Her Majesty the Queen v. Z.W.C.

[Indexed as: R. v. C. (Z.W.)]

Ontario Reports

Court of Appeal for Ontario

Strathy C.J.O., Watt and Zarnett JJ.A.

February 25, 2021

155 O.R. (3d) 129 | 2021 ONCA 116

Case Summary

Criminal law — Evidence — Admissibility — Prior discreditable conduct (similar act evidence) — Propensity evidence — Accused charged with sexual assault and sexual interference against wife and daughter — Charges arising from alleged conduct of accused after family moved from China to Canada — Trial judge granting Crown's application to introduce evidence of accused's prior discreditable conduct both in China and Canada to show animus and why complainants did not come forward earlier — Much of uncharged discreditable conduct evidence going beyond what had been contemplated in trial judge's ruling — Trial judge cautioning jury about how they could use evidence — Accused's appeal from conviction allowed — Trial judge acknowledged need to assess moral and reasoning prejudice but erred by not considering nature and extent of prejudice and balancing it against probative value — Evidence was voluminous and highly discreditable — Real risk that jury convicted for [page130] uncharged prior discreditable conduct and not for charged offences — New trial ordered.

The accused was convicted by a jury on three counts of sexual assault against his wife and one count each of sexual assault and sexual interference against his older daughter. The accused and his wife were married in China. The complainants alleged that the accused abused them physically and sexually both before and after the family moved to Canada in 2009. The wife's allegations that the accused regularly forced intercourse on her after 2009 formed the basis of a global count of sexual assault. The other two counts of sexual assault in relation to the wife concerned discrete incidents in 2011 and 2014, when the accused initiated intercourse and ignored the wife's pleas to stop. She did not report the assaults to police until late 2014 upon learning that non-consensual sex was illegal in Canada. The two counts involving the daughter were based on her allegations that the accused regularly sexually assaulted her after the family moved to Canada and continued to do so until she was about 16 or 17. In 2014, she disclosed the abuse to a psychiatrist and reported it to police. At the opening of the accused's trial the Crown applied to admit evidence of the accused's uncharged prior discreditable conduct. The Crown proposed to introduce evidence of the accused's conduct toward the complainants regarding events occurring both before and after the move from China to Canada. The trial judge granted the application, concluding that the evidence was an essential part of the narrative of events, and that without the evidence the jury would be left with an incomplete and misleading account of the relationship between the accused and the complainants, and might speculate on why the abuse only began in Canada. The judge considered that the prejudicial effect of the evidence was significantly outweighed by its probative value. The Crown's dramatic opening address discussed some of the uncharged threats, assaults and sexual assaults alleged by the complainant. She did not advise the jury that this evidence was being adduced for the limited purpose of context, animus and to explain why the complainants hadn't reported the abuse sooner. During the wife's testimony, much of the evidence heard by the jury was related to the accused's uncharged prior discreditable conduct, much of which was not contemplated by the trial judge's ruling. The trial judge gave the jury a brief mid-trial instruction on the use they could make of that evidence. During the daughter's testimony, the trial judge expressed some concern about "editorial comments" and excused the jury to instruct the daughter to listen to the questions being asked and to answer them directly. In his charge, the trial judge explained to the jury that the evidence of events before the move to Canada had been adduced for the limited purpose of allowing them to understand the nature and state of the family relationship prior to the allegations contained in the indictment, to demonstrate the accused's animus toward the complainants, and to explain why the allegations were not reported earlier. He cautioned the jury that they could not rely on the evidence as proof that that the accused was the sort of person who would commit the offences charged. The accused appealed his conviction.

Held, the appeal should be allowed.

The trial judge erred in law by failing to assess and balance the prejudicial effect of the evidence of uncharged prior discreditable conduct. The well-known dangers of such evidence had to be kept front and centre in a case-specific analysis. Although the trial judge acknowledged the need to assess both moral prejudice and reasoning prejudice, and found that the evidence was undoubtedly prejudicial, he did not actually consider the nature and extent of the reasoning prejudice that could arise, or balance that prejudice against the probative value of the evidence. The evidence was highly discreditable and included an alleged sexual assault of the wife when she was recovering from childbirth, a physical assault of the [page131] daughter as a young child, and multiple sexual assaults of both complainants in China. The evidence gave rise to significant moral prejudice, and a risk that the jury would infer the accused's guilt based on bad character. The evidence introduced a real risk of reasoning prejudice by confusing the jury about which acts the accused was being tried for. The evidence limited the accused's ability to respond, because the events occurred many years earlier in China, and any attempt to challenge the complainants' allegations would likely have simply emphasized them in the jury's eyes. A proper consideration of the evidence and its potential prejudicial effect should have led the trial judge to consider whether there were ways in which to mitigate its impact while preserving its probative value. It might have persuaded him to give a more timely and effective mid-trial instruction that prepared the jury for the reception of the evidence, explained how the evidence should be used, and cautioned them against its misuse. The prejudice was amplified by a dramatic opening statement by the Crown and by the wife's lengthy and graphic recitation of various sexual and physical assaults allegedly perpetrated by the accused in China, distinct in time from the offences with which he was charged. The volume and extent of the evidence was significant, comprising between one-third and one-half of the complainants' evidence. Much of it went well beyond the parameters contemplated by the Crown's application and the trial judge's ruling. Moreover, the mid-trial instruction, which occurred after some of the most prejudicial evidence had been admitted, did not provide the jury with an adequate framework in which to understand the permitted use of the evidence, and to protect against its improper use. Neither the mid-trial instruction nor the trial judge's final instruction identified the serious risk of reasoning prejudice, or explained to the jury how it could be avoided. There was a real risk that the jury convicted the accused for his uncharged prior discreditable conduct, and not for the offences with which he was charged. The risk was not attenuated by the jury instruction, which was focused on moral prejudice rather than reasoning prejudice. In the result, a new trial was required.

