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PROCEDURE - Trial judge’s duties - Charge or directions - Inferences of guilt

Thursday, April 22, 2021 @ 6:07 AM  

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Appeal by the accused, ZWC, from conviction for multiple sexual offences. The accused and his wife married in China in 1995. They had two daughters born in 1995 and 2001. The wife immigrated to Canada in 2006 and sponsored the rest of her family who immigrated in 2009. The wife and the oldest daughter alleged that the accused physically and sexually abused them before and after the move to Canada. The wife alleged regular incidents of forced intercourse in addition to two specific incidents of non-consensual intercourse. The daughter alleged regular incidents of sexual touching accompanied by a threat against disclosure. In 2014, the daughter disclosed the abuse to a psychiatrist and subsequently reported it to police. The trial judge admitted evidence of uncharged prior discreditable conduct related to events that occurred in China and Canada involving additional sexual abuse, violence and threats. The trial judge found that the proffered evidence was relevant to the narrative, establishing animus and explaining the wife’s continuation of the marriage and delay in reporting the abuse. The wife and daughter testified accordingly, mentioning specific incidents outside the scope of the indictment that resulted in two mid-trial limiting instructions to the jury in addition to the instructions on use following the close of trial. The accused testified and denied the allegations. A jury returned verdicts convicting the accused. The accused appealed.

HELD: Appeal allowed. The trial judge acknowledged the need to assess both moral and reasoning prejudice and found that the proffered evidence was undoubtedly prejudicial. However, the trial judge did not actually consider the nature and extent of the reasoning prejudice that could arise, or balance that prejudice against the probative value of the evidence. A proper consideration of the evidence and its potential prejudicial effect should have led the trial judge to consider whether there were ways in which to mitigate its impact while preserving its probative value, such as a more timely and effective mid-trial instruction to the jury on the possible use and misuse of the evidence. In addition, prejudice was amplified as the trial progressed due to the dramatic way the Crown presented and elicited that evidence beyond the parameters contemplated by the admission application and ruling. The mid-trial instructions did not provide an adequate framework for the jury to understand the permitted use and protect against improper use. Neither the mid-trial instruction nor the final instruction identified the serious risk of reasoning prejudice or explained how it could be avoided. There was a real risk that the significant resulting prejudice resulted in a conviction for the uncharged prior discreditable conduct. A new trial was ordered.

R. v. Z.W.C., [2021] O.J. No. 887, Ontario Court of Appeal, G.R. Strathy C.J.O., D. Watt and B. Zarnett JJ.A., February 25, 2021. Digest No. TLD-April192021010