



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. These sections of
the
Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in any
    way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.W., 2022 ONCA 306

DATE: 20220421

DOCKET: C68966

Lauwers, Pardu and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.W.

Appellant

Bryan Badali, for the appellant

Amy Alyea, for the respondent

Heard: March 10, 2022 by video
    conference

On appeal from the conviction entered on
    February 20, 2018 by Justice Sylvia Corthorn of the Superior Court of
    Justice, sitting without a jury.

Lauwers J.A.:

A.

Overview

[1]

The trial judge convicted the appellant of four counts:
    invitation to sexual touching (x2), sexual interference, and exposing his
    genitals. This was a re-trial. In 2015, the appellant was convicted of the same
    offences but this court allowed the appeal and ordered a new trial (2016 ONCA
    965). I would allow the appeal on the basis that the trial judge incorrectly admitted
    evidence of the appellants discreditable conduct several years after the date
    of the charged offences.

B.

The Background Facts

[2]

In May 2013, the appellant operated a daycare
    for young children out of his home. One of the children, D.B., (a girl, then three
    and a half years old) alleged that the appellant engaged in sexually
    inappropriate behaviour with her during nap time. On May 15, 2013, D.B. told
    her mother on the drive home from daycare that during naptime the appellant
    put his penis in my hand and another time he had put it in my mouth. That
    evening, D.B. told her parents in a matter-of-fact tone that there was touching
    and licking and demonstrated putting something in her mouth. On May 16, 2013, the
    police interviewed D.B. She had trouble identifying true and false statements
    but said that the appellant put his penis in her mouth, and she had licked and
    rubbed it. On April 30, 2014, the police interviewed D.B. again, but she was
    unable to recall going to the daycare. At the retrial, D.B. was shown the video
    of her May 16 statement, but did not remember it.

[3]

A second child, A.M., (a girl, then five years
    old) subsequently made a similar allegation. On May 17, 2013, as the result of
    D.B.s complaint, the police interviewed A.M. She did not disclose anything
    improper. The police advised A.M.s parents of the nature of D.B.s complaint.
    On May 18, 2013, while using the washroom with her mother, A.M. described the
    appellants penis. Her mother asked if the appellant had ever asked her to
    touch his penis. A.M. told her mother that he had, but she had said no, no,
    no, no, no and that this happened on movie days during nap time when the
    other children were asleep. On May 19, 2013, the police again interviewed A.M.,
    who said she observed the appellant rub his penis and asked her to touch it,
    but that she refused. At trial, she did not remember attending the daycare or
    the police statements.

[4]

On October 17, 18 and 19, 2016, the appellant
    was observed by two neighbours. He was visibly naked and masturbating in his
    living room. They took photographs and a video and reported it to the police. The
    trial judge noted that the appellant was charged, tried, and convicted of
public nudity and breach of his conditions
    of release in January 2018, and presumably sentenced, though the sentencing
    details are not in the record.

C.

The Decision Under Appeal

[5]

The trial judge granted the Crowns application
    to admit the complainants allegations on the basis of count-to-count similar
    fact evidence.
She
drew the inference requested by the Crown that the appellant had a specific
    propensity to exploit his status as a daycare provider by engaging in
    inappropriate sexual behaviour with very young girls in his care during nap,
    quiet or movie time. This ruling allowed the trial judge to consider the two
    charges as mutually reinforcing. The appellant does not challenge this ruling.

[6]

The trial judge also granted the Crowns
    application to admit the discreditable conduct evidence about the appellants
    public nudity charge in October 2016, in part, only in relation to the reliability
    of A.M.s evidence.

(1)

The Discreditable Conduct Ruling

[7]

The trial judge cited this courts decision in
R.
    v. B.(L.)
, [1997] O.J.
    No. 3042, at para. 10, 35 O.R. (3d) 35 (C.A.), at p. 36, as the legal basis for
    her ruling. She
found that the appellants conduct in
    October 2016 manifested his propensity to masturbate, while naked, during
    daytime hours, with a towel, and in his living room. She considered this
    conduct to be relevant and material to the events described by A.M., in view of
    similarities she found in his October 2016 conduct and his conduct as described
    in A.M.s testimony.

