COURT FILE NO.: SCA(P) 1479/19
DATE: 20200918
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. T. Powell, for the Respondent
Respondent
- and -
DAVID LARION
Mr. S. Whitzman, for the Appellant
Appellant
HEARD: May 20, 2020 and August 24, 2020 by teleconference
REASONS FOR JUDGMENT
[On appeal from the conviction by Justice J. Freeman dated September 17, 2018]
Stribopoulos J.:
Introduction
[1] The appellant was convicted of sexual assault and sentenced to nine months imprisonment and two years of probation. He appeals against his conviction.
[2] The appellant owned a restaurant in Mississauga, where the complainant worked as a server. The complainant alleged that one evening, after closing for a vacation break, in late July 2015, while alone at the restaurant with the appellant, she accepted an invitation from him to share some cocaine. The pair went to the men's washroom to snort the cocaine. After the appellant had done so, the complainant alleges that when she bent over the bathroom counter to do the same, the appellant, while saying "the thing about cocaine is it makes me really horny," suddenly thrust his hand up her skirt from behind and penetrated her vagina with his fingers. The complainant testified to recoiling in shock when this happened before fleeing the washroom, collecting her belongings, and then leaving the restaurant.
[3] The appellant testified at trial and denied ever sexually assaulting the complainant. He testified, along with four other defence witnesses, that the complainant was an unprofessional, unreliable and dishonest employee whose performance at work suffered because of her alcohol abuse. It was the theory of the defence that the complainant falsely alleged that the appellant sexually assaulted her because she was angry with him for being a demanding and difficult boss who ultimately forced her out of a relatively well-paying position.
[4] The trial judge provided detailed reasons for judgment, in which she explained why she believed the complainant and disbelieved the appellant and the other defence witnesses. Ultimately, the trial judge was satisfied beyond a reasonable doubt that the appellant sexually assaulted the complainant as she alleged.
[5] In seeking to set aside his conviction, the appellant advanced a single ground of appeal. He claimed that his trial lawyer (not Mr. Whitzman) was ineffective. The appellant argued that counsel's performance undermined both the reliability of the verdict and the fairness of his trial, thereby occasioning a miscarriage of justice.
[6] The appellant raised a variety of complaints regarding the representation provided by trial counsel, including his failure to object to what the appellant characterized as "inadmissible bad character evidence." Ultimately, at the court's invitation, the parties made further written and oral submissions regarding the admission of that evidence.
[7] For the reasons that follow, I have concluded that this appeal must be allowed due to the improper admission of bad character evidence. Critically, after carefully considering the trial record and the trial judge's reasons for judgment, I am not persuaded that inadmissible bad character evidence played no role in the appellant's conviction. Accordingly, a new trial is required. That conclusion makes it unnecessary to address the appellant's claim that trial counsel's performance was ineffective.
[8] These reasons will proceed in three parts. The first part will summarize the evidence that the appellant claims was inadmissible “bad character” evidence, explain the circumstances surrounding its admission, and detail the relevant portions of the trial judge's reasons for judgment. The second part briefly outlines the positions of the parties regarding that evidence and its effect. In the final part, these reasons address the issues raised by this appeal in light of the governing legal principles.
I. The Evidence at Issue and the Trial Judge's Reasons
[9] Like most cases in the Ontario Court of Justice, the appellant's trial proceeded without an opening statement by the Crown. Therefore, the trial judge had no forewarning regarding the substance of each Crown witnesses' testimony. Instead, the Crown simply proceeded to call its case, consisting of the complainant and three other witnesses (including another former employee from the restaurant). The appellant also presented a defence case. As noted, he testified, as did four other defence witnesses (including his common-law spouse, who also worked at the restaurant).
a. The evidence at issue
[10] In addition to describing the circumstances surrounding the alleged sexual assault, at various points during her testimony, the complainant also testified about other matters that the appellant claims constituted inadmissible bad character evidence. For example, during direct-examination:
The complainant testified that she delayed reporting the sexual assault, in part, out of fear. Asked to elaborate, she claimed to be afraid of the appellant because he routinely threatened people with bodily harm and death.
Asked if the appellant had ever done anything else that ever made her feel uncomfortable, the complainant testified that he sexually propositioned her in December 2016, telling her to: "suck my dick." She testified that he made that comment while drunk and that she responded by ignoring him and leaving the restaurant.
