Provincial Court

YOUTH JUSTICE COURT OF NOVA SCOTIA

Citation: R. v. U.C. D., 2016 NSPC 15

Date: 2016-03-03

Docket:  2888213, 2888214

Registry: Pictou

Between:

Her Majesty the Queen

v.

U.C.D.

DECISION REGARDING ADMISSIBILITY OF EVIDENCE OF EXTRINSIC FACTS

By the Court:

[1]             This is a proceeding involving a young person under the Youth Criminal Justice Act. 

[2]             Evidence heard in a criminal trial should be focussed on the elements of the particular offence that has been charged.  The foundational forensic concepts inherent in this are materiality and relevance.  A court might be invited on occasion to wander outside these ordinarily well defined boundaries in order to afford a better understanding of the human and circumstantial elements implicated in an alleged offence.  When so bidden, triers ought to tread with caution.  Forays into areas such as “narrative”, “similar fact”, “similar acts”,  and “extrinsic misconduct” can result in inefficient, unproductive, and legally erroneous inquiries.  This is why evidence that doesn’t have to do with the charges before the court is presumptively inadmissible, and why there is a persuasive burden on the party seeking to admit it—generally the prosecution—that must be discharged in order for it to be received in evidence.  I prefer to use the descriptor “extrinsic facts”; that’s because the court is being called upon to rule upon the admissibility of evidence that is truly external to the alleged conduct of the accused upon which criminal liability is proposed to be based.[1]

[3]             In this case, U.C.D. is charged with sexually assaulting M.H.  The prosecution alleges that this occurred back in 2002 and 2003 when U.C.D. was fifteen to sixteen years old.  The prosecution seeks to present at trial evidence that it was away back in 1996 and 1997, when U.C.D. was nine to ten years old—and so would not have been liable criminally[2]—that the abuse started.    This was followed by a hiatus of five years until 2002.  The prosecution informs me that evidence of this earlier, criminally immune conduct should be admitted as it will:

. . . provide necessary narrative and background and assist the court in assessing the credibility of the complainant in relation to his response to the incidents and his delay in reporting the offence.

Furthermore, it is the Crown’s respectful submission that evidence of prior misconduct in this case is demonstrative of the accused’s animus and attitude toward the complainant.  It shows a past pattern of abusive and controlling behaviour by the accused toward the complainant and is suggestive of a strong disposition to do the very act alleged in the charges before the court.  If accepted, the evidence could support a finding that the accused was disposed to act in a sexually violent manner toward the complainant and that he had that disposition on the occasion of the alleged offence.[3]

[4]             Defence counsel objects to the admission of this extrinsic-facts evidence.

[5]             For the reasons that follow, I find that the prosecution has not discharged the persuasive burden of establishing that the probative value of the proffered evidence would outweigh its prejudicial effect upon the trial; accordingly, I rule the evidence inadmissible at the instance of the prosecution.  This ruling is accompanied by a very clear caveat.  Here are my reasons.

First of all, the procedure followed by the prosecution was problematic.

Failure to give notice

[6]             U.C.D. was arraigned on 22 July 2015.  The prosecution elected to proceed indictably.  U.C.D. entered not-guilty pleas on 19 August 2015, and a trial was scheduled for 29 September 2015.  On 29 September, the court granted a joint request for an adjournment to allow further discussions between the prosecution and defence; the trial was rescheduled to be heard on 6 October 2015.  On 6 October 2015, the trial commenced with the prosecution informing the court for the first time of its intention to call evidence of previous acts of sexual misconduct.  The exact phraseology of the prosecution was that he expected M.H. to “testify to previous acts of sexual misconduct . . . that are not the subject of the offences before the court”.  The prosecutor informed me that he wished to deal with the issue before getting too far into the trial, as he expected that admissibility of the extrinsic-facts evidence would be “more contentious”.

[7]             Indeed.

