Her Majesty the Queen v. Patterson [Indexed as: R. v. Patterson]

79 O.R. (3d) 257

[2006] O.J. No. 361

Docket: C40997

Court of Appeal for Ontario,

Cronk, Juriansz and LaForme JJ.A.

February 2, 2006

Criminal law -- Evidence -- Criminal record of deceased - Accused stabbing deceased in course of altercation in bar -- Accused raising defence of self-defence -- Accused seeking to admit edited version of deceased's criminal record including seven convictions for crimes of violence and transcript of deceased's guilty plea to assault arising from incident similar to altercation with accused -- Trial judge erred by excluding transcript inadmissible as not shown hearsay only method proving facts -- Crown correctly conceding that transcript admissible for its truth -- Deceased's criminal record had limited probative value given other evidence of his propensity for violence before jury but no effective prejudice from its admission -- Trial judge's limiting instructions regarding use of evidence of deceased's propensity for violence removed any remaining potential for prejudice -- Given lack of prejudice edited record should have been admitted -- Error compounded as Crown's address implied that deceased only violent during short period long ago and trial judge repeating this erroneous characterization during Charge to jury -- New trial ordered.

Criminal law -- Charge to jury -- Murder -- Mens rea -- Recklessness -- Accused stabbing deceased in course of altercation at bar -- Accused raising defence of self-defence -- Jury asking question after eight hours of deliberation indicating that they were struggling with concept of "recklessness" -- Trial judge erroneously telling jury that recklessness meant that accused saw risk that deceased could die from injuries but went ahead and took chance -- Jury convicting of murder one hour later -- Foresight of danger not sufficient -- Jury should have been told that accused had to foresee likelihood of death resulting from bodily harm that he inflicted -- Accused's appeal from conviction allowed and new trial ordered -- Criminal Code, R.S.C. 1985, c.C-46, s. 229(a) (ii).

Criminal law -- Appeals -- Proviso -- Accused convicted of Murder for stabbing deceased in course of altercation at bar -- Accused relying on self-defence -- Trial judge erroneously excluding transcript of deceased's assault conviction arising from circumstances similar to altercation with accused -- Trial judge excluding evidence of deceased's edited criminal record -- Trial judge failing to correct impression left in Crown address that deceased's violent acts were long ago and time limited -- Error in instruction to jury regarding mens rea for murder -- Jury asked question after several hours of deliberations stating struggling with meaning of recklessness -- Trial judge telling jury that subjective foresight of risk of death proved recklessness -- Jury convicting of murder within an hour -- Jury should have been instructed that accused had to foresee likelihood of death resulting from bodily harm that he inflicted -- Evidence regarding deceased's propensity for violence important given accused's reliance on self- defence -- Not appropriate to apply proviso given combination of errors -- Accused's appeal from conviction allowed. [page258]

The accused was charged with second degree murder after an altercation in a bar during which the deceased was stabbed. The defence position at trial was that the deceased, who had a prior history of verbal and physical aggression, initiated a confrontation with the accused, that the accused pulled out a knife in self-defence and that the deceased either slipped or accidentally thrust himself onto the knife while advancing on the accused. The trial judge ruled that there was some appreciable evidence of the deceased's aggression on the night of his death and that there was, therefore, an air of reality to the defence of self-defence. The accused then sought to tender an edited version of the deceased's lengthy criminal record, limited to seven offences of violence. The most recent conviction was in March 2001. The accused also sought to tender a transcript of the deceased's guilty plea in relation to the March 2001 conviction. The facts regarding the deceased's behaviour that were read into the record on the occasion of that guilty plea were similar to the behaviour of the deceased prior to his death. The trial judge excluded both the deceased's criminal record and the transcript of his guilty plea. About eight hours after retiring, the jury returned with a request for a clarification on the state of mind required for murder. The trial judge and counsel agreed that the jury was struggling with the concept of "recklessness" under s. 229(a) (ii) of the Criminal Code. The trial judge recharged the jury that "reckless" meant that the accused saw the risk that the deceased could die from the injury but went ahead anyway and took the chance. An hour after receiving this instruction, the jury convicted the accused of second degree murder. The accused appealed.

Held, the appeal should be allowed.

