R. v. C.J., 2011 NSCA 77

NOVA SCOTIA COURT OF APPEAL Citation: R. v. C.J. , 2011 NSCA 77 Date: 20110907 Docket: CAC 331605 Registry: Halifax Between: C. J. Appellant v. Her Majesty the Queen Respondent Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code Judge: The Honourable Justice Joel E. Fichaud Appeal Heard: June 15, 2011, in Halifax, Nova Scotia Subject: Section 675 (1) (

a) of the Criminal Code

Summary: C.J. was convicted of sexual interference and invitation to sexual touching under ss. 151 and 152 of the Criminal Code . The Crown’s witnesses introduced evidence that C.J. had, on previous occasions, watched and recorded pornography and engaged in telephone sex. The judge’s decision cited the evidence of C.J.’s past use of pornography and phone sex to assist his finding that C.J. was untruthful. The verdict turned on credibility. C.J. appealed his convictions. Issue: Did the judge’s use of the evidence respecting C.J.’s prior use of televised pornography and phone sex violate the character rule?

Result: The Court of Appeal allowed the appeal, overturned the convictions and ordered a new trial, to be instituted at the Crown’s discretion. The phone sex evidence was unconnected to the issues in C.J.’s prosecution, should have been inadmissible, and the judge erred by using that evidence to assist his reasoning that led to C.J.’s conviction. The evidence respecting televised pornography had some probative value for the issues at the trial, but the judge erred by not applying the test to weigh that probative value against the possible prejudicial effect.

The errors were not curable under s. 686(1)(b)(iii) of the Criminal Code .

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 21 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. C.J. , 2011 NSCA 77 Date: 20110907 Docket: CAC 331605 Registry: Halifax Between: C.J. Appellant v. Her Majesty the Queen Respondent

Restriction on publication: Pursuant to s. 486.4 of the Criminal Code Judges: Fichaud, Beveridge and Farrar, JJ.A. Appeal Heard: June 15, 2011, in Halifax, Nova Scotia Held: Appeal allowed, conviction and conditional stay overturned, and a new trial before a different judge is ordered, should the Crown in its discretion so wish, per reasons for judgment of Fichaud, J.A., Beveridge and Farrar, JJ.A. concurring Counsel: Roger Burrill, for the appellant James A. Gumpert, Q.C. and Tanya Carter for the respondent 486.4

(1) Order restricting publication – sexual offences – Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with stepdaughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii). Reasons for judgment :

Reasons for judgment : [ 1 ] Mr. C.J. was charged with sexual offences against the teenage daughter of his common law spouse. The Crown’s witnesses introduced evidence that C.J. had, on prior occasions, watched and recorded pornography and engaged in telephone sex. C.J. denied the assault, and the verdict turned on credibility. The judge’s decision cited the evidence of C.J.’s past use of pornography and phone sex to assist his finding that C.J. was untruthful, and convicted C.J..

The issues are whether the judge’s use of that evidence violated the character rule and, if so, whether the conviction may be upheld under the curative proviso in s. 686(1)(b)(iii) of the Criminal Code . Background [ 2 ] Mr. C.J. was charged with sexual assault, invitation to sexual touching, sexual exploitation of a young person and sexual interference with a young person, contrary to ss. 271(1)(a), 152, 153(1)(

a) and 151, respectively, of the Criminal Code . On May 3, 2010, he was tried in Provincial Court, before Judge Marc Chisholm. On May 28, 2010, the judge gave an oral decision convicting C.J.. [ 3 ] There was some ambiguity in the judge’s reasons as to which charges resulted in convictions. But the matter was clarified at the sentencing and by the Warrant of Committal. C.J. was convicted of sexual interference under s. 151 and invitation to sexual touching under s. 152 . The charge under s. 153 was dismissed, and the charge under s. 271 stayed. [ 4 ] I will summarize the testimony and the judge’s findings.

The Crown’s witnesses were the complainant J.W., aged sixteen at trial, J.W.’s mother K.W., and two police officers. C.J. was the lone defence witness. [ 5 ] J.W. testified as follows. She lived in a home with her mother and brother and, during the period in question, with her mother’s boyfriend C.J.. One day in January 2009, J.W. was feeling unwell at school, and returned home at lunchtime. Her mother was at work, and C.J. was in the living room on the couch watching television. J.W. sat on the loveseat in the living room. C.J. switched to the adult channel, and started to watch pornography.

