SUPREME COURT Citation: R. v. Butcher, 2018 Between: Her Majesty 1• Nicholas Jordan DECISION: VOIR Crown Application — Admissibility Judge: The Honourable Justice Heard: April 18, 2018, in Written Submissions:April 13 and 15, 2018 Written Decision: May 2, 2018 Counsel: Carla Ball and Tanya Peter Planetta and OF NOVA SCOTIA NSSC 105 Date: 20180418 Docket: HFX No. 455873 Registry: Halifax the Queen Butcher DIRE 11 of Electronic Communications Joshua M. Arnold Halifax, Nova Scotia Carter, for the Crown Jonathan Hughes, for the Defence
By the Court: Overview [1] The Crown alleges that Mr. Butcher 2016. This decision deals with the admissibility Nicholas Butcher and others that relate to • The state of the relationship between • Mr. Butcher’s financial situation and March 26, 2016; and • Mr. Butcher’s stress over his career 2016. [2] The Crown says the texts of Kris Skiba, Phil Dumaresq, Vicky Chisholm, Fiona Brooks, Kim D’Ambrogi, and they are relevant, probative and go to Mr. Butcher’s Crown says they also corroborate the antemortem explain Ms. Johnston’s state of mind and 2016, regarding her relationship with Mr. Butcher 74). [3] Mr. Butcher objects to the admission grounds: • Many of the texts are stale or not contemporaneous • They are irrelevant; • They relate to collateral issues; and • Their probative value is outweighed [4] At the conclusion of argument, the messages between Mr. Butcher and Ms. Johnston, and Chisholm (a witness already called at trial) agreed that they would not tender these text messages Page 2 murdered Kristin Johnston on March 26, of certain text messages between the following aspects of the evidence: Mr. Butcher and Ms. Johnston; related stress in the period leading up to in the period leading up to March 26, Home, Adam Kristin Johnston are admissible as motive and possible intent. The hearsay evidence admitted to present intention as of March 25 and 26, (see R. v. Butcher, 2018 NSSC of these text messages on the following with March 26, 2016; by their prejudicial effect. Crown agreed to remove any reference to Mr. Butcher and Adam from the exhibit in question. The Crown as part of their case-in-chief
with the caveat that taking this position will not prejudice introduce those messages during their cross-examination chooses to testify. I will deal with any objections messages if that becomes an issue. [5] On April 18, 2018, I issued a bottom-line reasons to follow. Subsequently, on April 19, 2018, having and testify, Mr. Butcher argued during message/electronic communications between Butcher, 2018 NSSC 106, I ruled those consideration by the jury. Admissibility of Text Messages [6] Mr. Butcher concedes that text messages against interest. In R. v. Bridgman, 2017 the court, stated (some citations omitted): 67 The documents in possession rule is to paper and electronic documents alike... 68 The rule is designed to permit the circumstances for two different purposes. 69 First, the rule allows for the admission constructive or joint possession of an accused of their contents to establish the accused’s to which the documents relate... Second, where recognized, adopted or acted upon the documents may be admitted as an exception of fact to consider them for the truth of their Comm., at p. 33, “if the party in possession document an admission of acceptance of its 70 This court addressed the dual nature The court adopted as correct the following L. Phipson, Phipson on Evidence, 18th ed. (London: Sweet & 37-10, pp. 1326-27, which remains substantively Documents which are, or have been, in generally be admissible against him to show his knowledge of their contents, his in, the transactions to which they relate, or thereto. They will further be receivable Page 3 them from attempting to of Mr. Butcher, if he regarding the use of those text decision on this issue with written elected to call evidence Voir Dire 13 for the admission of text himself and Ms. Johnston. In R. v. electronic messages admissible for can be admissible as admissions ONCA 940, Fairbum J.A., speaking for one of long-standing... The rule applies admission of documents in two different of documents found in personal, as original circumstantial evidence connection to or complicity in the matter evidence exists that the accused has documents found in possession, the to the hearsay rule, allowing the trier contents. As noted in B. C Securities has recognized, adopted or acted on the contents as true may be inferred.” of the admissibility doctrine in Thrion. passage from Kodge M. Malek & Sidney Maxwell, 2013), at unchanged today: the possession of a party will as original (circumstantial) evidence connection with or complicity his state of mind with reference against him as admissions (i.e.