The trial judge erred in excluding the edited criminal record of the deceased. There is no rule that bars the tendering of a criminal record, per se, as evidence of an individual's propensity for violence. While the probative value of the criminal record was not great, there was no effective risk of prejudice because the jury had already heard a good deal about the deceased's propensity for violence. There was no realistic chance that the jury would have used the criminal record to improperly conclude that the deceased, because of his background, was not entitled to the protection of the law.

The transcript of the deceased's guilty plea was admissible for the truth of its contents, either under the public documents or as a statement against penal interest exceptions to the hearsay rule.

The effects of the trial judge's errors did not end with the exclusion of the guilty plea and the transcript. Crown counsel at trial gave the impression to the jury that the deceased's history of violence was limited to a few isolated incidents that occurred long ago, and was minor in nature. The trial judge's instructions to the jury on their use of the deceased's previous incidents of violence had the effect of erroneously reducing the deceased's history of violence to one serious incident that occurred in 1996. This augmented the risk of prejudice to the accused arising from the Crown's inaccurate description of the deceased's history of violence.

The trial judge's instruction on the "recklessness" component of the intent instruction for the offence of murder was erroneous. The trial judge was likely relying on the Standard Jury Instructions which had not yet been modified to reflect an earlier decision of the Court of Appeal which had held that they were in error. He should have referred to foresight of a "likelihood", rather than a "risk", that the victim could die from the injury. The trial judge's answer to the jury's question was obviously vital to the conclusion of the jury's deliberations and central to its guilty verdict, which made it rendered about one hour after receiving the recharge. This made the error all the more significant. [page259]

The Crown argued that the curative proviso could be applied to sustain the conviction despite the errors. The accused's defence at trial was significantly undermined by the exclusion rulings of the trial judge, especially when considered in the context of the Crown's subsequent improper references to the deceased's propensity for violence. It could not be said that if the propensity evidence had been admitted, the verdict would necessarily have been the same. The trial judge's flawed recharge on recklessness reinforced the conclusion that the verdict would not have necessarily been the same had the errors not been made. It was unnecessary to decide whether either of the errors committed by the trial judge, on its own, would have required a new trial. Despite the fact that the Crown's case was strong, when the errors were considered together, they clearly dictated that the curative proviso ought not to apply.

APPEAL from a conviction for second degree murder by Ferrier J. of the Superior Court of Justice, sitting with a jury, on June 16, 2003.

R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 190 O.A.C. 1, 189 C.C.C. (3d) 199, 24 C.R. (6th) 152 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502], apld R. v. Latoski (2005), 2005 30697 (ON CA), 77 O.R. (3d) 505, [2005] O.J. No. 3565, 202 O.A.C. 102, 200 C.C.C. (3d) 361 (C.A.), distd Other cases referred to R. v. Orpin, 2002 23600 (ON CA), [2002] O.J. No. 1541, 158 O.A.C. 201, 165 C.C.C. (3d) 56, 54 W.C.B. (2d) 60 (C.A.); R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91, 119 D.L.R. (4th) 464, 171 N.R. 360, 93 C.C.C. (3d) 1, 34 C.R. (4th) 1; R. v. Scopelliti (1981), 1981 1787 (ON CA), 34 O.R. (2d) 524, 63 C.C.C. (2d) 481 (C.A.); R. v. Varga, 2001 8610 (ON CA), [2001] O.J. No. 4262, 88 C.R.R. (2d) 10, 159 C.C.C. (3d) 502, 48 C.R. (5th) 387 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 229, 686 [as am.] Authorities referred to Watt, D., Ontario Specimen Jury Instructions (Criminal) (Toronto, Ont.: Thomson-Carswell, 2003)

P. Andras Schreck and Heather Pringle, for appellant. Leslie Paine, for respondent.

The judgment of the court was delivered by

LAFORME J.A.:--

Overview

[1] The appellant and the deceased, a stranger to the appellant, were involved in an altercation in a bar during which the deceased was stabbed. He later died from the stab wound. The appellant was charged with second degree murder. At trial he did not testify in his defence.

[2] The Crown's theory was that the appellant intentionally stabbed the deceased. The appellant made numerous visits to the [page260] bar on the day of the incident and became increasingly agitated after a series of verbal altercations with other patrons. During the appellant's final visit to the bar, according to the Crown, the deceased verbally confronted the appellant. Being already angry, the appellant redirected his anger towards the deceased and intentionally stabbed him to death.

