R. v. Choy, 2011 ABQB 270

Court of Queen ’ s Bench of Alberta Citation: R. v. Choy, 2011 ABQB 270 Date: 20110419 Docket: 070121058Q1& 070121058Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Lily Choy Accused _______________________________________________________ Reasons for Decision on Voir Dire of the Honourable Madam Justice D.C. Read _______________________________________________________ [ 1 ] Lily Choy stands accused of second degree murder in the death of her foster child A.B.

This was a second trial in this action, the first decision, made by a jury, having been overturned by the Court of Appeal and returned for retrial. During the course of the second trial, Helen Emeny, a neighbour of the Accused, was called by the Crown. Her evidence was heard in voir dire. What follows is my decision respecting admissibility of Ms. Emeny’s evidence. [ 2 ] Helen Emeny lived across the street and three houses east of Ms. Choy at the time A.B. was a foster child in Ms. Choy’s

home. Ms. Emeny could see Ms. Choy’s home from her window, particularly the garage and a portion of the front window. Ms. Emeny also passed by Ms. Choy’s home as she came and went from her own home by car. Ms. Emeny has known Ms. Choy since Ms. Choy moved into the neighbourhood in the fall of 2004. Both have children and they met through them, speaking on the street when they were out with their children. Additionally, Ms. Emeny would sometimes stop her vehicle to chat on her way by Ms. Choy’s home, if Ms. Choy happened to be outside as she passed. Ms. Emeny estimated that she saw Ms. Choy once or twice a week.

Ms. Emeny’s Testimony : [ 3 ] Ms. Emeny testified that she became aware that Ms. Choy had A.B. in her residence as a foster child in early December of 2006, when Ms. Emeny drove past Ms. Choy’s home and saw her standing on her driveway smoking a cigarette. She pulled over and rolled down her window to speak to Ms. Choy about a dog that had been running at large in the neighbourhood. It was while she and Ms. Choy were chatting that Ms. Emeny noticed Ms. Choy’s daughter and another child standing inside the front door of Ms. Choy’s house, looking out.

The children were behind the storm door of the home, which was mostly glass so Ms. Emeny had a clear view of both children. She described the child with Ms. Choy’s daughter as a boy approximately four years old, bigger than her own son who was approximately 3 ½ at the time, and with dark hair. She said she did not take particular note of his hairstyle but recalled that she could see his ears and he had no hair in his face. She agreed, however, in cross examination, that she had described the child’s hair as a shorter style at the first trial. She thought he appeared aboriginal in extraction. Ms. Emeny asked Ms.

Choy if she had company and Ms. Choy replied that the boy was her foster child, introducing him by name. [ 4 ] On a second occasion, later in December 2006, Ms. Emeny was driving by the Choy residence at about 4:00 to 4:30 p.m. on her way home when she saw the same boy standing outside to the left side of the front drive garage. Ms. Choy was there as well but the child was standing apart from Ms. Choy who was about three metres in front of him. Again Ms. Choy was smoking a cigarette. It was a cold winter day and Ms. Choy was wearing a winter jacket.

The child had his arms by his sides, no coat on, and seemed to be wearing only light coloured pyjamas or sweats, and socks but no shoes. Ms. Emeny described the fabric as not heavy fleece but more like cotton. At that time, the temperature outside was -5 to -10 degrees Celsius. The child was standing still and wailing. Ms. Emeny said the child’s cry was audible to her even through her closed car window. She tried to make eye contact with Ms. Choy but said it was as if Ms. Choy was “looking right past” her car. Ms. Emeny’s impression was that Ms. Choy did not want to speak to her. Ms.

Emeny did not stop and continued into her garage and unloaded her groceries. She could still hear the child wailing, stopping and starting, in the four or five minutes she estimated it took her to unload her groceries. She did not recall if the child was still crying when she finally went into her house. About 10 minutes later, she went to the window. Neither Ms. Choy nor the child were outside any longer. [ 5 ] Ms. Emeny said she saw the child and Ms. Choy outdoors again in January, on a couple of different occasions. These times it was at night.

