Court File and Parties

Court File No.: CR-17-70000254-0000 Date: 2018-07-03 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – C.W.Z.

Counsel: M. Mungovan, for the Crown J. Fernandes, for the Defence

Before: S.A.Q. Akhtar J.

I. Factual Background and Overview

Introduction

[1] The accused was charged with multiple counts of sexual assault against his wife, C.Q., and his daughter, C.L.

[2] The Crown brought a pre-trial application seeking the admission of uncharged prior discreditable conduct towards both complainants.

[3] At the conclusion of the evidence, and prior to closing addresses, the Crown made a second application to have the evidence of each count apply to each other count on the basis of the application of the similar fact rule.

[4] Both applications were resisted by the defence.

[5] Giving brief oral reasons, I granted the Crown’s first application with respect to the accused’s prior discreditable conduct: the evidence of uncharged prior discreditable conduct towards each complainant is admissible to prove the counts relating to that complainant. I also granted, in part, the Crown’s cross-count similar fact application but limited it to the counts pertaining to the same complainant.

[6] These are the reasons for my decision.

Background Facts

The Allegations Made by C.Q.

[7] C.Q. is 47 years old and was married to the accused in 1995. The union produced two daughters: C.L., who was born on […], 1995, and L.L., born on […] 2001.

[8] The marriage, however, was not a happy one. According to C.Q., the accused demanded sex when she was on her period and unwilling to engage in sexual intercourse. Notwithstanding her lack of consent, the accused forced himself on her. C.Q. remained silent about these incidents due to embarrassment.

[9] One night, when C.L. was three years old, C.Q., asked for a divorce as she and the accused were getting ready to go to bed. In response, the accused placed a kitchen knife under his pillow warning C.Q. that he would kill her before agreeing to a divorce as she could only ever belong to him. Again, C.Q. told no one about this incident. She explained her silence to be the result of a lack of confidence in the authorities and her belief that they would do nothing.

[10] C.Q. testified that the accused continued to force himself on her. Ten days after the birth of L.L., the accused demanded sex but C.Q. refused because she had just given birth. Once again, despite her protests, he climbed on top of her placing his penis between her legs. Even though C.Q. was unsure whether the accused had placed his penis inside her vagina, she remembered pain in her vaginal area.

[11] In 2006, C.Q. arrived in Canada to work as a nanny with her husband and children remaining in China. She returned home, for one month, in 2008, to see her family. During this visit, C.Q. saw the accused assault C.L. When she sought to intervene, the accused pushed her away causing an injury to her back.

[12] In December 2009, the accused, C.L. and L.L. emigrated to Canada to join C.Q., who testified that she wanted to keep the family together: a strong family unit needed two parents.

[13] The family rented an apartment in Toronto. However, the relationship between C.Q. and the accused continued to deteriorate. Both C.Q. and C.L. were fearful of the accused, who they felt acted in a manner designed to intimidate them.

[14] On one occasion, the accused accidentally walked into the corner of a table and scraped his thigh. Obtaining a cleaver from the kitchen he sawed off the corner of the table with C.Q. and C.L. watching.

[15] The sexual assaults on C.Q. continued on a monthly basis as the accused would force himself on C.Q. whilst she was on her period.

[16] C.Q. remembered two specific incidents that occurred in Canada, which form the basis for counts 4 and 5 on the indictment before the court.

[17] Count 4 deals with an incident that took place in the spring of 2011. C.Q. was two months pregnant and asleep in bed. The accused entered the bedroom and dragged her to the edge of the bed by her feet. When C.Q. asked the accused what he was doing she got no reply. Pulling off her underwear, the accused put C.Q.’s feet on his shoulders and had sex with her. C.Q. asked him to stop telling the accused that what he was doing was painful but he said nothing and continued the assault. C.Q. began to yell but became worried that she might scare the children who were sleeping in the next room. When the accused finished, he lay down on the bed and slept. The next morning C.Q. felt pain in her abdomen and realised she was bleeding. When C.Q. was examined at the local hospital, doctors told her that she had suffered a miscarriage.

