ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR/14/50000/6180000
DATE: 20150806
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
R.S.
Mr. P. Zambonini, for the Crown
Mr. D. Rechtshaffen for the Accused
HEARD: June 8, 9, 10, 12, 15, 16, 17, 18 and 19, 2015
Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4 of the Criminal Code of Canada
M. Forestell J.
REASONS FOR JUDGMENT
Overview
[1] The accused, R.S., is charged in a 17-count indictment with offences allegedly committed against his domestic partner, N.J. The offences can be generally said to relate to five separate events or series of events:
In 2012 Mr. R.S. faced charges in which N.J. was the complainant. Counts 11-13 allege that, while in jail awaiting trial for those sets of charges, Mr. R.S. threatened to kill N.J. or her family unless she recanted her allegations against him. She recanted the allegations.
In 2013 Mr. R.S. again faced charge in which N.J. was the complainant. Again it is alleged that he threatened to kill her family and again she recanted. Counts 14-16 relate to these alleged threats.
Count 17 charges Mr. R.S. with threatening to kill N.J. in August 2013. The allegation underlying this Count is that N.J. had reported an assault by Mr. R.S. to the police. It is alleged that after she made the report Mr. R.S. threatened to kill her. As a result, she recanted her statement to the police.
Counts 1-9 all relate to events that are alleged to have occurred on November 16, 2013. It is alleged that on that date Mr. R.S. broke into N.J.’s car while she was at work and took the key to her apartment. He went to her apartment and took her property. He then returned to her car, waited in her trunk and threatened her at gunpoint as she drove away from work. He forced her to drive to a secluded location. He spoke of killing her. He forced her to have sex with him.
Count 10 in the indictment charges Mr. R.S. with criminal harassment by engaging in threatening conduct toward N.J. during the last four years of the five-year relationship.
[2] Mr. R.S. pleaded not guilty to all charges and the trial proceeded before me without a jury over three weeks.
[3] Mr. R.S. testified and admitted physically assaulting and threatening N.J. over the course of their relationship. He denied committing the specific offences alleged in the indictment with the exception of Count 10, criminal harassment. Counsel for Mr. R.S. conceded that based on Mr. R.S.’s testimony and the totality of the evidence, I could be satisfied that Count 10 was made out.
Issues
[4] Many of the facts in this case are not in dispute. The accused testified and admitted much of the conduct attributed to him in the testimony of the complainant. He admitted that he physically assaulted the complainant over the course of the relationship. He admitted that he lay in wait for her. He admitted that he threatened her with a gun and with a knife. What is in dispute is whether the accused committed the offences alleged in the indictment before me.
[5] Although the history of abuse in the relationship is largely admitted, the details of the abuse and the conduct of the accused and the complainant are important considerations in making any findings of fact. Both the Crown and defence rely to some extent on the pattern of conduct of the accused and the complainant within the relationship to support their positions.
[6] The Crown submits that the accused had a pattern of physically assaulting and threatening the complainant. He did so out of anger, jealousy and a desire to control the complainant. The Crown submits that over the course of the relationship, when the complainant attempted to end the relationship or cut off contact, the accused lay in wait for her and threatened and assaulted her in order to make her resume her relationship with him. The Crown argues that this pattern of conduct supports the conclusion that the accused committed the contested offences.
[7] The defence argues that while there was a history of physical abuse, the complainant voluntarily remained in the relationship or returned to the relationship repeatedly. On her own evidence, she often did so out of love for the accused. The complainant made reports to the police when she was angry and jealous because of the infidelity of the accused or when he damaged her property. The complainant, after resolving issues with the accused or believing she had done so, protected the accused by recanting her statements to the police or at court. The defence position is that the complainant concocted the allegations of the November 16, 2013 incident out of anger and jealousy after she discovered that the accused had again been unfaithful. She concocted the story that the accused had previously threatened her and her family in order to explain why she changed her testimony on those earlier occasions.
