COURT FILE NO.: CR-12-2328
DATE: 20151216
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Tatum, for the Crown
Respondent
- and -
J.B.
Applicant
R. Allman, for the Accused
HEARD: December 10, 2015
RULING
(GOOD CHARACTER EVIDENCE)[^1]
I. Background
J.B. is on trial for a number of historical sexual offences.
J.B. has testified and denied the allegations.
J.B. called two witnesses to testify as to evidence of his general reputation. He called L.G., who has known J.B. since 1980, and J.F., who has known J.B. for over 50 years.
It is not disputed that evidence of good character is relevant to support the overall credibility of J.B., and may provide the basis for a reasonable doubt.
II. Issue
Mr. Allman attempted to ask the two witnesses whether the accused had any disposition to commit sexual assault or acts of violence.
The Crown objected to these questions.
After hearing argument, I ruled that Mr. Allman could only ask each witness whether he or she knew the reputation of J.B. for honesty and integrity in the community.[^2]
I told counsel I would release written reasons. These are those reasons.
III. Analysis
The late Justice Rosenberg held in R. v. Clarke (1998), 1998 14604 (ON CA), 129 C.C.C. (3d) 1 (C.A.), at para. 28, that there are at least three different methods of proving character that are recognized at common law and by statute. Character may be proved (1) by specific acts, (2) by expert evidence, or (3) by the person’s reputation in the community.
When an accused calls character witnesses, these witnesses are restricted to providing the trier of fact with evidence of general reputation, and they are not permitted to testify in-chief as to specific acts or conduct of the accused.
In this case, Mr. Allman argued he should be permitted to elicit information from the witnesses that is beyond evidence of the accused’s general reputation for honesty and integrity. Mr. Allman submitted that I should receive evidence from these witnesses as to their knowledge of J.B.’s peaceful disposition or sexual morality.
Trial judges should be very cautious in excluding potentially relevant defence evidence. However, as the trial judge, I retain the discretion to disallow evidence if the prejudicial effect substantially outweighs the probative value of the evidence. In the circumstances of this case, the prejudicial effect of allowing these types of questions does outweigh the probative value of the evidence.
The prejudicial effect of these questions is that it prolongs the process and adds time to a trial that has already exceeded the time limits estimated by counsel. As I understand it, Mr. Allman proposed to call more than two witnesses to address this issue.[^3] I am of the view that the cost of calling these witnesses substantially outweighs any perceived benefit to the trial process.
I say this for the following reasons.
First, I am not at all convinced that this evidence is necessary. It does not assist me as the trier of fact. J.B. has already testified and I have heard from his wife and two daughters. I have a good sense of J.B.’s background. It does not appear to be in dispute that he has no criminal record, he has been employed for decades and he has the support of his wife and children.
Why, I ask rhetorically, does it matter if I hear from two character witnesses, that “J.B. is not capable of sexual abuse and has a peaceful disposition”? It seems to me that this evidence has very little probative value. My sense of what kind of man J.B. is comes from the accused and those who know him best – his wife and daughters.
Second, in my view, the evidence of his morality would have limited value in the circumstances of this case. The events that are alleged took place over 40 years ago. The complainant at the time was a young child. The events took place in private with no witnesses. There is an allegation that L.B., the accused’s older daughter, may have been present for one of the incidents, but according to the complainant L.B. was sleeping.
Given these circumstances, I am bound by the jurisprudence from the Supreme Court of Canada that holds that a trial judge is entitled to find that the probative value of character evidence as to morality is diminished in cases of sexual assault upon children: see R. v. Profit, 1993 78 (SCC), [1993] 3 S.C.R. 637.
Mr. Allman relies on the decision of R. v. Lizzi, 1996 21269 (ON SC), [1996] O.J. No. 3235 (Gen. Div.), to support his position that he should be permitted to ask the question.
The Lizzi decision was a summary conviction appeal from a trial judge who did not permit the following question:
Can you therefore state with respect to his general reputation in the community that he lives what his reputation would be for sexually assaultive behaviour?
Crossland J., sitting on appeal, held that this was an error and distinguished this case from Profit. Crossland J. held that since the sexual assault in that case did not take place in private and allegedly took place in a shared hospital room with a door open it was relevant to know the reputation for sexual morality of someone who was visiting the hospital on a daily basis without any suggestion of sexual impropriety.
In my view, Lizzi does not assist Mr. Allman. Lizzi is a decision that restricts the applicability of the decision in Profit where it might be said that the allegations of sexual abuse occurred in public places: (See also R. v. Strong, [2001] O.J. No. 1362 (C.A.)).
In this case, there are no witnesses to the abuse. Most of the offences allegedly took place when the complainant and J.B. were alone. There is one allegation where the complainant has testified that L.B. was present but asleep. It is beyond dispute that the allegations in this case occurred in private.
The Court of Appeal has held that there is virtually no probative value in the testimony of witnesses called by the defence to give evidence that the accused did not engage in sexual relations with other young females: see: R. v. F.W.T., (2001) 2001 24128 (ON CA), 151 CCC (3d) 50, at paras. 44-51. The Court put it this way:
The fact that the appellant did not engage in sexual relations with six, or even thousands, of students during his career is of virtually no probative value. It is, as the Crown put it in its factum, “akin to a bank robber adducing evidence of all the banks he went into in his life from which he didn’t steal money”. Thus, even if the appellant’s label of circumstantial evidence of innocent association is correct, it does not help the appellant. Even the most dedicated criminal has many moments of innocent association.
Finally, it seems to me that the question, as framed by Mr. Allman, would elicit personal opinions from the witnesses. The personal opinion of a witness is not evidence of general reputation for a particular trait: see R. v. Close (1983), 1982 1914 (ON CA), 68 C.C.C. (2d) 105 (Ont. C.A.), at pp. 112-3. I would have been very surprised to hear evidence from the witnesses that they were aware of J.B.’s general reputation for violence or disposition to commit sexual abuse.
Accordingly, for these reasons I did not permit questioning of the character witnesses as to evidence of J.B.’s morality.
Coroza J.
Released: December 16, 2015
COURT FILE NO.: CR-12-2328
DATE: 20151216
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
J. B.
RULING
(GOOD CHARACTER EVIDENCE)
Coroza J.
Released: December 16, 2015
[^1]: On December 10, 2015, I released a brief oral ruling on the issue.
[^2]: This is how Mr. Allman framed the question to each witness.
[^3]: After my ruling on the issue, I advised Mr. Allman he would not be permitted to ask any other witness this specific question. After, a brief recess, Mr. Allman cut down his proposed witness list and the trial proceeded.