R. v. D.T., 2022 ONSC 1772
CITATION: R. v. D.T., 2022 ONSC 1772
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. D.T.
BEFORE: The Honourable Mr. Justice A.D. Kurke
COUNSEL: K. Whillans and J. Rivard, for the Crown/Applicant
B. Allison, for the Accused/Respondent
HEARD: March 9, 2022
ENDORSEMENT
1The Crown applies to admit into evidence at the respondent’s jury trial evidence of the respondent’s off-indictment discreditable conduct. The respondent is charged with various sexual offences involving complainant DN spanning a time period between August 5, 1980, and early August 2009. There is also a charge of simple assault that covers this same period.
2JW is the biological mother of the complainant and the former wife of the respondent. The respondent and JW share many children, one of whom is DN.
3The evidence on this application includes the preliminary inquiry testimony of DN, and transcripts of two statements that JW gave to police. The accused did not oppose the use of the transcripts of JW’s statements on the application but submitted that such a use of statements to police, as opposed to testimony, reduced the probative value of the evidence at this hearing.
Allegations made by D.N.
4DN testified at a preliminary inquiry on November 12, 2019, at Wiikwemkoong, Ontario, and provided evidence about the following allegations:
Vaginal examination
5When DN was about 11 years old, the respondent observed a male hugging her. He disciplined DN and wanted to know whether she had had sex with the male. The respondent made DN take off her pants and used an object to strike her buttocks. He then struck her hands with a stick and her hands and buttocks with a belt.
6The respondent had DN remove her underwear and lie on the bed. He visually and physically examined her vagina, while DN wept and felt violated. JW was present for parts of the incident. The respondent threatened DN and told her not to tell anyone what had happened. DN testified that she was fearful of the respondent and felt like she had died on that day. She stated: “It was like my father had so much control over me.”
General incidents
7DN testified that the respondent would bring her on fishing trips from when she was about 13 years old. During the trips the respondent would dock the boat on the shore and have DN lie down. The respondent would rub his penis on her vagina and ejaculate on her pubic area.
8There was also mutual oral sex. The respondent also made DN wash his genitals. Sexual acts continued almost weekly through her youth and into adulthood until she was 39 years old and moved out of the respondent’s home.
9The respondent would get upset with DN if she refused to do these things, and she felt compelled to cooperate because of his authority and physical stature.
10The respondent did things to DN in the basement of the family home starting from when she was 13 years old. The respondent touched and suckled her breasts and she performed oral sex on him to the point of ejaculation.
11DN testified that after JW moved out of the family home, DN would be in the respondent’s bed at night and the respondent fondled her breasts and vaginal area and ejaculated in his hand. Sexual acts also occurred in the respondent’s vehicle.
Incident with a knife
12On one occasion when she was in her twenties, the respondent told DN to perform oral sex on him and she refused. The respondent threw a knife and told her to stab him with it. DN proceeded to perform oral sex on the respondent. She testified: “It’s like he had some kind of control over” her.
Sexual intercourse
13When DN was in college and living in Sudbury the respondent came to her apartment. They were in the bedroom and the respondent was on top of DN and rubbed his penis on her vagina and asked if he could go deeper. DN did not respond. During this incident, the respondent fully penetrated DN for the first time. Prior to that, from when DN was 13 the respondent would partly insert his penis into DN’s vagina but would not go further when DN felt pain.
After college
14After she went to college, DN moved back to Wiikwemkoong with her parents and the sexual abuse continued. It increased when her mother moved out of the home. Sexual acts with the respondent continued until she was 39 and moved out of the family home.
15The abuse ended after the respondent saw her having lunch in a restaurant with her future husband. He confronted DN. DN was fearful of the respondent but returned to the family home to retrieve personal belongings. While she was there the respondent asked her to continue to reside there and grabbed her arm. She told him, “Please let me go or else I’ll tell them what you did to me.” The respondent has not contacted DN since.
The complainant’s explanation for her compliance
16DN testified that she always went with the respondent when he asked her to go:
“’cause I was always scared not to go with him because, I don’t know, he always put this kind of demeanour about him that if I didn’t go, it was like, I don’t know. It was like making me feel bad and horrible.”
