Court finds prior discreditable conduct evidence inadmissible for propensity use
There was a significant risk that, given the prior discreditable conduct evidence, the jury would engage in propensity reasoning and would conclude that the accused was the type to commit the alleged offence, the Ontario Court of Appeal recently said.
The appellant and the complainant lived together in a relationship for around three years and had one daughter. Their relationship grew distant over time.
The complainant alleged that in mid-November 2015 she told the appellant about another relationship that she pursued. She said that he sexually assaulted her in his bedroom on the morning of Nov. 19, 2015 as a punishment for this other relationship.
At the jury trial, the issue was whether the alleged incident of sexual contact happened. The complainant and her parents testified and tendered evidence painting the appellant as an unlikeable and abusive man who was controlling, demeaning, and vindictive toward her.
The appellant did not testify, but the defence position was that the alleged incident did not occur. The appellant received a conviction for one count of sexual assault under s. 271 of the Criminal Code.
Judge should issue limiting instruction
In R. v. R.M., 2022 ONCA 850, the Ontario Court of Appeal allowed the appeal, set aside the conviction, and ordered a new trial.
First, the appellate court ruled that the trial judge committed a reversible error when he did not give the jury a specific limiting instruction about the use of the evidence about the appellant’s prior discreditable conduct. The judge referred to this evidence in only the most general terms and failed to instruct on the permissible or prohibited uses for this evidence, the court said.
The prior discreditable conduct evidence was extensive and permeated the trial, the Court of Appeal held. This evidence was not admissible for propensity use but was properly admissible as narrative to assist in understanding the relationship between the appellant and the complainant for the defence theory on the complainant’s motive to fabricate, the court said.
Without a limiting instruction, there was significant danger of prejudice, particularly moral prejudice, as described in R. v. Handy, 2002 SCC 56, the appellate court added.
Second, the Court of Appeal determined that one aspect of Crown counsel’s examination-in-chief of the complainant amounted to oath-helping. Crown counsel’s questions clearly meant to elicit that the complainant had the option to refrain from attending and testifying at trial but chose of her own free will to attend and testify, the court said.
According to the appellate court, these questions sought to bolster the complainant’s credibility and should not have been asked since the fact that the complainant had the opportunity not to testify but decided to do so was irrelevant to any issue.
Given that the first ground of appeal necessitated a new trial, the Court of Appeal found it unnecessary to determine whether the oath-helping questions on their own warranted a new trial.
