sylvia Corthorn of the Superior Court of Justice, sitting without a jury.
Lauwers J.A.:
A. Overview
[1] The trial judge convicted the appellant of four counts: invitation to sexual touching (x2), sexual interference, and exposing his genitals. This was a re-trial. In 2015, the appellant was convicted of the same offences but this court allowed the appeal and ordered a new trial (2016 ONCA 965). I would allow the appeal on the basis that the trial judge incorrectly admitted evidence of the appellant’s discreditable conduct several years after the date of the charged offences.
B. The Background Facts
[2] In May 2013, the appellant operated a daycare for young children out of his home. One of the children, D.B., (a girl, then three and a half years old) alleged that the appellant engaged in sexually inappropriate behaviour with her during nap time. On May 15, 2013, D.B. told her mother on the drive home from daycare that during naptime the appellant “put his penis in my hand” and another time he had put it “in my mouth”. That evening, D.B. told her parents in a matter-of-fact tone that there was touching and licking and demonstrated putting something in her mouth. On May 16, 2013, the police interviewed D.B. She had trouble identifying true and false statements but said that the appellant put his penis in her mouth, and she had licked and rubbed it. On April 30, 2014, the police interviewed D.B. again, but she was unable to recall going to the daycare. At the retrial, D.B. was shown the video of her May 16 statement, but did not remember it.
[3] A second child, A.M., (a girl, then five years old) subsequently made a similar allegation. On May 17, 2013, as the result of D.B.’s complaint, the police interviewed A.M. She did not disclose anything improper. The police advised A.M.’s parents of the nature of D.B.’s complaint. On May 18, 2013, while using the washroom with her mother, A.M. described the appellant’s penis. Her mother asked if the appellant had ever asked her to touch his penis. A.M. told her mother that he had, but she had said “no, no, no, no, no” and that this happened on “movie days” during nap time when the other children were asleep. On May 19, 2013, the police again interviewed A.M., who said she observed the appellant rub his penis and asked her to touch it, but that she refused. At trial, she did not remember attending the daycare or the police statements.
[4] On October 17, 18 and 19, 2016, the appellant was observed by two neighbours. He was visibly naked and masturbating in his living room. They took photographs and a video and reported it to the police. The trial judge noted that the appellant was charged, tried, and convicted of public nudity and breach of his conditions of release in January 2018, and presumably sentenced, though the sentencing details are not in the record.
C. The Decision Under Appeal
[5] The trial judge granted the Crown’s application to admit the complainants’ allegations on the basis of count-to-count similar fact evidence. She drew the inference requested by the Crown that the appellant “had a specific propensity to exploit his status as a daycare provider by engaging in inappropriate sexual behaviour with very young girls in his care during nap, quiet or movie time”. This ruling allowed the trial judge to consider the two charges as mutually reinforcing. The appellant does not challenge this ruling.
[6] The trial judge also granted the Crown’s application to admit the discreditable conduct evidence about the appellant’s public nudity charge in October 2016, in part, only in relation to the reliability of A.M.’s evidence.
(1) The Discreditable Conduct Ruling
[7] The trial judge cited this court’s decision in R. v. B. (L.), [1997] O.J. No. 3042 , at para. 10 , 35 O.R. (3d) 35 (C.A.) , at p. 36, as the legal basis for her ruling. She found that the appellant’s conduct in October 2016 manifested his propensity to masturbate, while naked, during daytime hours, with a towel, and in his living room. She considered this conduct to be relevant and material to the events described by A.M., in view of similarities she found in his October 2016 conduct and his conduct as described in A.M.’s testimony.
[8] The trial judge admitted the discreditable conduct evidence and from it drew the three inferences proposed by the Crown: 1) A.M. described events she witnessed rather than events she imagined; 2) A.M. was not mistaken in her description of the appellant as the man rubbing his penis with one hand; 3) A.M. was not mistaken as to the nature of the act she described (masturbating, including with a towel).
[9] The trial judge found the probative value of the evidence to exceed its prejudicial effect. The probative value was high because it was capable of supporting the three requested inferences and was therefore relevant and material to A.M.’s testimony. She found the prejudicial effect to be low because: the conduct was less discreditable than the conduct described by A.M.; it was a judge-alone trial; and the appellant could testify in response. However, the trial judge declined to admit the evidence in relation to the charges involving D.B., who had described events in a child’s bedroom. She found the evidence of discreditable conduct was not relevant or material to the events described by D.B.