Anticipated evidence of JW
17JW gave two audio-recorded statements to police relating to the investigation in this case, one on August 31, 2017, and another on January 5, 2018. Transcripts of these interviews have been produced and disclosed. I make those transcripts composite Exhibit 1 on the application.
18It is anticipated that JW would testify about the following things.
Control by violence
19Throughout JW’s relationship with the respondent, he was violent with her, and as a result she suffered hearing loss, broken teeth, and a miscarriage. The respondent was also extreme in disciplining the children and would use objects to strike the children. He thereby exercised a lot of control over JW and the children.
20On one occasion the respondent was hitting JW in the back of the head while she was pregnant and trying to fix her glasses with a small knife. JW used the knife “in self-defence” and cut the respondent, who had to get sutures. The respondent afterwards used to threaten to tell the police about this incident and have her charged.
The vaginal examination of DN
21Concerning the respondent’s vaginal exam of DN, JW told the respondent that what he was doing was not right. The respondent told JW to shut up and get out of the room.
22After the incident with the male that led to the vaginal exam, the respondent had DN sleep on one side of his bed, and JW on the other, with the respondent in between. The respondent would hug and hold DN. After their child Myrna was born, JW left that bed to sleep with the baby.
Other observations
23In 1991 or 1992, JW walked in on the respondent and DN holding each other “like a couple” on the bed and the respondent told JW to get out. The respondent was in his underpants. Indeed, he often used to be in his underpants in the house and would tell JW to mind her own business if she told him to put clothes on.
24The respondent often took DN with him to go fishing and on other outings. The respondent left JW alone; she felt more like a maid than a wife.
25The respondent quit his job at E.B. Eddy and accused JW of being unfaithful. Such accusations continued throughout their marriage.
Leaving the respondent
26JW tried to leave the respondent once in 1979 but she was afraid that the respondent would find her and kill her. Finally in 1993 JW left the home, taking only her youngest daughter (not DN) and went to a domestic violence shelter, leaving the other girls with the respondent.
27JW spoke with police about her relationship with the respondent and a “restraining order” was put in place.
Prior discreditable conduct
28Evidence of extrinsic misconduct on the part of an accused that shows that he is a person of “bad character” and therefore likely to have committed the offence charged, is presumptively inadmissible, as encouraging impermissible reasoning on the part of the trier-of-fact. However, evidence that is relevant and material, but which incidentally tends to show that an accused is a person of bad character, can be admissible so long as its probative value exceeds its prejudicial effect: R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at para. 72; R. v. Arp, 1998 CanLII 769 (SCC), [1998] S.C.J. No. 82, at para. 41; R. v. J.A.T., 2012 ONCA 177, [2012] O.J. No. 1208 (C.A.), at para. 51.
29To be caught under the rule, the evidence in question need not involve criminal misconduct. In a broader sense, evidence that is somehow discreditable to an accused, even if not criminal, carries with it the potential for prejudicial effect: R. v. Handy, 2002 SCC 56, at para. 34; R. v. Mahalingan, 2008 SCC 63, [2008] S.C.J. No. 64, at para. 160.
30“Prejudice” in this context does not mean that the evidence will increase the chance of conviction; rather, the concern is its improper or unfair use by the jury: R. v. L.B., 1997 CanLII 3187 (ON CA), [1997] O.J. No. 3042 (C.A.), at para. 22. Such improper use can include aspects of moral or reasoning prejudice, such as 1) a determination by the jury that the evidence proves the accused to be a “bad man” and therefore likely guilty of the offence charged; 2) the jury’s determination that the accused deserves punishment for the extrinsic conduct through conviction for the charged offence; and 3) a finding of guilt on the charged offence because of confusion as a result of the introduction of the evidence of extrinsic misconduct: Handy, at paras. 31, 72, 100, 145; Shearing, 2002 SCC 58, [2002] S.C.J. No. 59, at para. 64; J.A.T., at para. 52.
