COURT FILE NO.: CRIM J(P) 2022/215 DATE: 20240305

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING David D'Iorio, for the Crown

- and -

HELDER VERTENTES-ARRUDA Jason Dos Santos, for the Accused

HEARD: January 19, 2024

REASONS FOR DECISION

UNCHARGED DISCREDITABLE CONDUCT APPLICATION

STRIBOPOULOS J.:

Introduction

[1] Mr. Vertentes-Arruda faces a charge of first-degree murder in the death of his mother-in-law and five charges of attempted murder relating to his wife, three daughters, and father-in-law.

[2] The Crown alleges that on the morning of December 4, 2020, Mr. Vertentes-Arruda started a fire at the Brampton home of his in-laws, where his wife and children were staying at the time. Further, the Crown alleges that he did so intending to kill everyone in the residence. Although Mr. Vertentes-Arruda's wife, daughters, and father-in-law escaped the fire and survived, tragically, his mother-in-law did not.

[3] The parties agree that the Crown should be permitted to lead evidence at Mr. Vertentes-Arruda's trial concerning various aspects of his conduct before the morning of December 4, 2020, which will undoubtedly reflect negatively on his character.

[4] In particular, the Crown intends to adduce evidence regarding Mr. Vertentes-Arruda's abuse of alcohol and cocaine during the marriage, beginning in 2017, and how that resulted in conflict between him and his wife. That includes evidence that when under the influence of cocaine, Mr. Vertentes-Arruda would become erratic and paranoid and accuse his wife of having an affair, which was the case on the two successive evenings preceding the fire. On each of the two nights, because of Mr. Vertentes-Arruda's behaviour, the police attended the couple's residence.

[5] The first night, Mr. Vertentes-Arruda reported that the man whom he believed his wife was having an affair with was in their apartment, that the car in their driveway was not his but the man's and that the phone he was holding and the shoes he was wearing belonged to that man. The police quickly determined that none of that was true. That visit by police culminated in Mr. Vertentes-Arruda's arrest for possessing cocaine and his wife being sufficiently concerned by his behaviour that she left their residence with their daughters and went to stay at her parents' home, where they still were on the morning of the fire.

[6] The police again attended Mr. Vertentes-Arruda's residence the night preceding the fire because of a complaint from an upstairs neighbour that he was behaving erratically. Mr. Vertentes-Arruda spoke to the police officers who attended about his belief that his wife was having an affair. The officers concluded, in part based on his behaviour, that Mr. Vertentes-Arruda was under the influence of drugs and departed the residence after speaking to his wife by telephone and confirming she was somewhere safe.

[7] The police left Mr. Vertentes-Arruda's residence shortly after midnight on December 4, 2020. Within an hour, Mr. Vertentes-Arruda and his wife exchanged texts and spoke briefly. His wife told Mr. Vertentes-Arruda in these communications that she had had enough and was "done." Later that morning, at 3:58 a.m., there was an initial emergency call concerning a fire at Mr. Vertentes-Arruda's in-law's residence.

[8] The parties agree that all that evidence is admissible. Beyond being inextricably interwoven with the narrative of the events, it bears directly on Mr. Vertentes-Arruda's upset with his wife for the affair he believed she was having, which she continually denied, which furnishes evidence of his motive to harm his wife and, to a lesser extent, his children, all of which is directly relevant to the actus reus and mens rea of most of the offences charged. Further, that evidence is undoubtedly more probative than prejudicial.

[9] However, the parties disagree concerning the admissibility of one aspect of the prior discreditable conduct evidence that the Crown wants to elicit.

[10] The Crown applies to adduce evidence from Mr. Vertentes-Arruda's wife that, on the rare occasion (she estimated every couple of weeks or once a month following the summer of 2020), when they argued while he was under the influence of intoxicants, things would get "physical" between them. According to his wife, near the end of some of their protracted arguments, Mr. Vertentes-Arruda had pushed her and grabbed her arms. Further, she acknowledged that, at times, during such drawn-out arguments, the violence was reciprocal, with them slapping each other and her, in frustration, once punching Mr. Vertentes-Arruda in the face.

[11] This ruling, delivered in my capacity as the designated case management judge, addresses the admissibility of that evidence. The Crown maintains that the evidence is admissible, while the defence submits that it is not.

