Overview

Considered in the context of all of the other evidence, and given that its admission was not contested by the Crown, the judge allowed the criminal record to be admitted into evidence.

R. v. [REDACTED], [2019] O.J. No. 2456

Ontario Judgments


Ontario Superior Court of Justice
[REDACTED] J.
Heard: May 6, 2019.
Judgment: May 10, 2019.
Court File No.: CR-17-92

[2019] O.J. No. 2456|2019 ONSC 2898


Between Her Majesty the Queen, and [REDACTED] and [REDACTED], Defendants


(78 paras.)



 

Counsel

[REDACTED] and [REDACTED] for the Crown.

[REDACTED] for Ms. [REDACTED].

[REDACTED] and [REDACTED] for Mr. [REDACTED]

RULING ON VARIOUS PRE-CHARGE ISSUES

 

[REDACTED] J.

INTRODUCTION

1  It has become commonplace for judges to conduct pre-charge conferences with counsel on jury trial trials to review the content of the judge's proposed legal instructions to the jury. Often the court will provide counsel with a draft copy of the proposed charge in advance of the conference in an effort to make the conference as productive as possible and to vet any concerns counsel may have before the charge is delivered to the jury.

2  This is a homicide trial. The defendants are charged with manslaughter in the death of [REDACTED]. Mr. [REDACTED] punched Mr. [REDACTED] once in the head during the course of a group confrontation. Mr. [REDACTED] fell and struck his head on a paved driveway and died. Ms. [REDACTED] is alleged to have encouraged Mr. [REDACTED] to strike Mr. [REDACTED].

3  A pre-charge conference took place in this case on May 6, 2019. For all intents and purposes, it took the whole day. Crown and defence counsel all raised issues they had with certain parts of the charge in an effort to make it more complete, accurate and helpful to the jury. Their submissions were most helpful, as is typically the case.

4  The majority of the issues raised by counsel required only minor, or relatively minor, tweaking of the draft charge. Those issues do not require a written ruling to resolve. My decisions on minor adjustments to the draft are manifested in the final version provided to counsel and delivered to the jury.

5  There were six issues that I would describe as more substantive. They required, in my view, formal rulings, supported by reasons. Counsel were scheduled to go to the jury on the morning of May 7, 2019. There simply wasn't adequate time to prepare a formal, written ruling on all six issues prior to the next morning. In the result, I delivered to counsel a summary of my rulings on the six substantive, contested issues, with a promise of written reasons to follow.

6  These are those reasons.

THE ISSUES

7  These reasons explain why I made the following rulings on May 6, 2019:

(a)The issue of consent to fight will be left with the jury;

 

(b)The Crown may not rely on evidence that Mr. [REDACTED] laughed at a friend's re-enactment of his punch to Mr. [REDACTED] 's head, to help establish that Mr. [REDACTED]  was not acting in self-defence when he struck Mr. [REDACTED];

 

(c)Aiding will not be left with the jury as a route to culpability for [REDACTED];

 

(d)Section 21(2) will not be left with the jury as a route to culpability for [REDACTED];

 

(e)The jury will be instructed on the narrow basis upon which it may infer that encouraging words allegedly heard by an ear witness were uttered by Ms. [REDACTED]; and,

 

(f)Only one entry from Mr. [REDACTED] 's lengthy, but dated, criminal record may be entered into evidence as part of the array of propensity evidence tendered by the defence to demonstrate that Mr. [REDACTED] had a violent disposition.

8  I will set out the background facts in limited, but sufficient detail to put the discussion into context. I will then address my rulings in sequential order.

 

THE EVIDENTIARY RECORD

The Encounter

9  [REDACTED]  and his son, [REDACTED], spent the evening of September 11, 2015 together drinking, primarily at the [REDACTED] bar on [REDACTED] street in Bradford. They met a new friend there, [REDACTED], who was similarly out on the town for a few drinks.