[18] Count 5 concerns an assault that occurred in early 2014. C.Q. was in bed, wearing pyjamas, and the accused lay on top of her initiating sex. C.Q. told him that she was in pain and she wanted him to stop because she was menstruating. The accused ignored her pleas and inserted his penis into her vagina. As she continued to resist, he put her hands above her head. After he had finished, he wiped himself and went to sleep. The next morning, C.Q. discovered blood in her urine and the presence of abdominal pain. After taking antibiotics obtained from China she went to her family doctor who advised her to seek an ultrasound examination. She recalled that the pain lasted for a month.

[19] C.Q. remained silent about these incidents. However, when visiting C.L. who had been admitted as a patient at the Centre of Addiction and Mental Health, C.Q. noticed a leaflet containing information on sexual assaults. After reading the pamphlet, C.Q. realised that it was not acceptable to force women to have sex without their consent. This convinced her to go to the police.

The Allegations Made by C.L.

[20] C.L. is currently 22 years of age. She recalls the family relationship in China as being intimidatory and authoritarian. Education was a high priority in the household and the accused was very clear that she had to attain good grades. When he found her marks to be less than satisfactory he would get angry and punish her.

[21] As an example, C.L. remembers that when she received a score of 89 on her maths test the accused woke her from her sleep and made her sit on her knees for an entire night. The next morning she was unable to stand properly but went to school pretending that nothing had happened.

[22] After her mother left for Canada, when C.L. was 10 years old, she focused on her studies so that she could obtain entry into a good school.

[23] Some time thereafter, the accused began to sexually assault her.

[24] The accused would lie between C.L. and her sister, discussing school matters. During the conversation he would move on top of C.L. and turn his head to look at the clock on the wall. She would feel an object that felt like a popsicle between her thighs and then he would then move off her. When this happened she would be wearing underwear whilst he wore only boxer briefs. When she asked the accused what was between her legs he told her not to worry about it and moved back onto the bed.

[25] On another occasion, the accused began touching C.L. and kissing her. When she glanced down, C.L. saw the accused’s penis and realised he was not wearing underwear. C.L. jumped out of bed and told the accused that she was going to report the incident to her teacher but the accused responded by telling her that if she disclosed his actions to anyone, she would be disbelieved.

[26] There were other instances. On one occasion, the accused began kissing C.L. in the kitchen and she found her underwear being removed. On another occasion, the accused walked into the washroom when C.L. was naked and started hugging her. She saw his penis coming out of his boxer brief.

[27] C.L. did not disclose these occurrences in China because she had no one to go to and felt that she had no power to prevent the accused from committing the assaults. She also believed that if she told anyone she would be treated like a freak.

[28] After coming to Canada, C.L. tried to expose her father’s wrongdoings to L.L. C.L. was in the washroom telling L.L. that the accused was not really a loving father when he entered the washroom and questioned C.L. about the conversation. C.L. replied that she was telling L.L. the truth about him. The accused pinched C.L.’s arm so severely that she described it as being akin to having blood squeezed out of her veins.

[29] C.L. felt she could report the accused’s assaultive behaviour because the authorities in Canada would be responsive. Accordingly, she called 911 to summon the police. However, her mother arrived and panicked, calling a friend. According to C.L., her mother informed her that her friend had explained that if C.L. reported the incident the family would be deported. Consequently, when the police arrived, C.L. changed her story and denied any assault.

[30] According to C.L., the sexual assaults continued after the 911 call. They would happen, on average, once a week. The accused would read to L.L. and, after she fell asleep, would get on to C.L’s bed and lie on top of her. Sometimes he would wear boxer briefs, and on other occasions, jeans with the zipper left open. The accused would then kiss C.L. and move his body up and down on her. C.L. would yell out loudly calling for her mother but the accused would get off before C.Q. could enter the room. When C.Q. enquired why the accused was in their daughters’ bedroom, the accused told her that he was checking to make sure his daughters were asleep.

