Her Majesty the Queen ) Amy Wood, ) ) for the Crown - v. –, 2019 MBPC 6

Citation: 2019 MBPC 6 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Amy Wood, ) ) for the Crown - and – ) L.S., ) ) Martin Glazer, Accused ) ) for the Accused ) ) ) Decision on Voir Dire delivered: ) January 22, 2019 Restriction on Publication : This judgment is subject to s. 486.4 of the Criminal Code which prohibits the publication of any information that may identify the complainant in this matter. MARY KATE HARVIE, P.J.

INTRODUCTION [ 1 ] This is a decision on a voir dire respecting the admissibility of evidence of “discreditable conduct” on the part of the accused. [ 2 ] Some context for this voir dire is required, given that the proceedings in this matter are somewhat unusual. The accused is charged with multiple “historical” sexual assault related offences. The complainant is his sister. Given the time frame of the allegations, charges have been laid against the accused in both youth court (the “youth allegations”) and adult court (“the adult allegations”).

The allegations span a multi-year time frame and are divided due to the accused turning eighteen years of age, with the adult allegations commencing on the accused’s eighteenth birthday. [ 3 ] The adult allegations are before the Court for trial. The youth allegations are set for trial after the completion of this matter. The complainant was called in a voir dire in order to provide the Court with some foundation for the application.

Crown counsel seeks to have the complainant testify at trial about the facts which underlie the youth allegation, not as “similar fact evidence”, but as evidence which she concedes is “discreditable conduct” by the accused, which she argues is admissible as part of the narrative and to allow the Court to properly assess the credibility of the complainant. [ 4 ] Further, Crown counsel also seek direction respecting the admissibility of specific “discreditable” acts, properly within the time frame of the adult charges.

Specifically, this relates to evidence from the complainant that she and the accused smoked marijuana together, and that they viewed pornographic photos and videos. She argues that this evidence is not being introduced to discredit the accused, but rather to provide the complainant and the Court with a time frame to reference other events. [ 5 ] To be clear, defence counsel does not object to any evidence from the period when the accused was a youth that is general in nature and that may provide the Court with necessary time line events.

He raises two objections respecting the evidence specifically supporting the youth allegations. First, he argues that the evidence at the voir dire does not support the purpose the Crown asserts, but rather is simply evidence of discreditable conduct that could easily be severed from the adult allegations without any prejudice to the prosecution. Secondly, he takes issue with the assertion that the youth allegations are necessary for the Court to assess the credibility of the complainant and to provide “context” to the relationship.

He submits that there is a clear separation in time between youth allegations and the adult allegations, and that the Crown has not met either the legal or the evidentiary burden for the application. He also argues that the Court does not have jurisdiction to hear the allegations involving the youth matters as those are within the sole jurisdiction of the youth court.

[6] For the following reasons, I am satisfied that Crown counsel can adduce evidence from the complainant which relates toevents and activities covered by the time frame of the “youth charges”. I am also satisfied that the Crown can adduce evidence regardingthe use of drugs and the viewing of pornographic materials, albeit for the limited purpose identified. Exclusive Jurisdiction of the Youth Court [7] Defence counsel argues that the Court is statute barred from hearing evidence as in support of the youth allegations, andrelies on

section 14 of the Youth Criminal Justice Act (“YCJA”) which expressly confers jurisdiction over youth trials to a youth courtjustice. As a voir dire is a “trial within a trial”, he argues that this Court does not have jurisdiction to hear the matter. [8] This is a novel argument, but not one that can succeed. It is important to remember the purpose for which the evidence isbeing tendered. Unlike a trial, where the outcome can include a finding of guilt and related sanctions, the purpose of the evidence, ifadmitted, is limited and clearly circumscribed by law.

It is not being tendered by the Crown for the purpose of establishing the guilt ofthe accused respecting those allegations. In fact, it is unclear as to which of the allegations will actually form the basis of the youthproceedings, given the respective ages of the complainant and the accused at the time of the alleged events. Crown counsel argues thatthe evidence adduced from the complainant was intentionally general, so as to minimize any prejudice which might flow from itsadmission. [9] A similar argument was raised and dismissed in R. v.