She recalled one night seeing him from her living room window at 10:30 or 11:00 pm. He was essentially doing exactly the same thing – standing outside the garage, beneath a light. He was crying and, again, Ms. Choy was smoking on the driveway. Ms. Emeny described the child as standing and staring vacantly into the street as he cried. She said that she tried to see what the child was wearing but was unable to. [ 6 ] On other occasions during December 2006 and January 2007, Ms.

Emeny heard what she thought was the same wailing coming from the direction of the Choy home but on these occasions she did not see the source. [ 7 ] There was a third occasion in the first two weeks of January 2007 when Ms. Emeny heard crying at about 10:00 or 10:30 pm. Looking out the window from her own home, Ms. Emeny saw Ms. Choy smoking in front of the garage with the little boy beside her. The crying appeared to come from that direction. Ms. Emeny could not tell how the boy was dressed but she was able to identify Ms. Choy and the boy because they were standing under the lights of the garage.

Positions of the Parties: [ 8 ] As I have said, Ms. Emeny gave evidence at the previous trial. At the first trial, the Crown argued that Ms. Emeny’s evidence should be admitted as similar fact evidence. The trial judge disagreed and concluded that her evidence was not admissible on that basis. He issued a written decision, found at 2008 ABQB 706 . [ 9 ] The Crown does not argue that the evidence is admissible as similar fact evidence. Instead they argued four other bases for admission of this evidence:

- as evidence of the context in which the offence occurred; - as evidence of the relationship between A.B. and the Accused; - as part of the narrative – the background of the offence; - as evidence of the “animus” or intent of the Accused towards A.B. [10] The Defence acknowledged that evidence respecting animus is admissible and that animus is at issue in this trial. However,the Defence says that Ms. Emeny’s evidence is similar fact evidence and governed by the decision in R. v. Handy 2002 SCC 56. Theyargue that, at most, Ms.

Emeny’s evidence is indicative of neglect since there is no evidence of how the child came to be outdoors orwhy he was crying. The Defence says that the Accused is on trial for second degree murder of A.B. and she should not have also todefend herself against allegations of neglect of the child earlier in time. They argue that the prejudicial effect of the Emeny evidencemuch exceeds any probative value it has. [11] The Crown relies upon a related decision made by the trial judge in the first trial: R. v. Choy, 2008 ABQB 697.

This decisionwas made in respect to an application for severance of various other charges from the accusation of second degree murder. In the courseof deciding that the other charges then against the Accused should be severed, the trial judge had to determine whether evidence offeredin respect to the other charges was admissible as relevant to the charge of second degree murder.

At paragraphs 31 through 44 he gavehis reasons for concluding that certain evidence of bruises on the child found in the weeks before his death and evidence that the childhad been locked in an unheated garage without proper clothing should be admitted in the second degree murder trial as relevant to theintent of Ms. Choy to injure A.B. [12] The Defence accepts the Trial Judge’s decision in the previous trial and what he admitted as evidence of animus, but says thatMs. Emeny’s evidence is not evidence of animus, at all.

They say, instead, that I should follow the decision made by the previous trialjudge who determined that Ms. Emeny’s evidence was not admissible. Discussion and Decision: [13] Evidence of misconduct beyond what is alleged in the indictment and which does no more than tend to show that the accusedis a bad person, is inadmissible. Ms. Choy is not charged with having a general propensity to be cruel or neglectful towards children and,indeed, no one could be. The dangers of propensity reasoning are well recognized. The policy reason for its exclusion was outlined byBinnie J. speaking for the Court in R. v.

Handy 2002 SCC 56 at para 37: 37 ...while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact toan unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almostalways outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It isexcluded notwithstanding the general rule that all relevant evidence is admissible: Arp, supra, at para. 38; Robertson, supra, at p. 941;Morris, supra, at pp. 201-2; R. v.

Seaboyer, (SCC), [1991] 2 S.C.R. 577, at p. 613. [14] But propensity reasoning is not always prohibited. It is admissible if its probative value exceeds the prejudicial effect.