The complainant testified that the appellant routinely used cocaine and also supplied cocaine to her and other employees at the restaurant. She referenced that experience in explaining why she did not hesitate to accept his invitation to join him in the men's washroom to share cocaine the night he sexually assaulted her.
[11] The Crown elicited all of this evidence without any objection from defence counsel or comment by the trial judge. During his testimony, beyond denying the sexual assault alleged by the complainant, the appellant also denied using cocaine or providing cocaine to the complainant or other employees. Similarly, he denied the complainant's claim that he made a crude sexual overture towards her in December 2016. Neither defence nor Crown counsel questioned the appellant about the complainant's allegation that he routinely threatened people with violence.
[12] As part of its case, the Crown also called a former employee of the restaurant. He worked as a server during the period when the complainant was still employed there. During his direct-testimony, the Crown asked him about the appellant's relationship with the staff at the restaurant. The witness testified:
In my time working there, I saw quite a few female employees come and go and the reason they left was because Dave [the appellant] was very aggressive in the way he spoke about them. One girl, in particular, that was there, she was only there for a couple of weeks. Dave kept commenting on her ass. And that I only hired her because she has a nice ass and he kept -- kept saying that and going on about it and to the point where the girl started crying to me and said I can't deal with this anymore. And the next day I came in and she was gone. She left. She said, I'm not I'm not going to put up with that anymore. I don't feel comfortable working around Dave and that was one instance. There was another instance where - at Christmas time, we had a temp who came. He referred to her as a fat pig and, and she heard. She also started crying and walked to the bathroom and then, she also -- she was more professional, in the sense that she gave her notice and left. ....
[13] Later, during the same witness' direct-examination, the Crown asked him to elaborate on the appellant's sense of humour. The following exchange took place:
Q. Did it, at some point, feel out of the ordinary?
A. Yeah. The - there was a point where the jokes were no longer funny. It just became just downright disrespectful, to be honest. Like, no boss should be talking to an employee that way, in any manner, whatsoever. And that's basically why I left because of the things that I heard said about me directly from him to one of the, one of the customers that came there often.
Q. You said that you heard things - him say things about [the complainant] ... what did you hear?
A. He would make comments about - that she was dumb, that she was an alcoholic and that the only reason he hired her was because she has tits and that those kinds of comments were very - made very – quite often, actually.
[14] Finally, when asked by the Crown why he stopped working at the restaurant, the witness delivered a long soliloquy, that ended with the following:
... And moving forward, so Dave proceeded to say that he has – and now I'm not – can't – I [do] not remember exactly, but this is sort of, like a summarization (sic) of what he did say. He said that he had 'one employee who was a complete retard,' referring to [the complainant], 'retarded alcoholic who can't show up for her shift on time.' And then, referring to me, and then 'the other retard who wants to go home and get fucked in the ass by his boyfriend’ or something like that. And when I heard that, that was the line for me, I walked straight to Marianne [the appellant's common law spouse]. I'm, like, listen, Dave is talking some crap and I'm not going to stand for that. I'm done. I'm leaving and that was when I terminated my employment with Oliver's Ale House.
[15] The Crown followed up on this response by asking, "[t]hat very same day?" and, the witness confirmed: "That very day."
[16] Again, none of this evidence precipitated an objection by defence counsel nor any interjection by the trial judge.
[17] During the appellant's testimony, the Crown cross-examined him regarding whether he made the sorts of comments alleged by his former employee. The appellant said that he did not remember doing so. However, he also testified that "jokes are going on all the time. ... I can't tell you every conversation that's ever happened in there. I, I just can't."
[18] The appellant has a criminal record. Defence counsel did not elicit evidence from the appellant regarding his criminal record during direct-examination. Instead, during cross-examination, the Crown asked the appellant about his criminal record. After the appellant confirmed having a criminal record, the Crown asked, "[w]hat does it consist of?" That question prompted an interjection by defence counsel and the following exchange with the trial judge:
Counsel: Your Honour, isn't the proper way to put convictions that the Crown thinks are on his record to him? To ask him if he has been convicted of those things?
Court: I've seen it done in all sorts of ways, I don't see why the Crown can't simply ask what's on his criminal record.
Counsel: I would request that she specify the criminal convictions that she's alleging he has, and ask him if, if he has those.
Court: And what's your legal basis for saying that?