[3] The defence position was that the appellant acted either in self-defence or accidentally. The deceased, who had a prior history of verbal and physical aggression, was intoxicated and initiated a confrontation with the appellant. He became physically aggressive towards the appellant, either striking him or attempting to strike him. The defence argued that the deceased's actions and the evidence of a Crown witness raised the mixed defence of self-defence and accident. The basis for the defence was that the knife was pulled out in self-defence and the deceased slipped, or accidentally thrust himself, onto it while advancing on the appellant.

[4] The appellant was convicted of second degree murder and sentenced to life imprisonment without parole eligibility for 11 years. The appellant appeals his conviction on the grounds that the trial judge erred: (i) by excluding evidence of the deceased's propensity for violence; and (ii) in his charge to the jury in his definition of "recklessness", within the meaning of s. 229(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46. For the reasons that follow, I would allow the appeal, set aside the conviction and order a new trial.

Background

[5] The appellant was a regular customer at the bar in question. On May 24, 2002, he arrived there shortly after it opened at around 11:00 a.m. and ordered a beer. The appellant came and went throughout the day and engaged in at least two verbal altercations with other patrons, which caused him to be asked to move to his own table. None of these altercations resulted in a physical confrontation.

[6] The deceased, John Gomes, was also a regular at the bar. However, he did not have a history of any kind with the appellant. Gomes and a friend finished work and attended at the bar, arriving there some time after 3:00 p.m. They drank and played pool. While at first Gomes appeared to be in a friendly mood, his manner grew more demanding and irritable as the evening progressed.

[7] At around 6:00 p.m. Gomes became involved in an argument with another patron over a pool game. Later on, yet another patron became concerned about Gomes' ability to control his temper.

[8] While witness accounts of what transpired between the appellant and Gomes varied, it is common ground that they [page261] exchanged heated comments on several occasions while they were together in the bar. On the appellant's final return to the bar, at around 7:45 p.m., heated words were again exchanged between the appellant and Gomes, leading to a physical altercation and the stabbing of Gomes.

[9] After he was stabbed, Gomes stepped back and collapsed to the floor. Various witnesses described the appellant as either running from the bar empty-handed, or walking from the bar with a beer in his left hand and a knife in his right.

[10] Paramedics arrived at the bar at 8:04 p.m. and the police arrived at 8:10 p.m. Gomes was dead before either arrived.

Analysis

[11] I will address the grounds of appeal below as they were set out in the appellant's factum, and argued on appeal. Thus, I will examine: (i) the trial judge's rulings concerning the deceased's propensity for violence; (ii) the jury charge on "recklessness"; and (iii) the applicability of the curative proviso.

(i) The deceased's propensity for violence

[12] In a mid-trial ruling, the trial judge held that there was some appreciable evidence of the deceased's aggression on the night of his death and, therefore, an air of reality to the defence of self-defence. As a result, the appellant sought to tender an edited version of the deceased's criminal record. The deceased's record was lengthy. However, the convictions the appellant proposed to enter were limited to those concerning seven offences of violence. The most recent conviction was on March 26, 2001, and the earliest on August 18, 1978.

[13] The appellant also sought to tender a transcript of the deceased's guilty plea in relation to the conviction on March 26, 2001. The facts regarding the behaviour of the deceased that were read into the record on the occasion of that guilty plea were similar to the behaviour of the deceased in this case, except that on the prior occasion no death resulted.

[14] The trial judge made separate rulings, excluding both the deceased's criminal record, and the transcript of his guilty plea. The appellant submits that the trial judge erred in both instances.

[15] The trial judge appears to have excluded the evidence of the deceased's criminal record for three reasons: (i) in his view, this court's judgment in R. v. Scopelliti (1981), 1981 1787 (ON CA), 34 O.R. (2d) 524, 63 C.C.C. (2d) 481 (C.A.) prohibits the admission of a criminal record; (ii) the jury might speculate as to circumstances surrounding the offences for which the deceased was previously convicted; and (iii) the prejudicial effect of the record outweighed its probative value. [page262]

[16] The trial judge excluded the transcript because no reasonable efforts were made to demonstrate that the transcript was the only available means of putting this hearsay evidence before the court. As such, the transcript was not admissible. In other words, it had not been demonstrated to the trial judge's satisfaction that the admission of the transcript was necessary as being the only available means of putting this evidence before the court. The trial judge relied on the authority of R. v. Orpin, 2002 23600 (ON CA), [2002] O.J. No. 1541, 165 C.C.C. (3d) 56 (C.A.) in making this ruling.