[8]             While the application for the admission of this evidence was properly the subject of the trial, to be heard at the start of the trial, as comprehended in sub-para. 2.5(2)(b)(i) of the Nova Scotia Provincial Court Rules, the prosecution had not filed with the court notice of its application—which, in fact, must arrive at court least seven days before the day of trial—as would be required by sub-ss. 2.1(1)-(2) and sub-s. 3(1) of the Rules.  The remedy which I granted for rule non-compliance was to adjourn the trial and require the submitting of briefs by counsel.  The brief for the prosecution was to be filed by 7 December 2015;  defence, by 18 January 2016.  The trial was adjourned to 18 February 2016.  While regrettable (especially given that this was a youth-justice matter which must be heard expeditiously[4]), the delay was unavoidable, as the court required fulsome submissions from counsel on a highly controversial point.

R. v. Taweel

[9]             On 26 November 2015, the Nova Scotia Court of Appeal rendered its decision in R. v. Taweel.[5]  The opinion of Saunders JA was concurred in by the other two members of the panel.  To say that this decision clarifies the law in relation to the admission of extrinsic-facts evidence would be an understatement.  It is an analytical tour de force which examines earlier authorities and presents trial courts with an entirely lucid algorithm for the admissibility of evidence that is, indeed, not the subject of the offences before the court.

[10]        The court received the prosecution’s brief on 11 December 2015.  It did not refer to Taweel, which had been decided only two weeks before.  This is understandable: cases do not always come to the immediate attention of counsel, and Mr. McNeill has a solid reputation for thorough preparation.  Current awareness does not require immediate awareness.

[11]        Defence counsel’s brief, filed 14 January 2016, relied very much on Taweel.  When the trial resumed on 18 February, I invited oral submissions from the prosecution regarding the impact of Taweel on the admissibility of the proposed extrinsic-facts evidence, as I felt that procedural fairness would require I do so.

[12]        The prosecutor’s view was that Taweel did not assist the defence, as the strict ratio of the case was not that the extrinsic-facts evidence relied upon by the trial judge was inadmissible, but that it was used improperly.

[13]        Strictly speaking, the prosecutor’s analysis is correct.[6]  However, Saunders JA made the following important point:

. . . before demonstrating the various ways in which the judge came to

misapply that evidence, I think it would be helpful and offer guidance to trial

judges in future cases if I were to explain why, in my view, this evidence ought not to have been admitted in the first place.[7]

[14]        In my view, it is clear that this wider analysis of the admissibility of extrinsic-facts evidence was intended by the Court of Appeal to offer guidance to trial courts; admissibility was a point that had been argued on appeal, and Saunders JA dealt with the issue extensively in his opinion.  Furthermore, Saunders JA based his opinion on a sound study of R. v. Handy,[8] which is, undoubtedly, the law of the land.  I accept his in-depth analysis as binding and authoritative.[9]

[15]        Following the criteria for admissibility outlined in Taweel, I find the following with respect to the law and the facts:

•                    Extrinsic-facts evidence is presumptively inadmissible;

•                    The burden of proving the admissibility of extrinsic-facts evidence rests with the party seeking to introduce it—in this case, the prosecution;

•                    The prosecution must satisfy the court that the likely probative value of the evidence would not outweigh its prejudicial effect;

•                    Admission of extrinsic-facts evidence gives rise to inherent prejudice, as the admission of it is asymmetrical; this is because U.C.D. cannot counter it with evidence of creditable extrinsic conduct;[10]

•                    Admission of extrinsic-facts evidence upon the ground, as advanced here by the prosecution, that it assists in assessing the credibility of  M.H. becomes an exercise in tautology or circular logic: the court should believe M.H.’s account of the criminal conduct, because the court believes the M.H.’s account of the extrinsic conduct; thus, I should believe M.H. because I believe M.H.;

•                    There is nothing in the submissions of the prosecution that would inform the court that the alleged criminal conduct of  U.C.D. was factually similar to the extrinsic conduct, which waters down considerably the assertion of the prosecution that the prior, extrinsic facts show that U.D.C. had a propensity or disposition to treat M.H. in a particular or distinctive way;

