



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Z.W.C., 2021 ONCA 116

DATE: 20210225

DOCKET: C65451

Strathy C.J.O., Watt and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Z.W.C.

Appellant

Mark C. Halfyard, for the appellant

Tanya M. Kranjc, for the respondent

Heard: November 12, 2020 by video conference

On appeal from the convictions entered
    by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, sitting with a
    jury, on March 8, 2018.

Strathy C.J.O.:


A.

overview

[1]

The appellant was convicted by a jury on three
    counts of sexual assault against his wife, C.Q., and one count each of sexual
    assault and sexual interference against his daughter, C.L. The offences were
    alleged to have occurred in the City of Toronto between December 29, 2009 and
    December 19, 2014.

[2]

The appellant appeals his convictions on the
    ground that the trial judge erred in admitting evidence of the appellants
    alleged prior sexual and physical abuse of the complainants. The appellant
    submits that the volume and extent of this evidence had significant prejudicial
    effect on the jury, particularly, but not exclusively, by way of reasoning
    prejudice. He asserts that the trial judge failed to properly weigh the
    prejudicial effect of the evidence against its probative value. Had that
    balancing occurred, he argues that the trial judge would not have admitted the
    evidence, or would have curtailed the evidence and given the jury a more
    appropriate instruction about its permitted and prohibited uses.

[3]

For the reasons that follow, I would allow the
    appeal.

B.

background

[4]

The appellant and his wife, C.Q., were married
    in China in 1995. They have two daughters: C.L., born in July 1995, and L.L.,
    born in October 2001.

[5]

C.Q. came to Canada in March 2006 to work as a
    live-in nanny. She later sponsored the appellant and their daughters, who
    emigrated from China in December 2009.

[6]

Both C.Q. and C.L. claim that the appellant
    abused them, physically and sexually, before and after the family moved to
    Canada. Some of their allegations of sexual abuse in Canada formed the basis of
    the indictment. However, most of the evidence of uncharged prior discreditable
    conduct related to events that occurred in China. I will describe the acts
    referred to in the indictment before I turn to (1) the Crowns application to
    admit the evidence of uncharged prior discreditable conduct, and (2) the
    evidence that was eventually admitted pursuant to the trial judges ruling.

(1)

Allegations of C.Q.

[7]

C.Q. alleged that the appellant regularly forced
    intercourse upon her during their marriage. Most of these acts occurred when
    C.Q. was menstruating and had made it known to the appellant that she did not
    wish to have intercourse. Allegations relating to such acts in Canada after
    2009 formed count three, a global count of sexual assault.

[8]

The other two counts of sexual assault in
    relation to C.Q. concerned discrete incidents. The first was the subject of
    count four and occurred in the spring of 2011. C.Q. alleged that she was two
    months pregnant and asleep in bed when the appellant initiated intercourse. She
    asked him to stop because she was in pain. The appellant was not deterred and
    concluded the act some minutes later. The next morning, C.Q. felt pain in her
    abdomen and noticed that she was bleeding. She called an ambulance and was
    taken to Toronto East General Hospital, where doctors told her that she had
    suffered a miscarriage.

[9]

The second incident was the subject of count
    five and occurred in early 2014. C.Q. was in bed when the appellant lay on top
    of her and initiated intercourse. C.Q. was menstruating and asked the appellant
    to stop because she was in pain. The appellant ignored her pleas. As C.Q.
    continued to resist, the appellant held her hands above her head. The appellant
    eventually finished and fell asleep. The following morning, C.Q. found blood in
    her urine. She experienced abdominal pain for one month afterwards.

[10]

C.Q. did not report these assaults to police.
    However, in December 2014, when she was visiting C.L. at the Centre for
    Addiction and Mental Health (CAMH) in Toronto, she read a leaflet about sexual
    assault and learned that non-consensual sex is illegal in Canada. This
    convinced her to report the abuse to police.

(2)

Allegations of C.L.

[11]

C.L. alleged that the appellant regularly
    sexually assaulted her after the family moved to Toronto in December 2009. This
    conduct was the subject of counts one and two.

[12]

According to C.L., at nighttime, the appellant
    frequently came into the bedroom she shared with her sister. He read to L.L.
    until she fell asleep, and then moved to C.L.s bed and lay on top of her. The
    appellant kissed C.L. vigorously as he rubbed his body up and down hers.
    Although there was a blanket separating them, C.L. said that she could feel his
    penis between her thighs. C.L. sometimes called for her mother, but the
    appellant got off her before her mother arrived.

[13]

In 2010, C.L. called 911 to report the
    appellants abusive behaviour. She recanted her allegations when the police
    arrived because her mother had expressed fear that the family would be
    deported.

[14]

The assaults ended when C.L. was approximately
    16 or 17 years old. C.L. asked the appellant what a future husband would think
    about his abuse of her. The appellant warned C.L. that if she told anyone about
    his conduct, she would suffer devastating consequences.

[15]

In December 2014, C.L. disclosed the sexual
    abuse to a psychiatrist after she was admitted to CAMH. She subsequently
    reported it to police. On March 31, 2017, the appellant was charged with the
    offences at issue.

C.

