COURT FILE NO.: CR-21-936 DATE: 20230718 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – VISHAL SHARMA

Counsel: I. Singh, for the Crown P. Dhaliwal and S. Hundal, for the Respondent

HEARD: July 17, 2023

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] Vishal Sharma is charged with Extortion, two counts of Uttering Threats, Assault, Sexual Assault and Distributing an Intimate Image. The offences are all alleged to have occurred between February 1-23, 2019.

[2] The allegations, briefly, are that between 2016 and 2018 Mr. Sharma and the complainant were in a consensual sexual relationship during which video recordings were made of the parties’ sexual activity. Subsequently, the relationship ended, and the complainant went to India and married another man. Upon her return to Canada in January 2019 the complainant and Mr. Sharma resumed contact, and in February 2019 the complainant accepted Mr. Sharma’s offer of accommodation at his residence.

[3] The complainant alleges that shortly after she arrived in the home, Mr. Sharma began to proposition her for sex. The allegations are that he, usually under the influence of alcohol, would attend into her bedroom (or on a sofa in a common area) and touch her sexually. It is alleged that Mr. Sharma threatened to kill and harm the complainant’s new husband and other members of her family, and that he told her that he would send her new husband and his family, as well as her family, copies of the sexual videos he had previously taken of her. He used these threats to try to secure her consent to sexual activity. The complainant alleges that several of these encounters resulted in forced vaginal intercourse and other unwanted sexual touching.

[4] Mr. Sharma is alleged to have, on February 22nd, 2019, sent pictures and videos of previous sexual activity or “intimate images” between him and the complainant to her new husband Naresh Kumar.

[5] The Crown brings an application to determine the admissibility of other discreditable conduct. Specifically, the Crown seeks to admit evidence, through the complainant:

a. That the complainant discovered during the course of her relationship with the Respondent that the Respondent was already married to another woman (explaining the breakdown in the relationship); b. That the Respondent had a gambling problem (further explaining the breakdown in the relationship. It also corroborates the proposition that the complainant is submissive towards the Respondent as she would loan him money to fuel his gambling habits); c. That the Respondent had bragged to her about his reputation for violence in India (which explains why the complainant would comply with the demands of the Respondent and would be afraid to tell the Respondent the full details of her new marriage); d. That the Respondent had threatened to commit suicide and attempted to commit suicide (this explains why the complainant would stay with the Respondent at this house after already getting married to someone else).

[6] Counsel for Mr. Sharma agree that items a., b., and c. are admissible subject to an instruction to the jury as to their permissible use, and an instruction that the evidence must not be used for propensity reasoning. I agree.

[7] Mr. Sharma submits that item d., the evidence of his alleged threats to commit suicide and his alleged attempt at suicide, is more prejudicial than probative and should therefore be excluded.

[8] The Crown’s position is that this evidence is both relevant and probative and that any potential prejudice can be offset by a similar instruction to the jury that the evidence must not be used for propensity reasoning.

Legal Framework

[9] Evidence of discreditable conduct of an accused person, other than that which is the subject matter of the charge or charges before the court, is presumptively inadmissible.

[10] The Ontario Court of Appeal in R. v. L.B., [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:

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?
2. If so, is the proposed evidence relevant and material?
3. If relevant and material, is the proposed evidence discreditable to the accused?
4. If discreditable, does its probative value outweigh its prejudicial effect?

[11] In assessing whether the probative value outweighs its prejudicial effect, the Court in L.B. advises that 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.

[12] The onus is on the Applicant to satisfy the judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception. R. v. Handy, 2002 SCC 56 at paragraph 55.

[13] In R. v. J.H., 2020 ONCA 165 the Court of Appeal noted that:

…evidence of uncharged disreputable conduct has often been received in prosecutions alleging assaultive behaviour in a domestic relationship, including charges of sexual assault. Among the issues upon which this evidence has been admitted are these:

i. as part of the narrative of relevant events; ii. to provide context for other evidence; iii. to facilitate understanding of the nature of the relationship between the principals; iv. to demonstrate motive or animus on the part of the accused for committing the offences; v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and vi. to rebut a claim of fabrication.

[14] In that case, the Court found there was probative value in some of the disputed evidence. Those incidents “tend to show the nature of the marital relationship of C.H. and the appellant; thus they provide context for the other evidence and assist in unfolding the narrative.” (at paragraph 67)

[15] I find that such is the case here in this intimate partner relationship. The disputed evidence that Mr. Sharma – proximate in time to the alleged offences – threatened and apparently attempted suicide is relevant to the narrative, particularly the circumstances that brought the complainant to live in Mr. Sharma’s residence at the time of the alleged offences. Moreover, that evidence goes to show Mr. Sharma’s emotional state at or near the time of the alleged offences, and the complainant’s emotional reaction to his suicidal threats and gesture. I find that the evidence is highly probative.

[16] Counsel for Mr. Sharma submit that the evidence is also highly prejudicial, as there is a risk that the jury will improperly conclude from the proposed evidence that Mr. Sharma had “nothing to lose” and therefore was more likely to have engaged in the alleged criminal conduct.

[17] The jury will be instructed, in the context of the undisputed evidence, not to engage in propensity reasoning. I am satisfied that such an instruction will also provide the jury with appropriate direction as to the limited permissible use of this evidence.

[18] I therefore find that the evidence sought to be introduced by the Crown is admissible on the trial, specifically:

a. That the complainant discovered during the course of her relationship with Mr. Sharma that he was already married to another woman; b. That Mr. Sharma had a gambling problem; c. That Mr. Sharma bragged to the complainant about his reputation for violence in India; and, d. That Mr. Sharma had threatened to commit suicide and attempted to commit suicide.

[19] Counsel are advised to confer and make submissions as to the content of the mid-trial and final instructions to the jury as to the limited use to which this evidence may be put and that it may not be used for propensity reasoning.

MILLER J.

Released: July 18, 2023