31The general test for admissibility of such evidence is set out in L.B., at para. 10:
10 Because of the inherently prejudicial nature of evidence of discreditable conduct, it is subject to a general exclusionary rule unless the "scales tip in favour of probative value." The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.
Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?
If so, is the proposed evidence relevant and material?
If relevant and material, is the proposed evidence discreditable to the accused?
If discreditable, does its probative value outweigh its prejudicial effect?
32The determination of relevance is essential to establish probative value. Evidence of prior discreditable conduct has been found to be relevant to furnish background information about a complainant’s relationship with an accused, and to provide insight into the context of the allegations. That an accused’s violent or abusive conduct inspired fear in a complainant may assist in explaining why s/he tolerated sexual abuse or delayed complaining about it. It may also serve as evidence of animus or motive or to explain an accused’s control over a complainant: R. v. B.(F.F.), at paras. 72-76; R. v. D.S.F., 1999 CanLII 3704 (ON CA), [1999] O.J. No. 688 (C.A.), at paras. 13-26; R. v. R.(B.S.) (2006), 2006 CanLII 29082 (ON CA), 81 O.R. (3d) 641 (C.A.), at para. 38; R. v. Nolan, 2019 ONCA 969, at para. 42; R. v. N.H., 2020 ONCA 694, at paras. 7-12.
33That the probative value of the evidence exceeds its prejudicial effect must be proved on the balance of probabilities: Handy, at para. 55. Concerning that last step, probative value includes an assessment of such things as: the strength of the evidence; the extent to which the evidence supports the inferences to be drawn from it; and the extent to which the matters that the evidence could prove are at issue in the case. Prejudicial factors include; how discreditable the conduct is; the extent to which the evidence may support an inference of guilt based solely on bad character; the extent to which the evidence could confuse issues in the case; and an accused’s ability to respond to the evidence: L.B., at paras. 23-24.
34If evidence of extrinsic misconduct is admitted, the trial judge has a duty to minimize or eliminate any prejudicial effect through mid-trial and final instructions that will focus the jury on their permitted use of the evidence and prevent its improper use: R. v. J.A.T., at para. 53; R. v. S.G.G., 1997 CanLII 311 (SCC), [1997] S.C.J. No. 70, at para. 69; R. v. R.O., 2015 ONCA 814, [2015] O.J. No. 6170 (C.A.), at paras. 31-35; N.H., at para. 15.
Discussion
35Crown and defence agree that JW can testify about her personal knowledge and observations with respect to the charges on the indictment. In this capacity, her evidence would generally serve to corroborate claims made by the complainant.
36Otherwise, in oral argument, the Crown limited its requested relief on this application to the ability to question JW about physical abuse that she personally suffered at the hands of the accused, her mental state, and the relationship of such conduct to her mental state.
37The stated relevance of such evidence would be to provide to the jury a context in which to assess JW’s evidence so that proper assessment of her credibility and reliability could be made. In other words, the relevance of the evidence would be to explain JW’s fear of the accused and control by him, and the reasons therefor to illustrate the level of JW’s fear. This evidence is necessary to give the jury a context in which to assess JW’s evidence. Otherwise, the jury would simply not be able to accept JW’s evidence, given what she, as the complainant’s mother, did or did not do in the circumstances described by the complainant.
38In the Crown’s submission, while there would necessarily be some prejudice to the accused from the jury hearing about his physical violence towards another woman, his spouse, that prejudice is outweighed by the probative value of the evidence and can be minimized by mid-trial and final instructions.
39The defence does not strongly argue against the relevance and materiality of this evidence but has submitted that the goal must be accomplished with less of it.
40The submission of the defence is that the prejudice of this evidence cannot be limited by a mere instruction. Knowledge of violence towards JW will cause the jury to believe that the accused has a propensity towards violence against women in his household and will convict based on that determination instead of just considering the actual evidence of the offences. In the defence submission, the accused will not receive a fair trial if such questioning is permitted.