THE UNCHARGED PRIOR DISCREDITABLE CONDUCT EVIDENCE

[16]

The Crown brought an application at the opening
    of the trial seeking to admit evidence of the appellants uncharged prior
    discreditable conduct. The Crowns application record, if there was one, was
    not made an exhibit at trial. We were, however, provided with a copy of the Crowns
    factum on the application. The appellant does not appear to have filed any
    materials in response to the Crowns application.

[17]

The parties did not adduce
viva voce
or
    other evidence on the
voir dire
. The evidence that the Crown proposed
    to admit was set out in its factum on the application as a short point-form
    summary. This evidence related primarily to instances of physical and sexual
    abuse in China, but included some events in Canada.

(1)

The uncharged prior discreditable conduct in relation to C.Q.

[18]

The Crown proposed to introduce the following
    evidence of the appellants conduct towards C.Q., all of which occurred in
    China before 2006:

·

In 1998, the appellant placed a butcher knife
    under his pillow and told C.Q. that she belonged to him;

·

Between 1998 and 2006, the appellant regularly
    sexually assaulted C.Q. when she was menstruating;

·

In 2001, the appellant sexually assaulted C.Q.
    within ten days of her giving birth to L.L.; and

·

Shortly after L.L.s birth, the appellant
    slapped C.Q. on the ear.

[19]

In March 2006, C.Q. moved to Canada on a
    two-year work permit. In July 2008, she visited China and stayed at the family
    home. The Crown proposed to introduce the following evidence of the appellants
    conduct towards C.Q. and C.L. during her visit to China between 2008 and 2009:

·

C.Q. witnessed the appellant grab C.L.s hair,
    push her to the ground, and step on her head. When C.Q. asked the appellant why
    he was doing this, he shoved her; and

·

The appellant resumed sexually assaulting C.Q.
    when she was menstruating.

[20]

The Crown also proposed to introduce the
    following evidence of the appellants conduct towards C.Q. in Canada between
    2009 and 2014:

·

In 2010, after C.L.s 911 call, C.Q. learned
    about C.L.s abuse and confronted the appellant, who not only denied the
    allegations but threatened to assault C.L. if she ever called police again; and

·

In 2014, C.Q. saw the appellant cut himself on
    the edge of a table in their family home, and he responded by chopping off the
    edge of the table using a cleaver.

(2)

The uncharged prior discreditable conduct in relation to C.L.

[21]

The Crown proposed to adduce the following
    evidence of the appellants conduct towards C.L. in China between 2006 and
    2009:

·

In 2006 or 2007, the appellant asked C.L. to
    sleep in the bed he shared with L.L. He subsequently climbed on top of C.L.,
    positioned his penis between her legs, and moved around;

·

On one occasion, the appellant got into the
    shower with C.L. and embraced her from behind, such that she felt his penis
    against her;

·

When C.L. threated to tell her friends and
    teachers about the appellants inappropriate touching, he told her that they
    would think she was a dirty whore; and

·

In July 2008, when C.Q. returned to China for a
    visit, the appellant grabbed C.L.s hair, pushed her into a wall, and hit her
    face.

[22]

The Crown also proposed to adduce the following
    evidence of the appellants conduct towards C.L. in Canada between 2009 and
    2014:

·

In 2010, C.L. called 911 after the appellant
    overheard a conversation that she was having with her sister. C.L. had told L.L.
    that the appellant was not the kind of person L.L. imagined him to be. The
    appellant interrupted C.L., pinched her arm, and hit her shoulder. C.L.
    ultimately recanted her allegations at C.Q.s insistence, but informed her
    mother about the appellants abusive conduct; and

·

Following the 911 call, the appellant repeatedly
    entered C.L.s bed at night and, after L.L. fell asleep, climbed on top of C.L.
    and rubbed his penis against her thighs. Two of these instances were the
    subject of counts one and two on the indictment.

D.

THE TRIAL JUDGES RULING TO ADMIT THE EVIDENCE

[23]

The Crowns application to admit the evidence of
    uncharged prior discreditable conduct hinged on three grounds. First, the Crown
    argued the evidence was necessary to establish 
animus
, specifically
    a pattern of control [and] a pattern of possessiveness  to do the very acts
    that [the appellant] is alleged to have done. Second, the Crown argued that
    the evidence would help contextualize the reason why C.Q. stayed in a
    relationship with the appellant. Finally, the Crown asserted that the evidence
    would explain why the complainants did not report the abuse to police. The
    Crown stated that the point of the evidence was to avoid an antiseptic record
    that left the jury without a real sense of the parties relationship.

[24]

Defence counsel objected to the application,
    claiming that the Crown had not given formal notice of its intention to adduce
    this evidence. He also argued that the evidence was highly prejudicial to the
    appellant and that he had no opportunity to properly challenge the
    complainants allegations. Defence counsel asserted that the appellant denied
    both the counts in the indictment and the evidence of prior discreditable
    conduct.

[25]

In brief oral reasons, the trial judge granted
    the Crowns application. The trial judge found that defence counsel had been
    aware of the Crowns intention to adduce the evidence since the pre-trial
    conference. With respect to the actual content of the evidence, he observed
    that there was an overwhelming body of case law permitting the introduction
    of such evidence to flesh out the narrative, to show
animus
, and,
    depending on how the evidence unfolded, to explain why the complainant spouse
    may have stayed in the marriage and delayed her reporting the abuse. The trial
    judge mentioned that, depending on the issues raised by the defence, he might
    be required to instruct the jury about the limited use of some aspects of the
    evidence.

