R. v. W. Date:, 2011 BCPC 251

Citation: R. v. W. Date: 20110615 2011 BCPC 0251 File No: 20400-1-K Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L.L.W. ORAL RULING ON VOIR DIRE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Counsel for the Crown: C. Malfair Counsel for the Defendant: E. K. Jones Place of Hearing: Prince George , B.C. Date of Judgment: June 15, 2011 [ 1 ] THE COURT: In this matter, Mr. W. is charged with committing an assault against his spouse, B. L. That alleged assault occurred on March 11, 2009. [ 2 ] In the course of giving her evidence, Ms.

L. referred to previous incidents between herself and Mr. W. in which she says there was violence or threats of violence visited upon her by Mr. W. [ 3 ] The Crown asked for and I declared a Voir Dire in the matter, because the Crown wishes to have the court consider and admit evidence of what is often described as past discreditable conduct on the part of Mr. W. against Ms.

L., in order for the court, the Crown contends, to better understand the dynamics between the two of them within their spousal relationship and how those dynamics may have been in play on March 11, 2009. [ 4 ] I did conduct a Voir Dire, hearing evidence firstly from Ms. L., secondly from Constable Andrea Hanley of the RCMP, and thirdly from Mr. W. The Crown wishes to have the evidence of Ms. L. and Constable Hanley from the Voir Dire admitted into evidence in the trial and, if that is done, the Crown says it would not object to the evidence of Mr. W. being admitted as evidence in the trial as part of Mr.

W.'s defence, if Mr. W. chose to call a defence. [ 5 ] Although in most criminal cases the trier of fact does not hear evidence of prior criminal or alleged criminal behaviour, because

to hear such evidence might distract the trier of fact from considering the evidence involving the incident before the court, and couldlead the trier of fact to mistakenly conclude that the accused, based on prior incidents, has a propensity or is, in other words, more likelyto have committed the offence before the court because of his or her past behaviour. [6] There are exceptions, however, and the Crown has provided a number of cases which I will first simply refer to, and in a fewmoments refer to in more detail. These cases are well known. Firstly, Makin v.

Attorney-General for New South Wales, [1891-94] AllER Rep 24, a decision of the Privy Council; R. v. Atwal, 2004 BCSC 1517; R. v. F.(D.S.) (1999), (ON CA), 132C.C.C. (3d) 97; R. v. Mahalingan, 2008 SCC 63 , [2008] 3 S.C.R. 316; R. v. Misir, 2001 BCCA 202; R. v. Peterffy, 2000 BCCA132; and R. v.

Zhang, 2000 Carswell Ont. 1548. [7] All of those cases set out exceptions in which evidence of previous incidents, particularly involving people in close familyrelationships, can be admitted as part of the trial. [8] In Makin, Lord Herschell said, in a very famous quote: On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissibleif it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitutethe crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. [9] In F.(D.S.), the court quotes from an earlier decision of Madam Justice Charron in R. v B.(L.), and sets out a four-part test that thecourt must consider in deciding whether the evidence proposed to be admitted can be admitted.

The four part test is: 1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused? 2. If so, is the proposed evidence relevant and material? 3. If relevant and material, is the proposed evidence discreditable to the accused? 4. If discreditable, does its probative value outweigh its prejudicial effect? [10] It must be noted that at this stage in the proceeding, neither the Crown or the defence is asking that the court make anydeterminations with regard to the weight to be given to any evidence that may be admitted.

The dispute between the Crown and thedefence is whether or not the evidence should be admitted at all. [11] The concept of so-called discreditable evidence being admitted in circumstances involving close family relationships has beencommented on and, in the cases provided by the Crown, permitted in many different circumstances.

In those cases the court is careful toensure a clear delineation between permitting evidence to be admitted in the trial which only goes to show a person is of bad character orhas the propensity to commit an offence, which of course would not be generally permitted, but rather that evidence can be admitted ofdiscreditable character where it would tend to show the nature of the relationship between the accused and the complainant, and whereits probative value outweighs its prejudicial effect. [12] The submissions of the Crown and the defence in this matter differ with regard to Point 2 and Point 4 set out in B.(L.).