[8]

The trial judge admitted the discreditable
    conduct evidence and from it drew the three inferences proposed by the Crown:
    1) A.M. described events she witnessed rather than events she imagined; 2) A.M.
    was not mistaken in her description of the appellant as the man rubbing his
    penis with one hand; 3) A.M. was not mistaken as to the nature of the act she
    described (masturbating, including with a towel).

[9]

The trial judge found the probative value of the
    evidence to exceed its prejudicial effect. The probative value was high because
    it was capable of supporting the three requested inferences and was therefore
    relevant and material to A.M.s testimony. She found the prejudicial effect to
    be low because: the conduct was less discreditable than the conduct described
    by A.M.; it was a judge-alone trial; and the appellant could testify in
    response. However, the trial judge declined to admit the evidence in relation
    to the charges involving D.B., who had described events in a childs bedroom.
    She found the evidence of discreditable conduct was not relevant or material to
    the events described by D.B.

(2)

Credibility and Reliability Findings

[10]

The trial judge applied the
W.(D.)
[1]

framework. She found
    the appellant not to be credible and rejected his denial of the events, finding
    that his evidence did not leave her with a reasonable doubt as to his guilt.
    She found that he provided minute details on collateral matters in a deliberate
    effort to present himself as credible and reliable, a responsible caretaker,
    and the proprietor of a well-run daycare. In contrast, he said he had no memory
    of the October 2016 events, with no reasonable explanation. The trial judge
    also found internal inconsistencies in his testimony about nap time and in D.B.s
    testimony about the number of occasions on which the described events occurred.

[11]

Considering the count-to-count similar fact
    evidence and the other discreditable conduct, the trial judge convicted the
    appellant because she found D.B. and A.M.s evidence to be both credible and
    reliable (subject to a finding that D.B. was unreliable as to how often the
    abusive conduct happened).

D.

Issue

[12]

The appellant challenges the trial judges
    ruling admitting the evidence about his 2016 discreditable conduct.

E.

Analysis

[13]

I consider the principles that govern the
    admissibility of discreditable conduct evidence and then apply the principles
    to this case.

(1)

The Governing Principles on the Admissibility of Discreditable
    Conduct Evidence

[14]

This appeal requires this court to make another
    foray into what Dean Wigmore called, in 1940, a vast morass of authority that
    was hopeless to reconcile on the admissibility of discreditable conduct
    evidence.
[2]
The morass is vaster today.

(a)

Defining Discreditable Conduct Evidence

[15]

Discreditable conduct evidence is evidence that:

(a)

tends to show that the accused has committed an
    offence that is not the subject matter of the charge or charges before the
    court; or

(b)

tends to show behaviour on the part of the
    accused, either through prior or subsequent acts, records, statements or
    possessions,

(c)

and which, in the opinion of the court, would be
    viewed with disapproval by a reasonable person.
[3]

[16]

This definition is apt because the discreditable
    conduct in this case  public nudity  relates to a charge that was not the
    subject matter of the charges before the court and that a reasonable person
    would view with disapproval.

(b)

The Exclusionary Rule

[17]

The rule is most simply expressed by McLachlin
    J. (as she then was):

[E]vidence which is adduced solely to show
    that the accused is the sort of person likely to have committed an offence is,
    as a rule, inadmissible. Whether the evidence in question constitutes an exception
    to this general rule depends on whether the probative value of the proposed
    evidence outweighs its prejudicial effect.
[4]

In other words, there is a general
    exclusionary rule against the admission of evidence going merely to
    disposition.
[5]
The Supreme Court repeated this language in
Handy
, which continues to
    be the seminal decision and governing precedent.
[6]

[18]

The rule exists, said Binnie J. in
Handy
,
    because: [t]he evidence, if believed, shows that an accused has discreditable
    tendencies, so that the trier of fact might convict on that basis alone, with
    the prospect that [i]n the end, the verdict may be based on prejudice rather
    than proof, thereby undermining the presumption of innocence. This would be
    wrong: [t]he forbidden chain of reasoning is to infer guilt from general
    disposition or propensity.
[7]

[19]

In order to overcome the presumption of
    inadmissibility, the Crown has to establish, on the balance of probabilities,
    that the probative value of the proposed evidence outweighs its prejudicial
    effect.

