R. v. Mendes, 2015 ONCJ 688

Information No. 14-685 CITATION: R. v. Mendes , 2015 ONCJ 688 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JUSTIN MENDES REASONS FOR RULING BEFORE THE HONOURABLE JUSTICE D. A. HARRIS on FEBRUARY 19, 2015 at BURLINGTON, Ontario. APPEARANCES: A K. Frew Counsel for the Crown J S. Aird Counsel for Justin Mendes THURSDAY, FEBRUARY 19, 2015 REASONS FOR RULING

HARRIS, J. (Orally) Justin Carlos Mendes was charged with a number of offences all involving the same complainant Crystal Kruikemeijer. He is chargedwith assault, unlawful confinement, choking, threatening death and mischief all alleged to have occurred on September 1, 2013. Heplead guilty to the mischief charge. He plead not guilty to the others. He is also charged with three counts with mischief which are alleged to have occurred on November 3, 2013. He plead guilty to two ofthese and not guilty to the third. Ms.

Kruikemeijer and her “mother” both testified during the Crown’s case with respect to those matters for which not guilty pleas wereentered. Crown counsel has now applied to admit evidence of other discreditable conduct on the part of Mr. Mendes. This evidence is in theform of a transcript of proceedings wherein Mr. Mendes plead guilty to and was sentenced for assault, threatening death and failing tocomply with the terms of a recognizance of bail. The Supreme Court of Canada reviewed the law with respect to evidence of prior discreditable conduct or of similar acts in R. v. Handy,2002 SCC 56 , [2002] S.C.J.

No. 57(S.C.C.). In that decision Justice Binnie wrote at paragraph 101 that, The starting point is that the similar fact evidence is presumptively inadmissible. It is for the Crown to establish on a balance ofprobabilities that the likely probative value will outweigh the potential prejudice. That then requires an assessment of both likely probative value and potential prejudice arising from the proposed evidence. I will dealwith the latter point first.

With respect to potential prejudice it is necessary to evaluate both moral prejudice (i.e. the potential stigma of “bad person”) andreasoning prejudice (including potential confusion and distraction of the jury from the actual charge against the respondent). Clearly the potential for prejudice is not as significant in judge alone trials such as this one. I should be capable of recognizing the riskby either moral prejudice or reasoning prejudice. I should be equally capable of avoiding both types of prejudice.

I have previouslynoted in other decisions that if I was unable to set aside the potential moral prejudice arising out of the similar act evidence it would benecessary for me to declare a mistrial now and recuse myself from the case as I have already heard the proposed similar act evidence. Such is the dilemma facing all judges trying these cases without a jury. This dilemma was discussed by the Ontario Court of Appeal in Regina v. T.B. 2009 ONCA 177 , [2009] O.J. No. 751.

There the court stated, This was a non-jury trial in which the danger that an accused would be convicted solely on the basis of his general bad behaviour was nota significant concern. Moral prejudice is not a significant risk in a judge alone trial. Second, dismissal of the application to introducesimilar fact evidence did nothing to address the probability of moral prejudice. The trial judge had already heard the evidence as part ofthe Crown’s case. Thus the trial judge’s knowledge of evidence casting the respondent in a poor light was not eliminated by its exclusionas similar fact evidence.

The only issue was whether the already admitted evidence could be used for another purpose. I note, however, that while the Ontario Court of Appeal and the Supreme Court of Canada both clearly acknowledge that the potential forprejudice is not as significant in a non-jury trial, neither court has gone so far as to say that there is no potential for prejudice or that it isnot necessary for a judge sitting alone to balance the likely probative value of the proposed evidence against its potential for prejudice. In that regard the issue of probative value is more complex.

The evidence must be relevant and material before it may be admitted. The Ontario Court of Appeal said in R. v. L.B., (ON CA), [1997] O.J. No. 3042 at paragraph 16 that evidence is relevant: Where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be inthe absence of that evidence. The evidence is material if it is directed at a matter in issue in the case. To determine that I must understand the purpose for which the evidence is being proffered.

It is therefore necessary for Crowncounsel to identify the issues in question. Then, if I admit the evidence, I will be able to use it in relation to those issues only. Crown counsel has suggested that the evidence should be admitted for two purposes here. The first of these is that it will show a situation specific propensity on the part of Mr. Mendes to engage in a specific form ofassaultive behaviour when challenged by an intimate female partner. The second purpose for the evidence is to bolster the credibility of Ms.