[26]

The trial judge subsequently gave written
    reasons for his ruling on the application and for his ruling on the Crowns
    application to admit cross-count similar fact evidence:
R. v. C.W.Z.
,
    2018 ONSC 4080.

[27]

He began by reviewing the complainants
    allegations in relation to both the uncharged prior discreditable conduct and
    the counts on the indictment. He noted that the Crown sought admission of the
    former to explain: (a) the nature of the relationship, and the appellants
animus
in relation to the complainants; (b) the complainants fear of the appellant,
    specifically to explain why they had not previously reported their allegations;
    and (c) the reason why C.Q. had remained in the marital relationship.

[28]

The trial judge referred to
R. v. Handy
,
    2002 SCC 56, [2002] 2 S.C.R. 908, as the leading case on the admission of
    similar act evidence. He recognized that the Crown bore the onus of
    establishing, on the balance of probabilities, that the probative value of the
    evidence outweighed its prejudicial effect. In particular, the evidence must
    show more than a general propensity to commit the offence and must be of
    significance to a live issue in the charges before the court.

[29]

After identifying some of the factors to be
    considered when assessing the probative value of the evidence, the trial judge
    observed, at para. 51:

These factors must be evaluated through the
    lens of prejudice. A court must consider whether the issue to be proven by the
    evidence can be established by evidence of a lesser prejudicial nature. In
    addition, the court must be mindful of the risk that the evidence becomes a
    distraction drawing focus away from the actual offence and consuming a
    disproportionate amount of time ("reasoning prejudice").

[30]

The trial judge appreciated that this was not a
    case in which the similar act evidence was tendered to establish the identity
    of the offender. The question for the jury was whether the appellant had
    committed the
actus reus
of the offence. In a case such as this, the
    Supreme Court pointed out that the drivers of cogency in relation to the
    desired inferences will not be the same as they are in a case where the
    identity of the accused is in issue:
Handy
, at para. 78. The trial
    judge also referred to the observations of Watt J.A. in
R. v. J.M.
,
    2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 91:

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 accuseds conduct in closely defined circumstances.

[31]

The trial judge then reviewed several of this
    courts decisions in domestic violence cases, stating that the admission of
    uncharged prior discreditable conduct has long been seen as a valuable tool in
    assessing the nature of the relationship between an accused and the complainant
    as well as providing a clearer picture of the context in which the allegations
    took place. It is on this basis that it often derives strong probative value:
    see
R. v. Batte
(2000), 49 O.R. (3d) 321 (C.A.);
R. v. F. (D.S.)
(1999), 43 O.R. (3d) 609 (C.A.);
R. v. R. (B.S.)
(2006), 81 O.R. (3d)
    641 (C.A.). The trial judge cited this courts decision in
R. (B.S.)
,
    at para. 38, to explain that:

The evidence was admissible to explain the
    nature and dynamic of the relationship between the appellant and [the
    complainant], to demonstrate the appellant's animus toward [the complainant],
    to assist in explaining [the complainant]s delay in fully disclosing the
    assaultive acts of her husband, and to rebut the appellant's claim of
    fabrication by [the complainant]. Moreover, unlike the facts in
Handy
,
    the evidence in this case was provided by [the complainant] herself, and not by
    a third party.

[32]

The trial judge concluded that the evidence the
    Crown sought to adduce was an essential part of the narrative of events, and
    that without the evidence, the jury would be left with an incomplete and
    misleading account of the relationship between the appellant and the
    complainants. The jury might speculate on why the abuse only began in Canada.
    The trial judge noted the observation of Hill J. in
R. v. S.B.
, [1996]
    O.J. No. 1187 (Gen. Div.), at para. 31, that denying the jury this evidence
    runs the risk of presenting an entirely sterile and antiseptic record devoid
    of the realities of the individual circumstances of the participants. The
    evidence was highly relevant, and while it was undoubtedly prejudicial, the
    prejudice was significantly outweighed by the probative value. The trial judge
    said that he would give a limiting instruction to the jury, informing them of
    the proper use of the evidence.

E.

THE TRIAL

[33]

To fully appreciate the appellants submissions
    concerning the prejudicial effect of the evidence at issue, it is necessary to
    examine the dynamics of the trial and the way in which the evidence unfolded.

[34]

Jury selection took place on February 20, 2018,
    after the appellant had been arraigned before the jury panel. The next day was
    taken up with the Crowns application to admit the evidence. The evidentiary
    portion of the trial began on February 22, a Thursday. There were only four
    days of evidence, three of which were largely occupied by the complainants
    evidence. Two police officers testified on the third day about their response
    to C.L.s 911 call. The appellant testified on the fourth day.

(1)

The trial judges preliminary instructions

[35]

The trial began with the trial judges instructions
    to the jury, which were brief and generic. The trial judge did not inform the
    jury that they might be hearing evidence that was to be considered for a
    specific purpose in deciding the case and that they would be given an
    instruction about how to use the evidence in deciding the case at the time the
    evidence was introduced.

