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CRIMINAL CODE OFFENCES - Offences against person and reputation - Sexual assault

Monday, February 24, 2020 @ 11:07 AM  

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Appeal by the accused, AL, from convictions for uttering a threat and offences related to sexual assault. In 1983, the complainant, age 8, was left in the care of the accused, age 27, by her mother. The complainant alleged the accused regularly sexually assaulted her between 1983 and 2012, using threats and abuse to compel her compliance. In 1990, 1993, 1998 and 2000, the complainant gave birth to children fathered by the accused. The accused testified and denied any abuse of the complainant between ages 8 and 14. The accused testified that he had a consensual sexual relationship with the complainant after she passed the age of consent and turned 15. Initially, the complainant presented the accused as her father, but later in life, she presented him as her husband. In 2012, at age 38, the complainant left the accused and reported her allegations to police. The accused was convicted following a jury trial. He appealed on the basis the trial judge erred in admitting bad character evidence related to the accused’s abusive acts and failed to provide a sufficient limiting instruction regarding the use the jury could make of that evidence. The accused further submitted the trial judge erred on instructing the jury regarding the use of evidence in proving guilt from one count to another and erred in refusing to admit video evidence of sexual conduct between the parties.

HELD: Appeal dismissed. No objection was made to the admission of the bad character evidence at trial. The evidence of pre-indictment sexual misconduct was admissible for the purpose of establishing grooming and/or abusive acts that led to a series of continuing sexual assaults of escalating severity and establishing the context for compelling non-disclosure by the complainant. No undue prejudice flowed from the admission of any of the bad character evidence given the nature of the admissions by the accused. The complainant was extensively cross-examined on the evidence. The jury was appropriately instructed on the limited use that could be made of the bad character evidence. The trial judge did not err in failing to instruct the jury that a finding of guilt on one count had no probative value to the other counts, as the evidence provided important context for understanding the dynamics of the parties’ relationship over time. The evidence of abuse, control and dominative conduct was relevant and probative to assaultive conduct and whether threats or fear vitiated consent. The use of such evidence in that regard did not invite improper propensity reasoning. Although the trial judge erred in articulating the relevant test for admission, no material unfairness arose from excluding the video of sexual activity between the parties for cross-examination purposes, or as part of the defence case. Defence counsel was not prohibited from asking the complainant about the contents of the video or what it depicted as a foundation for attempting to impeach her credibility and reliability. The complainant had acknowledged the video’s contents. Trial counsel was not prevented from addressing the video in the closing address. Any probative value in impeaching the complainant in cross examination was substantially exceeded by the prejudicial effect, both individual and societal, that admission of the evidence would entail.

R. v. A.L., [2020] B.C.J. No. 57, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., M.V. Newbury and G.J. Fitch JJ.A., January 20, 2020. Digest No. TLD-February242020003