Withregard to Point 1, there is no doubt that the evidence that the Crown wishes to have admitted is conduct of Mr. W., and there is no doubtwith regard to Point 3 that the proposed evidence is discreditable to Mr. W. How discreditable or in what circumstances it isdiscreditable is a matter of weight, and in my view not to be commented on at this point in the proceeding. [13] Two issues where the Crown and the defence disagree are Points 2 and 4.

In other words, is the proposed evidence relevant andmaterial, and does its probative value outweigh its prejudicial effect? [14] It is important then to at least touch on the evidence the Crown wishes to have admitted and the evidence that Mr. W. makes inresponse. [15] Ms. L.'s evidence on this point is that she has called the police, as it turns out, a total of seven times over seven years as a result ofincidents between herself and Mr. W.

She was, to put it fairly, somewhat confused about the details of some of those incidents,particularly the five that did not result in either a criminal conviction or a peace bond. [16] The two incidents, the one that resulted in a criminal conviction and the one that resulted in a peace bond, were perhaps morereadily remembered by Ms. L., because of course there would have been documentation, court records, et cetera, that would haveassisted in pinning down the date and the circumstances of those events. [17] On the other five incidents, Ms.

L.'s evidence was less than crystal clear, but in general she said that in all the incidents thingswould be precipitated by Mr. W. getting into a bad mood and if she disagreed or argued with him then he would, in her words, "get roughwith me". [18] It is all of those seven incidents that the Crown wishes to have admitted as evidence in the trial. [19] In cross-examination, Ms. L. acknowledged that on the seven occasions in which the police were called, she placed the call to thepolice. She denied having any recollection of occasions in which she attacked Mr. W., but the police were not called by Mr.

W., and shedenied some of the circumstances, particularly of the event that resulted in Mr. W.'s conviction for assault, in which at one point oranother either Ms. L. and/or Mr. W. had possession of a hammer. [20] Constable Hanley's evidence in this matter in

summary form is that she checked the various records kept by the RCMP on whatis called PIRS, and from that she compiled a list of seven incidents between 2001 and 2008. She commented that on each of the sevenincidents, it was Ms. L. who was the complainant and there were no records of any incidents in which Mr. W. called the police alleging

Ms. L. was the aggressor. [ 21 ] She did acknowledge in her evidence that of the five matters in which no charges arose, she had no knowledge of any details of those incidents, save and except with regard to one incident in 2007 where Mr. W. agreed to leave the residence when the police arrived, and in that incident Ms. L. was pregnant. [ 22 ] Mr. W.'s evidence in the Voir Dire was that the difficulties between himself and Ms.

L. were often reciprocal, and that on the occasions on which she would have called the police, it was more, in many of those occasions, a circumstance where they were both acting inappropriately towards each other, but Ms. L. would pick up the phone and call the police. [ 23 ] With regard to why he did not call the police in other occasions, it should be noted, and in fact Mr. W. commented in his evidence on the fact, that he is a person who is, and I am perhaps putting it bluntly in today's modern world, deaf.

He has a great deal of difficulty communicating, either by phone or in person, and particularly has difficulty in communicating with the police, because the local police detachment does not have anybody readily available who can provide sign language

interpretation for Mr. W.. [ 24 ] Mr. W. also gave as a reason why he did not call the police on some occasions the fact that he had been in touch with the police on many occasions in the past involving difficulties that he was having with Ms. L.'s former partner, Mr. F., who Mr. W. was very concerned about, because he alleges Mr. F. is a man of a violent nature who persistently harassed Ms. L., and that Ms. L. was not of a strong enough will or character to rebuff Mr. F., in part because she and Mr.

F. share two children. [ 25 ] Although his explanation as to why he did not call the police was somewhat undermined by the Crown's cross-examination in the Voir Dire, he maintained the position that, particularly in the early years of between approximately 2000 and 2003, he was eventually told by the police to stop calling 9-1-1 with regard to Mr. F., because if he did persist in that behaviour he would be arrested. [ 26 ] Now, it is not clear from Mr.

