Regina v. Handy [Indexed as: R. v. Handy]

48 O.R. (3d) 257

[2000] O.J. No. 1373

Docket No. C30918

Court of Appeal for Ontario

Carthy, Charron and Sharpe JJ.A.

April 27, 2000

*Note: An appeal from the following judgment to the Supreme Court of Canada (McLachlin C.J., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.) was dismissed on June 21, 2002. The full text of the appeal is available at 2002 SCC 56, [2002] S.C.J. No. 57 (2002 SCC 56) in the S.C.J. database.

Criminal law -- Evidence -- Similar fact evidence -- Prior discreditable conduct -- Admissibility -- Accused charged with sexual assault -- Complainant alleging that accused continued intercourse after consent withdrawn and further sexually assaulting her -- Trial judge admitting evidence of seven prior physical and/or sexual assaults on former spouse to support complainant's credibility -- Trial judge instructing himself properly as to principles governing admissibility of similar fact evidence -- Trial judge erring in finding accused's alleged assaults on former spouse amounting to "pattern of conduct" -- None of prior acts involving initially consensual sexual acts continuing after consent withdrawn -- Prior acts forming basis of outstanding criminal charges against accused -- Ex-spouse's evidence subject to some frailties including possibility of collaboration with complainant -- Similar fact evidence of slight probative value and limited solely to providing propensity -- Prejudicial effect significantly greater than probative value -- Trial judge erring by admitting evidence -- New trial ordered.

The accused was charged with sexual assault causing bodily harm. The complainant testified that she initially consented to vaginal sexual intercourse with the accused and that the accused continued the act of vaginal intercourse after she withdrew her consent and then forced her to engage in anal intercourse. The Crown sought to introduce similar fact evidence in the form of the testimony of the accused's ex-wife about seven incidents of physical and/or sexual abuse allegedly committed by the accused against her. The trial judge found that the similar fact evidence, if believed, established a pattern of using an initially consensual situation to escalate into violent, painful sexual connection, with both vaginal and anal penetration; that it would confirm the credibility of the complainant; that it did more than simply suggest a propensity to commit the acts forming the subject of the charge, based upon the accused's bad character; and that, accordingly, the probative value of the evidence was sufficiently high as to lessen its prejudicial effect. The evidence was admitted. The accused was found not guilty of sexual assault causing bodily harm but guilty of the included offence of sexual assault. He appealed.

Held, the appeal should be allowed.

The similar fact evidence rule begins with the premise of general exclusion, and then calls for a balancing of all the factors that relate to the probative value of the proposed evidence and to its potential prejudicial effect. The question then is whether, because of the exceptional probative value of the evidence in relation to its potential prejudice, it should be admitted notwithstanding the general exclusionary rule.

As a matter of logic and human experience, evidence that the accused sexually assaulted his ex-wife on a number of occasions was relevant and material to determining whether he sexually assaulted the complainant as she alleged. However, a finding of relevance and materiality is only a basic threshold. Having determined that the proposed evidence could be used by the jury in determining the issues before them, it remained to be determined whether the evidence could be misused by the jury. The evidence was clearly highly discreditable. It presented the accused as a person who could be insensitive, violent and at times cruel. Although evidence of propensity or disposition may be relevant to the crime charged and material to some issue in the case, it is usually inadmissible because its slight probative value is ultimately outweighed by its highly prejudicial effect. It will only be admitted if it has exceptional probative value that in effect outweighs its prejudicial effect.

The evidence of the accused's ex-wife was subject to a number of frailties. The accused denied the incidents, which were the subject-matter of pending court proceedings and were as yet unproven. It was clear from the cross-examination of the accused's ex-wife on the voir dire that there were serious issues with respect to her credibility. This increased the potential prejudicial effect of the evidence because the issues raised with respect to her credibility had nothing to do with the charge before the court and hence unnecessarily complicated the jury's task.

Contrary to the trial judge's finding, it was difficult to identify any pattern of behaviour in the proposed evidence. In none of the alleged incidents did the accused's ex-wife testify that there was consensual intercourse escalating into something violent. Rather, with respect to each incident where there was intercourse of one form or another, she alleged that it was entirely without her consent from the outset. The various incidents were also quite disparate in nature, and there were quite a few dissimilarities between the conduct described by the accused's ex-wife and the conduct alleged by the complainant.

Finally, there was a potential for collusion that further weakened any probative value that could be derived from the improbability of coincidence. The accused's ex-wife had met the complainant some months before the alleged incident and had told the complainant about the accused's criminal record and her allegations of spousal abuse. She conceded that she might have told the complainant about a successful application she had made to the Criminal Injuries Compensation Board with respect to some of the alleged assaults by the accused.