[8] The central issue in this case is whether the Crown has proven beyond a reasonable doubt that the offences occurred as described by the complainant. Alternatively, even if I am satisfied beyond a reasonable doubt that the incidents occurred as described by the complainant, it is argued that the Crown has not proven the offence of breaking and entering and has not proven that the accused possessed a handgun on November 16, 2013.
Similar Fact Application
[9] Counsel for the Crown brought an application to admit similar fact evidence of assaultive and threatening conduct by the accused against a prior domestic partner, M.S. (the “similar fact complainant”). The accused entered guilty pleas to four charges relating to the similar fact complainant in November of 2012. The charges related to conduct in March and April 2012. It was submitted that the similar fact evidence demonstrated a pattern on the part of the accused of hiding and waiting for his domestic partners when they did not want to have contact with him.
[10] At the outset of the trial I indicated that I would not admit the similar fact evidence of offences involving M.S. because the Crown had not led evidence to satisfy me that there was no collusion or tainting of the evidence of the similar fact complainant. I indicated that the Crown could renew the application and lead evidence on the issue of the possibility of collusion or tainting. It was agreed that the evidence would be led as part of the Crown’s case on the trial and that the issue would be argued and determined at the end of the trial.
[11] The Crown also sought to introduce evidence of an incident that occurred in 2012 in which the accused waited for the complainant in her parking garage and then threatened her with a gun. I ruled that the evidence of the gun incident was admissible. The evidence is relevant to the charge of criminal harassment. It was agreed that the issue of whether the evidence could be used for any other purpose, including to infer propensity, would be argued and determined at the end of the trial.
[12] The Crown introduced evidence of the domestic history between the complainant and the accused. It was argued that this evidence was relevant and admissible for the following purposes: to advance the narrative; to explain the failure of the complainant to report the August 2013 threat; to explain the complainant’s recantations; as evidence of motive and animus; and, as evidence of a propensity on the part of the accused to physically assault and threaten the complainant.
[13] For the same reasons it was argued by the Crown that the evidence of the conduct of the accused relating to each Count is admissible on the other Counts in the indictment.
[14] The defence did not dispute the admissibility of the domestic history or the admissibility of the evidence between Counts for the purposes of narrative, of explaining the failure to report and the recantations and for the purpose of showing motive or animus. The defence objected to the admissibility of the evidence on the issue of propensity.
[15] Before summarizing the other evidence in this trial I will determine the admissibility of the similar fact/bad character evidence.
Evidence of conduct towards M.S.
[16] The Court of Appeal for Ontario in R. v. L.B.; R. v. M.A.G.[^1] set out the approach to the admissibility of extrinsic similar fact evidence. A trial judge must consider the following:
Is the conduct, which forms the subject matter of the proposed evidence, that of the accused?
If so, is the proposed evidence relevant and material?
If relevant and material, is the proposed evidence discreditable to the accused?
If discreditable, does its probative value outweigh its prejudicial effect?
[17] I have concluded that the proposed extrinsic similar fact evidence with respect to M.S. is not admissible. The proposed similar fact evidence is capable of supporting the inference that Mr. R.S. is the type of person who lies in wait for his domestic partners in order to scare them and to convince them to be with him. Mr. R.S. has testified and has admitted that, on occasions prior to November 16, 2013, he lay in wait for N.J., that he tried to scare her by threatening her with weapons and that he did so out of anger, jealousy and the view that she should be with him and only with him. The proposed similar fact evidence therefore has limited probative value. It is also not particularly prejudicial in light of Mr. R.S.’s admission that he harassed and abused N.J. However, in my view, the potential prejudicial effect of the evidence outweighs its probative effect.
Evidence of the Domestic History, including the Incident in the Underground Parking Garage
[18] I have considered the evidence that Mr. R.S. threatened N.J. with a gun in the underground parking garage as evidence of the actus reus of the criminal harassment charge and in the context of the narrative, motive, animus and an explanation for the fear of the complainant.