10  After last call, roughly 2:00 a.m., the three men left the [REDACTED] and headed towards the home of Mr. [REDACTED]. Mr. [REDACTED] lived at [REDACTED], which was less than a kilometre from the bar. As the three men walked east along Simcoe Street, not far from Mr. [REDACTED] 's residence, they were passed by a small Honda automobile heading west. Inside that small car were six young adults, including the two defendants. Words were exchanged between the two groups, the content of which none of the participants is entirely clear about. The upshot of the exchange was that the carful of young adults turned around and came back east, stopping a short distance in front of Mr. [REDACTED] 's group and just slightly west of Mr. [REDACTED] 's driveway.

The Fight

11  The front seat passenger in the car -- [REDACTED]  -- got out and stood by the open door. Accounts vary about whether the driver -- [REDACTED] -- similarly got out of the car right away or whether he only got out after the passenger engaged with Mr. [REDACTED]. In any event, Mr. [REDACTED] immediately approached Mr. [REDACTED]. Angry words were exchanged and, within about five seconds, Mr. [REDACTED] threw a punch at Mr. [REDACTED] and took him to ground. Accounts are consistent that once the punch was thrown, Mr. [REDACTED] came around to assist his friend.

12  The fight between [REDACTED], [REDACTED] and [REDACTED]  spilled onto Mr. [REDACTED]'s driveway and down towards his backyard. According to Mr. [REDACTED] who testified in his own defence, it was at this time that the passengers in the rear of the Honda got out. They included Mr. [REDACTED], [REDACTED], Ms. [REDACTED] and [REDACTED].

13  Mr. [REDACTED] testified that he and Mr. [REDACTED] walked down to the end of Mr. [REDACTED]'s driveway to look at the fight as it unfolded. He said that they were standing quite close to one another, perhaps a foot or so away.

14  Mr. [REDACTED] further testified that Mr. [REDACTED] suddenly approached Mr. [REDACTED] with his fists raised. He was looking angry. Mr. [REDACTED] said he felt immediately afraid for his safety and that of Mr. [REDACTED], so he punched Mr. [REDACTED] once in the head. Mr. [REDACTED] fell backwards, unconscious. He appears to have struck his head on his driveway.

 

The Consequences

15  The whole encounter was quite brief, but profound. Mr. [REDACTED] suffered a broken wrist. Mr. [REDACTED] suffered a severe head injury. He passed away about two weeks later.

16  Following the incident the occupants of the car travelled to a nearby apartment building where Mr. [REDACTED] lived. A video-surveillance camera mounted in the lobby of the building captured images of them entering the building.

17  At one point, Mr. [REDACTED] was recorded in the entry vestibule with Mr. [REDACTED] and Mr. [REDACTED]. Mr. [REDACTED] appeared to be showing the others something on his cell phone. Then Mr. [REDACTED] performed a short re-enactment demonstrating how Mr. [REDACTED] fell backwards after he was struck by Mr. [REDACTED]. Mr. [REDACTED] admitted that he laughed at Mr. [REDACTED], but said he was not aware at the time how serious Mr. [REDACTED]'s injuries were.

18  All of the occupants of the car, save Mr. [REDACTED], were initially charged with assault causing bodily harm, assault with a weapon and manslaughter. The charges were dropped entirely against Mr. [REDACTED] for reasons the court is not privy to. At the end of the Crown's case directed verdicts of acquittal were granted against all four remaining defendants on the charge of assault with a weapon. In addition, directed verdicts of acquittal were granted on the manslaughter charge in relation to Mr. [REDACTED] and Mr. [REDACTED]. Directed verdicts of acquittal were granted on the assault causing bodily harm charge in relation to Mr. [REDACTED] and Ms. [REDACTED].

