W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
CITATION: R. v. P.S., 2007 ONCA 299
DATE: 20070420
DOCKET: C44540
COURT OF APPEAL FOR ONTARIO
GOUDGE, BLAIR AND MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Christopher Hicks and Catriona Verner for the appellant
Respondent (Respondent)
- and -
P. S.
Amanda Rubaszek for the respondent
Applicant (Appellant)
Heard: February 6, 2007
On appeal from the conviction entered by Justice David Salmers of the Superior Court of Justice, sitting with a jury, dated February 3, 2005, and from the sentence imposed by Justice Salmers dated February 28, 2005.
GOUDGE J.A.:
[1] The appellant was charged in a multiple count indictment with, inter alia, kidnapping and sexually assaulting the complainant on April 9, 2003. She was his long-time girlfriend. He was also charged with criminally harassing her between January 18, 2003, the date she moved out, and April 9, 2003.
[2] The jury found him guilty on these three charges, but acquitted him of one count of assault and one count of aggravated assault that were alleged to have occurred some years earlier in their relationship.
[3] He was sentenced to 54 months in custody, less 16 months credit for pre-trial detention.
[4] He appeals both his conviction and his sentence.
[5] On his conviction appeal, he argues that the trial judge erred in three ways: a) in dismissing his application to introduce evidence of his sexual relationship with the complainant between January 18 and April 9, 2003; b) in instructing the jury that they could use evidence of his past discreditable conduct in determining his animus or motive with respect to the offences charged; and c) in failing to leave with the jury the defence of honest but mistaken belief in consent.
[6] On his sentence appeal, he argues that the trial judge both erred in principle and imposed a sentence beyond the appropriate range.
[7] For the reasons that follow I would reject each of these arguments and dismiss both appeals.
[8] The basic facts are as follows. The appellant and the complainant began their nine-year relationship when they were in high school. They had two children together, one born in 1995 and the second in 2000. They lived together from mid-2000 to January 18, 2003, when the complainant moved out.
[9] Between that date and April 9, 2003, the complainant testified that the appellant tried relentlessly to communicate with her by telephone and e-mail, and by appearing unannounced at her apartment.
[10] The complainant testified that on April 9, 2003, the appellant confronted her in the hallway of her building, forced her into his car, drove her to a field and sexually assaulted her.
[11] The appellant sought to introduce evidence of his sexual activity with the complainant between January 18 and April 9 to show that they continued to have sexual relations during that time. The trial judge dismissed his application on the basis that the appellant had not met the requirements set out in the Criminal Code, R.S.C. 1985, c. C-46. The appellant challenges this ruling as his first ground of appeal.
[12] In the trial of a sexual assault charge, the admissibility of evidence that the complainant has engaged in sexual activity other than that which forms the subject matter of the charge is regulated by s. 276(2) of the Code. It provides that such evidence is inadmissible unless the court determines that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[13] The procedure to be followed by an accused in seeking admissibility of such evidence is set out in ss. 276.1 and 276.2 of the Code. Section 276.1(2) requires that the accused make an application in writing, setting out detailed particulars of the proposed evidence and its relevance to an issue at trial. Section 276.1(4) then says this:
(4) Where the judge, provincial court judge or justice is satisfied
(a) that the application was made in accordance with subsection (2),
(b) that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and
(c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2),
the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2).
[14] In this case, defence counsel made no written application and only alerted the Crown to his intention at the opening of trial. When the trial judge gave him overnight to prepare the necessary materials for the application, counsel indicated that he was making oral application only, and would not be providing any written materials. He confirmed this the next day. The trial judge then pressed him for exactly what evidence he proposed to elicit and was advised that it would simply be that between the time that the complainant left the appellant in January and the alleged sexual assault in April, they had sexual relations. As counsel put it"It will just be a general question as to whether they made love after their separation."
[15] The trial judge dismissed the appellant's application, finding that there were no written materials and no evidence in support of the appellant's request, and that there was no discretion to waive either requirement. The appellant challenges these conclusions.
[16] I do not find it necessary to determine whether the failure to make a written application must always be fatal, even if the substantive requirements of notice and particulars are otherwise met.
[17] Apart from the absence of written materials, here there were no particulars whatsoever offered, and no notice was provided of any basis upon which it could be argued that the application should succeed. Thus, in my view, the trial judge was quite correct to dismiss the appellant's application. He was shown no reason to allow it. The appellant offered nothing – either in writing or orally – to demonstrate that the evidence sought to be adduced was capable of being admissible under s. 276(2) of the Code. The description of the proposed evidence that was given was not of specific instances of sexual activity. This made it clearly inadmissible. There was simply no basis upon which the trial judge could have granted the application and gone on to the hearing contemplated by s. 276.2.