Cases referred to

R. v. Araya, [2015] 1 S.C.R. 581, [2015] S.C.J. No. 11, 2015 SCC 11, 384 D.L.R. (4th) 85, 468 N.R. 114, J.E. 2015-469, 329 O.A.C. 1, 321 C.C.C. (3d) 1, 17 C.R. (7th) 252, 121 W.C.B. (2d) 207, EYB 2015-249276, 2015 CCAN para. 10,020, 2015EXP-875; R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, 166 D.L.R. (4th) 296, 232 N.R. 317, [1999] 5 W.W.R. 545, J.E. 98-2397, 114 B.C.A.C. 1, 58 B.C.L.R. (3d) 18, 129 C.C.C. (3d) 321, 20 C.R. (5th) 1, 40 W.C.B. (2d) 196, 1998 CCAN para. 10,061; R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, [1990] S.C.J. No. 31, 107 N.R. 241, [1990] 3 W.W.R. 385, J.E. 90-656, 73 Alta. L.R. (2d) 1, 109 A.R. 81, 55 C.C.C. (3d) 1, 76 C.R. (3d) 1, 9 WCB (2d) 738, 1990 CCAN para. 10,019; R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 25, [1997] O.J. No. 3042, 102 O.A.C. 104, 116 C.C.C. (3d) 481, 9 C.R. (5th) 38, 35 W.C.B. (2d) 335 [Leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 524]; R. v. B. (S.), [1996] O.J. No. 1187, 30 W.C.B. (2d) 450 (Gen. Div.); R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321, [2000] O.J. No. 2184, 134 O.A.C. 1, 145 C.C.C. (3d) 449, 34 C.R. (5th) 197, 46 W.C.B. (2d) 462 (C.A.); R. v. Bent, [2016] O.J. No. 5103, 2016 ONCA 651, 133 W.C.B. (2d) 250, 32 C.R. (7th) 437, 342 C.C.C. (3d) 343; R. v. Calnen, [2019] 1 S.C.R. 301, [2019] S.C.J. No. 6, 2019 SCC 6, 430 D.L.R. (4th) 471, 374 C.C.C. (3d) 259, 53 C.R. (7th) 225, 2019EXP-338; R. v. D. (D.), [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44, 2000 SCC 43, 191 D.L.R. (4th) 60, 259 N.R. 156, J.E. 2000-1894, 136 O.A.C. 201, 148 C.C.C. (3d) 41, 36 C.R. (5th) 261, 47 W.C.B. (2d) 311, REJB 2000-20289, 2000 CCAN para. 10,104; R. v. D. (L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111, [1989] S.C.J. No. 82, 97 N.R. 321, [1989] 6 W.W.R. 501, J.E. 89-1190, 39 B.C.L.R. (2d) 273, 50 C.C.C. (3d) 142, 71 C.R. (3d) 1, 1989 CCAN para. 10,033; R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, [1999] O.J. No. 688, 169 D.L.R. (4th) 639, 118 O.A.C. 272, 132 C.C.C. (3d) 97, 23 C.R. (5th) 37, 41 W.C.B. (2d) 315 (C.A.); R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, [page132] [2015] S.C.J. No. 9, 2015 SCC 9, 384 D.L.R. (4th) 63, 468 N.R. 83, [2015] 4 W.W.R. 423, J.E. 2015-426, 315 Man. R. (2d) 259, 321 C.C.C. (3d) 27, 17 C.R. (7th) 229, 121 W.C.B. (2d) 139, EYB 2015-248866, 2015 CCAN para. 10,016, 2015EXP-802; R. v. H. (J.), [2020] O.J. No. 937, 2020 ONCA 165; R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 2002 SCC 56, 213 D.L.R. (4th) 385, 290 N.R. 1, J.E. 2002-1226, 160 O.A.C. 201, 164 C.C.C. (3d) 481, 1 C.R. (6th) 203, 53 W.C.B. (2d) 286, JCPQ 2002-112; R. v. James (2006), 2006 33664 (ON CA), 84 O.R. (3d) 227, [2006] O.J. No. 3990, 216 O.A.C. 27, 213 C.C.C. (3d) 235, 71 W.C.B. (2d) 77 (C.A.) [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 234]; R. v. Largie (2010), 101 O.R. (3d) 561, [2010] O.J. No. 3384, 2010 ONCA 548, 266 O.A.C. 103, 258 C.C.C. (3d) 297, 216 C.R.R. (2d) 1, 90 W.C.B. (2d) 644 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 460, [2011] S.C.C.A. No. 119]; R. v. Lo (2020), 152 O.R. (3d) 609, [2020] O.J. No. 4302, 2020 ONCA 622; R. v. Luciano, [2011] O.J. No. 399, 2011 ONCA 89, 267 C.C.C. (3d) 16, 273 O.A.C. 273, 95 W.C.B. (2d) 127; R. v. M. (J.), [2010] O.J. No. 585, 2010 ONCA 117, 258 O.A.C. 81, 251 C.C.C. (3d) 325, 73 C.R. (6th) 78; R. v. McDonald, [2017] O.J. No. 3498, 2017 ONCA 568, 140 W.C.B. (2d) 525, 351 C.C.C. (3d) 486, 39 C.R. (7th) 344; R. v. McLean, 2002 11684 (ON CA), [2002] O.J. No. 4836, 166 O.A.C. 381, 170 C.C.C. (3d) 330, 56 W.C.B. (2d) 404 (C.A.); R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, 88 N.R. 161, J.E. 88-1374, 30 O.A.C. 81, 44 C.C.C. (3d) 193, 66 C.R. (3d) 1, 5 W.C.B. (2d) 309; R. v. Morris, 1983 28 (SCC), [1983] 2 S.C.R. 190, [1983] S.C.J. No. 72, 1 D.L.R. (4th) 385, 48 N.R. 341, [1984] 2 W.W.R. 1, 7 C.C.C. (3d) 97, 36 C.R. (3d) 1, 10 W.C.B. 361; R. v. O. (R.), [2015] O.J. No. 6170, 2015 ONCA 814, 25 C.R. (7th) 315, 341 O.A.C. 255, 129 W.C.B. (2d) 235, 333 C.C.C. (3d) 367; R. v. R. (B.S.) (2006), 2006 29082 (ON CA), 81 O.R. (3d) 641, [2006] O.J. No. 3404, 215 O.A.C. 14, 212 C.C.C. (3d) 65, 70 W.C.B. (2d) 466 (C.A.); R. v. Shearing, [2002] 3 S.C.R. 33, [2002] S.C.J. No. 59, 2002 SCC 58, 214 D.L.R. (4th) 215, 290 N.R. 225, [2002] 8 W.W.R. 395, J.E. 2002-1354, 168 B.C.A.C. 161, 2 B.C.L.R. (4th) 201, 165 C.C.C. (3d) 225, 2 C.R. (6th) 213, 53 W.C.B. (2d) 432, JCPQ 2002-125; R. v. T. (J.A.), [2012] O.J. No. 1208, 2012 ONCA 177, 290 O.A.C. 130, 288 C.C.C. (3d) 1, 100 W.C.B. (2d) 687; R. v. Z. (C.W.), [2018] O.J. No. 3581, 2018 ONSC 4080 (S.C.J.)

Authorities referred to

Paciocco, David M., Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020)

APPEAL from convictions entered by Akhtar J. of the Superior Court of Justice, sitting with a jury, on March 8, 2018, for sexual assault and sexual interference.

Mark C. Halfyard, for appellant.

Tanya M. Kranjc, for respondent.

The judgment of the court was delivered by

STRATHY C.J.O.: —

A. Overview

[1] The appellant was convicted by a jury on three counts of sexual assault against his wife, C.Q., and one count each of sexual assault and sexual interference against his daughter, C.L. The [page133] offences were alleged to have occurred in the City of Toronto between December 29, 2009 and December 19, 2014.

[2] The appellant appeals his convictions on the ground that the trial judge erred in admitting evidence of the appellant's alleged prior sexual and physical abuse of the complainants. The appellant submits that the volume and extent of this evidence had significant prejudicial effect on the jury, particularly, but not exclusively, by way of reasoning prejudice. He asserts that the trial judge failed to properly weigh the prejudicial effect of the evidence against its probative value. Had that balancing occurred, he argues that the trial judge would not have admitted the evidence, or would have curtailed the evidence and given the jury a more appropriate instruction about its permitted and prohibited uses.

[3] For the reasons that follow, I would allow the appeal.

B. Background

[4] The appellant and his wife, C.Q., were married in China in 1995. They have two daughters: C.L., born in July 1995, and L.L., born in October 2001.

[5] C.Q. came to Canada in March 2006 to work as a live-in nanny. She later sponsored the appellant and their daughters, who emigrated from China in December 2009.

[6] Both C.Q. and C.L. claim that the appellant abused them, physically and sexually, before and after the family moved to Canada. Some of their allegations of sexual abuse in Canada formed the basis of the indictment. However, most of the evidence of uncharged prior discreditable conduct related to events that occurred in China. I will describe the acts referred to in the indictment before I turn to (1) the Crown's application to admit the evidence of uncharged prior discreditable conduct, and (2) the evidence that was eventually admitted pursuant to the trial judge's ruling.

(1) Allegations of C.Q.

[7] C.Q. alleged that the appellant regularly forced intercourse upon her during their marriage. Most of these acts occurred when C.Q. was menstruating and had made it known to the appellant that she did not wish to have intercourse. Allegations relating to such acts in Canada after 2009 formed count three, a global count of sexual assault.

[8] The other two counts of sexual assault in relation to C.Q. concerned discrete incidents. The first was the subject of count four and occurred in the spring of 2011. C.Q. alleged that she was two months pregnant and asleep in bed when the appellant [page134] initiated intercourse. She asked him to stop because she was in pain. The appellant was not deterred and concluded the act some minutes later. The next morning, C.Q. felt pain in her abdomen and noticed that she was bleeding. She called an ambulance and was taken to Toronto East General Hospital, where doctors told her that she had suffered a miscarriage.

[9] The second incident was the subject of count five and occurred in early 2014. C.Q. was in bed when the appellant lay on top of her and initiated intercourse. C.Q. was menstruating and asked the appellant to stop because she was in pain. The appellant ignored her pleas. As C.Q. continued to resist, the appellant held her hands above her head. The appellant eventually finished and fell asleep. The following morning, C.Q. found blood in her urine. She experienced abdominal pain for one month afterwards.

[10] C.Q. did not report these assaults to police. However, in December 2014, when she was visiting C.L. at the Centre for Addiction and Mental Health ("CAMH") in Toronto, she read a leaflet about sexual assault and learned that non-consensual sex is illegal in Canada. This convinced her to report the abuse to police.

(2) Allegations of C.L.

[11] C.L. alleged that the appellant regularly sexually assaulted her after the family moved to Toronto in December 2009. This conduct was the subject of counts one and two.

[12] According to C.L., at nighttime, the appellant frequently came into the bedroom she shared with her sister. He read to L.L. until she fell asleep, and then moved to C.L.'s bed and lay on top of her. The appellant kissed C.L. "vigorously" as he rubbed his body up and down hers. Although there was a blanket separating them, C.L. said that she could feel his penis between her thighs. C.L. sometimes called for her mother, but the appellant got off her before her mother arrived.

[13] In 2010, C.L. called 911 to report the appellant's abusive behaviour. She recanted her allegations when the police arrived because her mother had expressed fear that the family would be deported.

[14] The assaults ended when C.L. was approximately 16 or 17 years old. C.L. asked the appellant what a future husband would think about his abuse of her. The appellant warned C.L. that if she told anyone about his conduct, she would suffer devastating consequences.

