Court File and Parties

Ontario Court of Justice

Date: 2017-06-15

Court File No.: Brampton 3111 998 15 1443

Between:

Her Majesty the Queen

— and —

Justin Jack

Before: Justice G.P. Renwick

Heard on: 15 June 2017

Admissibility Ruling released on: 15 June 2017

Counsel:

• R. Levan, counsel for the Crown
• P. Erskine, counsel for the defendant Justin Jack

Decision

RENWICK J.:

Introduction

[1] By way of a pre-trial application, the prosecutor applies to adduce into evidence prior incidents of violence involving the complainant and the defendant which precede the charges of assault and a threat before this Court.

[2] The application was made on the basis of representations by the prosecutor, on consent of the defendant. No actual evidence was taken on the application.

Initial Issue

[3] During submissions, the Respondent defendant took issue with the basis for the application and whether or not the Court could determine the applicability of the principles stated in R. v. D.S.F., [1999] O.J. No. 688 (C.A.), given that there was a paucity of evidence to conclude that the relationship between the parties was sufficient for this type of application. Simply put, there was no evidence that the parties were anything more than acquaintances or friends and without an understanding that they had been in a romantic relationship, the application could not succeed.

[4] I heard in submissions, to which no objection was taken, that the defendant and the complainant had a child together. I also heard that one of the prior incidents, which is the subject matter of count one of the Information,[1] involved an argument between the parties that arose because the defendant had women guests and to paraphrase the submissions: 'the complainant will say [if the evidence is admissible] that he [the defendant] poured beer over her head, grabbed her by the arm and pulled her to the bed and told her to sit there until he let her leave.'

[5] On the basis of the fact that the parties share a child together and those bare allegations, I am prepared to make a finding on a balance of probabilities that the complainant and the defendant were in an intimate partner relationship at some point in time, and accordingly, the principles from D.S.F. possibly apply.

Analysis

Onus and Threshold

[6] On the substance of the application the Respondent had no substantive submissions. Nonetheless, I must determine whether or not the proposed evidence is admissible. The onus rests with the prosecution to establish that the evidence is admissible on a balance of probabilities. To meet this threshold for admissibility the prosecution must establish that the alleged prior discreditable conduct has probative value which exceeds any potential prejudicial effect.

The Four-Part Test

[7] In R. v. B.(L.); R. v. G.(M.A.), 116 C.C.C. (3d) 481 (Ont. C.A.) at p. 490 Charron J.A. set out the principles which govern the admissibility of evidence of discreditable conduct:

Because of the inherently prejudicial nature of evidence of discreditable conduct it is subject to a general exclusionary rule unless the "scales tip in favour of probative value" (R. v. Morin, [1988] 2 S.C.R. 345, 44 C.C.C. (3d) 193). The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?
2. If so, is the proposed evidence relevant and material?
3. If relevant and material, is the proposed evidence discreditable to the accused?
4. If discreditable, does its probative value outweigh its prejudicial effect?

This test was adopted and applied in D.S.F., and I accept that it represents the state of the law in Ontario and I am bound to apply this test to the proposed evidence in this case.

Is the Conduct of the Proposed Evidence That of the Defendant

[8] Given that there were no substantive submissions made by the Respondent, and again, in light of the representations of the Applicant that the subject matter of the earlier incidents involved the complainant and the defendant, and count one on the Information, which includes the parties by name and is said to have involved the same proposed evidence for at least one of the earlier incidents, I am prepared to find on a balance of probabilities that the two earlier incidents which form the subject matter of the application involve conduct of the defendant.

Is the Proposed Evidence Relevant and Material

[9] Legal relevance is the increased likelihood that a particular fact exists on the basis of a proposed piece of evidence than would otherwise be the case in the absence of that piece of evidence. If a state of affairs is more likely the case on the basis of the proposed evidence than without it, the proposed evidence is legally relevant to the proof of that state of affairs.

[10] Materiality concerns the issues at bar. If it matters not to the proof of the allegations before the Court that a fact exists, it is not a fact in issue, nor is it material to the determination of the cause.