He began to masturbate. He asked J.W. to come over. J.W. said she “was just frozen with fear” but “I went over there to help him out”. C.J. used J.W.’s hand to masturbate, rubbed her thigh and ejaculated. J.W. was fifteen years old at the time. [ 6 ] Counsel for the Crown then asked J.W. about other occasions when C.J. watched pornography: Q. And how often did that happen, did you see him watching porn? A. A couple times throughout the day and then at night. Q. How often at night? A. A lot. And this went throughout the summer, too. Q. So, where would you be when Mr. [J.] would be watching pornography? A.

I’d be downstairs, on the computer. Q. And what time of day, roughly, usually, would that be, would that take place? A. Well, it’d be before 4 o’clock, because my mom’s work, my mom works, so probably around 2 or 3.

Q. So, I take it in the summer you were home; you weren’t working, yourself, or anything? A. No. Q. What about at nighttime, did Mr. ... A. At nighttime, he’d probably watch it from 1 until 2, when my mom’s asleep. Q. Okay. And how do you know that? A. Because I was up those hours of the night. [ 7 ] On her direct examination, K.W. was questioned by the Crown about C.J.’s habit of watching pornographic movies on television. She said “He watched them, if not every night, always”. She continued: A ... If it wasn’t the TV, it was the computer. If it wasn’t the computer, it was the phone.

It was something that had to do with porn. Q. And what about the phone, what do you mean by that? A. Well, when we lived in [address omitted], I don’t know the exact date, he put the phone in his name, and he racked up a sixteen hundred dollar phone bill from calling a sex line and talking, whatever he does, whatever he did. Q. And how long did that go on for? A. I don’t know, because he never done none of this when I was home. I just seen the bill. And that’s what it was from, him calling these sex lines. Q. And how did you deal with that situation? A. I was upset. Like, I ...

I think that stuff’s sick, and, I mean, on many occasions, I mean, [C.] has admitted to me not so much that he hasn’t got, I guess, a problem with porn, infatuation with porn, because that’s ... to me, it’s just not right. [ 8 ] The defence did not object to this testimony from J.W. or K.W.. [ 9 ] On his direct examination, C.J. denied the sexual assault: Q. Well, Mr. [J.], what do you ... what do you have to say about these allegations?

A. I have to say these allegations are bogus, inaccurate and not correct. He acknowledged watching pornography: Q. Did you ... Did you watch any pornography? A. Yes, I did, yeah. [ 10 ] C.J. was cross examined by the Crown on his practice of watching pornography on television on occasions other than the day in question, and his use of telephone sex and recorded pornography on the DVR: Q. And there was indication that you watched the porn very regularly, every night; is that true? A. No, that’s not true. Q. So, how often would you watch it? A. I watched porn every once in a while.

It wasn’t every night, that’s for sure. . . . Q. She also indicated that there were significant bills racked up on the phone sex lines in the past. A. There was one bill we had from [address omitted] that was a total of $1600. Now, it wasn’t all sex phone calls onto the bill, no. I mean, I think it was ... it added up to about, between $350 and $450 of sex lines on it. And I did participate and put them on that bill, yes, I did, but I wasn’t obsessive to the point of $1600. ... Q. There's been some evidence here before the court that you watched pornography regularly. Do you have an addiction to pornography? A.

No, I do not. . . . Q. Did you record any pornographic shows on a DVR? A. I can’t say that I haven’t. I mean, to my recollection, the odd time, yeah. Q. And the purpose of recording a show at night would be so you could watch it during the day, would that be right?

A. Well, whenever I’m freed up to watch it, yeah. Q. All right. And so you did watch pornographic videos during the day as well, sometimes? A. Alone. Any time I watched pornographic videos, I was alone, [ 11 ] The defence did not object to these questions. [ 12 ] By an oral decision dated May 28, 2010, the judge convicted C.J. of sexual interference and invitation to sexual touching under ss. 151 and 152 .

As to the evidence of C.J.’s watching of televised pornography on other occasions and participation in phone sex, the judge said: As to Mr. [J]’s interest in pornography, the Court has heard evidence from [J.W.]’s mother, [K.W.], that there was a phone bill with about 800 or so dollars, most of which was calls to the 9-1-1 telephone porn system. As a result of receiving that phone bill and talking to Mr. [J.] about it, she cut off access, so that in the future he would not be able to call that number and be able to access that service.