19  Following the directed verdicts, the Crown stayed the remaining charge of assault causing bodily harm against Mr. [REDACTED] and Mr. [REDACTED] and they were released from the proceedings altogether. Only the charge of manslaughter against Mr. [REDACTED] and Ms. [REDACTED] will go to the jury.

20  Having provided a modest account of the background facts, I will turn to the issues raised during the pre-charge conference.

DISCUSSION

(a)The Defence of Consent

21  The Crown asserts that Mr. [REDACTED] unlawfully assaulted Mr. [REDACTED] and thereby unintentionally caused his death.

22  Mr. [REDACTED] admits that he punched Mr. [REDACTED] in the head. He does not admit, however, that he unlawfully assaulted Mr. [REDACTED]. He takes the position that he was acting in self-defence. Alternatively, that Mr. [REDACTED] consented to the force applied to him.

23  The Crown acknowledges that self-defence is an issue that should be left with the jury. They submit, however, that there is no air of reality to the defence of consent and contend that it should not be left with the jury.

24  A defence will have an air of reality if a properly instructed jury, acting reasonably, could acquit the accused on the basis of that defence: see R. v. Cinous2002 SCC 29, at para. 49. Like the test on a directed verdict application, the air of reality test requires that there be some evidence in support of each of the necessary elements of the defence in issue. Said another way, there must be an evidential foundation to support the defence. In considering the air of reality test, the trial judge is to look at the evidential record as a whole and assume the evidence relied upon by the accused is true. The trial judge must determine whether the evidence discloses a real issue to be decided by the jury. Predictions about how the jury might ultimately decide the issue are irrelevant.

25  In this instance, an unlawful assault is alleged. An assault has several essential elements, all of which must be proved by the Crown beyond a reasonable doubt. They include the following:

(i)The accused intentionally applied force to the complainant;

(ii)The force was applied without the complainant's consent; and,

(iii)The accused knew that the complainant was not consenting to the force that was applied.

26  Mr. [REDACTED] takes issue with the second essential element. That is to say, he does not dispute that he intentionally applied force to Mr. [REDACTED]. But he asserts that Mr. [REDACTED] consented to the force being applied.

27  If there is evidence in the record capable of raising a reasonable doubt about whether Mr. [REDACTED] did not consent to the force applied to him, then the defence of consent has an air of reality to it.

28  As I set out above, Mr. [REDACTED] testified that he was standing at the end of Mr. [REDACTED]'s driveway with his friend, Mr. [REDACTED]. Mr. [R EDACTED] was about a foot to his right and perhaps a foot ahead of him. According to Mr. [REDACTED] he noticed Mr. [REDACTED] flinch back to the left. The reason for the flinch became immediately apparent. Mr. [REDACTED], he said, had approached Mr. [REDACTED] with his fists raised and looking angry. Mr. [REDACTED]said he was afraid that Mr. [REDACTED] was going to hit his friend and then him.

29  When one man approaches another with his fists raised and looking angry, a readily available inference is that he is looking for a fight. Such an inference is even stronger in circumstances where, like here, the raised fists approach takes place in a context that is already hostile. Moreover, the evidentiary record makes it clear that Mr. [REDACTED] was an experienced fighter. One might reasonably infer that he would be aware that fist fights often involve the exchange of blows. In other words, if he was looking to fight, then he was prepared to give and to receive.

30  Notwithstanding the readily available inference that Mr. [REDACTED] was looking for a fight, the Crown asserts that there is no air of reality to the defence of consent. They contend that, at most, Mr. [REDACTED] could only be found to have consented to a fight with Mr. [REDACTED]. There is no evidence that he approached Mr. [REDACTED] looking to fight.

31  In my view, a reasonable jury could easily infer that Mr. [REDACTED]was looking to, and prepared to, fight with Mr. [REDACTED] as well as Mr. [REDACTED]. There is evidence that Mr. [REDACTED] was trained in martial arts. He was, as I said, an experienced fighter. His son described him as someone unlikely to back down from a fight. He said it was highly unlikely that "this 56 year old Irishman was going to back away from 'four little boys'".