[15] In December 2014, C.L. disclosed the sexual abuse to a psychiatrist after she was admitted to CAMH. She subsequently reported it to police. On March 31, 2017, the appellant was charged with the offences at issue. [page135]

C. The Uncharged Prior Discreditable Conduct Evidence

[16] The Crown brought an application at the opening of the trial seeking to admit evidence of the appellant's uncharged prior discreditable conduct. The Crown's application record, if there was one, was not made an exhibit at trial. We were, however, provided with a copy of the Crown's factum on the application. The appellant does not appear to have filed any materials in response to the Crown's application.

[17] The parties did not adduce viva voce or other evidence on the voir dire. The evidence that the Crown proposed to admit was set out in its factum on the application as a short point-form summary. This evidence related primarily to instances of physical and sexual abuse in China, but included some events in Canada.

(1) The uncharged prior discreditable conduct in relation to C.Q.

[18] The Crown proposed to introduce the following evidence of the appellant's conduct towards C.Q., all of which occurred in China before 2006:

-- In 1998, the appellant placed a "butcher knife" under his pillow and told C.Q. that she "belonged" to him;

-- Between 1998 and 2006, the appellant regularly sexually assaulted C.Q. when she was menstruating;

-- In 2001, the appellant sexually assaulted C.Q. within ten days of her giving birth to L.L.; and

-- Shortly after L.L.'s birth, the appellant slapped C.Q. on the ear.

[19] In March 2006, C.Q. moved to Canada on a two-year work permit. In July 2008, she visited China and stayed at the family home. The Crown proposed to introduce the following evidence of the appellant's conduct towards C.Q. and C.L. during her visit to China between 2008 and 2009:

-- C.Q. witnessed the appellant grab C.L.'s hair, push her to the ground, and step on her head. When C.Q. asked the appellant why he was doing this, he shoved her; and

-- The appellant resumed sexually assaulting C.Q. when she was menstruating.

[20] The Crown also proposed to introduce the following evidence of the appellant's conduct towards C.Q. in Canada between 2009 and 2014: [page136]

-- In 2010, after C.L.'s 911 call, C.Q. learned about C.L.'s abuse and confronted the appellant, who not only denied the allegations but threatened to assault C.L. if she ever called police again; and

-- In 2014, C.Q. saw the appellant cut himself on the edge of a table in their family home, and he responded by chopping off the edge of the table using a "cleaver".

(2) The uncharged prior discreditable conduct in relation to C.L.

[21] The Crown proposed to adduce the following evidence of the appellant's conduct towards C.L. in China between 2006 and 2009:

-- In 2006 or 2007, the appellant asked C.L. to sleep in the bed he shared with L.L. He subsequently climbed on top of C.L., positioned his penis between her legs, and moved around;

-- On one occasion, the appellant got into the shower with C.L. and embraced her from behind, such that she felt his penis against her;

-- When C.L. threated to tell her friends and teachers about the appellant's inappropriate touching, he told her that they would think she was a "dirty whore"; and

-- In July 2008, when C.Q. returned to China for a visit, the appellant grabbed C.L.'s hair, pushed her into a wall and hit her face.

[22] The Crown also proposed to adduce the following evidence of the appellant's conduct towards C.L. in Canada between 2009 and 2014:

-- In 2010, C.L. called 911 after the appellant overheard a conversation that she was having with her sister. C.L. had told L.L. that the appellant was not the kind of person L.L. imagined him to be. The appellant interrupted C.L., pinched her arm and hit her shoulder. C.L. ultimately recanted her allegations at C.Q.'s insistence, but informed her mother about the appellant's abusive conduct; and

-- Following the 911 call, the appellant repeatedly entered C.L.'s bed at night and, after L.L. fell asleep, climbed on top of C.L. and rubbed his penis against her thighs. Two of these instances were the subject of counts one and two on the indictment. [page137]

D. The Trial Judge's Ruling to Admit the Evidence

[23] The Crown's application to admit the evidence of uncharged prior discreditable conduct hinged on three grounds. First, the Crown argued the evidence was necessary to establish "animus", specifically "a pattern of control [and] a pattern of possessiveness . . . to do the very acts that [the appellant] is alleged to have done". Second, the Crown argued that the evidence would help contextualize the reason why C.Q. stayed in a relationship with the appellant. Finally, the Crown asserted that the evidence would explain why the complainants did not report the abuse to police. The Crown stated that the point of the evidence was to avoid "an antiseptic record" that left the jury without a "real sense" of the parties' relationship.

[24] Defence counsel objected to the application, claiming that the Crown had not given formal notice of its intention to adduce this evidence. He also argued that the evidence was highly prejudicial to the appellant and that he had no opportunity to properly challenge the complainants' allegations. Defence counsel asserted that the appellant denied both the counts in the indictment and the evidence of prior discreditable conduct.

[25] In brief oral reasons, the trial judge granted the Crown's application. The trial judge found that defence counsel had been aware of the Crown's intention to adduce the evidence since the pre-trial conference. With respect to the actual content of the evidence, he observed that there was an "overwhelming body of case law" permitting the introduction of such evidence to flesh out the narrative, to show animus, and, depending on how the evidence unfolded, to explain why the complainant spouse may have stayed in the marriage and delayed her reporting the abuse. The trial judge mentioned that, depending on the issues raised by the defence, he might be required to instruct the jury about the limited use of some aspects of the evidence.

[26] The trial judge subsequently gave written reasons for his ruling on the application and for his ruling on the Crown's application to admit cross-count similar fact evidence: R. v. Z. (C.W.), [2018] O.J. No. 3581, 2018 ONSC 4080 (S.C.J.).

[27] He began by reviewing the complainants' allegations in relation to both the uncharged prior discreditable conduct and the counts on the indictment. He noted that the Crown sought admission of the former to explain: (a) the nature of the relationship, and the appellant's animus in relation to the complainants; (b) the complainants' fear of the appellant, specifically to explain why they had not previously reported their allegations; and (c) the reason why C.Q. had remained in the marital relationship. [page138]

[28] The trial judge referred to R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 2002 SCC 56, as the leading case on the admission of similar act evidence. He recognized that the Crown bore the onus of establishing, on the balance of probabilities, that the probative value of the evidence outweighed its prejudicial effect. In particular, the evidence must show more than a general propensity to commit the offence and must be of significance to a live issue in the charges before the court.

[29] After identifying some of the factors to be considered when assessing the probative value of the evidence, the trial judge observed, at para. 51:

These factors must be evaluated through the lens of prejudice. A court must consider whether the issue to be proven by the evidence can be established by evidence of a lesser prejudicial nature. In addition, the court must be mindful of the risk that the evidence becomes a distraction drawing focus away from the actual offence and consuming a disproportionate amount of time ("reasoning prejudice").

[30] The trial judge appreciated that this was not a case in which the similar act evidence was tendered to establish the identity of the offender. The question for the jury was whether the appellant had committed the actus reus of the offence. In a case such as this, the Supreme Court pointed out that "the drivers of cogency in relation to the desired inferences" will not be the same as they are in a case where the identity of the accused is in issue: Handy, at para. 78. The trial judge also referred to the observations of Watt J.A. in R. v. M. (J.), [2010] O.J. No. 585, 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 91:

Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy, at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused's conduct in closely defined circumstances.

[31] The trial judge then reviewed several of this court's decisions in domestic violence cases, stating that the admission of uncharged prior discreditable conduct "has long been seen as a valuable tool in assessing the nature of the relationship between an accused and the complainant as well as providing a clearer picture of the context in which the allegations took place. It is on this basis that it often derives strong probative value": see R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321, [2000] O.J. No. 2184 (C.A.); R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, [1999] O.J. No. 688 (C.A.); R. v. R. (B.S.) (2006), 2006 29082 (ON CA), 81 O.R. (3d) 641, [2006] O.J. No. 3404 (C.A.). The trial judge cited this court's decision in R. (B.S.), at para. 38, to explain that: [page139]

The evidence was admissible to explain the nature and dynamic of the relationship between the appellant and [the complainant], to demonstrate the appellant's animus toward [the complainant], to assist in explaining [the complainant]'s delay in fully disclosing the assaultive acts of her husband, and to rebut the appellant's claim of fabrication by [the complainant]. Moreover, unlike the facts in Handy, the evidence in this case was provided by [the complainant] herself, and not by a third party.

[Citation omitted]

[32] The trial judge concluded that the evidence the Crown sought to adduce was an essential part of the narrative of events, and that without the evidence, the jury would be left with an incomplete and misleading account of the relationship between the appellant and the complainants. The jury might speculate on why the abuse only began in Canada. The trial judge noted the observation of Hill J. in R. v. B. (S.), [1996] O.J. No. 1187, 30 W.C.B. (2d) 450 (Gen. Div.), at para. 31, that denying the jury this evidence "runs the risk of presenting an entirely sterile and antiseptic record devoid of the realities of the individual circumstances of the participants". The evidence was highly relevant, and while it was undoubtedly prejudicial, the prejudice was significantly outweighed by the probative value. The trial judge said that he would give a limiting instruction to the jury, informing them of the proper use of the evidence.