41Instead, the defence proposes that the Crown be permitted only to ask JW, at the appropriate points in her testimony, such questions as why she did not do more to protect the complainant, why she did not take the complainant and other children away from that environment, why she did not do something to free the complainant from the accused’s advances, and other such questions. In answer to these questions, the complainant would be permitted to answer that she “was afraid”. That answer would explain JW’s inaction and permit the Crown to defuse negative inferences that the jury might otherwise improvidently draw from it, and yet shield the accused from the prejudice involved in the jury being told the details of JW’s alleged abuse by the accused.
42With respect to the L.B. test, the conduct in question is that of the accused, and it is discreditable to him.
43I agree that the evidence proposed to be adduced by the Crown is relevant and material in the circumstances of this case, in which JW’s evidence will be important corroboration for the claims of the complainant. Too often, particularly in cases involving allegations of historical sexual abuse, the trier-of-fact is left only with competing versions of events offered by complainant and accused. Given the burden of proof in a criminal case, and the “W.(D)” instruction, uncorroborated claims often have little chance of successful prosecution. In this respect, the corroborating witness’ evidence about the counts on the indictment is almost as material as that of the complainant herself, and there is no reason in principle why the jurisprudence that permits context-building evidence from a complainant should not also apply to the evidence of a corroborating witness.
44Given the importance of JW’s evidence to the prosecution case, the proposed evidence will allow the jury the tools by which to properly assess the credibility or reliability of JW. It will assist the jury in understanding why JW did so little to protect her child, and the nature of her own relationship to the accused. Without that evidence, the jury may too readily dismiss JW’s evidence as incredible or unreliable.
45Providing a context for the testimony of a complainant is an accepted area of relevance for the admissibility of such evidence, when the evidence is drawn from a complainant. Here, the Crown’s intention is to ask such evidence of a corroborating witness, in order to explain to the trier-of-fact why JW did what she did or did not do things that any listener would wonder about. In my view, the same principles apply to an important corroborating witness as apply to a complainant. JW is a very important witness, whose evidence cannot properly be assessed for credibility or reliability without being placed in context.
46However, I acknowledge the concern of the defence, that the prejudice must be increased because the evidence relates to a different “victim”, relating to whom there are no charges on the indictment, and apparently no prior findings of guilt. The defence also submits that JW’s evidence is insufficiently probative to overcome the substantial prejudice of it, given the age of JW’s yet unproven allegations and the fact that her evidence has not been tested by cross-examination.
47In my view, the probative value of evidence of a corroborating witness in a case such as this is large and direct. On the other hand, I acknowledge that JW’s allegations are old and unproven, and that she has never had her evidence about her own claims tested. Her evidence is preserved in two statements to police and cross-examination at trial will give the jury the tools by which to assess the weight of her evidence. The jury will be instructed about how they may and may not use JW’s evidence.
48I find the defence suggestion of evidence from JW that she “was afraid” to be simply too colourless to perform the duty required of it. Such a statement, akin to a witness who describes his mental state as “sad” offers no means of assessing the validity or dimensions of the claim. Details of the reasons for the fear provide a means of determining the legitimacy of JW’s concerns and explanations.
49In the balancing of probative value and prejudicial effect, I find that the probative value of the evidence exceeds its prejudicial effect, particularly when the jury will be provided with mid-trial and final limiting instructions on the uses to which the evidence can, and cannot, be put. In addition, I will make efforts to ensure that the questioning is not permitted to distract the jury from its actual task by delving too deeply into the abuse that JW claims to have suffered.
Conclusion
50Accordingly, in addition to JW’s observations about DN and the accused that are relevant to the charges before the court, the Crown will be permitted to adduce evidence from JW relating to physical abuse that she personally suffered at the hands of the accused, and the relationship of such evidence to her mental state and conduct in relation to her observations about the complainant and the accused.
51Moreover, I am directing that the Crown not lead evidence from JW about the severe sequellae she claims to have suffered from the accused’s physical abuse of her. The Crown may not lead from JW evidence of broken teeth, hearing loss, miscarriage, or other such things. JW will be permitted to speak about these things only if it is necessary to do so to answer questions put in cross-examination or in response to other trial developments, if leave is granted by the court.
The Honourable Mr. Justice A.D. Kurke
Date: March 24, 2022