SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HMTQ v. J. I.
BEFORE: The Honourable Justice James W. Sloan
COUNSEL: Jill McKenzie - Counsel for the Crown
David M. Humphrey & Seth P. Weinstein – Counsel for J. I.
HEARD: September 8, 2017
ENDORSEMENT
1There is a publication ban in this matter pursuant to section 539 of the Criminal Code of Canada.
2The accused is charged with numerous counts of assaults, and unauthorized possession of firearms, prohibited weapons and ammunition contrary to the Criminal Code of Canada.
3The accused is the spouse of the complainant A. B. and father of the child L. I..
4The accused is alleged to have assaulted the complainant in various manners resulting in her suffering bruises.
5The complainant reported the assaults to the Hamilton Police Service on or about January 13, 2016.
6On that occasion she told police where firearms were stored in their home and gave information as to her knowledge of the source of the firearms.
7Armed with a search warrant, the firearms were located by police in the residence, as described by the complainant.
8The Crown seeks to have the court admit evidence of the accused’s prior discreditable conduct from September, 2008.
9On that occasion the accused’s former spouse Ms. I., reported to police that she and their child had been assaulted and in October, 2008 she told police that the accused had possession of a firearm and 11 rounds of ammunition locked in a safe in the family home.
10When the police searched the residence they found the firearms and ammunition as described. At the time the accused did not have any license or authorization to possess the firearm.
11To some extent both parties rely on the same case law.
12Both parties agree that propensity/similar fact/discreditable conduct evidence, is presumptively inadmissible where it does no more than raise the bad character, general disposition or propensity of the accused.
13The Crown submits, that if it can establish that the probative value of such evidence outweighs its prejudicial effect, it is admissible and therefore the onus is on the Crown to prove this on a balance of probabilities.
14Based on the case of R v Handy (2002), 2002 SCC 56, 164 C.C.C. (3rd) 481 (S.C.O.) the Crown submits the court must review the evidence having regard to:
i. Identifying the purpose and use of the evidence which is sought to be admitted.
ii. Considering the nexus between the “propensity evidence” and the fact(s) in issue. Factors to be considered would include, proximity in time, the extent to which other acts are similar in detail to the charged conduct, the number of occurrences of similar acts, circumstances surrounding or relating to the similar acts, intervening events and any other factor which would tend to support or rebut the underlining unity of the similar acts.
iii. Identifying the connecting factors.
15With respect to the accused’s allegation of collusion, the Crown submits that the defence must establish more than mere opportunity for collusion.
16In the case at bar, the Crown submits the evidence is admissible to:
a) Rebut the accused’s assertion that the complainant had a requisite detailed knowledge to “frame” the accused by planting the firearms in question; and
b) Establish that as between the two of them, it was the accused who was the one who had an interest in firearms and access to the said firearms, to rebut the assertion by the defence that the guns belong to the complainant.
Nexus
17The Crown submits that the ultimate issue at trial will be, who between the complainant and the accused, possessed the firearms. The Crown further submits that the defence will suggest the complainant planted the firearms because of her knowledge of the accused’s history.
18Therefore the Crown argues, it is clearly relevant to establish what the knowledge of the complainant was and whether she or the accused had the propensity to legally possess firearms. Furthermore and in addition, the accused’s propensity to possess a firearm will be raised by the accused.
19While the Crown acknowledges that there is no connection by timing or other factors and there are no intervening events to be considered, she submits that the acts are similar, and that the accused is alleged to have twice illegally possessed a handgun in his home in similar circumstances, there is one prior offence and the surrounding circumstances are quite similar.
20With respect to the negatives referred to in the Handy case the Crown submits:
a) That while the existence of the accused’s record may be inflammatory, its details are not and it is the respondent who seeks to raise the issue of his record at trial through cross examination of the complainant.
b) Since the evidence could be presented to him by transcript of the accused’s guilty plea along with surrounding questioning of the current complainant its introduction would not consume significant time,
c) There is no less prejudicial way to prove this evidence and it is a respondent who seeks to raise the issue directly by the leading evidence of the respondent’s conviction.
Collusion
21The Crown submits that there is no evidence of any collusion between the complainant and the accused’s former spouse nor any evidence that the complainant had access to the court transcript where the accused pled guilty.
The Defence’s Position
22The complainant alleges that the accused brought firearms into their house on three occasions. Once, sometime in 2014 or 15 when she saw the accused using a white rag to hold a gun in a small black bag, around Christmas time of 2014 and although she never saw the gun she testified the accused told her he had a gun inside of the small gift box and in October or November 2015 when he was carrying a gun inside a sock.
23The complainant testified that she forgot about these firearms until January 8, 2016, when she found a bag under the sink and recognized the boxes that the accused had previously brought into the house.
