CITATION: R. v. Hong, 2015 ONSC 4865

COURT FILE NO.: 13325/13

DATE: 2015-08-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIN WAI HONG, MASON GILLARD-GATZA, NATHANIEL CAIN and RAPHAEL GUERRA

Defendants

COUNSEL:

Ronald Davidson and Lucas O’Neil, for the Crown

Michael Strathman for Tin Wai Hong

Stephen T. Lyon for Mason Gillard-Gatza

Anthony G. Bryant and Karen E. Symes for Nathaniel Cain

David G. Bayliss for Raphael Guerra

HEARD: July 27-28, 2015

RULING ON applications involving propensity evidence

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

BOSWELL J.

I. INTRODUCTION

[1] Four years ago four young men from Scarborough travelled together to Minden to rip off a local pot dealer. Raphael Guerra was the driver. Nathaniel Cain, Tin Wai Hong and Mason Gillard-Gatza were his passengers.

[2] The pot dealer was a young man named Justin McKelvey. He lived at 1028 South Lake Road. Mr. Guerra pulled his car to a stop along a darkened side street off South Lake Road just east of the target house. He waited with the car while his companions put on masks and made their way to the house, one armed with a baseball bat. Once inside, the intruders encountered two occupants: Mr. McKelvey and his friend, Ryan Kennedy. They were watching sports highlights on television. Mr. Kennedy was bludgeoned to death within minutes. Mr. McKelvey was being beaten when someone unexpectedly pulled into his driveway, startling the intruders, who fled. They made off with four pounds of marijuana and a little bit of money.

[3] The police caught up with the intruders in relatively short order and charged them all with first degree murder and attempted murder. There is no dispute that the police got the right guys. The trial is not a “whodunit”. It is about what offences, if any, the accused are culpable for.

[4] The Crown’s case is in, as are the cases of Mr. Hong and Mr. Gillard-Gatza. Mr. Cain is in the on-deck circle. He has signalled an intention to testify. But he has a criminal record which includes, amongst other things, five prior convictions for assault. He seeks an order restricting the extent to which he may be cross-examined on his criminal record.

[5] In response to Mr. Cain’s application, Mr. Gillard-Gatza’s counsel filed a motion for leave to adduce evidence of prior disreputable conduct on the part of Mr. Cain, including the underlying circumstances of some of the prior assault convictions. The Crown also moved for leave to adduce evidence of prior disreputable conduct on the part of Mr. Cain, including the underlying circumstances of the assault convictions, but also some additional violent conduct that Mr. Cain has allegedly been involved in while in custody on the charges now before the court.

[6] The applications engage similar principles and were argued together. At issue, ultimately, is to what extent Mr. Cain may be cross-examined on bad character evidence should he follow through with his stated intention to testify?

A Word About Terminology

[7] The applications before the court address the admissibility of evidence tending to demonstrate that Mr. Cain has a propensity to act in a certain way, be it to flout the law generally, or to behave violently. The evidence includes Mr. Cain’s criminal record, some of the underlying facts and circumstances of his convictions, as well as other violent conduct he has allegedly engaged in while in custody awaiting the completion of this trial. The evidence has at times been referred to as “bad character evidence” and at other times as “evidence of prior disreputable conduct”. These terms are regularly used by counsel interchangeably. I am going to use the term “propensity evidence” to describe the general nature of the evidence in issue.

II. CONTEXT

[8] Some limited context is required to understand the live issues at trial and to make sense of the issues engaged by the applications. To put the applications into context, I will first outline the Crown’s theory of the case. I will then describe the live issues associated with the essential elements the Crown must prove. Next, I will briefly review some of the evidence the court has heard regarding the live issues as they relate specifically to Mr. Cain. Finally, I will outline some of the evidence that Mr. Cain is expected to adduce in his defence. When I have finished providing the context in which the applications were argued, I will turn to a consideration of the propensity evidence on offer – including Mr. Cain’s criminal record – and the respective positions of the parties as to its admissibility.

The Crown’s Theory of the Case

[9] The Crown’s theory is that the defendants travelled together from Scarborough to Minden with the intention of committing a home invasion/robbery and with a plan to leave no witnesses alive. In other words, the Crown asserts that Mr. Kennedy’s death was a planned and deliberate murder and that the attack on Mr. McKelvey would ultimately have resulted in his death had it not been interrupted.

[10] The Crown also asserts that there is an alternate route to a verdict of first degree murder against the three accused who were inside Mr. McKelvey’s residence. In particular, the Crown says that the evidence demonstrates that Mr. Kennedy was killed at a time when he was unlawfully confined; his hands duct-taped behind his back. Pursuant to s. 231(5)(e) of the Criminal Code, murder is classified as first degree when committed in the course of certain defined offences, unlawful confinement – or attempted unlawful confinement – being one of them.

The Live Issues

[11] Some aspects of the Crown’s case are not in dispute. Identity, for instance, in terms of who was inside the McKelvey residence, is not in issue. Nor for that matter is culpability generally, save in respect of Mr. Guerra. The three accused who entered the residence concede that they are guilty of some offence. It is their level of culpability that is in issue. There is similarly no dispute that one or more of the intruders caused Mr. Kennedy’s death or that the death was caused unlawfully. Moreover, there is no dispute that Mr. Kennedy’s hands were duct-taped behind his back at some point during the home invasion.

[12] Other aspects of the Crown’s case are very much in dispute. These live issues include:

(a) Causation: who struck the fatal blows to Ryan Kennedy? More to the point with respect to this application, did Mr. Cain strike any of the blows that caused or contributed significantly to the death of Ryan Kennedy?

(b) Participation: what specific roles did each accused play during the course of the home invasion? Again, what, if any, role did Mr. Cain play in the killing and/or the unlawful confinement? And,

(c) Intention. Was this a home/invasion robbery that went awry? Or was it something more, as the Crown suggests? Did Mr. Cain intend that Mr. Kennedy and/or Mr. McKelvey be killed?