Given that the probative value of the evidence was low, there was a very high likelihood of pure propensity reasoning in this case. The only true similarity between the prior discreditable conduct and the conduct alleged by the complainant was the fact that the accused was uncaring, insensitive and violent in his sexual behaviour. It was essentially purely propensity evidence. There was also a very real possibility that the admission of the evidence would cause the jury to confuse the issues. The main issue before them was the credibility of the complainant. There were many difficulties with respect to her own credibility. The jury was faced with assessing the credibility of another witness with respect to seven other incidents. The issues were further complicated by the fact that the witness with respect to those seven incidents was one whose credibility was also seriously in issue. The jury may well have spent more time determining the witness' credibility than determining the credibility of the complainant.

As the probative value of the evidence was slight and could not overcome its highly prejudicial effect, it should not have been admitted at trial. The error necessitated a new trial.

APPEAL by the accused from a conviction for sexual assault.

R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, 73 Alta. L.R. (2d) 1, 107 N.R. 241, [1990] 3 W.W.R. 385, 55 C.C.C. (3d) 1, 76 C.R. (3d) 1, apld Other cases referred to R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, 58 B.C.L.R. (3d) 18, 166 D.L.R. (4th) 296, 232 N.R. 317, [1999] 5 W.W.R. 545, 129 C.C.C. (3d) 321, 20 C.R. (5th) 1; R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481, 9 C.R. (5th) 38 (C.A.); R. v. Sweitzer, 1982 23 (SCC), [1982] 1 S.C.R. 949, 21 Alta. L.R. (2d) 97, 37 A.R. 294, 137 D.L.R. (3d) 702, 42 N.R. 550, [1982] 5 W.W.R. 555, 68 C.C.C. (2d) 193, 29 C.R. (3d) 97 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 272(1) (c) Authorities referred to Paciocco and Stuesser, The Law of Evidence (1996)

Richard N. Stern, for appellant. Christopher Webb, for the Crown, respondent.

The judgment of the court was delivered by

[1] CHARRON J.A.: -- The appellant was charged with one count of sexual assault causing bodily harm contrary to s. 272(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46. Following a trial before Jennings J. and a jury, he was found not guilty of the offence as charged but was convicted of the included offence of sexual assault and sentenced to a term of two years' imprisonment.

[2] This appeal turns on the trial judge's application of the similar fact evidence rule to the particular facts of this case.

OVERVIEW

[3] The alleged offence arises out of an incident that is often referred to in common parlance as "date rape". The Crown alleges that the appellant continued an act of vaginal sexual intercourse with the complainant after she had withdrawn her consent to the act, and that he then proceeded to forcibly perform anal intercourse despite her protestations. In support of the complainant's testimony, the Crown at trial sought to introduce the testimony of the appellant's former wife with respect to seven incidents of physical and/or sexual abuse alleged to have been committed against her.

[4] Following a voir dire, the trial judge ruled that the former wife's testimony was admissible in support of the complainant's credibility because it evidenced "a pattern of using an initially consensual situation to escalate into violent, painful sexual connection, with both vaginal and anal penetration." The former wife was therefore allowed to testify about the seven incidents in question. At the end of the trial, the trial judge instructed the jury that, if they found that the appellant "enjoyed forcing anal and vaginal sex upon his ex-wife in circumstances accompanied by pain and continuing in spite of a request to stop", the evidence of this conduct could assist them in determining the truth of the complainant's allegations.

[5] Counsel for the appellant submits that the trial judge's finding that the former wife's testimony evidenced "a pattern of conduct" which supported the complainant's testimony cannot be supported by the evidence. He argues that this evidence had no probative value with respect to any issue at trial other than proving the appellant's bad character and consequent propensity for committing the offence. Counsel for the appellant therefore takes the position that the evidence was inadmissible and that, given its highly prejudicial nature, its admission resulted in an unfair trial.

[6] Alternatively, counsel for the appellant submits that, even if this evidence was properly admitted, the jury was misdirected by the trial judge as to the use they could make of this evidence in their deliberations. Rather than being cautioned against adopting the propensity reasoning prohibited by law, counsel for the appellant submits that the jurors were effectively told that, if they found on the basis of that evidence that the appellant was the type of person who would commit the offence, they could use this fact to assist in determining the truth of the complainant's testimony. Counsel for the appellant argues that this direction constituted reversible error.

[7] It is the Crown's general position that the trial judge did not err either in admitting the former wife's testimony or in his charge to the jury regarding the permissible use of her evidence.

[8] A trial judge's decision on the application of the similar fact evidence rule is entitled to considerable deference upon appellate review because it involves the delicate and difficult process of balancing the probative value of the evidence against its prejudicial effect, a task which the trial judge is in a better position to perform. Hence, where a trial judge has properly addressed all relevant concerns, has weighed the evidence and its potential prejudice and has arrived at a conclusion as to its admissibility, a court of appeal should not lightly interfere: see R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717 at p. 733, 55 C.C.C. (3d) 1 at pp. 23-24.

