Court File and Parties
COURT FILE NO.: CR-21-78-MO DATE: 2022-05-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Applicant
- and -
J. B. Accused
Counsel: C. Bell and K. Srodulski, for the Applicant A. Seib, for the Accused
HEARD: May 9, 2022, by Zoom
Endorsement on Crown’s Pre-Trial Discreditable Conduct Application
Justice J. Fregeau
Introduction
[1] The accused is charged on a six-count indictment as follows:
- That he, on or between the 15th day of September in the year 2008 and the 31st day of December in the year 2014, in the First Nation Territory of Wapekeka, in the Province of Ontario, did in committing a sexual assault on K.W. use a weapon, contrary to Section 272(1)(a) of the Criminal Code;
- And further, that he, on or between the 15th day of September in the year 2008 and the 31st day of December in the year 2014, in the Province of Ontario, did for a sexual purpose touch K.W., a person under the age of sixteen directly with a part of his body, contrary to Section 151 of the Criminal Code;
- And further, that he on or between the 15th day of September in the year 2008 and the 31st day of December in the year 2014, in the First Nation Territory of Wapekeka, in the Province of Ontario, without lawful authority confine K.W., contrary to Section 279(2) of the Criminal Code;
- And further, that he, on or between the 15th day of September in the year 2008 and the 31st day of December in the year 2014, in the First Nation Territory of Wapekeka, in the Province of Ontario, did commit an assault on K.W., contrary to Section 266 of the Criminal Code;
- And further, that he, on or between the 15th day of September in the year 2008 and the 31st day of December in the year 2014, in the First Nation Territory of Wapekeka, in the Province of Ontario, did, without lawful excuse, point a firearm at K.W., contrary to Section 87 of the Criminal Code;
- And further, that he, between the 26th day of January in the year 2004 and the 26th day of January in the year 2006, in the Province of Ontario, did for a sexual purpose touch K.W., a person under the age of fourteen directly with a part of his body, contrary to Section 151 of the Criminal Code.
[2] The accused is scheduled for trial before a Superior Court Judge sitting without a jury beginning August 29, 2022. As can be seen, the charges include allegations of sexual assault with a weapon and point a firearm.
[3] The complainants are the biological daughters of the accused. The five counts in which K. W. is the complainant are alleged to have occurred between 2008 and 2014 when this complainant was between 4 and 13 years of age. The one count in which K. W. is the complainant is alleged to have occurred between 2004 and 2006.
[4] The Crown seeks an order allowing evidence as to prior allegedly discreditable conduct of the accused to be admitted as part of the Crown’s case at trial.
Background
[5] During the time frame encompassed by the six counts in the indictment, the accused was a Constable with the Nishnawbe-Aski Police Service (“NAPS”) stationed and living in the First Nation Territory of Wapekeka. In general terms, it is alleged that the accused was intoxicated, dressed in police uniform and used his service revolver to threaten or intimidate the complainant when he allegedly committed certain of the offences in the indictment.
[6] The discreditable conduct evidence which the Crown seeks to adduce at trial apparently took place on a single day in July 2009. The details of these allegations are set out in the notebook entries of Constable Barry McKay and Constable Jack McKay.
[7] Constable B. McKay’s notebook entries (paraphrased due to illegibility of handwritten entries) from July 5, 2009 include the following:
- Received call from P/C [Jack] McKay – informed Leonard Duncan called from Wapekeka – reported that [accused] is drinking and when Tyler Sainnawap dumped out his homebrew he got mad and [is] driving around with NAPS vehicle looking for Tyler and there might be a C8 [police issue rifle] in vehicle
- O/S [accused’s] residence – observed door partially open – announced himself – no response – located gun box on top of bed – grey duct tape on each side of it – observe police service firearm in gun box
- Observed [accused after he walked out of the bush at the end of the runway] wearing fleece dark coloured hoodie wet from head to toe – observed [accused] flushed and red bloodshot eyes
- At NAPS detachment – confirmed C8 in [gun] vault – observed utility belt [illegible].
[8] Constable Jack McKay’s notebook entries (paraphrased due to illegibility of handwritten entries) from July 5, 2009 include the following:
- Attend at NAPS detachment – insecure gun vault – C8 rifle and insecured 40 calibre [service revolver] in the holster
- At [the accused’s residence] – Tyler Sainnawap got the key to open Priscilla Baxter’s truck – Tyler pulled out a bottle of vodka from under the back seat
The Crown’s Position
[9] The Crown submits that the above is evidence that the accused, on July 5, 2009, was intoxicated, upset with Tyler Sainnawap, dressed in police uniform and looking for Tyler Sainnawap throughout the community. The Crown submits that evidence of these facts is probative of a fact in issue at the accused’s trial, namely to assist in proving the actus reus of some of the charges.