(2)

The Crowns opening

[36]

The Crowns
[1]
opening was brief, but dramatic. It began as follows:

Get off. Thats painful. Stop. It hurts. These
    are words [C.Q.] will tell you she said to her husband too many times to count.
    Her husband is the accused. And this case is about how he controlled his wife
    and their daughter [C.L.] through sexual and physical violence and threats of
    further violence in the privacy of their family home.

[37]

The Crown proceeded to describe some of the
    evidence that the jury would hear. She identified the following evidence in
    relation to the complainants in China:

·

the evidence of the appellant placing a knife
    under his pillow and threatening C.Q.;

·

the sexual assaults of C.Q. while she was
    menstruating;

·

the sexual assault of C.Q. after the birth of
    L.L.; and

·

the brutal assault of C.L. in front of her
    mother.

[38]

The Crown asked rhetorically, why not call
    police?, and indicated that C.Q. would explain her own understanding of how
    police dealt with domestic matters in China.

[39]

The Crown said that after C.Q. came to Canada,
    [the appellant] no longer had his wife at his disposal, and he began to
    sexually assault C.L. When C.L. was around 11 or 12 years old, the appellant
    gave her an allowance, but only after he had touched her inappropriately.

[40]

The Crown informed the jury that after the
    appellant and the children were reunited with C.Q. in Canada, the appellant
    continued to assault C.Q. when she was menstruating. The Crown also referred to
    a sexual assault in May 2011, when C.Q. was pregnant and the appellant
    assaulted her sexually so forcefully that the following morning the pain and
    vaginal bleeding drove her to call for an ambulance. The Crown then described
    a particularly violent sexual assault while C.Q. was menstruating in February
    2014, which required medical attention.

[41]

The Crown informed the jury that the sexual
    assaults of C.L. also continued in Canada. The Crown noted that the appellant
    told [C.L.] that she was dirty so often she began to believe it was true.
    The Crown described C.L. having called 911 after her father hit her
    particularly hard on one occasion, but said that C.L. recanted after her mother
    told her they might be deported.

[42]

The Crowns opening did not explain that some of
    the acts described were the subject of the charges against the appellant, and
    that some of the acts were only proffered to provide context or background.
    She did not specify which acts were the subject of the particular counts.

[43]

Defence counsel raised no objection to the
    Crowns opening at the time. However, when the trial continued the following
    Monday, and C.Q. was still being examined-in-chief, defence counsel expressed
    some lingering concern about the Crowns opening, describing it as
    sensational. He argued that the Crown had not flagged for the jury that her
    opening remarks were not evidence, and he expressed concern that the opening
    was not presented in a dispassionate and neutral way.

[44]

The trial judge did not give effect to this
    objection. He observed that while there was some rhetoric in the Crowns
    opening, it did not cross the line into argument. He pointed out that he had
    already instructed the jury that anything said by counsel was not evidence.

(3)

The evidence

[45]

As the Crowns case went in at trial, the jury
    heard a significant body of evidence from the complainants concerning the
    appellants uncharged prior discreditable conduct. Some of that evidence was
    anticipated by the trial judges ruling on the Crowns application, but much
    was not. It is necessary to review that evidence in order to appreciate its
    potential impact on the jury, and the risk of both moral prejudice and
    reasoning prejudice.

The Testimony of C.Q.

[46]

After the trial judges preliminary instructions
    to the jury and the Crowns opening, C.Q. was the first Crown witness. Her
    evidence-in-chief began on the morning of Thursday, February 22. It was not
    completed that day, and the trial was adjourned to Monday, February 26.

[47]

In response to a series of open-ended questions
    from the Crown, C.Q. described the following conduct of the appellant:

·

The appellant had been lying all through until
    the day I registered our marriage;

·

The appellant had lied about his age, saying he
    was three years older than her when he was actually younger;

·

The appellant told C.Q. that his mother was a
    doctor when he was really from a farming family;

·

C.Q. did not confront the appellant about these
    lies because she was already two months pregnant;

·

During her 20-year marriage to the appellant,
    she had all kinds of gynecological diseases;

·

Between the time C.Q. gave birth to L.L. in 2001
    and when she came to Canada in 2006, her relationship with the appellant was
    not good. The appellant smashed things at home, he cursed people at him
    [sic], and hit people; and

·

When C.Q. was staying at the hospital after
    L.L.s birth, the appellant did not bring any food to her, despite the fact
    that he was off work, and hospitals in China do not feed their patients. C.Q.
    was discharged one or two days later. The appellant apparently came home at
    midnight, drunk: I didnt know whether he was really drunk. He was sleeping on
    the floor. He was crying and screaming. He was swearing. He was smashing
    things. And then my baby [L.L.] was crying. I was worried that the baby would
    be scared, so I was holding my baby standing. [T]he next morning I felt that I
    had a lot of pain in both my knees and elbows. I didnt know what happened, and
    I went to see a doctor. The doctor said that I had rheumatic arthritis after
    giving birth.

[48]

Interspersed with this evidence, which was
    unrelated to the charges and had not been contemplated by the trial judges
    ruling, C.Q. testified about several matters that had been envisaged by the
    ruling, namely:

·

The relationship was not good. C.Q. described
    the appellant bringing a knife to their bed, and said that if I wanted to
    divorce, he would kill me, that I could only belong to him. And he also
    threatened that he would kill my family; and

·

The appellant forced intercourse on C.Q. when
    she was menstruating, and she got sick for almost a year.

