R. v. W.B., (2000) 134 O.A.C. 1 (CA)

• Judge: McMurtry, C.J.O., Doherty and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 13, 2000
• Jurisdiction: Ontario
• Citations: (2000), 134 O.A.C. 1 (CA);2000 CanLII 5751 (ON CA);2000 CanLII 5751 (NS CA);49 OR (3d) 321;145 CCC (3d) 449;34 CR (5th) 197;[2000] CarswellOnt 2113;[2000] OJ No 2184 (QL);134 OAC 1;46 WCB (2d) 462

R. v. W.B. (2000), 134 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. JN.032

Her Majesty The Queen (respondent) v. W.B. (appellant)

(C22060)

Indexed As: R. v. W.B.

Ontario Court of Appeal

McMurtry, C.J.O., Doherty and Rosenberg, JJ.A.

June 13, 2000.

Summary:

In 1993, the accused was charged with sexual assaults involving twin sisters. All of the alleged assaults occurred in the late 1970's when the complainants were young teenagers. The accused was convicted of various counts of indecent assault and rape. He was sentenced to four years' imprison­ment. The accused appealed his convictions and sentence. While the appeal was pending, the accused was convicted of one count of indecent assault against another complainant, whose allegations covered the same time period. He was sentenced to 21 months' concurrent. The accused appealed his convic­tions and sentence. All appeals were heard together.

The Ontario Court of Appeal dismissed the appeals.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - [See both Criminal Law - Topic 691 ].

Criminal Law - Topic 675

Sexual offences, public morals and disor­derly conduct - Sexual offences - Rape or sexual assault - Evidence and proof - The accused was convicted of various counts of sexual assaults against twin sisters - He appealed arguing, inter alia, that the trial judge erred in admitting evidence of the accused's sexual abuse of the sisters at places and times not encompassed within the indictment - The Ontario Court of Appeal rejected this ground of appeal - The accused had also relied on evidence during this time period to support his position that his relationship with the sisters was entirely inconsistent with any abuse - The accused could not choose to put such facts in issue and then argue that evidence which was probative on that issue should be excluded because it involved allegations of misconduct by the accused - "The rules of evidence do not permit the accused (or the Crown) to present a one-sided version of the events to the trier of fact. ... This jury could not hope to arrive at the truth regarding the nature of the relationship between the complainants and the appellant if the complainants' descrip­tion of that relationship was censored so as to completely distort their version of the nature of that relationship" - See para­graphs 82 to 90.

Criminal Law - Topic 688

Sexual offences, public morals and disor­derly conduct - Sexual offences - Evidence - Previous or contemporaneous sexual assaults - [See Criminal Law - Topic 675 ].

Criminal Law - Topic 691

Sexual offences, public morals and disor­derly conduct - Sexual offences - Evidence - Production of complainant's records (incl. medical and counselling) - The ac­cused was convicted of various counts of sexual assaults against twin sisters - He appealed arguing, inter alia, that the trial judge erred in refusing to order production of the sisters' therapeutic records - The Ontario Court of Appeal reviewed the production of records rules set out by the Supreme Court of Canada in R. v. O'Con­nor and rejected this argument - Particular­ly, the accused failed to establish that the therapeutic records were relevant - Simply because the complainant(s) had spoken to a counsellor or doctor about the alleged abuse or matters touching on it did not make a record of the conversations "likely relevant to a fact in issue or to a complain­ant's credibility" - See paragraphs 46 to 81.

Criminal Law - Topic 691

Sexual offences, public morals and disor­derly conduct - Sexual offences - Evidence - Production of complainant's records (incl. medical and counselling) - The On­tario Court of Appeal noted that "where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant's credibility, those records will pass the likely relevance threshold only if there is some added information not already available to the defence or have some potential impeachment value. To suggest that all statements made by a complainant are likely relevant is to forget the distinction drawn by the majority in O'Connor, between relevance for the pur­poses of determining the Crown's dis­closure obligation and relevance for the purposes of determining when confidential records in the possession of third parties should be produced to a judge" - See paragraph 72.

Criminal Law - Topic 4391

Procedure - Charge or directions - Jury or judge alone - Redirection or further direc­tion - The accused was convicted of vari­ous counts of sexual assaults against twin sisters - He appealed arguing, inter alia, that the trial judge's supplementary instruc­tion resulted in a miscarriage of justice - The Ontario Court of Appeal rejected this argument - In his supplementary reasons the trial judge attempted to amplify on his initial instructions and made it abundantly clear that his supplementary instructions should be taken as part of his overall insertions and had no greater or lesser importance than his initial instructions - There was no error - See paragraphs 132 to 137.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See both Criminal Law - Topic 691 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admis­sibility - Evidence of disposition or pro­pensity of accused - The Ontario Court of Appeal stated that propensity reasoning involved two inferences - "First, one infers from conduct on occasions other than the occasion in issue that a person has a cer­tain disposition (state of mind). Second, one infers from the existence of that dis­position that a person acted in a certain way on the occasion in issue. ... Assuming the evidence can reasonably support both inferences, there is nothing irrational or illogical in using propensity reasoning to infer that an accused committed the act alleged. Viewed in this way, the evidence of the accused's discreditable conduct is a form of circumstantial evidence and meets the legal relevance criterion" - Nonetheless, the court further noted that despite its relevance, evidence depending upon pro­pensity reasoning for its admissibility was usually excluded because its probative value is outweighed by its prejudicial effect - That is, "the risk that the jury would be led astray by evidence of discreditable conduct usually overcomes the probative force of that evidence where the probative force rested entirely on propensity reasoning" - See paragraphs 97 and 98.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admis­sibility - Evidence of disposition or pro­pensity of accused - In discussing pro­pensity reasoning, the Ontario Court of Appeal stated that the crucial issue to be addressed when determining whether dis­creditable conduct evidence should be admitted on the basis of propensity reason­ing was as follows: "Evidence which tends to show no more than a general disposition must be distinguished from evidence which demonstrates a disposition to do the very thing alleged in the indictment. If the evidence of the discreditable conduct is such that it shows a strong disposition to do the very act alleged in the very cir­cumstances alleged, then the evidence has a 'real connection' to the very issue to be decided - did the accused commit the act. ... The probative potential of propensity reasoning will be highest where the dis­creditable conduct is temporally connected to the allegations in the indictment and involves repeated acts of the same kind with the same complainants as those al­leged in the indictment." - See paragraph 106.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Ontario Court of Appeal canvassed the issues and authorities relating to evi­dence of discreditable conduct by an ac­cused - The court noted that it was now well established that such evidence was admissible if its probative value to a fact in issue outweighed its potential prejudicial effect - See paragraphs 90 to 114.

