Court held that the Crown leading propensity evidence in reply of accused's prior sexual assaults would create a "gross imbalance" and evidence ruled inadmissible.
Ontario Superior Court of Justice
Her Majesty the Queen
[REDACTED] -- for the Crown
[REDACTED], Esq. -- for the Accused
Ruling on Disposition Evidence
THE COURT: The position of the Crown is that the Defence has put the disposition of Mr. [REDACTED] into play by asserting that he committed the murder of M[REDACTED]. Crown counsel argues that the Defence has asserted that Mr. [REDACTED] has the emotional or mental make-up to make it more probable that he committed the crime, as opposed to Mr. [REDACTED]. [REDACTED] has argued that the Defence has portrayed Mr. [REDACTED] in a very negative light by suggesting that Mr. [REDACTED] possessed a certain set of character traits which made him likely to have killed M[REDACTED].
I completely agree with [REDACTED] that if the Defence had put the propensity of Mr. [REDACTED] for violence into play in this case, then the Crown would be entitled to rebut that proposition by calling propensity evidence against Mr. [REDACTED]. There are many cases that have articulated that principle, including R. v. McMillan,  2 S.C.R. 824 (S.C.C), and R. v. Parsons (1993), 84 C.C.C. (3d) 226 (Ont. C.A.). Most recently the Ontario Court of Appeal in R. v. Rogers (2000), 144 C.C.C. (3d) 568, at page 576, stated:
"Once the accused introduces evidence relating to the propensity of a third party, usually to establish that third party as an alternate suspect, the Crown may in reply offer propensity evidence relating to the accused. Otherwise, the trier of fact would be left with a distorted view of the facts."
[REDACTED] has argued that, by the Defence putting forward propensity evidence against Mr. [REDACTED], the jury would be left with a distorted view of the facts if the Crown were not entitled to call propensity evidence against Mr. [REDACTED].
It is noteworthy in this case that Mr. [REDACTED] did not testify. It is indeed true that the Defence has attempted as best it can to point the finger against Mr. [REDACTED] as being the killer. My analysis of the evidence that has been led by the Defence to assert the proposition that Mr. [REDACTED], as the common-law spouse of M[REDACTED], killed her, has led me to the conclusion that the evidence has been introduced largely to prove motive. I do agree, however, that implicit within the motive evidence is evidence of bad character of Mr. [REDACTED]. It is not, however, evidence of propensity.
No evidence has been called by the Defence to support the proposition that Mr. [REDACTED] had committed prior or similar acts of violence. Furthermore, no expert evidence has been called by the Defence to assert the proposition that Mr. [REDACTED] has a certain character disorder which makes it more likely that he committed the crime inquestion as opposed to Mr. [REDACTED].
In addition, no evidence has been led by the Defence to support the proposition that Mr. [REDACTED] is a normal person and not prone to violence. In fact, the evidence called on that particular issue by the Defence is non-existent. The Defence's sole strategy in this case is to attack Mr. [REDACTED] and to attack the sufficiency of the Crown's case. There has been no attempt by the Defence to assert that Mr. [REDACTED] has a positive background or does not have the character traits consistent with the killing of M[REDACTED].
This is unlike the decision in R. v. McMillan (1975), 23 C.C.C. (2d) 160, the seminal case concerning the admissibility of propensity evidence. In McMillan, Martin J.A. stated the following, at p. 177-178:
"In my view, the entire nature of the defence involved an assertion that the respondent was a person of normal mental make-up. In those circumstances, Crown counsel was entitled to show, if he could, that there were two persons present in the house who were psychopaths, not one. Any other conclusion would permit an accused to present an entirely distorted picture to the jury. The respondent, having introduced psychiatric evidence to show that it was more probable that his wife had caused the injuries to the child than that he had caused them, because he lacked her dangerous characteristics, lost his protection, in the circumstances of this case, against having his own mental make-up revealed to the jury."
McMillan is fundamentally different in substance and kind from the case at bar. Firstly, in McMillan, the Defence led expert evidence to support the proposition that the wife had the propensity or likelihood to have committed the crime as opposed to the husband. Secondly, the husband testified in that case and asserted through his own testimony, and through the expert testimony of a psychiatrist, that he was a person of normal mental make-up. Clearly, in those circumstances, an entirely distorted picture would be left with the jury if the Crown were not able to lead evidence to support the proposition that the accused had a similar propensity to commit the crime.
In this case, the evidence led by the Defence is not propensity evidence. It is evidence of motive, which, at the same time, has a bad character component to it. In addition, the accused has not testified, nor has evidence been put forward by the Defence to suggest that Mr. [REDACTED] was a person of normal mental make-up or a person who lacked the propensity to have committed the crime.
