Her Majesty the Queen v. C.P.K. [Indexed as: R. v. K. (C.P.)]
62 O.R. (3d) 487
[2002] O.J. No. 4929
Docket No. C35678
Court of Appeal for Ontario,
McMurtry C.J.O., Carthy and Simmons JJ.A.
December 23, 2002
Criminal law -- Evidence -- Admissibility -- Similar fact evidence (past discreditable conduct) -- Accused charged with several sexual offences, assault with weapon, uttering death threat, sexual assault with weapon and failing to comply with recognizance for attacks on girlfriend over four days -- Trial judge erring in admitting similar fact evidence of previous girlfriend who had been physically assaulted by accused -- Crown arguing that proposed evidence supported complainant's evidence by showing pattern of violence to assert control over domestic partners -- Trial judge framing issue in question to which similar fact evidence was said to be relevant as complainant's credibility -- Issue framed too broadly -- Issue in question was whether actus reus of offences occurred -- Trial judge failing to appreciate relative cogency of factors connecting and distinguishing proposed similar fact evidence and evidence of offences charged -- Trial judge failing to consider significant potential prejudice arising from proposed similar fact evidence -- Trial judge erring in holding that prejudicial effect of evidence significantly outweighed its probative value based on record before him -- Appeal from conviction allowed and new trial ordered.
The accused was charged with seven offences against his girlfriend S: unlawful confinement, assault causing bodily harm, sexual assault, anal intercourse, uttering a death threat, failing to comply with a recognizance and sexual assault with a weapon. He pleaded guilty to assault causing bodily harm and not guilty to the other charges. S testified that the accused became increasingly paranoid, jealous and abusive as their relationship progressed. She alleged that over a four-day period the accused slapped her, choked her and forced her to have vaginal and anal intercourse, sometimes while he was holding a knife. In cross-examination, the defence mounted a formidable attack on S's credibility based on improbabilities and inconsistencies in her evidence. The Crown brought an application to introduce similar fact evidence concerning the accused's conduct towards M, a previous domestic partner. M testified on the voir dire that she lived with the accused for five months in 1997, that he became paranoid and accused her of sleeping with other people shortly after they began living together, and that he became aggressive and abusive. She described six specific incidents of alleged abuse, none of which involved sexual assault. The trial judge admitted M's evidence, ruling that it was more probative than prejudicial and that there were at least 14 points of similarity between M's evidence and the facts in this case. In his charge to the jury, the trial judge instructed them that if they accepted the similar fact evidence, it was relevant for the limited purpose of assisting them in determining S's credibility. He identified the similarities between M's evidence and S's evidence and also pointed out the dissimilarities. He gave a strong caution to the jury against using the similar fact evidence for impermissible propensity reasoning. The jury found the accused not guilty of sexual assault with a weapon and not guilty of failing to comply with a recognizance. He was convicted of unlawful confinement, assault causing bodily harm, sexual assault, anal intercourse and uttering a death threat. The accused appealed.
Held, the appeal should be allowed. [page488]
The trial judge made three errors in his admissibility analysis concerning M's evidence: he framed the issue in question (that is, the live issue at trial to which the proposed similar fact evidence is said to be relevant) too broadly, allowing too wide a gateway for the admission of similar fact evidence; having framed the issue in question as the complainant's credibility, he failed to appreciate the relative cogency of the factors connecting, and distinguishing, the proposed similar fact evidence and the evidence of the offences charged; and he failed to consider the significant potential prejudice arising from the proposed similar fact evidence. The issue in question was whether the actus reus of the contested offences (unlawful confinement, sexual assault, anal intercourse, uttering a death threat and sexual assault with a weapon) occurred. The trial judge erred by focusing on similarities between M's evidence and S's evidence reflecting on S's credibility, when the focus should have been on connecting factors bearing on the question of whether the actus reus of the contested offences occurred. The trial judge also failed to consider the required degree of similarity to make the similar fact evidence admissible. A persuasive degree of similarity was required.