The Evidentiary Record to Date

[13] The jury has heard evidence from several sources about the blows inflicted on Ryan Kennedy:

(a) Mr. Gillard-Gatza gave a statement to the police shortly after his arrest. In that statement he said that Mr. Cain struck Mr. Kennedy over the head with the baseball bat at least twice. To be clear, this is not admissible evidence against Mr. Cain;

(b) Mr. Gillard-Gatza also testified at trial. But in his trial testimony, he said he is the one that struck Mr. Kennedy over the head with the baseball bat. He described hitting him in the head at least twice and knocking him out;

(c) In both his statement and trial testimony, Mr. Gillard-Gatza said that he attempted to duct-tape Mr. Kennedy’s hands while he was laying on the ground unconscious. He said he was having difficulty and Mr. Cain picked up a pellet rifle that happened to be present in Mr. McKelvey’s living room and hit Mr. Kennedy in the head with the butt end. At trial he described the force of the blow as “a nudge”. Unlike the situation with Mr. Gillard-Gatza’s out-of-court statement to the police, his trial testimony is admissible evidence as part of the Crown’s case against Mr. Cain;

(d) Mr. Cain also gave a statement to the police after his arrest. He claimed that Mr. Gillard-Gatza hit Mr. Kennedy in the head with the baseball bat. He said that Mr. Hong kicked Ryan Kennedy in the head and subsequently grabbed the pellet rifle and, while holding the barrel, swung the stock end of the pellet gun into Mr. Kennedy’s head, like a golf swing. Again, Mr. Cain’s out-of-court statement is not admissible against any of his co-accused. But it is admissible in the Crown’s case against Mr. Cain, both as substantive evidence and for the purpose of assessing the credibility of any testimony Mr. Cain may give. Mr. Cain, it should be noted, denied hitting Ryan Kennedy himself, other than with a little stick he said he found in the yard on the way into the house. He said the stick exploded on impact;

(e) Justin McKelvey testified and said that he and Mr. Kennedy were watching television when he was suddenly hit over the head and temporarily knocked unconscious. When he awoke, he saw that his friend Ryan Kennedy was lying on the floor not far from him, in a semi-conscious state. He was moaning. He was also duct-taped. Mr. McKelvey went on to say that one of the intruders – whom the jury might reasonably infer was Mr. Cain based on Mr. McKelvey’s descriptions – took the pellet rifle and drove it into Mr. Kennedy’s head with incredible force. Subsequently, one of the other intruders – whom the jury may reasonably infer was Mr. Hong – grabbed the pellet rifle and swung it like a golf club, striking Mr. Kennedy in the head with the stock end.

[14] The Crown called a forensic pathologist, Dr. Michael Polanen, to give evidence on the issue of causation. He testified that Mr. Kennedy died from brain damage caused by blunt force trauma to the head. He said the blunt force was applied by an elongated instrument and that both the baseball bat and the butt end of the pellet rifle are properly characterized as elongated instruments. He could not say which specific blow(s) caused death; only that death ensued as a result of a combination of blows.

[15] There is no admissible evidence against Mr. Cain to the effect that he wielded the baseball bat. There is conflicting evidence about whether he struck Mr. Kennedy in the head with the pellet rifle and conflicting evidence about the level of force utilized if he did.

[16] There is evidence that Mr. Cain participated in the unlawful confinement of Mr. Kennedy. In his statement to the police, Mr. Cain said that he was assigned as the “tape man”. He said he duct-taped Ryan Kennedy.

[17] As I noted, Mr. Gillard-Gatza testified that he attempted to tape Ryan Kennedy but was having difficulty. At that point Mr. Cain, he said, struck Mr. Kennedy in the head with the pellet rifle. Mr. Gillard-Gatza then noticed how much blood there was around Mr. Kennedy’s head and he got upset and could not finish the tape job. He did not say who did finish it, as between Mr. Hong and Mr. Cain.

[18] All this is to say that there is available evidence upon which a jury may conclude that Mr. Cain struck Mr. Kennedy with one or more blows that caused or contributed to his death and that he did so at a time when Mr. Kennedy was unlawfully confined or during an attempt to unlawfully confine him. This evidence is, obviously, contentious.

[19] Mr. Cain’s state of mind during the commission of the offences is a crucial issue for the jury to determine, if they can. The Crown relies on circumstantial evidence – largely, but not exclusively associated with the manner in which the offences were committed – to support the assertion that he had an intention to kill during the commission of the offences. In his statement to the police, Mr. Cain denied ever having had such an intention.

The Anticipated Evidence in Mr. Cain’s Defence

[20] Mr. Cain has signalled an intention to testify. He has also served notice of an intention to adduce expert evidence from his cardiologist, Dr. Jack Colman.

A Caveat

[21] A somewhat difficult feature of these applications is the limited evidentiary record available to the court regarding the evidence that Mr. Cain intends to adduce. The probative value of his criminal record and the relevance and probative value of any other propensity evidence depend, in significant part, on the evidence Mr. Cain adduces by way of a defence.

[22] In these circumstances, the court has a number of options available. One option is to conduct a voir dire, where Mr. Cain reveals the evidence he intends to call, either through calling witnesses, or through an agreed statement of facts. This sort of voir dire was approved by the Supreme Court in R. v. Underwood, 1998 839 (SCC), [1998] 1 S.C.R. 77. It is a tricky procedure because generally a defendant has no obligation to disclose his case to the Crown. Lamer C.J.C, as he then was, emphasized in Underwood that a voir dire conducted in this context is not intended to be defence disclosure and does not create any independent rights in the Crown. Moreover, it would not entitle the Crown to “deeply probe” the case of the defendant.

[23] In their factum the Crown raised the issue of holding an Underwood voir dire but they did not press the matter in oral argument. No other counsel asked that a voir dire be conducted. I did not independently press the issue principally on four grounds:

(i) For a variety of reasons, this trial simply cannot absorb further significant delays. It was supposed to be completed by the end of June. It will not be completed now until October. One juror is pregnant, with a due date of October 7. There is a strong likelihood that she will have to be discharged. The time required to receive evidence in a voir dire from Mr. Cain and, more significantly, Dr. Colman, would be prohibitive. Dr. Colman has very limited availability. Moreover, based on my experience to date with this trial, there would inevitably be time-consuming arguments about the nature and extent of any cross-examination of any witnesses called by Mr. Cain on the voir dire;

(ii) Mr. Cain gave a statement to the police shortly after he was arrested. It provides significant insight into his version of events, though obviously there is no guarantee that his testimony will remain faithful to his statement;

(iii) Mr. Cain intends to call his cardiologist to testify. A report has been delivered which is flawed, but, as I ruled on an earlier application[^1], it does provide a sufficient indication as to the evidence he is likely to give such that his evidence is not likely to catch opposing counsel by surprise. I will describe the content of the report in more detail momentarily; and,

(iv) Mr. Cain’s counsel outlined his anticipated evidence during the argument of the applications in a way that, while limited, is in my view sufficient to render a decision that counsel can reasonably rely on.

[24] Mr. Cain needs to know the case he has to meet. He naturally wants me to render a decision on these applications that is not provisional. It was ultimately Mr. Cain’s choice not to tender any evidence during the argument of the applications. Ultimately, he bears the risk that whatever order I make has a provisional character to it. I am rendering a decision based on his counsels’ representations about what his evidence, and the evidence of Dr. Colman, is expected to be. I have no reason to believe that those representations are not reliable and, so long as the evidence actually adduced does not differ materially from those representations, then this ruling will stand. Should the evidence be at variance with those representations, in a material way, then the ruling may have to be revisited.