E. The Trial

[33] To fully appreciate the appellant's submissions concerning the prejudicial effect of the evidence at issue, it is necessary to examine the dynamics of the trial and the way in which the evidence unfolded.

[34] Jury selection took place on February 20, 2018, after the appellant had been arraigned before the jury panel. The next day was taken up with the Crown's application to admit the evidence. The evidentiary portion of the trial began on February 22, a Thursday. There were only four days of evidence, three of which were largely occupied by the complainants' evidence. Two police officers testified on the third day about their response to C.L.'s 911 call. The appellant testified on the fourth day.

(1) The trial judge's preliminary instructions

[35] The trial began with the trial judge's instructions to the jury, which were brief and generic. The trial judge did not inform the jury that they might be hearing evidence that was to be considered for a specific purpose in deciding the case and that they would be given an instruction about how to use the evidence in deciding the case at the time the evidence was introduced. [page140]

(2) The Crown's opening

[36] The Crown's[^1] opening was brief, but dramatic. It began as follows:

Get off. That's painful. Stop. It hurts. These are words [C.Q.] will tell you she said to her husband too many times to count. Her husband is the accused. And this case is about how he controlled his wife and their daughter [C.L.] through sexual and physical violence and threats of further violence in the privacy of their family home.

[37] The Crown proceeded to describe some of the evidence that the jury would hear. She identified the following evidence in relation to the complainants in China:

-- the evidence of the appellant placing a knife under his pillow and threatening C.Q.;

-- the sexual assaults of C.Q. while she was menstruating;

-- the sexual assault of C.Q. after the birth of L.L.; and

-- the "brutal assault" of C.L. in front of her mother.

[38] The Crown asked rhetorically, "why not call police?", and indicated that C.Q. would explain her own understanding of how police dealt with domestic matters in China.

[39] The Crown said that after C.Q. came to Canada, "[the appellant] no longer had his wife at his disposal", and he began to sexually assault C.L. When C.L. was around 11 or 12 years old, the appellant gave her an allowance, but only after he had touched her inappropriately.

[40] The Crown informed the jury that after the appellant and the children were reunited with C.Q. in Canada, the appellant continued to assault C.Q. when she was menstruating. The Crown also referred to a sexual assault in May 2011, when C.Q. was pregnant and the appellant "assaulted her sexually so forcefully that the following morning the pain and vaginal bleeding drove her to call for an ambulance". The Crown then described a "particularly violent sexual assault while C.Q. was menstruating" in February 2014, which required medical attention.

[41] The Crown informed the jury that the sexual assaults of C.L. also continued in Canada. The Crown noted that the appellant told "[C.L.] that she was 'dirty' so often she began to believe it was true". The Crown described C.L. having called "911" after [page141] her father hit her particularly hard on one occasion, but said that C.L. recanted after her mother told her they might be deported.

[42] The Crown's opening did not explain that some of the acts described were the subject of the charges against the appellant, and that some of the acts were only proffered to provide "context" or "background". She did not specify which acts were the subject of the particular counts.

[43] Defence counsel raised no objection to the Crown's opening at the time. However, when the trial continued the following Monday, and C.Q. was still being examined-in-chief, defence counsel expressed "some lingering concern" about the Crown's opening, describing it as "sensational". He argued that the Crown had not flagged for the jury that her opening remarks were not evidence, and he expressed concern that the opening was not presented "in a dispassionate and neutral way".

[44] The trial judge did not give effect to this objection. He observed that while there was some rhetoric in the Crown's opening, it did not cross the line into argument. He pointed out that he had already instructed the jury that anything said by counsel was not evidence.

(3) The evidence

[45] As the Crown's case went in at trial, the jury heard a significant body of evidence from the complainants concerning the appellant's uncharged prior discreditable conduct. Some of that evidence was anticipated by the trial judge's ruling on the Crown's application, but much was not. It is necessary to review that evidence in order to appreciate its potential impact on the jury, and the risk of both moral prejudice and reasoning prejudice.

The testimony of C.Q.

[46] After the trial judge's preliminary instructions to the jury and the Crown's opening, C.Q. was the first Crown witness. Her evidence-in-chief began on the morning of Thursday, February 22. It was not completed that day, and the trial was adjourned to Monday, February 26.

[47] In response to a series of open-ended questions from the Crown, C.Q. described the following conduct of the appellant:

-- The appellant had been "lying all through until the day I registered our marriage";

-- The appellant had lied about his age, saying he was three years older than her when he was actually younger; [page142]

-- The appellant told C.Q. that his mother was a doctor when he was really from a farming family;

-- C.Q. did not confront the appellant about "these lies" because she was already two months pregnant;

-- During her 20-year marriage to the appellant, she had "all kinds of gynecological diseases";

-- Between the time C.Q. gave birth to L.L. in 2001 and when she came to Canada in 2006, her relationship with the appellant was "not good". The appellant "smashed things at home, he cursed people at him [sic], and hit people"; and

-- When C.Q. was staying at the hospital after L.L.'s birth, the appellant did not bring any food to her, despite the fact that he was off work, and hospitals in China do not feed their patients. C.Q. was discharged one or two days later. The appellant apparently came home at midnight, drunk: "I didn't know whether he was really drunk. He was sleeping on the floor. He was crying and screaming. He was swearing. He was smashing things. And then my baby [L.L.] was crying. I was worried that the baby would be scared, so I was holding my baby standing . . . [T]he next morning I felt that I had a lot of pain in both my knees and elbows. I didn't know what happened, and I went to see a doctor. The doctor said that I had rheumatic arthritis after giving birth."

[48] Interspersed with this evidence, which was unrelated to the charges and had not been contemplated by the trial judge's ruling, C.Q. testified about several matters that had been envisaged by the ruling, namely:

-- The relationship was "not good". C.Q. described the appellant bringing a knife to their bed, and said that "if I wanted to divorce, he would kill me, that I could only belong to him. And he also threatened that he would kill my family"; and

-- The appellant forced intercourse on C.Q. when she was menstruating, and she got sick for almost a year.

[49] At some point, the Crown asked the following question:

Q. And [C.Q.], is there any particular incident that stands out in your mind that causes you to describe the relationship at that time as not good?

[50] In response to this question, C.Q. referred to another incident that had not been contemplated, either by the Crown's application or by the trial judge's ruling: [page143]

A. I remember very well one day he was off from work. [C.L.] was six years old at the time, and she wanted to go out and play. She said to me, because I have to take care of little [L.L.], I told her to go look for her dad. He went to bed the night before and slept until two or three in the afternoon the next day. [C.L.] went to wake him. I don't know how he hit . . . my daughter . . . I remember this incident during a psychological therapy. So, I remember this all of a sudden during a session. [C.L.'s] face was covered with blood. I was standing there dumbfounded looking at her.

[51] Before the Crown could continue with C.Q.'s examination-in-chief, the trial judge called the morning break. Once the jury had left the court room, the trial judge expressed concern to the Crown about the manner in which the evidence had come out, "because the whole point of allowing this evidence in is to show the relationship between the two of them. And I'm concerned about this idea that we'll be hearing evidence that he's brutally beating his daughter, she's covered in blood." He reminded the Crown that the purpose of the evidence was to show the parties' relationship, "not to have [the appellant's] acts somehow in front of the jury". He said to the Crown, "[y]ou painted this danger of showing that he's this brutal assaulter, which I don't think is, was the purpose of my ruling".

[52] The Crown agreed, saying that the incident described by the complainant was "sadly unanticipated" on her part.

[53] The trial judge responded:

Just keep it general. That's, I mean, the point of, just keep it general because it's not, this is not something that, again, that's not the point of this evidence. The point of the evidence is to show that they had a rocky marriage . . . It's being adduced just to show the state of the relationship, not to make him out to be a bad man. So, that's why I cut you off, cut the sentence off when I did because I don't think it's, it's certainly not what it was meant to be admissible for. So, just control your witness a little bit.

(Emphasis added)

[54] After a break of about 40 minutes, the jury returned, and the trial judge gave them a brief mid-trial instruction. He pointed out that the evidence heard to that stage of the trial related to events that had occurred before the counts on the indictment. He told them that the object of the evidence was to show them the nature of the relationship between the appellant and C.Q., and the state of their marriage prior to December 2009. He instructed that,

. . . [W]hat you're not supposed to do and what you cannot do is take the evidence you've just heard and use it to say 'Well, because he did that he must be the type of person that committed the offences, the sexual assault contained in the indictment.' . . . What you can use it for is to see what the state of the relationship was like prior to the sexual assault.

[55] The Crown continued to lead the evidence of C.Q. Crown counsel asked whether there were any other incidents between [page144] the birth of C.Q.'s two children that stood out in her mind. C.Q. proceeded to describe the incident contemplated by the trial judge's ruling when the appellant had struck her on the ear:

When [C.L.] was around two or three years old, I took my daughter to go out to take milk, to pick up milk. When I came in, I didn't know why, he hit me all of a sudden on my face, slapped my face and my right ear. I lost hearing in the right ear for about a week. He used his left hand.