Counsel: Well, it's entirely up to Your Honour. Like I know that there, there are various ways of it being done but I understand that that's one way that a judge can order that it be done, and I would be requesting that you do that. If, if you don't wish to do that then the Crown will be allowed to just ask him what his criminal record is and it'll based on his memory but I would say the proper way is to put specific convictions to him, you know, and, and not go beyond that.
Court: Well, but that, that's a separate issue as to how far the Crown can go. I mean the Crown's allowed to put the conviction, the name of the offence, the date and the penalty...
Counsel: Yeah.
Court: .... and not, not probe beyond that...
Counsel: Yes.
Court: ... but in terms of how the Crown elicits the evidence, without a legal basis to convince me that what the Crown is doing is wrong, I don't see a legal basis to interfere with, with the Crown.
Counsel: Well, the way that I see [it] there could be a problem if the Crown asked my client basically what does he have on his criminal record.
Court: Hmm hmm.
Counsel: And then my client, my client will, will be answering that. And we don't know what he will say. He might go beyond the restrictions that Your Honour has mentioned. That's why I say it's better for the Crown, who has knowledge of the record, to put the specific convictions to him and then not allow him to go beyond that.
Court: Well...
Counsel: And herself not go beyond it.
Court: I, I have to say if your client were to volunteer other things it could be in the form of bad character evidence, and that would be reason for restricting that but character has been opened up in this trial, wide open, I would think in ...
Counsel: What?
Court: ... at this stage, I, I would think the Crown might be entitled to go even beyond the record but I'm, I'm not going to say any[thing] further because -- say anything further at this stage ...
Counsel: I don't see how character has been opened up in this matter because it's only been to give Your Honour some evidence of the type of restaurant this is and the, the structures that are there and things of that nature, but I would say that has not opened up the issue of good character.
Court: Well, when, when the complainant is -- her character has clearly been put on trial here ...
Counsel: Yes.
Court: ... and so how does that not open the door for the Crown to probe your client's character?
Counsel: I will just say that it does not.
[Emphasis added]
[19] The trial judge ruled that the Crown could ask the appellant about his criminal record without putting the details of any specific entries to him. Amongst other entries, the appellant acknowledged a 2006 conviction for assault. His assault conviction resurfaced during the Crown's cross-examination of the appellant's common-law spouse, precipitated by the following exchange:
Q. And during the course of your relationship with him [referring to the appellant], has he ever been aggressive towards you?
A. No.
Q. Has he ever been violent with you?
A. No, he's never been violent with me.
[20] The Crown responded by cross-examining the witness about the circumstances underlying the appellant's 2006 assault conviction. The questioning consumed several pages of the trial transcript. Ultimately, the cross-examination revealed that the witness was the victim of the appellant's 2006 assault conviction and detailed the circumstances of that assault.
[21] It is noteworthy that neither the Crown's initial question as to whether the appellant had acted violently towards the witness nor the questioning concerning the circumstances underlying the 2006 assault conviction precipitated any objection by defence counsel nor an interjection by the trial judge.
b. The trial judge's reasons
[22] The trial judge provided detailed reasons for convicting the appellant, including specific reasons for rejecting his evidence and that of his common-law spouse. Well into her reasons, the trial judge stated, "Most of my reasons for rejecting Mr. Larion's evidence have been outlined including..." [Emphasis added]. The trial judge then set out a concise summary of five specific internal and external inconsistencies involving the appellant's testimony that she had already identified at earlier points in her reasons.
[23] At no point in her reasons did the trial judge refer to any of the evidence that the appellant characterizes as “bad character” evidence. However, the trial judge also made the following observations:
Further, at one point in the trial, I commented that I felt Mr. Larion's attacks on the character of [the complainant] opened the door to allow the Crown to call bad character evidence of Mr. Larion. In this regard, I was wrong. However, the Crown did not attempt to introduce any evidence of bad character of Mr. Larion.
Although the criminal record of Mr. Larion was introduced, I did not place any weight on the record because, aside from the 1978 conviction of break and enter, the remaining convictions were for impaired driving charges and assaults. Neither of these categories of offences are crimes of dishonesty and I did not rely on Mr. Larion's criminal record when assessing his credibility. However, for all the reasons set out herein, I did not find Mr. Larion to be a reliable or credible witness and his denial of the alleged sexual assault does not raise reasonable doubt.