[49]

At some point, the Crown asked the following
    question:

Q. And [C.Q.], is there any particular
    incident that stands out in your mind that causes you to describe the
    relationship at that time as not good?

[50]

In response to this question, C.Q. referred to
    another incident that had not been contemplated, either by the Crowns
    application or by the trial judges ruling:

A.

I remember very well one day he was off from work. [C.L.] was six
    years old at the time, and she wanted to go out and play. She said to me,
    because I have to take care of little [L.L.], I told her to go look for her
    dad. He went to bed the night before and slept until two or three in the
    afternoon the next day. [C.L.] went to wake him. I dont know how he hit  my
    daughter  I remember this incident during a psychological therapy. So, I
    remember this all of a sudden during a session. [C.L.s] face was covered with
    blood. I was standing there dumbfounded looking at her.

[51]

Before the Crown could continue with C.Q.s
    examination-in-chief, the trial judge called the morning break. Once the jury
    had left the court room, the trial judge expressed concern to the Crown about
    the manner in which the evidence had come out, because the whole point of
    allowing this evidence in is to show the relationship between the two of them.
    And Im concerned about this idea that well be hearing evidence that hes
    brutally beating his daughter, shes covered in blood. He reminded the Crown
    that the purpose of the evidence was to show the parties relationship, not to
    have [the appellants] acts somehow in front of the jury. He said to the
    Crown, [y]ou painted this danger of showing that hes this brutal assaulter,
    which I dont think is, was the purpose of my ruling.

[52]

The Crown agreed, saying that the incident
    described by the complainant was sadly unanticipated on her part.

[53]

The trial judge responded:

Just keep it general. Thats, I mean, the
    point of, just
keep it general
because its not,
    this is not something that, again, thats not the point of this evidence.
The point of the evidence is to show that they had a rocky
    marriage
. Its being adduced just
to show the
    state of the relationship, not to make him out to be a bad man
. So,
    thats why I cut you off, cut the sentence off when I did because I dont think
    its, its certainly not what it was meant to be admissible for.
So, just control your witness a little bit
. [Emphasis
    added.]

[54]

After a break of about 40 minutes, the jury
    returned, and the trial judge gave them a brief mid-trial instruction. He
    pointed out that the evidence heard to that stage of the trial related to
    events that had occurred before the counts on the indictment. He told them that
    the object of the evidence was to show them the nature of the relationship
    between the appellant and C.Q., and the state of their marriage prior to
    December 2009. He instructed that,

[W]hat youre not supposed to do and what you
    cannot do is take the evidence youve just heard and use it to say Well,
    because he did that he must be the type of person that committed the offences,
    the sexual assault contained in the indictment.  What you can use it for is
    to see what the state of the relationship was like prior to the sexual assault.

[55]

The Crown continued to lead the evidence of C.Q.
    Crown counsel asked whether there were any other incidents between the birth of
    C.Q.s two children that stood out in her mind. C.Q. proceeded to describe the
    incident contemplated by the trial judges ruling when the appellant had struck
    her on the ear:

When [C.L.] was around two or three years old,
    I took my daughter to go out to take milk, to pick up milk. When I came in, I
    didnt know why, he hit me all of a sudden on my face, slapped my face and my
    right ear. I lost hearing in the right ear for about a week. He used his left
    hand.

[56]

For the remainder of the morning, most of the
    evidence that the jury heard was related to the appellants uncharged prior
    discreditable conduct. Some of this was contemplated by the trial judges
    ruling, but some was not:

·

The appellant forced intercourse on C.Q. in
    China, only 10 days after the birth of their second child, L.L.: I was still
    bleeding. But he wouldnt listen, I said get off. He grabbed my hands with,
    both my hands and forced my hands to the back. And he was stronger than me. He
    was on top of me. He was moving really fast I remember. I wasnt free until he
    was done with himself;

·

While C.Q. was in Canada working as a nanny, and
    the appellant was living in China with her children, the appellant forced
    C.Q.s mother to leave their house because she could not look after their
    children: He kicked my mother out. He wouldnt allow my mother coming to visit
    the children. In 2008 when I went back to China to visit my family, I saw that
    my home was very messy and dirty;

·

When C.Q. visited China in 2008, she recalled an
    assault of her daughter, C.L.: I remember one day I was staying home with my
    two daughters. He came back. The three of us didnt say anything. He just
    grabbed [C.L.s] hair, my older daughters hair, and smashed her on the floor.
    And he was wearing leather shoes and he was stepping on my child, not only
    stepping on my daughters body but also on her head. I wanted to go protect my
    child. He pushed me away. I didnt know how he pushed me, but my spinal cord,
    my vertebrae was broken;

·

After the appellant came to Canada, he didnt
    have a job and stayed at home playing computer games: [H]e cursed me at home.
    He asked me to go look for a job for him. He smashed things at home; and

·

In or around 2013, the appellant scraped his
    thigh on the familys living room table. The appellant respondent by retrieving
    a kitchen knife and chopping off the corner of the table: I felt he was a
    crazy man. Because when we were in China, he told me that he punched a man and
    broke the mans nose.