[56] For the remainder of the morning, most of the evidence that the jury heard was related to the appellant's uncharged prior discreditable conduct. Some of this was contemplated by the trial judge's ruling, but some was not:

-- The appellant forced intercourse on C.Q. in China, only 10 days after the birth of their second child, L.L.: "I was still bleeding. But he wouldn't listen, I said get off . . . He grabbed my hands with, both my hands and forced my hands to the back. And he was stronger than me. He was on top of me. He was moving really fast I remember. I wasn't free until he was done with himself";

-- While C.Q. was in Canada working as a nanny, and the appellant was living in China with her children, the appellant forced C.Q.'s mother to leave their house because she could not look after their children: "He kicked my mother out. He wouldn't allow my mother coming to visit the children. In 2008 when I went back to China to visit my family, I saw that my home was very messy and dirty";

-- When C.Q. visited China in 2008, she recalled an assault of her daughter, C.L.: "I remember one day I was staying home with my two daughters. He came back. The three of us didn't say anything. He just grabbed [C.L.'s] hair, my older daughter's hair, and smashed her on the floor. And he was wearing leather shoes and he was stepping on my child, not only stepping on my daughter's body but also on her head. I wanted to go protect my child. He pushed me away. I didn't know how he pushed me, but my spinal cord, my vertebrae was broken";

-- After the appellant came to Canada, he didn't have a job and stayed at home playing computer games: "[H]e cursed me at home. He asked me to go look for a job for him. He smashed things at home"; and

-- In or around 2013, the appellant scraped his thigh on the family's living room table. The appellant respondent by retrieving a kitchen knife and chopping off the corner of the table: "I felt he was a crazy man . . . Because when we were [page145] in China, he told me that he punched a man and broke the man's nose."

[57] Eventually, C.Q.'s evidence turned to the events that had occurred in Canada and were the subject of the indictment. The Crown asked C.Q. to listen carefully to her question and to only answer what was asked. The Crown observed that C.Q. had identified an incident in China when the appellant forced intercourse upon her while she was menstruating, and asked whether something similar had happened in Canada. C.Q. replied affirmatively, and the Crown asked her to describe the assault in further detail. C.Q. proceeded to give an unresponsive answer that related to count four. C.Q. described an event in 2011, when she was two months pregnant, and the appellant forced intercourse on her. She told him it hurt and asked him to stop, but he was undeterred. The next day, C.Q. felt a pain in her abdomen and noticed that she was "bleeding a little". She called an ambulance and was taken to the hospital where she was told by doctors that she had suffered a miscarriage.

[58] The Crown returned to the question that prompted this response and asked C.Q. whether the appellant had ever forced intercourse on her in Canada while she was menstruating. C.Q. replied by stating that the appellant had told her that if he did not have sex regularly, he would "feel hurt" and "have [a] prostate infection or something like that". He was "really intimidating". C.Q. recounted that the appellant would assault her when she was menstruating, every month.

[59] After the lunch recess, the Crown asked C.Q. about an assault by the appellant in early 2014 (apparently, count five). C.Q. recalled that the appellant had been watching something on his computer, "something weird maybe", when she went to bed. At some point, in the middle of the night, the appellant got on top of her. C.Q. asked the appellant to get off and informed him that she was having her period. The appellant did not stop. The next day, C.Q. had blood in her urine, "not period blood", and abdominal pain.

[60] The Crown subsequently directed C.Q. to the incident of the 911 call in 2010. C.Q. recounted that C.L. called her to say that the appellant had assaulted her, and that C.L. had called the police. C.Q. immediately spoke to a friend who told her not to engage with the police because they were new immigrants, and her family could be sent back to China.

[61] C.Q. testified that she relayed her friend's information to C.L. After the police left the family home, C.Q. remembered that C.L. disclosed the appellant's abuse to her. When C.Q. confronted the appellant, he became angry, smashed his computer mouse [page146] and told C.Q. to "take [C.L.] to the hospital to check if she is still a virgin".

[62] C.Q. admitted that she had observed the appellant lying in the bed with C.L. on one occasion. C.Q. had heard C.L. yelling about the appellant being in her bed and went to see what was happening in her daughters' bedroom. C.Q told the appellant to leave the bedroom and said that because the children were growing up, he had to be careful with his behaviour. C.Q. testified that the appellant threw a "temper tantrum". He responded that "he would beat [C.L.] until she is handicapped . . . until she is mentally retarded".

[63] C.Q.'s examination-in-chief ended with an explanation of how she came to speak to police about her allegations against the appellant. According to C.Q., the appellant was ordered by the Children's Aid Society to leave the family home in December 2014. Around the same time, C.Q. learned that her daughter, C.L., had become a patient at CAMH. C.Q. visited C.L. at the CAMH facility in Toronto and read a leaflet that explained that non-consensual sex was illegal in Canada. C.Q. testified that she ultimately reported her abuse to police in January 2015.

[64] The cross-examination of C.Q. by defence counsel was relatively brief. C.Q. was a difficult witness, and she was not directly challenged in relation to her evidence concerning the appellant's uncharged prior discreditable conduct or the counts contained in the indictment. Defence counsel suggested that C.Q. and C.L. had conspired to convict the appellant so that he would be put in jail and would not be able to access the proceeds of a house sale in China. He also suggested that C.Q. would not have left the children with the appellant if the appellant was really the abusive and violent person she had described. Defence counsel put to C.Q. that she had relatives in China who were police officers, presumably to imply that she could have reported the appellant's conduct to police if it had actually occurred. In addition, defence counsel drew the jury's attention to C.Q.'s pre-existing medical conditions to provide an explanation for her symptoms and doctors' visits after the alleged assaults.

The testimony of C.L.

[65] The trial judge did not give the jury an additional mid-trial instruction before they heard the evidence of C.L.

[66] It was apparent from the outset of C.L.'s evidence that she bore considerable hostility towards the appellant. After eliciting some general background information, the Crown asked, "[P]rior to you being around 10 years old and your mom coming [page147] to Canada what was your relationship like with your dad?" The complainant replied:

. . . [I]t's been a disgusting memory from an experience and, like, the relationship, it's, like, retarded. He's retarded. Um, I, I don't know. How do you want to me to describe it?

[67] The Crown then asked an open-ended question: "Prior to your mother coming to Canada are there any incidents involving you and [the appellant] that stand out in your mind?"

[68] In response, C.L. described an incident, not referred to in the Crown's application or the trial judge's ruling, saying that the appellant punished her when she got low marks at school. C.L. recalled that on one occasion, the appellant had woken her up during the night and made her sit on her knees until morning.

[69] The Crown prompted C.L. to speak about her relationship with the appellant after her mother had left for Canada. C.L. said that when she reached puberty around the age of 12, she "learned nasty things from him that I wish I could have not". C.L. described a particular incident in China that she "remember[ed] really well". The appellant had asked her to sleep in the bed that he shared with her sister, L.L. After L.L. fell asleep, the appellant moved on top of C.L. claiming to look at the clock on the wall. C.L. said that she could feel his penis between her thighs.

[70] During her testimony, C.L. revealed that similar assaults had occurred on multiple occasions. She said that one night, she panicked and threatened to tell her teacher about what the appellant was doing. The appellant replied that her teachers would not believe her and would think she was dirty. C.L. stated that "in the Chinese culture it's, like, the victims are always blamed".

[71] C.L. also described two discrete incidents that took place in China while her mother was in Canada. The first occurred in the kitchen of their family home. The appellant kissed C.L. on the mouth and touched her "all over the place", and she suddenly realized that her underpants were halfway down her thighs. The defence objected at this point to the evidence on the basis that it was detailed rather than "general". The trial judge did not give effect to the objection, stating that the evidence simply showed how the assaults started happening before the family immigrated to Canada, and, as a result, was admissible pursuant to his ruling.

[72] C.L. then described the second discrete incident in China. According to C.L., the appellant came into the bathroom when she was taking a shower and began to wash her back. He proceeded to hug her from behind, and she saw his penis coming out from his briefs. [page148]

[73] C.L. explained that she did not tell anyone about the abuse in China because she was afraid how she would be perceived. In addition, C.L. started to receive an allowance after the appellant touched her inappropriately, and she was unsure whether "everybody goes through [it] or is it just me?" C.L. recalled that she wanted to protect her sister and simply did not have the mental energy to fight with the appellant.

[74] The Crown subsequently directed C.L. to 2008, when C.Q. visited her family in China. C.L. confirmed an incident when the appellant became angry at her for siding with her mother, and started pulling her hair and hitting her head on the bed or the wall.

[75] As the Crown began to turn to the events in Canada, the trial judge interrupted, excused the jury, and noted that "there is a lot of editorial comments now coming out". The trial judge instructed C.L. to "listen to the questions that are being asked . . . and [to] just answer them directly".

