R. v. Johnson (K.), (2010) 267 O.A.C. 201 (CA)

• Judge: Rosenberg, Rouleau and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 04, 2010
• Jurisdiction: Ontario
• Citations: (2010), 267 O.A.C. 201 (CA);2010 ONCA 646

R. v. Johnson (K.) (2010), 267 O.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.008

Her Majesty The Queen (respondent) v. Kristin Johnson (appellant)

(C49743; 2010 ONCA 646)

Indexed As: R. v. Johnson (K.)

Ontario Court of Appeal

Rosenberg, Rouleau and Epstein, JJ.A.

October 4, 2010.

Summary:

The accused was convicted of second degree murder by a jury and sentenced to life imprisonment without eligibility for parole for 14 years. The accused appealed against conviction, submitting that the trial judge erred in admitting evidence of two prior incidents as similar fact evidence.

The Ontario Court of Appeal allowed the appeal, set aside the conviction, and ordered a new trial. The trial judge should not have admitted the two prior incidents as similar fact evidence. The evidence had limited probative value and was highly prejudicial to the accused, as it invited the jury to infer guilt on the basis of propensity. The three incidents did not disclose a pattern of behaviour and contained no distinctive features unifying the three incidents.

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Criminal Law - Topic 5214.4 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - [See Criminal Law - Topic 5214.4 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 5214.4 ].

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevancy - Similar acts - General (incl. procedure) - The Ontario Court of Appeal stated that "three basic principles of evidence - relevance, balancing probative and prejudicial impact, and the prohibition against bad character evidence - underpin the modern doctrine of 'similar fact evidence'. The similar fact evidence rule is really an exception to the exclusionary rule related to bad character evidence. It permits the introduction of evidence demonstrating uncharged misconduct on the part of the accused where, due to its particular characteristics, its probative value exceeds the prejudicial effect normally associated with bad character evidence." - See paragraph 88.

Criminal Law - Topic 5214.4

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove propensity - The accused, Shipman and the female victim were all intoxicated - The accused drove to a remote area - Both the accused and Shipman had sex with the victim - The victim's body was found one month later - Shipman pleaded guilty to being an accessory after the fact to murder, after telling the police that the accused killed her and that he helped the accused hide the body - The accused was charged with first degree murder - At trial, the Crown called evidence respecting two prior incidents to establish that the accused regularly drove around the same area while intoxicated and that, when he did so, he acted violently towards female passengers - The first incident involved wanting to beat up a female passenger - The second involved assaulting a female passenger who was fighting with another female passenger (forcefully removing her from his vehicle and threatening to leave her there if she did not stop fighting) - Neither incident involved sex - The trial judge admitted the two incidents as similar fact evidence and the jury convicted the accused of second degree murder - The Ontario Court of Appeal allowed the accused's appeal and ordered a new trial - The incidents involved bad character evidence with limited probative value - The evidence was highly prejudicial in that the jury was asked to infer guilt based on the accused being a bad person who was violent to women when intoxicated - The three incidents disclosed no pattern of similar behaviour and had no distinctive features unifying them - The Crown's theory was based on a killing during a sexual assault, yet the two prior incidents had no sexual context - The judge erred in admitting the two prior incidents as similar fact evidence - See paragraphs 105 to 141.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - The Ontario Court of Appeal stated that "evidence of the accused's bad character cannot be adduced simply to show that the accused is the sort of person likely to commit the offence charged. While this evidence might arguably be relevant, it is inherently prejudicial when used in this fashion. ... One particularly prejudicial form of bad character evidence is evidence that establishes past criminal conduct on the part of the accused that does not form the basis of the charges before the court. This type of past misconduct evidence has been identified as raising two forms of prejudice that will generally outweigh any probative value that might exist in the evidence itself. They are commonly referred to as moral prejudice and reasoning prejudice. ... Moral prejudice refers to the possibility that a jury, presented with evidence of uncharged misconduct, might choose to convict an accused person for the crimes charged, not because they are satisfied beyond a reasonable doubt that the charges have been proven, but as substitute punishment for the uncharged misconduct. ... Reasoning prejudice, on the other hand, refers to the distracting nature of past misconduct evidence. Rather than focussing the trial on the question of whether the charges have been proven by the Crown, past misconduct evidence risks distracting a jury with evidence of other criminal conduct" - See paragraphs 83 to 86.

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - [See Criminal Law - Topic 5214.4 ].

Evidence - Topic 1257

Relevant facts - Relevance and materiality - Similar acts - To prove course of conduct - [See Criminal Law - Topic 5214.4 ].

Cases Noticed:

R. v. Edgar (D.J.) (2010), 269 O.A.C. 171; 2010 ONCA 529, refd to. [para. 71, footnote 1].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 73].

R. v. Henderson (R.R.) (1999), 120 O.A.C. 99; 44 O.R.(3d) 628 (C.A.), refd to. [para. 79].

R. v. Giroux (L.) (2006), 210 O.A.C. 50; 207 C.C.C.(3d) 512 (C.A.), refd to. [para. 79].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 81].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 81].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 82].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 82].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 83].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201, refd to. [para. 84].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 85].

R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550; 37 A.R. 294, refd to. [para. 91].

R. v. Perrier (J.L.), [2004] 3 S.C.R. 228; 325 N.R. 206; 203 B.C.A.C. 4; 332 W.A.C. 4, refd to. [para. 92].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 97].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 97].

R. v. J.G.C. (2006), 207 O.A.C. 216; 204 C.C.C.(3d) 449 (C.A.), refd to. [para. 97].

R. v. Barbour, [1938] S.C.R. 465, refd to. [para. 99].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 100].

R. v. Moo (K.S.) (2009), 253 O.A.C. 106; 247 C.C.C.(3d) 109 (C.A.), refd to. [para. 101].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 120].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 134].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2003 Looseleaf Update), para. 10:40.10.10 [para. 90].

Ontario, Information and Privacy Commissioner, PO-2826 - Excessive Background Checks Conducted on Prospective Jurors: A Special Investigation Report (2009), generally [para. 25].

Counsel:

Delmar Doucette and Adriel Weaver, for the appellant;

Alex Alvaro, for the respondent.

This appeal was heard on June 16-17, 2010, before Rosenberg, Rouleau and Epstein, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Rouleau, J.A., and released on October 4, 2010.