exceptions to the hearsay rule) to in any way recognised, adopted or 71 Text messages are documents containing position that Baidree forecloses their possession rule. When text messages considered for admission as either original circumstantial evidence all comes back to the purpose for admission. [7] In R. v. Evans, [1993) 3 S.C.R. 653, Sopinka rationale for admitting admissions: 24 The rationale for admitting admissions exceptions to the hearsay rule. Indeed, it is hearsay at all. The practical effect of this seeking independent circumstantial guarantees that the evidence is tendered against a party. Its the adversary system that what a party has the party in whose mouth it does not lie her own statements. As stated by Morgan, ‘[a] no opportunity to cross-examine himself when speaking under sanction of oath’ (Morgan, (1963), pp. 265-66, quoted in McCormick is the same for both criminal and civil cases confessions which apply in criminal cases. [8) Although Mr. Butcher concedes the the instructions of Sopinka J. on the issue 32. In my opinion, this is the correct approach authenticity of admissions. If there is some submitted to the trier of fact, the matter must be preliminary determination must be made admissible against the accused, the Crown probabilities that the statement is that of trier of fact should then consider the contents evidence to determine the issue of innocence statement may only be considered for the above in the first stage, in the second stage the assertions contained therein. Are the text messages stale? [9] In R. v. Moo, 2009 ONCA 645, the antemortem hearsay evidence in the context Page 4 prove the truth of their contents if he has acted upon theni. [Emphasis in original.] out-of-court statements. I reject the admissibility under the documents in are found in possession, they may be or hearsay. It J., for the court, explained the has a different basis than other open to dispute whether the evidence is doctrinal distinction is that in lieu of of trustworthiness, it is sufficient admissibility rests on the theory of previously stated can be admitted against to complain of the unreliability of his or party can hardly object that he had or that he is unworthy of credence save ‘Basic Problems of Evidence” on Evidence, supra, at p. 140). The rule subject to the special rules governing general admissibility of text messages, of admissibility bear repeating: to be applied in respect of the evidence to permit the issue to be considered in two stages. First, a as to whether, on the basis of evidence has established on a balance of the accused. If this threshold is met, the of the statement along with other or guilt. While the contents of the limited purpose to which I have referred the contents are evidence of the truth of court examined the admissibility of of a domestic homicide. In outlining
the need for evidence to provide context to J.A. explained, for the court (some citations [97] Despite this general rule excluding proof of guilt, we recognize that, sometimes, evidence tends to show bad character, may be so highly value in the search for the truth outweighs permit admission of this evidence by exception its prejudicial effect. [98] In prosecutions for domestic homicide, evidence to elucidate the nature of the relationship This evidence, which often discloses misconduct other demonstrates the nature of the relationship evidence of motive and animus relevant to killer and the state of mind with which the [99] Evidence of extrinsic misconduct comes (the potential stigma of “bad personhood”) potential conftsion and distraction of the [100] Where evidence of extrinsic misconduct is ensure that prejudice does not substitute that educate jurors about the permitted and general rule does not apply, however, where offered to demonstrate motive or animus unlawftil homicide... [10] The evidence at trial shows that Mr. relationship for less than a year when Ms. Johnston Considering the duration of their relationship, the between August2015 and March 2016, are Financial Difficulties [11) Some of the texts relate to Mr. Butcher’s antemortem hearsay witnesses testified relationship with Mr. Butcher. The jury heard having financial difficulties, that Mr. Butcher reasons, and not necessarily for romantic position. Page 5 the relationship in this type of case, Watt omitted): character evidence as circumstantial of prior misconduct, which relevant and cogent that its probative any potential for misuse... Thus, we where its probative value exceeds is frequently admitted between the accused and the deceased. than that charged, not only between the parties, but also may afford establish the identity of the deceased’s killing was done... with baggage— moral prejudice and reasoning prejudice (including jury from the actual crime charged)... admitted, one antidote to for proof are mid-trial and final cautions prohibited use of the evidence. This the extrinsic misconduct evidence is towards the victim in a prosecution for Butcher and Ms. Johnston had been in a was killed on March 26, 2016. text messages, having been written not stale. alleged financial difficulties. The that Ms. Johnston wanted to end her some evidence that Ms. Johnston was was living with her in part for financial reasons. These texts support the Crown’s