[76] Upon the jury's return, C.L. described the 911 incident in Canada. C.L. recounted that the appellant had overheard her conversation with L.L. The appellant came into the bathroom where the sisters were, and pinched C.L.'s arm, "squeezing all of the blood out of my vein". C.L. called 911, but she recanted her allegations because C.Q. was afraid that they would get deported.

[77] C.L. testified that, in Canada, the appellant continued to enter the bedroom she shared with her sister and get into her bed. When L.L. was asleep, the appellant would lie on top of her, kiss her and move up and down on her body so that she could feel his penis. C.L. said that this occurred approximately once a week.

[78] C.L. believed that the assaults stopped when she was approximately 16 or 17 years old, when she asked the appellant what her future husband would think about his behaviour. Although the appellant warned her not to tell anyone what had happened, he did not abuse her again.

[79] C.L. confirmed C.Q.'s allegation that the appellant chopped off the corner of their living room table one night. She also confirmed that she was staying at CAMH in December 2014 when she was encouraged by a psychiatrist to report the abuse to police.

[80] C.L. proved to be a combative witness in cross-examination. At one point, the trial judge interrupted defence counsel because his exchange with C.L. was getting "heated".

[81] C.L. rejected defence counsel's suggestions that she had fabricated her allegations to make herself feel like she belonged in her family and to justify her bad grades in university. She also rejected defence counsel's suggestion that she had lied in her 911 call about the appellant's abuse of her. [page149]

The testimony of the appellant

[82] The appellant testified. He denied having abused his wife and daughter. He stated that he was fearful of his wife, C.Q., because she came from a "powerful family" in China. He also claimed that his daughter hated him because he was strict, would not permit her to date and disciplined her to make sure she did well at school. He mentioned that he was not entirely certain about why C.Q. and C.L. had made up the allegations against him, but he insisted that they were lying.

(4) Closing submissions

[83] In closing, defence counsel suggested to the jury that the complainants' allegations, both the uncharged prior discreditable conduct and the substantive offences, "never happened". C.L. had fabricated a story to explain her bad grades, to hurt her father and to establish her worth in the family. Defence counsel posited that C.Q. had made up her own stories of abuse to make C.L.'s evidence more believable. C.Q. wanted to have the appellant put in jail so that she could have sole access to the proceeds of the sale of a house that the couple owned in China.

[84] The Crown's closing recapped the evidence in order to demonstrate that the complainants' testimonies were credible and reliable. The Crown urged the jury to find that the appellant had sexually assaulted the complainants in the manner they had described.

(5) Jury instructions

[85] In his charge to the jury, the trial judge gave an additional instruction regarding the limited use of the evidence of uncharged prior discreditable conduct. He explained that the evidence of events before the appellant's move to Canada in 2009 had been adduced for a limited purpose:

The purpose is: (1) to allow you to understand the nature of and the state of the family relationship prior to the sexual assault allegations and the sexual interference allegations contained in the indictment; (2) to demonstrate [the appellant's] animus or dislike of [C.Q.] and [C.L.]; and (3) to explain why their allegations were not reported earlier.

[86] The trial judge cautioned the jury that these were the only uses they could make of this evidence. He also explained the uses they could not make of the evidence:

. . . [Y]ou cannot use the evidence of that conduct to conclude or help you conclude that the offences with which [the appellant] is actually charged, likely took place because [the appellant] is simply a person of bad character or disposition, who likely committed the offences charged because of that [page150] character or disposition. In other words, you cannot rely on that evidence as proof that [the appellant] is the sort of person who would commit the offences charged. And on that basis, infer that [the appellant] is guilty.

[87] As I will discuss below, in the circumstances of this case, the trial judge's instruction ought to have included a caution against reasoning prejudice.

F. The Jury's Verdict and Sentence

[88] The appellant was convicted on all five counts. He was sentenced to six years' imprisonment, three years consecutive in relation to each complainant.

G. The Parties' Submissions on Appeal

(1) The appellant

[89] The appellant concedes that the evidence in question had probative value in relation to three issues: (1) animus; (2) the complainants' failure to report their allegations; and (3) C.Q.'s decision to remain in the marital relationship. He submits, however, that the trial judge erred in law by focusing almost exclusively on the probative value of the evidence of uncharged prior discreditable conduct, failing to consider the potential for prejudice, particularly reasoning prejudice and failing to balance that prejudice against the probative value of the evidence.

[90] The appellant contends that in assessing the prejudicial effect of the evidence, the trial judge should have considered the volume and extent of the evidence and its impact on the jury. The evidence consumed approximately one-third to one-half of both complainants' evidence-in-chief. In addition, the allegations were unproven and spanned an eight-year period in China. The nature and the volume of the evidence, taken together with the unstructured manner in which it was presented at trial, could have distracted the jury's attention from the offences with which the appellant was charged. The evidence could have also "inflamed their passions", with the result that the appellant was tried, not on the counts in the indictment, but on his uncharged prior discreditable conduct. The appellant asserts that the trial judge's limiting instruction was insufficient to deal with reasoning prejudice. He argues that his right to a fair trial was impaired, and a new trial is now required.

(2) The respondent

[91] The Crown submits that the trial judge made no error in his analysis of the probative value and the prejudicial effect of the evidence. According to the Crown, the trial judge articulated the [page151] correct test and turned his mind to the possibility that both types of prejudice might arise. He ultimately determined that the probative value of the evidence outweighed its prejudicial effect. The Crown reminds us that the trial judge's decision is owed substantial deference.

[92] The Crown maintains that the manner in which the evidence was adduced at trial did not distract the jury. The trial was relatively brief, the evidence came from the complainants rather than from a third party, and the uncharged conduct was no more heinous than the offences with which the appellant was charged. The Crown points out that the trial judge intervened in the examinations of witnesses as needed and provided two limiting instructions to the jury, one mid-trial and the other in his final instructions. In the Crown's submission, the trial judge took all the necessary steps to ensure that the appellant's rights were not infringed. The Crown requests that the appeal be dismissed.

H. Analysis

(1) The governing principles

[93] A judge at a criminal jury trial acts as a gatekeeper to ensure that only relevant, material, and admissible evidence is put before the jury. Evidence is relevant if it tends to prove what it is offered to prove. It is material if what it tends to prove is something with which the law is concerned. And it is admissible if it meets the other two requirements, its reception does not offend an exclusionary rule of evidence, and its probative value exceeds its prejudicial effect: R. v. H. (J.), [2020] O.J. No. 937, 2020 ONCA 165, at para. 52, citing R. v. Calnen, [2019] 1 S.C.R. 301, [2019] S.C.J. No. 6, 2019 SCC 6, at paras. 107-109; R. v. T. (J.A.), [2012] O.J. No. 1208, 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 49.

[94] One of the greatest challenges faced by a trial judge is a request by the Crown to introduce evidence of an accused's uncharged prior discreditable conduct -- sometimes called "extrinsic" discreditable conduct evidence, because it is extrinsic to the conduct on which the indictment is based. In a judge-alone trial, experience and training enables the judge to appreciate the purposes for which such evidence is proffered, and to self-instruct on its limited use(s). A jury obviously does not have the benefit of that training and experience to assist them in discriminating between permitted and prohibited logical thought processes when judging the conduct of an accused. The jury can all too readily use the evidence for an improper purpose. For example, the jury may conclude that the accused is a bad person who did bad things and ought to be punished, whether or not they committed the offences [page152] with which they are charged. And, as will be described below, there is a risk that evidence of uncharged allegations will confuse the jury and cause them to lose track of what the trial is all about -- whether the prosecution has proven each of the counts on the indictment beyond a reasonable doubt.

[95] For these reasons, a trial judge must take great care to ensure that such evidence goes before the jury only after a determination that its probative value outweighs its prejudicial effect. If the evidence is admitted, the jury must be instructed, in an appropriate and timely way, about the proper and improper use(s) of the evidence. In order to make that distinction, the jury must be clearly informed of the purpose for which specific pieces of evidence may be used.

[96] The starting point, however, is that evidence of the accused's uncharged prior discreditable conduct is presumptively inadmissible. This is due to the exclusionary rule against evidence of general propensity, disposition, or bad character: Handy, at para. 36. See also R. v. Morris, 1983 28 (SCC), [1983] 2 S.C.R. 190, [1983] S.C.J. No. 72, at pp. 201-202 S.C.R., per Lamer J. (dissenting, but not on this point); R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, at pp. 367-68 S.C.R.; R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, [1990] S.C.J. No. 31, at pp. 734-35 S.C.R.; and R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, at para. 40. Evidence of general propensity, disposition, or bad character is inadmissible if it only goes to establishing that the accused is the type of person likely to have committed the offence(s) in question: Handy, at para. 53, citing Arp, at para. 41. See also T. (J.A.), at para. 51; R. v. O. (R.), [2015] O.J. No. 6170, 2015 ONCA 814, 333 C.C.C. (3d) 367, at para. 15. Such evidence is also generally inadmissible when it is tendered to establish character, as circumstantial proof of the accused's conduct: Handy, at para. 31; R. v. Luciano, [2011] O.J. No. 399, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 221.

