R.M. was charged with a single count of domestic sexual assault. He was tried and convicted in the Superior Court of Justice in Milton.
During the trial, a significant amount of bad character evidence was led which showed R.M. to be abusive, controlling of and demeaning towards the complainant. This evidence was introduced through the testimony of the complainant and her parents.
R.M., represented by James Lockyer, appealed his conviction to the Court of Appeal for Ontario. During oral argument, Mr. Lockyer persuaded the panel that the trial judge’s failure to provide a proper limiting instruction to this prior discreditable conduct warranted a new trial.
Writing for the Court, Copeland J.A. wrote:
In this case, the trial judge gave no instruction to the jury on the prior discreditable conduct evidence. He did not instruct either on what were permissible uses for the evidence of the appellant’s prior discreditable conduct, or prohibited uses of this evidence. The trial judge referred to the evidence only in the most general terms, for example, referring to evidence of “how their relationship evolved over time”, and to evidence of their “interactions” in the time period after the alleged sexual assault.
Considering all of the circumstances in this case, I conclude that the failure of the trial judge to give the jury a limiting instruction on the use of the prior discreditable conduct evidence constitutes reversible error which requires a new trial.
The prior discreditable conduct evidence led in this case was extensive. It was led through the testimony of all of the Crown witnesses – the complainant and both her parents. It permeated the trial. I accept that the evidence was properly admissible as narrative, to assist in understanding the relationship between the appellant and the complainant, and in relation to the defence theory of the complainant’s motive to fabricate. However, it was not admissible for propensity use. And in my view, the dangers of the jury engaging in propensity reasoning were significant.
The Court of Appeal quashed R.M.’s sexual assault conviction and ordered a new trial.
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