Court File and Parties
BARRIE COURT FILE NO.: CR-22-119 DATE: 20240119
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – CHAD HARPER Defendant
Counsel: Shannon Curry, for the Crown Roy Respicio, for the Defendant
HEARD: January 11, 2024
RULING ON PRIOR DESCREDITABLE CONDUCT APPLICATION
Casullo J.
Introduction
[1] Mr. Harper is charged with committing the following offences against the complainant, Brandi-Rae Campbell, between January 1, 2009, to December 31, 2013:
Count 1 Assault causing bodily harm. Count 2 Assault with a weapon. Count 3 Uttering threats. Count 4 Sexual assault with a weapon. Count 5 Sexual assault causing bodily harm.
[2] The Crown brings this pre-trial application to introduce evidence of alleged prior discreditable conduct by Mr. Harper at his trial, scheduled to commence February 5, 2024.
[3] The defence opposes the application, submitting that the prejudicial effect of the allegations outweighs their probative value. Further, it was open to the Crown to amend the Information or Indictment to incorporate the allegations in the charges against Mr. Harper, but they did not.
[4] The parties did not call viva voce evidence at the application and relied instead on the transcripts of the preliminary inquiry held in 2022.
Background and The Charges
[5] Ms. Campbell was born on May 14, 1985, and Mr. Harper on June 25, 1985. The two met in 2006 and married in 2012. Together they had five children: Landon, Gavin, Koen, Noah, and Bailey Rae.
[6] When Ms. Campbell and Mr. Harper lived on Forest Street in Innisfil, they had an argument in the kitchen. Mr. Harper grabbed Ms. Campbell’s ponytail and hit her face against the ceramic kitchen floor. For a few days, she had to use a straw to consume food and liquids due to jaw pain. This event forms the basis of Count 1 on the indictment.
[7] When they lived on Adams Street in Bradford, Ms. Campbell states that Mr. Harper assaulted her when he threw a glass vase that hit her on the side of the head before it landed on the floor and shattered. Ms. Campbell sustained some swelling and discolouration. When they lived on Forest Street, Ms. Campbell was injured when a dart thrown by Mr. Harper hit her back or shoulder. These two events form the basis of Count 2 on the indictment.
[8] Between January 1, 2012, and December 31, 2013, Mr. Harper threatened Ms. Campbell when he held her against the wall and threatened, “I’ll fucking kill you.” Many times, over the course of their relationship, Ms. Campbell states that Mr. Harper would threaten to tie a brick or rocks to her feet and throw her in a lake. Mr. Harper also threatened Ms. Campbell many times about going to the police stating, “snitches get stitches.” These threats form the basis of Count 3.
[9] On at least two occasions between January 1, 2009, and December 31, 2013, Mr. Harper sexually assaulted Ms. Campbell with a weapon, and sexually assaulted her causing bodily harm. To wit, Mr. Harper is alleged to have penetrated Ms. Campbell with a vegetable without her prior knowledge or consent. These events form the basis of Counts 4 and 5.
The Application
[10] In addition to the evidence in support of the charges, the Crown wishes to lead evidence that Mr. Harper was abusive and controlling, affecting Ms. Campbell’s mindset during their relationship. The animus the evidence is said to support will provide context as to why Ms. Campbell remained with Mr. Harper before reporting him to police. Absent this information, the trier will be left with an incomplete picture of the relationship, “left to describe her account of some ultimate act of violence in a vacuous context with the potential risk that the triers will unfairly discredit her testimony”: R. v. S. B. , [1996] O.J. No. 1187, at para. 50.
[11] The specific instances of prior discreditable conduct are as follows:
(a) Mr. Harper assaulted Ms. Campbell when she tried to leave their home to visit her mother, taking her purse and keys, pulling her fingers back and stomping on her foot. (b) Mr. Harper, unhappy that Ms. Campbell was all dressed up to go out, ripped her clothes off and locked her outside, naked. (c) On one occasion, while Ms. Campbell was in the bathtub, Mr. Harper came into the bathroom irate, and held her head under water. (d) Between 2014-2016, when Ms. Campbell’s mother had come over to pick her up, Mr. Harper met her mother out on the porch and told her Ms. Campbell was, “not going nowhere”. Ms. Campbell came out onto the porch, crying, and asked her mother to leave because she was making things worse. Mr. Harper yelled at Ms. Campbell to, “get in the fucking house now.” The Crown seeks to introduce this prior discreditable conduct through Ms. Campbell’s mother.
The Law
[12] Evidence of an accused’s prior discreditable conduct that only goes to show that the accused is the type of person likely to have committed the offence(s) in question is presumptively inadmissible: R. v. Z.W.C. , 2021 ONCA 116 , 155 O.R. (3d) 129 at paras. 96- 97.
[13] Such evidence is admissible, however, if it is both relevant and material, and the Crown establishes, on the balance of probabilities, that its probative value outweighs its prejudicial effect: R. v. J.H. , 2020 ONCA 165 , [2020] OJ No 937 (QL) at para. 54.