W.'s evidence in the Voir Dire as to under what circumstances he might be arrested by the police, but it certainly has left the court with the impression that perhaps his restricted ability to communicate with the police because of his hearing challenges might have left him or the police in a situation where they were unable to adequately understand each other's perspectives. [ 27 ] As it pertains to the seven events I have already been describing, Mr.

W.'s evidence was that in many of the incidents in which either the assault conviction or the peace bond was not present, in other words the five of the seven, the arguments and/or physical altercations between himself and Ms. L. were as much reciprocal as they were any one of them attacking the other. [ 28 ] With regard to the assault conviction, he did maintain that in fact Ms. L. started that incident as well, by brandishing a hammer and swinging it at him, and that he retaliated, and as a result of that he faced assault charges which were subsequently turned into a peace bond.

Even that incident he maintains was not started by him. [ 29 ] The Crown in the Voir Dire spent considerable time cross-examining Mr. W. on the specifics of the events between himself and Ms. L., and then also spent considerable time cross-examining him with regard to why he would or would not call the police on 9-1-1 as a result of his difficulties with Mr. F. [ 30 ] Mr. W. did acknowledge that Ms. L.'s continued relationship with Mr. F. causes him a fair amount of anger, because he believes Mr. F. to be a violent and dangerous man and not a good person to be around the children he cares for and Ms.

L., who he still cares for. [ 31 ] Having reviewed that evidence, it is now incumbent upon me to determine whether or not the proposed evidence, first of all, is relevant and material. Having had an opportunity to review the cases and the submissions of counsel, it is my view that the evidence the Crown wishes to have admitted in the Voir Dire is both relevant and material, and clearly is discreditable to Mr. W. [ 32 ] The main question that has to be decided is whether or not its probative value outweighs its prejudicial effect.

That test almost calls for a determination of what weight should be given to the evidence presented on both sides. I say almost, because at the end of the day I conclude that it is not, in these circumstances, the appropriate way to approach the situation. How much weight should be given to the evidence of Ms. L. or the constable or Mr. W. is a matter that I determine is best resolved by examining the evidence that is admitted in the trial, if and when that evidence becomes evidence in the trial. [ 33 ] It is clear that the evidence the Crown wishes to present from Ms. L. and the constable is prejudicial to Mr.

W. It is also clear that the evidence that Mr. W. presented in the Voir Dire is prejudicial in some respects to Ms. L., and certainly provides some explanation that might reduce the prejudicial effect on him. [ 34 ] However, because a Voir Dire is a trial within a trial, at this stage, because we are only in the Crown's case, the only evidence that will be admitted if I determine that its probative value outweighs its prejudicial effect will be the evidence of Ms. L. and Constable Hanley. [ 35 ] It is only at the conclusion of the Crown's case, and if Mr.

W. determines he wishes to have evidence called on his behalf, that the evidence that he presented in the Voir Dire would become evidence in the trial. [ 36 ] When I was first presented with this argument by the Crown, I expressed a great deal of concern about the use of this type of evidence in this type of proceeding, precisely because of the amount of prejudice that might be visited upon the accused in circumstances where, to use this case as an example, five of the seven events were unresolved as to who was the aggressor or not, and that that kind of evidence might unintentionally lead me, as a trier of fact, to place some weight on those incidents with regard to whether or not Mr.

W. should be convicted of the incident arising from March 11, 2009. [ 37 ] However, having reviewed the cases the Crown has presented and considering those cases, submissions of counsel, and the evidence presented, I come to the conclusion that the probative value of the evidence of Ms. L. and Constable Hanley within the Voir Dire outweighs the prejudicial effect that the admission of such evidence would have on Mr. W.

[ 38 ] I would say parenthetically that the Crown has already acknowledged that at the end of the Crown case, if Mr. W. wishes to give evidence, that the evidence he gave in the Voir Dire would not be opposed by the Crown as becoming evidence in the trial. [ 39 ] So at the end of the day, applying the four-part test described in R. v. B.L. , I conclude that the evidence of Ms. L. and Constable Hanley given in the Voir Dire has more probative value than prejudicial effect on Mr. W. and can be admitted as evidence in the trial. (RULING CONCLUDED)