[Emphasis added]
II. The Positions of the Parties
[24] The appellant submits that the Crown elicited a considerable amount of inadmissible bad character evidence at his trial. Specifically, the Crown elicited testimony that the appellant:
- Used and supplied cocaine to others;
- Crudely propositioned the complainant for oral sex in December 2016;
- Routinely made comments to female staff at the restaurant that served to objectify and demean them;
- Made crude and homophobic comments to another staff member;
- Regularly threatened others with violence; and
- Had behaved violently towards his common-law spouse.
[25] The appellant concedes that the trial judge did not refer to any of this inadmissible character evidence in her reasons for judgment. However, he also points out that the trial judge's reasons reveal that she did not recognize that the Crown had elicited any “bad character” evidence or caution herself against relying on it. Ultimately, argues the appellant, this case turned on his credibility and that of the complainant. Given the potential that inadmissible bad character evidence coloured the trial judge's assessment of his credibility, the appellant submits it would be inappropriate to apply the curative proviso to uphold his conviction.
[26] The Crown concedes that the evidence at issue was inadmissible bad character evidence. Additionally, the Crown acknowledges that it was an error for that evidence to be received without any ruling addressing its admissibility. However, the Crown submits that that oversight was harmless. In so arguing, the Crown emphasizes that the trial judge provided specific reasons for rejecting the appellant's credibility that did not include any reference to the inadmissible character evidence. Importantly, says the Crown, the trial judge expressly disclaimed any reliance on evidence regarding the appellant's criminal record in rejecting his credibility.
[27] Given what was said and not said by the trial judge in her reasons, coupled with the presumption that the trial judge knows the law, the Crown argues it would be entirely speculative to conclude that inadmissible bad character evidence played any role in the appellant's conviction. In all the circumstances, the Crown argues this is a case where the court should apply the curative proviso to dismiss the appeal.
III. Law and Analysis
[28] To decide this appeal, this court must address two key issues. First, was "bad character" evidence improperly admitted at the appellant's trial? Second, accepting the Crown's concession that it was, should this appeal be dismissed under the authority of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code because there has been "no substantial wrong or miscarriage of justice"?
1) Was “bad character” evidence improperly admitted?
[29] A person charged with a criminal offence is not on trial for their character. Accordingly, the law has long prohibited the Crown from calling evidence that only shows that the accused is a person of bad character or the type of person likely to commit the offence(s) charged: see Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at pp. 191, 201-202; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 367-369; R. v. B.(C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 734-735; R. v. C.(M.H.), 1991 CanLII 94 (SCC), [1991] 1 S.C.R. 763, at p. 771; R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697 at p. 730; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-36.
[30] Of course, the exclusionary rule does not prevent the Crown from leading evidence to prove that the accused committed the offence(s) charged in the indictment even though this will invariably reflect poorly on his character. The rule is only concerned with “extrinsic” bad character evidence, meaning "evidence about the accused's behaviour on other occasions or about his general character": David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed, (Irwin Law: Toronto, 2015), at p. 56; see also R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 164.
[31] The rule reaches any "discreditable" evidence about the accused, not just evidence of uncharged criminal acts or a criminal proclivity: R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at pp. 942-943; Handy, at para. 34. If a reasonable person would disapprove of the conduct or the character trait, then evidence about it is caught by the exclusionary rule: R. v. Bos, 2016 ONCA 443, 131 O.R. (3d) 755, at para. 72; R. v. Johnson, 2010 ONCA 646, 267 O.A.C. 201, at para. 90.
[32] The exclusionary rule has its genesis in concerns about two types of prejudice. "Moral prejudice," in the sense that the evidence will engender feelings of contempt towards the accused and result in a conviction for the wrong reasons. For example, to punish the accused for other acts of misconduct, or because he is the type of person who would commit the offence(s) charged. And "reasoning prejudice," by distracting the trier of fact from what should properly be its focus. The concern is that the evidence will consume valuable court time, redirect attention towards extraneous matters, and impair the trier of fact's ability to engage in the required rational and dispassionate analysis of the relevant evidence. See Handy, at paras. 42, 100, and 139-146; R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-128.
[33] Citing concerns about the potential for both moral and reasoning prejudice, the Supreme Court has observed that "the 'poisonous potential' of bad character evidence cannot be doubted": R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 74.
[34] Because of these well-recognized dangers, bad character evidence concerning the accused is presumed inadmissible: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 31; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 17; Handy, at paras. 55 and 101. Of course, like with most exclusionary rules of evidence, there are recognized exceptions to the rule. Two of these exceptions are relevant to this appeal.
