COURT FILE NO.: CR-23-10 DATE: 2024-01-23

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING H. Rim, for the Crown Crown

- and -

BARDOTT WALTERS T. Evangelista, for the Accused Accused

HEARD: January 15, 2024

Ruling on Admission of Prior Disreputable Conduct

BALTMAN J.

Introduction

[1] The accused is charged with having assaulted each of her two daughters. M., now 18, was allegedly assaulted on one occasion, when she was 16 years old. P., now 24 years old, was allegedly assaulted on three occasions, when she was between 14 to 21.

[2] The charges were laid on November 4, 2021, after both complainants provided videotaped statements to the police. The trial is to proceed before a jury on February 5, 2024.

[3] The Crown seeks to tender evidence of prior physical, verbal and emotional abuse by the accused toward each complainant. The Crown maintains this evidence is highly probative of the issue in question in this case, namely the accused’s assaultive behaviour toward M. and P. The accused argues such evidence is unreliable, largely irrelevant, and unfairly prejudicial.

[4] For the following reasons, I have determined that none of the proposed evidence is admissible.

Legal Framework

[5] Evidence of prior acts of discreditable conduct (PDC) is presumptively inadmissible. This includes evidence of general propensity, disposition or bad character, all of which is inadmissible if it only goes to establishing that the accused is the type of person likely to have committed the offence in question, or to show that he is a person of bad character: R. v. Handy, 2002 SCC 56, at paras. 31, 36, and 53; R. v. Z.W.C., 2021 ONCA 116, at para. 96; R. v. J.W., 2022 ONCA 306, at paras. 17-18.

[6] However, evidence that shows a specific propensity on the part of the accused may be admissible if it is relevant and material to an issue in the case and where its probative value outweighs its prejudicial effect: Handy, at para. 55; Z.W.C., at para. 97. Evidence is relevant if it tends to prove what it is offered to prove. It is material if what it is offered and tends to prove is something with which the law is concerned, i.e., if it is directed at a matter in issue in the case: R. v. J.H., 2020 ONCA 165, at para. 52; R. v. Luciano, 2011 ONCA 89, at para. 207; R. v. Candir, 2009 ONCA 915, at para. 49.

[7] The principal driver of probative value is the connectedness (or nexus) between the similar fact evidence and the offences alleged: Handy, at para. 76. A determination of probative value requires an assessment of the relevance and materiality of the proposed evidence in relation to the “issue in question” in the case: R. v. Tsigirlash, 2019 ONCA 650, at paras. 29-32.

[8] Identification of the “issue in question” is an important control, to ensure that the evidence is considered for that issue and not otherwise. General disposition of the accused does not qualify as “an issue in question.” The question is to what extent, if any, the proposed evidence tends to be more probative than prejudicial in relation to an issue in the crime now charged: Handy, at paras. 70-71. Probative value requires an assessment of the strength of the evidence that the extrinsic acts in question occurred, the connection between the accused and the similar acts, and the extent to which the proposed evidence supports the inferences the Crown seeks to make, and the materiality of the evidence: Z.W.C., at para. 98. The deciding judge should pay close attention to similarities in character, proximity in time, and frequency of occurrence: Handy, at para. 81. At paras. 82-84, the Court in Handy set out a non-exhaustive list of factors that may connect the proposed evidence to the circumstances of the charged conduct:

• Proximity in time of the similar acts;
• Extent to which the other acts are similar in detail to the charged conduct;
• Number of occurrences of the similar acts;
• Circumstances surrounding the similar acts;
• Any distinctive features unifying the incidents;
• Intervening events;
• Any other factor which would tend to support or rebut the underlying unity of the similar acts.

[9] When assessing prejudice, the deciding judge should also consider any countervailing factors, such as:

• the inflammatory nature of the similar acts;
• whether the Crown can prove its point with less prejudicial evidence;
• the potential distraction to the trier of fact from its proper focus on the facts charged; and
• the potential for undue consumption of time.

[10] The onus is on the Crown to demonstrate on a balance of probabilities that the probative value of the disreputable conduct in relation to a particular issue outweighs its potential prejudice, and thereby justifies its reception: Handy, at paras. 55 and 73.

[11] The potential prejudicial effect of the proposed evidence involves both moral prejudice and reasoning prejudice. Moral prejudice is the risk that the trier of fact may convict an accused because they are a “bad person.” Reasoning prejudice is the risk that the trier of fact will be distracted from the proper focus of the trial and spend an inordinate amount of time on the disreputable conduct: Handy, at paras. 31, 42, 100, 137-146; R. v. McDonald, 2017 ONCA 568, at paras. 83-84.

[12] While the potential prejudicial effect of the evidence must always be assessed, the risk of moral and reasoning prejudice is significantly reduced in a judge-alone trial: R. v. T.B., 2009 ONCA 177, at paras. 27-33; R. v. MacCormack, 2009 ONCA 72, at paras. 56, 68 and 69.

