The appellant was convicted of rape and assault against his niece, who had been in his care as a child.
At trial, evidence from the complainant's brothers regarding the appellant's violent control and abuse of other children in the household was admitted without specific jury instructions on its limited permissible use.
The Supreme Court of Canada held that while the evidence was admissible to rebut the defence of innocent association and explain the delay in reporting, the trial judge's failure to instruct the jury against using it as propensity evidence was a reversible error.
The Court declined to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding that the verdict would not necessarily have been the same had the jury been properly instructed, and ordered a new trial.