[14] The threshold for relevance and materiality is not high. As Doherty J.A. held in R. v. McDonald , [2000] O.J. No. 3315 (Q.L.), at para. 24:
The threshold for relevance and materiality is not high: see R. v. B. (L.), supra at 492 and Handy, supra at 268, quoting Paciocco and Stuesser, Essentials of Canadian Law: The Law of Evidence (1996), at p. 19, “It is relevant ‘where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely that that proposition would appear to be in the absence of that evidence.
[15] At trial, it is expected that Ms. Campbell will testify to Mr. Harper’s controlling behaviour, his belief about their roles (he forced Ms. Campbell to clean up), and his domination over her. The discreditable evidence is part of the larger history of Ms. Campbell’s relationship with Mr. Harper.
[16] In R. v. B. (L.) (1997) , 35 OR (3d) 35 , at para. 10, Charron J. explained that a judge charged with balancing probative value against 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?
[17] Clearly the proposed testimony is conduct of the accused.
[18] The proposed testimony is relevant and material, as it helps to complete the narrative of the relationship between Ms. Campbell and Mr. Harper. It demonstrates Mr. Harper’s animus towards Ms. Campbell and provides context as to why Ms. Campbell may not have left the marriage earlier.
[19] The proposed testimony is discreditable to Mr. Harper.
[20] As to the push and pull of prejudice and probity, evidence is not prejudicial simply because it is powerful evidence against the accused. As the court held in L.B. , at para. 22:
In its widest sense, any evidence that tends to prove guilt can be said to be prejudicial to the accused since it is detrimental to his or her position. Obviously that is not the kind of prejudice that calls for special evidentiary rules. Professor Delisle defines the meaning of prejudice in this context succinctly as follows:
Prejudice in this context, of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for the evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly.
[21] If evidence of discreditable conduct is found to be probative of the live issues before the court, any potential prejudice can be ameliorated by way of a strong jury instruction at the time the evidence is introduced, and again during the jury charge: see R. v. McFarlane , [2006] O.J. No. 4859, at para. 22.
[22] The Crown provided a number of decisions where our courts have recognized, in a domestic context, that the probative value of prior relationship evidence outweighs any prejudicial effect. For example, in R. v. F. (D.S.) (1999) , 43 OR (3d) 609, the accused was charged with a number of offences similar to those in the case at bar. In addition to the complainants evidence relating directly to the charges, the Crown was permitted to introduce evidence, through the complainant, that the accused started calling her names and using abusive language after they married. He then began pushing and shoving her. Eventually she was punched, slapped, or kicked at least once a week. The accused controlled their finances and their social life, and the complainant was frightened of him.
[23] As O’Connor J.A. held in F. (D.S.) at paras. 22 and 25:
In this case it was important to put the complainant's evidence supporting the charges in the context of the overall relationship. The complainant's evidence was that the allegations underlying the charges were consistent with the attitude and behaviour that the appellant exhibited towards her throughout the one-year period that they lived together. The challenged evidence would enable the jury to more fairly evaluate the complainant's evidence regarding the specific allegations. Excluding that evidence would have left the jury with an incomplete and possibly misleading impression of the relationship. In my view, the disputed evidence was relevant for the purpose of setting forth the contextual narrative in the course of which the alleged events occurred.
In this case, the evidence, which in general terms described a pattern of abusive behaviour towards the complainant, if accepted, was capable of assisting the jury in understanding why the appellant did what was alleged in the indictment. This evidence demonstrated an animus on the appellant’s part towards the complainant that was consistent with the offences with which he was charged. The trial judge was correct in holding that the impugned evidence was relevant for this purpose.
[24] In S.B., the accused was charged with a number of offences against his wife, including sexual assault. Hill J. admitted the evidence, finding that its probative value outweighed its prejudicial effect, explaining at paras. 31-32:
Violence between strangers, as a general rule, involves a narrative of circumstances of limited temporal duration. Violence within a relationship, spousal or otherwise, necessarily, and frequently, involves the complex dynamics and subtleties of the personalities of the principals within the context of their individual and shared experiences, understandings, roles and emotions.
While submissions of admissibility on the basis of mere narrative can, of course, be abused, to deny the triers-of-fact complete information regarding the prior history of the parties runs the risk of presenting an entirely sterile and antiseptic record of the realities of the individual circumstances of the participants.
[25] Hill J. explained further, at para 36:
The evidence of earlier history permits a comprehension of the true nature of the relationship between the parties. If accepted, the evidence establishes a pattern of dominance control, possessiveness and fear promoted by the accused in his relationship with his spouse. He was intent on, in effect, keeping her for himself at all costs and at times employed the threat of the loss of the child to orchestrate a desired response from the complainant. Such evidence in turn may assist the jury in considering the credibility of the complainant's account of events….