(c)

Methodology

[20]

An orderly methodology can be extracted from the
    cases and should guide trial judges in their assessment of the admissibility of
    discreditable conduct evidence.
[8]

(i)

Defining the Issue

[21]

The first step is to define with specificity the
    issue to which the evidence is asserted to be relevant because [p]robative
    value cannot be assessed in the abstract.
[9]
Binnie J. noted in
Handy
that: [t]he utility of the evidence lies
    precisely in its ability to advance or refute a live issue pending before the
    trier of fact.
[10]

(ii)

Identifying the Probative Value of the
    Discreditable Conduct

[22]

The second step is to assess the probative value
    of the evidence. When evidence disclosing the accuseds discreditable conduct
    is offered, it is said to be probative because it exhibits similarity to the
    conduct underlying the charges faced by the accused. That is the way that the
    trial judge in this case approached the evidence of discreditable conduct, as
    will be discussed in more detail below. While the usual form of discreditable
    conduct evidence is similar fact evidence or similar act evidence as seen,
    for example in the cross-count application in this case, the principles laid
    out in
Handy
are applicable to discreditable conduct evidence beyond
    similar fact evidence.
[11]

[23]

The assessment of probative value will vary from
    case to case. Identity cases are different from cases concerning motive, for
    example. The two critical elements are connectedness and similarity, as noted
    by
Zarnett J.A. in
R. v. Tsigirlash
[12]
. There must be a:

logical 
nexus
established between
    the evidence of similar acts and the offence that the evidence is offered to
    prove:
MacCormack
, at para. 49. Where the logical nexus depends on
    the similarity of the similar acts to the act charged, the probative value of
    the evidence will increase with the degree of similarity, because the
    probability that the similarity is a result of coincidence will decrease. The
    court must be satisfied that the objective improbability of coincidence has
    been established:
R. v. Arp
, [1998] 3 S.C.R. 339, at para.
    48. This analysis cannot be done in the abstract, but only on the basis of
    specifically-identified similar acts.
[13]

[24]

However, the Supreme Court has cautioned that:

The judges task is not to add up similarities
    and dissimilarities and then, like an accountant, derive a net balance. At
    microscopic levels of detail, dissimilarities can always be exaggerated and
    multiplied. This may result in distortion. At an excessively macroscopic level
    of generality, on the other hand, the drawing of similarities may be too facile.
[14]

[25]

The similarities can be circumstantial. This
    court held in
R. v. S.C.
[15]
,
    that in sexual assault cases, similar circumstances are often more compelling
    than similarities or dissimilarities in conduct. The circumstantial evidence
    showed that the accused had a situation-specific propensity to seek out young
    females connected by family relationships
[16]
,
    which provided the evidence with sufficient probative value to be admitted.
    Watt J.A. stated in
R. v. J.M.
[17]
:

Where the evidence of similar acts is summoned
    in support of proof of the
actus reus
, it is not an invariable
    requirement that there be a strong peculiarity or unusual distinctiveness
    underlying the events being compared:
Handy
at para. 81. The cogency
    of evidence of similar acts may arise from the repetitive and predictable
    nature of an accused's conduct in closely defined circumstances.

(iii)

Identifying the Prejudicial Effects of the
    Discreditable Conduct

[26]

The third step is to assess the prejudicial effect
    of the discreditable conduct evidence. Evidence showing the accused has
    committed an offence that is not the subject matter of the charge before the
    court can give rise to two forms of prejudice on the part of the trier of fact:
    moral prejudice and reasoning prejudice.