[10] The Crown further submits that this evidence is corroborative of the complainant’s allegation that the accused sexually assaulted her with his service revolver while wearing his police uniform. The Crown contends that the probative value of this evidence, while admittedly limited, exceeds any prejudicial effect because the accused is to be tried by judge alone.
The Accused’s Position
[11] The accused submits that the proposed prior discreditable conduct evidence is, firstly, largely hearsay and inadmissible on that basis. Secondly, the accused submits that July 5, 2009 police investigation following the receipt of the hearsay complaint about the accused essentially undermines the purported similarities between the prior discreditable conduct evidence and the circumstances of the offences alleged in the indictment.
[12] The accused submits that the allegations as to his alleged conduct on July 5, 2009 indicate that he was not in police uniform, that the C8 rifle was not found in his vehicle but at the NAPS detachment in the gun vault and that his service revolver was observed to be in a gun box at his residence. Finally, the accused submits that there is scant evidence that he was intoxicated on July 5, 2009.
[13] The accused submits that the evidence as to his alleged conduct on July 5, 2009 is intrinsically weak, presumptively inadmissible and of no probative value in relation to the allegations in the indictment, which essentially allege that, while intoxicated and in uniform, he sexually assaulted his daughter while pointing his service revolver at her head.
Discussion
[14] This application is dismissed for the following reasons.
[15] As noted by the accused, the starting point for any analysis of the admission of evidence of similar acts that are not the subject matter of the charges before the court is that such evidence is presumptively inadmissible.
[16] Sopinka’s Law of Evidence in Canada described the initial analysis as follows:
If the proffered character evidence does no more than show that the accused is the type of person likely to have committed the offence or its only relevance is that he or she has a mere propensity to commit offences of this nature, the evidence is inadmissible since it lacks probative value and its potential unfair prejudicial effect is too great.
[17] Watt’s Manual of Criminal Evidence (2016) described relevance as a fundamental principle of the law of criminal evidence:
Relevance is not a legal concept, rather, a matter of everyday experience and common sense. It is not an inherent characteristic of any item of evidence, rather, it exists as a relation between an item of evidence and a proposition of fact that its proponent seeks to establish by its introduction. In determining relevance, context is critical.
An item of evidence is properly characterized and rejected as irrelevant if it is not probative of the fact a party seeks to establish by its introduction by reason of its natural common-sense connection with that fact. An item of evidence is relevant where it is probative of the fact a party seeks to establish by its introduction through the same process of reasoning.
[18] On this application, the Crown bears the burden of establishing on a balance of probabilities that the proffered similar fact evidence is relevant and that its probative value exceeds its prejudicial effect.
[19] The Supreme Court of Canada decision in R. v. Handy remains the leading case on the admissibility of similar fact evidence or prior discreditable conduct evidence as an exception to the general exclusionary rule prohibiting the admission of propensity evidence.
[20] However, before the Handy test is applied it is incumbent on the Crown to establish that this evidence is or may be relevant at trial. In other words, that the evidence of prior discreditable acts is probative of a fact or facts in issue in relation to the relevant counts in the indictment.
[21] The relevant counts in the indictment are those that allege that the accused, while in uniform and intoxicated, used his service revolver to threaten and or intimidate his daughter and to force her to submit to or commit sexual acts upon him.
[22] In my view, the evidence proffered by the Crown on this application is simply not relevant. A good deal of it is inadmissible hearsay. The balance of it fails to assist in establishing what the Crown suggests it will establish at trial. The evidence as to the accused’s conduct on July 5, 2009, simply cannot bear the weight that the Crown suggests. It is not evidence of an intoxicated police officer using his uniform and service revolver to threaten and intimidate and therefore has no probative value.
[23] The Crown’s application is dismissed.
The Hon. Justice J. Fregeau Released: May 10, 2022
Reasons on Bail Review Application
COURT FILE NO.: CR-21-78-MO DATE: 2022-05-10
BETWEEN:
HER MAJESTY THE QUEEN Applicant
- and -
J. B. Accused
Fregeau J. Released: May 10, 2022 /sf