R. v. Floyd Date:, 2014 BCPC 385

Citation: R. v. Floyd Date: 20140115 2014 BCPC 0385 File No: 32167-1-K Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CURTIS FLOYD RULING OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: W. Mathers Counsel for the Defendant: A. Kaiser Place of Hearing: Williams Lake , B.C. Dates of Hearing: May 9, 2013 and October 4, 2013 Date of Judgment: January 15, 2014

[ 1 ] This is my ruling on an objection raised to a piece of evidence given by the complainant, Ms. Jensen, in the trial of her then, common law husband, Mr. Floyd. Mr. Floyd is charged with assaulting Ms. Jensen, her son and her son’s friend. [ 2 ] On examination in chief by the Crown, Ms. Jensen testified that she had been boiling a saucepan of water on the stove in the kitchen in the process of cooking spaghetti. She and the accused had been arguing.

She said he came up behind her and she could see from his look that she was going to “get it” so she “…flipped…” the saucepan of hot water towards him, backed up and then the alleged assault by the accused occurred. The Crown sought more detail about what she meant when she said she thought she was going to “get it” and Ms. Jensen answered: A: “I have been assaulted before by Mr. Floyd, numerous times.” [ 3 ] Proceedings at Trial, Oct. 4, 2013, p. 9, ll. 3-8 [ 4 ] Defence counsel immediately objected and, after some discussion, I adjourned the issue for written argument.

I have received and reviewed the arguments filed by counsel. [ 5 ] The Crown now concedes that this evidence is presumptively inadmissible. Although such evidence about prior violence in the relationship can be broadly characterized as “part of the narrative”, it also clearly constitutes evidence of “other bad acts” or “other discreditable conduct”. I agree with Mr. Kaiser, that as such, it will only be admissible if the court concludes that the probative value of the evidence outweighs its prejudicial effect: R. v. BFF; R. v. S.B. [ 6 ] In this case the issue did not arise until well along in the Crown’s case.

Ms. Jensen may well be the last witness called by the Crown. Mr.

Kaiser argues that it is too late in the trial for the Crown to now seek to introduce such potentially prejudicial evidence against his client - without notice and without a proper application. [ 7 ] I agree. [ 8 ] The normal procedure when dealing with such evidence is for the Crown to provide notice to Defence counsel and, if no admission is possible, then the admissibility of the evidence would be determined on a voir dire. [ 9 ] I have considered ruling on the issue of admissibility simply on the evidence that I have heard to this point in the trial without a voir dire.

I have also considered declaring a voir dire at this point, hearing the remainder of Ms. Jensen’s evidence on the voir dire, and, with the greater detail and context this would provide, reaching a decision at that point about whether the probative value of the evidence outweighs its prejudicial effect. [ 10 ] However, I have decided against either course of action because if such evidence were admitted at this late stage it would change the nature of the case the accused must meet in a significant way.

In reaching this conclusion I am assuming that full disclosure of the alleged prior violence in the relationship has been made. The issue, as I see it, is not one of disclosure. It is one of trial fairness and of the defendant knowing, at the time he makes critical decisions about trial planning, the case he must meet. Without specific notice the accused and his counsel could not be expected to anticipate that once the trial was well underway the Crown would attempt to tender such evidence since such evidence is presumptively inadmissible. [ 11 ] I agree with the Crown that Justice Hill’s decisions in R. v.

Pheasant, [1995] O.J. No. 4962 and R. v. S.B., [1996] O.J. No. 1187 would appear to be on point. However, as I have said, my concern in this case is with timing and trial fairness and so I do not get to the point of applying the reasoning in those decisions to the facts of this case. I will simply disabuse my mind of the answer given by Ms. Jensen and will not permit any further evidence to be elicited concerning “other bad acts” or “other discreditable conduct” that she alleges against the accused. [ 12 ] The Defence objection is upheld. _____________________________ E. L. Bayliff Provincial Court Judge