COURT FILE NO.: CR-21-911
DATE: 20220920
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
A.H.
COUNSEL:
J. Goulin, for the Crown
S. Whitzman, for the Defendant
HEARD: September 19, 2022
Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s.486.4 of the Criminal Code of Canada
Ruling on Other Discreditable Conduct
MILLER J.
[1] A.H. is charged with Sexual Assault of M.W.; Sexual Interference with M.W.; and making Sexually Explicit Material available to M.W., a person under 16 years. All offences are alleged to have occurred between January 27, 2016 and August 20, 2020.
[2] The trial is scheduled to commence before a jury on September 21, 2022.
[3] The Crown applies for a ruling on the admissibility of evidence of other discreditable conduct.
The Allegations
[4] The allegations are, generally, that A.H. sexually assaulted his stepdaughter multiple times from the time she was 9 years old and ended two weeks prior to her giving her statement to police on August 25, 2020. The acts are alleged to have occurred largely in two of the family’s homes, but also on various vacations and other locations in Ontario.
The Application
[5] A.K. is the biological mother of the complainant and wife of A.J.. In the event that A.H. elects to call a defence and calls as a witness A.K. the Applicant wishes to cross examine A.K. on an incident where A.H. hit another child of hers and her response to that conduct.
[6] Specifically, in the event that A.K. testifies to the effect that the alleged offences on the indictment could never have happened in her home with her knowledge or under her watch, or to the effect that that she would have contacted police had she known her daughter was being sexually assaulted or that she would have intervened and/or left A.H. as a result, the Applicant wishes to cross examine A.K. on a previous incident of physical abuse by the Respondent on another one of her children, of which she was aware and did not report to police, nor did she leave A.H.
[7] Evidence of this other incident is before the Court by way of a portion of the transcript of the testimony of the complainant from the preliminary hearing describing the incident, and extracts from the police interviews of the complainant’s older sister and older brother describing their mother’s reaction to the incident.
[8] The Applicant seeks a ruling on this evidence prior to commencing its case so that it is not in a position of splitting its case, should this evidence need to be elicited from witnesses as part of the Crown’s case.
[9] Counsel for A.H. opposes the admission of this evidence either for cross-examination or as any part of the Crown’s case.
Law
[10] Discreditable conduct oof an accused person, other than that which is the subject matter of the charge or charges before the court, are presumptively inadmissible.
[11] The Ontario Court of Appeal in R. v. L.B. 1997 CanLII 3187 (ON CA), [1997] O.J. No. 3042 sets out the analysis to be undertaken when such evidence is sought to be admitted:
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?
[12] In assessing whether the probative value outweighs its prejudicial effect, the Court in L.B. advises as follows:
In assessing the probative value of the proposed evidence, consideration should be given to such matters as:
(i) the strength of the evidence;
(ii) the extent to which the proposed evidence supports the inference(s) sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and
(iii) the extent to which the matters it tends to prove are at issue in the proceedings.
In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as:
(i) how discreditable it is;
(ii) the extent to which it may support an inference of guilt based solely on bad character;
(iii) the extent to which it may confuse issues; and
(iv) the accused's ability to respond to it.
Analysis
[13] The Applicant argues that because the evidence sought to be tendered does not take its probative value from propensity reasoning, but rather is directly relevant to the credibility of a key defence witness, its admissibility is not properly considered through the test for discreditable conduct evidence. Simply put, the Applicant does not want to use this evidence to show that the accused is more likely to sexually abuse children because he physically abused his four year old daughter. The Applicant seeks to show that any claim by A.K. that she would not allow for the alleged offences to take place in her home or would have reported them to police and protected her child is directly contrary to her past actions with a different and arguably more vulnerable child.
[14] In this regard, the Applicant relies on the Ontario Court of Appeal decision in R. v. Janghiri, 2022 ONCA 644 at paras 26-44 to the effect that where the probative value of a piece of evidence is not derived from propensity reasoning, the evidence does not need to be assessed as discreditable conduct. Where the admission of such evidence could still pose a risk of misuse by the jury, a limiting instruction may be appropriate.
[15] In Janghiri the impugned evidence was evidence of the seizure of a large quantity of cash from the accused’s home on a charge of Possession of Cocaine for the purpose of trafficking. The Court of Appeal held that the evidence of the cash seizure was evidence relevant to the offence charges and was not “other discreditable conduct”. The Court held that to the extent that the jury might engage in propensity reasoning a limiting instruction was sufficient.
[16] Here the evidence that A.H. on another occasion engaged in violence toward another child is not evidence relevant to the charges before the Court. I find that it is other discreditable conduct and must therefore be subject to the scrutiny required before admitting any such evidence.
[17] While the conduct which the Crown proposes to subject to cross-examination is that of A.K., it is also evidence of A,H’s other discreditable conduct. If the proposed evidence had to do with A.K.’s conduct reaction to another person’s harm to one of her children it would not be presumptively inadmissible. As it is A.K.’s conduct in reaction to other discreditable conduct of A.H. that is proposed as evidence, it must be subject to a probative value/ prejudicial effect analysis.
[18] I accept that the proposed evidence would be relevant and material to the credibility of A.K. if she were to testify that abuse of her children would not or could not occur under her watch.
[19] The probative value of this evidence, in respect of A.K.’s credibility as a witness, is not strong, however, given the different nature of the alleged abuse as between the proposed evidence and the allegations in support of the charges before the Court.
[20] The potential prejudicial effect is significant. I agree with the Crown that the danger that the jury would engage in propensity reasoning can and would likely be neutralized by an appropriate limiting instruction. The real danger, and potential prejudice flowing from the proposed evidence, is in my view, that the jury will be distracted from the issues they must decide in order to determine whether the Crown has proved the essential elements of each offence, by evidence of another completely separate incident.
[21] Should A.K. deny that the other incident occurred, the evidence would have no probative value whatsoever unless the Crown was also permitted to call separate evidence that the incident did occur. While this evidence might be relevant to A.K.’s credibility, the trier of fact would have to embark on an analysis as to whether they accept that the incident did or did not occur. This is classic collateral evidence which itself is presumptively inadmissible.
[22] I do not find that the probative value of the proposed evidence outweighs it potential prejudicial effect.
[23] The Application is dismissed.
MILLER J.
Released: September 20, 2022
R. v. A.H., 2022 ONSC 5330
COURT FILE NO.: CR-21-911
DATE: 20220920
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
A.H.
RULING ON OTHER DISCREDITABLE CONDUCT
MILLER J.
Released: September 20, 2022