[9] In this case, the trial judge instructed himself according to correct legal principles. However, it is my view that the trial judge erred in characterizing the probative value of the proposed evidence as evidencing "a pattern of conduct" that supported the complainant's testimony. I agree with counsel for the appellant that the evidence cannot reasonably support this finding. The incidents involving the former wife were varied and did not evidence any identifiable pattern of conduct nor could any helpful parallel be drawn between those incidents and the allegations of the complainant. The evidence was also subject to a number of frailties, not adverted to by the trial judge, that further reduced any probative value it could have. Finally, as became apparent from the trial judge's own instruction to the jury, the evidence could serve no purpose other than to show that the appellant was the type of person who would commit the alleged offence. As such, the evidence was highly prejudicial and of slight probative value. It should not have been admitted at trial. In the circumstances, I am satisfied that the erroneous decision of the trial judge merits appellate intervention. In my view, there must be a new trial.

THE EVIDENCE AT TRIAL

[10] The complainant met the appellant about six months before the incident in question. He had been introduced to her by her boyfriend at the time. On December 6, 1996, the complainant went out with a girlfriend for a few drinks and saw the appellant at the bar. He was already visibly intoxicated. After an evening of drinking and flirting, the appellant and the complainant went with two of the complainant's friends to one of the friends' homes, where they smoked marijuana. The appellant and the complainant then left together, with the appellant driving. Both the appellant and the complainant had consumed a considerable amount of alcohol and, while driving to the Econo Lodge motel, their car went into a ditch and they had to push it out. Once inside a motel room, they commenced consensual vaginal intercourse. The complainant alleged that the appellant was forceful and that intercourse became uncomfortable for her. She told the appellant that he was hurting her. She testified that the appellant asked, "How am I hurting you?", but continued.

[11] The complainant testified that, eventually, the appellant stopped vaginal intercourse and initiated anal intercourse. She testified that she told him to stop because he was hurting her. She stated that, again, the appellant asked, "How am I hurting you?", but did not stop. The complainant testified that she tried to get the appellant off her but was unsuccessful. She alleged that he held her down and continued the anal intercourse despite her pleas and her crying.

[12] The complainant further alleged that, at one point during the incident, she slapped the appellant in the face. He struck her in the chest and also choked her. Afterwards, she told him that he had made her bleed. He allegedly said, "What the hell am I doing here? Why does this keep happening to me?"

[13] Two days later, the complainant was feeling poorly and sought medical assistance. She was diagnosed with pneumonia and post-traumatic stress. A number of witnesses testified that they observed bruises on the complainant's throat, chest and arms in the days following the sexual assault.

[14] Following a voir dire, the evidence of the appellant's former wife, K.B., regarding seven incidents of physical and/or sexual abuse that she suffered during their relationship, was admitted as similar fact evidence. It is necessary to consider Ms. B.'s evidence in some detail to dispose of this appeal.

[15] Ms. B. testified as to her relationship with the appellant. Ms. B. and the appellant were married in 1989, when she was 17 years old. They had three children together, born in 1990, 1991 and 1992 respectively. They separated in 1992 around the time when the appellant was imprisoned. Ms. B. divorced the appellant in 1994 while he was still in prison. The appellant was released in 1995. Shortly after his release, he and Ms. B. resumed living together. Ms. B. left the appellant for the last time in December 1996, after she found a note from a woman in his pocket. This was shortly after the alleged incident in this case, which occurred on December 7, 1996. In January 1997, by which time Ms. B. knew that the appellant had gone to a motel with the complainant in this case and had been arrested on this charge, Ms. B. went to the police and gave a statement about a number of incidents that happened during the course of her relationship with the appellant. At the time of trial in June 1998, these incidents were the subject-matter of criminal charges and a preliminary hearing had been completed in separate proceedings. Ms. B.'s testimony about the incidents in question can be summarized as follows:

1. Incident One

In March 1990, a few weeks after their first child was born, the appellant wanted to have vaginal intercourse with Ms. B. She did not want to do so because she thought intercourse would be painful. The appellant was curious to "see what it would feel like" and insisted that they have intercourse. Once they started, K. told him she was in pain. He said that it was supposed to hurt and did not stop.

2. Incident Two

Approximately six months after their first child was born, Ms. B. and the appellant visited her sister and brother-in-law in their mobile trailer. After everyone went to bed, the appellant wanted to have sexual intercourse. Ms. B. did not want to do so because her sister and her husband were at the other end of the trailer and Ms. B. did not feel comfortable having intercourse in that situation. She told the appellant that she did not want to have sex and tried to move away from him. The appellant told her to shut up and had intercourse with her anyway.

3. Incident Three

One afternoon during the summer of 1991, Ms. B. returned home from doing the laundry to find that the appellant had invited a number of people into their apartment for a party. The guests were drinking and tatooing each other. The appellant was sitting on the living room sofa with two women, all tickling each other. Ms. B. became upset and told everyone to leave. Everyone left except for the appellant's cousin and another man. Ms. B. went into the bedroom. The appellant followed her. He was upset because she had told everyone to leave and began throwing her around the room. He tried to have sexual intercourse with her. She tried to get away from him. He blocked the door with a dresser so she tried to get out by the second floor bedroom window, but the appellant pulled her back in. The appellant then forced Ms. B. to have sexual intercourse and then passed out. Ms. B. left the bedroom. The appellant's cousin and the other man were still inside the apartment. Ms. B. testified that the two men "didn't know what to do". She left the apartment and went to her father-in-law's auto body shop located down the street.

