Court File and Parties

Court File No.: CR-15-50000183-0000 Date: 20160914 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – N.H.

Counsel: Jim Cruess, for the Crown Enzo Battagaglia, for the Defendant

Heard: September 13, 2016

Publication Restrictions Notice

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the complainants shall not be published in any document, broadcast or transmission.

B.A. ALLEN J.

Reasons for Decision

(Crown Application to admit evidence of prior discreditable conduct)

Background

[1] Crown counsel brings this application seeking to have admitted at trial evidence of NH’s prior discreditable conduct towards his wife, SK.

[2] Crown counsel argues that without evidence of the nature of the marriage as a backdrop to the alleged offences the jury would be left with an incomplete and puzzling set of facts about the couple’s relationship. Crown counsel anticipates SK’s evidence to demonstrate that from the start of their brief marriage, the relationship between herself and Mr. H declined, with a few brief periods of improvement, only to eventually become very discordant and dysfunctional. The offences alleged, Crown counsel submits, can only be understood if considered in the context of the type of relationship which developed between Ms. K and Mr. H.

[3] Crown counsel relies principally on the transcript of Ms. K’s evidence at the preliminary inquiry.

[4] Mr. H was charged on March 27, 2014 with three counts of sexual assault and one count of common assault on his wife. The couple was married on June 30, 2013. Ms. K`s family did not approve of her marriage to Mr. H. So after she married she lost ties with all her family members except her brother who lived in Saskatchewan.

[5] Ms. K’s evidence is that the relationship began to deteriorate one week after the marriage. According to Ms. K, her husband would constantly yell at her, berate her and call her demeaning names. She testified this made her grow fearful of him. Her husband became very demanding requiring her to cook and do chores as his mother did them. She said he was never satisfied. Ms. K testified she had no family contacts in Toronto and when he threatened to divorce her it made her fearful she would have nowhere to go.

[6] At the start of the marriage Mr. H dictated how the rent and bills were to be paid. He took over a $2,500 wedding gift, given to Ms. K by her cousin and her brother, to pay bills asserting that she cannot live for free.

[7] Within three months, Ms. K suspected her husband was having an affair. This caused the marriage to further deteriorate so that by the end of September 2013, Ms. K moved downstairs to sleep on the couch where she remained sleeping for the better part of the marriage until Mr. H forced her out of the home in March 2014.

[8] Ms. K alleges the first sexual assault occurred on December 20, 2013. Mr. H had asked Ms. K to go to his room. She first refused and then agreed to do so because she did not want her marriage to break down. Her evidence is that once she went to the room she did not agree to have sex with her husband. Her evidence is that Mr. H forced her to perform oral sex and raped her. He then asked her to go downstairs. Ms. K testified she felt used by her husband for sex and that he treated her like a prostitute. Ms. K would confide in Mr. H’s mother, who lived with them, how Mr. H was treating her.

[9] The second alleged assault occurred on December 28, 2013. Mr. H again invited Ms. K to his room. But Ms. K went to the bathroom instead. She alleges that as she was leaving the bathroom, Mr. H grabbed her by the wrist and pulled her into his room. Her evidence is that he again forced her to perform oral sex and raped her. After that alleged assault Ms. K continued to sleep on the couch.

[10] Their relationship improved for about a week from the end of December 2013 to the first week in January 2014. His mother had spoken to him about how badly he was treating his wife. Ms. K began sleeping in the bedroom again for a short period. However, the relationship deteriorated again when the couple started arguing about Ms. K’s perception of his infidelity.

[11] According to Ms. K, her husband continued to belittle her and call her names. Ms. K’s evidence is that in January 2014, the accused punched a hole in the bedroom wall next to her head. After punching the wall, Ms. K. alleges Mr. H said “next time, it will be your face … you better keep quiet and do as I’m saying you to do.” The relationship had deteriorated very badly by this time.