32  As he approached Mr. [REDACTED], Mr. [REDACTED] would have been aware that Mr. [REDACTED] was standing almost immediately beside him. This is not a case where Mr. [REDACTED] approached Mr. [REDACTED] only to have Mr. [REDACTED] run over from some other location to assist his friend. Mr. [REDACTED] approached Mr. [REDACTED] and Mr. [REDACTED] as they stood together. In these circumstances, it is open, in my view, for the jury to infer that Mr. [REDACTED] was looking for a fight with Mr. [REDACTED] and/or Mr. [REDACTED]. Such an inference may well raise a reasonable doubt about whether Mr. [REDACTED]'s application of force was consented to.

33  I note that in cases of serious bodily harm, like here, consent to fight may be vitiated if the accused is found to have intended to cause serious bodily harm: see R. v. MacDonald2012 ONCA 379. The Crown does not suggest that Mr. [REDACTED] intended to cause serious bodily harm.

34  In my view, there is an air of reality to the defence of consent.

(b)The Post-Offence Conduct

35  I mentioned the video-surveillance evidence from Mr. [REDACTED]'s apartment building.

36  The Crown seeks to use this evidence for three purposes:

(a)To demonstrate that there are no visible injuries on any of the six occupants of the car;

(b)To challenge the general credibility of Mr. [REDACTED] on his evidence that there was nothing visible on Mr. [REDACTED]'s cell phone. He and Mr. [REDACTED] both testified that Mr. [REDACTED] had recorded the initial verbal interaction between Mr. [REDACTED] and Mr. [REDACTED]. They said there was no video, just a black screen with audio. The Crown's assertion is that the attention the males were paying to the video screen on the cell phone undermines their evidence that there was only a black screen; and,

(c)To undermine Mr. [REDACTED]'s credibility on the issue of self-defence, based on the evidence that he laughed at Mr. [REDACTED]'s re-enactment.

37  I have no difficulty with the first or second proposed uses. I cannot say the same about the third.

38  The first use is real evidence that demonstrates the physical appearance of the car occupants only minutes after their encounter on Centre Street.

39  The second use is a valid means of challenging Mr. [REDACTED]’s credibility about whether there was a video-recording of part of the conflict. The act of watching a cell phone screen with some interest may support an inference that there was something on the screen beyond blackness.

40  The third issue is of greater concern. The Crown's assertion amounts to this: that a person who would laugh at a re-enactment of a knock-out punch he has thrown, only minutes after it happened, is less likely to have thrown that punch in self-defence than a person who would not laugh at such a re-enactment. In other words, they submit that a person who has recently responded to violence or a threat of violence by striking at and rendering another person unconscious is not likely to laugh at a re-enactment of what happened.

41  Essentially, the Crown seeks to utilize Mr. [REDACTED]'s post-offence demeanour as evidence of his state of mind at the time he punched Mr. [REDACTED].

42  As post-offence conduct, Mr. [REDACTED]'s behaviour can only be indirectly relevant to his guilt. Like any other indirect -- or circumstantial -- evidence, its relevance and probity depend on the inferences it reasonably supports. Inferences that may be drawn from post-offence conduct must, as is the case with any circumstantial evidence, "be reasonable according to the measuring stick of human experience." See R. v. Calnen2019 SCC 6, at para. 112. In most instances, it will be for the jury to determine what inferences they will draw from the evidence and what weight to ascribe to them.

43  That said, the trial judge is tasked, as the evidentiary gatekeeper, to ensure that any proffered evidence is admissible according to certain, recognized, basic preconditions. In particular, evidence is admissible if it is relevant to a material issue in the case, it is not subject to any specific exclusionary rule of evidence, and provided its probative value exceeds its potential for prejudice. See Calnen, para. 107.