4. Incident Four

Approximately two weeks after their third child was born, the appellant came home after he had been drinking and wanted to have anal intercourse with Ms. B. She did not want to do that because the appellant had tried to have anal intercourse with her before, and it had "hurt a lot". She told him that she did not want to have anal intercourse. The appellant initiated anal intercourse nonetheless. She kept moving and tried to get away. The baby woke up a number of times crying. She attempted to give the baby a bottle but the appellant pulled her back to the bed each time. Then, the appellant threw her onto the bed and grabbed a bottle of baby oil from under the bed. He put the baby oil on his penis and on her anus. The application of the baby oil made it more difficult for her to get away. The appellant started to have anal intercourse with her. The baby started to cry again. The appellant stopped to put the baby to sleep. Ms. B. ran to the basement. The appellant followed her. He told her that if she did not stop running, he would tie her up with a rope. He told her she was acting like a baby. It is unclear from Ms. B.'s testimony whether they went back to the bedroom. In any event, she ran naked out of the house and over to the neighbour's house. The police were called. They told Ms. B. that she could lay charges but she testified that she "just couldn't."

[16] Sometime later in 1992, the appellant was imprisoned. While the appellant was imprisoned, Ms. B. divorced him and obtained compensation in the amount of $16,500 from the Criminal Injuries Compensation Board for the abuse she suffered during the course of her marriage. She testified that the above-noted incidents formed the basis of her complaint to the Board. Ms. B. resumed cohabitation with the appellant sometime after his release in 1995.

5. Incident Five

Shortly after the appellant and Ms. B. resumed living together in 1995, they had an argument. Ms. B. was upset because the appellant had gone out with a woman whom he used to date. The appellant became angry, grabbed Ms. B. by the throat, threw her around, pinned her against the wall and broke the glass coffee tables. He did not, however, sexually assault her.

6. Incident Six

One night during the summer of 1996, the appellant and Ms. B. were returning home after dropping off their friends. The appellant told Ms. B. that they were not going home. Rather they were going to a gravel pit and she "was going to get it up the ass." She testified that he had forced her to have sexual intercourse with him at the gravel pit in the past. Ms. B. told the appellant that she was willing to do anything, just not anal intercourse, "because it really hurt". The appellant, however, wanted to have anal intercourse. He tried to enter Ms. B. anally, but was unsuccessful because she moved around and there was not enough room in the back seat. The appellant took her out of the back seat and put her face down on the hood of his car. He attempted to enter Ms. B. anally from behind. It is unclear from Ms. B.'s testimony whether he was successful but eventually he turned her over onto her back and had vaginal intercourse with her.

7. Incident Seven

In October 1996, Ms. B.'s grandfather passed away. The appellant and Ms. B. were alone in Ms. B.'s home. Ms. B. was upset and was crying. Ms. B. testified that her crying "turned [the appellant] on" and that he wanted to have sexual intercourse on her mother's new couch. Ms. B. did not want to have intercourse. The appellant put her on the couch and commenced vaginal intercourse. She cried. While they had intercourse, he punched her in the stomach a number of times to make her cry louder. The incident ended when the appellant stopped abruptly.

[17] The appellant testified at trial. He described his marriage to Ms. B. and denied committing any of the alleged assaults on her. With respect to the allegation made by the complainant, he testified that he met her at the bar, that they were both quite intoxicated and that they left the bar together. Eventually, they went to a motel room. He testified that the complainant straddled him as he lay on his back and that they engaged in approximately 15 or 20 minutes of vaginal sex. He denied that the complainant at any time complained or asked him to stop. He also denied hitting her or choking her. He did not remember whether or not they had anal intercourse. They slept for awhile and at about 6:40 a.m. she drove him home. He did not see her again.

THE TRIAL JUDGE'S RULING

[18] The trial judge correctly identified the test for admitting similar fact evidence. He quoted from McLachlin J.'s judgment in R. v. B. (C.R.), supra, at p. 730 S.C.R., p. 21 C.C.C. as follows:

In determining its admissibility, one starts from the proposition that the evidence is inadmissible, given the low degree of probative force and the high degree of prejudice typically associated with it. The question then is whether, because of the exceptional probative value of the evidence under consideration in relation to its potential prejudice, it should be admitted notwithstanding the general exclusionary rule.

[19] The trial judge then followed the analysis proposed by this court in R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481. He quoted the following from p. 43 O.R., p. 490 C.C.C. of that decision:

The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?