[17] The Crown acknowledges that there is no rule that bars the tendering of a criminal record, per se, as evidence of an individual's propensity for violence. Nevertheless, Crown counsel submits that the trial judge made no error in excluding the deceased's criminal record. Further, the Crown acknowledges that the transcript of the guilty plea for the March 26, 2001 proceedings was admissible for the truth of its contents, either under the public documents or the statement against penal interest exceptions to the hearsay rule. Nevertheless, the Crown makes the following arguments:

(1) Of the seven prior convictions in the deceased's criminal record, there were only three entries that might have been admissible. One entry was that of the March 26, 2001 plea of guilty. However, given that the jury heard evidence in connection with the other two entries, the appellant did not suffer any prejudice by excluding the other entries.

(2) As for the March 26, 2001 entry, no prejudice or miscarriage of justice resulted from its exclusion because the jury heard a wealth of other evidence about the deceased's propensity for violence. Such evidence included as many as four other prior occasions when the deceased behaved violently in a bar.

[18] I am not persuaded by these arguments. I turn first to the exclusion of the edited version of the deceased's criminal record.

[19] As I noted above, the Crown acknowledges that the trial judge erred by holding that there is a general rule barring the admission of a criminal record, per se, as evidence of an individual's propensity for violence. In this case, however, the trial judge provided two other bases for excluding the evidence. In connection with these, I begin with the comments of Doherty J.A. of this court at para. 71 of R. v. Varga, 2001 8610 (ON CA), [2001] O.J. No. 4262, 159 C.C.C. (3d) 502 (C.A.) where he summarizes the law:

The admissibility of the deceased's propensity for violence in homicide cases where self-defence is raised is now well established: [page263] R. v. Scopelliti (1981), 1981 1787 (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.). The risk inherent in the evidence is also well known. Attacks on the character of the deceased are often easy to make and risk the conclusion that it is a defence to a murder charge to show that the deceased's demise was a civic improvement.

[20] The trial judge's determination of the admissibility of the deceased's criminal record and his balancing of the probative value and prejudicial effect of the evidence is entitled to deference. I agree with his assessment that, in the circumstances of this case, the evidence had little probative value. Some of it did, however, have a similarity to the events in this case.

[21] While the potential probative value of the criminal record was not great, I do not agree with the trial judge's assessment of the risk of prejudice inherent in the admission of the evidence. There was no effective risk of prejudice because the jury had already heard a good deal about the deceased's propensity for violence.

[22] The evidence of the criminal record would only have confirmed what the jury already knew about the deceased. I do not think there was any realistic chance that the jury would have used the criminal record, as opposed to the other evidence it did hear, to improperly conclude that the deceased, because of his background, was not entitled to the protection of the law.

[23] Moreover, the trial judge did give a limiting instruction to the jury on the proper use to be made of the evidence of the deceased's prior incidents of violence. Thus, any risk of prejudice regarding his criminal record would have been further reduced by this instruction.

[24] While the evidence had limited probative value, it had almost no potential for prejudice. This, together with the principle that defence evidence should be excluded only where its prejudicial effect substantially outweighs its probative value, dictates that the evidence should have been admitted.

[25] Regarding the transcript of the guilty plea on March 26, 2001, the Crown concedes that this evidence was admissible. I agree. The trial judge erred by excluding this evidence as he did.

[26] The effects of the trial judge's errors, however, do not end with the exclusion of these forms of evidence.

[27] The appellant's claim of self-defence and, to a lesser extent, his claim of accident, was predicated on demonstrating that the deceased was a violent and aggressive man. Having successfully argued that the trial judge should exclude the propensity evidence, Crown counsel at trial (not counsel on appeal) dealt with this evidence in the presence of the jury in an improper fashion.

