COURT FILE NO.: CR-6/21
DATE: 2021 12 03
AMENDED DATE: 2021 12 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
N.G.
Ms. Wollaston, for the Crown
Mr. Gold, for the accused, N.G.
HEARD: December 2, 2021
REASONS FOR DECISION - CROWN’S SIMILAR ACT APPLICATION
cONLAN J.
Amended Reasons for Decision - Crown’s Similar Act Application
Para. 1 “Mr. N.G. stands charged with aggravated assault, forcible confinement, and breach of probation.” has been changed to “Mr. N.G. stands charged with aggravated assault and forcible confinement.”
I. Introduction
The Charges
[1] Mr. N.G. stands charged with aggravated assault and forcible confinement. It is alleged that, on January 1, 2020, he seriously injured his domestic partner, D., by biting off her nose.
[2] The matters are set for trial in the Superior Court of Justice, with a jury.
The Application
[3] On August 24, 2019, another skirmish occurred between the accused and the same partner. On that occasion, N.G. assaulted D. On November 19, 2019, he pleaded guilty to that assault. The facts of that prior assault included that the accused choked D. and bit her on the right shoulder and left forearm.
[4] The Crown applies to admit at the upcoming trial the extrinsic evidence of that guilty plea, as a similar act.
The Positions of the Crown and the Defence
[5] The Crown argues that the prior act is admissible to refute the defence of an unintentional act. It is anticipated that the Defence will argue that, although the accused did bite the nose of the complainant and cause her disfigurement as a result, he did so unintentionally.
[6] The Crown submits that (i) the prior act shows a propensity for the accused to intentionally bite in the course of domestic arguments, and (ii) it demonstrates that N.G. knew or ought to have known, on the date in question on our Indictment, that biting would likely result in harm to D.
[7] The Defence submits that the seriousness of these two incidents, these two acts of the accused, are so terribly different that it is akin to comparing apples to oranges. The prior willingness of N.G. to bite the lady’s shoulder and arm tells us nothing about his willingness to bite the lady’s nose off her face, it is submitted by the Defence.
The Hearing of the Application
[8] On December 2, 2021, via Zoom, this Court heard three pretrial Applications, all brought by the Crown. In a separate Endorsement, this Court disposed of the other two Applications – (i) the statements made by the accused to the police were ruled to be voluntary and thus admissible at trial (that was not opposed by the Defence), and (ii) it was ruled that the photographs taken of the complainant’s face at the hospital are inadmissible at trial.
[9] The Crown’s similar act Application was very well argued by both Ms. Wollaston and Mr. Gold. No viva voce evidence was adduced. Facta were filed. Brief oral submissions, about thirty minutes in total, were delivered by counsel.
II. Analysis
Two Additional Facts about the Prior Act are Agreed to
[10] It is agreed by both sides that D. required no medical treatment as a result of the August 2019 incident. It is further agreed by both sides that D. did not report the August 2019 matter to the authorities until two days afterwards.
[11] It is clear from those two additional facts, agreed upon by both sides, that the prior incident was much, much less serious than what happened in January 2020.
The Law
[12] Both sides agree completely on the governing law, which includes the following principles.
[13] Similar act evidence is presumptively inadmissible. That is because it amounts to evidence of bad character, disposition, and general propensity. The burden is on the Crown to rebut that presumption on a balance of probabilities. The Crown must show that the proffered evidence is relevant to an issue in the case and that its probative value exceeds its prejudicial effect. R. v. Handy, 2002 SCC 56, at paragraph 55, and R. v. Tsigirlash, 2019 ONCA 650, at paragraph 26.
[14] There are several steps in the process to admitting similar act evidence, but the first two require (i) a clear identification of the issue that the proposed evidence goes toward, and (ii) an assessment of the degree of similarity between the prior act and the alleged act being tried. R. v. Handy, supra.
[15] To rebut the defence of accident (or innocent intent) is a recognized issue to which similar act evidence may be probative toward. R. v. F.F.B., 1993 167 (SCC), [1993] S.C.J. No. 21, and R. v. Moore, 1994 8730 (ON CA), [1994] O.J. No. 1685 (C.A.), and R. v. MacDonald, 2017 ONCA 568, and R. v. W.S., 2004 33348 (ON CA), [2004] O.J. No. 4164 (C.A.).