In my view, those distinctions are important. The evidence led by the Defence is for the purpose of pointing the finger at Mr. [REDACTED] as the killer of M[REDACTED]. The evidence has not been led to support the proposition that Mr. [REDACTED] is the kind of person who would have killed M[REDACTED], but rather, that he is the person who killed M[REDACTED]. He did so because of unrequited love. That is the motive. The acrimonious relationship, combined with the reality that Ms. [REDACTED] wanted Mr. [REDACTED] to leave, is the motive upon which the Defence relies.
At the same time, I well appreciate that, by leading that evidence, they are also leading evidence of bad character, such as the yelling and shouting on the part of Mr. [REDACTED] and his drunkenness. That evidence was led because M[REDACTED] said that there were many reasons why she wanted to end the relationship. His drunkenness was one of those reasons. The acrimony was another. That evidence was led because it directly impinges on the issue of motive, although at the same time it indirectly impinges upon the issue of bad character of Mr. [REDACTED].
If the Defence had led any evidence to support the proposition that Mr. [REDACTED] was of good character, then the tables would necessarily have to be turned and the Crown would have been allowed to call evidence to rebut that proposition.
The Defence evidence is not led for the proposition that Mr. [REDACTED] had a certain kind of negative character trait that made him more likely to have committed the crime, but rather, that Mr. [REDACTED] was the killer, based upon the reality that Ms. [REDACTED] wanted to end the relationship and Mr. [REDACTED] could not live without her. That is a substantive and important distinction between the case at bar and the cases which allow the Crown, as of right, to call propensity evidence in reply to rebut such a proposition.
In my view, this evidence is not evidence of propensity. If it had been, the case law seems to have evolved from the time of McMillan to allow for the introduction of propensity evidence, even in circumstances when the accused has not put his own lack of propensity into play. The Ontario Court of Appeal decision in Rogers may well support that proposition.
This case is a case where the evidence has been led by the Defence to show motive, not propensity. At the same time, it has, however, overtones of bad character to it.
It is my conclusion that it would be inappropriate and unfair and would create a distorted picture if the Crown were able to call evidence of disposition or propensity of Mr. [REDACTED] in these circumstances. In addition, in my view, the picture would also be further distorted if the Crown were able to call evidence of bad character of Mr. [REDACTED] by itself. I have also reached that conclusion on the basis that I am mindful that Mr. [REDACTED] did not testify, and no evidence was called to support the proposition that Mr. [REDACTED] was of good character.
The Crown has argued that the situation at present has created an unlevel playing field in favour of the Defence. The Defence has been able to lead evidence of motive and bad character against Mr. [REDACTED], and the Crown has been handcuffed from calling similar evidence against Mr. [REDACTED]. I cannot agree with that submission. Mr. [REDACTED] was cross-examined. Mr. [REDACTED] was provided, both in examination in-chief and crossexamination, the opportunity to explain his conduct and to explain away his unusual behaviour. This is not a case where the Defence has raised issues that are unanswered by the Crown. Mr. [REDACTED] was examined extensively concerning his marriage, his conduct, both before and after the death, and his conversations with the police and other family members. In my view, Mr. [REDACTED] and the Crown have been given an ample opportunity to explain away the Defence suggestions that Mr. [REDACTED] was the killer.
Another factor is the reality that the Defence has not attempted to compare the personalities or propensities of the two men, Mr. [REDACTED] and Mr. [REDACTED]. Again, at the risk of repeating myself, there has been no attempt by the Defence to suggest that Mr. [REDACTED] has a good character. The evidence on that point is completely silent. The Defence cannot lead an affirmative Defence before the jury that Mr. [REDACTED] could not have sexually assaulted M[REDACTED] on the basis that Mr. [REDACTED] was of good character. Such a closing address by [REDACTED] would be fatally off side, and [REDACTED] is well aware of my position on that point.
[REDACTED] has also argued that the Defence characterization of Mr. [REDACTED] as the killer is not for the purpose of showing motive, since there was no attempt by [REDACTED] to cross-examine Mr. [REDACTED] on that issue. In my view, the entire context of the cross-examination reveals that at its centre [REDACTED] was challenging Mr. [REDACTED], not only on his credibility, but also on the possibility that he had a motive to kill based upon his jealousy of Ms. [REDACTED] and his desire that the relationship should not end.
In conclusion, [REDACTED]'s application to lead propensity evidence against Mr. [REDACTED] that would comprise the factual antecedents of his prior record, in particular, his sexual assaults and his prior interview by Dr. Dickie, is ruled inadmissible. A gross imbalance would be created in these circumstances if the evidence of Mr. [REDACTED]'s prior sexual assaults were admissible in reply. This comment is relevant since I have concluded that the evidence against Mr. [REDACTED] has an implicit bad character component to it. I have, however, concluded that not a scintilla of propensity evidence was led by the Defence concerning Mr. [REDACTED].