The events relating to M were proximate in time to the incidents forming the subject matter of the contested charges, which occurred in 1999. There were several common elements between the conduct described by M and the conduct forming the subject matter of the contested charges: threatening, slapping, punching, choking, use of a knife, and pinning the victim down during an assault. However, the key elements of the contested charges were sexual misconduct, threatening, and confinement that persisted over a couple of days. None of the six specific incidents described by M involved any element of sexual misconduct and none of the incidents persisted over the kind of time frame described by S. The details of the discreditable conduct described by M added little to the cogency of the similar fact evidence. An alleged pattern of conduct may gain strength in the number of instances that compose it. However, while M described numerous assaults, given the dissimilarities between M's evidence and the conduct that formed the subject matter of the contested charges, this factor did not add to the cogency of the similar fact evidence. The argument that the cogency of the similar fact evidence arose from the accused's pattern of responding violently to any conduct that repudiated his relationship with M was so general that it approached impermissible propensity reasoning. There were no distinctive features unifying the similar acts and the offences charged. On the record, the probative value of M's evidence concerning whether the actus reus of the contested offences occurred arose exclusively from M's evidence concerning the general nature of her relationship with the accused. Viewed as a total package, the probative value of M's similar fact evidence was quite modest. The potential prejudice to the accused arising from M's evidence was significant. The total package of M's evidence raised a significant potential for distracting the jury. Even assuming that all of M's evidence met the threshold for admissibility, the number of incidents described combined with the disparate nature of the conduct had the potential to inappropriately distract the jury from its central task of determining whether the accused was guilty of the contested offences.
APPEAL from a conviction for unlawful confinement, assault causing bodily harm, sexual assault, anal intercourse and uttering a death threat.
R. v. Handy, 2002 SCC 56, (2001), 213 D.L.R. (4th) 385, 290 N.R. 1, 164 C.C.C. (3d) 481, 1 C.R. (6th) 203 (sub nom. R. v. H. (J.)), apld Other cases referred to R. v. Carpenter (No. 2) (1982), 1982 3308 (ON CA), 142 D.L.R. (3d) 237, 1 C.C.C. (3d) 149, 31 C.R. (3d) 261 (Ont. C.A.); R. v. M. (C.) (1995), 1995 8924 (ON CA), 23 O.R. (3d) 629, 30 C.R.R. (2d) 112, 98 C.C.C. (3d) 481, 41 C.R. (4th) 134 (C.A.), affg (1992), 1992 12798 (ON SC), 11 C.R.R. (2d) 363, 75 C.C.C. (3d) 556, 15 C.R. (4th) 368 (Ont. Gen. Div.); [page489] R. v. Shearing, 2002 SCC 58, 2 B.C.L.R. (3d) 201, 214 D.L.R. (4th) 215, 290 N.R. 225, [2002] 8 W.W.R. 395, 165 C.C.C. (3d) 225, 2 C.R. (6th) 213
Matthew Webber, for appellant. Eric Siebenmorgen, for respondent.
BY THE COURT: --
I. OVERVIEW
[1] The main issue on this appeal is whether the trial judge erred in admitting similar fact evidence at the appellant's trial.
[2] The appellant was charged with the following seven offences alleging domestic abuse of S.F.: unlawful confinement, assault causing bodily harm, sexual assault, anal intercourse, uttering a death threat, failing to comply with a recognizance and sexual assault with a weapon. The appellant pleaded guilty to assault causing bodily harm, but not guilty to the other charges.
[3] At trial, the trial judge admitted similar fact evidence concerning the appellant's conduct towards M.B., a previous domestic partner. The evidence that the trial judge ruled admissible included evidence of the general nature of the appellant's relationship with M.B., as well as evidence of six specific incidents of alleged abuse.
[4] The jury found the appellant not guilty of sexual assault with a weapon, and not guilty of failing to comply with a recognizance. [^1] They found him guilty of unlawful confinement, assault causing bodily harm, sexual assault, anal intercourse and uttering a death threat. The appellant appeals against the convictions on the charges to which he pleaded not guilty.
[5] The appellant concedes that at least some of the evidence concerning the general nature of his relationship with M.B. was properly admissible. However, he claims that M.B.'s evidence concerning the six specific incidents was inadmissible.
[6] For the reasons that follow, we conclude that the trial judge erred in admitting the whole of M.B.'s evidence and that a new trial is required as a result. Further, the respondent concedes, [page490] and we agree, that in light of this court's decision in R. v. M. (C.), [^2] the appellant's conviction on the charge of anal intercourse must be quashed.
