Ontario Superior Court of Justice

Court File No.: 23-11400806-A
Date: 2025/07/08

BETWEEN:
His Majesty the King
– and –
J.N.

Valérie Bourbonnière for the Crown
Justis Danto-Clancy for J.N.

Heard: June 30, 2025

Ruling Regarding Prior Discreditable Conduct Admissibility

Anne London-Weinstein

Introduction

[1] The accused is charged with the sexual assault of his daughter G.P. and a number of related offences, including indecent act, incest, sexual interference, and invitation to sexual touching. The offences are alleged to have occurred between January 2005 and December 2009 in Ottawa.

[2] The Crown seeks to adduce evidence arising from two statements against interest which the accused is alleged to have made to the complainant regarding his sexual interest in her cousin.

[3] The evidence sought to be adduced involves one incident where the accused is alleged to have penetrated the complainant with his penis. After he finished the sexual intercourse, the accused is alleged to have told the complainant to leave because he could not keep cheating on her cousin S. The complainant’s cousin S. is one year older than G.P. and was about 13 years old at the time of these allegations.

[4] On another occasion, the accused is alleged to have told G.P. he was going to kill himself if he did not get to take her cousin S back. Not too long after this incident, the sexual abuse resumed with G.P. as, on the Crown’s theory of the case, the accused was no longer sexually abusing S.

[5] The Applicant seeks to lead these statements as being relevant to narrative and the Respondent’s mens rea or state of mind. The evidence is not sought to be admitted on the basis that it is similar to the index offence before this court.

Legal Analysis

[6] As a starting point, prior discreditable conduct evidence is presumptively inadmissible. The proposed evidence must be relevant, and material to an issue at trial and the probative value of the evidence must outweigh the prejudicial effects of admission: R. v. Handy, 2002 SCC 56, para 55.

[7] The Crown’s argument that these statements demonstrate the accused’s mens rea in relation to the commission of sexual offences against the complainant is based on the allegation that he sexually abused S. The evidence raises the potential for moral and reasoning prejudice to be introduced into the trial.

[8] The Crown is prohibited from calling evidence which shows only that the accused is the type of person likely to have committed the offence in question by virtue of other discreditable acts. In this case, the Crown argues that because the accused described his sexual abuse of the complainant as “cheating” on S, this is a tacit admission that he engaged in the sexual abuse of G.P.

[9] While the Crown may not lead evidence that shows only that the Respondent is the type of person likely to have committed the offence in question, the Crown may call evidence that goes beyond this prohibited general inference. Framed this way, the evidence goes beyond a mere propensity argument that because the accused is alleged to have sexually abused S, he is more likely to have sexually abused G.P. The Crown argues that the use of the word “cheating” is revealing, in that it is an admission of sexual misconduct by the accused against G.P.

[10] The Crown also seeks to introduce this evidence to explain why there was a gap in the alleged abuse of G.P., and why it resumed when the accused was no longer abusing S. The evidence is probative of that issue.

[11] However, this is a judge alone trial. Matters such as the chronology of events and purported delays in reporting do not need to be explained to a trial judge in the same manner that they might need to be with a jury.

[12] The evidence is also prejudicial. It arises from an allegation that the accused is alleged to have sexually abused another child.

[13] In terms of assessing moral prejudice, I do not have a record before me which allows me to assess whether the conduct alleged to have been committed against S was worse behaviour than the alleged conduct alleged against G.P.

[14] In terms of reasoning prejudice, this evidence has the potential to be a distraction from the proper focus on the case before the court. A number of forms of distraction are described in David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020).

[15] The first type of distraction is much like moral prejudice in that it describes how the trier of fact can be deflected from engaging in a rational assessment of the case by sentiments of revulsion and condemnation: Paciocco, at p. 94.

[16] The second form of distraction arises from the risk that the court will be caught up in a conflict about the accuracy of the discreditable conduct evidence. In this case, the accused would be placed in the position of having to defend against the charge before this court and what he is alleged to have done against S. The prejudice which can arise from litigating these types of collateral issues is difficult for the accused to defend against and has the potential to sideline the trial: Paciocco, at p. 94. There is also the potential for unanticipated issues to arise which may require further litigation.

[17] As mentioned, this is a judge alone trial, which is said to lower the risk of prejudice to the accused, given that trial judges are trained to avoid the prohibited inference: see R. v. T.B., 2009 ONCA 177, para 27. The practical reality of the matter is that the evidence will be heard in any event by the trial judge on the admissibility voir dire.

[18] The Court of Appeal for Ontario tends to treat prejudice as considerably reduced in judge alone trials: see e.g., R. v. Roks, 2011 ONCA 526, para 94.

[19] However, this court finds itself in agreement with the following summary on the impact that prejudice may have in a judge alone trial in The Law of Evidence, at p. 95:

Even judges can struggle to overcome the tainting effect of discreditable information and may give it undue focus during a trial. As for reasoning prejudice, the superior ability of judges to focus on material issues does little for the impact admission can have on the length and complexity of the trial. For accused persons, attention and resources that could otherwise be expended addressing the charged allegations may be diverted to respond to the discreditable conduct evidence.

[20] Given the context of this trial as a judge alone trial, I find that the necessity of the evidence to fill in a gap or a break in the alleged abuse is not required in order for me to understand how matters are alleged to have unfolded in the same way as might be warranted in a jury trial. Thus the probative value of the evidence to a material issue in this trial is reduced within the context of a judge alone trial.

[21] While the evidence is probative of the accused’s state of mind by the use of the word “cheating” and this evidence is an admission of sexual misconduct in relation to G.P., this evidence brings with it a host of complications and inherent prejudice in the Respondent’s ability to defend the allegations that he sexually abused S. There is a genuine risk that permitting the introduction of this evidence will sideline the focus of this trial.

[22] I find that the prejudicial impact of this evidence outweighs its probative value, and it is excluded from the trial.

Anne London-Weinstein

Released: July 8, 2025