Court File and Parties

CITATION: R. v. Hamilton, 2009 ONCA 267

DATE: 20090326

DOCKET: C49017

COURT OF APPEAL FOR ONTARIO

Goudge, Cronk and LaForme JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Brian Hamilton

Appellant

Counsel: J. Scott Cowan, for the appellant Peter Scrutton, for the respondent

Heard: March 23, 2009

On appeal from the conviction entered by Justice Roland J. Haines of the Superior Court of Justice, sitting with a jury, on January 28, 2008.

ENDORSEMENT

[1] The appellant appeals his conviction for sexual assault on two grounds.

[2] First, the appellant submits that the trial judge erred by failing to provide the jury with a limiting instruction on the permissible use of the evidence of a phone booth altercation between the appellant and the complainant that occurred prior to the sexual assault in question.

[3] The phone booth altercation was materially different than the events that gave rise to the predicate offence. There was no realistic danger that the jury would rely on the evidence of the phone booth incident for prohibited propensity reasoning. Nor did the parties assert otherwise at trial. The defence made no request for a limiting instruction at trial. On the contrary, the defence relied on this evidence as a critical plank in its attack on the complainant’s credibility.

[4] In these circumstances, we would not give effect to this ground of appeal.

[5] The appellant next argues that the trial judge erred in his ‘Corbett’ ruling by permitting cross-examination on the appellant’s prior criminal record. We also reject this argument.

[6] The trial judge’s discretionary ruling on this issue attracts great deference from this court. The trial judge was uniquely positioned to assess the tenor of the defence cross-examination of the complainant and to determine whether the nature of that cross-examination warranted the admission of the evidence of the appellant’s prior convictions and cross-examination on the appellant’s record. The transcript reveals that the focus of the cross-examination of the complainant was in aid of the defence suggestion of fabrication by the complainant of her entire version of events, including the assertion that she concocted events to ensure a conviction.

[7] The trial judge gave a clear and concise mid-trial caution to the jury against the use of the evidence of the appellant’s criminal record for propensity reasoning. He also provided a similar and equally blunt limiting instruction during his subsequent charge to the jury, again warning the jury against the misuse of this evidence. This second caution included the following direction:

It is very important that you understand that you must not use the fact, number or nature of the prior convictions to decide, or help you decide that Mr. Hamilton is the sort of person who would commit the offence charged.

Defence counsel at trial made no objection to this part of the jury charge.

[8] In our view, these instructions clearly warned the jury that the evidence of the appellant’s prior convictions could not be used as evidence of guilt on the predicate offence. This substantially reduced any prospect of the jury’s misuse of this evidence.

[9] The risk of impermissible propensity reasoning by the jury was further attenuated by the nature of the evidence itself. The appellant’s prior offences differed in kind from the predicate offence and attracted only fines and probation. They were markedly dissimilar from the serious sexual assault that led to the appellant’s challenged conviction. This, too, rendered the potential for impermissible propensity reasoning remote.

[10] For these reasons, the appeal is dismissed.

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”

“H.S. LaForme J.A.”