The Anticipated Evidence, as Advised by Counsel

[25] As I indicated, Mr. Cain gave a statement to the police shortly after he was arrested. There is no indication that his evidence is likely to contradict that statement. According to his statement to the police, Mr. Cain went into the McKelvey residence carrying a roll of duct-tape and a little stick he picked up off the ground on his way inside. He denied striking either Ryan Kennedy or Justin McKelvey, save to say he hit Mr. Kennedy with the little stick, which broke. He acknowledged taping both occupants. He denied ever having an intention to kill anyone.

[26] Mr. Cain is expected to give more detailed evidence about his state of mind than what is contained in his statement.

[27] Mr. Cain has congenital heart disease. His counsel have served notice that they intend to adduce evidence from Mr. Cain’s treating cardiologist, Dr. Jack Colman. A report has been delivered by counsel that provides a very good description of the nature of Mr. Cain’s heart disease. It also gives a decent description of some of the ways in which the disease affects Mr. Cain on a day-to-day basis. On the other hand, it says nothing about how the disease may have affected Mr. Cain during the commission of the offences.

[28] Dr. Colman is expected to testify that Mr. Cain’s heart disease is complex. Fundamentally it results in poor oxygenation of his blood. Low oxygen saturation in the blood is a condition known as hypoxemia. It may readily lead to low oxygen in the tissues – a condition known as hypoxia. Sometimes, as is apparently the case with Dr. Colman’s report, the term “hypoxia” is used to describe both conditions.

[29] I understand that Dr. Colman will testify about the way in which Mr. Cain’s heart disease affects his ability to function on a day-to-day basis. He is expected to testify that Mr. Cain’s resting oxygen saturation level is less than 85%, whereas normal is 98-100%. That already low oxygen saturation level falls off significantly when Mr. Cain physically exerts himself. He is, according to Dr. Colman’s report, susceptible to exertion-induced hypoxia. I expect that Dr. Colman will testify that symptoms of hypoxia may include low tolerance for physical activity, reduced stamina, and, at times, impairment of mentation. These factors may have relevance to Mr. Cain’s defence, depending on the substance of Mr. Cain’s testimony.

[30] Given that “who did what to whom” is a live issue in this case, one might reasonably anticipate that part of Mr. Cain’s defence will be to adduce evidence that, as a result of his heart disease, he is the least likely to have participated in physical violence during the commission of the offences. But his counsel were emphatic that such is not the case. He will not be adducing evidence that he was not physically capable of participating in any of the violent acts alleged to have taken place inside the residence.

[31] It remains unknown what his evidence will be about the butt-ending of Mr. Kennedy in the head with the pellet rifle. Both Mr. Gillard-Gatza and Mr. McKelvey said Mr. Cain did it. It is not known whether he will deny doing so, or perhaps more significantly, whether he will say Mr. Gillard-Gatza did it. This is an important question mark in terms of this application, for reasons I will set out shortly.

[32] In the meantime, though counsel were somewhat cryptic, it is expected that Mr. Cain will testify that he was experiencing impairments in his mental functioning while inside the McKelvey residence, though it is not clear exactly what impairments those might be. A reasonable expectation would be that they will be consistent with the type of impairments Dr. Colman identified in his report: confusion and difficulty concentrating.

[33] Dr. Colman will, in turn, be asked to opine about whether Mr. Cain’s described symptoms might be consistent with, or explained by, his heart disease.

[34] All this is to say that Mr. Cain hopes to raise a reasonable doubt about whether he had the state of mind necessary for murder, by adducing evidence of his heart disease and connecting it to symptoms of impaired mentation on the night of October 19, 2011.

III. THE PROFFERED EVIDENCE

Mr. Cain’s Criminal Record

[35] Mr. Cain was born October 17, 1984. He is thirty years old. He had just turned twenty-seven when the offences involved in this case were committed.

[36] Mr. Cain’s criminal record spans a period from January 2006 to February 2008, not including the charges he now faces. The specifics of his record are set out on Appendix “A”.

[37] In summary, the record includes five convictions for assault (all between January 2006 and October 2007), one conviction for uttering threats, one for possession of marijuana, and four breach convictions: two breaches of an undertaking, one breach of recognizance, and one breach of the conditions of a probation order.

The Other Propensity Evidence

[38] In addition to Mr. Cain’s criminal record, Crown counsel and counsel to Mr. Gillard-Gatza want to cross-examine Mr. Cain on some of the facts and circumstances supporting his prior assault convictions. Those facts and circumstances include the following[^2]:

(a) On January 11, 2006 Mr. Cain entered the elevator of his apartment building at 30 Teesdale Place in Toronto. There was another male in the elevator. Mr. Cain purportedly punched and kicked the man. This incident led to his assault conviction on January 12, 2006. In addition, Mr. Cain was subject to a recognizance, which included a provision that he remain inside his residence unless in the company of his surety. He was convicted of breaching that provision. The convictions were the result of a guilty plea. The facts read into the record and accepted by Mr. Cain reflect the incident as I just described it;

(b) On September 16, 2006 Mr. Cain was purportedly arguing with a women – Ms. Katherine Graham – with whom he has two children. The argument escalated and Mr. Cain allegedly slapped Ms. Graham in the face and shoved her. He then smashed a television and plate glass window. He was on probation at the time, in connection with the January 12, 2006 convictions. This incident led to an assault conviction and a breach of probation conviction on January 8, 2007. The convictions resulted from a guilty plea. Mr. Cain accepted that the facts as I’ve just described them were true, save for he did not agree that he slapped Ms. Graham;

(c) On March 20, 2007 Mr. Cain purportedly attended, with three other males, at an apartment at 40 Teesdale Place in Toronto. He knocked on the door. When it wasn’t answered, he began to kick it, until it was forced open. Mr. Cain and the three males entered the apartment. There were two occupants inside - a man and a woman. Mr. Cain chased the occupants into a bedroom. He pinned the female to a bed and demanded money from her. When she refused, he struck her in the head with a liquor bottle. Mr. Cain then approached the male occupant and punched him several times in the face. He then drew a butcher knife from up his sleeve and held it to the male, demanding money. He and the three males then left.