[12] The third sexual assault is alleged to have occurred on February 18, 2014. It occurred in the bedroom. Ms. K alleged her husband again forced her to perform oral sex and raped her while she was on her period. Ms. K alleges that after February 18, 2014, Mr. H kicked her out of the bedroom and she returned to sleeping on the couch.

[13] In late February 2014, Ms. K alleges that Mr. H and his sister moved her belongings into the furnace room. He put a lock on the bedroom door. Ms. K alleges her husband told her that he was through with her and pressured her to leave the home and that if she did not leave he would report her to immigration. Ms. K was in the process of obtaining landed status in Canada. Ms. K alleges she stayed on the couch for a month until on March 22, 2014, Mr. H kicked her out of the house.

[14] Ms. K’s evidence is that on March 22, 2014, Ms. K’s brother and a friend came to the home to see Ms. K because she had told her brother what was happening in the marriage. Mr. H came home and got into a verbal conflict with Ms. K’s brother. The brother confronted Mr. H about his infidelity. Mr. H is alleged to have said to the brother that he would “bury the brother six feet under”. Mr. H told the brother to move all of Ms. K’s belongings out of the home. At this point Ms. K moved out.

[15] On March 23, 2014, Ms. K reported Mr. H’s treatment of her to the police. The brother`s friend also made a statement to the police.

[16] Crown counsel seeks to adduce evidence in the nature of the narrative of the couple’s relationship throughout their brief marriage. The areas of discreditable conduct Crown counsel seeks to adduce are as follows:

• the shouting and derogatory names directed at Ms. K;
• the incident involving taking $2,500 of the wedding money then telling Ms. K she is living off him for free;
• the disputes over the quality of Ms. K’s cooking and cleaning and the payment of rent;
• evidence concerning Ms. K’s belief the accused from September 2013 was cheating on her with a woman from work and the conflicts that arose because of this;
• the accused’s decisions to kick Ms. K out of the bedroom in late February 2014, to move her belongings into the furnace room and to install a lock on the bedroom door; and
• the accused’s threats to call immigration on Ms. K after the alleged rapes if she did not leave the house.

The Law and Analysis

[17] Crown counsel relies on case authorities decided by the Ontario Court of Appeal which set out the framework for determining a discreditable conduct application.

[18] The basic governing principle is that evidence of discreditable conduct is presumptively inadmissible and is not admissible unless:

(a) It is relevant to one or more issues at trial; and (b) Its probative value outweighs its prejudicial effect.

[ R. v. Johnstone, 2014 ONCA 504, at para. 22 (Ont. C.A.)]

[19] The R. v. D.S.F. case deals with the use of discreditable conduct evidence in the context of a criminal domestic assault case. Many of the court’s observations are pertinent and useful to a determination on this application. R. v. D.S.F. is important for the proposition that evidence of prior discreditable conduct is relevant to assist the court in understanding a domestic relationship. Understandably, in a domestic sexual assault a picture of the nature of the relationship is critical to a determination of the central issue of consent. In cases involving evidence of sexual and physical abuse in an ongoing relationship courts have admitted evidence of discreditable conduct to assist the court in understanding the relationship between the parties and the context in which the alleged abuse occurred.

[20] R. v. D.S.F. provides examples of how prior discreditable conduct can assist triers of fact in determining the central issue. It can assist with:

• completing the narrative of the complainant’s description of her relationship with the accused;
• demonstrating animus against the domestic partner;
• establishing motive for the offence charged; and
• bolstering the complainant’s credibility as to why she failed to leave the relationship and report her abuse earlier than she did.

[R. v. D.S.F., at paras. 20 and 23-25]

[21] Courts have frequently found this type of evidence to be more probative of those issues than prejudicial to the accused: [R. v. D.S.F., at paras. 20 and 23-25].

Relevance

[22] Crown counsel argues the discreditable conduct evidence sought to be adduced is relevant to the first three issues cited by R. v. D.S.F.