Mr. [J.] testified and said, yes, he did make calls but certainly not as many as she suggested, that a significant portion of that bill was from previous unpaid bills that were overdue and so they accumulated, so only some portion of the $800 or so was actually his calling of the telephone porn system. In relation to TV porn, the Crown witnesses suggested that Mr. [J.] used to watch it all the time, regular occasion, many, many nights, sometimes during the day.

Mr. [J.] said, yes, he would watch it sometimes, late at night, occasionally, and my notes indicate that he did acknowledge that he taped occasionally the night porn so that he could watch it at another time when he was available to watch it. That evidence suggested to me that Mr. [J.]’s involvement in porn, whether by telephone or by TV, was significantly more than he was admitting to, that he was attempting to minimize, to downplay his watching of porn, his interest in pornography.

That was something that caused me a negative impression of Mr. [J.]’s truthfulness with respect to that issue. [ 13 ] The judge did not discuss, either during the trial or in his decision (1) whether the evidence of C.J.’s watching of televised pornography on other occasions, or his participation in phone sex was inadmissible character evidence or (2) whether the probative value of that evidence outweighed its prejudicial effect under the balancing test for propensity evidence. [ 14 ] The verdict depended on credibility.

The judge’s decision concluded: I do not believe Mr. [J.]’s denial that the event described in such detail by [J.W.] didn’t happen. And his evidence does not raise any reasonable doubt in my mind that the event did happen exactly as [J.W.] described it happening. I accept the evidence of [J.W.] that the event happened as she described. I reject the evidence of Mr. [J.] that it didn’t happen.

I am satisfied on all of the evidence that no reasonable doubt has been raised, that the charges against Mr. [J.] have been proven beyond any reasonable doubt, and, for that reason, I find Mr. [J.] to have been proven guilty of the charges. [ 15 ] C.J. appeals his convictions to the Court of Appeal under s. 675(1)(

a) of the Code . Issues

[16] C.J. submits that the trial judge (1) erred by considering inadmissible character evidence, (2) improperly shifted the onus ofproof respecting C.J.’s alibi, (3) misapprehended the evidence which caused a miscarriage of justice and (4) recorded convictions onboth ss. 151 and 152 counts, contrary to Kienapple v. R., (SCC), [1975] 1 S.C.R. 729.

The parties reconstituted thefourth ground based on a discussion at the appeal hearing that resolved earlier ambiguity about the number of counts for which C.J. hadbeen convicted. [17] The Crown submits that, if the judge’s use of evidence contravened the character rule, then the Court should apply thecurative proviso in s. 686(1)(b)(iii) of the Code. [18] As I will explain, in my view the appeal should be allowed and a new trial ordered on the first ground, for improper use ofcharacter evidence that is not curable under the proviso. It will be unnecessary to discuss C.J.’s second, third and fourth grounds.

Standard of Review [19] Questions of law are reviewed for correctness. Factual issues are reviewed for palpable and overriding error. The judge’sapplication of the law to the facts is reviewed as a question of fact unless there is an extricable legal error. R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507, para 81; R. v. Buhay, 2003 SCC 30 , [2003] 1 S.C.R. 631, para 45; R. v. Mann, 2004SCC 52 , [2004] 3 S.C.R. 59; R. v. Couture, 2007 SCC 28 , [2007] 2 S.C.R. 517. Whether the judge misapplied therules governing admissibility and use of character evidence is an issue of law.

The parties agree that the issue of character evidence isreviewable for correctness. Character Evidence - The Principles [20] In R. v. Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908, Justice Binnie for the Court discussed the principles for theadmissibility and use in a sexual assault trial of discreditable similar fact evidence of the accused’s prior sexual conduct. Justice Binnie described the exclusionary rule: 31. The respondent is clearly correct in saying that evidence of misconduct beyond what is alleged in the indictment which does no morethan blacken his character is inadmissible.

Nobody is charged with having a “general” disposition or propensity for theft or violence orwhatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow aninference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guiltyof the offence. . . . 33. Subsequently, and most famously, the general exclusionary rule was laid down by Lord Herschell L.C. Makin v.