In R. v.D. (L.E.), (SCC), [1989] 2 S.C.R. 111, Sopinka J. confirmed this at para 13: Cross on Evidence (6th ed. 1985) contains a concise statement of the "similar facts rule" at p. 311 with which I agree: ... evidence of the character or of the misconduct of the accused on other occasions ... tendered to show his bad disposition, isinadmissible unless it is so highly probative of the issues in the case as to outweigh the prejudice it may cause. [15] The same point was made by Charron J.A. in R. v. B. (L.) (1997), (ON CA), 35 O.R. (3d) 35 at page 57 :

... propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reasonfor its admission... . It is propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence ofdiscreditable conduct, which is prohibited. [16] To determine probative value, the first step is to identify the purpose for which the evidence is proffered: see for example, R.v. B. (C.R.) 1 S.C.R. 717; R. v.

Litchfield (SCC), [1993] 4 S.C.R. 333. [17] The four purposes which the Crown proffers the evidence have been set out above. [18] That the purposes for which propensity evidence is offered may differ does not, however, detract from its character aspropensity evidence and it is subject to the same rules of admissibility.

In my view, the evidence sought to be introduced by the Crownhere is no different from that offered in cases such as Handy where evidence was sought to be introduced by a former spouse of theaccused in a sexual assault of a different woman, that he had forced painful sex on the former spouse in the past.

In other words,evidence of animus is not qualitatively different from other so-called similar fact or similar act evidence, such as evidence of modusoperandi, and must be considered using the same analysis. [19] Evidence of the context in which the offence occurred, the relationship between the accused and the complainant, thebackground of the offence and evidence of “animus” or intent of an accused to the complainant are all subject to the same general test,that is the one established in Handy.

Such evidence is only admissible if its probative value exceeds its prejudicial effect. [20] Writing for the court in R. v. B.(L.) Charron J.A. provided a useful, although not exhaustive list of factors to be considered inassessing or balancing probative value and prejudicial effect. She states at p. 47: In assessing the probative value of the proposed evidence, consideration should be given to such matters as: (

i) the strength of the evidence; (ii) the extent to which the proposed evidence supports the inference(

s) sought to be made from it (this factor will often correspond tothe degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and (iii) the extent to which the matters it tends to prove are at issue in the proceedings. In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as: (

i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character; (iii) the extent to which it may confuse issues; and (iv) the accused's ability to respond to it. [21] Charron J.A. goes on to explain the importance of identifying the issue to which the proposed evidence relates when assessingits probative value. At pp. 54-55 she states: Identifying the issue in the trial to which the proposed evidence relates is particularly important given the prejudice which may arisefrom the admission of evidence of discreditable conduct.

It is important to keep in mind what is meant by prejudice in this context. Thedanger which must be guarded against is that the trier of fact, in relying on the evidence of discreditable conduct, may conclude that theaccused committed the offence with which he is charged based, not on the strength of the evidence which has a connection to the issues

in the case, but rather, on the strength of the evidence that he is "a bad person" who would have a tendency to commit this offence. [22] Many of the cases relied upon by the Crown were decided before Handy. For example R. v. Batte, (ONCA), 49 O.R. (3d) 321 (C.A.), relied upon as authority for the proposition that evidence of misconduct engaged in by an accused againsta complainant on other occasions is admissible to show the context in which the offence occurred and the relationship between theaccused and the complainant, was specifically considered by the Court in its analysis in Handy.

It concluded that evidence of misconductof the accused on other occasions simply exemplified one of the factors to be considered by a court in considering the cogency of similarfact evidence in relation to the inferences to be drawn – the number of occurrences of similar acts. [23] The Crown also cites Litchfield for the proposition that the proffered evidence is admissible to show the relationship betweenthe Accused and A.B. Again, however, the decision in Litchfield was decided before Handy, and must be approached with caution.

Aswith Batte, the Court in Handy specifically considered Litchfield in its analysis and concluded that it exemplified another of the factors acourt may use in considering the cogency of similar fact evidence in relation to the inferences to be drawn – that is the circumstancessurrounding the similar acts, including the physician/patient relationship that existed between Litchfield, the complainant and the others. [24] Other cases relied upon by the Crown, such as R. v. Cudjoe, 2009 ONCA 543, have been decided since Handy.