I. Governing Principles

[12] A person charged with a criminal offence is not on trial for their character. Accordingly, the law has long prohibited the Crown from eliciting evidence concerning uncharged acts of discreditable conduct by an accused that only show him to be a person of bad character or the type of person likely to commit the offence(s) charged: see Morris v. The Queen, [1983] 2 S.C.R. 190, at pp. 191, 201-202; R. v. Morin, [1988] 2 S.C.R. 345, at pp. 367-369; R. v. B. (C.R.), [1990] 1 S.C.R. 717, at pp. 734-735; R. v. C.(M.H.), [1991] 1 S.C.R. 763, at p. 771-772; R. v. B. (F.F.), [1993] 1 S.C.R. 697, at p. 730-731; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-36.

[13] Of course, the exclusionary rule does not prevent the Crown from leading evidence to prove that the accused committed the offence(s) charged in the indictment, even though this will invariably reflect negatively on his character. The rule is only concerned with "extrinsic" evidence of an accused's discreditable conduct, meaning "evidence about the accused's behaviour on other occasions or about his general character": David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 66; see also R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 164.

[14] The rule reaches any evidence that reflects negatively on an accused, not just evidence of uncharged criminal acts or a criminal proclivity: see R. v. Robertson, [1987] 1 S.C.R. 918, at pp. 942-943; Handy, at para. 34. If a reasonable person would disapprove of the conduct or the character trait, then evidence about it is caught by the exclusionary rule: see R. v. Bos, 2016 ONCA 443, 131 O.R. (3d) 755, at para. 72; R. v. Johnson, 2010 ONCA 646, 267 O.A.C. 201, at para. 90.

[15] Evidence of an accused's uncharged discreditable conduct is presumptively inadmissible because it can occasion two kinds of prejudice. The first is moral prejudice, especially where the evidence concerns discreditable conduct that is more reprehensible than the offence(s) charged and, thus, more likely to lead to a conviction based on an improper inference. The second is reasoning prejudice, which involves the potential distraction of the jury from its proper focus on the offence(s) charged: see Handy, at paras. 42, 100, and 139-146; R. v. D. (L.E.), [1989] 2 S.C.R. 111, at pp. 127-128.

[16] Citing concerns about the potential for moral and reasoning prejudice, the Supreme Court has observed that "the 'poisonous potential' of bad character evidence cannot be doubted": R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 74.

[17] Because of these well-recognized dangers, evidence concerning an accused's uncharged discreditable conduct is presumptively inadmissible: see R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 31; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 17; Handy, at paras. 55, 101. However, the prohibition against admitting such evidence is not absolute. As Binnie J. noted in Handy, at para. 41, "an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse."

[18] Thus, the Crown may apply to introduce evidence of uncharged acts of discreditable conduct by an accused as part of its case. To succeed with such an application, the Crown must establish, on a balance of probabilities, that in the context of the specific case, the probative value of the evidence concerning a particular issue outweighs its prejudicial effect: see Handy, at para. 55; Perrier, at para. 18; R. v. Arp, [1998] 3 S.C.R. 339, at para. 42. In other words, an accused's uncharged discreditable conduct is "unusually and exceptionally" capable of admission "if it survives the rigours of balancing probative value against prejudice" (underlining in original): Handy, at para. 64.

[19] In assessing probative value, it is necessary to consider the degree to which the evidence is relevant to the material issues in the case and the strength of the potential inference(s) that the evidence is logically capable of supporting: see Handy, at para. 26; Robertson, at p. 943.

[20] As a result, the probative value assessment does not occur in a vacuum. Instead, to have probative value, the evidence must be relevant to a material issue in the case, and the inference that the evidence invites must be compelling enough to have at least some degree of influence in its determination. In short, the proposed evidence must have some bearing upon the live issue(s) in the case to be probative: see Handy, at para. 73.

[21] In some cases, the similarity between the offence(s) charged and the prior discreditable conduct will be the source of its probative value. The Supreme Court has recognized the connectedness (or nexus) between the prior discreditable conduct and the offence(s) charged as the principal driver of probative value in such cases: see Handy, at para. 76. In cases of that nature, relevant considerations include the proximity in time of the similar acts, similarity in detail, the number of occurrences of similar acts, the circumstances surrounding or relating to the similar acts, any distinctive features and intervening events, or anything that supports or undermines the underlying unity of the similar acts: see Handy, at paras. 81-84.