(2) Credibility and Reliability Findings
[10] The trial judge applied the W.(D.) [1] framework. She found the appellant not to be credible and rejected his denial of the events, finding that his evidence did not leave her with a reasonable doubt as to his guilt. She found that he provided minute details on collateral matters in a deliberate effort to present himself as credible and reliable, a responsible caretaker, and the proprietor of a well-run daycare. In contrast, he said he had no memory of the October 2016 events, with no reasonable explanation. The trial judge also found internal inconsistencies in his testimony about nap time and in D.B.’s testimony about the number of occasions on which the described events occurred.
[11] Considering the count-to-count similar fact evidence and the other discreditable conduct, the trial judge convicted the appellant because she found D.B. and A.M.’s evidence to be both credible and reliable (subject to a finding that D.B. was unreliable as to how often the abusive conduct happened).
D. Issue
[12] The appellant challenges the trial judge’s ruling admitting the evidence about his 2016 discreditable conduct.
E. Analysis
[13] I consider the principles that govern the admissibility of discreditable conduct evidence and then apply the principles to this case.
(1) The Governing Principles on the Admissibility of Discreditable Conduct Evidence
[14] This appeal requires this court to make another foray into what Dean Wigmore called, in 1940, “a vast morass of authority that was hopeless to reconcile” on the admissibility of discreditable conduct evidence. [2] The morass is vaster today.
(a) Defining Discreditable Conduct Evidence
[15] Discreditable conduct evidence is evidence that:
(a) tends to show that the accused has committed an offence that is not the subject matter of the charge or charges before the court; or
(b) tends to show behaviour on the part of the accused, either through prior or subsequent acts, records, statements or possessions,
(c) and which, in the opinion of the court, would be viewed with disapproval by a reasonable person. [3]
[16] This definition is apt because the discreditable conduct in this case – public nudity – relates to a charge that was not the subject matter of the charges before the court and that a reasonable person would view with disapproval.
(b) The Exclusionary Rule
[17] The rule is most simply expressed by McLachlin J. (as she then was):
[E]vidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect. [4]
In other words, there is a “general exclusionary rule” against the admission of evidence “going merely to disposition”. [5] The Supreme Court repeated this language in Handy, which continues to be the seminal decision and governing precedent. [6]
[18] The rule exists, said Binnie J. in Handy, because: “[t]he evidence, if believed, shows that an accused has discreditable tendencies,” so that the trier of fact might convict on that basis alone, with the prospect that “[i]n the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence”. This would be wrong: “[t]he forbidden chain of reasoning is to infer guilt from general disposition or propensity.” [7]
[19] In order to overcome the presumption of inadmissibility, the Crown has to establish, on the balance of probabilities, that the probative value of the proposed evidence outweighs its prejudicial effect.