D.C., 2018 ONSC 1863, with the Court simply concluding that he was“not persuaded” that the Crown’s conduct prejudiced the accused. I agree with this conclusion. As YCJA

section 14 clearly contemplatescriminal proceedings, I am not satisfied that it presents a statutory bar to the evidence in question. Evidence of “Disreputable Conduct”- The Test for Admission [10] It is common ground that evidence as to the character of the accused as being “the type of person” likely to have committed theoffence is presumptively inadmissible. However, “evidence which tends to show that the accused is a person of bad character but whichis also relevant to a given issue in the case does not fall within the exclusionary rule.” See R. v. B (F.F.), (SCC), 1993CarswellNS 13.

The onus rests with the Crown to demonstrate on a balance of probability that the evidence is logically relevant to andprobative of a live fact at issue, and that its relevance therefore outweighs the prejudicial effect of its admission. See R. v. Handy, 2002SCC 56 , [2002] 2 S.C.R. 908; R. v. Lahaie, [2005] M.J. 177. As noted by Greenberg, J in Lahaie (at para.14) ….whether one describes the proffered evidence here as “character evidence” or as “similar fact evidence” the overarching criterion foradmissibility is whether the probative value of the evidence outweighs its prejudicial effect.

That is not to say that the Crown need notidentify the issues for which the evidence is tendered, as the Crown has done in this case. But those issues do not establish “…categoriesof admissibility. Their identification is simply an element of the admissibility analysis which, as stated, turns on weighing probativevalue against prejudice.” (See R v. Handy per Binnie J. at para 75) [11] Prior to Handy, Charron J.A. discussed the “inherently prejudicial nature of evidence of discreditable conduct” in R. v. B. (L.) (1997), (ON CA), 116 C.C.C. (3d) 481 (Ont.

C.A.) at p. 490 and proposed that a trial judge “who is charged with thedelicate process of balancing the probative value of the proposed evidence against its prejudicial effect” make the following inquiry: 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? [12] Similarly in Handy, the Court suggested identifying the “issues in question”, or in other words, the purpose of the proposedevidence, as a tool to assist in determining the admissibility of the proffered evidence. There is no issue that the evidence in questioninvolves the accused and that it is discreditable to the accused. Crown counsel argues that the relevance and the probative value of theevidence should cause the Court to conclude, on a balance of probability, that it should be admitted.

The Relevance of the Proposed Evidence [13] Crown counsel argues that the evidence supporting the youth allegations is part of the complainant’s narrative, and is thereforerelevant. Without the ability to reference events which occurred during the time frame covered by the youth charges, the complainant’sevidence would commence from the date when the accused turned eighteen and would give the Court an artificial and inaccurate accountof the relationship between the parties, based on a disrupted narrative.

Crown counsel suggests that the proposed evidence will enablethe Court to contextually assess the complainant’s credibility. She also argues that the evidence is necessary to understand therelationship between all the parties, including other family members, to understand why the complainant failed to report the incidents orto otherwise seek assistance while the alleged offences were being committed. [14] As earlier noted, defence counsel challenges the proposed evidence on the basis that the Crown has not provided a factualfoundation for the application.

He argues that the youth allegations could easily by severed from the adult allegations without anydisruption to the narrative.

For example, defence counsel points out that there is nothing in the complainant’s evidence about the youthallegations that would explain her delayed disclosure, a basis relied upon in other cases. [15] It is true that Crown counsel must provide a factual foundation for the application, and that it is insufficient to simply assertthat the evidence is necessary for the “narrative.” I am also satisfied that there is no evidence that the complainant was fearful of theaccused, and that there is no evidence suggesting that to be the reason for the late disclosure.