[22] The Supreme Court has held that the level of similarity will need to be exceptionally high when the uncharged discreditable conduct evidence is the linchpin in the Crown's efforts to prove identity. For example, in such cases, the accused's prior act(s) would need to be "so 'peculiar and distinctive' as to amount to a 'signature' or 'fingerprints at the scene of the crime' that would safely differentiate him from other possible assailants" to sufficiently connect him to the offence charged for the evidence to have probative value: see Handy, at para. 79; see also Arp, at paras. 45, 50.

[23] However, similarity is not always the driver of probative value. For example, where the evidence sheds light on an accused's potential motive to commit the crime(s) charged, the prior discreditable conduct evidence may be entirely dissimilar yet have significant probative value that justifies its admission: see Handy, at paras. 80, 84.

[24] Given this, as the Court of Appeal acknowledged in R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, leave to appeal refused, [2014] S.C.C.A. No. 193, at para. 122:

[I]n cases of domestic homicide, evidence may be admitted during the case for the Crown, including evidence of extrinsic misconduct, that elucidates the nature of the relationship between the spouses. This evidence may tend to establish animus or motive on the part of one spouse, and thus be relevant to prove that the killer of the deceased was the spouse with the animus or motive, rather than someone else and that the killing was murder: Moo, at para. 98; R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 64; and R. v. Van Osselaer, 2002 BCCA 464, 5 B.C.L.R. (4th) 73, at para. 23.

See also R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 107; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 51.

[25] Additionally, as the Court of Appeal observed in Z.W.C., at para. 106, "evidence of uncharged prior discreditable conduct has frequently been admitted in domestic violence cases to describe the nature of the parties' relationship, sometimes referred to as 'context' or 'background'."

[26] Although such evidence is often appropriately admitted in cases involving allegations of intimate partner violence, as the Court of Appeal pointed out in Z.W.C., that is not because such cases are subject to a categorical exception to the general rule of inadmissibility: see at para. 114.

[27] Irrespective of the nature of the charge(s), the court must still undertake the case-specific analysis of probative value and prejudicial effect that the law demands to decide whether to admit evidence of the accused's uncharged discreditable conduct: see Z.W.C., at para. 114.

[28] Finally, it bears remembering that, as the Court of Appeal cautioned in Z.W.C.: "Vague terms, such as 'narrative', 'context' and 'background', cannot be permitted to serve as a substitute for a careful assessment of how the evidence will assist the jury in understanding other admissible evidence, what inferences the jury may properly draw from the evidence, and how impermissible reasoning can be prevented": at para. 122.

[29] With the governing principles summarized, these reasons turn next to the parties' competing positions concerning the Crown's application.

II. Positions of the Parties

[30] On behalf of the Crown, Mr. D'Iorio emphasized that in domestic homicide cases, under a long and unbroken line of authority, courts have routinely admitted evidence of prior acts of violence by an accused directed at the victim.

[31] Like in those cases, Mr. D'Iorio argues that evidence of Mr. Vertentes-Arruda's prior acts of violence toward his wife is relevant to proving his motive to commit the offences alleged. His motive is relevant to proving both the actus reus and mens rea of the offences charged. In that regard, Mr. D'Iorio submits that the evidence is especially relevant to proving Mr. Vertentes-Arruda's state of mind when he started the fire. Whether he intended to kill his wife and all the occupants of his in-law's home and, if he did, whether his decision was the result of planning and deliberation.

[32] Mr. D'Iorio submits that the jury should know the actual state of the relationship between Mr. Vertentes-Arruda and his wife. Although Mr. Vertentes-Arruda was a loving and caring husband and father when sober, the jury should know that his behaviour would change when he was under the influence of alcohol and cocaine. When he was in that state, he sometimes acted violently towards his wife and that the morning of the fire was not the first time he crossed the line. The jury needs to know that, argues Mr. D'Iorio, to understand why he did what he did and appropriately assess Mr. Vertentes-Arruda's state of mind on the morning of December 4, 2020. A sanitized version of the marital relationship would not permit the jury to properly evaluate Mr. Vertentes-Arruda's actions and intentions on the morning of the fire and to understand that his conduct that day was not an aberration.

[33] Further, while the evidence is highly probative, Mr. D'Iorio argues that it has no real potential to occasion any prejudice. After all, he points out, the prior acts of violence are far less severe than the offences charged in the indictment. There is simply no risk of the evidence that Mr. Vertentes-Arruda sometimes pushed his wife, grabbed her arms, and slapped her, engendering in jurors’ feelings of contempt towards Mr. Vertentes-Arruda and causing them to use that evidence improperly.