2. If so, is the proposed evidence relevant and material?

3. If relevant and material, is the proposed evidence discreditable to the accused?

4. If discreditable, does its probative value outweigh its prejudicial effect?

[20] The trial judge held that there was no difficulty in answering the first question in the affirmative. Quite clearly, Ms. B.'s proposed testimony was about the appellant Mr. Handy. The trial judge then concluded that "[h]ow Mr. Handy acted on previous occasions with Ms. [B.] may very well assist the jury in determining how he acted with Ms. [S.]" and he therefore found the evidence both relevant and material. The trial judge then considered the third question, whether the proposed evidence is discreditable to the accused, and stated that the answer to this question must be yes. He therefore concluded that, because the evidence was discreditable, it could only be admitted if its probative value outweighed its prejudicial effect. The trial judge then reminded himself that in considering whether the discreditable evidence may prejudice the trier of fact against the accused, the issue was not whether the evidence might increase the chance of conviction but whether the evidence would be improperly used by the trier of fact to find that the accused was guilty simply because he was a bad person.

[21] The trial judge then concluded that, after considering the factors enumerated by this court in R. v. B. (L.), the evidence was admissible. He stated as follows:

In my opinion the issue for the jury is not simply whether the withdrawal of consent was communicated; it is whether Ms. [S.]'s allegations are credible that sex continued in a violent manner in the face of her attempted refusal. In my opinion, the similar fact evidence, if believed, establishes a pattern of using an initially consensual situation to escalate into violent, painful sexual connection, with both vaginal and anal penetration. It would show a pattern of behaviour. It would confirm the credibility of Ms. [S.]. Those are legitimate purposes for the reception of the evidence because it does more than simply suggest a propensity to commit the acts forming the subject of the charge, based upon the accused's alleged bad character. Because of that, I find the probative value to be high.

The analysis of the proposed evidence persuades me that there is a real similarity in the contextual sense, to the evidence of what happened to Ms. [S.]. That there were superficial differences is obvious. For example, Mr. Handy was married to Ms. [B.] and after divorce, lived with her in a conjugal situation. There were incidents of consensual vaginal sex between Mr. Handy and Ms. [B.]. He used a lubricant on one occasion when there was anal intercourse. None of those features were present in his encounter with Ms. [S.].

But the overriding similarity of the conversion of an occasion when consensual sex may be anticipated, into one of continuing vaginal sex after complaint, pain and request to stop, accompanied by physical attack, and of initiating and continuing anal sex without consent, persuades me the proposed evidence has the substantial probative value required, and as was the case in R. v. B. (L.) the proposed evidence is relevant to an important issue, the credibility of Ms. [S.].

In assessing its prejudicial effect, I accept defence counsel's submission that in this day and age, spousal abuse is rightly regarded with disgust. Sexual attitudes may be more relaxed now than was formerly the case with respect to anal intercourse, but regardless, forced intercourse either anally or vaginally, is likely to be viewed with extreme distaste.

The admission of the evidence will not confuse issues and the accused is able to respond to it.

In my view, the probative value of the evidence is sufficiently high as to lessen its prejudicial effect to the extent that probative value exceeds prejudicial effect, and I rule the evidence to be admissible.

ANALYSIS

[22] There is no question that the admissibility of the proposed evidence at trial was governed by the similar fact evidence rule. The trial judge correctly identified the governing test. As set out in the excerpt from R. v. B. (C.R.) quoted by the trial judge, the rule begins with the premise of general exclusion, and then calls for a balancing of all the factors that relate to the probative value of the proposed evidence and to its potential prejudicial effect. As stated in B. (C.R.), "[t]he question then is whether, because of the exceptional probative value of the evidence under consideration in relation to its potential prejudice, it should be admitted notwithstanding the general exclusionary rule."

[23] Although it is by no means mandatory to follow the analytical framework suggested by this court in R. v. B. (L.), I find it a helpful tool both to determine whether the similar fact evidence rule comes into play and to apply the rule to the particular facts of the case when it does apply.

[24] The first question is whether the conduct which forms the subject-matter of the proposed evidence is that of the accused. The Supreme Court of Canada in R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339 at p. 371, 129 C.C.C. (3d) 321 at p. 346, recently reiterated that a link between the accused and the alleged similar acts is a pre-condition to the admissibility of the evidence. The threshold test is that set out in R. v. Sweitzer, 1982 23 (SCC), [1982] 1 S.C.R. 949 at p. 954, 137 D.L.R. (3d) 702:

Before evidence may be admitted as evidence of similar facts, there must be a link between the allegedly similar facts and the accused. In other words there must be some evidence upon which the trier of fact can make a proper finding that the similar facts to be relied upon were in fact the acts of the accused for it is clear that if they were not his own but those of another they have no relevance to the matters at issue under the indictment.

[25] In this case, this question posed no problem. The trial judge was correct in noting that the link between the conduct in question and the appellant was provided through Ms. B.'s testimony. There was no question on her testimony that the person she was testifying about was the accused before the court. Of course, her testimony would have to be accepted by the jury before the evidence would have any probative value, but at this stage of the inquiry the trial judge was correct in saying that this ultimate issue of credibility was not for him to determine.