Criminal Law - Topic 5214.4

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove pro­pensity - [See both Criminal Law - Topic 5204.3 ].

Criminal Law - Topic 5366

Evidence and witnesses - Documents and reports - Psychiatric or counselling records - [See both Criminal Law - Topic 691 ].

Criminal Law - Topic 5380

Evidence - Witnesses - Documents and reports - Medical and counselling records of witness - [See both Criminal Law - Topic 691 ].

Cases Noticed:

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97; 14 Alta. L.R.(3d) 1; 25 C.R.(4th) 137, refd to. [para. 46, foot­note 4].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1; 29 W.C.B.(2d) 152, refd to. [para. 47].

R. v. O'Connor (H.P.) (1994), 43 B.C.A.C. 70; 69 W.A.C. 70; 90 C.C.C.(3d) 257 (C.A.), refd to. [para. 48].

R. v. Mills (B.J.) (1999), 248 N.R. 101; 139 C.C.C.(3d) 321, refd to. [para. 74].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 166 D.L.R.(4th) 296; 129 C.C.C.(3d) 323, refd to. [para. 90].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), refd to. [para. 90].

R. v. Watson (K.S.) (1996), 92 O.A.C. 131; 108 C.C.C.(3d) 310 (C.A.), refd to. [para. 97].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321; 50 C.C.C.(3d) 142, refd to. [para. 99].

R. v. D.S.F. (1999), 118 O.A.C. 272; 132 C.C.C.(3d) 97 (C.A.), refd to. [para. 103].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81: 55 C.C.C.(3d) 1; 76 C.R.(3d) 1; [1990] 3 W.W.R. 385; 73 Alta. L.R.(2d) 1, refd to. [para. 104].

R. v. B.M. (1998), 115 O.A.C. 117; 130 C.C.C.(3d) 353 (C.A.), refd to. [para. 113].

R. v. H.P.P. (1996), 113 Man.R.(2d) 271; 131 W.A.C. 271; 112 C.C.C.(3d) 140 (C.A.), refd to. [para. 120].

Kribbs v. R., [1960] S.C.R. 400, refd to. [para. 140].

R. v. Boyce (1975), 23 C.C.C.(2d) 16 (Ont. C.A.), refd to. [para. 141].

R. v. Cuerrier (H.G.), [1998] 2 S.C.R. 371; 229 N.R. 279; 111 B.C.A.C. 1; 181 W.A.C. 1, refd to. [para. 143].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134; 13 C.R.(4th) 257, refd to. [para. 145].

R. v. Endicott, [1993] 3 S.C.R. 155; 156 N.R. 321; 141 A.R. 353; 46 W.A.C. 353; 12 Alta. L.R.(3d) 1; 83 C.C.C.(3d) 462; 23 C.R.(4th) 357, refd to. [para. 151, footnote 12].

R. v. A.R. (1994), 92 Man.R.(2d) 183; 161 W.A.C. 183; 88 C.C.C.(3d) 184 (C.A.), refd to. [para. 151, footnote 12].

R. v. W.W.H. (1998), 158 Nfld. & P.E.I.R. 14; 490 A.P.R. 14 (P.E.I.C.A.), refd to. [para. 151, footnote 12].

R. v. Timm, [1981] 2 S.C.R. 315; 37 N.R. 204; 29 A.R. 509; 59 C.C.C.(2d) 396, refd to. [para. 153, footnote 13].

R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1; 77 C.C.C.(3d) 402 (C.A.), refd to. [para. 155].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 278.3(4) [para. 73].

Authors and Works Noticed:

Delisle, R., Similar Facts: Here We Go Again (1999), 20 C.R.(5th) 38, pp. 41 [paras. 106, 107]; 42 [para. 107].

Lempert, R., and Saltzburg, S., A Modern Approach to Evidence (1982), pp. 219 [para. 100]; 226, 227, 229, 230 [para. 103].

Maric, V., Similar Fact Evidence: Pre­ferring B.(L.) to Arp (1999), 23 C.R.(5th) 57, generally [para. 107].

McCormick, Charles Tilford, Handbook on the Law of Evidence (5th Ed.), pp. 665, 666 [para. 103]; 658 [para. 100].

McWilliams, Peter K., Canadian Criminal Evidence, para. 37:20530 [para. 120].

Counsel:

Keith Wright, for the appellant;

Robert Kelly, for the respondent.

This appeal was heard on November 25 to 26, 1999, with additional written submissions received on January 31, 2000, before McMurtry, C.J.O., Doherty and Rosenberg, JJ.A., of the Ontario Court of Appeal.

The following judgment was delivered by Doherty, J.A., and released on June 13, 2000.