The Allegations

Complainant M.

[13] M. alleges that in mid-August 2021, when she was 16 years old, while driving to the bank she and the accused got into an argument over dynamics within the family. The accused became angry and slapped M. across the face.

Complainant P.

[14] P.’s allegations involve three separate assaults:

1. When P. was approximately eight years old, the accused became very angry at her for getting a C+ in one of her grades, and proceeded to choke her to the point where she could not breathe;
2. When P. was approximately nine years old, the accused became angry when P. could not find her library books. The accused slapped P. across the face with her purse, causing a cut underneath her eye, and then dug her nails into P.’s neck.
3. Between the ages of 12-13, the accused became angry at how P. had spoken to her, and struck P. with the back of her hand. The ring she was wearing left a cut on P.’s face.

The Proposed PDC Evidence

Complainant M.

[15] There are four separate areas that the Crown seeks to adduce:

1. While in pre-school and kindergarten, M. was physically overactive. The accused reacted with verbal abuse, and, if M. was not responsive, would hit her on her back, buttocks, or across her face.
2. When M. was eight or nine years old, the accused pinched, pulled or grabbed M. on several occasions when she disapproved of something M. said or did.
3. When M. was 12 years old, and she and the accused were living in China, the accused occasionally hit M. when she failed to do assigned chores. While still in China, after M. fell down the stairs and broke her leg, the accused refused to send her back home and became angry at her for not cooking.
4. The accused verbally abused M. over her appearance. On one occasion the accused refused to let M. accompany her outdoors because “she did not want to be outside with someone as ugly as her.” On another occasion, in the summer of 2021, when M. was 16 years old, the accused told M. she was “getting fat.” As a result, M. developed an eating disorder, including binge eating and vomiting.

Complainant P.

[16] There are three areas that the Crown seeks to adduce:

1. When P. was 14-15 years old, the accused enrolled P. in boarding school against her wishes, and insisted that she live there rather than at home.
2. Whenever P. visited home, the accused would become upset. Eventually the accused told P. that she should stay at school and not visit home again.
3. The accused instructed P.’s father to not visit her at school. (He did so in secret.)

Analysis

[17] I see numerous problems with the proposed evidence.

[18] First, there is no evidentiary foundation for any of the factual assertions in the PDC evidence. The Crown has not adduced any evidence from the complainants in support of this motion. Consequently, not only is the evidence untested, it is vague and lacks particulars.

[19] The Crown argues that it can rely on the transcript and videotape of the complainants’ statement to police on November 4, 2021. It refers to para. 124 of R. v. Z.W.C., 2021 ONCA 116, where Strathy C.J.O. stated that an “appropriate record” could include extracts from the complainants’ evidence at the preliminary hearing “or possibly other prior statements.” The Crown suggests that the complainants’ prior video statements therefore suffice.

[20] I disagree. The Court of Appeal did not conclusively state that any prior statements will do. It qualified that statement with the word “possibly,” presumably because not all prior statements are sufficient. And, at para. 123, it stipulated that the Crown must provide “a specific foundation for the admission of the evidence, to enable the trial judge to appreciate the nature and scope of the evidence it proposes to adduce…”

[21] Here that foundation is missing. There has been no admissibility voir dire, and therefore no indication whether the proposed evidence is reasonably capable of belief or too prejudicial to admit: R. v. Aragon, 2022 ONCA 244, at paras. 37-40. The complainants’ historical assertions are vague and uncorroborated. They have never withstood any cross-examination whatsoever. To set them loose on a jury could be highly prejudicial to the accused. Even with a careful balancing instruction from the bench, once they’re released, they may leave an unretractable aura of abuse around the accused.

[22] Second, much of the alleged discreditable conduct dates back many years. In M.’s case, the jury will need to assess alleged conduct that dates back to her years in pre-school and kindergarten, and then later between the ages of 8-9.

[23] Third, there is a legitimate concern about collusion between the material witnesses. The complainants are sisters and were living together during some of the relevant periods.

[24] Fourth, there is an important underlying context that has not been explored, namely the family law proceedings that were underway when the complaints were made to police. That brings into question the complainants’ motives in approaching the police and to what extent, if any, they were being used (willingly or not) to advance their father’s position against their mother.

[25] Fifth, it is difficult to see how some of the alleged misconduct in China even amounts to relevant discreditable conduct. For example, a parent’s decision to remain in the jurisdiction and continue treatment there for a child’s injury is likely within the scope of parental discretion.

[26] Sixth, the admission of that evidence will likely consume significant additional time.

[27] Finally, the potential for prejudice is greatly increased here as the trial is proceeding before a jury.

Conclusion

[28] For the reasons set out above, I determined that the proposed evidence is not admissible.

Baltman J. Released: January 23, 2024