[57]

Eventually, C.Q.s evidence turned to the events
    that had occurred in Canada and were the subject of the indictment. The Crown
    asked C.Q. to listen carefully to her question and to only answer what was
    asked. The Crown observed that C.Q. had identified an incident in China when
    the appellant forced intercourse upon her while she was menstruating, and asked
    whether something similar had happened in Canada. C.Q. replied affirmatively, and
    the Crown asked her to describe the assault in further detail. C.Q. proceeded
    to give an unresponsive answer that related to count four. C.Q. described an
    event in 2011, when she was two months pregnant, and the appellant forced
    intercourse on her. She told him it hurt and asked him to stop, but he was
    undeterred. The next day, C.Q. felt a pain in her abdomen and noticed that she
    was bleeding a little. She called an ambulance and was taken to the hospital
    where she was told by doctors that she had suffered a miscarriage.

[58]

The Crown returned to the question that prompted
    this response and asked C.Q. whether the appellant had ever forced intercourse
    on her in Canada while she was menstruating. C.Q. replied by stating that the
    appellant had told her that if he did not have sex regularly, he would feel
    hurt and have [a] prostate infection or something like that. He was really
    intimidating. C.Q. recounted that the appellant would assault her when she was
    menstruating, every month.

[59]

After the lunch recess, the Crown asked C.Q.
    about an assault by the appellant in early 2014 (apparently, count five). C.Q.
    recalled that the appellant had been watching something on his computer,
    something weird maybe, when she went to bed. At some point, in the middle of
    the night, the appellant got on top of her. C.Q. asked the appellant to get off
    and informed him that she was having her period. The appellant did not stop.
    The next day, C.Q. had blood in her urine, not period blood, and abdominal
    pain.

[60]

The Crown subsequently directed C.Q. to the
    incident of the 911 call in 2010. C.Q. recounted that C.L. called her to say
    that the appellant had assaulted her, and that C.L. had called police. C.Q.
    immediately spoke to a friend who told her not to engage with the police because
    they were new immigrants, and her family could be sent back to China.

[61]

C.Q. testified that she relayed her friends
    information to C.L. After the police left the family home, C.Q. remembered that
    C.L. disclosed the appellants abuse to her. When C.Q. confronted the
    appellant, he became angry, smashed his computer mouse, and told C.Q. to take
    [C.L.] to the hospital to check if she is still a virgin.

[62]

C.Q. admitted that she had observed the
    appellant lying in the bed with C.L. on one occasion. C.Q. had heard C.L.
    yelling about the appellant being in her bed and went to see what was happening
    in her daughters bedroom. C.Q told the appellant to leave the bedroom and said
    that because the children were growing up, he had to be careful with his
    behaviour. C.Q. testified that the appellant threw a temper tantrum. He
    responded that he would beat [C.L.] until she is handicapped  until she is
    mentally retarded.

[63]

C.Q.s examination-in-chief ended with an
    explanation of how she came to speak to police about her allegations against
    the appellant. According to C.Q., the appellant was ordered by the Childrens
    Aid Society to leave the family home in December 2014. Around the same time,
    C.Q. learned that her daughter, C.L., had become a patient at CAMH. C.Q.
    visited C.L. at the CAMH facility in Toronto and read a leaflet that explained
    that non-consensual sex was illegal in Canada. C.Q. testified that she
    ultimately reported her abuse to police in January 2015.

[64]

The cross-examination of C.Q. by defence counsel
    was relatively brief. C.Q. was a difficult witness, and she was not directly
    challenged in relation to her evidence concerning the appellants uncharged
    prior discreditable conduct or the counts contained in the indictment. Defence
    counsel suggested that C.Q. and C.L. had conspired to convict the appellant so
    that he would be put in jail and would not be able to access the proceeds of a
    house sale in China. He also suggested that C.Q. would not have left the
    children with the appellant if the appellant was really the abusive and violent
    person she had described. Defence counsel put to C.Q. that she had relatives in
    China who were police officers, presumably to imply that she could have
    reported the appellants conduct to police if it had actually occurred. In
    addition, defence counsel drew the jurys attention to C.Q.s pre-existing
    medical conditions to provide an explanation for her symptoms and doctors
    visits after the alleged assaults.

The Testimony of C.L.

[65]

The trial judge did not give the jury an additional
    mid-trial instruction before they heard the evidence of C.L.

[66]

It was apparent from the outset of C.L.s
    evidence that she bore considerable hostility towards the appellant. After
    eliciting some general background information, the Crown asked, [P]rior to you
    being around 10 years old and your mom coming to Canada what was your
    relationship like with your dad? The complainant replied:

[I]ts been a disgusting memory from an
    experience and, like, the relationship, its, like, retarded. Hes retarded.
    Um, I, I dont know. How do you want to me to describe it?

[67]

The Crown then asked an open-ended question:
    Prior to your mother coming to Canada are there any incidents involving you
    and [the appellant] that stand out in your mind?

[68]

In response, C.L. described an incident, not
    referred to in the Crowns application or the trial judges ruling, saying that
    the appellant punished her when she got low marks at school. C.L. recalled that
    on one occasion, the appellant had woken her up during the night and made her
    sit on her knees until morning.

