WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 278.91(1) of the Criminal Code:
(i) Publication prohibited
278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:
o ( a ) the contents of an application made under section 278.3;
o ( b ) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or
o ( c ) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.
(ii) Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
COURT FILE NO.: CR-23-118-00 DATE: 20241107
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – B.W. Respondent
Counsel: Linsay Weis, for the Crown Hubert Gonzalez, for the Defendant
HEARD: November 4, 2024
REASONS FOR DECISION
HEALEY J.
Nature of the Application
[1] B.W. (the “respondent”) is charged with sexual assault contrary to s. 271 of the Criminal Code. The complainant is the respondent’s former spouse.
[2] The respondent and complainant married in 2001 and were divorced in 2016. They have three children together.
[3] During her statement to the police at the time she made the complaint, the complainant alleged that the respondent had forced her to have nonconsensual anal intercourse on three occasions during their marriage. The offence is alleged to have occurred between January 1, 2012 and December 31, 2014.
[4] The matter is being tried before a jury. The Crown brought this application at the outset of trial for leave to adduce uncharged discreditable conduct of the respondent. The complainant provided a videotaped statement to the police, in which she conveyed the information that is the subject matter of this application.
[5] The Crown sought to adduce the following other discreditable conduct of the respondent:
(a) Evidence that the complainant believed that the respondent was verbally and emotionally abusive to her including telling her that he could not stand looking at her, that she was too fat for him, and that he had to be drunk to even look at her;
(b) Evidence that the respondent at times during their marriage shoved the complainant;
(c) Evidence that the respondent would threaten the complainant, telling her that he wanted her dead, and that she was better off dead. These threats often occurred when the respondent was intoxicated, which was frequent, as the complainant characterizes the respondent as an alcoholic;
(d) Evidence of the reason for the breakdown of the marriage, including that their mutual child begged the complainant to leave the respondent because they were better off without him;
(e) Evidence that the reason the complainant relocated away from the Innisfil area is because she believed that the respondent had people following her.
[6] The Crown also sought to adduce evidence considered relevant to the sexual assault charge before the court, but took the position that it is not prior discreditable conduct requiring an application. The information sought to be adduced was:
(a) Evidence of the complainant’s characterization of the marriage as not a good one, including that the respondent was controlling and domineering; and
(b) Evidence that the complainant, at times, had a friend help facilitate the exchange of children with the respondent so that she did not have to see him.
Ruling
[7] After hearing submissions, this court provided the following ruling, with reasons to follow:
The proposed evidence outlined in paragraphs (a) – (c) above is admissible.
Evidence of the complainant’s view of the reason for the breakdown for the marriage is admissible, but excluding the proposed hearsay evidence from the child.
Evidence of why the complainant relocated from the Innisfil area is admissible, but excluding the proposed evidence allegedly emanating from the respondent that he had people following her.
The proposed evidence that the Crown characterized as not requiring an application as it did not refer to other discreditable conduct is admissible.
The Law
[8] A succinct summary of the general principles of admissibility of evidence is found in R. v. J.H., 2020 ONCA 165, at para. 52, where Watt, J.A. stated:
To be receivable in a criminal trial, evidence must be relevant, material and admissible. Evidence is relevant if it tends to prove what it is offered to prove. Evidence is material if what it is offered and tends to prove is something with which the law is concerned. And evidence is admissible if its reception does not offend any exclusionary rule of evidence and its probative value exceeds its prejudicial effect (citations omitted).
[9] Discreditable conduct evidence is presumptively inadmissible, and its admission requires that the Crown satisfy the trial judge that the probative value of the evidence in relation to a particular issue, in the context of the case, outweighs its potential prejudice and thereby justifies its reception: R. v. Handy, 2002 SCC 56, at para. 55.
[10] There is a significant body of case law from the Ontario Court of Appeal in which discreditable conduct evidence has been admitted in cases in which the accused and complainant were in an intimate or domestic relationship: R. v. D.S.F., [1990] O.J. No. 688 (Ont. C.A.); R. v. Zang, [2000] O.J. No. 1617 (C.A.); R. v. P.S., 2007 ONCA 299, [2007] O.J. No.1476 (C.A.); R. v. Stubbs, 2013 ONCA 514. Also see R. v. Trochym, [2009] O.J. No. 3274 (S.C.J.).
[11] In the above cases, the basis for admission has been to provide a contextual narrative to offer a full understanding of the relationship in which the alleged offence occurred, and to provide evidence of motive or animus to prove the alleged offence, as well as intent.