However, there are several aspects of theevidence that weigh in favor of its relevance. First, the allegations occurred within a family dynamic that can best be understood if thecomplainant is allowed to testify as to the totality of her experiences, without the imposition of an artificial date, being the accused’s

eighteenth birthday. Secondly, while the late disclosure was not as a result of specific threats or coercion, as is seen in some cases, the complainant does explain how the family dynamic during the time frame of the youth allegations affected her decision not to disclose the alleged conduct. In order to properly understand that dynamic, it is important to hear the totality of the evidence.

Finally, I am not satisfied that the evidence is as narrow as defence counsel suggests, and that it involves more than one discreet incident when the complainant was in kindergarten which could easily be severed from the adult allegations. [ 16 ] With respect to evidence of drug use or the viewing of pornographic photos or videos, allegedly occurring within the time frame of the adult charges, Crown counsel argues that the evidence is not being tendered to discredit the character of the accused.

Rather, she argues that these activities are being introduced for the limited purpose of establishing time lines for the complainant. [ 17 ] Defence counsel argues that the evidence related to the use of marijuana and the viewing of pornographic magazines and videos is irrelevant and is nothing more than evidence of irrelevant discreditable conduct. While I understand the concern raised by defence counsel, I am again mindful that Crown counsel seeks to introduce this evidence only for the purpose of establishing the general time lines of events.

I am satisfied that the evidence is potentially relevant for this limited purpose. Probative Value vs. Prejudicial Effect [ 18 ] As is clearly articulated by Greenberg J. in Lahaie (at para.21): The danger of character or similar fact evidence is not that it may support a conviction. It is that it may lead to conviction for the wrong reasons. There are two types of prejudice associated with character evidence- moral prejudice and reasoning prejudice. Moral prejudice concerns the risk of conviction on the basis that the accused is a “bad person” arising from facts other than those which prove the offence.

Reasoning prejudice relates to the concern that a conviction will be based on “propensity”, flowing from evidence introduced for reasons other than to establish propensity. [ 19 ] Crown counsel argues that the strength of the evidence, the connectivity of all of the events and the stated relevance of the evidence all weighs in favor of admissibility. Given the fundamental purpose for which the evidence is sought to be introduced, she submits the Crown has established on a balance of probabilities that the evidence should be admitted.

Defence counsel argues that the highly prejudicial nature of the evidence, coupled with the questionable evidentiary basis and the actual use he says the Crown wants to make of the evidence, weighs against its admission.

He argues that there are other ways for the complainant to discuss family relationships and to discuss time lines without referencing the discreditable acts. [ 20 ] Given that this is a trial without a jury, I am satisfied that any concerns related to moral prejudice are limited and can be addressed through a careful evaluation of the evidence in light of the purpose for which it is being introduced. Crown counsel has acknowledged that details from the complainant that overemphasizes the youth allegations may risk an argument that the evidence exceeds its stated purpose.

While it is clear that the complainant must be allowed to provide an uninterrupted narrative, Crown counsel must also bear in mind the purpose of the evidence, and thereby its scope, when examining the complainant in chief. [ 21 ] So, too, it is with respect to the evidence offered to establish time frames for the complainant. The actual activity, which is arguably discreditable, is actually of little importance in and of itself. What is important is that it has the potential to allow the complainant to establish a time frame for other events, including those which form the basis of the charges before the Court.

What is particularly important in this regard is that the accused has placed the Crown on notice that he may be calling alibi evidence. For that reason, establishing time lines may well be very important for the Crown. On balance, I am satisfied that the complainant should be afforded the opportunity to reference events which may assist in that regard. Conclusion [ 22 ] I am satisfied that the complainant can testify as to the events which underlie the youth allegations and that she can give evidence respecting the smoking of marijuana and the viewing of pornographic photos and videos.

It bears repeating that the evidence sought to be introduced is contested, is prejudicial to the accused, and cannot be introduced simply to discredit his character. At the end of the day, it will be assessed solely for the limited purpose for which it is being tendered. “Original signed by” MARY KATE HARVIE, P.J.