[35] First, the Crown may bring an application to introduce evidence regarding uncharged acts of misconduct by the accused as part of its case under the "similar fact" exception to the “bad character” evidence rule. To succeed, the Crown must satisfy the trial judge, on a balance of probabilities, that in the context of the specific case, the probative value of the evidence concerning a particular issue outweighs its prejudicial effect: Handy, at para. 55; Perrier, at para. 18; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at p. 363. In other words, bad character evidence, including so-called "disposition evidence" is "unusually and exceptionally" capable of admission "if it survives the rigours of balancing probative value against prejudice": Handy, at para. 64.
[36] The court's approach to weighing probity and prejudice will vary depending on the issue to which the evidence is relevant: Handy, at paras. 76-80. For example, probative value will often outweigh prejudicial effect when the bad character evidence is (1) necessary to prove an accused had a motive to commit the offence(s) charged; (2) is essential to the unfolding of the narrative; or (3) to understand the context of the allegations: see Sidney N. Lederman, Alan W. Bryant, and Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed. (LexisNexis: Markham, 2014), at §10.72 to §10.73 (and the cases cited therein). That said, the admission of bad character evidence because essential to the narrative or for context also has "the potential for misuse and should be applied with caution": Lederman, Bryant and Fuerst, at §10.73.
[37] The second exception to the rule that generally excludes evidence regarding the accused's bad character relevant to this appeal involves situations where an accused puts his character in issue. For example, an accused will open the door to admissibility by giving evidence which either expressly or by implication suggests that he is not the type of person who would commit the offence(s) charged: see Morris v. The Queen, 1978 CanLII 168 (SCC), [1979] 1 S.C.R. 405, at pp. 437-440; R. v. McNamara (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), [1981] O.J. No. 3254 (QL), at p. 348, leave to appeal granted on other grounds (1981), 1981 CanLII 3394 (SCC), 56 C.C.C. (2d) 576 (S.C.C.).
[38] With the governing principles summarized, I turn next to the circumstances of this case. On this appeal, there is no disagreement as between the parties that the Crown led evidence at the appellant's trial that reflected negatively on his character. There was evidence that the appellant was a user and even a purveyor of cocaine. And, much worse, given the nature of the charge, that the appellant was violent, menacing, brutish, homophobic, and misogynistic.
[39] The appellant did not conduct his defence in a manner that opened the door to admitting bad character evidence. To be sure, the appellant's testimony made plain that he was very favourably impressed by his restaurant and his abilities as a chef. Nevertheless, at no point, neither directly nor by implication, did he ever suggest that he was not the sort of person who would commit the offence charged. As a result, the only lawful route for admitting the bad character evidence would have been through the “similar fact” exception.
[40] The Crown did not, as required by the Criminal Rules of the Ontario Court of Justice, bring an application at the start of the appellant's trial for a ruling that the bad character evidence was admissible under the “similar fact” exception: see Criminal Rules of the Ontario Court of Justice, SI/2012-30, Rule 2.5(2)(b)(i). The Crown on appeal acknowledges that procedural misstep. And, initially, at least, the Crown went further, conceding that none of the bad character evidence would ultimately have been admissible. In my view, that concession by the Crown is somewhat too generous.
[41] The complainant's testimony that she and the appellant shared cocaine in the past, which is the reason she cited for agreeing to join him in the men's washroom, was admissible. It was vital to putting the complainant's actions on the night of the alleged sexual assault in context. At the same time, this evidence reflected negatively on the appellant, revealing that he used and shared cocaine (an illegal and dangerous drug). In the overall context of this case, however, I believe that evidence was far more probative than it was prejudicial.
[42] In terms of probity, the evidence was essential to understanding why the complainant would agree to join the appellant in the men’s washroom to share cocaine. If the trier of fact did not know that the complainant and appellant had shared cocaine before, her actions on the night of the alleged offence might seem strange or even implausible. In short, this evidence was essential to putting the complainant's allegation in context.
[43] At the same time, the evidence was not especially prejudicial. To be sure, using and sharing cocaine reflects negatively on a person. However, criminal behaviour of that nature is very different in kind from acts of sexual violence. In the circumstances of this case, any risk of moral or reasoning prejudice from that evidence was minimal.