[27]

On the one hand, moral prejudice identifies
    the risk of convicting the accused because he is a bad person rather than
    based on proof that he committed this offence for which he is being tried.
[18]
On the other hand, reasoning
    prejudice specifies the risk that a trier of fact will be distracted from a
    proper focus on the charge itself aggravated by the consumption of time in
    dealing with allegations of multiple incidentsin divergent circumstances
    rather than the single offence charged.
[19]

[28]

Binnie J. stated in
Handy
that
    distraction as part of reasoning prejudice can take different forms. One form
    is emotional: the similar facts may raise in the minds of the jury sentiments
    of revulsion and condemnation which might well deflect them from the rational,
    dispassionate analysis upon which the criminal process should rest.
[20]
(In my view a similar dynamic
    applies to a judge acting as a trier of fact.) Binnie J. noted that: [t]he
    accused has a limited opportunity to respond and is not allowed to counter
    evidence of discreditable conduct with similar fact evidence in support of his
    or her credibility.
[21]
This can give rise to a trial fairness problem. Binnie J. observed that the
    practical realities of the trial process reinforce the prejudice inherent in
    the poisonous nature of the propensity evidence itself.

[22]

[29]

Another form of reasoning prejudice is when the
    trial focuses on the discreditable conduct itself, as a kind of trial within a
    trial, which can lengthen and complicate the trial, and distract the trier of
    fact from the issues on which liability turns.
[23]

[30]

In light of the rule and the dangers that the
    admission of discreditable conduct evidence pose, trial judges should assess
    the prejudicial effect from three perspectives: moral prejudice, reasoning
    prejudice, and the presence of any factors that might reduce the impact of
    prejudice in the specific circumstances of the case.

[31]

The first perspective of moral prejudice requires
    the trial judge in a judge-alone trial to self-instruct against the tendency to
    infer guilt based upon what
Handy
called the forbidden chain of
    reasoningfrom general disposition or propensity.
[24]
However, Paciocco et al. observe
    that self-instruction by judges can reduce, but will not eliminate, the risk
    of moral prejudice.
[25]
They add that: [s]ince the extent to which restricted admissibility doctrines
    can prevent moral prejudice is limited, courts must maintain a high awareness
    of the potential prejudicial effect of admitting similar fact evidence,
    particularly where the similar fact conduct is reprehensible.
[26]

[32]

There is less moral prejudice when the similar
    acts in question are other counts on the indictment, and therefore, more moral
    prejudice where the discreditable conduct is outside of the facts in the case:
R.
    v. J.M.
,
per
Watt. J.A., at para. 87, and
R. v. J.H.
[27]
,
per
van Rensburg
    J.A., at para. 24.

[33]

The second perspective to be assessed is the
    reasoning prejudice posed in the specific circumstances of the case. This
    focuses both on the emotional form of reasoning provoked by the discreditable
    conduct, and also on the distraction from the facts in issue in the case that
    trying the issue of discreditable conduct might encourage.

[34]

The third perspective is whether there are ways
    in which the possible prejudicial effects can be mitigated in the circumstances
    of the case. It has been said by this court that the risk of prejudice is
    considerably reduced in judge-alone trials.
[28]
But Paciocco et al. note that: there is controversy over how much lower the
    risk of prejudice is in judge-alone trials.
[29]
They add that: [e]ven judges can struggle to overcome the tainting effect of
    discreditable information and may give it undue focus during a trial.
[30]
This observation is true to
    experience. Judges can by training and experience steel themselves against
    moral and reasoning prejudice, but only if they actively advert to the very
    point in the moment of decision.

[35]

While the prospect that the accused might be
    able to testify in order to allay the prejudicial effects has been suggested to
    be a mitigating factor, this is doubtful, given what Binnie J. described in
Handy
as the poisonous nature of the evidence.
[31]
Further, admitting the discreditable conduct evidence might effectively force
    the accused to testify in a case where doing so might be inadvisable for other
    reasons.