Attorney-Generalfor New South Wales, [1894] A.C. 57 (P.C.), in these terms, at p. 65: It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal actsother than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from hiscriminal conduct or character to have committed the offence for which he is being tried. 34.

The court spoke there of “criminal acts”, but this has been broadened to include any proffered “similar facts” of a discreditablenature (Robertson, supra, [ (SCC), [1987] 1 S.C.R. 918], at p. 941; B.(L.), supra, [R. v. B.(L.), (ONCA), 102 O.A.C. 104 (O.C.A.) ], at pp. 45-46), a category which includes the conduct alleged by the ex-wife in this case. . . .

36. The exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial. See Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190; R. v. Morin, (SCC), [1988] 2 S.C.R. 345; R. v. B.(C.R.), (SCC), [1990] 1 S.C.R. 717; R. v. Arp, (SCC), [1998] 3 S.C.R. 339. [21] Justice Binnie then summarized the authorities governing the exception to the exclusionary rule: 49. The present rule was succinctly formulated by McIntyre J. in Sweitzer v.

The Queen, (SCC), [1982] 1 S.C.R. 949, atp. 953: The general principle described by Lord Herschell may and should be applied in all cases where similar fact evidence is tendered and itsadmissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admissionwhatever the purpose of its admission. 50.

The rule received more extended and comprehensive treatment by McLachlin J. in B.(C.R.), supra, itself. ... : ... [E]vidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule,inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value ofthe proposed evidence outweighs its prejudicial effect. 51. The Court thus affirmed that evidence classified as “disposition” or “propensity” evidence is, exceptionally, admissible.

McLachlinJ, continued at p. 735: In a case such as the present, where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant actcommitted by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit itsreception.

The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and theoffences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end ofdetermining whether, in the context of the case before him, the probative value of the evidence outweighs its potential prejudice andjustifies reception. Justice Binnie (paras 53-54) also adopted passages from Justice Cory’s reasons in R. v.

Arp, (SCC), [1998] 3 S.C.R.339, paras 41-2, 50, 65: ...evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule,inadmissible.

Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value ofthe proposed evidence outweighs its prejudicial effect. [Arp, para 41, quoting B.(C.R.)] It can be seen that in considering whether similar fact evidence should be admitted the basic and fundamental question that must bedetermined is whether the probative value of the evidence outweighs its prejudicial effect. [Arp, para 42] In

summary, in considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determine whetherthe probative value of the evidence outweighs its prejudicial effect. [Arp, para 50] The issue in every case is whether the probative value of the evidence outweighs its prejudicial effect. [Arp, para 65] [Justice Binnie’s underlining]

[ 22 ] In Handy , Justice Binnie then summarized the balancing test for the exception: 55. Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies reception. [ 23 ] Justice Binnie then set out directions for the trial judge’s application of the balancing test. These included: 69. ...

McIntyre J., in Sweiltzer , supra , emphasized that whether or not probative value exceeds prejudicial effect can only be determined in light of the purpose for which the evidence is proffered (p. 953). ... 70. An indication of the importance of identifying “the issue in question” is that the trial judge is required to instruct the jury that they may use the evidence in relation to that issue and not otherwise. 71. This Court has frequently gone out of its way to emphasize that the general disposition of the accused does not qualify as “an issue in question”.

As stated, the similar fact evidence may be admissible if, but only if , it goes beyond showing general propensity (moral prejudice) and is more probative than prejudicial in relation to an issue in the crime now charged. ... . . . 73. The requirement to identify the material issue “in question” (i.e., the purpose for which the similar fact evidence is proffered) does not detract from the probative value/prejudice balance, but is in fact essential to it. Probative value cannot be assessed in the abstract.

The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact. 74. The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded: . . . 81.

The decided cases suggest the need to pay close attention to similarities in character, proximity in time and frequency of occurrence. Wigmore put it this way: Since it is the improbability of a like result being repeated by mere chance that carried probative weight, the essence of this probative effect is the likeness of the instance. ... . . . 82. The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. ... [Justice Binnie’s underlining]

[24] More recently, in R. v. Mahalingan, 2008 SCC 63 , [2008] 3 S.C.R. 316, at para 159, Justice Charron (dissenting onanother issue, but speaking also for the majority on this point - see para 1, per McLachlin, C.J.C.) confirmed Handy’s exposition of theexclusionary rule. Justice Charron then said: 160. It is clear that the rule extends not only to criminal acts, but to “similar acts” of a discreditable nature: Handy, at para 34. . . . 163.