[12] The exclusionary rule aims to prevent the type of prejudice that may accompany the admission of such evidence: (1) the jury may accept the evidence of extrinsic misconduct to conclude that the accused is a “bad person”, thus likely to be guilty of the events charged; (2) the jury may tend to punish the accused for the extrinsic misconduct by finding him guilty of the events charged; and (3) the jury may become confused and have their attention deflected from the main purpose of the trial, and substitute their conclusion on the extrinsic misconduct for their verdict on the indictment they are trying: R. v. T. (J.A.), 2012 ONCA 117, at para 52; R. v. Johnson, 2010 ONCA 646, at paras. 85-86.
[13] In R. v. B.(L.), [1997] O.J. No. 3042, at para. 10, the court set out the procedural inquiry to be made by the court in determining an application for the admission of discreditable conduct evidence, as follows:
- 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?
[14] In assessing the probative value of the proposed evidence, the Court of Appeal in B. (L.) directed that consideration should be given to such matters as (para. 23):
(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.
[15] B.(L.) also directs, at para. 24, that an assessment of the prejudicial effect of the proposed evidence requires that 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.
Discussion
Evidence that the complainant believed that the respondent was verbally and emotionally abusive to her including telling her that he could not stand looking at her, that she was too fat for him, and that he had to be drunk to even look at her
[16] This conduct is that of the respondent. It is relevant to many live issues. It is relevant to whether the assault took place, as the complainant told the police that these incidents occurred in the middle of the night when the respondent was drunk, and possibly after having watched pornography. It is relevant to the issue of the respondent’s animus toward the complainant, his state of mind at the time of the alleged assaults, and could help the jury understand why she did not go the to the police until 6 to 8 years after the assaults occurred. The state of the relationship between the respondent and the complainant is necessary for the jury to have a context within which to place the evidence of the offence and assists in unfolding the narrative.
[17] This proposed evidence is discreditable to the respondent, but to a lesser degree than the allegations of forced anal intercourse. As the evidence does not raise allegations of criminal conduct, it is unlikely to confuse the jury or mislead them from their primary task of deciding whether the offence of sexual assault has been proven beyond a reasonable doubt. The complainant will be able to be cross-examined on this evidence by Mr. Gonzalez.
[18] It was argued by Mr. Gonzalez that there is no evidence of proximity to this vague evidence to the offence dates. This is not accurate, as right from the start of her interview, the complainant placed her comments in context, saying that “he was never nice to me. It was a lot of verbal, emotional abuse. Um the odd shoving, whatever.”
[19] There is always the potential for moral or reasoning prejudice, however this can be curtailed by a limiting instruction to the jury right at the beginning of the complainant’s testimony, to alert the jury that such evidence will be coming and to direct them from the outset as to the permissible and impermissible uses of it. Overall, the probative value of this evidence is high and not outweighed by any potential prejudice.
Evidence that the respondent shoved the complainant at times during their marriage
[20] This is also discreditable conduct evidence on the part of the respondent. This act, like the offence charged, also involves intentional touching of the complainant. It is relevant to the respondent’s state of mind, his intention, the issue of consent, the issue of animus and again could also help to put the delayed complaint into context.
[21] This proposed evidence is also discreditable conduct on the part of the respondent, but again to a lesser degree than the charge. Shoving could be the underlying act for a criminal charge, but there is little reason to be concerned that the jury will become confused when they are trying the respondent on a charge of sexual assault.
[22] The potential prejudice of this evidence is not severe enough that it could not be neutralized by the limiting instruction.
Evidence that the respondent would threaten the complainant, telling her that he wanted her dead, and that she was better off dead. These threats often occurred when the respondent was intoxicated, which was frequent, as the complainant characterizes the respondent as an alcoholic
[23] This is also discreditable conduct of the respondent. The issue of the respondent’s alcohol consumption is relevant for the reasons previously stated.
[24] The alleged comments are of greater concern. While they are also relevant to the same issues previously identified, they carry a higher potential for moral or reasoning prejudice than any of the other evidence. My decision would have been different if the proposed evidence was that the respondent wanted to kill her, but there is nothing in the words that were relayed by the complainant to suggest that he was going to be the one to cause her death, or even that she was going to be killed. It is not a threat to cause death.
[25] The comments were allegedly made directly to the complainant; she can be cross-examined on them.
[26] I have determined that the potential prejudice of this evidence is not severe enough that it could not be neutralized by the limiting instruction.
Evidence of the reason for the breakdown of the marriage, including that their mutual child begged the complainant to leave the respondent because they were better off without him
[27] Evidence of the complainant’s explanation for why the marriage broke down was material to the issue of whether the sexual assaults ever occurred and was needed to provide background and narrative. However, the admission of such evidence did not require the remarks of the child, which were hearsay. Removing those remarks eliminated the evidence of bad character implied by the child’s rejection of the father.