(iv)

Weighing Probative Value Against Prejudicial
    Effect

[36]

The fourth step in the methodology is to weigh
    the probative value of the discreditable conduct evidence against its
    prejudicial effects. Although this step is sometimes called a balancing, that
    is not an apt metaphor because, as Binnie J. noted in
Handy
: [t]he
    two variables do not operate on the same plane.
[32]
The two are actually
    incommensurable.  Nonetheless, as Binnie J. observed, even though probative
    value and prejudice pull in opposite directions in addressing the
    admissibility issue, their conflicting demands must be resolved.
[33]
Generally, the more highly
    probative the evidence, the more likely it is that the interests of justice
    will require it to be admitted because of societys interests in getting to the
    truth of the charges. However, the interests of both society and the accused in
    a fair trial process require that the dangers of propensity evidence be taken
    extremely seriously; the criminal justice system should not (and does not)
    take lightly the dangers of misapplied propensity evidence.
[34]

(2)

The Principles Applied

[37]

In this part of the reasons, I use the
    methodology set out above as the analytical framework to explain why the
    discreditable conduct evidence should not have been admitted. Although the
    trial judge used this courts decision in
R. v. B.(L.)
(1997),
    that methodology has evolved in the last 25 years.

[38]

At the first step, the trial judge did not define
    with sufficient specificity the issue to which the
discreditable
    conduct
was asserted to be relevant. The elements of the conduct on which
    the trial judge relied are set out in the next paragraph. The Crowns argument
    was that they increased the probability that the children were describing real,
    not imagined events. The key question was whether the evidence could advance or
    refute a live issue pending before the trial judge, to paraphrase
Handy
.
    Did the appellants
discreditable conduct
in
    masturbating naked in the front window of his house, with a towel, make it more
    likely that he had sexually assaulted the children in the manner alleged by the
    Crown?
As I note below, the Crown side-stepped this
    question, as did the trial judge.

[39]

The second step requires the trial judge to
    identify the probative value of the discreditable conduct evidence. I repeat
    here the trial judges findings:

The similarities between J.W.s conduct in the
    fall of 2016 and the events described by A.M. include location (the living
    room), use of or proximity to a particular piece of furniture (one of two
    couches in the living room), the act (masturbation with a hand), and ancillary
    items (occasional use of a towel). As a result of these similarities, I find
    that J.W.s modus operandi in the fall of 2016 constitutes an observed
    pattern of propensity operating in a closely defined and circumscribed context.



I am satisfied, on a balance of probabilities
    that the manifestation of J.W.s particular distinctive propensity to
    masturbate, while naked, during daytime hours, and in the living room of the
    family home has a sufficient connection with the issues raised by the Crown.
    J.W.s conduct in the fall of 2016 is relevant and material to the events
    described by A.M. (citations omitted).

[40]

In my view, the trial judge fell into the error cautioned
    against by the Supreme Court in
Shearing
,

quoted earlier. Her
    focus was almost entirely on similarities with no attention being paid to the dissimilarities,
    in particular the fact that there were no children involved in the 2016 conduct
    and that the appellants living room in 2016 was no longer a place of business
    operating as a daycare.

[41]

The trial judge should not have adopted the
    Crowns approach to the use of the discreditable conduct evidence. She noted 
the submission of defence counsel with respect to a fundamental
    difference between the proposed evidence and the events described by A.M.  namely
    the absence of any children inside the home when J.W. was observed in the
    living room window in the fall of 2016. However, she answered this submission
    by accepting the limited inferences the Crown asked her to draw only as to: the
    timing, location, and nature of the act described by A.M. The trial judge
    explained: I am not asked to draw an inference with respect to conduct in the
    presence of a child.
But shorn of their link to
    children, in the context of the charges, the similarities here are merely generic
    and not material, and therefore risk giving undue weight to the discreditable
    aspects of the conduct, as Paciocco et al. trenchantly observe:

Where the probative value of similar fact
    evidence depends on similarities, care has to be taken not to act on generic
    similarities or kinds of features likely to be present in many or most
    instances of the same crime. Generic similarities do not yield appropriate
    inferences. They also increase the risk that the improper inference from bad
    character will be drawn, and they may mask important dissimilarities between
    the similar fact evidence and the crime charged.
[35]

[42]

At the third step, the trial judge is required
    to identify the prejudicial effects of the discreditable conduct. She did not
    do that. Instead, she dispatched the prejudicial effects of the 2016 conduct in
    two paragraphs, finding that the risk of either moral prejudice or reasoning
    prejudice is low because the public nudity conduct was less discreditable than
    the conduct for which the appellant was charged and because it was a
    judge-alone trial. She added that the appellant has the opportunity, if he
    chooses to exercise his right to testify, to respond to the evidence as to his misconduct
    in 2016.