[18] The appellant's second ground of appeal is that the trial judge erred in instructing the jury on the positive use they could make of the evidence about the appellant's prior discreditable conduct.
[19] The background to this issue begins with the Crown's application to have the evidence of discreditable conduct admitted. In allowing the application the trial judge said this:
The Crown proposes to introduce evidence of the history of the relationship of [P.S.] and [M. D.]. To summarize, the proposed evidence, if believed, will provide evidence of a long-term pattern of [P.S.'s] abusive and controlling behaviour towards [M. D.]. The alleged abusive behaviour is physical, verbal and psychological. This prior discreditable conduct evidence would put the evidence supporting the charges in the context of the overall relationship of [P.S.] and [M. D.]. As such, the evidence would enable the jury to better evaluate the evidence regarding the specific charges. Therefore, I find the proposed evidence relevant for the purpose of making the jury aware of the contextual nature of the relationship during which the alleged events occurred and following which the alleged events occurred.
I also agree with the Crown's submissions and I find that the proposed discreditable conduct evidence, if believed, is relevant for the purpose of demonstrating the motive or animus of [P.S.] with respect to the alleged defences.
[20] The trial judge then found the probative value of this evidence exceeded its prejudicial effect and therefore admitted it.
[21] Following this ruling, but before the Crown called any evidence, the trial judge cautioned the jury that they were not to use this evidence to conclude that the appellant is a person of bad character and therefore likely to have committed the offences at issue, nor were they to punish him for that conduct by convicting him of these offences.
[22] The Crown then elicited from the complainant the evidence of the appellant's discreditable conduct towards her throughout their relationship. She testified to his bullying and general controlling behaviour, with his episodes of anger being followed by his promises to change. She also gave evidence of a series of specific incidents in which he vented his anger at her, attempted to physically control what she did, and assaulted her. Two of these incidents were the subjects of separate counts in the indictment, of which the appellant was ultimately acquitted.
[23] At the end of the trial, the trial judge reviewed with counsel his proposed instruction with respect to this evidence. Defence counsel indicated he was content with it. The trial judge then charged the jury as follows:
You heard evidence of the history of the relationship of [M. D.] and [P.S.] including evidence of specific incidents that are not the subject of charges in the indictment.
Prior to making any use of any of this type of evidence, you must first be satisfied that some or all of that conduct and those acts of [P.S.] did occur.
You may use that evidence which you accept as having occurred, to assist you to understand the relationship of [P.S.] and [M. D.]. You may also use such accepted evidence to help you determine the animus, that is, the hostility or ill feeling of [P.S.] or the motive of [P.S.] with respect to the crimes charged.
If you conclude that some or all of those alleged acts and conduct of [P.S.] did occur in the past, you must not use the evidence of that conduct and those acts to conclude that [P.S.] is a person of general bad character who, because of that general bad character, likely committed the offences that are the subject of this trial.
If you conclude that some or all of those alleged conduct and acts of [P.S.] did occur in the past, you must not punish [P.S.] for that conduct and those acts by finding him guilty of the offences that are the subject of this trial, simply because he did those other things in the past.
Like all other evidence given by witnesses, it is for you to decide whether or how much you will believe of, and rely upon this evidence in reaching your decision.
[24] The appellant does not contest the ruling that the discreditable conduct evidence was admissible. He acknowledges that the evidence was relevant for the purpose of providing the jury, provided that they accepted the evidence, with the contextual narrative of his relationship with the complainant within which the alleged events occurred.
[25] However, the appellant argues that the prior discreditable conduct did not show a motive or propensity to commit the very acts in question, namely kidnapping and sexual assault. He says that the prior conduct fell short of this and therefore the trial judge erred in instructing the jury that they could use the evidence, if they accepted it, to assist in determining the appellant's motive with respect to the offences charged.
[26] The appellant says that because the evidence of discreditable conduct did not include prior instances of kidnapping and sexual assault, it does not suggest a strong disposition to do the very acts alleged and cannot therefore constitute evidence that he had the disposition to do the acts on the occasion in issue. In this he relies on R. v. Batte (2000), 145 C.C.C. (3d) 449 (Ont. C.A.).
[27] The broad question here is whether the evidence of the appellant's prior conduct is sufficiently probative of his animus or motive in committing the offences charged to outweigh its prejudicial effect. In the circumstances of this case, I would answer this question in the affirmative, and find that the trial judge did not err in instructing the jury that they could use the evidence for that purpose.