44  As part of the threshold assessment of relevance, the trial judge must consider what inferences the proffered post-offence conduct evidence may reasonably support. Sometimes such evidence is capable of a range of different inferences. Again, it is normally the function of the jury to determine what inference(s) to draw. But where the trial judge concludes that it is not possible to choose between a range of possible inferences (some of which may point towards guilt and others away from guilt), as a matter of logic, experience and common sense, then the proffered evidence may lose any probative value. See Calnen, para. 124.

45  I have struggled with the inference the Crown urges upon the court. I am not persuaded that, as a matter of logic and human experience, laughing at a friend's goofy re-enactment of a knock-out punch, makes it less likely that Mr. [REDACTED] reasonably believed that force was being used or threatened against him and/or Mr. [REDACTED] by Mr. [REDACTED]. It might. But even if it is capable of supporting the inference suggested by the Crown, there are many possible reasons why Mr. [REDACTED] might have laughed at what was an arguably inappropriate time: immaturity, nervousness, or embarrassment, to name just a few. People often laugh at inappropriate times.

46  As a general observation, it can be dangerous to make much out of post-offence demeanour. As Justice Rosenberg wrote, in R. v. Levert[2001] O.J. No. 3907 at para. 27:

The probative value of this type of evidence is highly suspect. In the two recent cases of Susan Nelles and Guy Paul Morin use of the accuseds' demeanour was found to have played a part in the wrongful prosecution. The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998, vol. 2, pp. 1142 to 1150, contains an extensive discussion of the dangers of admitting such demeanour evidence. The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.

47  I note that Levert involved the accused's reaction when confronted with an allegation of criminality. But in my view, Justice Rosenberg's concerns are equally applicable to post-offence demeanour generally.

48  In my view, Mr. [REDACTED]'s post-offence demeanour is potentially explained by a variety of factors. Its relevance and probity, if any, to his state of mind at the time he punched Mr. [REDACTED] is slight at best. It is easily exceeded by the potential for prejudice. It is the type of evidence that may simply paint Mr. [REDACTED]in a bad light and may attract undue weight.

49  For the reasons expressed, evidence that Mr. [REDACTED] laughed at Mr. [REDACTED]'s re-enactment, is not admissible as evidence of Mr. [REDACTED]'s state of mind at the time of the punch.

(c)Aiding and Abetting

50  I accept that where there are viable alternative routes to liability it is the duty of the trial judge to instruct the jury about them.

51  In this case there is no issue that Mr. [REDACTED]'s potential liability is as a principal to the offence. He caused Mr. [REDACTED]'s death -- that is not contentious.

52  What is contentious is whether I should instruct the jury on aiding and abetting, or simply abetting, as routes to liability with respect to Ms. [REDACTED]. The Crown submits that I should instruct on both.

53  There is evidence that justifies instructing the jury on abetting. A Crown witness, [REDACTED], testified that she heard a female voice yell something to the effect of "he's the one who beats women...get him." The Crown asserts that Ms. C[REDACTED] was the only female at the scene at the relevant time, which may have been the case. It is at least open to the jury to conclude that the words, if uttered, were uttered by Ms. [REDACTED] towards Mr. [REDACTED] and were encouraging of an assault on Mr. [REDACTED].

54  On the other hand there is not, in my view, sufficient evidence in the record to support aiding as a route to liability with respect to Ms. [REDACTED].

55  One of the core duties of a trial judge in preparing a charge is to decant and simplify: R. v. Jacquard[1997] 1 S.C.R. 314 at para. 13. Including instructions on extremely tenuous routes to liability, or routes that really have no air of reality to them, does not decant and simplify. It results in over-charging and risks diverting the jury's attention from the primary issues in the case. See R. v. Rodgerson2015 SCC 38, at para. 52.