[28] Crown counsel at trial gave the impression to the jury that the deceased's history of violence was limited to a few isolated [page264] incidents that occurred long ago, and was minor in nature. For example, during the Crown's cross- examination of a witness in connection with the deceased's assault on the witness in 1996, the following exchange took place:

Q. Now, you never saw [the deceased] again after that, after the police came and got him that day, sir?

A. No, never.

Q. Right. So you really have no idea what kind of guy he was on May the 24th, 2002, do you?

A. No.

[29] In addition, during the Crown's closing address to the jury, Crown counsel stated:

You heard evidence from people about [the deceased] and the way he behaved a long time ago. I don't intend in my comments to you to go through these incidents in any great detail. I don't for a moment excuse any misbehaviour by [the deceased] in the past. This trial isn't about a character assessment of [the deceased]. But, you will recall that these incidents happened a long time ago. You will have to determine whether they bear any relationship to [the deceased] who was standing at that bar next to Mr. Patterson.

(Emphasis added)

[30] The evidence of the history of the deceased, particularly the March 26, 2001 plea transcript, was clearly at odds with Crown counsel's assertions. Knowing that the deceased's history for violence was not entirely dated, nor minor in nature, it was improper and prejudicial for the Crown to invite a contrary inference by the jury.

[31] In addition, in his closing instructions to the jury, the trial judge appears to have repeated the Crown's improper characterization of the propensity evidence that was heard by the jury. After instructing the jury as to the limited purpose for which it could consider the deceased's previous incidents of violence, he told the jury:

It is for you to consider whether any of these previous incidents are of any assistance to you and you will of course consider how far away in time from May 24th they occurred, the seriousness of the previous incidents and the circumstances.

[32] The trial judge then reviewed some of the evidence and at several points made comments to the effect that the prior incidents involving the deceased included some "shoving or slapping""there was no fight""that's as far as it went", and "he was not hit or struck with the knife". Regarding one specific serious incident, he told the jury the incident "was several years ago, 1996 is my recollection". [page265]

[33] In sum, the trial judge's instructions had the effect of erroneously reducing the deceased's prior history of violence to one serious incident that occurred in 1996. In my view, this augmented the risk of prejudice to the accused arising from the Crown's inaccurate description of the deceased's history of violence.

(ii) The jury charge on "recklessness"

[34] In his charge to the jury, the trial judge read out ss. 229(a)(i) and (ii) of the Criminal Code. He then instructed the jury that the appellant committed murder if the Crown proved that, he "meant to either kill [the deceased] or meant to cause him bodily harm that he knew was likely to kill [the deceased] and was reckless as to whether or not [the deceased] died or not".

[35] This appeal is only concerned with the instruction on s. 229(a)(ii), which reads:

229. Culpable homicide is murder

(a) where the person who causes the death of a human being

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

[36] Approximately eight hours after retiring, the jury returned with its only question, which was a request for clarification on the "state of mind required for murder". The trial judge and counsel agreed that the jury was struggling with the concept of "recklessness" and that a definition of that term was necessary. The trial judge re-charged the jury as follows:

Now as to the word reckless, that I didn't expand on but I will give you the meaning of that word now or express it in another way.

In effect, it means that Patterson saw the risk that Gomes could die from the injury but went ahead anyway and took the chance. That is the meaning of the word reckless.

(Emphasis added)

[37] An hour after receiving this instruction, the jury convicted the appellant of murder.

[38] The appellant submits that, once the jury concluded that the appellant had deliberately stabbed the deceased, the trial judge's definition of recklessness made the conviction for murder inevitable. He argues that any person who stabs another person must foresee a "risk" of death. Whether or not that person foresees a "likelihood" of death is a very different matter.

[39] The Crown acknowledges that the language used by the trial judge in his re-charge to the jury in connection with the intent [page266] required for murder under s. 229(a)(ii) of the Code, was held by this court to be flawed in R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.), leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502. Nevertheless, the Crown submits that, when the language used by the trial judge is placed in context with the jury charge as whole, it is apparent that no error was committed. I disagree.

[40] In Czibulka, Rosenberg J.A. held that it is an error for a trial judge to refer to a "danger" that conduct could bring about death when defining recklessness in connection with s. 229(a)(ii). In this context, the risk of death embodied in the terms "danger" and "likelihood" are not of the same magnitude. It is not sufficient that a person accused of murder simply foresee a danger of death; the person must foresee a likelihood of death flowing from the bodily harm that he occasions to the victim (paras. 62-70).

