R. v. A.C., 2019 ONSC 3517

Non-Publication Order

WARNING The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

Subsection 486.6 (1) of the Criminal Code states: Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

NEWMARKET COURT FILE NO.: CR-17-07871-00 DATE: 20190610 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Applicant – and – A.C. Defendant/accused

Counsel: Phyllis Castiglione, for the Provincial Crown Ian B. Kasper, for the Defendant/accused

HEARD: February 20, 2019

REASONS FOR DECISION ON AN APPLICATION FOR ADMISSION OF PRIOR DISCREDITABLE CONDUCT

SUTHERLAND J.:

Introduction

[1] The applicant, the Crown brings an application for an order permitting the admission of discreditable conduct of the defendant towards the complainant during the course of their relationship.

[2] The defendant has been charged with two counts of sexual assault against the complainant and has elected to be tried by judge alone.

[3] The discreditable conduct of the defendant the applicant seeks to adduce (the proposed evidence) includes:

(a) Urinating on the complainant in the shower.

(b) Taking a photo on the complainant sleeping naked, without her consent.

(d) Pulling down the complainant’s top to expose her breasts on several occasions in public and in the car, including two specific occasions in the fall of 2009 before they were married and in the summer of 2010 after they were married.

[4] The defendant opposes the application of the Crown and requests that the application be dismissed.

Factual Basis

[5] The defendant and the complainant began dating in 2006.

[6] They were married on July 16, 2011.

[7] The complainant gave a sworn video statement to the police on August 6, 2017 (the police statement). She also testified at the preliminary hearing on June 12, 2018.

[8] In the police video statement and at the preliminary inquiry, the complainant describes the proposed evidence sought by the Crown to be introduced as evidence.

[9] Neither the complainant nor the defendant testified at this voir dire. The evidence elicited at this voir dire was by way of affidavits, the police statement and the transcripts from the preliminary inquiry.

Positions of the Applicant and the Defendant

[10] The applicant submits that the proposed evidence is relevant and should be permitted to be introduced at trial because the evidence provides:

(a) a narrative to the relationship;

(b) the true and complete nature of the relationship;

(d) motive and animus of the defendant towards the complainant which is relevant to the state of mind of the defendant to show his attitude and behaviour towards the complainant;

(e) to rebut the defence of innocent association or mistaken belief in consent; and

(f) to explain the failure of the complainant to report the abuse earlier or leave the relationship earlier.

[11] The defendant opposes the application of the Crown, except on the two specific incidences of the shirt-pulling to expose the complainant’s breasts, on two main submissions. The first is that the material before the court is not complete and has not disclosed any details of the proposed evidence. The proposed evidence was not sufficiently or at all questioned by the Crown at the preliminary inquiry and thus was not cross-examined upon by the defendant. The proposed evidence is lacking in detail or specificity.

[12] The second submission is that there is little, if any, probative value in the proposed evidence and, that its prejudicial effect outweighs any probative value. To permit the proposed evidence to be presented at trial will risk the turning of the trial into an inquiry of the defendant’s sexual relationship with the complainant rather than the specific charges. The defendant represented that he will not be presenting the defence of innocent association or mistaken belief in consent and this is not an issue in this trial. He further represented that he will not be making any argument concerning the failure of the complainant to report the alleged abuse earlier or leave the relationship earlier and this is not an issue in this trial.

Analysis - Discreditable Conduct

Legal Principles

[13] All relevant evidence is admissible, subject to any of the exclusionary rules. Propensity evidence, that is, evidence of misconduct that is not the subject matter of the offences, is presumptively inadmissible. The rationale for propensity evidence being presumptively inadmissible is that because such type of evidence has the potential to cause significant prejudice against the accused. The trier of fact may have the inclination to engage in reasoning prejudice and moral prejudice. Reasoning prejudice is to correlate the discreditable conduct of the past with the conduct that is the subject matter of the offences. If the accused engaged in such conduct in the past, the accused must have engaged in the present conduct that is the foundation of the offences charged. Further, reasoning prejudice may result in the trial focusing of the discreditable conduct of the accused rather than the subject matter of the charges resulting in a disproportionate amount of time, resources and effort that is of relatively little value in the trial. Moral prejudice is equally prejudicial against the accused. It relates to the risk that a trier of fact may find the accused guilty of the offences charged based on that the accused is a bad person with discreditable conduct and thus, is deserving of punishment. [1]