[26] The second question is whether the proposed evidence is relevant and material. Relevance and materiality is a basic threshold that all evidence must meet before it will be admitted at trial. Evidence is relevant "where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence." [See Note 1 at end of document] It is material if it is directed at a matter in issue in the case. Therefore, this basic threshold of relevance and materiality can generally be tested by asking what inference is sought to be made from the proposed evidence and whether it has some tendency to advance the inquiry before the court.

[27] The trial judge found that the proposed evidence was relevant and material because, as set out above, "[h]ow Mr. Handy acted on previous occasions with Ms. [B.] may very well assist the jury in determining how he acted with Ms. [S.]." The Crown submits that the trial judge did not err in finding that the proposed evidence was relevant and material to the issue of whether the complainant's allegation was credible. The Crown argues in its factum that "evidence that the appellant has acted in a particular manner on past occasions or, stated differently, evidence that an accused has the propensity or disposition to act in a particular way, tends to support the inference that he acted that way on the occasion in issue." Hence, it is argued, "evidence that the appellant sexually assaulted his former wife on a number of occasions was relevant and material to determining whether he sexually assaulted the complainant."

[28] I agree with the Crown's contention that, as a matter of logic and human experience, evidence that the appellant sexually assaulted Ms. B. on a number of occasions was relevant and material to determining whether he sexually assaulted the complainant as she alleged. Hence, I am of the view that the trial judge was correct in finding that Ms. B.'s evidence was relevant and material in so far as her evidence related to incidents of sexual assault. It is not as clear, however, how the evidence with respect to "incident five" (where the appellant physically assaulted Ms. B. and broke some furniture during the course of an argument) could really advance the inquiry before the court beyond supporting the inference that the appellant could prove to be violent. However, since the complainant was also alleging certain acts of violence, I would not interfere with the trial judge's finding on this question.

[29] It is important to note, however, that a finding of relevance and materiality is only a basic threshold that can easily be met. At this stage of the inquiry, the court is simply recognizing that the nature of Ms. B.'s evidence is such that it may advance the inquiry before the court from the strict standpoint of logic and human experience. If, for example, Ms. B.'s proposed testimony was that Mr. Handy was a heavy smoker, I think that any trial judge would readily conclude that the evidence was not relevant and not material because it would not in any way advance the inquiry into any of the issues before the court. Hence, the inquiry would stop at that point and the evidence would be ruled inadmissible. In this case, it is because Ms. B.'s proposed testimony, as a matter of logic and human experience, could be used by the jury in determining the issues before them that the inquiry into its admissibility must continue. In particular, it must be determined whether this evidence could be mi sused by the jury. That consideration brings us to the third question, was the proposed evidence discreditable to the appellant?

[30] As the trial judge properly concluded, there is no doubt that the evidence was highly discreditable. Ms. B.'s testimony presented Mr. Handy as a person who could be insensitive, violent, and at times, even cruel. At this stage of the inquiry, the court has in effect identified the dangers associated with this type of evidence. There is a danger that this evidence, which is discreditable to the accused and which is not the subject-matter of the charge, could be misused by the jury to convict the accused on the basis that he is a "bad" person who is the "type" to commit the offence with which he is charged rather than on the basis of evidence that properly relates to the charge before the court. Therefore, the general exclusionary rule is triggered. As stated by Sopinka J., in R. v. B. (C.R.), the principal reason for this exclusionary rule is that there is a natural human tendency to judge a person's actions on the basis of character. He states at p. 744 S.C.R., pp. 7-8 C.C.C. as follows:

Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet, the policy of the law is wholly against this process of reasoning. This policy is reflected not only in similar act cases but as well in the rule excluding evidence of the character of the accused unless placed in issue by him. The stronger the evidence of propensity, the more likely it is that the forbidden inference will be drawn and therefore the greater the prejudice.

[31] Although evidence of propensity or disposition may be relevant to the crime charged and material to some issue in the case, it is usually inadmissible because its slight probative value is ultimately outweighed by its highly prejudicial effect. It will only be admitted if it has exceptional probative value that in effect outweighs its prejudicial effect. This brings us to the critical inquiry as to whether the probative value of the evidence outweighs its prejudicial effect. As stated by the Supreme Court in Arp, supra, at p. 363 S.C.R., p. 340 C.C.C., this is the "basic and fundamental question" that must be answered in considering the admissibility of similar fact evidence.

[32] In R. v. B. (L.), this court set out a list of factors at p. 47 O.R., p. 494 C.C.C. that may be useful to consider in applying this balancing test. The factors are as follows.

In assessing the probative value of the proposed evidence, consideration should be given to such matters as:

(i) the strength of the evidence;

(ii) the extent to which the proposed evidence supports the inference(s) sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and

(iii) the extent to which the matters it tends to prove are at issue in the proceedings.