Mr. Cain entered a guilty plea to two counts of assault on May 23, 2007 in relation to the March 20 incident. Facts reasonably similar to those described above were read into the record by the Crown, though there was no mention of the use of the liquor bottle or knife. Those facts are set out in a police synopsis. The facts as read into the record by the Crown were accepted by Mr. Cain;

(d) On July 2, 2007, Mr. Cain purportedly punched Ms. Graham in the face, during the course of another argument between them. A week later he purportedly attended at her apartment and banged on the door. When she did not answer he yelled, “By not opening the door you make me feel like strangling you”. On October 31, 2007, Mr. Cain entered guilty pleas to one count of assault and one count of uttering threats. He agreed that the facts as read in by the Crown, and which reflect my brief synopsis, were accurate;

[39] In addition, the Crown seeks to question Mr. Cain about some incidents of violence that he has purportedly been involved in while in custody at the Central East Correctional Centre, while awaiting his trial, as well as an incident that occurred in the secure area outside of the courtroom several weeks ago between Mr. Cain and a security officer.

IV. THE PARTIES’ POSITIONS

Mr. Cain

[40] Mr. Cain does not want the jury to know that he has been convicted, on numerous prior occasions, of assaulting other people, including women. He does not want the jury to know anything about the circumstances of those assaults, nor about any other physical confrontations he may have had with fellow inmates or security officers while held in custody on the charges he now faces. He concedes that his breach convictions, as well as the conviction for possession of marijuana, are ones that the Crown, and opposing counsel, may cross-examine him on.

[41] Mr. Cain’s concern is that the risk of propensity reasoning arising from the introduction of the proffered evidence is significant and substantially outweighs any probative value the evidence may have. The risk he is concerned about is the possibility that the jury will conclude either that Mr. Cain is a generally bad person deserving of punishment, or that he has a propensity for violence and likely acted in accordance with that propensity on October 19, 2011. His counsel argue that the jury will have ample evidence upon which to make assessments about his credibility, such that the introduction of evidence tending to blacken his character is unnecessary and dangerous.

Mr. Gillard-Gatza

[42] Mr. Gillard-Gatza’s position is that his counsel, Mr. Lyon, should be entitled to cross-examine Mr. Cain on his entire criminal record, as well as the facts and circumstances underlying two convictions; specifically, those relating to incidents in March and July 2007. But Mr. Lyon’s intention to question Mr. Cain about those incidents, or his record generally, is conditional on what Mr. Cain says during his testimony.

[43] Notwithstanding his application, Mr. Lyon submitted that he is generally opposed to the introduction of propensity evidence relating to Mr. Cain. But he does not yet know what Mr. Cain is going to say that may impact upon Mr. Gillard-Gatza’s defence. Both Mr. Gillard-Gatza and Mr. McKelvey have implicated Mr. Cain in the striking of Mr. Kennedy in the head with the butt end of a pellet rifle. Should Mr. Cain implicate Mr. Gillard-Gatza in relation to the butt-ending, then, and only then, does Mr. Lyon intend to cross-examine Mr. Cain about his record and the incidents in March and July 2007.

Other Defendants

[44] Mr. Strathman, Mr. Hong’s counsel, opposes Mr. Cain’s application. He wants to be able to cross-examine Mr. Cain on his entire record. He also opposes the Crown’s application to adduce additional propensity evidence beyond the contents of the record. He takes no position with respect to Mr. Gillard-Gatza’s application.

[45] Mr. Guerra is opposed to the introduction of any propensity evidence against Mr. Cain. He argues that it will impact negatively on Mr. Guerra, by virtue of his association with Mr. Cain.

The Crown

[46] The Crown opposes Mr. Cain’s application and, as noted, seeks to adduce additional propensity evidence above and beyond the contents of Mr. Cain’s criminal record. Mr. Davidson argued that while the risk of propensity reasoning exists, it can be adequately managed through an appropriate limiting instruction. The evidence of prior assault convictions is highly probative, however, given the unique circumstances of this case.

[47] The Crown’s position is that should evidence be adduced through Dr. Colman that calls into question Mr. Cain’s capacity to participate in a physical confrontation, the jury ought to know that Mr. Cain has five prior convictions for assault. In other words, his heart disease has not prevented him from engaging in assaultive behaviour in the past. While Mr. Cain’s counsel have represented that they will not be adducing that evidence from Dr. Colman, nor going to the jury with such a suggestion, Mr. Davidson believes that the inference is, at the very least, latent in the testimony expected from Dr. Colman.

[48] Even if Dr. Colman’s evidence is focussed on the manner in which hypoxia may manifest in mental impairments, the Crown says Mr. Cain’s prior assaultive conduct remains relevant and probative. It is, Mr. Davidson said, the only evidence the Crown has of Mr. Cain’s prior involvement in activity involving significant physical exertion. The absence of any indication of mental impairment associated with prior physical activity is significant. Indeed, Mr. Davidson went as far as to suggest that a person suffering the effects of hypoxia would likely experience impairment in physical functioning prior to the onset of impairment of mentation. The absence of any impairment of Mr. Cain’s physical functioning during prior assaultive behaviour is, in Mr. Davidson’s submission, likely correlated with an absence of impairment in mental functioning.

[49] In specific response to Mr. Cain’s application to limit cross-examination on his record, Mr. O’Neill argued that redacting the criminal record of an accused is the exception, not the norm. When witnesses take the stand, they take their character with them. Here, the nature and number of offences contained in Mr. Cain’s criminal record are matters the jury should be entitled to consider when assessing the credibility of any evidence Mr. Cain may choose to give at trial. The significant number of convictions contained in his record demonstrate that he is a person who has little respect for law and order. The jury should know that.

[50] Moreover, there has been a significant attack on the credibility of the Crown’s principal witness, Mr. McKelvey, which included significant cross-examination on his criminal antecedents. In the result, the jury should not be left with a distorted picture of Mr. Cain’s criminal antecedents.

V. THE APPLICABLE LEGAL FRAMEWORK

Presumptions and Onuses

[51] This is a joint trial of four defendants. There are antagonistic defences potentially in play. While ultimately my function in terms of the applications now before the court is to weigh the probative value of propensity evidence involving Mr. Cain against its probative value to the live issues in this case, there are a number of different presumptions and different onuses that complicate the exercise.

[52] I will explain below how, where and why different presumptions arise. They can be summarized as follows:

(a) Opposing counsel are generally permitted to cross-examine an accused person on his or her criminal record. Mr. Cain, accordingly, bears the onus to establish that in this case, the prejudice to him of an unfettered cross-examination on his criminal antecedents exceeds the probative value of that evidence;

(b) Propensity evidence is presumptively inadmissible as part of the Crown’s case against Mr. Cain. The Crown, accordingly, bears the onus of satisfying the court that such evidence should be admitted, on the basis that its probative value to a live issue in the case exceeds any prejudicial impact it will have on the fair trial right of Mr. Cain; and,

(c) Propensity evidence is not presumptively inadmissible when led by a co-accused. The admissibility inquiry again involves a weighing of probity and prejudice, but in the case of propensity evidence tendered by a co-accused, Mr. Cain bears the onus of establishing that any prejudice that would likely inure to him from the introduction of such evidence would substantially outweigh its probative value.