[12] These texts also support the Crown’s stressed about many things leading up to situation. This evidence is relevant. Job Prospects [13] Some of the texts show Mr. Butcher’s his chosen field. The antemortem hearsay wanted to end her relationship with Mr. Butcher, in around the house, not doing much, and not supporting supported. [14] The texts also confirm Mr. Butcher’s situation and how this may have contributed 2016. These texts are relevant. Breaking up and fighting [15] Some of the texts reveal that, during Butcher and Ms. Johnston broke up for disagreements between them. Mr. Butcher made him feel. Considering the events leading 26, 2016, including Mr. Butcher entering two occasions during the early morning hours Johnston, such evidence is relevant. [16] One text mentions the fact that Mr. Butcher There is no suggestion whatsoever that the violence. These texts are relevant. “Nervous breakdown” and “going crazy” [17] In one text, Mr. Butcher says the breakdown” and in another he says he is Mr. Butcher himself. In the context of colloquially, and not clinically. There is terms in context that would fall under the character. They are his own words explaining wrote the texts. Mr. Butcher can explain them Page 6 theory that Mr. Butcher was feeling March 26, 2016, including his financial difficulty in securing employment in witnesses testified that Ms. Johnston part because he was hanging her the way she wanted to be unhappiness with his employment to his stress leading up to March 26, the course of their relationship, Mr. a period of time. The also reveal speaks in the texts about how poorly this up to Ms. Johnston’s death on March Michael Belyea’s residence uninvited on of March 26, 2016, to look for Ms. and Ms. Johnston had a fight. fight included any sort of physical stresses caused him to have a “nervous “going crazy”. These terms are used by the texts, they are clearly being used nothing about Mr. Butcher’s use of these category of discreditable conduct or bad how he was feeling at the time he if he so chooses.
Probative vs. Prejudicial E18] Mr. Butcher says that the probative outweighed by their prejudicial effect. In 649, [1999] O.J. 688 (Ont. C.A.), the court and sexual abuse in the course of an ongoing for the court (citations omitted): 22 In this case it was important to put the charges in the context of the overall relationship. The that the allegations underlying the charges behaviour that the appellant exhibited towards that they lived together. The challenged fairly evaluate the complainant’s evidence Excluding that evidence would have left the misleading impression of the relationship. In relevant for the purpose of setting forth which the alleged events occurred. 23 The trial judge also held that the admissible for the purpose of demonstrating in committing the offences alleged. It is well admissible to prove the doing of an act as done... 24 On several occasions courts have held in particular evidence of abusive behaviour for this purpose... 25 In this case, the evidence, which in general terms behaviour towards the complainant, if accepted, was in understanding why the appellant did what was evidence demonstrated an animus on the that was consistent with the offences with was correct in holding that the impugned 26 Finally, the trial judge held that the relevant to the explanation by the complainant relationship and to report the abuse earlier. The challenged in cross-examination about allegations and her delay in leaving the marriage. The the pattern of ongoing abuse and her fear her explanation for her conduct in this conduct was also relevant for this purpose. 