[14] Discreditable conduct can be admissible at a trial if it is relevant to one or more of the issues at trial and the evidence’s probative value outweighs its potential prejudicial effect. [2]

[15] The proposed evidence must be relevant and cogent that its probative value outweighs its potential prejudicial effect, on a balance of probabilities. [3]

[16] Issues at a trial that may make the proposed evidence relevant include:

(i) Similar behaviour and the degree of similarity of behaviors towards the complainant. [4]

(ii) Similar behaviour towards someone other than the complainant and the degree of similarities. Of that behaviour to confirm the complainant’s testimony and that the defendant’s conduct was unlikely the result of coincidence. [5]

(iii) Motive or animus towards the complainant. [6]

(iv) Narrative including the description of the relationship between the accused and the defendant leading up to the events that resulted in the charges. [7]

[17] In ascertaining whether the discreditable evidence should be admitted, Doherty J.A. in R. v. W.B. [8] stated, at paragraph 106:

My colleague has captured the crucial issue to be addressed when determining whether discreditable conduct evidence should be admitted on the basis of propensity reasoning. Evidence which tends to show a more that a general disposition must be distinguished from evidence which demonstrates a disposition to do the very thing alleged in the indictment. If the evidence of the discreditable conduct is such that it shows a strong disposition to the very act alleged in the very circumstances alleged, then the evidence has a “real connection” to the very issue to be decided-did the accused commit the act….The probative potential of propensity reasoning will be highest where the discreditable conduct is temporally connected to the allegation in the indictment and involves repeated acts of the same kind with the same complainant as those alleged in the indictment. (citations omitted)

[18] I will now turn to the proposed evidence.

The shirt-pulling

[19] The defence, during argument, indicated that it is his position that the application of the Crown be dismissed except for the two specific shirt-pulling incidents. The proposed evidence of shirt-pulling is that the defendant pulled the complainant’s shirt to expose her breasts. The two incidents took place in the fall of 2009, before their marriage, and in the summer of 2010, after the marriage. [9] I need not deal with these specific incidents given the defendant’s position.

[20] The Crown also wishes to admit into evidence at the trial several other incidences of shirt-pulling. There are sparse facts relating to the other several incidences of shirt-pulling that the Crown wishes to elicit. There are no specific times given and it is uncertain as to whether these incidents took place before or after the offences for which the defendant has been charged.

[21] In reviewing the evidence provided on the motion, it is difficult to find the probative value of these incidents. The factual basis is so minimal that the trier of fact is not provided with enough relevant or cogent evidence such that the probative value exceeds the prejudicial effect.

[22] It seems as though this evidence may be used for the proposition that the behaviour is so offensive, the defendant should be punished for this type of conduct, rather than for the offences he has been charged. The conduct, in my view, does not provide any narrative or motive that has a real connection to the offences charged.

[23] There also exists the significant probability that the trial could be hijacked by the evidence required to substantiate the accounts of the various incidents. The purpose of the trial, to determine whether the Crown has proven the offences against the defendant beyond a reasonable doubt, may be derailed by the exercise to ascertain the facts of the shirt-pulling incidents.

[24] Thus, after balancing the probative value and prejudicial effect of admitting the other several incidents of shirt-pulling, this evidence shall not be presented at trial and the Crown’s application of the several shirt-pulling incidents is denied, with the exception of the two specific incidents of the shirt-pulling, in the fall of 2009, before the marriage and the summer of 2010, after the marriage.