[23] I agree with Crown counsel that absent the proposed evidence the triers of fact would be unable to comprehend the complainant’s actions and the relationship between herself and her husband. I find, as Crown counsel argues, that the evidence of the husband’s discreditable conduct is tightly intertwined into the fabric of the relationship. If it were even possible to separate that evidence from the evidence as a whole what would be created is an artificial and puzzling picture of the marriage.

[24] Crown counsel’s view, which I accept, is that an explanation for what might appear to be unusual conduct resides in the evidence of the increasing conflict, abuse and controlling conduct by the accused that grew in the relationship from early in the marriage. Mr. H’s demeaning and belittling tirades, his control over the running of the household, his control over the finances, his physical threat, the control he exercised over Ms. K’s behaviour by threatening divorce and to call immigration are evidence that on the Crown’s theory sets the backdrop for him committing the alleged offences.

[25] I do not accept the defence’s argument that the proposed evidence does not show that Ms. K was under Mr. H’s control. The defence submits the opposite is true citing the fact that she is not confined to the home; she can go to work; she can freely communicate with her brother in Saskatchewan. There are many types of conduct that qualify as control. The evidence Crown counsel seeks to adduce reflects Mr. H’s control by other means and in other areas of Ms. K’s life.

[26] In the Crown’s view, this behaviour explains Mr. H’s animus towards Ms. K and provides a motive for the sexual assaults and the physical assault Ms. K alleges. It provides a background for the ups and downs of the relationship, for the unusual on-again off-again sleeping arrangement where she was often banished to the living room couch while he slept in the bedroom. The proposed evidence can explain why Ms. K did not go to the police earlier.

[27] I find Crown counsel has succeeded in establishing the relevance of the proposed evidence to issues at trial.

[28] I do not accept defence counsel’s argument that Crown counsel has not succeeded at the first step in rebutting the presumption of inadmissibility because he failed to establish the first criterion of relevance to an issue at trial.

[29] Defence counsel’s argument suggests that the only issues to be considered in this case on this criterion are consent and honest but mistaken belief in consent. Defence counsel’s view is that the Crown has not established a nexus between the proposed evidence and consent. Defence counsel takes too narrow a view. The issues raised in R. v. D.S.F. and adopted by the Crown are themselves issues open for the jury to decide, issues that are related and ancillary to the central issue of consent, the determination of which can assist in deciding the main issue.

Probative Value and Prejudicial Effect

[30] I agree with Crown counsel that the probative value of the evidence sought to be admitted outweighs the prejudicial effect on Mr. H. On the Crown’s theory, the evidence of Mr. H’s abuse, aggression and control and Ms. K’s fear of Mr. H’s threats gives practical insight into the background of the relationship and the animus and motive for Mr. H to do the acts alleged against him. If the jury accepts this evidence, it has strong probative value in providing an understanding of the relationship between the Ms. K and Mr. H.: [ R. v. P.S., 2007 ONCA 299, at para. 39 (Ont. C.A.)]. The probative value of this type of evidence clearly outweighs prejudice to the accused.

[31] I reject defence counsel’s position that the proposed evidence is irrelevant to an issue at trial and his further view that the evidence brings more risk of prejudice than probative value.

[32] Crown counsel cited a case that raises a point to consider when weighing the risk of prejudice. The court in R. v. Johnstone held: “The risk of prejudice is further reduced by the fact that the evidence of other discreditable conduct goes to conduct far less serious than that for which the appellant stood charged”: [ R. v Johnstone, at para. 25]. I agree this applies to the case at hand in that the seriousness of the three sexual assault charges and the common assault far outweighs the seriousness of what is alleged against Mr. H in the proposed discreditable conduct evidence.

Conclusion

[33] I find Crown counsel has succeeded in rebutting the presumption of inadmissibility. The proposed evidence of discreditable conducted is admissible at trial.

Disposition

[34] I grant the application.

B.A. ALLEN J. Released: September 14, 2016