[41] The Crown relies on this court's recent decision in R. v. Latoski (2005), 2005 30697 (ON CA), 77 O.R. (3d) 505, [2005] O.J. No. 3565, 200 C.C.C. (3d) 361 (C.A.), at paras. 14-18, to argue that the jury was not misled because the trial judge in this case properly instructed the jury on recklessness on three separate prior occasions. In my view, the holding in Latoski does not apply to this case. I say this for two reasons.

[42] First, unlike in Latoski, in this case the impugned charge was in response to the jury's only question. This question was asked after approximately eight hours of deliberations. It clearly indicated that the jury was struggling with the issue of the appellant's intention.

[43] Second, given the structure of the trial judge's instructions as a whole, and following his Decision Tree, the jury at this stage had rejected self-defence. The timing of the answer to the jury's question, therefore, was important to the jury's differentiation between murder and manslaughter.

[44] Further, the answer was obviously vital to the conclusion of the jury's deliberations and central to its guilty verdict, which it rendered about one hour after receiving the re-charge. The jury would have placed considerable weight on the trial judge's re-charge instruction. Given this, the error was made all the more significant.

[45] As has been repeatedly stated, questions from a jury provide clear indication of the particular problem that the jury is wrestling with: see R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91, 93 C.C.C. (3d) 1, at p. 528 S.C.R., p. 6 C.C.C. As in this case, the question usually relates to an important point in the jury's analysis. Thus, the answer becomes more important, and any error in the response to the jury more damaging: see Czibulka, at paras. 68-69. [page267]

[46] It is true that, at the time of this trial, the instruction given to the jury was in accord with a suggestion in the Standard Jury Instructions of the Superior Court [See Note 1 at the end of the document]. In the then Standard Jury Instructions for murder, footnote seven provided the following:

For those who wish to convert the reference to "reckless" into plain English, the following may help:

... saw the risk that (NOC) could die from the injury, but went ahead anyway and took the chance.

[47] However, in Czibulka, Rosenberg J.A. suggested that this reference in the footnote for murder be revised to read a "likelihood", rather than a "risk", that the victim could die from the injury. That suggestion is now reflected in the recently revised Standard Jury Instructions.

[48] Undoubtedly, the trial judge in this case was relying on the Standard Jury Instructions, which at the time had not been clarified by this court's decision in Czibulka. Nevertheless, the trial judge was in error in his re-charge.

(iii) The curative proviso

[49] In addition to the specific arguments advanced by the Crown in respect of each of the grounds of appeal, the Crown also relies on the curative proviso under s. 686(1)(b)(iii) and (iv) of the Criminal Code. It argues that any errors by the trial judge were minor and could not possibly have affected the verdict; or, if any errors were significant, the Crown's case against the appellant was so strong that the verdict would inevitably have been the same. Although I agree that the Crown's case was strong, I disagree that this is a case in which the curative proviso should be applied.

[50] On this appeal, the Crown acknowledges that there was no reason to exclude all of the propensity evidence, but goes on to argue that, because it would have been of little additional assistance to the trier of fact, the proviso ought to be applied. I would reject this submission. In my view, the appellant's defence at trial was significantly undermined by the exclusion rulings of the trial judge, especially when considered in the context of the Crown's subsequent improper references to the deceased's propensity for violence. [page268]

[51] In these circumstances, I cannot say that if the propensity evidence had been admitted, the verdict would necessarily have been the same. That is, I cannot say that a properly instructed jury, having regard to the propensity evidence properly presented, would necessarily have convicted the appellant.

[52] This, coupled with the trial judge's flawed re-charge on recklessness, reinforces my conclusion that the verdict would not necessarily have been the same had the errors not been made. It is unnecessary to decide whether either of the errors committed by the trial judge, on its own, would have required a new trial. When the errors are considered together, they clearly dictate that the curative proviso ought not to apply.

Disposition

[53] For all the foregoing reasons, I would allow the appeal, set aside the conviction, and order a new trial.

Appeal allowed.

Notes

Note 1: David Watt, Ontario Specimen Jury Instructions (Criminal) (Toronto, Ont.: Thomson-Carswell, 2003.).