Urinating on the complainant the shower

[25] The evidence that the Crown wishes to admit into evidence is that twice, when the defendant and the complainant were in the shower, the defendant urinated on the complainant and laughed. [10]

[26] I agree with the defendant, I do not see that this incident is of much probative value. I do not find that there is a “real connection” to the offences of sexual assault against the defendant. The connection is very tenuous. Further, there are no specifics on when these incidents took place. It is not known to the court if the urinating took place before the subject matter of the charges to show a pattern of behaviour of the defendant prior to the alleged offences.

[27] In addition, there is a potential of a prejudicial effect that the trier of fact concludes that this behaviour that the defendant is childish and disgusting warrants a form of punishment. Rather than deciding on whether the defendant is guilty beyond a reasonable doubt, the trier could paint the defendant has a person who must be taught how to behave maturely and is deserving of punishment.

[28] In the end, I am not satisfied that there is a high probative value to this evidence that outweighs a potential of prejudicial effect to permit the admissibility of this evidence.

[29] I do not grant the relief requested by the Crown on this evidence.

Taking pictures of the complainant naked and pictures of her vulva

[30] The evidence that the Crown wishes to introduce is found in the police statement of the complainant. [11] The evidence is that, without the consent of the complainant, the defendant, on separate occasions, took pictures with his smart phone of the complainant sleeping naked, of her vulva and the defendant shared these pictures with his brother’s friend.

[31] The Crown did not elicit this evidence at the preliminary inquiry of the defendant. The defendant did not cross-examine the complainant at the preliminary inquiry on these incidents, even though these incidents are clearly set out in the police statement of the complainant.

[32] The defendant objects to the Crown introducing this evidence on the basis that the Crown has not provided disclosure of the particulars of this evidence to the defendant and the defendant did not cross-examine the complainant on this evidence at the preliminary inquiry.

[33] This evidence appears to have a connection between the conduct of the defendant and the offences dealing with the defendant’s motive or animus towards the complainant. This animus or motive is that of the defendant’s objectification of the complainant. Treating the complainant as a sex object to use as he deems fit; along with his failure to heed to the complainant’s concerns and wishes. In effect, the type of conduct that would disrespect the complainant’s sexual integrity that shows not only the relationship between the complainant and the defendant leading up to the offences charged but also why the defendant may have done the actions charged.

[34] The picture taking did happen before the conduct that forms the foundation of the charges against the defendant. According to the police statement, the taking a picture of the complainant’s vulva took place before the complainant and the defendant got married and the taking of pictures of the complainant naked took place the summer before the offences for which the defendant is charged.

[35] I am not persuaded by the argument of the defendant that the failure of the Crown to question the complainant on these incidences at the preliminary inquiry and the failure of the defendant to cross-examine the complainant precludes the ability of the Crown to attempt to introduce this evidence at trial, as discernable conduct of the defendant. The defendant did not direct the court to any cases where such failure by the Crown and defence mandates that the Crown cannot attempt to introduce the evidence at trial. There was no evidence in which the court was directed that the Crown agreed not to attempt to introduce this evidence at trial.

[36] I am satisfied that the probative value of this evidence outweighs any prejudicial effect. The police statement describes the incident in enough detail for the defendant to be able to make full answer and defence. The statement gives details and the time period in which these incidents took place.

[37] The connection between the offences charged and the animus or motive of the defendant in the relationship between the defendant and the complainant, in my view, makes this evidence of enough probative value to be admissible at trial.

[38] I find the statements of Doherty J.A. in R. v. P.S. instructive, whether the trial is by judge and jury or by judge alone:

…It is evidence given entirely by the complainant, and if the jury did not accept her evidence about the charges themselves, it is unlikely that they would be greatly swayed by her additional evidence of this prior disreputable conduct. [12]

[39] Thus, I find that the evidence of the complainant on the incidents of the taking of the pictures as described above is admissible at the trial of the defendant.

Disposition

[40] The application of the Crown is granted only on the two specific incidents of the shirt-pulling and the taking of pictures of the complainant’s vulva and of her naked, as described in the police statement dated August 6, 2017.

Justice P.W. Sutherland

Released: June 10, 2019