[43]

In my view, the trial judge did not implicitly
    or explicitly identify the elements of both moral prejudice and reasoning
    prejudice. The problem is especially acute for reasoning prejudice. It would be
    no comfort to the appellant that he would have an opportunity to testify. This
    is a case where the observation by Binnie J. in
Handy
, that the
    practical realities of the trial process reinforce the prejudice inherent in
    the poisonous nature of the propensity evidence itself is apposite.

[44]

As it transpired, the dynamic of this trial
    revolved around the discreditable conduct evidence and, in particular, around the
    appellants inability to explain in terms that the trial judge would accept why
    he engaged in public nudity in the front window of his house. She contrasted
    this unfavourably with his excellent recollection of how he ran the daycare and
    used the contrast to impugn his credibility. In the absence of the application
    to admit evidence of the discreditable conduct, the appellant might have chosen
    not to testify, denying the Crown the opportunity to use the discreditable
    conduct to impugn his credibility.

[45]

Once the evidence was admitted and the appellant
    testified, the dynamic of the trial was dramatically altered. The trial judge criticized
    the appellant for not providing a plausible explanation for his inability to recall
    the 2016 events. She found him to be evasive when posed questions in
    cross-examination, the response to which required him to consider the events of
    October 2016. She further found that [h]e avoided responding directly to
    questions in cross-examination even when presented with the photographic
    evidence about his conduct on those dates. However, the appellants testimony
    on the 2016 events was neither unexplained nor implausible. He said:

I was out on bail pending appeal at the time.
    And I was just  its very frustrating, I was very depressed, very angry. You
    know, September came around  September 2016  and you know, the people I had
    been talking to all summer long had to, you know, go back to work or, you know,
    move along with their lives. My wife went back to work. My kids went back to
    school. And it just was like  you know  just a hit  like wow, this has
    really gone on another year. Thats  thats  like a very telling part, that, you
    know, geez, the kids are going to another  like my sonstarted at another
    school, he went to junior high, its a school Ive never seen. My kids are
    going to, you know, another year of school that Im missing. Im not  I used
    to be involved with the school quite a bit I was really isolated. You know,
    its three and a half years where I hadnt been able to play hockey, or play
    softball, because I have conditions. I couldnt work because of the bail
    conditions I was on. I was just alone and I  I went crazy, I dont know how
    else to explain it.



even with the appeal, the best case scenario
    for me was I was going to go back to the starting point with a retrial, which
    would just be  you know  the last three years and a half would be nothing.
    And thats pretty much what happens, and you know  thats supposed to be a
    good thing, and its  it wasnt. And its  I dont even feel now it is. Its
     its just tough, its really hard and  and I dont  I cant explain what I
    did. I cant condone it either, but it happened, and I  you know  Im  Im
    embarrassed of it, Im ashamed. Im going to have to at some point figure out
    how to explain that to my wife, my kids.

[46]

At the fourth step of the methodology, the trial
    judge was required to weigh the probative value of the discreditable conduct
    evidence against its prejudicial effects. Her finding that the probative value
    of the proposed evidence exceeded its prejudicial effect was based on a
    conclusory statement that she had weighed the factors for and against
    admissibility of the proposed evidence. The trial judge did not carry out this
    analysis in light of the basic premise that discreditable conduct evidence is
    to be presumptively excluded, and that this final step is meant to concretely analyze
    how the probative value of the evidence weighs against its prejudicial effects
    in the context of the trial as a whole.

[47]

On appeal, the Crown argued that even if it was an
    error to admit the discreditable conduct evidence, no harm was done in light of
    the following statement by the trial judge at the end of her judgment:

I pause to note that in the absence of the
    evidence of [the appellants] conduct in the fall of 2016, I would still have
    found A.M.s evidence is reliable. My findings of the charges, as summarized at
    para. 114 below, would not have changed in the absence of the evidence of other
discreditable conduct
.