The similar fact evidence rule therefore precludes the Crown from adducing evidence that the accused engaged in criminal ordiscreditable conduct beyond what is alleged in the indictment, unless it is established on a balance of probabilities that the probativevalue of the evidence in relation to an issue in the case outweighs its potential prejudicial effect. ... [25] To apply these principles, I will discuss two questions.

(1) Did the judge’s admission and use of the testimony of prioroccasions when C.J, watched televised pornography, recorded televised pornography and used telephone sex violate the generalexclusionary rule against propensity or character evidence? If so, (2) was the evidence and its use within the exception under theprinciples in Handy? The Exclusionary Rule in C.J.’s Case [26] On the first question - the scope of the rule - the Crown submits that only evidence disclosing illegal activity is “badcharacter” evidence, citing R. v. Erez, 2010 ONCA 776.

The Crown’s factum says that “the evidence led regarding the Appellantwatching pornographic movies on television and participating in a phone sex line did not disclose any illegal activities by the Appellant”,and therefore escapes the exclusionary rule. [27] In Erez the appellant appealed his conviction of possession of cocaine for the purpose of trafficking. The Crown led evidencethat Mr. Erez earned income from gambling. The Ontario Court of Appeal said: 4.

The appellant argues that these activities and in particular the gambling reflect badly on the appellant’s character and amount to whatis in essence bad character evidence. We do not accept this submission. We do not agree this evidence can amount to bad characterevidence. The trial judge ruled that the witness could not, however, testify about any illegal gambling activities in which she claims theappellant was involved. In our view, the ruling was correct and fair. [28] The Crown also cites an

article by John L. Gibson, Criminal Law: Evidence, Practice and Procedure, looseleaf (Toronto:Caswell, 1988-) that states: “The dividing line between evidence which reflects badly on a person, and bad character evidence, whichtriggers legal rules of exclusion appears to be criminality.” Gibson cites Erez, and no other authority. [29] I disagree that the dividing line is criminality. I have quoted (above para 20) Justice Binnie’s statement for the Court inHandy, para 34: The court spoke there of “criminal acts”, but this has been broadened to include any proffered “similar facts” of a discreditable nature ...

Justice Binnie cited authority from the Supreme Court of Canada and Ontario Court of Appeal. I have also quoted earlier (para 24)Justice Charron’s statement in Mahalingan, para 160: It is clear that the rule extends not only to criminal acts, but to “similar acts” of a discreditable nature: Handy, at para 34.

To similar effect: R. v. Robertson, (SCC), [1987] 1 S.C.R. 918, para 46; Morris v. The Queen, (SCC),[1983] 2 S.C.R. 190; Dhawan v. College of Physicians and Surgeons of Nova Scotia, 1998 NSCA 83 , [1998] N.S.J. No. 170(C.A.), para 59. [30] Neither Erez, nor the Gibson article, nor the Crown’s factum in this case cited these authorities on this point. I take Erez asfinding that the gambling evidence in that case was not discreditable.

I do not read the Ontario Court of Appeal’s ruling as a deviationfrom Handy’s definition of the rule. [31] Clearly C.J.’s prior use of televised pornography and phone sex is discreditable. This engages the rule. The Crown’sevidence would be inadmissible unless it fits within an exception. The Exception - Balance of Probative Value and Prejudicial Effect in C.J.’s Case [32] The second question in C.J.’s appeal is the application of the exception to the exclusionary rule - involving the balance ofprobative value against prejudicial effect.

At this question’s threshold is an important distinction, in C.J.’s case, between his prior use oftelevised pornography and his prior engagement in phone sex. [33] In Handy (paras 73-74, quoted above para 23) Justice Binnie said that the probative value for the balance must relate to “itsability to advance or refute a live issue pending before the trier of fact”, and “[i]t is therefore incumbent on the Crown to identify the liveissue in the trial to which the evidence of disposition is said to relate”. [34] The Crown’s factum (para 48) identifies the following live issues at the trial: 48.

The following issues were front and centre at the trial: 1. The availability of the pornographic channel on television in the victim’s house; 2. Who watched the pornography channel in the home; 3. Whether pornographic movies were recorded in the home on a digital video recorder, and later watched and if so, by whom. These items relate to televised pornography, not phone sex. The Crown’s factum then proceeds (paras 49-52) to elaborate on C.J.’spractice of watching televised pornography and discuss whether J.W. watched televised pornography. Then the factum submits: 53.