24After seeking legal advice she made a statement to police on January 13, 2016.
25On the same day she filed material in Family Court and received an interim order for custody and exclusive possession of the family home.
26Although the respondent testified, that the accused’s first spouse to did not tell her anything about the assault on her or with respect to the handgun, she was aware prior to contacting the police, that the accused had a criminal record that included a conviction for possession of a handgun and also for assaulting his ex-wife and son.
27The complainant was also aware that the accused settled the financial circumstances of his first relationship by paying several million dollars to his first spouse.
28She was also aware generally of the facts supporting the accused’s guilty plea in 2009, in that he possessed a handgun and ammunition, which were stored in his house.
29Based on para. 45 of R. v. C. (M.H.) [1991] S.C.R. 763, the accused submits: “A principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement in the alleged similar acts or counts is unlikely to be the product of coincidence…”
30Based on the Handy case, the accused submits:
a) The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact,
b) Credibility is often too broad a gateway for the admission of propensity evidence,
c) Where...the similar fact evidence is tendered to demonstrate a specific propensity, the trial judge must review the acts to determine whether there was a unique trademark or signature or whether they reveal a number of significant similarities sufficient to establish the objective improbability of coincidence. This review enables a determination of whether the acts suggest a system of operation on the part of the accused so as to establish a specific propensity to engage in this type of behaviour, which gives the evidence the requisite probative of force.
d) When similar act evidence is offered to prove matters other than identity, the factors that drive the cogency of the evidence differ. The focus on strong peculiarity or unusual distinctiveness underlying the events being compared is diminished. Instead the inquiry is concentrated on whether the proposed evidence makes it improbable that the events are the product of coincidence. However this exercise still includes an analysis of the extent to which the events described are similar in detail.
31The accused further submits, that it is only once the trial judge has determined, on a balance of probabilities, that the alleged acts have “significant similarities” that s/he must consider evidence linking each act to the accused.
Collusion
32The accused submits that the cogency of similar fact evidence is derived from the objective improbability of coincidence. If there is a possibility that the coincidence is not probable or is not a coincidence at all, similar fact evidence loses its cogency and it is inadmissible.
33While conceding that there is no collusion as that term is normally understood, he submits that there is collusion from the fact that the complainant did or may have tailored her evidence to coincide with the facts of the 2008 charges.
34The defence submits, that where there is evidence that establishes the possibility of collusion or collaboration, the crown bears the onus of disproving collusion before the evidence is admissible. The defence quotes from the Handy case as follows:
The court in Arp, supra, concluded that the test for the admission of similar fact evidence is based on probability rather than reasonable doubt (paragraph 65, 66 and 72). Accordingly where, as here, there is some evidence of actual collusion, or at least an “air of reality” to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission. It would then be for the jury to make the ultimate determination of its worth.
Here it is not sufficient for the Crown simply to proffer dicey evidence that if believed would have probative value. It is not incumbent upon the defence to prove collusion. It was a condition precedent to admissibility that the probative value of the proffered evidence outweighs its prejudicial effect and the onus was on the Crown to satisfy that condition. The trial judge erred in law in deferring the whole issue of collusion to the jury.
Is the Proposed Similar Act Evidence Admissible?
35The accused submits, that the issue is whether or not he has demonstrated a specific propensity to possess firearms and to rebut the allegation that the complainant had the knowledge necessary to plant the firearms and therefore frame him.
36Based on the foregoing paragraph, the accused submits that neither of these issues are proper purposes to justify admission of the evidence under similar act evidence principles.
37The accused submits that propensity evidence is not rebuttal evidence. Unlike good character evidence, and accused does not put his “propensity” in issue by suggesting that the complainant used her knowledge of the prior conviction to frame him in order to gain an advantage in Family Court proceeding.
38In furtherance of his position the accused quotes from the Handy case where Justice Binnie stated, “propensity evidence by any other name is still propensity evidence”.
39Justice Binnie went on at para. 59 to state: “It is occasionally suggested that once the similar fact evidence is related to an issue other than “mere” propensity or “general” disposition, it somehow ceases to be propensity evidence. I do not think this is true.”
40The accused further submits, that even if the court concludes that the Crown has identified a sufficiently narrow fact in issue capable of supporting the admission of similar fact evidence, that the evidence lacks sufficient similarity to be admissible.
41Based on para. 2 of the Handy case which sets out factors to be considered when attempting to connect the similar facts to the circumstances of the charge, the accused submits that the proposed evidence lacks sufficient similarity to be admissible. Specifically:
a) Proximity in time - There is no proximity in time between the allegedly similar act which took place in 2008 and the current alleged offences arising between 2014 and 2016,
b) Similarity in detail - Apart from the fact that the respondent is alleged to have possessed firearms there is no similarity in detail between the current allegation and the first conviction which involved one unloaded gun stored in a locked safe.