[31] C.L. alleges that when the accused lay on top of her, his body remained over the blanket whilst hers was underneath. She described the accused’s kisses as being vigorous, as if he was going to eat her mouth. This would cause C.L. to “freak out”. The accused’s penis would be in between her thighs but on top of the blanket and he would move up and down on her. Throughout these incidents, L.L. would remain asleep.

[32] According to C.L., the assaults finally ended when she asked her father how a future husband would feel when he learned about the accused’s actions. The accused informed C.L. that if she told anyone about his conduct, she would suffer devastating consequences. However, he did not assault her again.

[33] The allegations finally came to light when C.L. was admitted to the Centre of Addiction and Mental Health and spoke to a psychiatrist who told her that she needed to report the allegations to the police.

II. Ruling on the Admissibility of Uncharged Prior Discreditable Conduct

Should the Crown be Allowed to Make the Application?

[34] Prior to argument, counsel for the accused, Mr. Fernandes, objected to the application on the basis that he had been led to believe that no evidence of prior discreditable conduct would be led by the Crown. He drew the court’s attention to the judicial pre-trial form filed before the court pointing out that the section dealing with “Prior Discreditable Conduct” had been marked “n/a”.

[35] According to Mr. Fernandes, Crown counsel attending the pre-trial (not Ms. Mungovan), indicated that no prior discreditable conduct would be adduced. Based on the Crown’s “new position”, Mr. Fernandes sought an adjournment citing two justifications.

[36] First, Mr. Fernandes said that had he been notified of the Crown’s intention to lead prior discreditable conduct evidence, he would have made an application to obtain commission evidence in China. Secondly, Mr. Fernandes had previously brought a Third Party Records application seeking the release of immigration and school records. The application was denied. Mr. Fernandes submits that the application did not ask the court to take into account the prior discreditable conduct now sought to be led by the Crown. Had that been the case, argues Mr. Fernandes, his arguments and the result of the application would have been significantly different.

[37] Crown counsel, Ms. Mungovan, on the other hand, told the court that it was her understanding that both parties had agreed that the prior discreditable conduct evidence was admissible and therefore a formal application was unnecessary. This reasoning led to the form being marked “n/a”. Ms. Mungovan also points out that prior discreditable conduct is routinely admitted in cases of domestic sexual assault and there would be no reason for the Crown to discard such valuable testimony.

[38] I rejected Mr. Fernandes’s request for an adjournment of the trial for the following reasons.

[39] First, his claim that he would seek commission evidence was founded on speculation. Mr. Fernandes could not say with any detail who the witnesses in China were, what they might specifically say, and whether they were even willing to testify on behalf of his client.

[40] Second, and more importantly, I found that Mr. Fernandes’s recollection of events to be faulty. His claim that he omitted any reference to prior discreditable conduct in his Third Party Records application because he was unaware that the Crown intended to adduce this evidence is contradicted by the materials filed as part of that motion.

[41] In his Notice of Application, dated 2 October 2017, Mr. Fernandes explicitly states that one of his grounds for seeking the immigration and school records is that:

[C.Q.], the complainant and the wife of the accused, sponsored the accused to come to Canada after living separate and apart from him for two years. These immigration documents required [C.Q.] to detail the relationship she had with her husband and family. The abuse towards [C.Q.] is alleged to have occurred throughout their marriage. The complainant and the accused were married on January 5, 1995 in Xi’an China. The trial is entirely a contest of credibility.

[42] Moreover, in his factum supporting the application, Mr. Fernandes writes, at paras. 14 and 15:

14. The complainant related stories of physical abuse by the accused towards her child [C.L.] at the preliminary inquiry and acquiesced to it when she left [C.L.] in the accused’s care. But [C.Q.] was entrusted with the care of her employer’s children for at least 24 months. The employer’s evidence about how [C.Q.] treated the employer’s children and how [C.Q.] spoke about her own family is relevant to her claim that she witnessed and acquiesced child abuse.