[19] I must determine whether the evidence of the incident in the parking garage and the other evidence of the domestic history are also admissible to support the inference that the accused has a propensity to assault and threaten the complainant.
[20] In my view the evidence is admissible as propensity evidence, that is, to infer that the accused was disposed to act violently towards the complainant when she did not do what he wanted or when he was angry or jealous.
[21] Doherty J.A., in R. v. W.B., acknowledged the general reluctance to admit propensity evidence, but explained the circumstances in which such evidence is admissible as follows:
102 The criminal law's resistance to propensity reasoning is not, however, absolute. There will be situations in which the probative force of propensity reasoning is so strong that it overcomes the potential prejudice and cannot be ignored if the truth of the allegation is to be determined. The probative force of propensity reasoning reaches that level where the evidence, if accepted, suggests a strong disposition to do the very act alleged in the indictment. For example, if an accused is charged with assaulting his wife, evidence that the accused beat his wife on a regular basis throughout their long marriage would be admissible. Evidence of the prior beatings does much more than suggest that the accused is a bad person or that the accused has a general disposition to act violently and commit assaults. The evidence suggests a strong disposition to do the very act in issue - assault his wife. In such cases, the jury is permitted to reason, assuming it accepts the evidence of the prior assaults, that the accused was disposed to act violently towards his wife and that he had that disposition on the occasion in issue. The existence of the disposition is a piece of circumstantial evidence that may be considered in deciding whether the accused committed the alleged assault.
103 The admissibility of prior assaults as evidence that the accused assaulted the same person on the occasion in issue is well established in the authorities: e.g. R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.); McCormick on Evidence, supra, 665-66. While the authorities refer to the evidence as relevant to demonstrate motive or animus, these labels merely describe the disposition that is established by the discreditable conduct evidence. They do not detract from the fact that the evidence derives its probative force through propensity reasoning: R. Lempert, S. Saltzburg, A Modern Approach to Evidence, supra, 226-27, 229-30.[^2]
[22] The reasoning in the above paragraphs of W.B. applies to this case. The evidence of the prior assaults and threats, including the threat in the underground parking garage is evidence of Mr. R.S.’s motive to assault N.J., his animus and his disposition to act violently towards N.J. and to threaten her. This evidence of disposition is circumstantial evidence capable of supporting the inference of the commission of the offences.
[23] For the same reasons, the evidence of the violence and threats is admissible between counts.
[24] This evidence of prior violence against N.J., which was effectively admitted by Mr. R.S. in his testimony, is a piece of circumstantial evidence that I have considered in deciding whether the Crown has proven that Mr. R.S. committed the offences. This evidence does not go to show general bad character and I have not used it to infer general bad character.
(continued verbatim — full judgment text preserved)
Forestell J.
Released: August 6, 2015
Footnotes
[^1]: R. v. L.B.; R. v. M.A.G. (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.) at para 10
[^2]: 2000 5751 (ON CA), [2000] O.J. No. 2184 at paras 102-103
[^3]: (1991). 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)
[^4]: R. v. Humphrey, 2011 ONSC 3024, [2011] O.J. No. 2412 at para. 52 (S.C.J.); R. v. Hoohing, 2007 ONCA 577, [2007] O.J. No. 3224 at para. 15 (C.A.)
[^5]: R. v. D. (J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53; R. v. M. (R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.), at para. 66; R. v. D.R., 2012 ONCA 253, [2012] O.J. No. 1691 at paras. 4-5
[^6]: R. v. C.L.Y, 2008 SCC 2 at para. 8, R. v. A.P., 2013 ONCA 344, [2013] O.J. No. 2291 at para. 41
[^7]: R. v. Lamy, 2002 SCC 25, [2002] 1 S.C.R. 860.
[^8]: R. v. Charbonneau, 2004 9527 (ON CA), [2004] O.J. No. 1503; R. v. Richards, 2001 21219 (ON CA), [2001] O.J. No. 2286.
[^9]: 2011 ONCA 128, [2011] O.J. No. 642 paras. 58-62