[7] Accordingly, we would allow the appeal, quash the convictions that are under appeal, and order a new trial on the charges of unlawful confinement, sexual assault and uttering a death threat.
II. BACKGROUND
A. The Complainant's Evidence Concerning the General Nature of Her Relationship With the Appellant
[8] The complainant was the first witness at trial. She said that she met the appellant in May of 1999 and that, soon after they met, she moved into the appellant's apartment, where he was living with his mother; his mother's boyfriend, Brian; and Brian's 12-year-old son, Jason.
[9] The complainant testified that, at first, things went well between her and the appellant. However, both were drug users, and they began to supplement their marijuana use with speed. As time went by, the appellant became abusive towards the complainant when he was "high"; she said that he hit her on a couple of occasions.
[10] The complainant said that the appellant began behaving strangely in late May or early June of 1999. On one occasion, he accused her of having sex with her father for money. On another occasion, he accused her of having sex with someone in another apartment. As the appellant's insecurities grew, he wanted the complainant around him all of the time, to the point that he would accompany her when she went to the bathroom. The complainant described the appellant as being jealous and possessive. When he became angry, he would slap her, punch her, or choke her. He also threatened to kill her.
B. The Complainant's Evidence Concerning the Events Forming the Subject Matter of the Charges
[11] The complainant said that the charges arose from events that occurred during a four-day period between October 2 and 6, 1999. She testified that she was at home alone with the appellant on a Thursday or a Friday evening when the appellant began accusing her of sleeping with his uncle. She fell asleep but awoke to find the appellant sitting on her chest, with his knees on her [page491] arms. The appellant began choking her and accusing her of having sex with Jason. When she denied his allegations, the appellant began punching her in the head.
[12] The appellant accused the complainant of having sex with both of their mothers, her siblings, the neighbour and a dog. The appellant slapped and choked the complainant repeatedly. At one point, he ripped off her pants, and forced her to have vaginal and anal intercourse. About an hour later, the appellant sexually assaulted the complainant once again, this time while holding a knife.
[13] The appellant's mother, Brian and Jason returned to the apartment at about noon the following day. The complainant testified that the appellant told his mother that the complainant had been having sex with Brian and that he threatened to kill Brian. The complainant and the appellant then left the apartment as the appellant had decided that he could not stay in a place where the complainant was "having sex with everyone".
[14] The complainant said that the appellant had been threatening her for six months and that she accompanied him to a local motel because she was too afraid not to accompany him.
[15] The complainant testified that the appellant continued to abuse her at the motel over a period of two or three days. On the second day, the complainant tried to convince the appellant to take her to a doctor. The complainant said that the appellant became angry and that he sodomized her once, or twice, while holding a knife. Eventually, the complainant persuaded the appellant to take her to the hospital where she reported some of the incidents to the staff, who alerted the police.
[16] In cross-examination, the defence mounted a formidable attack on the complainant's credibility based on improbabilities and inconsistencies in her evidence. Midway through its case, the Crown applied to introduce similar fact evidence.
C. The Similar Fact Evidence of M.B.
i. M.B.'s evidence on the voir dire
[17] M.B. testified that she lived with the appellant for approximately five months beginning in the fall of 1997. They dated for a month or so, and then moved in together. M.B. said that soon after they began living together, the appellant became paranoid; he accused her of sleeping with other people, and if she denied it, he often became aggressive. She said that sometimes the appellant would kiss her and not let her go, other times he would choke her, throw things at her, or try to hurt her physically in [page492] other ways. On several occasions during their relationship, the appellant threatened to kill her.
[18] M.B. described the following six specific incidents of alleged abuse:
(1) While holding a knife and straddling M.B. on the bed, the appellant said that he was going to kill them both. Later, when M.B. said, "well, go ahead" after he spoke of killing himself, he slit his wrists.
(2) The appellant threw a case of beer at M.B., held her on the floor with his knees, and gouged her eyes, causing an eye injury in response to her comment, "you're not as much of a man as [a former boyfriend]".