It is submitted that even if the evidence of watching pornographic movies and participating in phone sex lines is held to be evidenceof bad character, it was directly relevant to the case. [emphasis added] Nowhere in the passage did the Crown identify a “live issue at the trial” to which the evidence of phone sex related. The phone sexevidence just glides quietly in the slipstream of the evidence about televised pornography.

[ 35 ] The Crown’s theory was that C.J. committed a sexual assault while he watched televised pornography. Clearly the availability of televised pornography was a live issue, to which the evidence of his past use or recording of televised pornography would be relevant. I agree with the Crown that this evidence would have some probative value, and this triggers the balancing test of probative value versus prejudicial effect. [ 36 ] Telephone sex was not involved in the alleged sexual assault on the day in question in January 2009.

The most that can be said is that the phone sex evidence showed C.J. to have a lascivious sexual appetite. During her direct examination by the Crown about C.J.’s phone sex, K.W. was asked “And how did you deal with that situation?”, to which K.W. replied “I was upset. Like, I ... I think that stuff’s sick ....” (above para 7). The Crown’s closing submission referred to the evidence of C.J.’s prior use of televised pornography and phone sex, then said: ...and I think it would be typical of someone who committed this offence to say, yeah, I’ve done this type of thing but very much playing it down.

And I think that’s what speaks volumes. [ 37 ] The point of the exclusionary rule is that an accused be judged on the evidence for the event in the charge.

He is not to be convicted because evidence related to his prior “sick” conduct on “this type of thing” is “typical of someone who committed this offence”. [ 38 ] In Handy , Justice Binnie (paras 59-68 ) prefaced his remarks with the subtitle “Propensity Evidence by Any Other Name Is Still Propensity Evidence”, then added (para 71): “This Court has frequently gone out of its way to emphasize that the general disposition of the accused does not qualify as ‘an issue in question’.” In Handy , B.(C.R.) and Arp (above para 21 ), the Supreme Court of Canada made it clear that “evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible”. [ 39 ] In my respectful view, the evidence of C.J.’s prior engagement in phone sex had no relevance to a live issue at trial, other than the forbidden topic of C.J.’s propensity itself.

This evidence bore no probative value to be weighed in the balancing test for the exception to the exclusionary rule. The evidence should not have been introduced by the Crown. The defence should have objected. Once the evidence entered without objection, the judge should not have used that evidence in his analysis. By using this improper evidence in his reasoning that led to the convictions (above paras 12-14), the judge erred in law. [ 40 ] Next is the evidence of C.J.’s prior watching and recording of televised pornography.

As noted earlier, I accept that this evidence had some relevance to a live issue at the trial. So the evidence had some probative value that must be weighed against its potential prejudicial effect. [ 41 ] In Handy , Justice Binnie said (para 55, above para 22) the “onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies reception”. Justice Binnie outlined the process to be followed: 74. ...

It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded. . . . 81. The decided cases suggest the need to pay close attention to similarities in character, proximity in time and frequency of occurrence. . . .

82. The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. [ 42 ] No such process occurred here. At the trial the Crown identified no live issue to which a fact that may be inferred from the evidence would be relevant. So the defence had no opportunity to admit that fact at the heart of that live issue. The judge did not perform the functions that the balancing test called on him to perform.

At the trial there was no acknowledgement by the Crown, defence or judge that there even was a process to be followed before this evidence could be admitted. Neither did the judge’s decision acknowledge the process, or attempt to perform those functions that he was called upon to perform. Yet the judge’s decision used the problematic evidence in his reasoning that led to the convictions (above paras 12-14). [ 43 ] The Crown suggests that this Court should perform the balancing exercise and determine retroactively that the probative value of the prior incidents of televised pornography exceeded the prejudice.

I have two difficulties with the Crown’s suggestion. [ 44 ] First, as I have explained, there was an error in law in the judge’s use of the telephone sex evidence and, as I will discuss, that error is not cured by s. 686(1)(b)(iii). So there will be a new trial. At the new trial, if the Crown proffers the similar fact evidence of televised pornography, the judge will have to perform the balancing test for that evidence.