15. The immigration document will have information about Ms. Cao’s marriage status and possibly details about the relationship between her and the accused. The allegations faced by the accused are part of the historical relationship between the complainant and the accused and the dynamics of that relationship are likely to be highly relevant to the issues at trial. [Emphasis added]

[43] These items indicate that the Crown did notify Mr. Fernandes of its intention to lead prior discreditable conduct and that he knew that it would be a live issue at trial.

[44] Accordingly, I dismissed his application for an adjournment of the trial. However, I did adjourn the matter for one day to allow him to properly prepare for the application and make arguments in opposition.

The Evidence to be Adduced

[45] As previously described, both C.Q. and C.L. allege that the physical and sexual abuse inflicted by the accused began well before the family settled in Canada.

[46] Ms. Mungovan, for the Crown, seeks admission of these uncharged allegations to explain:

• The nature of the relationship and the accused’s long standing sexual interest in both complainants
• The fear felt by both complainants and the reason for their failure to report the allegations
• The reason why C.Q. chose to remain in the domestic relationship rather than leave when the assaults began

[47] The Crown requests admission of the following evidence of abuse inflicted in China:

• The accused hitting C.Q. on her right ear with such force that she temporarily lost hearing
• The accused grabbing C.L.’s hair, pushing her to the ground, and stepping on her
• When C.Q. questioned this incident, the accused pushing her with such force that she sustained injury to her back
• The sexual assaults on C.Q. that occurred in China that mirror the Canadian allegations of forced sex when C.Q. was menstruating
• The sexual assaults on C.L. that commenced in China when she was approximately 11 years of age
• The accused damaging furniture and other objects in the home when enraged
• The physical abuse of C.L. that occurred after the family had arrived in Canada

Legal Principles

[48] The leading case of R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, sets out the governing principles in deciding the admission of similar fact evidence. The onus is on the Crown to establish, on a balance of probabilities, that in the circumstances of any given case, the probative value of the evidence outweighs its prejudicial effect: Handy, at para. 55; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 33; R. v. Cresswell, 2009 ONCA 95, at para 10.

[49] Handy, at para. 71, made clear that the admissibility of the evidence pivots on showing more than mere general propensity to commit the offence and must be of significance to a live issue in the offences before the court.

[50] A list of (non-exhaustive) factors to be considered when assessing probative value includes:

1. The live issue that the evidence seeks to relate to;
2. Proximity in time of the similar acts;
3. Similarity of the acts;
4. Number of occurrences;
5. Circumstances surrounding or relating to the similar acts;
6. Distinctive features;
7. Intervening events; and,
8. Any other factor supporting or rebutting the underlying unity of the acts.

[51] These factors must be evaluated through the lens of prejudice. A court must consider whether the issue to be proven by the evidence can be established by evidence of a lesser prejudicial nature. In addition, the court must be mindful of the risk that the evidence becomes a distraction drawing focus away from the actual offence and consuming a disproportionate amount of time (“reasoning prejudice”).

[52] In this case, identity is not in issue. The question for the jury is whether the accused committed the acts reus of the offences. In Handy, at para. 78, the court pointed out that in these cases “the drivers of cogency in relation to the desired inferences” will not be the same as a case where the accused had not been directly identified as the perpetrator of the offences. There, the court found that if the issue had been identity the similar fact evidence would not have been admissible because “it was not so ‘peculiar and distinctive’ as to amount to a ‘signature’ or ‘fingerprints at the scene of the crime’”: Handy, at para. 79. By contrast, if the issue had been something other than identity, a dissimilar act would still be admissible if it yielded an inference on the issue to be decided.