[28] There is no doubt that the probative force of this kind of evidence is derived through propensity reasoning. As explained by Doherty J.A. in Batte, supra, at para. 97, one infers from the prior conduct that the accused has a certain disposition, and one then infers from this disposition that the accused acted in a certain way on the occasion in issue. If these inferences are tenuous, as is often the case, the risk is that the accused may be found to have done the acts in question simply because he is a bad person or because the jury finds that he should be punished for the prior acts.
[29] This risk of prejudicial effect explains what Doherty J.A. described as the "criminal law's resistance to propensity reasoning". However, as he said, that reticence is not absolute if the evidence of discreditable conduct permits a sufficiently focused form of propensity reasoning, such that its probative force outweighs its prejudicial effect. He put it this way in Batte, at para. 102:
[102] The criminal law's resistance to propensity reasoning is not, however, absolute. There will be situations in which the probative force of propensity reasoning is so strong that it overcomes the potential prejudice and cannot be ignored if the truth of the allegation is to be determined. The probative force of propensity reasoning reaches that level where the evidence, if accepted, suggests a strong disposition to do the very act alleged in the indictment. For example, if an accused is charged with assaulting his wife, evidence that the accused beat his wife on a regular basis throughout their long marriage would be admissible. Evidence of the prior beatings does much more than suggest that the accused is a bad person or that the accused has a general disposition to act violently and commit assaults. The evidence suggests a strong disposition to do the very act in issue – assault his wife. In such cases, the jury is permitted to reason, assuming it accepts the evidence of the prior assaults, that the accused was disposed to act violently towards his wife and that he had that disposition on the occasion in issue. The existence of the disposition is a piece of circumstantial evidence that may be considered in deciding whether the accused committed the alleged assault.
[30] R. v. F. (D.S.) (1999), 132 C.C.C. (3d) 97 (Ont. C.A.), is perhaps the leading example. There, the accused was charged with a variety of offences against his wife, including assault, sexual assault, and unlawful confinement. The evidence of the appellant's prior discreditable conduct came from his wife, the complainant, in her description of their relationship leading up to the events that resulted in the charges. This court summarized that evidence as follows, at paras. 14 and 15:
[14] In this regard, the complainant testified that shortly after the marriage, the appellant started calling her names and using abusive language. Within the first few months of the marriage, he began to push and shove her and sometimes hit her. After the incident with the knife in November 1993, the appellant's conduct became worse; the appellant would punch, slap and kick her at least once a week. The complainant also testified that although the couple had consensual sexual relations throughout the marriage, on many occasions the appellant had sexual intercourse with her without her consent.
[15] Further, the complainant described the appellant as a very controlling person in dealing with the couple's financial and social arrangements and also as a person who frequently became angry. She testified that as a result she was frightened of the appellant.
[31] The court then went on to find this evidence relevant for the purpose of setting out the contextual narrative in the course of which the alleged events occurred, and necessary to avoid leaving the jury with an incomplete and possibly misleading impression of the relationship. It then went on to describe the probative value of the evidence on the issue of the appellant's motive saying this, at para. 25:
[25] In this case, the evidence, which in general terms described a pattern of abusive behaviour towards the complainant, if accepted, was capable of assisting the jury in understanding why the appellant did what was alleged in the indictment. This evidence demonstrated an animus on the appellant's part towards the complainant that was consistent with the offences with which he was charged. The trial judge was correct in holding that the impugned evidence was relevant for this purpose.
[32] The court thus concluded that the probative value of the discreditable conduct evidence was high.
[33] It then went on to consider a number of factors that reduced the potential prejudicial effect of the evidence. Three stood out. First, the high probative value of the evidence tended to make it less likely that the evidence would be used improperly to convict the appellant because he was a bad person. Second, the evidence was entirely that of the complainant, and if her evidence about the charges themselves was not accepted, it was unlikely that the jury would be greatly swayed by the additional evidence of discreditable conduct. And finally, the trial judge gave a clear limiting instruction on the purpose for which the jury could use the evidence, and how they could not use it.
[34] In the end, this court concluded that the probative value of this evidence outweighed its prejudicial effect and that it was properly admissible. It could clearly be used by the jury for the purposes for which it was highly relevant, including the appellant's animus or motive to commit the offences charged.
[35] In my view, this case is very similar to F.(D.S.). As in F.(D.S.), here the evidence of the appellant's prior discreditable conduct comes from the complainant herself. It consists of her general description of their long-term domestic relationship, the appellant's attitude and behaviour towards her and a number of particular incidents of his abuse of her.