[69]

The Crown prompted C.L. to speak about her
    relationship with the appellant after her mother had left for Canada. C.L. said
    that when she reached puberty around the age of 12, she learned nasty things
    from him that I wish I could have not. C.L. described a particular incident in
    China that she remember[ed] really well. The appellant had asked her to sleep
    in the bed that he shared with her sister, L.L. After L.L. fell asleep, the
    appellant moved on top of C.L. claiming to look at the clock on the wall. C.L.
    said that she could feel his penis between her thighs.

[70]

During her testimony, C.L. revealed that similar
    assaults had occurred on multiple occasions. She said that one night, she
    panicked and threatened to tell her teacher about what the appellant was doing.
    The appellant replied that her teachers would not believe her and would think
    she was dirty. C.L. stated that in the Chinese culture its, like, the victims
    are always blamed.

[71]

C.L. also described two discrete incidents that
    took place in China while her mother was in Canada. The first occurred in the
    kitchen of their family home. The appellant kissed C.L. on the mouth and
    touched her all over the place, and she suddenly realized that her underpants
    were halfway down her thighs. The defence objected at this point to the
    evidence on the basis that it was detailed rather than general. The trial
    judge did not give effect to the objection, stating that the evidence simply
    showed how the assaults started happening before the family immigrated to
    Canada, and, as a result, was admissible pursuant to his ruling.

[72]

C.L. then described the second discrete incident
    in China. According to C.L., the appellant came into the bathroom when she was
    taking a shower and began to wash her back. He proceeded to hug her from
    behind, and she saw his penis coming out from his briefs.

[73]

C.L. explained that she did not tell anyone
    about the abuse in China because she was afraid how she would be perceived. In
    addition, C.L. started to receive an allowance after the appellant touched her
    inappropriately, and she was unsure whether everybody goes through [it] or is
    it just me? C.L. recalled that she wanted to protect her sister and simply did
    not have the mental energy to fight with the appellant.

[74]

The Crown subsequently directed C.L. to 2008,
    when C.Q. visited her family in China. C.L. confirmed an incident when the
    appellant became angry at her for siding with her mother, and started pulling
    her hair and hitting her head on the bed or the wall.

[75]

As the Crown began to turn to the events in
    Canada, the trial judge interrupted, excused the jury, and noted that there is
    a lot of editorial comments now coming out. The trial judge instructed C.L. to
    listen to the questions that are being asked  and [to] just answer them
    directly.

[76]

Upon the jurys return, C.L. described the 911
    incident in Canada. C.L. recounted that the appellant had overheard her
    conversation with L.L. The appellant came into the bathroom where the sisters
    were, and pinched C.L.s arm, squeezing all of the blood out of my vein. C.L.
    called 911, but she recanted her allegations because C.Q. was afraid that they
    would get deported.

[77]

C.L. testified that, in Canada, the appellant
    continued to enter the bedroom she shared with her sister and get into her bed.
    When L.L. was asleep, the appellant would lie on top of her, kiss her, and move
    up and down on her body so that she could feel his penis. C.L. said that this
    occurred approximately once a week.

[78]

C.L. believed that the assaults stopped when she
    was approximately 16 or 17 years old, when she asked the appellant what her
    future husband would think about his behaviour. Although the appellant warned
    her not to tell anyone what had happened, he did not abuse her again.

[79]

C.L. confirmed C.Q.s allegation that the
    appellant chopped off the corner of their living room table one night. She also
    confirmed that she was staying at CAMH in December 2014 when she was encouraged
    by a psychiatrist to report the abuse to police.

[80]

C.L. proved to be a combative witness in
    cross-examination. At one point, the trial judge interrupted defence counsel
    because his exchange with C.L. was getting heated.

[81]

C.L. rejected defence counsels suggestions that
    she had fabricated her allegations to make herself feel like she belonged in
    her family and to justify her bad grades in university. She also rejected
    defence counsels suggestion that she had lied in her 911 call about the
    appellants abuse of her.

The Testimony of the Appellant

[82]

The appellant testified. He denied having abused
    his wife and daughter. He stated that he was fearful of his wife, C.Q., because
    she came from a powerful family in China. He also claimed that his daughter
    hated him because he was strict, would not permit her to date, and disciplined
    her to make sure she did well at school. He mentioned that he was not entirely
    certain about why C.Q. and C.L. had made up the allegations against him, but he
    insisted that they were lying.

(4)

Closing submissions

[83]

In closing, defence counsel suggested to the
    jury that the complainants allegations, both the uncharged prior discreditable
    conduct and the substantive offences, never happened. C.L. had fabricated a
    story to explain her bad grades, to hurt her father, and to establish her worth
    in the family. Defence counsel posited that C.Q. had made up her own stories of
    abuse to make C.L.s evidence more believable. C.Q. wanted to have the
    appellant put in jail so that she could have sole access to the proceeds of the
    sale of a house that the couple owned in China.

[84]

The Crowns closing recapped the evidence in
    order to demonstrate that the complainants testimonies were credible and
    reliable. The Crown urged the jury to find that the appellant had sexually
    assaulted the complainants in the manner they had described.