[44] As a result, despite the Crown's initial concession,[^1] in my view, the evidence regarding the appellant previously sharing and using cocaine with the complainant was admissible as its probative value outweighed any potential prejudicial effect.
[45] In sharp contrast, the balance of the character evidence was only probative of the appellant's general disposition. It did nothing more than serve to portray the appellant as the very type of person likely to commit the offence charged. As Binnie J. reminded in Handy, at paragraph 72:
Proof of general disposition is a prohibited purpose. Bad character is not an offence known to the law. Discreditable disposition or character evidence, at large, creates nothing but "moral prejudice" and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person.
[46] Accordingly, except for the testimony concerning the appellant previously using and supplying cocaine to the complainant, the rest of the discreditable conduct evidence elicited by the Crown at the appellant’s trial was inadmissible.
[47] In fairness to the trial judge, it deserves repeating that the Crown led the general disposition evidence without seeking a ruling as to its admissibility. It would also seem that the Crown at trial (not Mr. Powell) failed to appreciate that the evidence was inadmissible. Unfortunately, defence counsel at trial did not object to its admission. He, too, it would appear, did not recognize the evidence was inadmissible. As a result, the general disposition evidence seeped into the trial during the testimony of various witnesses.
[48] Of course, irrespective of how it came to pass, the evidence was inadmissible, and its admission constitutes an error in law.
2) Should the curative proviso result in the dismissal of the appeal?
[49] Due to s. 822(1), on a summary conviction appeal, this court possesses most of the same powers vested in a court of appeal under s. 686 of the Criminal Code. That includes the authority to dismiss an appeal, despite an error in law, because "no substantial wrong or miscarriage of justice has occurred": Criminal Code, s. 686(1)(b)(iii).
[50] Reliance on the curative proviso in s. 686(1)(b)(iii) to dismiss an appeal requires that the Crown satisfy the appellate court that there is no "reasonable possibility that the verdict would have been different had the error . . . not been made": R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at pp. 616-17, see also R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28. To do so, the Crown must establish that: (1) the error is harmless or trivial; or (2) the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict: Khan, at para. 26-31; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-36; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53.
[51] In judge alone trials where inadmissible evidence was wrongly received, an appellate court's reliance on the curative proviso to dismiss a resulting appeal often turns on whether the impugned evidence proved harmless. So long as the trial judge "expressly arrives" at her conclusion in the case, "independently of the inadmissible evidence," then "no unfairness can be said to arise, nor has there been a miscarriage of justice.": R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, at pp. 415-416. Additionally, if the trial judge says that she arrived at her decision without relying on the inadmissible evidence, she is entitled to be taken at her word: see R. v. O'Brien, 2011 SCC 29, [2011] 2 S.C.R. 485, at para. 18; R. v. Roks, 2011 ONCA 526, [2011] O.J. No. 3344 (QL), at para. 94; R. v. C.K., 2015 ONCA 747, 342 O.A.C. 87, at para. 49.
[52] The Crown submits that the curative proviso should be applied to dismiss this appeal because the error in admitting the disposition evidence was entirely harmless. In so arguing, the Crown relies principally on the Supreme Court of Canada's decision in O'Brien, which it maintains is analogous to this case.
[53] In O'Brien, an assailant wearing a Halloween mask robbed a variety store at knifepoint. Mr. O'Brien was arrested and charged with the robbery. After a judge alone trial, he was convicted and appealed. The case eventually made its way before the Supreme Court, where the issue was whether the trial judge's error in receiving bad character evidence and in failing to address that evidence in his reasons was harmless and should attract an application of the curative proviso: O'Brien, at para. 11.
[54] The only issue at trial in O’Brien was identity. The morning after the robbery, in the vicinity of the variety store, police located a Halloween mask that matched that worn by the robber, along with other items connected to the robbery. DNA found on the Halloween mask matched to Mr. O'Brien. The investigating officer was one of the Crown's witnesses at trial. During his evidence, he detailed Mr. O'Brien's criminal record and testified that he was well known to police in the area for his involvement in criminal activities. Defence counsel did not object to this inadmissible disposition evidence. Nor did the trial judge interject.
