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Evidence - Prejudice (2). R. v. Chizanga
In R. v. Chizanga (Ont CA, 2024) the Ontario Court of Appeal dismissed a murder appeal on all the advanced arguments.
Here the court considers different types of evidentiary prejudice:(iii) Identifying the “prejudicial effect” of evidence of Prior Discreditable Conduct
[27] Assuming the evidence has sufficient probative value to potentially warrant its admission, its prejudicial effect must then be assessed. “Prejudicial effect” is not simply an increase in the likelihood of conviction since (presumably) any evidence that the Crown seeks to adduce is intended to increase the likelihood that the Crown will prove its case. Rather, “prejudicial effect” in this context involves particular forms of prejudice, namely, “moral prejudice” or “reasoning prejudice”, either of which give rise to a risk of an unfocussed trial and a wrongful conviction”: Handy, at para. 139 (emphasis in original).
[28] Moral prejudice arises when the trier of fact infers guilt on the basis of the “bad character” of the accused and convicts them not because the Crown has necessarily proven its case but merely because the accused has committed bad acts in the past. The risk of such impermissible inferences overwhelming the reasoning of the trier of fact is particularly acute where the Prior Discreditable Conduct evidence paints the accused as a person with a general disposition to commit crimes: Handy, at para. 85. The risk of impermissible reasoning is also heightened where the Prior Discreditable Conduct evidence is inflammatory or repugnant, thereby potentially leading the trier of fact to convict the accused merely to punish them for such Prior Discreditable Conduct.
[29] “Reasoning prejudice” arises where the Prior Discreditable Conduct evidence distracts the trier of fact from the real issues in the case: Handy, at para. 100. Such prejudice could occur where, as discussed above, the Prior Discreditable Conduct evidence is disputed or unclear. In these circumstances, the trier of fact may improperly focus their attention on the sufficiency of proof of the Prior Discreditable Conduct, rather than on whether the Crown has proven the particular allegations in the indictment before the court beyond a reasonable doubt.
(iv) Weighing “probative value” versus “prejudicial effect”
[30] Finally, the probative value of the Prior Discreditable Conduct evidence must be weighed against any likely moral or reasoning prejudice that would result if the evidence were admitted, to determine whether its probative value outweighs its prejudicial effect. There is no simple formula or algorithm that can be employed to make this determination, nor can it be reduced to a mere accounting exercise. Rather, it involves an assessment of the degree to which the Prior Discreditable Conduct evidence will either properly assist or inappropriately prejudice the trier of fact in their findings, considered in light of the positions of the parties and circumstances of the case as a whole and through the lens of logic and human experience: R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, at paras. 172-73, leave to appeal denied, [2018] S.C.C.A. No. 50. . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal dismissed a first-degree murder appeal - where a judge, his wife and a neighbour were killed.
Here the court finds an error in admitting physical evidence where it's prejudice outweighed it's probative value (the court later applies the curative proviso to excuse the error):[3] For the reasons that follow, I find that the trial judge erred by admitting into evidence the contents of a bag seized from the appellant’s residence without analyzing the probative value and prejudicial effect of each item in the bag individually. This was essential given the risk that the jury would misuse this evidence by concluding the appellant was the type of person who would commit the Garon murders. ....
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(1) Admissibility of Items Seized from the Appellant’s Home
[20] The appellant argues that the trial judge erred by admitting evidence suggesting the appellant was planning other murders over the period since the Garon murders, or, in the alternative, erred by failing to give a sufficiently robust limiting instruction.
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[27] Even when evidence has a permissible use, if it also incidentally exposes the general bad character of an accused – which it did here – a trial judge must balance the probative value of the evidence against its prejudicial effect: R. v. G.(S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at paras. 65, 69; R. v. O.R., 2015 ONCA 814, 333 C.C.C. (3d) 367, at paras. 15, 24-26.
[28] And even if a proper analysis were undertaken, resulting in the leather bag and all of its contents being admitted, it was incumbent on the trial judge to provide a sufficiently pointed limiting instruction in the final charge; one that described the evidence to which the instruction applied and clearly delineated the permissible and impermissible uses of that evidence: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 691, 693-694. Such an instruction would necessarily direct the jury to not: (1) punish the accused for past misconduct, or (2) reason from general disposition to guilt.
[29] The trial judge’s instruction did not achieve these two objectives and therefore did not go far enough to abate the risks present here.
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