[34] Given that the evidence has probative value and is unlikely to result in any prejudice, Mr. D'Iorio submits that the court should rule it admissible and not depart from the well-established line of authority that holds such evidence admissible in cases of this nature.

[35] On behalf of Mr. Vertentes-Arruda, Mr. Dos Santos disputes the probative value of the evidence. He makes several arguments in that regard. First, he notes that Mr. Vertentes-Arruda's wife does not provide details concerning the prior instances of violence; there are no dates or other specifics that would permit the defence to challenge that evidence.

[36] Second, Mr. Dos Santos notes that the defence admits that when he was under the influence of alcohol and cocaine, Mr. Vertentes-Arruda would act out of character and become aggressive. What more would the proposed evidence add, questions Mr. Dos Santos?

[37] Third, Mr. Dos Santos submits that the evidence risks distorting the relationship between Mr. Vertentes-Arruda and his wife. According to his wife, but for his substance abuse issues and how that altered his behaviour when he was under the influence of intoxicants, they had a good marriage. To the extent that there was a power imbalance between them, his wife was the dominant person in the relationship because of her proficiency in English and because she was responsible for the family's finances. If the court admits the evidence, it will leave the jury with the erroneous impression that Mr. Vertentes-Arruda was a "domestic abuser," argues Mr. Dos Santos.

[38] Fourth, Mr. Dos Santos challenges the Crown's claims that the evidence will assist in demonstrating Mr. Vertentes-Arruda's animus towards his wife, is necessary evidence of background and narrative, or that Mr. Vertentes-Arruda's wife's account will lack cohesiveness without it.

[39] Mr. Dos Santos argues the evidence has minimal probative value for these reasons. At the same time, he contends it carries the real potential for prejudice.

[40] Firstly, Mr. Dos Santos argues the proposed evidence will be distracting because it will require questioning Mr. Vertentes-Arruda's wife concerning the violence being reciprocal, including that she once punched him in the face. In other words, the evidence will distract the jury from what should be its primary focus: the events in the days preceding and on the morning of February 4, 2020. (To answer this concern, in his reply submissions, Mr. D'Iorio undertook to elicit that the violence was sometimes reciprocal and that Mr. Vertentes-Arruda's wife punched him on one occasion.)

[41] Secondly, Mr. Dos Santos submits that, ultimately, the evidence is little more than disposition evidence; it simply serves to portray Mr. Vertentes-Arruda as capable of acting violently. As such, argues Mr. Dos Santos, it will be highly prejudicial because it casts Mr. Vertentes-Arruda as a "wife beater" and needlessly feeds into pernicious stereotypes concerning "southern European men" like Mr. Vertentes-Arruda, who is from Portugal.

III. Analysis

[42] This part will analyze the admissibility of the proposed evidence, given the governing principles and the circumstances of this case. I will begin with the evidence's probative value and then consider its potential prejudicial effect to decide whether it is admissible.

Probative Value

[43] Assessing probative value begins by identifying the material issues: Handy, at para. 73. The offence's elements, the facts alleged, and the defence advanced or reasonably anticipated all inform the material issues in the case: see Handy, at para. 74.

[44] In this case, the actus reus of the offences charged will not be at issue.

[45] Mr. Vertentes-Arruda's wife will testify about waking around 4:00 a.m. on December 4, 2020, to the sound of glass breaking. With that, she got out of bed to investigate. She will testify to encountering Mr. Vertentes-Arruda in the kitchen of her parent's home, him carrying a red gas can, unscrewing it, and splashing gasoline onto her and the floor before he ignited it with his lighter. Further, she will testify that he followed her out of the home and struck her with some metal object while calling her vile names.

[46] Mr. Vertentes-Arruda's wife's evidence largely corresponds with the account he provided to the police in his confession, which has been ruled admissible: see R. v. Vertentes-Arruda, 2023 ONSC 6770. In that statement, Mr. Vertentes-Arruda admitted that on the morning in question, he walked to his in-law's house, retrieved a gas canister from their shed, threw a rock through the front window, entered the house, encountered his wife, splashed some of the gasoline on her and the floor and set it on fire. Mr. Vertentes-Arruda explained his behaviour by referencing his belief that his wife was having an affair with a former boyfriend and his frustration with that situation and her continual denials. He said he wanted "to do justice."

[47] Given the evidence available to the Crown, Mr. Dos Santos, on behalf of Mr. Vertentes-Arruda, sensibly conceded that the actus reus of the offences charged would not be at issue. In short, Mr. Vertentes-Arruda acknowledges that he started the fire at his in-law's home that caused his mother-in-law's death and jeopardized the lives of his wife, father-in-law and three daughters.