[53] The applicable presumptions and onuses must be taken into account as I assess the positions of each of the parties.

Cross-Examination on an Accused Person’s Criminal Record

[54] When an accused person testifies, he or she is, by and large, just like any other witness. I say “by and large” because accused persons benefit from a general protection against the Crown adducing evidence that he or she is a person of bad character, subject to certain recognized exceptions. Otherwise, he or she may be cross-examined by opposing counsel on any material issue in the proceedings. Where an accused has a criminal record, he or she may be cross- examined on it: Canada Evidence Act, R.S.C. 1985, c. C-5, as amended, s. 12.

[55] Mr. Cain’s application is known as a Corbett application – so named because in 1988 the Supreme Court ruled in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, that trial judges have the discretion to exclude prejudicial evidence of prior convictions of an accused person in an appropriate case, notwithstanding the provisions of s. 12 of the Canada Evidence Act.

[56] In Corbett, former Chief Justice Dickson recognized that the “basic principles of the law of evidence embody an inclusionary policy which would permit into evidence everything logically probative of some fact in issue, subject to the recognized rules of exclusion and exceptions thereto.” (para. 50). Justice LaForest, in dissenting reasons, picked up on the same theme, observing that the organizing principles of the law of evidence are straightforward. He stated them as follows:

All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.

[57] The prior criminal record of an accused person, including convictions for offences of violence, may have a direct bearing on the credibility of an accused person who chooses to testify. In other words, it may be very relevant evidence. In certain circumstances, however, the prior convictions of an accused person, while relevant, may be unduly prejudicial to his fair trial right. Where that is the case, the trial judge may restrict the extent to which the accused may be cross-examined on those prior convictions.

[58] To be clear, the direction from Corbett is that judges should start from the premise that juries should receive all relevant information, accompanied where necessary by an appropriate caution or limiting instruction. Orders restricting the jury’s access to information about the criminal record of an accused should be made only where there are clear grounds to do so: R. v. Mayers, 2014 ONCA 474, para. 5. That is not to say that the court’s discretion to restrict or limit cross-examination on the criminal record of an accused person should only be exercised in exceptional circumstances. The rule is that evidence of prior convictions is admissible in cross-examination of an accused person, subject to a discretion to exclude such evidence where its probative value is exceeded by its prejudicial effect: R. v. Charland, 1996 7284 (AB CA), [1996] A.J. No. 819 (Alta. C.A.), at para. 19.

[59] While Justice LaForest dissented in the result in Corbett, he did not part ways with the majority on the governing principles to be applied in this type of application. He provided a number of factors that a court ought to consider in exercising its discretion. Those factors were set out at paras. 152-158 of the decision and include:

(a) The nature of the previous conviction(s). Keeping in mind that the limited use of the prior record relates to the assessment of the witness’ credibility, a conviction for perjury or other crimes of dishonesty are far more telling about a person’s honesty and integrity than is a conviction for assault;

(b) The similarity between the prior conviction and the index offence, having regard to the dangers of propensity reasoning;

(c) The proximity of the prior offence(s); and

(d) Fairness to both the Crown and the accused. In this sense, where an accused attacks the credibility of Crown witnesses, he or she should not be insulated from his or her own criminal record, lest a distorted view be left with the jury.

[60] Argument on the Corbett application was conducted, for the most part, between counsel for the Crown and counsel for Mr. Cain. Both sides offered the court case law where Corbett applications have been granted, or alternatively not granted, in the past. These decisions are only of modest assistance because of the case-specific nature of the inquiry. It is always of interest and assistance to learn how other judges have handled difficult issues like the ones raised in this application. At the same time, the result here is driven by the unique facts and circumstances of this case.

The Introduction of Propensity Evidence by the Crown

[61] The leading authority on the admissibility of propensity evidence tendered by the Crown is Justice Binnie’s ruling in R. v. Handy, 2002 SCC 56. Binnie J. acknowledged that in making everyday judgments about people, their known character is often a highly relevant consideration. In other words, past conduct is generally considered a strong barometer of future conduct. He noted specifically, at para. 39:

It is, of course, common human experience that people generally act consistently with their known character. We make everyday judgments about the reliability or honesty of particular individuals based on what we know of their track record. If the jurors in this case had been the respondent's inquisitive neighbours, instead of sitting in judgment in a court of law, they would undoubtedly have wanted to know everything about his character and related activities. His ex-wife's anecdotal evidence would have been of great interest.

[62] The admissibility of propensity evidence has been a source of discussion, debate and disagreement among jurists and scholars for centuries. Notwithstanding the ongoing debate, propensity evidence, though often relevant, has been subject to a presumptive exclusionary rule applied in Canadian criminal courts for over a hundred years: see the decision of the Privy Council in Makin v. Attorney-General for New South Wales, [1894] A.C. 57.

[63] The exclusionary rule is policy-driven. The policy basis for a presumptive exclusion is rooted in the dangers that propensity evidence poses. There is a risk that the jury may lose sight of the fact that people can and do change; that they will convict based on past conduct rather than on the basis of the conduct in issue. There is a risk that substantial time and resources will be directed at proving or challenging the historical acts that allegedly support the bad character of the accused, thereby distracting the jury from the core issues of the trial. And, of course, there is the obvious risk that the jury may react with antipathy towards the accused. Propensity evidence may, as Justice Binnie cautioned, “capture the attention of the trier of fact to an unwarranted degree. It’s potential for prejudice, distraction, and time consumption is very great and these disadvantages will almost always outweigh its probative value.” (para. 37).

[64] The rule excluding propensity evidence offered by the Crown is not an absolute and unyielding prohibition. The law recognizes that, at times, the probative value of the evidence on offer may exceed any prejudice it is likely to cause. In those circumstances, the value of the evidence to the determination of the live issues in the case overcomes the policy concerns supporting exclusion.

[65] The exclusionary rule, and its exception, were stated in the following language by McLachlin J., as she then was, in R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, at para. 24,

. . . evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.

[66] The Crown bears the onus to establish that the probative value of the proffered propensity evidence exceeds its likely prejudice. The Crown must, of course, begin by identifying the live issue to which the propensity evidence is relevant – something other than the disposition or character of the accused. If the evidence is not relevant to a live issue in the proceedings, it can have no probative force at all. The live issue generally must be something more than the credibility of the accused. Credibility is an issue engaged in most trials and, as Binnie. J. held in Handy, as above, at para. 115, unless circumscribed it would allow far too wide a gateway for propensity evidence to routinely enter criminal trials.