In the current case the accused is alleged to have possessed three handguns in various bag and boxes stored haphazardly, under the sink on the main floor of the accused’s house. The guns were loaded.
c) Number of occurrences - There is only one prior occurrence of the allegedly similar behaviour, the 2009 conviction.
d) Surrounding circumstances - If the Crown is referring to the domestic violence context of the prior conviction and the current allegations to try to establish some similarity, the accused submits that such a correlation forms a basis for the possibility of collusion which taints the probative value of the similar a fact evidence.
e) Intervening events - The accused was prosecuted and sentenced for the previous firearms offence in 2009. Based on the principles of deterrence this can be viewed as an intervening event which renders repetition of the offence less likely.
f) Conclusion - The accused submits that the similarities between the prior conviction and current alleged offences are sparse and the dissimilarities are significant.
Countervailing Factors
42The accused submits that, based on Justice Binnie’s reasoning in Handy, certain countervailing factors militate against the admission of the subject evidence.
43These factors would include the inflammatory nature of the similar acts and whether the Crown can prove its point with less prejudicial evidence; and the moral and reasoning prejudice perpetuated by the similar act evidence.
44The accused submits that the proposed evidence is rife with moral prejudice; namely, evidence that risks a conviction based merely on general disposition or propensity. In addition to the risk of moral prejudice it will prejudice the trial process since the circumstances surrounding the possession of the firearm would need to be examined, which would create a collateral issue that will consume trial time and cause unnecessary distraction from the primary task of the case.
45The moral prejudice is exacerbated by placing the details of the accused’s criminal record against that of the complainant and inviting guilt based upon that record. This is precisely the type of moral prejudice that the similar fact evidence rule is meant to guard against.
46The accused submits that the Crown can seek to prove its case through less prejudicial evidence, including the testimony of the complainant. If she is believed that she had no knowledge of firearms are under the sink until the day she discovered them while cleaning, this would lead to the inference that someone else placed the firearms under the sink. The Crown can further attempt to adduce other circumstantial evidence showing that no one else in the house had any knowledge of the firearms thus leading to the inference that it must be the accused who place them under the sink.
Collusion
47The accused submits that collusion is not limited to the classic scenario involving a conspiracy between witnesses. In this case the complainant was aware of the respondent’s prior conviction and was aware that Ms. I. received a significant monetary and property settlement in part due to the respondent’s criminal conviction.
48The accused submits, the Crown has not meet its onus to prove the absence of collusion. The fact, that the complainant’s allegations match Ms. I.’s complaints almost exactly, is consistent with the possibility that the complainant knew at least the broad details of Ms. I.’s complaints from 2008.
49Both ladies allege that the accused hit them and their child and that the accused broke their TV. Both ladies allege the accused kept a gun in the house.
50The accused submits that the possibility of collusion is so substantial that it negates any probative value that the similar act evidence might have and even if the evidence of collusion does not by itself render the proposed similar fact evidence inadmissible, it nevertheless weakens the probative value of the proposed evidence and weighs in favour of exclusion.
51The defence submits that the use that the Crown wishes to put the similar fact evidence towards, is to identify who owned/controlled the firearms in question.
52As such, he submits that the evidence is then inadmissible, unless it shows a high degree of distinctiveness and uniqueness such as to establish a trademark or signature.
53The accused further submits that the court does not need to know the true facts of what transpired in 2008 either with respect to the criminal charges or with respect to the family law proceeding.
54He submits, that what matters is what the complainant knew about the events in 2008 and not whether the 2008 facts as she understood them in 2016, were correct or not.
Findings
55It is evident to the court at the Crown wishes to use the similar fact evidence from 2008, to argue that the accused has the propensity to access and store guns at his home.
56To put it another way, the Crown wishes to use the similar fact evidence in an effort to convince the court that the accused was in control of the guns.
57Evidence of the accused’s previous possession and storage of guns in his home would certainly be inflammatory evidence, where the current charges are essentially for the same type of behaviour.
58Because there has been 6 to 8 years between the events there is essentially no proximity in time which links the two events.
59Other than the fact that guns and ammunition were found in the accused’s home, almost all other details of the two events are strikingly different. In 2008 the unloaded gun and ammunition were locked in the safe in the master bedroom, while in 2016 multiple loaded guns were precariously placed under the sink where anyone including children could access them.
60The number of occurrences is unremarkable, since there are only two.
61Other than perhaps alleged domestic violence, the surrounding circumstances are not similar.
62There are essentially no intervening events between the two incidences.
63Notwithstanding that this is a Judge alone trial, for the reasons given above I dismiss the Crown’s application.
64This does not preclude the complainant or others from testifying as to who owned or controlled the guns.
James W. Sloan, J.
Date: September 12, 2017