[97] This rule of exclusion does, however, yield on "exceptional" occasions: Handy, at paras. 60, 64. Evidence of uncharged prior discreditable conduct may be admitted if it is relevant, material and the Crown establishes, on the balance of probabilities, that its probative value outweighs its prejudicial effect: H. (J.), at para. 54, citing Handy, at para. 55; Luciano, at para. 222; and T. (J.A.), at para. 51. In H. (J.), at paras. 56-60, Watt J.A. described the procedure to determine the admissibility of such evidence on a Crown application.

[98] The assessment of the probative value of the evidence requires the trial judge to consider: (a) the strength of the evidence that the extrinsic acts in question occurred; (b) the connection between the accused and the similar acts, and the extent to [page153] which the proposed evidence supports the inferences the Crown seeks to make (sometimes referred to as the "connectedness" between the similar act evidence and the "questions in issue"); and (c) the materiality of the evidence -- that is, the extent to which the matters the evidence tends to prove are live issues in the proceeding: see David Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at pp. 74-75.

[99] The second and third factors must not be glossed over. The Crown must be prepared to establish exactly what inferences it will be asking the jury to draw from the evidence, and the extent to which the evidence tends to permit those inferences.

[100] Defence counsel should also be prepared to identify, to the extent possible, the issues that will actually be in play at trial. This may serve to eliminate the Crown's need to adduce the evidence, or to limit the evidence required.

[101] Having assessed the probative value of the evidence, and the issues to which it is relevant, the trial judge must examine the prejudicial effect of the proffered evidence and balance it against its probative value. It is well-established that "prejudice" in this context comes in two forms: so-called "moral prejudice" and "reasoning prejudice".

[102] Moral prejudice refers to the risk that the jury may convict the accused on the basis of "bad personhood": R. v. McDonald, [2017] O.J. No. 3498, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 83, citing Handy, at paras. 31, 71, 100 and 139. That is, not on the basis of the evidence, but on the basis that the accused is a bad person who is likely to have committed the offences with which they are charged. There is a related concern that the jury may punish the accused for their "prior bad acts" as revealed in the evidence of the uncharged prior discreditable conduct: R. v. D. (L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111, [1989] S.C.J. No. 82, at pp. 127-28 S.C.R.

[103] Reasoning prejudice, in contrast, diverts the jury from its task, and describes the risk that the jury will give the evidence more weight than is logically justified: see R. v. Bent, [2016] O.J. No. 5103, 2016 ONCA 651, 342 C.C.C. (3d) 343, at para. 46; R. v. Lo (2020), 152 O.R. (3d) 609, [2020] O.J. No. 4302, 2020 ONCA 622, at para. 111; Handy, at para. 31. Reasoning prejudice may include the following:

-- The jury becomes confused by evidence extrinsic to the charges on the indictment. Specifically, the jury "may become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations from their task of deciding carefully each charge one by one": R. v. Shearing, [2002] 3 S.C.R. 33, [2002] S.C.J. No. 59, 2002 SCC 58, at para. 68; [page154]

-- The jury is distracted from the actual charges, and confused about which evidence relates to the crime charged and which evidence relates to the "similar fact" incidents: Handy, at para. 100;

-- The evidence awakens in the jury sentiments of revulsion and condemnation that deflect them from "the rational, dispassionate analysis upon which the criminal process should rest": Calnen, at paras. 176, 180, per Martin J. (dissenting in part, but not on this point);

-- The accused cannot properly respond to the extrinsic evidence due to the passage of time, surprise, and/or the collateral nature of the inquiry: Paciocco, at p. 70; and

-- Trial time is consumed by unduly focusing on whether the similar acts occurred: Handy, at paras. 83, 144. See also R. v. Grant, [2015] 1 S.C.R. 475, [2015] S.C.J. No. 9, 2015 SCC 9, at para. 39.

[104] In assessing the prejudicial effect of the evidence, the trial judge may consider a variety of factors, including: (a) how discreditable the conduct is -- the more inflammatory and egregious the conduct, the greater the likelihood of moral prejudice: Lo, at para. 114, citing Handy, at paras. 83, 100 and 140; (b) the extent to which the evidence may support an inference of guilt based solely on bad character; (c) the extent to which the evidence may confuse the jury; and (d) the ability of the accused to respond to the evidence: Luciano, at para. 233, citing R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, [1997] O.J. No. 3042 (C.A.), leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 524.

[105] After considering the prejudicial effect of the evidence, the trial judge is required to engage in the familiar task of balancing the prejudicial effect against the probative value.

(2) Uncharged prior discreditable conduct evidence in intimate partner violence cases

[106] As the trial judge accurately observed, evidence of uncharged prior discreditable conduct has frequently been admitted in domestic violence cases to describe the nature of the parties' relationship, sometimes referred to as "context" or "background". It is on this basis that the evidence is said to have probative value.

[107] Evidence of uncharged prior discreditable conduct has also been used to establish "animus", which may be relevant to both the actus reus and the mens rea of the offence(s). As described by the authors in the Law of Evidence, at p. 90: [page155]

Where such evidence demonstrates a "strong disposition" to act violently or sexually towards the victim, it is not being used to prove the bad character of the accused but, as R. v. Batte explained, to support the specific inferences that the accused is disposed to act violently (or sexually) towards the victim and that the accused had that disposition on the occasion in question.

[108] In H. (J.), at paras. 54-55, Watt J.A. observed that the exercise of whether or not to admit the uncharged prior discreditable conduct evidence in domestic assault trials is inherently case-specific. He described this as follows:

Whether the evidence will be admitted by exception or excluded under the general rule is a function of the circumstances of each case. These circumstances determine where the balance as between probative value and prejudicial effect will settle, not some prefabricated rule or exclusive list of exceptions: J.A.T., at para. 54.

Despite the absence of any such rule or list of exceptions, evidence of uncharged disreputable conduct has often been received in prosecutions alleging assaultive behaviour in a domestic relationship, including charges of sexual assault. Among the issues upon which this evidence has been admitted are these:

i. as part of the narrative of relevant events;

ii. to provide context for other evidence;

iii. to facilitate understanding of the nature of the relationship between the principals;

iv. to demonstrate motive or animus on the part of the accused for committing the offences;

v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and

vi. to rebut a claim of fabrication.

See also F. (D.S.), at pp. 616-17 O.R.; R. (B.S.), at para. 38.

[109] If evidence of uncharged prior discreditable conduct has probative value, for one of the reasons described above, and is admitted, the trial judge is required to instruct the jury on its use. That instruction should identify the evidence in question, and explain the permitted and prohibited uses of the evidence: R. v. Largie (2010), 101 O.R. (3d) 561, [2010] O.J. No. 3384, 2010 ONCA 548, at para. 107, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 460, [2011] S.C.C.A. No. 119.

[110] Ultimately, the trial judge's balancing of the probative value and the prejudicial effect of the evidence is entitled to significant deference, absent an error in law or principle, a misapprehension of material evidence, or a decision that is plainly unreasonable: Lo, at para. 116, citing R. v. Araya, [2015] 1 S.C.R. 581, [2015] S.C.J. No. 11, 2015 SCC 11, at paras. 31, 38; Shearing, at para. 73. See also R. v. James (2006), 2006 33664 (ON CA), 84 O.R. (3d) 227, [page156] [2006] O.J. No. 3990 (C.A.), at para. 33, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 234.

[111] There may be situations where, having assessed the prejudicial effect of the proposed evidence, the trial judge determines that the evidence is so prejudicial that it must be excluded in its entirety. If, however, the trial judge determines that the probative value of the evidence outweighs its prejudicial effect, then the trial judge is required to take measures to minimize the prejudicial effect of the evidence and to prevent its misuse. In addition to a limiting instruction, there are several options.

[112] The trial judge does not have to admit all the evidence tendered by the Crown. As the trial judge here noted, one "must consider whether the issue to be proven by the evidence can be established by evidence of a lesser prejudicial nature": see Handy, at para. 83. The trial judge may thus limit the volume and extent of evidence that the Crown is permitted to adduce.

[113] In addition, or alternatively, the trial judge may admit the evidence, but only on the condition that it is edited, or it is adduced in a more restricted form, such as a statement or through excerpts of evidence at the preliminary hearing: see Paciocco, at p. 95, referring to Shearing, at para. 142; R. v. McLean, 2002 11684 (ON CA), [2002] O.J. No. 4836, 170 C.C.C. (3d) 330 (C.A.), at para. 20.