[53] In J.M., at para. 91, Watt J.A. explained this doctrine in the following way:

The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is proffered (sic) and the other evidence in the case: Handy at para. 78. Where the evidence of similar acts is summoned in support of proof of the acts reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused's conduct in closely defined circumstances. What becomes necessary in such cases is a persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences: Shearing at paras. 48 and 50. The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred.

[54] The use of prior discreditable conduct evidence relating to the same complainant is well founded in the jurisprudence. In R. v. W.B. (2000), 145 C.C.C. (3d) 449, at para. 102, Doherty J.A. explained why:

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.

[55] The evidence of prior discreditable conduct in a domestic context has long been seen as a valuable tool in assessing the nature of the relationship between an accused and the complainant as well as providing a clearer picture of the context in which the allegations took place. It is on this basis that it often derives strong probative value.

[56] In the leading case of R. v. D.S.F. (1999), 43 O.R. (3d) 609 (C.A.), the trial judge admitted evidence of prior discreditable conduct for narrative purposes; to demonstrate motive and animus and to allow the court to understand the reasons for the complainant failing to leave the relationship and report the abuse. On appeal, the court held the evidence to be properly admitted. At p. 616, O’Connor J.A., as he then was, wrote:

In cases involving allegations of physical and sexual abuse in the course of an ongoing relationship, courts have frequently admitted evidence of discreditable conduct to assist the court in understanding the relationship between the parties and the context in which the alleged abuse

[57] The court added, at p. 617:

In this case, the evidence, which in general terms described a pattern of abusive behaviour towards the complainant, if accepted, was capable of assisting the jury in understanding why the appellant did what was alleged in the indictment. This evidence demonstrated an animus on the appellant’s part towards the complainant that was consistent with the offences with which he was charged. The trial judge was correct in holding that the impugned evidence was relevant for this purpose.

[58] In R. v. R.(B.S.) (2006), 81 O.R. (3d) 641 (C.A.), a case of domestic assault by a husband against his wife, the Crown sought admission of prior discreditable conduct identifying the following issues in question:

(a) complete the narrative by permitting comprehension of the true nature of the relationship between the accused and the complainant; (b) assist in refuting the anticipated defence that the complaint was fabricated by explaining the basis for the complainant’s fear, why she did not leave the marriage, why she did not report the incidents sooner, and why she did not report the incidents more fully when given the opportunity; (c) explain the power and control dynamics in the relationship; (d) demonstrate possible motive or animus on the part of the accused; and (e) avoid making the complainant describe a single act of violence without context and consequently run the risk that a trier of fact might unfairly discredit her testimony.

[59] The trial judge admitted the prior discreditable conduct, remarking, in reasons reproduced at para. 30 of the Court of Appeal’s decision,

The Crown’s application as filed with respect to the evidence of prior marital abuse and disharmony and the evidence as set out in their factum will be admissible. I have reviewed the case law. It is clear to me that this evidence has a probative value to this court. As set out in the case law, it goes to the history of the relationship. It goes to the credibility of the complainant. It goes to refute the defence's argument of fabrication, and it [is] highly probative as to the nature of the relationship between the accused and the complainant.

As to the weight to be given, it will obviously depend upon the cross-examination and the evidence of the accused.

[60] The Court of Appeal for Ontario held that the evidence was rightly admitted, adding, at para. 38:

In view of Handy, it would have been preferable had the trial judge not identified M.R.’s credibility generally as one of the issues in respect of which the discreditable conduct evidence was admissible. But the admission of this evidence was firmly anchored in its relevance to the other issues identified by the trial judge and outlined by the Crown in its factum. The evidence was admissible to explain the nature and dynamic of the relationship between the appellant and M.R., to demonstrate the appellant's animus toward M.R., to assist in explaining M.R.’s delay in fully disclosing the assaultive acts of her husband, and to rebut the appellant's claim of fabrication by M.R. Moreover, unlike the facts in Handy, the evidence in this case was provided by M.R. herself, and not by a third party.

[Citation omitted.]