(c) Methodology
[20] An orderly methodology can be extracted from the cases and should guide trial judges in their assessment of the admissibility of discreditable conduct evidence. [8]
(i) Defining the Issue
[21] The first step is to define with specificity the issue to which the evidence is asserted to be relevant because “[p]robative value cannot be assessed in the abstract”. [9] Binnie J. noted in Handy that: “[t]he utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact”. [10]
(ii) Identifying the Probative Value of the Discreditable Conduct
[22] The second step is to assess the probative value of the evidence. When evidence disclosing the accused’s discreditable conduct is offered, it is said to be probative because it exhibits similarity to the conduct underlying the charges faced by the accused. That is the way that the trial judge in this case approached the evidence of discreditable conduct, as will be discussed in more detail below. While the usual form of discreditable conduct evidence is “similar fact evidence” or “similar act evidence” as seen, for example in the cross-count application in this case, the principles laid out in Handy are applicable to discreditable conduct evidence beyond similar fact evidence. [11]
[23] The assessment of probative value will vary from case to case. Identity cases are different from cases concerning motive, for example. The two critical elements are connectedness and similarity, as noted by Zarnett J.A. in R. v. Tsigirlash, 2019 ONCA 650 [12] . There must be a:
logical “ nexus established between the evidence of similar acts and the offence that the evidence is offered to prove”: MacCormack , at para. 49. Where the logical nexus depends on the similarity of the similar acts to the act charged, the probative value of the evidence will increase with the degree of similarity, because the probability that the similarity is a result of coincidence will decrease. The court must be satisfied that the “objective improbability of coincidence” has been established: R. v. Arp , [1998] 3 S.C.R. 339, at para. 48 . This analysis cannot be done in the abstract, but only on the basis of specifically-identified similar acts. [13]
[24] However, the Supreme Court has cautioned that:
The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion. At an excessively macroscopic level of generality, on the other hand, the drawing of similarities may be too facile. [14]
[25] The similarities can be circumstantial. This court held in R. v. S.C., 2018 ONCA 454 [15] , that “in sexual assault cases, similar circumstances are often more compelling than similarities or dissimilarities in conduct”. The circumstantial evidence showed that the accused had a “situation-specific propensity to seek out young females connected by family relationships” [16] , which provided the evidence with sufficient probative value to be admitted. Watt J.A. stated in R. v. J.M., 2010 ONCA 117 [17] :
Where the evidence of similar acts is summoned in support of proof of the actus reus , it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81 . The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused's conduct in closely defined circumstances.
(iii) Identifying the Prejudicial Effects of the Discreditable Conduct
[26] The third step is to assess the prejudicial effect of the discreditable conduct evidence. Evidence showing the accused has committed an offence that is not the subject matter of the charge before the court can give rise to two forms of prejudice on the part of the trier of fact: “moral prejudice” and “reasoning prejudice”.
[27] On the one hand, “moral prejudice” identifies “the risk of convicting the accused because he is a ‘bad person’ rather than based on proof that he committed this offence” for which he is being tried. [18] On the other hand, “reasoning prejudice” specifies the risk that a trier of fact will be distracted from a “proper focus on the charge itself aggravated by the consumption of time in dealing with allegations of multiple incidents…in divergent circumstances rather than the single offence charged”. [19]
[28] Binnie J. stated in Handy that “distraction” as part of reasoning prejudice can take different forms. One form is emotional: the similar facts may raise “in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process should rest”. [20] (In my view a similar dynamic applies to a judge acting as a trier of fact.) Binnie J. noted that: “[t]he accused has a limited opportunity to respond” and is not “allowed to counter evidence of discreditable conduct with similar fact evidence in support of his or her credibility”. [21] This can give rise to a trial fairness problem. Binnie J. observed that “the practical realities of the trial process reinforce the prejudice inherent in the poisonous nature of the propensity evidence itself”. [22]
[29] Another form of reasoning prejudice is when the trial focuses on the discreditable conduct itself, as a kind of trial within a trial, which can lengthen and complicate the trial, and distract the trier of fact from the issues on which liability turns. [23]
[30] In light of the rule and the dangers that the admission of discreditable conduct evidence pose, trial judges should assess the prejudicial effect from three perspectives: moral prejudice, reasoning prejudice, and the presence of any factors that might reduce the impact of prejudice in the specific circumstances of the case.
[31] The first perspective of “moral prejudice” requires the trial judge in a judge-alone trial to self-instruct against the tendency to infer guilt based upon what Handy called the “forbidden chain of reasoning…from general disposition or propensity”. [24] However, Paciocco et al. observe that “self-instruction by judges can reduce, but will not eliminate, the risk of moral prejudice.” [25] They add that: “[s]ince the extent to which restricted admissibility doctrines can prevent moral prejudice is limited, courts must maintain a high awareness of the potential prejudicial effect of admitting similar fact evidence, particularly where the similar fact conduct is reprehensible”. [26]
[32] There is less moral prejudice when the similar acts in question are other counts on the indictment, and therefore, more moral prejudice where the discreditable conduct is outside of the facts in the case: R. v. J.M. , per Watt. J.A., at para. 87, and R. v. J.H., 2018 ONCA 245 [27] , per van Rensburg J.A., at para. 24.
[33] The second perspective to be assessed is the reasoning prejudice posed in the specific circumstances of the case. This focuses both on the emotional form of reasoning provoked by the discreditable conduct, and also on the distraction from the facts in issue in the case that trying the issue of discreditable conduct might encourage.