(3) The appellant threw M.B. on the bed and began to choke her after M.B. invited her 17-year-old nephew to sit on their bed and have a cigarette.
(4) On January 26, 1998, M.B.'s seven-year-old son witnessed a severe assault in which M.B. suffered extensive facial injuries, requiring reconstructive surgery. The assault occurred after M.B. told the appellant that she no longer wanted to marry him. The last thing M.B. remembers until waking up in the hospital is she and the appellant moving towards the hallway after she suggested that they discuss the matter downstairs.
(5) During a conversation with friends about a restaurant with a medieval motif, the appellant said that he would kill anyone who called M.B. a wench ever again.
(6) The appellant threw M.B. around and called her names one evening when she was slow in saying goodbye to her sister. M.B.'s sister attempted to help her. M.B. did not see what happened. However, she said that the appellant was charged with assaulting her sister.
[19] The appellant pleaded guilty to assault against M.B. arising from the second and third incidents, to aggravated assault arising from the fourth incident, and to assault against M.B.'s sister arising from the sixth incident.
ii. The proposed use of the similar fact evidence
[20] The trial Crown submitted that M.B.'s evidence supported the credibility of the complainant in that it demonstrated a [page493] pattern of behaviour. Although the trial Crown acknowledged that M.B. did not allege that she was sexually assaulted in the same manner as the complainant, he submitted that assault and sexual assault are just different forms of violence, and that, in the context of abusive domestic relationships in which the appellant used fear as a means of control, the sexual assaults described by the complainant were simply another method of asserting control.
iii. The trial judge's ruling on the voir dire
[21] The jury was on standby during the voir dire. Not surprisingly, the trial judge gave his ruling in brief compass:
I am satisfied that the evidence of [M.B.] is more probative than prejudicial and will, therefore, allow the evidence to be admitted. There are at least 14 points of similarity in the evidence of [M.B.] and the facts of this case. The fact that there are also some dissimilarities will be explained to the jury, in my charge, together with my instructions as to what use the jury may make of similar fact evidence.
iv. Additional evidence of M.B. adduced at trial
[22] In addition to the evidence adduced on the voir dire, while testifying at trial M.B. volunteered additional evidence of other discreditable conduct on the part of the appellant.
D. The Trial Judge's Instructions to the Jury
[23] The trial judge instructed the jury that, if they accepted the similar fact evidence, it was relevant for the limited purpose of assisting them in determining the credibility of S.F. He identified the similarities between M.B.'s evidence and S.F.'s evidence [^3] and also pointed out the dissimilarities in their evidence. He also gave a strong caution to the jury against using the similar fact evidence for impermissible propensity reasoning. [page494]
E. Position of the Parties on Appeal
[24] As already noted, the appellant concedes that some of M.B.'s evidence concerning the general nature of her relationship with the appellant was admissible at trial. However, he submits that M.B.'s evidence concerning the six specific incidents was not admissible because it did not involve sexual misconduct and because the potential prejudice arising from that evidence far outweighed its probative value.
[25] The Crown responds with two submissions.
[26] First, the defence took an "all or nothing" position at trial that all of M.B.'s evidence should be excluded; the appellant should not be permitted to advance a different case on appeal.
[27] Second, the trial judge did not err in failing to exclude any part of M.B.'s evidence. Viewed as a whole, and in context, M.B.'s evidence demonstrated distinctive "situation- specific" behaviour by the appellant during the course of their relationship that is similar to the conduct forming the subject matter of the charges.
[28] In particular, M.B.'s evidence showed a pattern of violent responses to conduct that repudiated their relationship. The fact that the appellant sexually assaulted S.F. at a time when he believed that S.F. was having sex with other people is no more than a minor qualitative difference in the nature of his response. Finally, the trial judge's strong caution to the jury against impermissible propensity reasoning would offset any potential prejudice that could arise from M.B.'s evidence.
