Court File and Parties
COURT FILE NO.: CR-20-00000039-0000
DATE: 20210118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.H.
Accused
Counsel:
Greg Skerkowski, for the Crown
Brian A. Callender, for the accused
HEARD at Kingston: 18 January 2021
THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.
Ruling
mew j. (Orally)
[1] The Crown has applied for leave to introduce prior disreputable conduct evidence of the history of the relationship between the accused J.H. and the complainant through the testimony of the complainant M.R., and also by way of facts admitted during four prior guilty plea proceedings. Those proceedings had taken place on the 6th of April 2016, 25th of January 2017, the 25th of August 2017, and the 7th of December 2018.
[2] The defence, after a fairly extensive discussion, does not oppose the principle that certain evidence of prior disreputable conduct would be admissible in the circumstances of this case. However, the fact that both parties consent does not result in the automatic admission of that evidence. The court still has to exercise its gatekeeper function.
[3] The usual rule of course, is a general tendency against propensity reasoning, and hence evidence that would nourish such reasoning. But there are exceptions, and as explained by the Court of Appeal in R. v. Batte, 2000 5751 (ON CA), among other cases, the admissibility of prior assaults as evidence that an accused person assaulted the same person on the occasion in issue is well established, and this is particularly so in cases of intimate partner abuse. At paragraph 102 of the Batte decision, the court gave that very example where Justice Doherty said for example, if an accused is charged with assaulting his wife, evidence that the accused beat his wife on a regular basis through their long marriage would be admissible. So allow it, at any rate, in circumstances such as alleged in this case.
[4] He continues:
Evidence of the prior beatings does much more than suggest that the accused is a bad person or that the accused has general disposition to act violently and commit assaults on evidence that 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 this disposition is a piece of circumstantial evidence that may be considered in deciding whether the accused committed the alleged assault.
[5] So as I have indicated, it seems to me that the circumstances are analogous to the case presented by the Crown in the instant matter, and as such that the evidence of prior acts should be admitted. As to what weight is attributed to that evidence, and how it factors into the ultimate disposition of the issues placed before the court, of course remains to be dealt with on another day in the context of all of the evidence before the court at J.H.’s trial.
[6] In terms of the format of the evidence, the evidence is presented in the form of four guilty plea proceeding transcripts. There are no technical issues associated with those transcripts, and of course, once the principle has been accepted that such evidence is admissible in the forms that are recognized at law, and the Canada Evidence Act deals specifically with evidence consisting of transcripts of prior judicial proceedings.
[7] In terms of what a guilty plea transcript conveys, the Crown has drawn our attention to another Court of Appeal decision R. v. W.B.C., 2000 5659 (ON CA), in which case the court explained that at paragraph 52, that provided the statement read into the record following a guilty plea is not disputed, it will form the evidentiary foundation for the passing of the sentence. An allegation read into the record that is not admitted by the defence is not evidence, so, and not having examined the four transcripts in question, but subject to that caveat, if the statements read into the record were accepted as being correct or substantially correct by J.H., or on behalf of J.H., then the decision in R. v. W.B.C. would indicate that they are admissible effectively as statements made by the accused person.
[8] So in those circumstances, the leave applied for by the Crown in this application is granted.
Graeme Mew J.
Handed down: 18 January 2021 (orally)
COURT FILE NO.: CR-20-00000039-0000
DATE: 20210118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.H.
Accused
RULING
Mew J.
Handed down: 18 January 2021 (orally)