27 In my view the trial judge was discreditable conduct was relevant for the Page 7 value of the text messages is far R. v. F. (D.S.) (1999), 169 D.L.R. (4tj was faced with allegations of physical relationship. Justice O’Connor stated complainant’s evidence supporting the complainant’s evidence was were consistent with the attitude and her throughout the one year period evidence would enable the jury to more regarding the specific allegations. jury with an incomplete and possibly my view, the disputed evidence was the contextual narrative in the course of discreditable conduct evidence was the motive or animus of the appellant established that evidence of motive is well as the intent with which the act is that evidence of discreditable conduct, towards a complainant, is admissible described a pattern of abusive capable of assisting the jury alleged in the indictment. This appellant’s part towards the complainant which he was charged. The trial judge evidence was relevant for this purpose. discreditable conduct evidence could be for her failure to leave the complainant was vigorously the delay in reporting some of the complainant’s evidence about of the appellant were important parts of regard. The evidence of discreditable correct in holding that the evidence of purposes set out above. The evidence
was also clearly material, in that it was directed credibility of the complainant. [19] In considering the probative value O’Connor J.A. stated: 28 The fourth step in the test set out in B. (L) value of the evidence in question outweighs 29 In assessing the probative value, Chanon consideration should be given to the strength supports the inferences sought to be made tends to prove are in issue. The trial judge evidence in this case had significant probative 30 The complainant was the only witness conduct. The strength of that evidence obviously of her credibility. However the evidence, if the Crown’s case. It helped to show the animus jury may have wondered why, in a seemingly appellant would behave as the complainant described. The jury to understand the relationship and, complainants explanation for not leaving to the central issues in the case. I agree with of this evidence was high. 31 The trial judge carefully considered the primary’ concern with this type of evidence inferring guilt based on the bad character 32 There are a number of factors which the evidence in this case. First, the evidence in the case. In B. (IL.) at p. 505, Chanon J.A. observed tend to make it less likely that the evidence 33 Next, the evidence of discreditable complainant. This was not a case in which bolstered by a third party testifying about the If the jurors did not accept the complainant’s unlikely to have been greatly swayed by conduct. See Gregg, “Other Acts of Sexual Misbehaviour Evidence in Prosecutions for Sexual Offences” 34 Finally, in the charge to the jury, the instruction on the purpose for which importantly, the trial judge instructed the jury to conclude that the appellant was the type commit the offences with which he was charged. Page 8 at the central issue in the case, the versus the prejudicial effect in F. (D.S.), is to determine whether the probative its prejudicial effect. J.A. in B.(L.) indicated that of the evidence, the extent to which it and the extent to which the matters it concluded that the discreditable conduct value. who gave evidence of discreditable depended on the jury’s assessment accepted, was strongly supportive of of the appellant without which the otherwise normal relationship, the evidence enabled the importantly, strongly supported the or reporting sooner. It therefore related the trial judge that the probative value prejudicial effect of the evidence. The is that the jury may misuse it by or disposition of an accused. reduce the potential prejudicial effect of was highly probative ofmaterial issues that high probative value will will be used improperly. conduct was entirely that of the the complainants credibility was discreditable conduct of the appellant. evidence about the charges, they were the additional evidence of discreditable and Perversion as (1965), 6 AHz. L.R. 212 at p.220. trial judge gave a very clear limiting the jury could use the evidence, and that they could not use this evidence of person who would be disposed to
35 In my view, the trial judge correctly evidence outweighed its prejudicial effect and admissible. I therefore see no merit in this [20] In R. v. Tmveel, 2015 NSCA 107, Saunders considered the weighing of probative value of similar fact evidence (of significant discreditable 70 It is necessary to recall the facts from Supreme Court of Canad&s explicit warnings evidence in any given case. Let me begin admit the “similar fact” evidence in this case rejected in Handy. While it is true that the given in a jury trial and by a third party (the the difference to be material in this case, nor lessened to any degree. 