In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as:

(i) how discreditable it is;

(ii) the extent to which it may support an inference of guilt based solely on bad character;

(iii) the extent to which it may confuse issues; and

(iv) the accused's ability to respond to it.

[33] As stated earlier, the trial judge stated that he considered these factors and concluded that the probative value of the evidence was sufficiently high to overcome its prejudicial effect. With respect, it is my view that the trial judge erred in his assessment of the evidence. I will refer to some of the above-noted factors in explaining the reasons for my conclusion.

1. Probative Value

(a) the strength of the proposed evidence

[34] The extent to which the discreditable conduct can be proven has a direct bearing on its probative value. In cases where the accused denies his or her involvement in the prior acts, the issue of proof may be important to the inquiry into its probative value. This is such a case.

[35] Mr. Handy denied all of the incidents alleged by Ms. B. The incidents in question formed the subject-matter of pending proceedings before the court and were as yet unproven. On the voir dire, Ms. B. was subjected to extensive cross-examination by defence counsel. It is clear from this cross-examination that there were serious issues with respect to Ms. B.'s credibility. I note the following matters that could legitimately be pursued by defence counsel in cross-examination and considered by the jury in the assessment of her credibility:

-- There were a number of material inconsistencies between her evidence at trial, her prior statements, and her testimony at the preliminary hearing and on the appellant's first trial. (The record indeed reveals a number of inconsistencies between her evidence on the voir dire and her evidence before the jury.)

-- There was considerable delay in reporting any of the incidents.

-- The timing of Ms. B.'s complaints to the authorities and the context within which the complaints were made raised issues with respect to her motives to come forward.

-- Her complaint with respect to the first four incidents was first made to the authorities in the context of an apparently uncontested application for compensation before the Criminal Injuries Compensation Board, at a time when the appellant was incarcerated and as a result of which Ms. B. received $16,500.

-- Her later complaint to the police about all of the incidents was made shortly after her final separation from the appellant and shortly after she had learned of the appellant's involvement in this case. This complaint was also made about a week after the appellant had been sentenced to a short period of incarceration on a charge of threatening Ms. B., a sentence which Ms. B. admitted had disappointed her at the time.

[36] I am not suggesting that these circumstances would necessarily affect Ms. B.'s credibility in the final analysis, but they are all matters that could be legitimately pursued in a proper assessment of her credibility. The important point is that, to the extent that these circumstances affected Ms. B.'s credibility, they made the proposed evidence weaker. These circumstances also increased the potential prejudicial effect of the evidence because the issues raised with respect to Ms. B.'s credibility had nothing to do with the charge before the court and hence unnecessarily complicated the jury's task.

(b) The extent to which the proposed evidence supports the intended inference

[37] As noted in R. v. B. (L.), the extent to which the proposed evidence supports the intended inference will often depend on the degree of similarity between the prior discreditable conduct and the facts sought to be proved at trial. The requisite similarity in turn depends on what particular inference is sought to be drawn. It is well established, and it follows as a matter of common sense, that where the inference sought to be drawn is that the same person committed the acts in question, the degree of similarity must be very high. One would not conclude that the same person committed two separate acts on the basis of the similarities alone, unless there was a striking similarity between the acts in question. In cases such as this one, where identity is not an issue and the evidence is intended to support the credibility of the complainant's allegation, the similarity of the events may be less crucial but is still of importance. While it is not necessary that the incidents be strikingly simil ar for the evidence to have significant probative value, there must be sufficient similarity in the circumstances surrounding the prior discreditable conduct to support an inference that the complainant is probably telling the truth. It is the improbability that the two complaints are simply coincidental which gives the evidence of the other discreditable conduct its probative value.

[38] In this case, as noted above, the trial judge concluded that Ms. B.'s testimony, if believed, established "a pattern of using an initially consensual situation to escalate into violent, painful sexual connection, with both vaginal and anal penetration". He stated that this would show a pattern of behaviour that would confirm the credibility of Ms. S. by virtue of the similarity between the pattern and the allegation of sexual assault in this case. With all due respect, it is difficult to identify any such pattern of behaviour in the proposed evidence. In none of the incidents did Ms. B. testify that there was consensual intercourse escalating into something violent. Rather, with respect to each incident where there was intercourse of one form or another, she alleged that it was entirely without her consent from the outset.

[39] The various incidents are also quite disparate in nature. The first incident involved vaginal intercourse with Ms. B. without her consent, in circumstances where it was painful to her because of the recent birth of her child but without additional physical violence. In the second incident (at the sister's trailer), there was vaginal intercourse without her consent, but in circumstances where there was no infliction of pain. The third incident, when Mr. Handy was angry that Ms. B. had told his guests to leave, involved mostly physical violence culminating in an act of forcible vaginal intercourse. The fourth incident involved attempted anal intercourse and physical violence when Ms. B. resisted. The fifth incident involved physical violence towards Ms. B. and other violent behaviour but no sexual assault. The sixth incident involved either successful or attempted anal intercourse and vaginal intercourse, all without the complainant's consent. The last incident, when Ms. B.'s grandfather had died, involv ed an incident of vaginal sexual intercourse without Ms. B.'s consent in circumstances where the appellant was insensitive to Ms. B.'s emotional condition and also some physical violence. Although these incidents share certain characteristics, it is difficult to fit them into any sort of "pattern" that is specific enough to be of use in bolstering the credibility of the complainant.