[55] The Supreme Court relied on the curative proviso in allowing the Crown's appeal and restoring the conviction. In its decision, the majority reproduced excerpts from the trial judge's reasons, in which he analyzed the significance of the DNA evidence: O'Brien, at paras. 12-14. In deciding to allow the appeal and restore the conviction, Abella J., writing for the majority, at paras. 15 to 19, explained:
[15] The propensity evidence from the investigating officer clearly played no part in the convictions. As Fichaud J.A. noted, not only did the trial judge expressly state that he relied entirely on the DNA evidence to identify Mr. O'Brien, his detailed reasons confirm this exclusive reliance. This evokes the words of McLachlin J. in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, at pp. 415-16, where she noted that when a trial judge expressly arrives at a conclusion on the critical issue "independently of the inadmissible evidence . . . no unfairness can be said to arise, nor has there been a miscarriage of justice" (see also R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 30).
[16] The trial judge said in his reasons that he relied "entirely" on the DNA evidence (para. 8). That meant that he did not rely on the character evidence. Imputing such reliance into reasons that state the contrary creates a new, unchartable universe of appellate review where even if the reasons reveal a proper grasp of the facts and the law, the trial judge may nonetheless find the integrity of his or her decision undermined by the possibility that judicial silence on an issue will be interpreted as "unconscious" judicial error.
[17] A trial judge has an obligation to demonstrate through his or her reasons how the result was arrived at. This does not create a requirement to itemize every conceivable issue, argument or thought process. Trial judges are entitled to have their reasons reviewed based on what they say, not on the speculative imagination of reviewing courts. As Binnie J. noted in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55, trial judges should not be held to some "abstract standard of perfection."
[18] The trial judge was entitled to be taken at his word. His chain of fact, law and logic in this case was impeccable. I see nothing about his approach that suggests a subconscious subversion of his articulated thoughts.
[19] I therefore agree... that the admission of the improper character evidence was a harmless error of law that caused no substantial wrong or miscarriage of justice.
[56] Despite Mr. Powell's able submissions, I am not convinced that the circumstances of this appeal are analogous to O'Brien. Unlike O'Brien, it is not apparent from the trial judge's reasons that the inadmissible disposition evidence played no part in the appellant's conviction.
[57] Credibility was the critical issue at the appellant's trial. It turned mainly on the trial judge's assessment of the evidence of the complainant and the appellant. In her reasons, the trial judge concisely summarized five specific internal and external inconsistencies in the appellant's testimony that led her to disbelieve him. Importantly, the trial judge expressly prefaced that summary by indicating that it represented "most" as opposed to all of her reasons for rejecting the appellant’s evidence. That is not entirely surprising when one remembers the nature of credibility determinations.
[58] Credibility assessments are not a science. It can be difficult for a trial judge to "articulate with precision the complex intermingling of impressions" that factor into deciding questions of credibility: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. As the Supreme Court has recognized, "assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.": R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 49.
[59] From what the trial judge did say in her reasons, I cannot safely conclude that the inadmissible disposition evidence played no role in her rejection of the appellant's evidence or her conclusion that his evidence did not give rise to reasonable doubt. Nor can my concerns be assuaged, as urged by the Crown, by presuming that the trial judge knew that she could not permit the disposition evidence to affect her assessment of the appellant's credibility and that she therefore must have inculcated herself against its poisonous potential.
[60] To be sure, trial judges are presumed to know the law: see R.E.M, at para. 45; R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 664. However, that presumption does not negate the need for a judge's reasons to show the law was applied correctly: R.E.M, at para. 47.
[61] It is not apparent from the trial judge's reasons that she recognized that the inadmissible bad character evidence could play no part in her assessment of the appellant's credibility. Firstly, the reasons contain no self-direction to that effect. And, critically, they also reveal that the trial judge failed to appreciate that the Crown had elicited any "bad character" evidence concerning the appellant. In these circumstances, to presume that the trial judge guarded against allowing the bad character evidence, the very nature of which escaped her recognition, from affecting her assessment of the appellant's credibility, would involve little more than wishful thinking.
[62] Ultimately, I am not satisfied that the erroneous admission of prejudicial general propensity evidence at the appellant's trial played no role in his conviction.
Conclusion
[63] For all of these reasons, the appeal must be allowed, and a new trial ordered.
Signed: J. Stribopoulos
Released: September 18, 2020
COURT FILE NO.: SCA(P) 1479/19
DATE: 20200918
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
DAVID LARION
Appellant
REASONS FOR JUDGMENT
Stribopoulos J.
Released: September 18, 2020
[^1]: In response to questioning from the court, the Crown withdrew the concession and argued that the evidence about using and sharing cocaine was admissible because relevant to narrative and context.