That judge should be free to perform what is properly a trial judge’s analysis at first instance, without advance fettering by the appeal court. [ 45 ] Second, as Justice Binnie said in Handy (para 74 ), once the Crown identifies the fact in the live issue to which the similar fact evidence pertains, the defence has the option of admitting that fact, in which case “the evidence is irrelevant and it must be excluded”. This option might have come into play in C.J.’s case.

After the Crown’s witnesses testified about C.J.’s prior use of televised pornography, on his direct examination C.J. admitted having watched pornography (above para 9). If the Crown tenders the same evidence at a new trial then: (

a) The Crown will have to identify the live issue for which the evidence has probative value. (

b) The judge will have to determine whether the point of the evidence is (

i) just “general disposition” in disguise or “propensity by another name”, in which case the evidence will be excluded, or (ii) whether the evidence is probative of a fact pertinent to a live issue, as the Crown suggests. (

c) If the evidence is probative of a fact relevant to the live issue, then the defence will have the option to admit that fact. (

d) If the defence does not make the admission, the judge would balance probative value against potential prejudice to determine whether the evidence is admissible. (

e) If the defence makes the admission, the similar fact evidence will be excluded. If the evidence is excluded in C.J.’s case, then the evidence would not be available to challenge C.J.’s credibility, the use for which the judge here employed the similar fact evidence. If the Court of Appeal simply performs the balancing exercise now, as the Crown suggests, then C.J.’s option to admit the fact and exclude the evidence will be lost in the finesse. [ 46 ] For those reasons, I decline to engage in a retrospective probative/prejudicial balance respecting the evidence of C.J.’s prior use of televised pornography.

That balance should have been performed prospectively before the evidence was admitted. As it happened, the evidence entered without the Crown having identified the relevant live issue, as was incumbent upon the Crown, and the defence made no objection. In those circumstances, the judge should not have used this improper evidence in his reasoning that led to the convictions. By using the improper evidence the judge, in my respectful view, erred in law.

Other Exceptions to the Exclusionary Rule [47] In R. v. G.(S.G.), (SCC), [1997] 2 S.C.R. 716, at para 63, Justice Cory said there were three exceptions tothe exclusionary rule for character evidence. The first - that “the evidence is relevant to an issue in the case” - involves the balancing ofprobative value and prejudicial effect, later discussed in Handy, that I have covered. Justice Cory’s second exception was “where theaccused puts her character in issue”. His third was “where the evidence is adduced incidentally to proper cross-examination of theaccused on her credibility”, citing Lucas v.

The Queen, (SCC), [1963] 1 C.C.C. 1 (S.C.C.) and R. v. Chambers, (SCC), [1990] 2 S.C.R. 1293. [48] The second and third exceptions do not apply to C.J.’s case. C.J. did not put his character in issue. The Crown introduced theevidence of C.J.’s prior use of televised pornography and phone sex in the Crown’s direct examination of Crown witnesses (above paras6-7).

Curative Proviso - s. 686(1)(b)(iii) [49] The Crown asks that any legal error in the admission or use of the similar fact evidence, related to either phone sex ortelevised pornography, be excused under s. 686(1)(b)(iii). [50] The proviso may excuse a legal error and save a conviction only where “there is no ‘reasonable possibility that the verdictwould have been different had the error ... not been made’ ”: R. v. Khan, 2001 SCC 86 , [2001] 3 S.C.R. 823, para 28, quotingR. v. Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 617. In R. v. Van, 2009 SCC 22 , [2009] 1 S.C.R. 716, JusticeLeBel said: 34. ...

The Crown bears the burden of showing the appellate court that the provision is applicable, and satisfying the court that theconviction should stand notwithstanding the error. To do so, it must establish that the error of law falls into one of two categories. First,that it is an error so harmless or minor that it could not have had any impact on the verdict. In the second category are serious errors thatwould otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that anyother verdict would have been impossible to obtain: Khan; R. v.

Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239. To the same effect: R. v. Charlebois, 2000 SCC 53 , [2000] 2 S.C.R. 674, paras 10-11; R. v. Jaw, 2009 SCC 42 ,[2009] 3 S.C.R. 26, para 42; R. v. Ellard, 2009 SCC 27 , [2009] 2 S.C.R. 19, para 40. I will return to this test shortly. [51] At the hearing in this Court, the Crown cited R. v. O’Brien, 2011 SCC 29. In O’Brien the Supreme Court of Canada recentlyconsidered the use of s. 686(1)(b)(iii) to save a robbery conviction despite the improper admission of propensity evidence that impugnedthe accused’s character. The only issue at trial was identification.