[40] There are also quite a few dissimilarities between the conduct described by Ms. B. and the conduct alleged by the complainant. With all due respect to the trial judge, these differences are not "superficial". For example, the incidents involving Ms. B. took place largely within the context of a conjugal relationship, whereas the conduct charged in this case involved a complainant who was, at best, an acquaintance of the appellant. Moreover, the conduct charged in this case appears to have begun as an act of consensual intercourse, thereby making it different in a crucial way from all of the incidents recounted by Ms. B.

[41] Finally, there was a potential for collusion that further weakened any probative value that could be derived from the improbability of coincidence. The potential for collusion is always a serious consideration in the assessment of the strength of this kind of evidence. As noted in Arp, supra, at p. 375 S.C.R., p. 349 C.C.C., "It is the unlikelihood of coincidence that gives the evidence its probative force." It follows, therefore, that collusion between witnesses may deprive the evidence of much, if not all, of its force. In this case, the potential for collusion existed. Ms. B. had met the complainant some months before this incident. She had told the complainant about the appellant's criminal record and her allegations of the appellant's abuse during their marriage. Ms. B. also conceded in cross-examination that she might have told the complainant about the $16,500 compensation she received. The trial judge noted this possibility for collusion, stated that there was no "direct evidence" of collusion and concluded, "Regardless, this is a decision for the trier of fact to make." Although the trial judge is quite correct that he does not have to make any determinative finding as to whether or not there was collusion, it is not a matter that can simply be left for the jury to determine without giving it due consideration in the assessment of the probative value of the evidence.

(c) The extent to which the matters it tends to prove are at issue in the proceedings

[42] This factor, in essence, measures the extent to which the proposed evidence is material to the case. In this trial, the credibility of the complainant's evidence was very much at issue. Hence, evidence in support of her credibility would be very material to the case. It is therefore arguable that, in the balancing process, this factor favoured the admission of the proposed evidence, in so far as it could be supportive of the complainant's testimony. As I have already indicated, however, the proposed evidence in this case did not provide much support for the complainant's testimony.

2. Potential Prejudice

(a) The extent to which it may support an inference of guilt based solely on bad character

[43] Given that the probative value of this evidence was so low, there was a very high likelihood of pure propensity reasoning in this case. The only true similarity between the prior discreditable conduct and the conduct alleged by the complainant was the fact that the accused was uncaring, insensitive and violent in his sexual behaviour. It was essentially purely propensity evidence. There was almost no other use to which the evidence could be put. In fact, the trial judge's charge to the jury brings this into sharp focus where he states, "If you find that Handy enjoyed forcing anal and vaginal sex upon his ex-wife in circumstances accompanied by pain and continuing in spite of a request to stop, that conduct may assist you in determining the truth of Ms. [S.]'s allegations as to what happened to her." This charge tells the jury to base its findings on whether the appellant was the type of person who "enjoyed" sexual assault rather than on whether the conduct with his ex-wife was sufficiently similar and probative so as to bolster the complainant's credibility. Hence, this evidence showed nothing more than the propensity of the appellant to commit sexual assaults and was highly prejudicial.

(b) The extent to which it may confuse issues

[44] There was also a very real possibility that admission of this evidence would cause the jury to confuse the issues. The main issue before them was the credibility of the complainant, specifically as it related to the issue of consent. There were many difficulties with respect to her own credibility that I do not find necessary to describe for the purpose of this analysis. The jury was now faced with assessing the credibility of another witness with respect to seven other incidents. The issues were further complicated by the fact that the witness with respect to these seven incidents was one whose credibility was also seriously in issue. The jury may well have spent more time determining Ms. B.'s credibility than with determining the credibility of the complainant.

(c) The accused's ability to respond to the evidence

[45] Many of the incidents alleged by Ms. B. dated back quite a number of years. With these incidents before the jury, the appellant was now forced to, in effect, stand for trial on eight incidents instead of one in circumstances where his ability to respond to the allegations was necessarily restricted by the passage of time.

CONCLUSION

[46] For these reasons, it is my view that the probative value of Ms. B.'s evidence was slight and could not overcome its highly prejudicial effect. Hence, it should not have been admitted at trial. This error necessitates a new trial.

[47] In light of my finding that this evidence was not admissible, the second alternative ground of appeal with respect to the correctness of the jury charge becomes moot.

[48] I would allow the appeal, quash the conviction, and order a new trial.

Appeal allowed.

Notes

Note 1: Paciocco and Stuesser, The Law of Evidence (1996).