R. v. N.K., 2022 NSSC 38

SUPREME COURT OF Nova Scotia Citation: R. v. N.K. , 2022 NSSC 38 Date: 20220207 Docket: Halifax , No. 505484 Registry: Halifax Between: Her Majesty the Queen v. N.K. CROWN APPLICATION ON PROPENSITY EVIDENCE Restriction on Publication: By court order made under subsection 486.4 of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner. Judge: The Honourable Justice Joshua Arnold Heard: January 6, 2022, in Halifax, Nova Scotia Counsel: Sarah Kirby, for the Provincial Crown Ian Joyce and Thomas Morehouse, for N.K. Order restricting publication - sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall

(

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. Overview [ 1 ] This is an application by the Crown to introduce propensity evidence at N.K.’s judge-alone trial scheduled for March 2022 regarding an alleged series of sexual assaults and choking on T.O. in 2017 and 2018. [ 2 ] He had pled guilty in Provincial Court on February 26, 2020, to a series of non-sexual assaults committed against T.O. during the same time frame as the alleged sexual assaults charged in this proceeding. His guilty plea was based on an Agreed Statement of Facts and he received an absolute discharge.

The Crown has applied to enter that Agreed Statement of Facts as an exhibit and to elicit viva voce evidence from T.O. about the non-sexual assaults at the sexual assault trial, to provide context to T.O.’s testimony. [1] Mr. K. consents to the proposed viva voce evidence about the non-sexual assaults being elicited from T.O. but objects to the Agreed Statement of Facts being admitted as an exhibit. [2] March 21, 2022, was the first day scheduled for the five-day trial. On that date the Crown called no evidence and the matter was dismissed for want of prosecution.

In keeping with s.278.9(1)(c), I held a hearing on March 24, 2022, to determine whether this decision should be published. Ms. Kirby for the Crown, Mr. Morehouse for N.K. and Ms. Kwan for T.O., all agreed that the decision should be published, but that the names of all of the parties must be anonymized in this specific case in order to protect the identity of the complainant.

Considering the interests of justice in ensuring the public is aware of judicial decisions and to ensure judicial comity, I agree that the decision should be published, subject to anonymization of the parties in order to protect the privacy rights of the complainant. Facts [ 3 ] Mr. K. and T.O. were in an on-again, off-again relationship between December 2017 and April 2019. [ 4 ] On May 9, 2019, T.O. gave a statement to the police alleging that Mr. K. physically assaulted her.

There was no mention in that statement of any sexual component to the alleged assaults. [ 5 ] On December 27, 2019, T.O. contacted the police and told them that Mr. K. had sexually assaulted her during the same time- frame as the physical assaults. [ 6 ] On January 9, 2020, T.O. gave a video-recorded statement to the police in which she alleged that Mr. K. sexually assaulted her and choked her during the same time-frame as the physical assaults.

According to that statement, T.O. gave her May 9 statement following some sort of mental health episode that occurred while she was in Greece on vacation and her medication

schedule was interrupted. She said: MS. O. : And I won’t accept that. But I was - - I was tired and I - - I was sad. So I said goodbye. I would then be going to Greece for days. Um, in Greece I got into hysterics. I have medication for borderline. Um, they need to be taken at a certain time, if they’re not it messes up my whole cycle. So while I was in Greece I feared he was seeing somebody else, and not in the fear of, he’s seeing somebody else but what about me, more so somebody’s in danger, and I can’t have it on my conscience if she’s dead. So this pushed me even further.

When I got back I was calling the cops. CST. ELSON : Okay. So you - - so you called the police to report the physical aspects but not the sexual assaults? MS. O. : At the time I think I, like, intended to report the sexual assaults as well. But then I was sitting there, um, with the officer and I was writing out the paper. There was already so much physical assault. CST. ELSON : Um-hmm. MS. O. : And I - - I was worse off then than I was now with it, in the - - my memory is very, very jumbled with it. Um, in the beginning it was especially with the physicals as well.

It is very hard to pinpoint when it happened exactly. And I don’t know why my memory is doing that. [ 7 ] When T.O. spoke with the police on December 27, she told them that she was having trouble remembering some details of the allegations. According to notes detailed by the interviewing officer in the General Occurrence Hardcopy : O. told me she was having some trouble remembering the details of what had occurred and had considered reporting these when she made earlier reports about different matters with K. however she was not comfortable at the time.

She told me that there were more than these two incidents, but could not remember all the details of them. [ 8 ] During her video-recorded statement of January 9, T.O. said her memory was mixed up: CST. ELSON : Yeah, take a breath. Um, if you need water or anything, let me know. Um, so just tell me, um, everything that happened. MS. O. : Okay. Um, I - - I’m trying to, like - - my memory is very, like, mixed up around it.

CST. ELSON : Um – hmm. MS. O. : And I know that’s really bad going in, um, because it needs to be very organized and concise, which of course makes sense. Um, so it’s not going to be that. [ 9 ] As noted above, during that same January 9 statement, T.O. reiterated that her memory was very jumbled regarding this issue. She said: MS. O. : At the time I think I, like, intended to report the sexual assaults as well. But then I was sitting there, um, with the officer and I was writing out the paper. There was already so much physical assault. CST. ELSON : Um-hmm. MS.

O. : And I - - I was worse off then than I was now with it, in the - - my memory is very, very jumbled with it. Um, in the beginning it was especially with the physicals as well. It is very hard to pinpoint when it happened exactly. And I don’t know why my memory is doing that. [ 10 ] In describing one of the alleged sexual assaults, T.O. also told the police: MS. O. : Before and after is - - is really foggy. [ 11 ] Mr. K. was originally charged with the non-sexual assaults and on February 26, 2020 , he plead guilty in the Domestic Violence Court to two counts of assault and one count of uttering threats.

