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Criminal - Jury Charge - Propensity Reasoning. R. v. B.B.
In R. v. B.B. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here regarding 'propensity reasoning' (similar fact) jury charge:[23] A jury charge need not be perfect. In R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at para. 21, the Supreme Court held that appellate courts must take a “functional approach” when reviewing jury instructions “by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole”.
[24] While the trial judge directed the jury not to engage in cross-count reasoning, he did not provide a limiting instruction against propensity reasoning with respect to the other charges and the uncharged behaviour recounted in the complainant’s testimony. This instruction should be given when circumstances warrant it; as Doherty J.A. explained in R. v. Chamot, 2012 ONCA 903, 296 C.C.C. (3d) 91, at para. 62, “when there is a real risk that evidence properly admitted for one purpose could be used by the jury for an improper purpose, the trial judge must caution against that misuse of the evidence”.
[25] However, as this court recently noted in R. v. Amin, 2024 ONCA 237, 435 C.C.C. (3d) 528, at para. 66, this general rule “is subject to a narrow exception: A warning is not required if the facts of the case negate any realistic possibility that the trier of fact will use bad act evidence improperly”. In addition, in R. v. M.R.S., 2020 ONCA 667, 396 C.C.C. (3d) 172, at para. 101, Paciocco J.A. observed that: “Occasionally, courts have rejected appeals based on the failure of a trial judge to give a propensity direction where such failure did not prejudice the accused, but, instead, spared the accused from the reciprocal need for the judge to recite the damaging permissible uses of the similar fact evidence”.
[26] As I will explain, the facts of this case negate the likelihood that the jury would have used the bad character evidence improperly. The absence of a propensity instruction therefore did not prejudice the appellant.
There was little risk that the jury would misuse the evidence and engage in propensity reasoning
[27] The circumstances of this case are distinguishable from those in cases such as Amin and M.R.S., where a more robust limiting instruction was necessary. In M.R.S., for example, the risk of propensity reasoning was high. The case involved multiple complainants. The character evidence showed the appellant “to be a wealthy drug dealer and pimp” who not only brutally abused the complainant but left her alone for years with their children, before moving in and “repeatedly beating and traumatizing [the children] while holding [the complainant] captive”: at para. 95. This evidence was highly prejudicial. In the present appeal, the bad character evidence was considerably less serious than the evidence in respect of the charges that were laid. Moreover, unlike in M.R.S., there was only one complainant, and the relevant time period was weeks, not years. The evidence in this case could plausibly – and permissibly – have shown a relationship that had badly soured and provided a motive for the complainant to exaggerate or lie.
[28] Furthermore, neither the Crown nor the defence invited the jury to use the evidence for an improper purpose. Had the trial judge presented a limiting instruction he would have risked confusing the jury, introducing them to impermissible reasoning that they might not have considered without that instruction: R. v. Beausoleil, 2011 ONCA, 471, 283 O.A.C. 44, at para. 20. Faced with a similar situation in R. v. Fast, 2022 ABCA 33, the Alberta Court of Appeal noted, at para. 47, that “a discussion of permissible uses of the evidence … could have made the jury aware of a form of impermissible reasoning that might not have occurred to them otherwise. In other words, the jury might be told about such impermissible reasoning and then told to avoid it”. This, the court held, would not benefit the defence.
[29] Likewise, in R. v. A.G. (2004), 2004 CanLII 36065 (ON CA), 190 C.C.C. (3d) 508 (Ont. C.A.), the defence used bad character evidence to tarnish the complainant’s credibility, and this court held, at para. 8, that “[a]ny direction by the trial judge that explained both the proper and improper uses of the propensity reasoning would have operated against the appellant’s interests. There was, therefore, no error and no prejudice to the appellant”.
[30] It is important that much of the bad character evidence admitted in this case arose from the same time period and context as the offences charged. As this court explained in R. v. Joles, 2022 ONCA 681, at para. 10, “the risk of general bad character inferences is apt to be far greater where the Crown leads evidence of the accused’s behaviour on other occasions than it is where such evidence unfolds as part of the story itself … [J]urors are more likely to struggle to understand why extrinsic misconduct evidence is being presented and to thereby engage in prohibited lines of reasoning” where the link between the evidence and the charged conduct is less clear. Here, the charged offences, and the majority of the behaviour comprising the bad character evidence, occurred during the period between October 20 and November 7, 2017. And much of the impugned bad character conduct occurred immediately before an assault, in the hours between the assaults, or as a trigger to an assault.