[11] Evidence which is relevant but immaterial wastes limited judicial resources. It seeks to prove matters that are inconsequential. Evidence which is material but irrelevant in the sense that it does not further the proof for which it is advanced does not assist the trier to determine the issues involved.

[12] The prosecutor submits that the prior incidents are material and relevant in respect of the following:

i. The proposed evidence will fill in a narrative context within which to understand the relationship between the parties;

ii. The proposed evidence will demonstrate an on-going animus of the defendant towards the complainant, which I note is material in respect of the possible defences of consent, accident, or de minimus;

iii. The proposed evidence may explain any delay in reporting the incidents; and

iv. The proposed evidence provides a marker to assist in the overall credibility assessment of the complainant.

[13] These are all appropriate uses of prior discreditable conduct in intimate partner violence prosecutions: D.S.F., at paras. 19-27.

[14] In a case which was cited by our Court of Appeal, R. v. S.B., [1996] O.J. No. 1187 (G.D.), Mr. Justice Hill held that this type of evidence could assist a trier of fact in the following way:

Violence between strangers, as a general rule, involves a narrative of circumstances of limited temporal duration. Violence within a relationship, spousal or otherwise, necessarily, and frequently, involves the complex dynamics and subtleties of the personalities of the principals within the context of their individual and shared experiences, understandings, roles and emotions.

While submissions of admissibility on the basis of mere narrative can, of course, be abused, to deny the triers-of-fact complete information regarding the prior history of the parties runs the risk of presenting an entirely sterile and antiseptic record devoid of the realities of the individual circumstances of the participants.[2]

[15] I am inclined to the view that this proposed evidence may also assist to support a defence of consent (for example: there has always been a give and take physical relationship with incidental touching that was understood as consensual between the parties), or a mistaken belief in consent. I note that the Court in S.B. quoted a case from the British Columbia Court of Appeal, R. v. Ryback, [1996] B.C.J. No. 285 which reads:

…pre-charge conduct which tended to show an innocent state of mind on the appellant's part would also be admissible. If the pre-charge evidence tended to show that there had previously been a friendly relationship between the two, or that the complainant had encouraged the appellant in his advances so that the appellant believed his attentions were welcomed, it would be difficult to conceive a sound reason for excluding the evidence. It would clearly be relevant to showing an innocent state of mind and the absence of mens rea.[3]

Is the Proposed Evidence Discreditable

[16] I am prepared to accept that the proposed evidence may tend to reflect upon the character of the defendant in a negative way and that is why the Respondent opposes the admissibility of this evidence.

Does the Proposed Evidence have Sufficient Probative Value to Outweigh its Prejudicial Effect

[17] This issue is at the heart of this application.

[18] The parties acknowledge that there is a lower risk of the potential on the part of the trier of fact to be distracted, have its passions aroused, seek to punish the defendant for extra-judicial conduct (i.e., offences or conduct that is not before the court), or for impermissible propensity reasoning where the trier is a judge rather than a jury. Nonetheless, the potential for prejudice remains. A trier of fact must be instructed to specifically avoid concluding that the defendant is a bad person, or someone more likely to have committed the offences because of his or her prior discreditable conduct.

[19] There is significant probative value to the proposed evidence, if it tends to establish the issues for which it will be lead.

[20] On the basis of the foregoing analysis, I am satisfied on a balance of probabilities that the proposed evidence is admissible. I adopt the remarks found at the end of the S.B. decision:

In terms then of the presentation of the history of prior [marital] disharmony and abuse, the Crown may lead the evidence without disproportionate emphasis in terms of detail and trial time devoted to such subject matter compared to the evidence which relates directly to the charged offences.[4]

[21] The Application is granted.

Released: 15 June 2017

Justice G. Paul Renwick

Footnotes

[1] It should be noted that at the outset of the trial the prosecutor recognized that its election to proceed summarily, indicated many months before the trial, precluded advancing the allegation of an assault which was said to have occurred two or more years before the charges were laid. However, the prosecutor sought to include that allegation as a part of the application in question.

[2] S.B., supra, at paras. 30-31.

[3] S.B., supra, at para. 33.

[4] S.B., supra, at para. 58.