[48] As a result, the critical issue at trial for each charge will be Mr. Vertentes-Arruda's state of mind on the morning of December 4, 2020.

[49] Concerning the charge of first-degree murder involving his mother-in-law, the material issue will be Mr. Vertentes-Arruda's subjective intentions when he started the fire. More specifically, whether he intended to kill his mother-in-law or to cause her bodily harm that he knew was likely to cause her death: see Criminal Code, R.S.C. 1985, c. C-46, s. 229(a); R. v. Vaillancourt, [1987] 2 S.C.R. 636, at p. 645; R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1088; R. v. Cooper, [1993] 1 S.C.R. 146, at pp. 155-56.

[50] If the jury doubts that he had either of the requisite intentions concerning his mother-in-law, its analysis would not be complete. Instead, the jury would still need to consider if Mr. Vertentes-Arruda had either of the requisite intentions concerning his wife but ended up killing his mother-in-law by accident or mistake, which would make him guilty of murder by operation of section 229(b).

[51] Additionally, for each of the charges of attempted murder "by fire" involving his wife, father-in-law, and three daughters, the critical issue will be whether, with each of those individuals, Mr. Vertentes-Arruda specifically intended to kill them: see R. v. Ancio, [1984] 1 S.C.R. 225, at pp. 248-251; R. v. Logan, [1990] 2 S.C.R. 731, at pp. 742-744; R. v. Collins, 2023 ONCA 394, 168 O.R. (3d) 127, at para. 54.

[52] If the jury concludes that Mr. Vertentes-Arruda is guilty of attempting to murder his wife, a guilty verdict for murdering his mother-in-law will necessarily follow because of section 229(b) of the Criminal Code. In effect, his intent to kill his wife will transfer to the killing of his mother-in-law, even though it may not have been his intention to harm his mother-in-law.

[53] Finally, if the jury concludes that Mr. Vertentes-Arruda is guilty of murder because he had either of the requisite intentions for murder under s. 229(a) relating to his mother-in-law or because he intended to kill his wife and instead killed his mother-in-law by mistake or accident, then it would need to consider if the murder was planned and deliberate and, therefore, first-degree murder: see Criminal Code, s. 231(2).

[54] Undoubtedly, to prove that Mr. Vertentes-Arruda possessed the mens rea for each of the offences charged, the Crown will rely on the "common-sense" inference. The jury will receive the standard instruction that they "may conclude (infer), as a matter of common sense, that a person usually knows what the predictable consequences of their conduct (actions) are, and means to bring them about.": David Watt, Watt's Manual of Criminal Jury Instructions (2023), (Toronto: Thomson Reuters, 2023), at 229-A; see also R. v. Seymour, [1996] 2 S.C.R. 252, at pp. 262-263; R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432, at paras. 88-90.

[55] The Crown will ask the jury to reason that Mr. Vertentes-Arruda must have intended to kill his wife and everyone in the home that morning. The Crown will argue that the death of his wife would be the obvious and, therefore, intended consequence of Mr. Vertentes-Arruda splashing gasoline onto her and igniting it. Further, the Crown will no doubt argue that Mr. Vertentes-Arruda would have also appreciated that the death of everyone in the house would be a virtual certainty of starting a gasoline fire inside his in-law's residence in the early hours of the morning when the occupants would be asleep and, therefore, would have had little chance of escape. As a result, he must have realized that and, therefore, also intended to kill all of them, the Crown will argue.

[56] In contrast, the defence will likely counter that this is not an appropriate case for the jury to draw the "common sense" inference to find that the Crown has proven the mens rea for the offences charged or, at minimum, have a reasonable doubt in that regard because of the evidence concerning Mr. Vertentes-Arruda's intoxication and disordered thinking in the period preceding the fire.

[57] To be sure, the final instructions will inform the jury that the common-sense inference is permissive and not obligatory. And that it should consider the whole of the evidence, including any evidence of Mr. Vertentes-Arruda's intoxication on the morning in question and his recent history of disordered thinking when in such a state. The court will instruct the jury that that evidence may rebut the common sense inference and that the jury should consider it when deciding if the Crown had proven beyond a reasonable doubt that Mr. Vertentes-Arruda possessed the subjective mens rea required to be found guilty of attempted murder and murder: see Seymour, at pp. 263-264; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 63; R. v. Lawlor, 2023 SCC 34; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 104; R. v. Robinson, [1996] 1 S.C.R. 683, at pp. 710-711.