[31] In my view, there was minimal risk that the jury would engage in impermissible reasoning, particularly given that neither party asked them to do so. On the contrary, there was here, as in A.G., a substantial risk that a limiting instruction would have prejudiced the appellant’s position at trial: see also R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321, at paras. 113-14; R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, at para. 35; and R. v. N.T., 2011 ONCA 411, at para. 22.
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A limiting instruction could have hindered defence counsel’s ability to rely on the evidence for a proper purpose
[32] As mentioned, in his closing address, defence counsel pointed to the bad character evidence in support of his position that the complainant had fabricated her allegations. In so doing, he invited the jury to use the evidence for a proper purpose: to undermine the complainant’s credibility.
[33] There were other permissible inferences available from the appellant’s discreditable conduct. For instance, this evidence went some distance in revealing the nature of the relationship between the complainant and the appellant: R. v. R.O., 2015 ONCA 814, 333 C.C.C. (3d) 367, at para. 16; R. v. K.K., 2007 ONCA 203, 222 O.A.C. 99, at para. 8. It was also capable of providing context for the evidence that was directly relevant to the charges: R. v. M.P., 2018 ONCA 608, 373 C.C.C. (3d) 61, at para. 99.
[34] I also note that the jury did receive limiting instructions for other “purely extraneous evidence” (i.e., the appellant’s criminal record and the time he had spent incarcerated). And, unlike this “purely extraneous evidence”, the impugned bad character evidence underlined the appellant’s controlling and abusive behaviour and was relevant to the narrative, the credibility of both the complainant and the appellant, and, as mentioned, the dynamic of the relationship. While ably and forcefully arguing that a limiting instruction was required, even duty counsel acknowledged that “we’re talking about evidence that was part of the narrative that had to go in to describe the environment”.
The bad character evidence was relatively mild compared to the offences charged
[35] The severity of the charges and their underlying allegations, as compared to the appellant’s discreditable conduct, weighs against the need for a limiting instruction: M.P., at para. 100; Joles, at para. 8. In other words, while the uncharged conduct is serious, it is not nearly as serious as the allegations underlying the charged offences. For example, some of the uncharged bad conduct involves the appellant monitoring the complainant’s social media accounts and removing the bathroom door. This is undoubtedly serious and extremely controlling behaviour, but it would not engender the same level of moral outrage as the subject matter of the charges, such as the insertion of an aerosol can or a steak knife into the complainant’s vagina, or the incident on the rooftop of Home Hardware.
[36] This court engaged in similar analysis in Beausoleil, finding that the trial judge had not erred by failing to provide a limiting instruction. In Beausoleil, the bad conduct evidence at issue – welfare fraud, curfew breaches, alcohol prohibition breaches, and kicking a police officer while intoxicated – “was essentially trivial by comparison to the offence” charged: Beausoleil, at para. 24. Here, as in Beausoleil, the mild nature of the impugned conduct relative to the allegations underlying the offences charged significantly diminished any risk that the jury would rely on propensity reasoning to convict.
Defence counsel did not object at trial
[37] Trial counsel did not object to the failure to provide a limiting instruction, either during the pre-charge conference or after the final charge was delivered. While this is not determinative, it is a factor that can be considered when determining whether an error was committed: M.P., at para. 108; R. v. Smith, 2021 ONCA 310, at paras. 13, 18; R. v. Cook, 2013 ONCA 467, at para 26. It offers a strong indication that defence counsel did not view the lack of a propensity instruction as something that compromised the fairness of their client’s trial.
[38] Put another way, the defence decision not to a seek a limiting instruction may be taken as an indication that defence counsel felt that such a caution would not have been in his client’s interests: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 38. As the Alberta Court of Appeal explained in Fast, at para. 26:Failure to object or seek limiting instructions or warning may also be considered in the broader context of an overall defence strategy which might be injured by the trial judge intruding with an unrequested limiting instruction or warning, especially if such limiting instruction or warning could include complex balancing guidance as to how such evidence might be permissibly used as well as how it might be impermissibly used. [39] This is an apt description of the dynamic at play here, and ties nicely into my earlier discussion about defence counsel’s reliance on the impugned evidence. In the circumstances of this case, and given the nature of the defence, the fact that counsel did not expressly seek a limiting instruction against propensity reasoning might well have been tactical. This will not always be the case, but where the defence refers to, and in some way relies on, bad character evidence, it would be dangerous for a trial judge to provide an unsolicited instruction about the uses that could be made of that evidence.
CONCLUSION
[40] The failure to provide a limiting instruction, and my decision not to interfere with the outcome in light of that failure, fits comfortably with the guidance provided in both M.R.S. and Beausoleil, and is not a reversible error.
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