[36] If accepted, this evidence is not only useful to paint the complete picture of the relationship within which the alleged offences occurred, as the appellant concedes. As well, by describing his animus towards the complainant, this evidence also assists the jury in determining whether the appellant did what was alleged in the indictment. In both respects, its probative value is high. In the language of Doherty J.A. in Batte, supra, it is not just evidence of "a general disposition to act violently". Rather, it is evidence that grounds a more probative form of propensity reasoning, namely it suggests a strong disposition to do the very acts alleged in the indictment.
[37] Contrary to the appellant's submission, to reach this level of probative force, the prior discreditable conduct need not consist of precisely the same kind of acts that are alleged in the offences being tried. While this would be an important factor in assessing the probative value of such evidence, it is not a prerequisite for its admissibility or its use by the jury. What is critical is that the evidence suggests not just a general disposition but a strong disposition to do the very acts alleged.
[38] In this case, I have no doubt that the evidence meets that standard. It outlines the stormy long-term domestic relationship between this appellant and this complainant. It describes his highly controlling attitude and his abusive behaviour towards her. While it is true that none of the specific incidents testified to by the complainant include kidnapping or a sexual assault, they demonstrate his propensity to physically control and assault her in most degrading ways. Importantly, the offences alleged against the appellant involve the same victim and arise out of the same long-term domestic relationship as the prior disreputable acts.
[39] The controlling attitude of the appellant towards the complainant and his degrading and assaultive treatment of her reflected in the evidence of prior conduct are highly probative of a strong animus to do the very acts alleged against him. If accepted, the evidence has significant probative value in providing an understanding of the relationship between the appellant and the complainant, and in elucidating his animus or motive to do what was alleged against him.
[40] Turning to the potential prejudicial effect of this evidence, the same factors that existed in F.(D.S.), supra, are present in this case. The high probative value of the evidence tends to make it less likely that it would have been used improperly. It is evidence given entirely by the complainant, and if the jury did not accept her evidence about the charges themselves, it is unlikely that they would be greatly swayed by her additional evidence of his prior disreputable conduct. Finally, the trial judge carefully cautioned the jury that they must accept the evidence before using it at all, and that then they must not use it to conclude that the appellant is a person of general bad character and therefore likely to have committed the offences. Nor were they to punish the appellant for the prior acts by finding him guilty.
[41] In summary, I conclude that the evidence of prior discreditable conduct was admissible and properly used by the jury as the trial judge instructed. In particular, the trial judge did not err in charging that they could use the evidence they accepted to help determine the motive of the appellant with respect to the offences charged.
[42] I would therefore dismiss this ground of appeal.
[43] As his third ground of appeal, the appellant argues that the trial judge erred in failing to put the defence of honest but mistaken belief in consent to the jury.
[44] I disagree. In the circumstances of this case there was no air of reality to it. The position taken by the appellant at trial was that the complainant not only consented to the sexual activity on April 9, 2003, but was an active and willing participant. Conversely, the complainant's evidence was that she forcefully resisted the appellant's advances throughout. A version of events that reflected no consent by the complainant and an honest mistake by the appellant simply had no air of reality in the evidence. Indeed, counsel agreed as much in the pre-trial conference. The issue was purely one of credibility – consent or no consent.
[45] This ground of appeal also fails.
[46] Finally, the appellant seeks to appeal from his global sentence of 54 months, less 16 months credit for pre-trial detention.
[47] He argues that the trial judge erred in principle in finding that the complainant's nine-year relationship with the appellant was characterized by the latter's controlling and abusive behaviour when the jury had acquitted the appellant of two historical assaults alleged to have taken place earlier in the nine-year period.
[48] In my view, the finding was not at odds with these two acquittals. There was abundant evidence that throughout the relationship entirely apart from the two alleged incidents, the appellant abused the complainant and sought to control her. There is no error in principle.
[49] The appellant says that the trial judge also erred in overemphasizing denunciation and general deterrence, in light of this being the appellant's first penitentiary sentence.
[50] I do not agree. This court has made clear that crimes of domestic violence warrant giving paramount importance to denunciation and both general and specific deterrence. This is so even where the offender has not previously been to the penitentiary.
[51] Lastly, the appellant says that the sentence imposed is outside the appropriate range for this sort of offence. Again, I do not agree. The appellant was convicted of three very serious offences in the context of the breakdown of a long-term domestic relationship. The kidnapping took place on the doorstep of her home. The sexual assault was serious, degrading and dehumanizing. The events left deep emotional scars on the complainant. The sentence was not unfit.
[52] In conclusion, I would dismiss the conviction appeal, and grant leave to appeal sentence but dismiss that appeal as well.
RELEASED: April 20, 2007 "STG"
"S.T. Goudge J.A."
"I agree R.A. Blair J.A."
"I agree J. MacFarland J.A."