[58] Finally, even if the impact of intoxication and Mr. Vertentes-Arruda’s disordered thinking does not leave the jury with reasonable doubt concerning whether he possessed the mens rea for murder or attempted murder, it will be told to consider that evidence again when deciding whether it is satisfied beyond a reasonable doubt that the murder was the result of planning and deliberation: see R. v. Wallen, [1990] 1 S.C.R. 827, at pp. 844-845.

[59] Having identified the material issues, I must now consider whether the proposed evidence has any bearing on them. Will it assist the jury in assessing Mr. Vertentes-Arruda's intentions on the morning in question to know that in the past, when he and his wife argued while he was under the influence of alcohol and cocaine, he had pushed her, grabbed her arms, and that they had sometimes slapped one another?

[60] Despite Mr. D'Iorio’s able submissions, I am not satisfied it would. I have a few reasons for concluding that the proposed evidence has very little, if any, probative value.

[61] Firstly, this is not a situation where the prior discreditable conduct evidence is necessary for the jury to understand the dynamic of the relationship between Mr. Vertentes-Arruda and his wife. According to Mr. Vertentes-Arruda's wife, it was his use of alcohol and cocaine, the money troubles that created and her husband's erratic behaviour when intoxicated, including his unfounded claims of infidelity, that led to the deterioration of their marriage. Mr. Vertentes-Arruda's wife cited his substance abuse and his erratic behaviour, not his prior acts of violence, which she described as rare, to explain her decision to leave the couple's home with their children and go and stay with her parents. Therefore, the evidence is unnecessary to the narrative or to establish background or context for the jury to understand the relevant events properly.

[62] Second, I am far from convinced that in deciding whether Mr. Vertentes-Arruda had the mens rea for murder or attempted murder on the morning of December 4, 2020, it would assist the jury to know that, in the past, when they argued when he was under the influence of intoxicants, he had occasionally pushed his wife and grabbed her arms, and that they had slapped one another. Such acts of violence are undoubtedly of a different magnitude than Mr. Vertentes-Arruda's actions on the morning of the fire. It would be an inferential leap, in the extreme, to reason that because Mr. Vertentes-Arruda had pushed his wife, grabbed her arms, and slapped her in the past, he more likely had a murderous intent on the morning of December 4, 2020.

[63] Third, at its highest, the proposed evidence merely demonstrates that Mr. Vertentes-Arruda is a person who is capable of acting violently when intoxicated. Borrowing from Mr. D'Iorio's submissions, the evidence would establish that Mr. Vertentes-Arruda had "crossed the line" before December 4, 2020. No doubt, the evidence would prove that. However, as Binnie J. reminded in Handy, at para. 72:

Proof of general disposition is a prohibited purpose. Bad character is not an offence known to the law. Discreditable disposition or character evidence, at large, creates nothing but "moral prejudice" and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person.

[Italics in original]

[64] In short, I am less than satisfied that the proposed evidence is probative of any material issues in this case.

Prejudicial Effect

[65] All that said, I do not think that the proposed evidence would be especially prejudicial. To be sure, the evidence would serve to portray Mr. Vertentes-Arruda as someone capable of acting violently, at least when he is under the influence of alcohol and cocaine.

[66] As such, there is at least some risk that the jury could reason that because Mr. Vertentes-Arruda is the kind of person who occasionally pushed his wife, grabbed her arms, and slapped her, he is the type of person who would commit murder or attempted murder.

[67] However, without discounting the seriousness of any domestic violence, the prior acts described are on the comparatively more minor end of the spectrum. Unlike many other cases, where the acts of earlier violence are far more grave, the chances of the evidence occasioning either moral or reasoning prejudice strikes me as relatively minimal. I am confident that any such risk could be more than adequately redressed through a limiting instruction that cautions the jury against reasoning in that way.

Conclusion

[68] The proposed evidence has little to no probative value and some minimal risk of occasioning prejudice. Given this, the Crown has failed to establish that its probative value outweighs its prejudicial effect, which is necessary to displace the presumption that the evidence is inadmissible.

[69] Accordingly, the Crown's application is dismissed.

Signed: “J. Stribopoulos J.” Released: March 5, 2024

COURT FILE NO.: CRIM J(P) 2022/215 DATE: 20240305 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING - and – HELDER VERTENTES-ARRUDA REASONS FOR DECISION Justice J. Stribopoulos Released: March 5, 2024