[34] The third perspective is whether there are ways in which the possible prejudicial effects can be mitigated in the circumstances of the case. It has been said by this court that the risk of prejudice is “considerably reduced” in judge-alone trials. [28] But Paciocco et al. note that: “there is controversy over how much lower the risk of prejudice is in judge-alone trials”. [29] They add that: “[e]ven judges can struggle to overcome the tainting effect of discreditable information and may give it undue focus during a trial”. [30] This observation is true to experience. Judges can by training and experience steel themselves against moral and reasoning prejudice, but only if they actively advert to the very point in the moment of decision.
[35] While the prospect that the accused might be able to testify in order to allay the prejudicial effects has been suggested to be a mitigating factor, this is doubtful, given what Binnie J. described in Handy as the “poisonous nature” of the evidence. [31] Further, admitting the discreditable conduct evidence might effectively force the accused to testify in a case where doing so might be inadvisable for other reasons.
(iv) Weighing Probative Value Against Prejudicial Effect
[36] The fourth step in the methodology is to weigh the probative value of the discreditable conduct evidence against its prejudicial effects. Although this step is sometimes called a “balancing”, that is not an apt metaphor because, as Binnie J. noted in Handy : “[t]he two variables do not operate on the same plane”. [32] The two are actually incommensurable. Nonetheless, as Binnie J. observed, even though “probative value and prejudice pull in opposite directions” in addressing the admissibility issue, “their conflicting demands must be resolved”. [33] Generally, the more highly probative the evidence, the more likely it is that the interests of justice will require it to be admitted because of society’s interests in getting to the truth of the charges. However, the interests of both society and the accused in a fair trial process require that the dangers of propensity evidence be taken extremely seriously; the criminal justice system “should not (and does not) take lightly the dangers of misapplied propensity evidence”. [34]
(2) The Principles Applied
[37] In this part of the reasons, I use the methodology set out above as the analytical framework to explain why the discreditable conduct evidence should not have been admitted. Although the trial judge used this court’s decision in R. v. B. (L.) (1997), that methodology has evolved in the last 25 years.
[38] At the first step, the trial judge did not define with sufficient specificity the issue to which the discreditable conduct was asserted to be relevant. The elements of the conduct on which the trial judge relied are set out in the next paragraph. The Crown’s argument was that they increased the probability that the children were describing real, not imagined events. The key question was whether the evidence could advance or refute a live issue pending before the trial judge, to paraphrase Handy. Did the appellant’s discreditable conduct in masturbating naked in the front window of his house, with a towel, make it more likely that he had sexually assaulted the children in the manner alleged by the Crown? As I note below, the Crown side-stepped this question, as did the trial judge.
[39] The second step requires the trial judge to identify the probative value of the discreditable conduct evidence. I repeat here the trial judge’s findings:
The similarities between J.W.’s conduct in the fall of 2016 and the events described by A.M. include location (the living room), use of or proximity to a particular piece of furniture (one of two couches in the living room), the act (masturbation with a hand), and ancillary items (occasional use of a towel). As a result of these similarities, I find that J.W.’s “modus operandi” in the fall of 2016 constitutes an “observed pattern of propensity operating in a closely defined and circumscribed context”.
I am satisfied, on a balance of probabilities that the manifestation of J.W.’s particular distinctive propensity to masturbate, while naked, during daytime hours, and in the living room of the family home has a sufficient connection with the issues raised by the Crown. J.W.’s conduct in the fall of 2016 is relevant and material to the events described by A.M. (citations omitted).
[40] In my view, the trial judge fell into the error cautioned against by the Supreme Court in Shearing , quoted earlier. Her focus was almost entirely on similarities with no attention being paid to the dissimilarities, in particular the fact that there were no children involved in the 2016 conduct and that the appellant’s living room in 2016 was no longer a place of business operating as a daycare.