[67] Once the probative value of the evidence is established, the court must weigh it against the prejudice likely to be generated by its introduction. Prejudice was described by Binnie J. in two broad categories: moral prejudice and reasoning prejudice.

[68] Moral prejudice refers to the risk that the jury may conclude that Mr. Cain is a bad person generally deserving of punishment. “Bad personhood” is not an offence known to Canadian law. Simply put, inferring guilt from bad personhood risks wrongful conviction.

[69] Reasoning prejudice refers to the prospect that the jury may become distracted or confused by the propensity evidence and attribute more weight to it than is justified. Distraction may include diverting the jury from their principal function: the dispassionate and objective consideration of the evidence. It also includes the risk of diverting the trial into a series of trials within trials should the proposed propensity evidence be denied by the accused.

The Introduction of Propensity Evidence by a Co-Accused

[70] The presumptive exclusionary rule applicable to Crown-led propensity evidence does not apply when the evidence is tendered by a co-accused. As I observed in R. v. Mylvaganam, 2014 ONSC 4056, at para. 23:

While the presumptive rule prohibits the Crown from adducing propensity evidence against an accused, it does not operate in the same way against an accused who seeks to tender similar evidence against a co-accused in an effort to raise a reasonable doubt about his or her own guilt. That said, even when tendered by an accused person, the ride through the admissibility gateway is not entirely free and unfettered. Though the evidence may be relevant to the defence of one accused, it may yet result in prejudice, distraction and unwarranted time consumption. In the result, the court must take great care in assessing the evidence on offer and in balancing the interests of all of the accused.

[71] This is a joint trial of four accused. I am obliged to do my best to balance the interests of the accused, each of whom has a constitutional right to a fair trial. Each has a right to make full answer and defence. Each has a right to be shielded from evidence which unfairly prejudices him: see R. v. Suzack, (1999) 2000 5630 (ON CA), 141 C.C.C. (3d) 449, at para. 111. These rights sometimes conflict.

[72] It is necessary, in balancing the interests of the co-accused, that the court carefully consider the proffered evidence, and its probative value to the defences of the co-accused weighed against its potential prejudice to the fair trial right of Mr. Cain. As Rosenberg J.A. held in R. v. Pollock, 2004 16082 (ON CA), [2004] O.J. No. 2652, 187 C.C.C. (3d) 213, at para. 106:

[S]ince evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered…

[73] As I noted above, the balancing of probity and prejudice is assessed on a different standard where the evidence at stake has been tendered by a co-accused. Where evidence tendered by a co-accused is sought to be excluded on the basis of its prejudicial impact, the court must be satisfied that the prejudicial effect of the evidence substantially outweighs its probative value: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577

VI. DISCUSSION

[74] As I alluded to earlier, the applications before the court are complicated by virtue of the different onuses and burdens that fall to the parties depending on who is tendering the evidence. Recall, in particular, that otherwise relevant and material evidence tendered by a co-accused, as part of his right to make full answer and defence, may only be excluded where the prejudicial impact of the evidence will substantially exceed its probative value.

[75] I will commence the analysis with a consideration of Mr. Cain’s criminal record. Of the proffered evidence, it is the least prejudicial, if only because it is the least detailed. Obviously, the prejudice to Mr. Cain only increases as the facts and circumstances of the assault convictions are introduced, over and above the basic fact that he was convicted.

[76] I begin with the premise that opposing parties are generally entitled to cross-examine an accused person on his or her full criminal record, should he or she elect to testify.

[77] As former Chief Justice Dickson held in Corbett, as above, at paras. 35-36:

There is perhaps a risk that if told of the fact that the accused has a criminal record, the jury will make more than it should of that fact. But concealing the prior criminal record of an accused who testifies deprives the jury of information relevant to credibility, and creates a serious risk that the jury will be presented with a misleading picture.

In my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.

[78] Dickson, C.J.C., recognized, however, that an accused who testifies has a dual character. He is, like any other witness, subject to attacks on his credibility. At the same time, as an accused person, he is entitled to be shielded from evidence that does nothing more than blacken his character. A balance must be struck. That balance involves a weighing of the probative value of the evidence intended to be used to attack credibility against the prejudice likely to be occasioned by the introduction of such evidence.

[79] I will turn then to an examination of the probative value of Mr. Cain’s criminal antecedents.

Probity

[80] Credibility is very much a live issue in this case, as it is in most cases. To repeat: the content of Mr. Cain’s criminal record is relevant to the jury’s assessment of his credibility. As Doherty J.A. expressed in R. v. Watson, 1996 4008 (ON CA), [1996] O.J. No. 2695, at para. 76:

Cross-examination on prior criminal convictions is permitted under s. 12 of the Canada Evidence Act on the theory that the existence of previous criminal convictions may render a witness less credible. A criminal record, particularly one with multiple entries for crimes of dishonesty, suggests a lifestyle and character which may impugn a witness's overall veracity and lead to the conclusion that the witness's testimony is not credible: R. v. Corbett, supra, at pp. 685-86 S.C.R., pp. 395-96 C.C.C.

[81] The court in Corbett recognized that certain types of convictions are more significant than others in terms of the assessment of credibility. Crimes of dishonesty, for instance, may say more about a person’s veracity than do crimes of violence. That said, the probative value of a number of convictions, for assaults and other offences, may provide reasonable support for an inference that the accused witness has a general disregard for the laws and rules of society. Such a person may be more likely to lie.

[82] Counsel to Mr. Cain’s co-accused did not strenuously oppose Mr. Cain’s Corbett application. They all seem to be generally of the view that it would be preferable that no propensity evidence be admitted, though Mr. Lyon and Mr. Strathman both have outstanding applications that reflect opposition to any restriction on their rights to cross-examine Mr. Cain on his full criminal record. The Crown did virtually all of the heavy lifting with respect to the argument in opposition to the Corbett application.

[83] The Crown relied heavily on two arguments in support of the probative value of Mr. Cain’s criminal record to the assessment of his credibility:

(a) The record consists of eleven entries. Mr. Cain seeks to redact six of those entries; five assault convictions and one conviction for uttering threats. Eleven convictions, according to the Crown’s submissions, provide strong support for the inference that Mr. Cain has little, if any, respect for the law or society’s rules; five convictions, must less so;

(b) Defence counsel collectively, including counsel for Mr. Cain, aggressively cross-examined the Crown’s principal witness, Justin McKelvey, on his credibility, including his criminal record. Supressing more than half of Mr. Cain’s convictions would leave the jury with a distorted picture of the relative characters of Mr. Cain and Mr. McKelvey.