[26] In R. v. B.S.R . , [2006] O.J. No. 3404, the Court of Appeal affirmed the trial judge’s decision to admit evidence of specific prior instances of abuse, as well as evidence of general misconduct, toward the complainant by her husband, noting at para. 38:
The evidence was admissible to explain the nature and dynamic of the relationship between the appellant and M.R., to demonstrate the appellant's animus toward M.R., to assist in explaining M.R.'s delay in fully disclosing the assaultive acts of her husband, and to rebut the appellant's claim of fabrication by M.R. Moreover, unlike the facts in Handy , the evidence in this case was provided by M.R. herself, and not by a third party. [citations omitted]
[27] In R. v. P.S. , 2007 ONCA 299 , [2007] O.J. No. 1476, the Court of Appeal upheld the trial judge’s decision to admit evidence of prior abuse and mistreatment of the complainant by the accused, her boyfriend. The court held, at paras. 39-40:
The controlling attitude of the appellant towards the complainant and his degrading and assaultive treatment of her reflected in the evidence of prior conduct are highly probative of a strong animus to do the very acts alleged of him. If accepted, the evidence has significant probative value in providing an understanding of the relationship between the appellant and the complainant, and in elucidating his animus or motive to do what was alleged against him.
Turning to the potential prejudicial effect of this evidence, the same factors that existed in F(D.S.), supra , are present here. The high probative value of the evidence tends to make it les likely that it would have been used improperly. It is evidence given entirely by the complainant, and if the jury did not accept her evidence about the charges themselves, it is unlikely that they would be greatly swayed by her additional evidence of his prior disreputable conduct. Finally, the trial judge carefully cautioned the jury that they must accept the evidence before using it at all, and that then they must not use it to conclude that the appellant is a person of general bad character and therefore likely to have committed the offences. Nor were they to punish the appellant for the prior acts by finding him guilty.
[28] Mr. Harper submits that the evidence proposed to be adduced is propensity evidence, it is highly discreditable, and it poses a significant risk that the trier-of-fact will draw an inference of guilt based solely on bad character: R. v. Handy , 2002 SCC 56 , [2002] 2 SCR, 2002.
[29] Further, he contends that the evidence sought to be admitted poses a significant risk of distracting from the actual issues. The evidence is highly contentious, and it involves allegations far more complex and equally serious than the actual charges faced by Mr. Harper. The probative value of the evidence outweighs its prejudicial effect, and amounts to no more than evidence of Mr. Harper’s propensity to commit domestic violence and, accordingly should not be permitted.
[30] Finally, Mr. Harper submits that Ms. Campbell has a history of visiting domestic violence on Mr. Harper. In both 2016 and 2017, she was charged with domestic assault and subjected to a restraining order to stay away from Mr. Harper.
[31] Additionally, Ms. Campbell’s parents are retired police officers, and this perceived authority of her parents was held over Mr. Harper throughout the marriage, such that any power imbalance in their relationship was tipped in Ms. Campbell’s favour.
Analysis
[32] I find that three of the four instances of prior discreditable conduct the Crown seeks to introduce – (a) taking Ms. Campbell’s purse and keys; (b) ripping her clothes off; and (d) the porch incident – are relevant and material. They provide narrative of the relationship between Ms. Campbell and Mr. Harper and may advance the inquiry into the issues before the court.
[33] If accepted by the trier, these events show an animus harboured by Mr. Harper against Ms. Campbell. The events may enlighten the trier as to why Ms. Campbell did not leave the relationship earlier. Much as in P.S., if Ms. Campbell’s evidence in respect of the primary counts is not accepted, then (a), (b) and (d) will likely not be accepted by the trier.
[34] The evidence is certainly probative of the charges before this court. Thus, these instances may be introduced in evidence. I will ensure that a limiting instruction is provided to the jury at the time the evidence is introduced, as well as in my charge, to the effect that they may not use the evidence to conclude Mr. Harper is man of bad character, and therefore more likely to have committed the offences he is charged with.
[35] I note that in respect of (d), the Crown properly conceded that I need to consider the issue of collusion, given that this evidence is to be introduced by Ms. Campbell’s mother. If collusion is present, it destroys the foundations on which admissibility is sought. However, as the court held in Handy , at para. 111, the issue is concoction or collaboration, not contact. Here, there is no air of reality to collusion beyond contact, and I am not satisfied that Ms. Campbell’s mother’s evidence is tainted with collusion.
[36] I turn now to (c), the bathtub incident. Mr. Harper is alleged to have held Ms. Campbell’s head under water. Such an aggressive act can have unintended results, including death. This event is much more inflammatory than the other three incidents the Crown seeks to admit. Its introduction would run the risk of reasoning prejudice, as it may confuse or distract the jury from the charges that are before the court. Introduction of this evidence could also result in Mr. Harper standing trial on six counts, not five. Accordingly, the bathtub incident shall be excluded from the jury’s consideration.
Conclusion
[37] In the result, the Crown’s application is granted in part.
The Honourable Justice Casullo