[41] The trial judge should not have adopted the Crown’s approach to the use of the discreditable conduct evidence. She noted “the submission of defence counsel with respect to a fundamental difference between the proposed evidence and the events described by A.M. — namely the absence of any children inside the home when J.W. was observed in the living room window in the fall of 2016.” However, she answered this submission by accepting the limited inferences the Crown asked her to draw only as to: “the timing, location, and nature of the act described by A.M.” The trial judge explained: “I am not asked to draw an inference with respect to conduct in the presence of a child.” But shorn of their link to children, in the context of the charges, the similarities here are merely generic and not material, and therefore risk giving undue weight to the discreditable aspects of the conduct, as Paciocco et al. trenchantly observe:
Where the probative value of similar fact evidence depends on similarities, care has to be taken not to act on “generic similarities” or kinds of features likely to be present in many or most instances of the same crime. Generic similarities do not yield appropriate inferences. They also increase the risk that the improper inference from “bad character” will be drawn, and they may mask important dissimilarities between the similar fact evidence and the crime charged. [35]
[42] At the third step, the trial judge is required to identify the prejudicial effects of the discreditable conduct. She did not do that. Instead, she dispatched the prejudicial effects of the 2016 conduct in two paragraphs, finding that “the risk of either moral prejudice or reasoning prejudice is low” because the public nudity conduct was less discreditable than the conduct for which the appellant was charged and because it was a judge-alone trial. She added that the appellant “has the opportunity, if he chooses to exercise his right to testify, to respond to the evidence as to his misconduct in 2016”.
[43] In my view, the trial judge did not implicitly or explicitly identify the elements of both moral prejudice and reasoning prejudice. The problem is especially acute for reasoning prejudice. It would be no comfort to the appellant that he would have an opportunity to testify. This is a case where the observation by Binnie J. in Handy , that “the practical realities of the trial process reinforce the prejudice inherent in the poisonous nature of the propensity evidence itself” is apposite.
[44] As it transpired, the dynamic of this trial revolved around the discreditable conduct evidence and, in particular, around the appellant’s inability to explain in terms that the trial judge would accept why he engaged in public nudity in the front window of his house. She contrasted this unfavourably with his excellent recollection of how he ran the daycare and used the contrast to impugn his credibility. In the absence of the application to admit evidence of the discreditable conduct, the appellant might have chosen not to testify, denying the Crown the opportunity to use the discreditable conduct to impugn his credibility.
[45] Once the evidence was admitted and the appellant testified, the dynamic of the trial was dramatically altered. The trial judge criticized the appellant for not providing “a plausible explanation for his inability to recall” the 2016 events. She found him to be “evasive when posed questions in cross-examination, the response to which required him to consider the events of October 2016”. She further found that “[h]e avoided responding directly to questions in cross-examination even when presented with the photographic evidence about his conduct on those dates”. However, the appellant’s testimony on the 2016 events was neither unexplained nor implausible. He said:
I was out on bail pending appeal at the time. And I was just – it’s very frustrating, I was very depressed, very angry. You know, September came around – September 2016 – and you know, the people I had been talking to all summer long had to, you know, go back to work or, you know, move along with their lives. My wife went back to work. My kids went back to school. And it just was like – you know – just a hit – like wow, this has really gone on another year. That’s – that’s – like a very telling part, that, you know, geez, the kids are going to another – like my son…started at another school, he went to junior high, it’s a school I’ve never seen. My kids are going to, you know, another year of school that I’m missing. I’m not – I used to be involved with the school quite a bit… I was really isolated. You know, it’s three and a half years where I hadn’t been able to play hockey, or play softball, because I have conditions. I couldn’t work because of the bail conditions I was on. I was just alone and I – I went crazy, I don’t know how else to explain it.
even with the appeal, the best case scenario for me was I was going to go back to the starting point with a retrial, which would just be – you know – the last three years and a half would be nothing. And that’s pretty much what happens, and you know – that’s supposed to be a good thing, and it’s – it wasn’t. And it’s – I don’t even feel now it is. It’s – it’s just tough, it’s really hard and – and I don’t – I can’t explain what I did. I can’t condone it either, but it happened, and I – you know – I’m – I’m embarrassed of it, I’m ashamed. I’m going to have to at some point figure out how to explain that to my wife, my kids.
[46] At the fourth step of the methodology, the trial judge was required to weigh the probative value of the discreditable conduct evidence against its prejudicial effects. Her finding that the probative value of the proposed evidence exceeded its prejudicial effect was based on a conclusory statement that she had “weighed the factors for and against admissibility of the proposed evidence”. The trial judge did not carry out this analysis in light of the basic premise that discreditable conduct evidence is to be presumptively excluded, and that this final step is meant to concretely analyze how the probative value of the evidence weighs against its prejudicial effects in the context of the trial as a whole.