III. ANALYSIS
[29] The trial judge did not have the benefit of the Supreme Court of Canada's recent decisions in R. v. Handy, 2002 SCC 56, 164 C.C.C. (3d) 481 and R. v. Shearing, 2002 SCC 58, 165 C.C.C. (3d) 225 when he made his ruling. In Handy, the Supreme Court sets out a framework for analyzing the admissibility of similar fact evidence. Like this case, in Handy, the Crown sought to introduce similar fact evidence to support the credibility of the complainant in a sexual assault trial. [^4]
A. The Handy Framework for Admissibility of Similar Fact Evidence
[30] The main components of the Handy framework are as follows: [page495]
evidence of other discreditable conduct is presumptively inadmissible; [^5]
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"; [^6]
probative value may be assessed in the following manner:
by considering the strength of the similar fact evidence, [^7] 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"; [^8] 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". [^9]
(Emphasis in the original)
- by identifying the "issue in question" and its relative importance in the particular trial; [^10]
The "issue in question" refers to the live issue at the trial to 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 [page496] the charge and the degree of similarity required to make the proposed evidence admissible. [^11]
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, generally, the analysis need go no further"; [^12]
potential prejudice to the accused may be assessed in the following manner: [^13]
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 [page497] disentangling the subject matter of the charges from the similar fact evidence.
B. Application of the Handy Framework to the Facts of this Case
[31] Considered in light of the Handy framework, with respect, in our view, the trial judge made three errors in his admissibility analysis concerning M.B.'s evidence:
(1) he framed the "issue in question" too broadly, allowing too wide a "gateway" for the admission of similar fact evidence;
(2) having framed the "issue in question" as the complainant's credibility, he failed to appreciate the relative cogency of the factors connecting, and distinguishing, the proposed similar fact evidence and the evidence of the offences charged; and
(3) he failed to consider the significant potential prejudice arising from the proposed similar fact evidence.
[32] Given the Crown's position on the appeal, we will review the admissibility of the similar fact evidence as a single package.
i. The strength of the similar fact evidence
[33] There was no suggestion that M.B.'s evidence was the product of collusion. However, there was evidence that the appellant pleaded guilty to criminal charges arising from four of the six specific incidents that M.B. described. Although M.B.'s evidence was far from conceded, the evidence of the guilty pleas contributed to the strength of the similar fact and reduced its potential for distracting the jury.
ii. Identification of the issue in question
[34] As already noted, the "issue in question" refers to the live issue at the trial to which the proposed similar fact evidence is said to be relevant. The trial judge framed the "issue in question" as the credibility of the complainant. In light of Handy, in our view, this was an error.
[35] In Handy, Binnie J. cautioned that framing the "issue in question" as credibility may result in "too broad a gateway for the admission of propensity evidence" therefore "risk[ing] the admission of evidence of nothing more than general disposition ('bad personhood')". It is useful to review his specific comments on this issue [at paras. 74, 115-16]: [page498]
The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate.
The Crown says the issue generally is "the credibility of the complainant" and more specifically "that the accused has a strong disposition to do the very act alleged in the charges against him", but this requires some refinement. Care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown's case [citation omitted]. Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence.
Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the "issue in question" may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (bad personhood).
(Emphasis added)
[36] In this case, the appellant did not testify at trial. Accordingly, the "issue in question" related primarily to whether the actus reus of the offences occurred. Moreover, because the appellant pleaded guilty to assault causing bodily harm, the relative importance of the actus reus of that offence as a live issue at the trial was significantly reduced.
[37] In Handy, at para. 74, Binnie J. noted that where an issue is undisputed, similar fact evidence is not admissible in relation to it, because the similar fact evidence is irrelevant.
[38] In this case, although the facts underlying the assault causing bodily harm charge were not agreed upon, the position of the defence was that S.F.'s injuries supported a single, violent attack and were inconsistent with the level of violence she described. Similar fact evidence would be of little or no assistance to the jury in resolving that specific issue.
[39] Accordingly, in our view, the issue in question was whether the actus reus of the contested offences occurred. The contested offences were: unlawful confinement, sexual assault, anal intercourse, uttering a death threat and sexual assault with a weapon.
iii. The relative cogency of the factors connecting, and distinguishing, the similar fact evidence, and the evidence of the offences charged
[40] At paras. 76, 78 and 82 of Handy, Binnie J. said the following about cogency and the degree of similarity required to make the proposed similar fact evidence admissible:
The principal driver of probative value in a case [involving similar fact evidence] . . . is the connectedness (or nexus) that is established between the [page499] similar fact evidence and the offences alleged, particularly where the connections reveal a "degree of distinctiveness or uniqueness" [citation omitted].