[84] With respect to the careful and thorough arguments of the Crown, I do not consider the prior assault convictions as strongly probative of the issue of Mr. Cain’s credibility.

[85] First, even if the offences of violence are redacted from Mr. Cain’s criminal record, there will remain multiple convictions for offences that, by their nature, and their number, demonstrate a lack of respect for the law and for the courts. Indeed, the remaining convictions say more about his veracity than do the offences of violence.

[86] Second, it must be kept in mind that Mr. Cain concedes that he is one of the four men who got into a car and drove to Minden for the purpose of conducting a home invasion/robbery. He is one of the three men who put on masks and went inside Mr. McKelvey’s house. According to his statement to the police, they thought Mr. McKelvey would be an easy target to rob of a substantial amount of marijuana. These facts, as conceded, are quite telling in terms of Mr. Cain’s character, and his level of respect for law and order.

[87] Having said that, there is much to be said for the Crown’s concern that a distorted, or inaccurate, picture of the respective characters of Mr. McKelvey and Mr. Cain may be left with the jury. Recall Justice Dickson’s powerful comments from Corbett: “concealing the prior criminal record of an accused who testifies deprives the jury of information relevant to credibility, and creates a serious risk that the jury will be presented with a misleading picture.”

[88] An accused person is entitled to a fair trial. But fairness must be considered not only from the perspective of the accused person but also from the perspective of society in general. “A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused”: R. v. Harrer (1996), 1995 70 (SCC), 42 C.R. (4th) 269, at para. 45. An accused person cannot use an argument of fairness to support a request to distort the truth.

[89] On the unique facts of this case, however, I am of the view that redacting Mr. Cain’s criminal record, in the manner he seeks, will not result in a misleading picture being left with the jury. This is not a case where Mr. Cain is going to be presented as squeaky clean compared to the arguably tarnished image of Mr. McKelvey following his cross-examination. Mr. Cain has some serious warts. He has breached an undertaking to the court, twice. He has breached a recognizance and the terms of a probation order. He evidently has little, if any, respect for the courts. Moreover, there is evidence in the form of text messages that support the conclusion that he has been involved in the illegal trafficking of marijuana. There is no doubt that he was involved in a joint plan to commit the drug rip-off that led to the charges now before the court. In my view, this is a situation, like that in R. v. Bomberry, 2010 ONCA 542 and R. v. Talbot, 2007 ONCA 81, where there is already a strong body of evidence upon which the jury can make their determinations about Mr. Cain’s credibility. I concede that a redacted record will mean the jury does not get the complete picture. But in my view, the complete picture is not necessary to make reasonable determinations about Mr. Cain’s credibility.

[90] I agree with the Crown’s assertion that defence counsel, collectively, aggressively attacked Mr. McKelvey’s credibility. That said, Mr. Cain’s counsel focussed his cross-examination largely on issues relating to the reliability of Mr. McKelvey’s evidence and spent little time on matters associated with Mr. McKelvey’s character. Challenging the accuracy of a witness’s account of events does not create the potential for the kind of imbalance raised in argument by the Crown: R. v. Bomberry, as above, at para. 50. Moreover, as I just noted, I do not believe that an imbalanced picture is likely to emerge.

[91] I also make note of a peculiar aspect of Mr. Cain’s record. He has five prior convictions for assault, but all of the underlying incidents took place in the space of about a year and a half during his early 20s. He had no prior assault convictions before January 2006 and none after October 31, 2007. His breach convictions are all, by the way, sandwiched between those two dates as well. He was on probation for two years after October 31, 2007 and there are no apparent breaches of that probation. Apart from the conviction for marijuana possession in February 2008, it appears that all of Mr. Cain’s criminal antecedents are bunched into an eighteen month “crime spree”. Thereafter, there was a four year gap before the index offences. These factors somewhat reduce the probative value of the convictions to the issue of credibility because (1) the convictions are not compellingly proximate to the index offences; and (2) though there are eleven convictions in total, they do not demonstrate a long period of lawlessness, reducing somewhat the strength of the inference that Mr. Cain is a person who has no regard for the rules of society.

[92] I pause to note that neither Mr. Lyon nor Mr. Strathman pressed the issue of the probative value of the assault convictions to their defences. Mr. Lyon in fact indicated that his intention to cross-examine Mr. Cain on propensity evidence is conditional on whether Mr. Cain implicates Mr. Gillard-Gatza in the strike with the pellet gun. Each of Mr. Lyon and Mr. Strathman otherwise indicated a general opposition to propensity evidence being introduced at all.

[93] I turn next to the issue of prejudice.

Prejudice

[94] The index offences are ones of brutal violence involving blunt force trauma. The risk of propensity reasoning is palpable. Evidence that Mr. Cain has multiple prior convictions for assault is propensity evidence – evidence of a disposition to act in a violent manner. It is evidence that he has, in the past, been convicted of engaging in violent behaviour.

[95] Mr. Cain faces charges of first degree murder and attempted murder. These are much more serious charges than assault. Still, assaults are offences of violence and, given that there are five prior convictions for assault, those prior crimes of violence “could provide real insight into the [the accused’s] propensity for violence. That insight could taint the jury’s ability to properly try the case”: R. v. Talbot, as above, at para. 36.

[96] When the live issues in this case include intent, as well as who did what to whom, five prior convictions for assault and one for uttering death threats may have a very significant impact on the reasoning processes of the jury, notwithstanding any limiting instruction that might be provided.

[97] As Justice LaForest noted at para. 156 of Corbett, “a court should be very chary of admitting evidence of a previous conviction for a similar crime, especially when the rationale for the stringent test for admitting "similar fact" evidence is kept in mind.”

[98] The prejudice to Mr. Cain arises in a number of ways. Most obvious is the general concern about raising the passions of the jurors against him. Antipathy towards Mr. Cain may very well be generated by the knowledge that he has so many convictions for assault.

[99] Less obvious, but of no less concern, is the potential for prejudicing the reasoning processes used by the jury to determine some of the significant live issues in this case. For instance, a central issue is the intent of Mr. Cain and his companions as they travelled from Scarborough to Minden. Were they intending only to steal marijuana and cash? Or, as the Crown theorizes, were they intending violence; to leave no witnesses alive? A history of violence on the part of Mr. Cain may well influence the jury’s conclusions, in an impermissible way.

[100] The same concern arises in connection with the butt end to Mr. Kennedy’s head. Two witnesses have described Mr. Cain using the pellet rifle to strike Mr. Kennedy. One said the strike involved incredible force. The other described it as a “nudge”. Again, knowing that Mr. Cain has a history of violent conduct may improperly influence jurors to conclude that he is more likely to have used greater rather than lesser force.