[47] On appeal, the Crown argued that even if it was an error to admit the discreditable conduct evidence, no harm was done in light of the following statement by the trial judge at the end of her judgment:
I pause to note that in the absence of the evidence of [the appellant’s] conduct in the fall of 2016, I would still have found A.M.’s evidence is reliable. My findings of the charges, as summarized at para. 114 below, would not have changed in the absence of the evidence of other discreditable conduct .
[48] This statement downplays the significance of the role that the discreditable conduct evidence played in the trial dynamic. It became the Crown’s rhetorical platform in cross-examination and in argument, and was used as the underpinning for the trial judge’s credibility analysis. However, in this case, the discreditable conduct evidence could do no more than raise the forbidden inference, inferring guilt from general propensity.
[49] Handy noted that: “A trial judge has no discretion to admit similar fact evidence whose prejudicial effect outweighs probative value”. [36] A trial judge similarly has no discretion to admit discreditable conduct evidence whose prejudicial effect outweighs its probative value. The discreditable conduct evidence should not have been admitted, and its admission rendered the verdict unsafe.
F. Disposition
[50] I would allow the appeal, set aside the convictions and order a new trial.
Released: April 21, 2022 “P.L.”
“P. Lauwers J.A.”
“I agree. G. Pardu J.A.”
“I agree. Sossin J.A.”
[1] R. v. W.(D.) , [1991] 1 S.C.R. 742. [2] S. Casey Hill, David M. Tanovich, Louis P. Strezos , McWilliams’ Canadian Criminal Evidence , loose-leaf, 5th ed. (Toronto: Thomson Reuters Canada, 2022), at para. 10-1. [3] I adopt with a slight variation the definition proposed in McWilliams’ Canadian Criminal Evidence , at para. 10:29. [4] R. v. B. (C.R.) , [1990] 1 S.C.R. 717, at p. 735. [5] B. (C.R.) , at pp. 734-735. [6] R. v. Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908, per Binnie J. [7] Handy , at para. 139 . [8] I draw on but do not strictly follow the thinking laid out in David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence , 8th ed. (Toronto: Irwin Law, 2020) [Paciocco et al.]. [9] Handy , at para. 73 . [10] Handy , at para. 73 . [11] See for example , R. v. Luciano, 2011 ONCA 89 , 267 C.C.C. (3d) 16, at paras. 217–22 . [12] R. v. Tsigirlash, 2019 ONCA 650 . [13] Tsigirlash , at para. 29 . [14] R. v. Shearing, 2002 SCC 58 , [2002] 3 S.C.R. 33, at para. 60 (citations omitted). [15] 2018 ONCA 454 , 361 C.C.C. (3d) 419, at para. 23 . [16] R. v. S.C. , at para. 14 . [17] 2010 ONCA 117 , 251 C.C.C. (3d) 325, at para. 91 . [18] Paciocco et al., at p. 93. [19] Handy , at para. 144 . [20] R. v. D.(L.E.) (1987) , 20 B.C.L.R. (2d) 384 (C.A.), at p. 399, rev’d 1989 74 (SCC) , [1989] 2 S.C.R. 111, per McLachlin J.A. (as she then was) dissenting and being cited with approval on appeal at p. 128. [21] Handy , at para. 146 . [22] Handy , at para. 146 . [23] R. v. McDonald (2000) , 135 O.A.C. 365, at para. 33 . [24] Handy , at para. 139 . [25] Paciocco et al., at p. 93. [26] Paciocco et al., at p. 93. [27] 2018 ONCA 245 . [28] R. v. J.W., 2013 ONCA 89 , 302 O.A.C. 205, at para. 57 , leave to appeal refused, [2013] S.C.C.A. No. 288. [29] Paciocco et al., at p. 95. [30] Paciocco et al., at p. 95. [31] Handy , at para. 146 . [32] Handy , at para. 148 . [33] Handy , at para. 149 . [34] Handy , at para. 150 . [35] Paciocco et al., at p. 85. [36] Handy , at para. 153 .