[16] There is no closed list of factors that the Court can consider in assessing the degree of similarity between the prior act and the act being tried, and the Court’s function is not to simply add up the number of similarities and the number of differences, but rather the task is to determine whether there is a “persuasive degree of connection between the similar fact evidence and the offence charged”. R. v. Handy, supra, at paragraphs 82 and 123, and R. v. Johnson, 2011 ONSC 195, at paragraphs 136-137, and R. v. Bent, 2016 ONCA 651, at paragraphs 42-44, and R. v. Shearing, 2002 SCC 58, at paragraphs 48 and 60, and R. v. J.H., 2018 ONCA 245, at paragraph 20, and R. v. S.C., 2018 ONCA 454, at paragraph 23.
The Application of the Law to our Case
[17] To the above summary of the general legal principles governing similar act evidence, which both sides agree on, I would add a brief discussion of the decision of the Court of Appeal for Ontario in R. v. McLean, 2002 11684.
[18] That case does not stand for anything new or different than the legal principles outlined above, but I find it to be an instructive decision in the application of those principles in a case where the Crown’s theory of admissibility patterns the one advanced here.
[19] In that case, the accused was charged with several offences including attempted murder. It was alleged that the accused shot the complainant with a handgun when she refused to go to the bedroom for sex. While cross-examining the complainant at trial, the lawyer for the accused suggested to her that the gun accidentally discharged while the accused was trying to pry it from the playing hands of the complainant. The Crown applied to the trial judge to admit into evidence something that happened six years earlier. The earlier incident involved the accused using a handgun to shoot someone (not the same complainant) who had allegedly fought at a party with one of the accused’s friends.
[20] The Court of Appeal for Ontario held that the trial judge had erred in ruling that the earlier shooting was admissible as similar act evidence showing a pattern of behaviour by the accused and to rebut the defence of accident.
[21] Those are precisely the bases upon which the within Application is advanced by our Crown.
[22] The Court of Appeal for Ontario concluded that the two acts were not sufficiently similar, and further the Court was concerned that the evidence was admitted for the prohibited purpose of relying upon general propensity to show that the accused was the sort of person who shoots deliberately when he does not get what he wants. “Manifestly, the evidence was not admissible for that purpose”, said the Court of Appeal (paragraph 16).
[23] In our case, I do not find that the two acts are all that similar. They both involve biting, the same complainant, and are proximate in time. But I agree with Mr. Gold that the two acts are so strikingly different in their seriousness that they are not that intimately connected as the Crown asserts.
[24] More important, I find that what is being requested in our case is the exact same thing that the Court of Appeal for Ontario found offensive in McLean, supra. This accused, N.G., is the type of person who bites intentionally when he gets into arguments with his domestic partner. The Crown, Ms. Wollaston, in very able submissions, said almost exactly that in her oral argument on the Application. Manifestly, however, the evidence is not admissible for that purpose.
[25] With respect, I think that the risk of prejudice here, both moral prejudice and reasoning prejudice (as those terms are so nicely summarized at paragraph 29 of the Crown’s factum), is so high that there is no way to think that it could reasonably be avoided. This accused bit this complainant before, on purpose, so we think that he did it again on the date in question, and that’s all we need to know. That will be the jury’s reaction, in my view.
[26] This is not one of those cases where, to borrow the language of the Crown at paragraph 30 of its factum, the similar act evidence is so highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse. I find to the contrary – it is not highly relevant and cogent; the search for the truth as to whether D. had her nose bit off by the accused intentionally or unintentionally does not in any way depend on the admission into evidence of the earlier incident; and the potential for misuse is very high.
[27] The Crown has not met its burden to prove on balance that this presumptively inadmissible evidence ought to be admitted at N.G.’s trial.
III. Conclusion
[28] The Application by the Crown is, therefore, dismissed. The proffered similar act evidence is not admissible at trial.
“C.J. Conlan”
Conlan J.
Released: December 3, 2021
Amended: December 6, 2021
COURT FILE NO.: CR-6/21
DATE: 2021 12 03
AMENDED DATE: 2021 12 06
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
N.G.
REASONS FOR decision -
crown’s similar act application
Conlan J.
Released: December 3, 2021
Amended: December 6, 2021