56  The Crown urged the court to instruct the jury that Ms. [REDACTED] may be liable as an aider to an assault on Mr. [REDACTED]. To find her liable as an aider, the jury would have to, of course, be satisfied beyond a reasonable doubt that Ms. [REDACTED] did something that actually helped Mr. [REDACTED] assault Mr. [REDACTED], knowing that he was going to do so and intending to help him do so.

57  The Crown submitted that the facts capable of supporting a finding that Ms. [REDACTED] helped Mr. [REDACTED] assault Mr. [REDACTED] were that she was present and her presence was threatening.

58  Mere presence is not sufficient. That is well-settled in law. Beyond that, I am at a loss to understand how Ms. [REDACTED]'s presence was threatening or how that may have assisted Mr. [REDACTED] in any way. Mr. [REDACTED] punched a man who was 56 years old, 5'9" tall and 200lb. That man was trained in martial arts. He was a fighter by reputation. His son described him as very powerful and someone who knew how to fight. His son could not imagine, in fact, any fight that his dad would lose. There is no evidence capable of supporting an inference that Mr. [REDACTED] found Ms. [REDACTED]'s presence threatening.

59  The only evidence in the record capable of supporting a finding that Ms. [REDACTED] aided Mr. [REDACTED] in any way during the confrontation on Centre Street is evidence that she moved the passenger side car seat up in Mr. [REDACTED]'s car so that the people in the back seat, including Mr. [REDACTED], could get out. That was helpful I suppose. But there is no evidence that, at that time, she knew Mr. [REDACTED] was going to assault Mr. [REDACTED] and she intended, by moving the car seat, to help him do so.

60  There is no basis, in my view, to instruct the jury on aiding and I will not do so.

(d)Section 21(2)

61  There is similarly no basis upon which to instruct the jury that s. 21(2) of the Criminal Code provides a viable route to liability with respect to Ms. [REDACTED]. I explained why that is the case in an earlier ruling in this matter released as 2019 ONSC 2677. Those reasons continue to apply.

62  Briefly, Section 21(2) provides that where two or more people form an intention in common to commit a criminal offence each may be liable for any different offence committed by one of the others during the commission of the commonly intended offence provided that he or she knew or ought to have known of the likelihood that the different offence would be committed.

63  The submission of the Crown was that in this case there was a common intention amongst all of the occupants of the car to commit a group assault on the three drunk men walking on the road. In the course of that group assault one of the vehicle occupants, Mr. [REDACTED] committed a culpable homicide. They say that Ms. [REDACTED] knew or should have known, of the likelihood that someone would commit culpable homicide in the course of the group assault and is therefore liable for it.

64  The difficulty I have previously identified with the Crown's submission is that there is insufficient evidence in the record capable of reasonably supporting the inference that there was a common intention amongst the occupants of the car to commit a group assault. I made that finding in the course of determining the defendants' directed verdict applications.

65  The Crown submitted that evidence adduced through Mr. [REDACTED] after the directed verdict applications now supports the inference that there was a common intention to commit a group assault. I disagree. If anything, Mr. [REDACTED]'s evidence tends to support the opposite conclusion.

(e)One Female or Two

66  In my draft charge, I included an instruction that if the jury concluded that there was more than one female at the scene at the time Mr. [REDACTED] was struck, they would have to acquit Ms. [REDACTED] because they could only speculate as to which female uttered the remarks purportedly heard by Ms. [REDACTED].

67  Crown counsel persuaded me that such an instruction was wrong. Ms. [REDACTED] was the only female in the group occupying Mr. [REDACTED]’s car. One of the others in that group -- Mr. [REDACTED] -- is undoubtedly the person who struck Mr. [REDACTED]. The jury could conclude, in these circumstances, that if a female yelled encouragement to Mr. [REDACTED], it was likely to have been the female in his group, as opposed to some other, random female who happened upon the scene.

(f)The Admissibility of Mr. [REDACTED]'s Criminal Record

68  Normally, evidence relating to the character or propensities of a victim of an alleged violent offence is irrelevant.