Kruikemeijer in that it would be unlikely that she couldhave made up allegations which were so similar to what Mr. Mendes had done to someone else on a previous occasion. Both of these purposes are specifically approved of in R. v. Handy. I must, however, keep in mind that it is not enough for Crown counsel to simply propose that the evidence be introduced for oneof these previously enumerated purposes. In R. v. Handy Justice Binnie stressed at paragraph 75 that the “issues in question” are not categories of admissibility.

Theiridentification is simply an element of the admissibility analysis which, as stated, turns on weighing likely probative value againstpotential prejudice. In doing that, I must consider the strength of the proposed evidence. This includes the extent to which the prior conduct can beproven and the impact of any possible tainting by collusion. The evidence here consists of a transcript of court proceedings in which Mr. Mendes admitted to the prior conduct. Theevidence, then, is very strong. Ms. Kruikemeijer testified that she was aware of Mr.

Mendes having assaulted and threatened a previous partner but that she didnot know any of the details with regard to those offences. She was not cross-examined with respect to this. Counsel for Mr. Mendes hasnot suggested that there is any issue of collusion or other knowledge on the part of Ms. Kruikemeijer and I am satisfied that there isnone. I must identify the factors that connect or distinguish these prior acts from those alleged in the charges and determine whetherthere was a sufficient degree of similarity to make the evidence admissible. Both complainants were involved in a serious relationship with Mr.

Mendes and were residing with him at the time. On alloccasions Mr. Mendes was drinking to the point of intoxication. On all occasions there was an argument between him and bothcomplainants. In each case Mr. Mendes used physical force to compel each complainant to do what he wanted them to do. He threw

each complainant’s purse away from her. He kicked one or more doors open in each situation. He damaged personal property belongingto both of the complainants. He physically assaulted both of them. These assaults went beyond common place slapping, pushing or punching, involving instead, throat grabbing and choking. In both casesthe assaults are alleged to have taken place over a prolonged period of time rather than consisting of a single blow. Mr. Mendesthreatened both complainants with death but here I note that it is alleged that he spoke the threat directly to Ms.

Kruikemeijer, whereasthe earlier threat was spoken to a police officer. So, there are certainly similarities between the current allegations and the prior offence. I note that there are some dis-similarities. I characterize these, however, as being mostly as a minor nature, to my mind. I am more concerned about the fact that the prior conduct in this case consists of one act that took place slightly more than fiveyears prior to the alleged offences before me. Justice Binnie noted in paragraph 82 in R. v.

Handy that factors connecting the similar facts to the circumstances set out in thecharge included proximity in time. He commented further at paragraph 122 that, Lapse of time opens up a greater possibility of character reform or ‘maturing out’ personality change and would tend to undermine thepremise of continuity of character or disposition. Remoteness in time may also affect relevance and reliability. With respect to the fact that the Crown is seeking to introduce evidence of one prior act of discreditable conduct, I note the comments ofJustice Doherty of the Ontario Court of Appeal in R. v.

W.B. (ON CA), [2000] O.J. No. 2184 at paragraph 98 wherehe stated, The inference that an accused has a certain disposition based on evidence of a single discreditable act could be so tenuous as to havevirtually no probative value. W.B. was decided prior to the Supreme Court of Canada decision in R. v. Handy. It must be viewed in that light. The above propositionhowever, is simply a statement based on common sense and logic and is not diminished in any way by the reasoning in R. v. Handy. In this case, I am looking at a single incident that occurred five years prior to the matters before me.

I note a significant difference incircumstances at that time from the circumstances in the current matters. On the earlier occasion there were clearly mental healthissues. These issues existed to such an extent that within three weeks of the assault Mr. Mendes purportedly tried to kill himself bycutting his wrists and he was admitted to the psychiatric wing of the local hospital for two weeks following that incident. There is no evidence before me to even suggest that these mental health issues were still in play in 2013. As I say, that strikes me asbeing a significant difference.

I give it added weight because of the intervening time and because of the fact that I have no otherincidents against which I can measure this. In light of all of these factors, I find that the inference that Mr. Mendes has a situation specific disposition is uncertain enough that it has,to my mind, little, if any, probative value. In all of the circumstances I am not satisfied that the Crown has established on a balance of probabilities that the likely probative value ofthe proposed evidence will outweigh the potential prejudice. The application is dismissed.