[Where the issue in question is the actus reus of the offence] [t]he point is not that the degree of similarity . . . must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. As . . . pointed out . . . in R. v. Carpenter [^14] . . . :
The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.
The trial judge [is] called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves.
(Emphasis in the original)
[41] Here, in our view, the trial judge erred by focusing on similarities between M.B.'s evidence and S.F.'s evidence reflecting on S.F.'s credibility, when the focus should have been on connecting factors bearing on the question of whether the actus reus of the contested offences occurred. The trial judge also failed to consider the required degree of similarity to make the similar fact evidence admissible.
[42] Dealing with the issue of the required degree of similarity, we note that, in Shearing, at para. 48, after commenting that the cogency of the similar fact evidence in that case "was said to arise from the repetitive and predictable nature of the appellant's conduct in closely defined circumstances", Binnie J. concluded that "a persuasive degree" of similarity was required. He said:
There must therefore be shown a persuasive degree of similarity between the similar fact evidence and the offence charged in order to be capable of raising the double inferences. The degree of required similarity is assessed in relation to the issue sought to be established and must be evaluated in relation to the other evidence in the case. If the cumulative result is simply to paint the appellant a "bad person", it is inadmissible.
In our view, the same reasoning applies to this case.
[43] We will assess the probative value of M.B.'s evidence in light of the "connecting factors" listed in Handy at para. 82, bearing in mind that "not every factor is useful in every case and that cogency also depends on the other evidence". [^15]
a. Proximity in time
[44] Remoteness in time increases the possibility of character reform and may also affect the relevance and reliability of similar [page500] fact evidence. [^16] The events relating to M.B. occurred between September 1997 and February 1998. They are proximate in time to the incidents forming the subject matter of the contested charges, which occurred in October 1999.
b. Extent to which the evidence of other discreditable conduct is similar in detail to the charged counts
[45] There are several common elements between the discreditable conduct described by M.B. and the conduct forming the subject matter of the contested charges: threatening, slapping, punching, choking, use of a knife, as well as pinning the victim down during the course of an assault. However, the key elements of the contested charges are sexual misconduct, threatening and confinement that persisted over a couple of days, at least to some extent.
[46] The only sexual misconduct described by M.B. was that, on some occasions, after accusing her of having sex with other people, the appellant would kiss her and not let her go. None of the six specific incidents described by M.B. involved any element of sexual misconduct and none of the incidents persisted over the kind of time frame described by S.F. Clearly the level of sexual misconduct described by M.B. in her evidence concerning the general nature of her relationship with the appellant does not approach that described by S.F. We conclude that the details of the discreditable conduct described by M.B. add little to the cogency of the similar fact evidence.
c. Number of occurrences of the similar acts
[47] In Handy, at para. 128, Binnie J. holds that "an alleged pattern of conduct may gain strength in the number of instances that compose it." In this case, M.B. described numerous physical assaults. Again, however, given the dissimilarities between M.B.'s evidence and the conduct that forms the subject matter of the contested charges, this factor does not add to the cogency of the similar fact evidence.
d. Circumstances surrounding or relating to the similar acts
[48] On appeal, the Crown asserts that the cogency of the similar fact evidence arises from the appellant's pattern of responding violently to any conduct that repudiated his relationship with [page501] M.B. The inference that the Crown asks be drawn is that the appellant reacted in a sexually violent way towards S.F. when he believed that she had repudiated their relationship by having sex with others.
[49] In our view, this reasoning is so general that it approaches impermissible propensity reasoning. While it is certainly conceivable that a person who responds violently to rejection would respond in a sexually violent manner to conduct that he perceived as a sexual rejection, the strength of the requested inference lacks the cogency of a pattern of similar behaviour and, in our view, amounts to little more than an inadmissible assertion of "bad personhood".