71 There, the accused was charged with defence was that the sex was consensual. The had consented to vaginal sex but not rough introduce similar fact evidence from the accused’s accused had a propensity to inflict painful aroused would not take no for an answer. The alleged prior incidents. The accused denied committing any of the alleged assaults on and the complainant had met and colluded, which him. The jury convicted the accused of sexual ruled that the former wife’s testimony was trial. The Supreme Court of Canada agreed Writing for a unanimous Court, Justice Binnie of the authorities which have consistently: 58 ... fully recognized the potentially evidence, and sharply circumscribed introduced. 72 After describing the nature of the onus para68 above), Binnie J. explained how the judge to assess the probative value of the question for which the Crown sought its introduction; assess of the evidence which meant that it was “necessary’ (i.e., the potential stigma of “bad personhood”) potential confusion and distraction of the ultimately weigh and compare the probative that the starting point of such a balancing Page 9 concluded that the probative value of this properly held the evidence to be ground of appeal. J.A., writing for the court, versus prejudicial effect in the context conduct), and stated: Handy in order to set the stage for the concerning the introduction of such by saying that I voud have refused to for virtually the same reasons it was proffered evidence in Handy was being accused’s ex-wife), I do not consider the risk attached to its admission, sexual assault causing bodily harm. His complainant’s position was that she or anal sex. The Crown sought to former wife to the effect that the sex, including anal sex, and when similar fact evidence concerned seven assaulting the complainant, or his ex-wife. He argued that his ex-wife then led to false charges against assault. The Ontario Court of Appeal wrongly admitted and ordered a new and dismissed the Crown’s appeal. undertook a comprehensive review poisonous nature of propensity the circumstances in which it can be and burden on the Crown (quoted at requisite analysis would require the trial evidence in relation to the issue in the prejudicial impact to evaluate both moral prejudice and reasoning prejudice (including jury from the actual charge ...)“; and value versus prejudice, emphasizing was:
course, ... that the similar fact evidence It is for the Crown to establish on probative value will outweigh the 73 In then applying his framework to the second step which was to assess the prejudice highlighted the dangers associated with comments are particularly apt in this case: 138 The poisonous potential of similar Sopinka. Lederman and Bryant, supra, at s.l1.173, refer of an English barrister who has written Similar fact evidence poses and magistrates alike. The between probative force and Court, it is as close as a Judge outcome of a case. [Emphasis (G. Durston, “Similar Fact Evidence: the Light of Recent Cases” Government Law 359, at p. 359) Canadian trial lawyers take the same (a) Moral Prejudice 139 It is frequently mentioned that of conviction. It is, more properly, the vrongM conviction. The forbidden general disposition or propensity. The accused has discreditable tendencies. In on prejudice rather than proof, thereby innocence enshrined in ss. 7 and and Freedoms. 140 The inflammatory nature of the be doubted. It is, to the extent reprehensible than the actual charge be more appalled by the pattern of misconduct of an inebriated lout in may be noted that s. 718.2 of the reflects society’s denunciation of aggravating factor for the purposes 143 1 conclude that this evidence has (b) Reasoning Prejudice Page 10 is presumptively inadmissible. a balance of probabilities that the likely potential prejudice. (para99-10l) facts of that case and in particular the of the proffered evidence, Binnie J. the admission of such evidence. His fact evidence cannot be doubted. to the observations of that jurisdiction: enormous problems for Judges, jurors reason for this is the headlong conflict prejudicial effect. Often, in the Crown comes to singlehandedly deciding the added, in original.] A Guide for the Perplexed in (1996), 160 Justice of the Peace & Local view. prejudice” in this context is not the risk risk of an unfocussed trial and a chain of reasoning is to infer guilt from evidence, if believed, shows that an the end, the verdict may be based undermining the presumption of 11(d) of the Canadian Charter of Rights ex-wife’s evidence in this case cannot these things can be ranked, more before the court. The jury would likely domestic sexual abuse than by the alleged a motel room on an isolated occasion. It &iminal Code, R.S.C. 1985, c. C-46, spousal abuse by making such abuse an of sentencing. a serious potential for moral prejudice.