[101] If it were Mr. Cain’s intention to adduce evidence that he was not physically capable of committing the acts of violence that are alleged to have taken place inside the McKelvey residence, or that he, among the three intruders, is the least likely to have committed those acts of violence given his heart disease, then I would consider the five prior convictions for assault highly probative of the credibility of that evidence. But Mr. Cain’s counsel were emphatic: he does not intend to adduce that evidence, nor does he intend to invite the jury to draw any such inference.

[102] Given Mr. Cain’s stated position, upon which I rely in rendering this decision, I consider the probative value of the five assault convictions (plus the one uttering threats conviction) to be minimal, in view of the already strong evidentiary record going to Mr. Cain’s credibility. I consider the risk of prejudice to be significant. Indeed, I am persuaded that the risk of prejudice substantially outweighs the probative value of the prior convictions.

[103] In the result, I exercise my discretion to limit cross-examination on Mr. Cain’s criminal record to his conviction for marijuana possession and his four breach convictions.

[104] A very similar analysis applies to the applications of Mr. Gillard-Gatza and the Crown to adduce propensity evidence above and beyond the fact that Mr. Cain has prior convictions for violent offences.

[105] In my view, evidence of the underlying facts and circumstances of the offences – and/or of other violent conduct occurring while Mr. Cain has been in custody – only heightens the prejudice to Mr. Cain, while adding little, if anything, to the already strong record available to the jury to consider when assessing Mr. Cain’s credibility.

[106] The underlying circumstances of the offences reveal that Mr. Cain’s assaults have typically taken place in circumstances of a power imbalance. One involved a home invasion. Several involve assaults against women. One arguably involved Mr. Cain striking a woman over the head with a bottle, resulting in a gash requiring six stitches.

[107] Apart from increasing the jury’s general antipathy towards Mr. Cain, it is obvious how the additional evidence sought to be introduced by the Crown and Mr. Lyon heightens the risk of impermissible propensity reasoning. The index offences involved a home invasion, a context of an imbalance of power, and the striking of victims over the head.

[108] The Crown argued that there is significant probative value to the additional propensity evidence. They said its probity flows from its ability to undermine the assertion that Mr. Cain experienced impaired mentation on October 19, 2011 owing to exertion-induced hypoxia. The Crown argued that evidence of prior assaults is, regrettably, the only evidence of prior physical activity in the possession of the Crown. Had the Crown been in possession of evidence of Mr. Cain playing football, or engaging in strenuous manual labour, they would have utilized that evidence instead.

[109] The probative value of the prior violent behaviour, for the purpose identified by the Crown, depends on the strength of the inferences arising from that evidence. In my view, the inferences sought to be drawn by the Crown are not strong.

[110] First, there is limited evidence of the amount of physical exertion involved in the prior events. They appear to me to have all been relatively brief encounters. Second, there is no evidence about Mr. Cain’s state of mind, one way or the other, at the time of the prior assaults. Third, Mr. Davidson asserted that it would be likely that physical impairments would occur prior to mental impairments. As such, it might reasonably be inferred that if Mr. Cain was not experiencing physical impairments during his prior assaultive behaviour, he similarly was not experiencing mental impairments. I have no evidence, however, to support the assertion of the Crown. It may be right. Or it may not.

[111] I also note that the evidence of prior violent behaviour is not the only evidence available to the Crown regarding prior physical activity on the part of Mr. Cain. Dr. Colman’s report dated October 4, 2012 attaches the results of a 6-Minute Walk Test. As the name would suggest, this test followed Mr. Cain over six minutes of moderate physical exertion. His oxygen saturation level was monitored throughout the test. The results demonstrated a significant drop in Mr. Cain’s oxygen saturation, with a notation at the end of “severe hypoxia”. No mental impairments were noted, though cognitive testing does not appear to have been a part of the procedure.

[112] The Crown’s theory – that physical impairments would likely be evident prior to mental impairments – can be made out just as well with the results of the 6-Minute Walk Test as they can with the prior assaults. And without the added danger of risking propensity reasoning. Moreover, the test was conducted just two months prior to the index offences.

[113] The Crown also seeks to adduce evidence of violent behaviour engaged in by Mr. Cain while he has been in custody since his arrest. These incidents create a different kind of prejudice altogether. In particular, the likely expenditure of significant time and resources to establish that the incidents took place and the particulars of those incidents. Mr. Davidson indicated that he may be required to call as many as six witnesses in reply to prove Mr. Cain’s involvement in these other incidents. As reply evidence, this will mean that the last testimony heard by the jury will relate to violent conduct on the part of Mr. Cain that he is not on trial for. It is evidence that, no doubt, would be vigorously challenged. It could easily extend the length of the trial by another week or more. Simply put, this evidence is not worth the candle.

[114] I remain of the view that the potential prejudice to Mr. Cain arising from evidence of his participation in other violent conduct substantially outweighs any probative value it may have to the live issues in this case – in particular to the credibility of Mr. Cain.

[115] I want to return for a moment, however, to the caveat I mentioned above. This ruling is premised, as I said, on the expectation that Mr. Cain and his cardiologist are going to testify in a particular way. Specifically,

(a) That Mr. Cain is not going to testify that Mr. Gillard-Gatza is the person who struck Ryan Kennedy in the head with the butt end of the pellet rifle. If he does say that in his testimony, then the probative value of Mr. Cain’s prior violent behaviour will increase in relation to Mr. Gillard-Gatza’s defence;

(b) That there will be no assertion, directly or indirectly, that Mr. Cain did not have the capacity to engage in the physical conduct alleged to have taken place inside Mr. McKelvey’s residence on October 19, 2011; and,

(c) That Mr. Cain will not put his character in issue himself.

[116] Should any of the premises on which this ruling is made prove not to be solid, then the ruling may be revisited.

Boswell J.

Released: August 4, 2015

Appendix “A”

Mr. Cain’s Criminal Record

2006-01-12 (1) Assault (2) Fail to Comply with Conditions of Undertaking (x2)

2006-08-31 (1) Fail to Comply with Recognizance

2007-01-08 (1) Assault (2) Failure to Comply with Probation Order

2007-05-23 (1) Assault x2

2007-10-31 (1) Assault (2) Uttering Threats

2008-02-08 (1) Possession of Marihuana

[^1]: Reported as R. v. Hong, 2015 ONSC 4840. [^2]: To be clear, Mr. Lyon only seeks to question Mr. Cain about the incident on March 20, 2007 and the incidents involving Ms. Graham on July 2 and 9, 2007.