The Agreed Statement of Facts, presented to the court with Mr. K.’s consent, states: The Agreed Statement of Facts read: Count 1 – Assault In late October or November 2018, late at night, N. and T. were walking home from a friend’s house. N. was angry about what had happened at the friend’s house and began yelling at T. He then grabbed her arm and shoved her to the ground. As he yelled, he grabbed T.’s jacket by the collar to pull her closer to him, then grabbed her neck and punched her in the chest. Count 2 – Assault In January 2019, N. went to T.’s dorm, upset because T. had gone through his phone.

T. was in her bed. N. stood over T. and demanded that she apologize as he video-recorded her with his phone. When she refused to do this, he grabbed her shoulder, resulting in bruises. He pulled her from her bed and onto the floor, yelling her as he did so. N. grabbed T.’s phone, and in turn she grabbed his phone, telling him if he returned hers she would return his. N. lunged onto T., and sat with his knees on her chest, choking her with one hand and attempting to grab his phone with the other. This resulted in bruises on T.’s chest.

Count 3 – Threat In late October or November 2018, after the assault in count #1, N. and T. were in N.’s room, lying in his bed with their backs to each other. N. turned to T. and told her she would never see her family again. He said she would be dead by morning and muttered to himself about a patch of woods where he would dump her body. He then muttered that the site was no good for disposal as the police would be able to connect him to the murder that way. He said he would go to the kitchen while T. slept, grab a knife and slit her throat. Ultimately, Mr.

K. was granted an absolute discharge in relation to each charge. [ 12 ] As noted above, Mr. K. received a an absolute discharge in relation to each count. Positions of the parties [ 13 ] The Crown says the Agreed Statement of Facts and viva voce evidence from T.O. are both necessary and admissible because: • The defence will cross-examine T.O. on her May 2019 statement alleging the non-sexual assaults; • Together, they will provide narrative and context to the rest of T.O.’s testimony; • T.O. is expected to use specific non-sexual assaults as temporal landmarks during her relationship with Mr.

K. in detailing the alleged sexual assaults; [ 14 ] Mr. K. agrees with the Crown that evidence of the non-sexual assaults will be the subject of defence cross-examination and that such evidence is relevant to the timing of the allegations, in particular due to the absence of sexual assault complaints in T.O.’s May 9, 2019, statement and the memory deficits she references in her January 9, 2020, statement. [ 15 ] Mr.

K. objects to the Agreed Statement of Facts being tendered as a stand-alone exhibit, arguing that the relevance of the evidence is exclusively to provide context to T.O.’s testimony, and therefore the fact that he committed the non-sexual assaults is irrelevant. Analysis

[16] I agree with the parties that evidence going to the accused’s alleged bad character is presumptively inadmissible, but can beadmitted if it is relevant to another issue unrelated to the accused’s bad character, and if the Crown can prove on a balance ofprobabilities that its probative value outweighs its prejudicial effect (see R. v. Z.W.C., 2021 ONCA 116, at para. 96; R. v. Borden¸ 2017NSCA 45; R. v. Pearce; R. v. Howe, 2021 NSCA 37; R. v. Lamirande, 2002 MBCA 41, at paras. 69-87; R. v. Sand, 2003 MBQB 76, at paras. 9-14 and 27-30; R. v. L.W.G., (1996), 1996 ABCA 261 , 49 C.R. (4th) 178 (Alta.

C.A.), at paras. 15-16; R. v. Ma (1978), (ON CA), 44 C.C.C. (2d) 511 (Ont. C.A.), at p. 519; R. v. Cardinal (1998), 1998 ABCA 50 , 168 WAC 30(Alta. C.A.), at para. 6. In R. v. J.H., 2020 ONCA 165, Watt J.A. said for the court: [55] Despite the absence of any such rule or list of exceptions, evidence of uncharged disreputable conduct has often been received inprosecutions alleging assaultive behaviour in a domestic relationship, including charges of sexual assault.

Among the issues upon whichthis evidence has been admitted are these: i. as part of the narrative of relevant events; ii. to provide context for other evidence; iii. to facilitate understanding of the nature of the relationship between the principals; iv. to demonstrate motive or animus on the part of the accused for committing the offences; v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and vi. to rebut a claim of fabrication. [17] I agree with the parties that, at this stage, the probative value of viva voce evidence from T.O. limited to the non-sexual assaultsoutweighs its prejudicial effect, and is admissible for the limited purpose outlined by the Crown.

T.O.’s testimony may require temporallandmarks regarding the sexual assault allegations, and according to both parties, her testimony regarding the non-sexual assaults mayprovide that evidence. Additionally, Mr. K. intends to cross-examine her on the statement she gave to the police regarding the non-sexual assaults and why they did not include the sexual assault allegations. [18] I do not agree that the Agreed Statement of Facts is admissible as a stand-alone exhibit on this trial. It is not relevant toanything. T.O. is expected to testify.

The Agreed Statement of Facts goes either to oath-help T.O., or it goes directly and exclusively toMr. K.’s alleged propensity for violence and/or his bad character. Either option is prohibited and the Agreed Statement of Facts is notnecessary. [19] If I am wrong on those points, the Crown has simply not proven on a balance of probabilities that the probative value of theAgreed Statement of Facts outweighs the prejudicial effect of its admission. Conclusion [20] The Crown can elicit limited viva voce testimony from T.O. on direct examination regarding the non-sexual assaults.

TheCrown cannot tender the Agreed Statement of Facts as a stand-alone exhibit. Arnold, J.