144 The major issue here is the distraction proper focus on the charge itself aggravated dealing with allegations of multiple divergent circumstances rather than 145 Distraction can take different forms. B.C.L.R. (2d) 384 (C.A.), McLachlin 399 that the similar facts may induce in the minds of the jury sentiments which might well deflect them analysis upon which the criminal process 146 Further, there is a risk, evident in are denied by the accused, the court will be seeking to admit what appears to issue and the need to avoid unfairness The accused has a limited opportunity be compounded by the lapse of time, surprise, and which will prevent (in the interest within trials on the similar facts. Nor evidence of discreditable conduct with his or her credibility (as discussed at s.<check-secU> 11.74). Thus the reinforce the prejudice inherent in evidence itself. 147 In my view, the evidence of the addition to moral prejudice, significant respondent’s trial. (Underlining mine) 74 Applying the final step of the requisite balancing of the probative value versus prejudicial affect, Binnie (3) Weighing Up Probative Value 148 One of the difficulties, as McHugh p. 147, is the absence of a common value of the evidence goes to proof fairness of the trial.” The two variables 149 As probative value advances, prejudice the contrary, the two weighing pans fall together. Nevertheless, probative directions on the admissibility issue resolved. 150 In Director ofPublic Prosecutions p. 460, Lord Mackay suggested Page 11 of members of the jury from their by the consumption of time in incidents involving two victims in the single offence charged. In R. v D. (LE.) (1987), 20 J.A. (as she then was) observed at p. of revulsion and condemnation from the rational, dispassionate should rest. this case, that where the similar facts” caught in a conflict between be cogent evidence bearing on a material to the right of the accused to respond. to respond. Logistical problems may the collateral issue rule, of effective use of court resources) trials is the accused allowed to counter similar fact evidence in support of in Sopinka, Lederrnan and Bryant, supra, practical realities of the trial process the poisonous nature of the propensity ex-wife had the potential to create, in reasoning prejudice at the analysis which requires a careffil J. said: Versus Prejudice J. pointed out in Pfennig, supra, at basis of measurement: “The probative of an issue, the prejudicial effect to the do not operate on the same plane. does not necessarily recede. On on the scales of justice may rise and value and prejudice pull in opposite and their conflicting demands must be v. P., [1991] 2 AC. 447 (H.L.), at that similar fact evidence should be
admitted when its probative value admit the evidence, notwithstanding Wilberforce in Boardman, at p. 2. justice. See also Pfennig, supra, at relevant evidence whose prejudice excluded (R. v. Marquard, [1993] evidence whose probative value exceeds circumstance) is admitted. Justice truth of the charges as well as the interest of a fair process. A criminal justice wrongful convictions in part because and propensity should not (and misapplied propensity evidence. 151 In this case, the similar fact evidence I agree with Charon J.A. that the establishing on a balance of outweighed its undoubted prejudice. The especially with respect to potential collusion, was The potential of such evidence understated. The threshold for admission low. [21] Mr. Butcher relies on K v. Johnson, 2010 exclusion of these texts. In that case, Rouleau 99 It is not sufficient for the Crown to accused and a victim, and then speculate motive. The Supreme Court in R. 1’. Barbour, [1938] that “it is rather important that the court evidence which, reasonably viewed, cannot tend charged merely because it discloses some the parties.” 