The trial judge’s written reasons for the conviction said that the judgerelied “entirely” on the DNA evidence to identify Mr. O’Brien, and did not mention the improper propensity evidence. The SupremeCourt held that the error of law respecting the improper propensity evidence was curable under s. 686(1)(b)(iii). Justice Abella for themajority said: 15 ... not only did the trial judge expressly state that he relied entirely on the DNA evidence to identify Mr. O’Brien, his detailed reasonsconfirm this exclusive reliance. This evokes the words of McLachlin J. in R. v.

Leaney, (SCC), [1989] 2 S.C.R. 393, atpp. 415-16, where she noted that when a trial judge expressly arrives at a conclusion on the critical issue “independently of theinadmissible evidence ... no unfairness can be said to arise, nor has there been a miscarriage of justice”.... [Justice Abella’s emphasis] [52] C.J.’s case is the inverse of O’Brien. In O’Brien, the critical fact was that the trial judge’s conviction decision expressly relied“entirely” on evidence other than the impugned propensity testimony.

Here the judge expressly relied on the improper propensityevidence to question C.J.’s “truthfulness”, then convicted C.J. because the judge rejected C.J.’s denial of the assault as not credible(above paras 12-14). Nothing in O’Brien supports the use of s. 686(1)(b)(iii) in C.J.’s case.

[53] The Crown then submits that the judge’s finding against C.J.’s credibility would have been the same without the improperpropensity evidence. Essentially, the Crown asks the Court of Appeal to back out evidence that the trial judge expressly used for afinding of credibility, then re-assess credibility with other evidence. [54] I respectfully disagree that s. 686(1)(b)(iii) allows the Court of Appeal to substitute a finding of credibility in this fashion. Atthe hearing in this Court, counsel for the Crown said that C.J.’s trial pivoted on credibility.

I have not seen C.J. on the witness stand,and I have no way to sense his credibility, or lack of it, with or without the propensity evidence. Many authorities stand for the principlethat s. 686(1)(b)(iii) does not invite the appellate panel to wade into the waters of truthfulness and “retry the case to assess the worth ofthe residual evidence after the improperly adduced evidence has been extracted from the record”: John v. The Queen, (SCC), [1985] 2 S.C.R. 476, pp. 481-2; R. v. S.(P.L.), (SCC), [1991] 1 S.C.R. 909, at paras 40, 45-8, per Sopinka J. forthe majority. To similar effect: R. v.

B. (F.F.), (SCC), [1993] 1 S.C.R. 697, at paras 40-41, 55-56, 61-62, per IacobucciJ. and Lamer, C.J.C.; R. v. Robinson, (SCC), [1996] 1 S.C.R. 683, para 71; R. v. Crosby, (SCC),[1995] 2 S.C.R. 912, at para 20; R. v. Saulnier, 2005 NSCA 54, para 41; R. v. West, 2003 NSCA 137, at paras 37-40; R. v. N.(R.K.)(1997), (ON CA), 32 O.R. (3d) 537 (C.A.), at paras 24-29, per McMurtry, C.J.O.. [55] I cannot say there is no reasonable possibility that the verdict would have been different had the error not been made.

Thetrial judge said CJ’s testimony relating to phone sex and prior use of televised pornography “caused me a negative impression of Mr.[J.]’s truthfulness”, then disbelieved C.J.’s denial of the assault. This is not “an error so harmless or minor that it could not have had anyimpact on the verdict”. Neither was the evidence against C.J. “so overwhelming that any other verdict would have been impossible”. Only two witnesses, R.W. and C.J., had personal knowledge of the key events.

Had the judge believed C.J., or been left with areasonable doubt from C.J.’s denial, another verdict would have been possible. [56] C.J.’s credibility is for a new trial judge to assess after a trial that has complied with the rules governing propensity evidence. Conclusion [57] I would allow the appeal, overturn the convictions and conditional stay and, should the Crown in its discretion so wish, ordera new trial before a different trial judge. Fichaud, J.A. Concurred: Beveridge, J.A. Farrar, J.A.