In upholdingthe trial decision, the Court of Appeal in Cudjoe did not specifically cite Handy. However, in the course of upholding the trial judge’sdecision, it concluded at para. 69, that the trial judge had appreciated the governing admissibility rule and properly balanced theprobative value of the evidence against its inherent prejudicial effect. [25] It is my task, therefore, to weigh both the probative value and the prejudicial effect of the evidence of Ms. Emeny which theCrown seeks to have admitted. [26] In determining its probative value, I have considered the factors outlined by Charron, J.A. in R. v.

B.(L.). which provide ahelpful analysis. [27] I note the following. The evidence relates to incidents removed in time and circumstances from the charge. On Ms. Emeny’sevidence, some weeks before the events at issue in this trial, Ms. Choy was aware of and permitted the child to remain outdoors for sometime period in winter when he was not properly clothed and when he was in obvious distress and she did not attend to him. On two otheroccasions some weeks later, she was clearly aware that he was outdoors again and in distress and did not attend to him. Wails and cryingwere heard on other occasions.

This is circumstantial evidence and, as with any circumstantial evidence, its utility depends entirely onthe validity of the inferences it is said to support with respect to the questions in issue. The argument for admitting the evidence is that itshows, among other things, a particular animus that the Accused had towards the child. I am asked to infer that Ms.

Choy forced thechild to remain outside and not properly clothed as some sort of punishment or simply because she wished to treat the child cruelly.However, there is no evidence of how the child came to be outside on each of these occasions and there are other possible explanations,other than that Ms. Choy forced the child to remain outside as some sort of punishment or out of cruelty. There are also many possiblereasons for a child to cry and many possible reasons that a parent or caregiver may elect to ignore or not to attend to a crying child forsome time period. The conduct described by Ms. Emeny is equivocal.

There are possibilities other than punishment or cruelty whichcould explain the behaviour. The evidence does not, in my view, strongly support the inference the Crown seeks to have me make. [28] The acts described by Ms. Emeny are, as well, quite different from those charged by the Crown in the indictment.

Requiringa crying child to stand outside in the cold while not properly clothed but with the caregiver nearby is quantitatively quite different fromrequiring an almost naked child to spend the night in an unheated garage and both qualitatively and quantitatively different from striking,shaking or otherwise causing the child’s head to come into contact with something which caused such serious brain trauma that the childdied.

Substantial dissimilarities such as these weaken the probative strength of the evidence. [29] Because of the weakness of the inference to be drawn and the gap in time between the occurrences described by Ms. Emeny,the evidence does not aid in the determination of the context in which the offence occurred. Nor, because it is removed in time is itparticularly helpful in determination of the background of the offence.

For these same reasons, it does not give much aid in determiningthe relationship between the Accused and A.B. or of any “animus” or intent of the Accused towards A.B. [30] Again bearing in mind the factors outlined in R. v. B.(L.), I move now to considering the prejudicial effect of such evidence

on the Accused. Its prejudicial effect is considerable. The Accused is on trial for murder. What the Emeny evidence would tend to prove could be described as uncaring behaviour, negligent behaviour, or cruel behaviour depending upon its intent. What the Crown is really saying is that Ms. Emeny’s evidence should be admitted because it tends to show that Ms. Choy either tried to harm A.B. in the past or acted in a fashion that showed she did not care whether or not he was harmed. As I have already indicated, the evidence offered does not provide strong support for such an inference.

However, such evidence is dangerous because it could support an inference of guilt based solely on bad character. Further, it could simply confuse the issues at trial [ 31 ] In conclusion, the inferences raised by the evidence are not strong enough to overcome the prejudice to the Accused. The Crown has not discharged its onus of establishing on a balance of probabilities that the probative value of Ms. Emeny’s evidence outweighs its prejudice. The evidence will not be admitted. Heard on the 4 th through 29 th days of April, 2011. Dated at the City of Edmonton, Alberta this 19 th day of April, 2011. D.C.

Read J.C.Q.B.A. Appearances: Allison M. Downey-Damato for the Crown Mona T. Duckett QC for the Accused