69  In cases like this, where self-defence is raised, the disposition of the alleged victim may sometimes be relevant: R. v. Scopelliti[1981] O.J. No. 3157. In this case, the submission of Mr. [REDACTED]'s counsel is that Mr. [REDACTED]'s propensity for violence is relevant to the credibility of Mr. [REDACTED]'s evidence that Mr. [REDACTED] was the aggressor in their violent encounter. Evidence that Mr. [REDACTED] had a propensity to fight or otherwise act in a violent manner may support Mr. [REDACTED]'s assertion that Mr. [REDACTED] approached him aggressively, looking to fight.

70  Where disposition evidence in relation to an alleged victim is relevant it should only be excluded where its probative value is substantially exceeded by its prejudicial effect: R. v. Varga[2001] O.J. No. 4262, at para. 76.

71  The jury has heard evidence in this trial that Mr. [REDACTED] was a fighter by reputation, though according to his son, that was twenty years ago. Mr. [REDACTED] also said of Mr. [REDACTED] that, amongst other things, he had convictions for assault, was trained in martial arts, knew how to fight, would not back down from a fight, could be unpredictable and was very powerful. The Crown did not and does not challenge the admissibility of any of that evidence.

72  The sole piece of "disposition" evidence in issue is Mr. [REDACTED]'s criminal record.

73  The record spans from 1976 to 2008. It contains some 30 convictions, including 8 for assaults (ranging from simple assault to aggravated assault). It also includes convictions for public mischief, causing a disturbance and wilfully damaging property.

74  Mr. [REDACTED]'s counsel are not looking to put Mr. [REDACTED]'s entire criminal record into evidence. But they do ask that the following convictions be admitted into evidence, as supportive of Mr. [REDACTED]'s propensity for violence:

February 1976: Common Assault, Assaulting a Police Officer and Assault Causing Bodily Harm;

 

November 1977:

Wilful Damage;

 

 

February 1979:

Common Assault x2;

 

 

 

March 1980:

Assault Causing Bodily Harm;

 

 

May 1980:

Public Mischief;

 

 

 

November 1983:

Cause a Disturbance;

 

 

June 1986:

Public Mischief:

 

 

 

March 1987:

Aggravated Assault;

 

 

October 2008:

Assault.

 

75  As I noted, there is already a body of evidence in the record that tends to demonstrate that Mr. [REDACTED] had a violent disposition. It will be necessary to instruct the jury on the limited way they may use that evidence and about how they must not use it. Such an instruction should, for all practical purposes, entirely attenuate the risk of any prejudicial effects arising from the introduction of the evidence. In my view, there will be little, if any, prejudice associated with the introduction of the criminal antecedents identified by Mr. [REDACTED]'s counsel.

76  Having said that, the convictions in issue must still have some probative value to warrant admission. And in my view, other than the most recent conviction for assault, which the Crown concedes is admissible, none of Mr. [REDACTED]’s prior convictions are recent enough to support any inference about his disposition in September 2015.

77  All but the last entry on Mr. [REDACTED]'s record were more than twenty years old in September 2015. In fact, the overwhelming majority were over thirty years old. Some were almost forty years old. Of the eight assaults on Mr. [REDACTED]'s record, six of them appear to have been committed before he'd reached his twenty-first birthday.

78  People change. Mr. [REDACTED] testified that his father had changed; he'd mellowed out. That is not unusual as people age. I do not believe that acts committed by Mr. [REDACTED] when he was between the ages of 17-21 could possibly tell the jury anything about his disposition or propensities as a 56 year old man. Indeed, I take the same view of any of his convictions prior to 2008. Even that conviction is not particularly compelling. Had it been the only evidence of a purported disposition for violence, I would not have allowed its admission. But considered in the context of all of the other evidence, and given that its admission is not contested, it may be filed by the defence if they wish.

[REDACTED] J.

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