[50] The more cogent surrounding circumstance, and the potentially more unifying feature of M.B.'s evidence is that in her testimony concerning the general nature of her relationship with the appellant she, too, said that the appellant accused her of infidelity and then engaged in sexual misconduct. However, as the level of sexual misconduct described by M.B. does not approach that described by S.F., in our view, this factor adds only modestly to the cogency of the similar fact evidence.
e. Any distinctive features unifying the similar acts and the offence charged
[51] There are no distinctive features unifying the similar acts and the offences charged.
f. Intervening events
[52] There were no intervening events that are relevant to the admissibility analysis.
iv. Assessment of the probative value of the similar fact evidence
[53] We conclude that, on this record, the probative value of M.B.'s evidence concerning whether the actus reus of the contested offences occurred arose exclusively from M.B.'s evidence concerning the general nature of her relationship with the appellant. Viewed as a total package, we assess the probative value of M.B.'s similar fact evidence to be quite modest.
v. The potential prejudice arising from the similar fact evidence
[54] In his ruling, the trial judge did not indicate his view of the potential prejudice arising from M.B.'s evidence. We conclude that it was significant. [page502]
a. Moral prejudice
[55] The horrific nature of the assault forming the subject matter of the fourth specific incident described by M.B. raised the spectre of significant moral prejudice. The potential prejudice arises from two sources. First, the risk of conviction based on a desire to punish. Second, the risk of conviction based on a perceived general disposition for violent conduct against domestic partners (bad personhood). In addition, the cumulative effect of the many incidents of assault and other bad behaviour described by M.B. contributed to the risk of conviction based on bad personhood.
b. Reasoning prejudice
[56] Given our finding that, on this record, the probative value of M.B.'s evidence concerning whether the actus reus of the contested offences occurred arose exclusively from M.B.'s evidence concerning the general nature of her relationship with the appellant, it goes without saying that the total package of her evidence raised a significant potential for distracting the jury.
[57] However, even assuming that all of M.B.'s evidence met the threshold for admissibility, the number of incidents described combined with the disparate nature of the conduct, had the potential to inappropriately distract the jury from its central task of determining whether the appellant was guilty of the contested offences.
vi. Weighing up probative value versus potential prejudice
[58] In our view, on this record, the potential prejudice arising from the total package of M.B.'s evidence significantly outweighed its probative value. It was not therefore admissible and, given its nature, its admission constituted reversible error. Accordingly, a new trial is required.
[59] The issue of what, if any, portion of M.B.'s evidence would be admissible at a new trial must be determined based on the record at the new trial.
[60] We note that it does not appear that there was a ruling at the first trial concerning the admissibility of the evidence of other discreditable conduct given by S.F. These reasons should not be interpreted as making any comment on the admissibility of that evidence. [page503]
IV. DISPOSITION
[61] The appeal is allowed, the convictions for anal intercourse, unlawful confinement, sexual assault, and uttering a death threat are quashed, and a new trial is ordered on the charges of unlawful confinement, sexual assault and uttering a death threat.
Appeal allowed.
Notes
[^1]: The Crown did not lead evidence capable of supporting a finding of guilt on this charge. [^2]: (1995), 1995 8924 (ON CA), 23 O.R. (3d) 629, 98 C.C.C. (3d) 481 (C.A.). [^3]: The main similarities noted by the trial judge were the following: both women were ex-girlfriends of the appellant; both relationships began amicably and progressed quickly to cohabitation; the appellant began abusing both women soon after they commenced living together; the appellant accused both women of sleeping with others; both women described the appellant experiencing dramatic mood changes; both women felt watched; both women were choked; both women said that the appellant used a knife to threaten them; both women described an incident in which the appellant pinned them down; both women were fearful because of threats; both women described assaults to their face; both women said the appellant's mother failed to assist them; and, the duration of both relationships was about five months. [^4]: The charge in Handy was sexual assault causing bodily harm. [^5]: Handy, at paras. 55 and 101. [^6]: Handy, at para. 55. [^7]: Handy, at para. 102. [^8]: Handy, at para. 112. [^9]: Handy, at para. 134. [^10]: Handy, at paras. 69-75. [^11]: Handy, paras. 76-84. [^12]: Handy, at para. 136. [^13]: Handy, paras. 100 and 139-47. [^14]: (1982), 1982 3308 (ON CA), 142 D.L.R. (3d) 237, 1 C.C.C. (3d) 149 (Ont. C.A.). [^15]: Handy, at para. 121. [^16]: Handy, at para. 122.