•                    The prosecution’s argument is diluted further given that there was a gap of five years between the occurrence of the extrinsic-facts actions of U.C.D. and time frame of the alleged offences; the lack of temporal proximity lessens the already weak argument of the prosecution that U.C.D. had a propensity to acts toward M.H. in a distinctive or particular way; in my view, a propensity would require some degree of temporal propinquity;

•                    Evidence that U.C.D. had threatened M.H. during the incidents which constitute the extrinsic facts is not probative of offence elements which the prosecution must prove to make out its case; the reason why a complainant waited to disclose an alleged crime is something not ordinarily examinable in the prosecution’s case in chief, as it would amount to the prosecution questioning the credibility of its own witness; it might become relevant, should defence counsel venture into the area, and I will deal with that point shortly.

[16]        Based on this analysis, I find that the admission of the proposed extrinsic-facts evidence would be of substantial prejudice, and would not be probative of anything material or relevant in this trial.  Ultimately, the prosecutor urged the court not to go along with the argument advanced by defence counsel—who has maintained nothing other than that I follow Taweel—as to do so would almost always prevent the prosecution from calling extrinsic-facts evidence.  That is not so much an argument as it is a complaint.  Taweel reinforces the law that extrinsic-facts evidence is presumptively inadmissible and that the party seeking to admit it must prove that its probative value would outweigh its prejudicial effect.  The prosecution has not met this standard of proof, and I rule the evidence inadmissible at the instance of the prosecution.

A word of caution

[17]        Now for the caveat.

[18]        Applications for the admissibility of extrinsic-facts evidence haven’t come before me very often.  My recollection is that, of the few I have heard, none has been granted.  However, in almost every one of those cases, the once-challenged evidence wound up getting put before the court.  How could such a thing happen, one might ask quite profitably.  This is because, as tricky for courts as the polemic admissibility of extrinsic-facts evidence might be, what is truly troublesome is the manufactured admissibility of it. 

[19]        Let me give an example.

[20]        In a partner-assault case from a while back, I was asked to admit extrinsic-facts evidence of violent acts committed by the accused prior to the date of the charge.  I heard from the prosecution.  I then heard defence counsel’s forceful counterpoint.  I ruled against the admission of the evidence.  Not long after defence counsel had commenced cross-examining the complainant came the question: “Now, has anything like this ever happened before?”  What ensued is easy to imagine.

[21]        Sadly, this is what happens very frequently in court: defence counsel will advance a compelling argument to exclude extrinsic-facts evidence, and succeed, only to follow up with a spelunking, voyage-of-discovery cross-examination that all of a sudden makes that which had been excluded at once material and relevant.

[22]        I inquired of defence counsel what I should do if that were to happen in this case.  Defence counsel’s response was that I should “police the ruling of the court”, so that if defence strategy should go astray in a way that would make admissible what the court has ruled should be kept out, I ought to intervene.  This is as unacceptable as the prosecution’s position.  It is not for the court to superintend defence counsel in order to vet a cross-examination strategy that might turn out to be improvident.  The suggestion that it is the court’s role to guard against defence counsel doing something “inadvertent” misapprehends the function of the court to operate as a neutral arbiter.   I am not going to assume that, should defence counsel embark upon an inquiry that might make relevant and material what once was neither, this would be due to inadvertence.  Strategies and tactics change, and those strategies and tactics arise in large part out of the exchange of privileged communication between the lawyer and the client.  It is not for the court to engage in second guessing the plan being advanced by defence.  In any event, what might have seemed bone-headed in the thick of battle, turns out in the end sometimes to have prescient and inspired.  My ruling is simple: the prosecution shall not be permitted to call the extrinsic-facts evidence outlined in the prosecution’s brief.  Should defence counsel wish to remove the bilge plug, the court will not try to stop the inevitable inflow.

JPC