Is the Uncharged Prior Discreditable Conduct Admissible in this Case?

[61] As has already been noted, the courts have held prior discreditable conduct to be important evidence in the context of domestic abuse.

[62] Here, I find the evidence to been an essential part of the narrative of events. Even though the counts on the indictment allege only the sexual assaults occurring in Canada, the jury can only properly evaluate the allegations with the knowledge that the abuse commenced much earlier. Failure to inform the jury of that fact would leave them with an incomplete and misleading account of the relationship between the accused and the two complainants: D.S.F., at para. 22; R. v. R.O., 2015 ONCA 814, 333 C.C.C. (3d) 367, at para. 16. Moreover, the jury might question why the abuse only began when the family arrived in Canada and speculate as to the causes. As said, in R. v. S.B., [1996] O.J. No. 1187 (Gen. Div.), at para. 31 denying the jury this evidence “runs the risk of presenting an entirely sterile antiseptic record devoid of the realities of the individual circumstances of the participants.”

[63] Moreover, the prior discreditable conduct is also helpful in understanding and evaluating any animus held by the accused towards the complainants, and the failure to report the abuse: D.S.F., at paras. 25-26; R. v. P.S., 2007 ONCA 299, 221 C.C.C. (3d) 45, at para. 39.

[64] Both complainants allege an atmosphere of oppression in the family home. This is evidenced by the physical assaults on both C.Q. and C.L., as well as the incident where the accused sawed off the table corner in anger.

[65] I find that the prior discreditable conduct evidence is highly relevant and whilst it is undoubtedly prejudicial, that prejudice is significantly outweighed by the probative value. A limiting instruction informing the jury of the proper use of the evidence will restrict any misuse of the evidence.

[66] The prior discreditable conduct is therefore admissible at trial.

III. Ruling on the Admissibility of Cross-Count Similar Fact Evidence

Introduction

[67] At the conclusion of the trial, the Crown applied to have evidence of each count apply to the others on the indictment. Mr. Fernandes did not object to a count to count use of the similar fact evidence in relation to the same complainant but opposed count to count use between the two complainants.

[68] After hearing submissions, I ruled that the evidence regarding counts relating to each complainant were admissible only against the same complainant but that the evidence relating to C.Q. could not be used in determining guilt with respect to the counts pertaining to the assaults on C.L. and vice versa.

[69] These are the reasons for my decision.

Is the Similar Fact Evidence Admissible Between Complainants?

[70] As has already been discussed, the onus is on the Crown to establish, on a balance of probabilities, that in the circumstances of any given case, the probative value of the evidence outweighs its prejudicial effect: Handy, at para. 55; Shearing, at para. 33; Cresswell, at para 10.

[71] The use of cross-count evidence relating to the same complainant is well founded in the jurisprudence. As Doherty J. explained in W.B., at para. 102, the probative value of evidence demonstrating a strong disposition to do the very act alleged in the indictment may be so strong that it overcomes its potential prejudice:

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.

[72] Thus, the cross-count use of evidence against the same complainant in this case is justified.

[73] However, this reasoning does not apply to counts involving different complainants. Here, there was no similarity in the acts themselves or circumstances surrounding the acts. Evidence that the accused forced C.Q. to submit to unwanted sex whilst on her period would not assist the jury in deciding whether the accused sexually C.L. in her bed.

[74] There was no similarity in method leading up to the alleged crimes or their execution. I accept that the fact that different complainants and different modus operandi is not determinative of the issue: see for example, R. v. J.H., 2018 ONCA 245. However, in this case, I find that the probative value of the evidence of sexual assault against C.Q. would be outweighed by its prejudice if it was available for use in the allegations concerning C.L., and vice versa.

[75] For these reasons, the Crown’s application is, in part, denied. Cross-count evidence may only be used against the same complainant but is not admissible with respect to counts concerning the other complainant.

S.A.Q. Akhtar J. Released: 3 July 2018