100 Thus, evidence of past misconduct motive does nothing more than bring in the to be excluded on the basis that its prejudicial value it might have: see, e.g. R. v. Smith, [1992] 101 On the other hand, evidence that provides into the background and relationship between genuinely helps to establish a bona fide theory in the absence of similarity with the charged 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 70-109. Page 12 is ‘sufficiently great to make it just to its prejudicial value. Lord also referred to “the interests of pp. 147-48. Justice is achieved when outweighs any probative value is 4 5CR. 223, at p. 246) and where its prejudice (albeit an exceptional includes society’s interest in getting to the both society and the accused in system that has suffered some serious of misconceived notions of character does not) take lightly the dangers of was prima facie inadmissible and Crown did not discharge the onus of probabilities that its probative value probative value of the evidence, not properly evaluated. for distraction and prejudice was of this sort of evidence was set too ONCA 646, in arguing for the J.A., speaking for the court, said: identif’ some past conflict between an that it establishes animus and therefore S.C.. R. 465, at p.469, warned should not slip into a habit of admitting to prove motive or explain the acts incident in the history of the relations of that is woven into a speculative theory of bad character of the accused, and ought value exceeds any small probative 2 SCAt 915, at pp. 938-941. the trier of fact with real insight the accused and the victim, and which of motive is highly probative, even offence: see, e.g. R. v. Moo (2009),
[22] In Johnson, the court considered the particular, bad character evidence ofpast criminal conduct on that did not form part of the charges before 83 The bad character evidence rule is rests upon this general principle. Evidence adduced simply to show that the accused offence charged. While this evidence might arguably prejudicial when used in this fashion: Morris, at 2 S.C.R. 716, at para 63. 84 One particularly prejudicial form of establishes past criminal conduct on the part of basis of the charges before the court. This been identified as raising two forms of prejudice probative value that might exist in the evidence to as moral prejudice and reasoning prejudice: K paras. 31, 139-147. 85 Moral prejudice refers to the possibility ofuncharged misconduct, might choose to charged, not because they are satisfied beyond have been proven, but as substitute punishment for v. D.a.EJ, [1989] 2 S.C.R. Ill, at p. 128. Even explicit line of reasoning, they might still convict based is generally the kind of person likely to commit crimes, rather any particular evidence showing the accused charged: Handy, at para. 139. 86 Reasoning prejudice, on the other hand, refers misconduct evidence. Rather than focusing charges have been proven by the Crown, past misconduct evidence a jury’ with evidence of other criminal conduct: D.(L.E.), at 144. 87 Evidence that tends to prove the commission normally appear much like the evidence charged criminal conduct. Excessive court time criminal conduct might well distract the jury whether the crimes that have actually been beyond a reasonable doubt. Conclusion [23] In this case, the text messages are discreditable conduct on the part of Mr. Butcher. There Page 13 admissibility of discreditable conduct, in the part of the accused the court. The court noted: an example of an exclusionary rule that of the accused’s bad character cannot be is the sort of person likely to commit the be relevant, it is inherently pp. 201-202; K i Gq’S.Gj, [1997] bad character evidence is evidence that the accused that does not form the type of past misconduct evidence has that will generally outweigh any itself. They are commonly referred v. Handy, [2002] 2 S.C.R. 908, at that a jury, presented with evidence convict an accused person for the crimes a reasonable doubt that the charges the uncharged misconduct: R. where a jury does not follow this on a belief that the accused than on the basis of to have committed the specific crime to the distracting nature of past the trial on the question of whether the risks distracting p. 128; Handy, at para. of uncharged criminal acts will adduced to prove the commission of devoted to proof of extraneous from their ultimate task of considering charged by the Crown have been proven not evidence of bad character or of is no risk of moral prejudice
or reasoning prejudice on the part ofthejury. Any prejudice (and there should be none) can instruction. [24] The probative value of this text message/electronic any prejudicial effect. Society has an interest in This text message/electronic evidence is relevant to context of the events leading up to March Butcher’s right to a fair trial by the admission Page 14 possible concern about reasoning be cured with a mid trial and a final jury evidence far outweighs determining the truth of the charges. provide the jury with the entire 26, 2016. There is no impact to Mr. of this evidence.
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