[48]

This statement downplays the significance of the
    role that the discreditable conduct evidence played in the trial dynamic. It
    became the Crowns rhetorical platform in cross-examination and in argument,
    and was used as the underpinning for the trial judges credibility analysis. However,
    in this case, the discreditable conduct evidence could do no more than raise
    the forbidden inference, inferring guilt from general propensity.

[49]

Handy
noted
    that: A trial judge has no discretion to admit similar fact evidence whose prejudicial
    effect outweighs probative value.
[36]
A trial judge similarly has no discretion to admit discreditable conduct
    evidence whose prejudicial effect outweighs its probative value. The
    discreditable conduct evidence should not have been admitted, and its admission
    rendered the verdict unsafe.

F.

Disposition

[50]

I would allow the appeal, set aside the
    convictions and order a new trial.

Released: April 21, 2022 P.L.

P.
    Lauwers J.A.

I
    agree. G. Pardu J.A.

I
    agree. Sossin J.A.





[1]

R. v. W.(D.)
, [1991] 1
    S.C.R. 742.



[2]
S. Casey Hill, David M. Tanovich, Louis P. Strezos
,
McWilliams Canadian Criminal Evidence
, loose-leaf,
    5th ed. (Toronto: Thomson Reuters Canada, 2022), at para. 10-1.



[3]
I adopt with a slight variation the definition proposed in
McWilliams Canadian Criminal Evidence
, at
    para. 10:29.



[4]

R. v. B. (C.R.)
, [1990]
    1 S.C.R. 717, at p. 735.



[5]

B. (C.R.)
, at pp. 734-735.



[6]

R. v. Handy
, 2002 SCC
    56, [2002] 2 S.C.R. 908,
per
Binnie J.



[7]

Handy
, at para. 139.



[8]

I draw on but do not strictly follow the thinking laid out
    in
David M. Paciocco, Palma Paciocco & Lee Stuesser,
The
    Law of Evidence
, 8th ed. (Toronto: Irwin Law, 2020) [Paciocco et al.].



[9]

Handy
, at para.
    73.



[10]

Handy
, at para. 73.



[11]

See for example
,
R. v. Luciano
,
    2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 21722.



[12]
R. v. Tsigirlash
,

2019 ONCA 650.



[13]

Tsigirlash
, at para. 29.



[14]

R. v. Shearing
, 2002
    SCC 58, [2002] 3 S.C.R. 33, at para. 60 (citations omitted).



[15]
2018 ONCA 454, 361 C.C.C. (3d) 419, at para. 23.



[16]

R. v. S.C.
, at para. 14.



[17]
2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 91.



[18]

Paciocco et al., at p. 93.



[19]

Handy
, at para. 144.



[20]

R. v. D.(L.E.)
(1987),
    20 B.C.L.R. (2d) 384 (C.A.), at p. 399, revd [1989] 2 S.C.R. 111,
per
McLachlin J.A. (as she then was)
    dissenting and being cited with approval on appeal at p. 128.



[21]

Handy
, at para. 146.



[22]

Handy
, at para. 146.



[23]

R. v. McDonald

(2000), 135 O.A.C. 365, at para. 33.



[24]

Handy
, at para.
    139.



[25]
Paciocco et al., at p. 93.



[26]
Paciocco et al., at p. 93.



[27]
2018 ONCA 245.



[28]

R. v. J.W.
, 2013 ONCA
    89, 302 O.A.C. 205
, at para. 57, leave to appeal refused, [2013]
    S.C.C.A. No. 288.



[29]

Paciocco et al., at p. 95.



[30]

Paciocco et al., at p. 95.



[31]

Handy
, at para. 146.



[32]

Handy
, at para.
    148.



[33]

Handy
, at para.
    149.



[34]

Handy
, at para.
    150.



[35]

Paciocco et al., at p. 85.



[36]

Handy
, at para. 153.


