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Evidence - Prior Offence Conduct. R. v. Owusu-Ansah
In R. v. Owusu-Ansah (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from a conviction for 2nd degree murder. Here the court dismisses a challenge against 'prior discreditable conduct' evidence:(2) The admission of prior discreditable conduct evidence
[45] As a pre-trial matter, the Crown sought to introduce prior discreditable conduct evidence about the appellant, namely the police video statements of Ms. Takyi reporting an alleged domestic assault by the appellant on December 3, 2012 and the uttering of a threat on December 4, 2012 and the testimony of Angelina Kyei-Bofah regarding the same event.
[46] In a pre-trial ruling, the trial judgment admitted the statements and testimony. He reasoned:I am satisfied that the deceased Bridget Takyi’s two KGB statements made six weeks prior to the accused having killed her are admissible as ante-mortem statements.
The first statement tends to establish an assault causing bodily harm, and the second statement tends to establish a threat to kill both on the part of the accused Owusu-Ansah.
The two KGB statements are admissible on the issues of motive to kill, animus, and the deceased’s state of mind. That is, fear of the accused.
It is also admissible to establish context and narrative, particularly to show the stormy and terminated relationship between the deceased and the accused. I am satisfied that the KGB statements are trustworthy in the sense that the deceased Takyi had no motive to fabricate the KGB statements, particularly the alleged assault.
The witness Angelina Kyei-Bofah corroborates much of the first KGB statement; the photographs also demonstrate that the deceased indeed suffered bodily harm on the same day as the first KGB statement was made. [47] The appellant submits that the trial judge erred in making this ruling, principally on the basis that he failed to consider the prejudicial nature of the evidence, namely, that it painted him as a violent misogynist.
[48] I am not persuaded by this submission. This court has repeatedly held that evidence of prior violence against a victim, especially in a domestic context, is admissible on the questions of identity, animus, motive, the accused’s state of mind, the deceased’s fear of the accused, and the background or narrative of the relationship between the accused and the deceased: R. v. Cudjoe, 2009 ONCA 543, at paras. 63-69; R. v. Candir, 2009 ONCA 915, at paras. 51-52, leave to appeal refused, [2012] S.C.C.A. No. 8; and R. v. Moo, 2009 ONCA 645, at paras. 96-101, leave to appeal refused, [2010] S.C.C.A No. 152. Absent legal error, a trial judge’s ruling on this issue is entitled to deference: R. v. Thibeault, 2018 ONCA 876, at paras. 11-12.
[49] In his ruling, the trial judge clearly pointed to the proposed evidence as germane to Ms. Takyi’s fear of the appellant and the broader narrative and context of their relationship. In my view, the probative value of the evidence outweighed, by far, its prejudicial effect. The fact that the appellant killed Ms. Takyi was not in dispute; the evidence therefore could not be misused but rather used by the jury to support an inference that he possessed the state of mind necessary to commit murder.
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