(3) Application of the principles

[114] While evidence of uncharged prior discreditable conduct has been routinely and properly admitted in cases of intimate partner violence, this is not by way of a categorical exception to the presumptive inadmissibility of such evidence: see H. (J.), at para. 55. Its well-known dangers must be kept front and centre in a case-specific analysis, balancing the probative value and the prejudicial effect of the evidence. This analysis requires a close look at the evidence the Crown proposes to admit, the issues to which it will be directed, and the manner in which it will be presented.

[115] Although the trial judge acknowledged the need to assess both moral prejudice and reasoning prejudice, and found that the evidence was undoubtedly prejudicial, he did not actually consider the nature and extent of the reasoning prejudice that could arise, or balance that prejudice against the probative value of the evidence. Returning to the factors identified earlier in the assessment of the prejudicial effect of the evidence of uncharged prior discreditable conduct, we see that: (a) the evidence was highly discreditable, and included the alleged sexual assault of C.Q. when she was recovering from childbirth, a physical assault of C.L. as a young child, and multiple sexual assaults of both C.Q. and C.L. in China; (b) the evidence gave [page157] rise to significant moral prejudice, and a risk that the jury would infer the appellant's guilt based on bad character; (c) the evidence introduced the real risk of reasoning prejudice by confusing the jury about which acts the appellant was being tried for; and (d) the evidence limited the appellant's ability to respond, because the events occurred many years earlier in China, and any attempt to challenge the complainants' allegations would likely have simply emphasized them in the jury's eyes.

[116] A proper consideration of the evidence and its potential prejudicial effect should have led the trial judge to consider whether there were ways in which to mitigate its impact while preserving its probative value. It might have persuaded him to give a more timely and effective mid-trial instruction that prepared the jury for the reception of the evidence, explained how the evidence should be used, and cautioned them against its misuse.

[117] As the trial progressed, however, the prejudice was amplified by the manner in which the Crown presented the evidence -- priming the jury with a dramatic opening statement, and front-end loading the trial with C.Q.'s lengthy and graphic recitation of various sexual and physical assaults allegedly perpetrated by the appellant in China, distinct in time from the offences with which the appellant was charged.

[118] I agree with the submission of appellant's counsel that the volume and extent of this evidence was significant. Much of it went well beyond the parameters contemplated by the Crown's application and the trial judge's ruling. Moreover, the mid-trial instruction (which occurred after some of the most prejudicial evidence had been admitted) did not provide the jury with an adequate framework in which to understand the permitted use of this evidence, and to protect against its improper use. Neither the mid-trial instruction nor the trial judge's final instruction identified the serious risk of reasoning prejudice in this case, or explained to the jury how it could be avoided.

[119] I conclude that the trial judge's failure to assess and balance the prejudicial effect of this evidence was an error of law. It allowed the probative value to overwhelm his analysis, and led to a body of highly prejudicial evidence being admitted at trial, unfiltered and uncontrolled. The prejudice was significant, in part due to the Crown's failure to lay an appropriate foundation for the jury's reception of the evidence, and in part due to the manner in which the evidence unfolded at trial. There is a real risk that the jury convicted the appellant for his uncharged prior discreditable conduct, and not for the offences with which he was charged. [page158]

[120] The risk was not attenuated by the jury instruction, which was focused on moral prejudice rather than reasoning prejudice. In the result, a new trial is required.

I. Additional Observations

[121] Experience shows that trials all too often go off the rails due to the admission of unnecessary or excessive evidence of an accused's prior discreditable conduct. As this appeal demonstrates, such evidence can prolong the trial, confuse the jury and result in unfairness to the accused. The benefit of hindsight permits me to suggest how some of the challenges in this trial might have been addressed.

(1) The responsibility of the Crown

[122] In considering whether to proffer evidence of prior discreditable conduct, the Crown must start from the principle that such evidence is presumptively inadmissible, and its introduction is exceptional. It must be confined to cases in which the evidence is necessary, and where its probative value exceeds its prejudicial effect, having regard to both moral prejudice and reasoning prejudice. Vague terms, such as "narrative", "context" and "background", cannot be permitted to serve as a substitute for a careful assessment of how the evidence will assist the jury in understanding other admissible evidence, what inferences the jury may properly draw from the evidence, and how impermissible reasoning can be prevented.

[123] The Crown must also provide a specific foundation for the admission of the evidence, to enable the trial judge to appreciate the nature and scope of the evidence it proposes to adduce, and to assess whether the probative value of the evidence exceeds its prejudicial effect.

[124] In this case, the trial judge may not have had the benefit of a full evidentiary record on the Crown's application to admit evidence of the appellant's uncharged prior discreditable conduct. There is no reference to a record in the Crown's factum in the court below, no reference to it in the parties' submissions on the voir dire, and no reference to it in the trial judge's reasons. An appropriate record could have included extracts from the complainants' evidence at the preliminary hearing or possibly other prior statements. This might have prompted the trial judge to press the Crown on whether the volume and extent of evidence could have been reduced, or whether the evidence could have been adduced in a more controlled manner.

[125] If the evidence is admitted, the Crown must take care to control the flow of the evidence so that it comports with the trial [page159] judge's ruling and minimizes the risk of prejudice. It is apparent from the trial record in this case that the evidence of both complainants went well beyond the scope of the trial judge's ruling.

(2) Eliminating or minimizing prejudicial effect

[126] Both the Crown and defence must turn their minds to whether the necessity for the evidence can be eliminated, or its prejudicial effects reduced, by appropriate admissions or undertakings. The trial judge should press them to explore alternatives to the admission of the evidence, or to reduce its impact.

[127] In this case, the trial judge found that the evidence was admissible for three reasons: (a) to prove animus and the nature of the relationship; (b) to explain why the complainants had not reported their allegations; and (c) to explain why C.Q. had remained in the marital relationship. In response to the Crown's application, defence counsel stated that he was not intending to cross-examine the complainants on why they had not reported the abuse earlier or why C.Q. had remained in the marital relationship. This commitment, had it been pursued, might have undermined a substantial part of the prosecution's rationale for the admission of the evidence.

[128] Moreover, as the evidence unfolded at trial, both complainants' explanations came up naturally and did not require reference to the prior abuse. C.Q. only discovered that non-consensual marital sex was illegal in Canada when she read a brochure at CAMH, which led to her reporting the abuse. And C.L. did not disclose the abuse because she was afraid that others would believe she was "dirty" and because of her mother's fear they would be deported. An appropriate focus on eliminating or reducing prejudice might have foreseen this line of questioning and obviated the need for much of the contentious evidence.

(3) Jury instructions

[129] If defence counsel's concessions and the complainants' carefully tailored evidence were insufficient to address the three reasons for which the Crown sought to adduce evidence of the appellant's prior discreditable conduct, then jury instructions could have served as an appropriate caution against inappropriate reasoning. For example, the trial judge could have instructed the jury that (a) they were not allowed to draw an adverse inference from the complainants' delay in reporting: see R. v. D. (D.), [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44, 2000 SCC 43; and (b) they could not rely on the discredited myth that complainants always leave their abusive relationships. [page160]

[130] The same applies to the trial judge's concern that without the evidence of prior abuse, the jury might speculate about why the abuse only began in Canada. If impermissible and speculative reasoning was a concern, then the better course of action was to explain that such reasoning was inappropriate, that the jury was not to speculate, and that they were to decide the case solely on the evidence.

[131] The trial judge might have invited the Crown to consider at what point in the trial the evidence was to be introduced, how it was to be introduced, and whether a contemporaneous mid-trial instruction would have been advisable, either before or immediately after the jury heard the evidence. Such an instruction might have, for example: (a) identified specifically, by date and with a brief synopsis, the uncharged prior discreditable conduct; (b) identified the jury's permitted use of the evidence; and (c) identified the prohibited use of the evidence. In connection with the prohibited use of the evidence, the trial judge might have instructed the jury that they could not convict the appellant on the basis of "bad personhood" (i.e., "moral prejudice"), but also that they could not convict the appellant because they wanted to punish him for his uncharged prior discreditable conduct (i.e., "reasoning prejudice"). He might have instructed them that their task was to "keep their eye firmly on the ball" -- namely, to determine whether the appellant was guilty, beyond a reasonable doubt, of the counts in the indictment, and not whether he was guilty of the uncharged prior discreditable conduct.

[132] Finally, great care must be taken in crafting final instructions to explain to the jury how they are to use, and how they are not to use, the evidence. It is not clear to me what the jury was expected to take from the instruction that the purpose of the evidence was to allow them to understand the nature and state of the family relationship prior to the allegations at issue, and to demonstrate the appellant's "animus or dislike" of the complainants. If the evidence is being introduced as "narrative" -- that is, as evidence that was not relevant and material in its own right, but to assist the jury in understanding admissible evidence -- then it is incumbent on the trial judge to clearly instruct the jury on exactly how the evidence is to be used.

J. Disposition

[133] For these reasons, I would allow the appeal and order a new trial.

Appeal allowed.

Notes

[1] Ms. Kranjc was not the trial Crown, and Mr. Halfyard was not defence counsel at trial.

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