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PROCEDURE - Trial judge’s duties - Charge or directions - Evidence of witnesses

Friday, November 27, 2020 @ 6:22 AM  

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Appeal by the accused from convictions for sexual and physical abuse of his spouse, SS, and physical abuse of his children, BS and TS. In addition to evidence about the charged criminal allegations, evidence was presented of discreditable conduct by the appellant. A good deal of evidence was presented that the appellant engaged in uncharged criminal activity. SS provided extensive evidence relating to uncharged violent conduct by the appellant. Some of this evidence related to violence against BS and TS. The appellant argued the trial judge erred by failing to instruct the jury not to engage in cross-count reasoning, by failing to give a limiting instruction against a general bad character inference and by giving an ineffective jury charge.

HELD: Appeal allowed. New trial ordered. The trial judge erred in failing to direct the jury against cross-count reasoning between counts involving the same complainant and cross-count reasoning between counts involving different complainants. The trial judge also erred by failing to give the jury a limiting instruction relating to the charged and uncharged misconduct. The case was laden with prejudicial bad character evidence that triggered the operation of the similar fact evidence rule. Together that evidence showed the appellant to be a violent, abusive bully who habitually terrorized his family. The jury was exposed to extensive highly prejudicial evidence of the appellant’s bad character. There was a real risk that, absent proper cross-count directions, the jury would likely consider the whole of the evidence in deciding the appellant’s guilt on each of the charges. SS’s evidence had a systematic character to it from count to count. Cross-count reasoning was therefore highly likely in relation to the allegations made by SS. Cross-count reasoning was also highly likely between complainants. A propensity direction relating to both charged and uncharged conduct was necessary in this case as the risk of propensity reasoning was high. This case involved multiple complainants, elevating the risk. The evidence cast the appellant in a contemptible light. Together, it showed him to be a wealthy drug dealer and a pimp, who controlled SS for his own sexual gratification, brutalizing and demeaning her by anally raping her and beating her mercilessly. The risk that this evidence would be used to show the appellant’s contemptible character was intensified by the detailed recitation by the trial judge, in the witness-by-witness portion of her charge, of almost every grain of prejudicial information, even where it bore no permissible relevance to the decision the jury would have to make. As the trial Crown did not apply for the admission of similar fact evidence, there were therefore no permissible similar fact inferences to be communicated to the jury that would work against the interests of the appellant. The discreditable conduct evidence in this case was so highly prejudicial that a propensity direction would have benefited the appellant, even if there had been permissible uses that would then have been related to the jury.

R. v. M.R.S., [2020] O.J. No. 4577, Ontario Court of Appeal, D. Paciocco, I.V.B. Nordheimer and J.A. Thorburn JJ.A., October 23, 2020. Digest No. TLD-November232020009