Evidence that the reason the complainant relocated away from the Innisfil area is because she believed that the respondent had people following her
[28] As presented, this is not disreputable conduct evidence. Evidence explaining why the complainant moved away from Innisfil was material to understanding the narrative, and was relevant to the complainant’s state of mind prior to going to the police. Mr. Gonzalez argued that the evidence is immaterial to the issue of sexual assault because the relocation did not occur until years after the assaults are alleged to occur. Respectfully, this type of reasoning introduces the fallacy that victims of sexual assault will or should act in a certain manner.
[29] However, the complainant told the police that the information with respect to people following her was provided to her by one of their children, who allegedly received such information from the respondent. Even if that information was not provided for its truth, as Ms. Weis suggested, but only to establish the complainant’s state of mind, there is potential prejudice to the respondent if misused by the jury. And it may well have forced the respondent to testify, given that the source of the information was said to be him and its prejudicial effect in the mind of the jury may have been significant. The prejudicial effect of the complainant providing testimony about why she believed people were following her was too great. Accordingly, the complainant was permitted to explain why she moved away from Innisfil, and could even state her belief that she was being followed, but could not repeat hearsay.
Evidence of the complainant’s characterization of the marriage was not a good one, including that the respondent was controlling and domineering
[30] With respect to the category of evidence, Mr. Gonzalez did not object to its admissibility. I agree that evidence of the complainant’s description of the marriage, and whether she found the respondent controlling and domineering, are relevant to help the jury place the allegations of sexual assault in context. The complainant’s perception of the respondent as being controlling and domineering was also relevant to the issue of consent and delayed disclosure, both of which are live issues. I take issue, however, with the characterization of the evidence, as I find that casting the respondent as “controlling and domineering” is disreputable conduct. It is bad character evidence that alleges morally reprehensible conduct by the respondent that is extrinsic to the specific charge.
[31] The same analysis applies here as did to the evidence that the respondent was verbally and emotionally abusive during the marriage.
Evidence that the complainant, at times, had a friend help facilitate the exchange of children with the respondent so that she did not have to see him
[32] The evidence with respect to having a friend facilitate exchanges of children with the respondent is not disreputable conduct evidence. It does not infer anything beyond the complainant wanting to not see the respondent. The evidence was material to her allegation that she was afraid of the respondent, and relevant to the issues of consent and delayed disclosure. It is of minimal prejudice, if any, and so was admitted.
[33] As indicated, the potential dangers that may arise from the introduction of the evidence can be addressed with an instruction to the jury. The instruction that will be delivered follows below.
Yesterday I told you that I may have to give you further instructions on the law as the trial is unfolding, and I’m going to do so now.
I first want to remind you that the only offence that [B.W.] is on trial for is the offence of sexual assault, and nothing else.
The real issue for you to decide in this case is whether the offence of sexual assault ever actually took place.
The first witness for the Crown is the complainant, [T.H.]. It is anticipated that she is going to provide you with evidence of the history of her relationship with [B.W.], her perception of it, and tell you various things about his behavior during their marriage and after they separated.
I will first tell you how you may use this evidence in making your decision in this case. However, before you use the evidence in arriving at your verdict, you must first be satisfied that some or all of that conduct and those acts by [B.W.] did occur. I remind you of what I told you yesterday, it is up to you to decide how much you will believe of any witness’ testimony, and you can believe all of it, some of it or none of it.
I also remind you that you’re not to arrive at any final conclusions about the believability of [T.H.]’s evidence, or how much you’ll rely on it to decide this case, until you’ve heard all of the evidence from all of the witnesses who may be called in this trial.
If you decide that some or all of [T.H.]’s evidence is credible, this is how you can use that evidence that you do accept. You may use it to understand the relationship between [T.H.] and [B.W.], to give you context and background.
You may also use any evidence that you accept to help you determine the animus, that is, the hostility or ill feeling of [B.W.] toward the complainant, or his motive with respect to the offence of sexual assault. By motive I mean of course the usual meaning of the word, which is the reason why someone may act as they did.
Now I’ll tell you how you cannot use this evidence.
If you do conclude that some or all of the behavior that [T.H.] describes did occur in the past, you must not use the evidence of that conduct and those acts to conclude that [B.W.] is a person of general bad character who, because of that general bad character, likely committed the offence of sexual assault. In other words, you cannot reason and say to yourself, it sounds like he is a bad guy, so therefore he must have committed the offence. You must not use the evidence in this way.
Also, if you conclude that some or all of those alleged acts or conduct did occur in the past, you must not punish [B.W. for that conduct and those acts by finding him guilty of the offence that is the subject of this trial, simply because he did those other things in the past. He is not on trial for that conduct.
I’ll repeat this instruction in my final charge to you, which will be provided in writing.
HEALEY J. Released: November 7, 2024