(5)

Jury instructions

[85]

In his charge to the jury, the trial judge gave
    an additional instruction regarding the limited use of the evidence of
    uncharged prior discreditable conduct. He explained that the evidence of events
    before the appellants move to Canada in 2009 had been adduced for a limited
    purpose:

The purpose is: (1) to allow you to understand
    the nature of and the state of the family relationship prior to the sexual
    assault allegations and the sexual interference allegations contained in the
    indictment; (2) to demonstrate [the appellants] animus or dislike of [C.Q.]
    and [C.L.]; and (3) to explain why their allegations were not reported earlier.

[86]

The trial judge cautioned the jury that these
    were the only uses they could make of this evidence. He also explained the uses
    they could not make of the evidence:

[Y]ou cannot use the evidence of that conduct
    to conclude or help you conclude that the offences with which [the appellant]
    is actually charged, likely took place because [the appellant] is simply a person
    of bad character or disposition, who likely committed the offences charged
    because of that character or disposition. In other words, you cannot rely on
    that evidence as proof that [the appellant] is the sort of person who would
    commit the offences charged. And on that basis, infer that [the appellant] is
    guilty.

[87]

As I will discuss below, in the circumstances of
    this case, the trial judges instruction ought to have included a caution
    against reasoning prejudice.

F.

THE JURYS VERDICT AND SENTENCE

[88]

The appellant was convicted on all five counts.
    He was sentenced to six years imprisonment, three years consecutive in
    relation to each complainant.

G.

THE PARTIES SUBMISSIONS ON APPEAL

(1)

The Appellant

[89]

The appellant concedes that the evidence in
    question had probative value in relation to three issues: (1)
animus
;
    (2) the complainants failure to report their allegations; and (3) C.Q.s
    decision to remain in the marital relationship. He submits, however, that the
    trial judge erred in law by focusing almost exclusively on the probative value
    of the evidence of uncharged prior discreditable conduct, failing to consider
    the potential for prejudice, particularly reasoning prejudice, and failing to
    balance that prejudice against the probative value of the evidence.

[90]

The appellant contends that in assessing the
    prejudicial effect of the evidence, the trial judge should have considered the
    volume and extent of the evidence and its impact on the jury. The evidence
    consumed approximately one-third to one-half of both complainants
    evidence-in-chief. In addition, the allegations were unproven and spanned an
    eight-year period in China. The nature and the volume of the evidence, taken
    together with the unstructured manner in which it was presented at trial, could
    have distracted the jurys attention from the offences with which the appellant
    was charged. The evidence could have also inflamed their passions, with the
    result that the appellant was tried, not on the counts in the indictment, but
    on his uncharged prior discreditable conduct. The appellant asserts that the
    trial judges limiting instruction was insufficient to deal with reasoning
    prejudice. He argues that his right to a fair trial was impaired, and a new
    trial is now required.

(2)

The Respondent

[91]

The Crown submits that the trial judge made no
    error in his analysis of the probative value and the prejudicial effect of the
    evidence. According to the Crown, the trial judge articulated the correct test
    and turned his mind to the possibility that both types of prejudice might arise.
    He ultimately determined that the probative value of the evidence outweighed
    its prejudicial effect. The Crown reminds us that the trial judges decision is
    owed substantial deference.

[92]

The Crown maintains that the manner in which the
    evidence was adduced at trial did not distract the jury. The trial was
    relatively brief, the evidence came from the complainants rather than from a
    third party, and the uncharged conduct was no more heinous than the offences
    with which the appellant was charged. The Crown points out that the trial judge
    intervened in the examinations of witnesses as needed and provided two limiting
    instructions to the jury, one mid-trial and the other in his final
    instructions. In the Crowns submission, the trial judge took all the necessary
    steps to ensure that the appellants rights were not infringed. The Crown
    requests that the appeal be dismissed.

H.

ANALYSIS

(1)

The governing principles

[93]

A judge at a criminal jury trial acts as a
    gatekeeper to ensure that only relevant, material, and admissible evidence is
    put before the jury. Evidence is relevant if it tends to prove what it is
    offered to prove. It is material if what it tends to prove is something with
    which the law is concerned. And it is admissible if it meets the other two
    requirements, its reception does not offend an exclusionary rule of evidence,
    and its probative value exceeds its prejudicial effect
: R. v. J.H.
,
    2020 ONCA 165, at para. 52, citing
R. v. Calnen
, 2019 SCC 6, [2019] 1
    S.C.R. 301, at paras. 107-9;
R. v. J.A.T.
, 2012 ONCA 177, 288 C.C.C.
    (3d) 1, at para. 49.

[94]

One of the greatest challenges faced by a trial
    judge is a request by the Crown to introduce evidence of an accuseds uncharged
    prior discreditable conduct  sometimes called extrinsic discreditable
    conduct evidence, because it is extrinsic to the conduct on which the
    indictment is based. In a judge-alone trial, experience and training enables
    the judge to appreciate the purposes for which such evidence is proffered, and
    to self-instruct on its limited use(s). A jury obviously does not have the
    benefit of that training and experience to assist them in discriminating
    between permitted and prohibited logical thought processes when judging the
    conduct of an accused. The jury can all too readily use the evidence for an
    improper purpose. For example, the jury may conclude that the accused is a bad
    person who did bad things and ought to be punished, whether or not they
    committed the offences with which they are charged. And, as will be described
    below, there is a risk that evidence of uncharged allegations will confuse the
    jury and cause them to lose track of what the trial is all about  whether the
    prosecution has proven each of the counts on the indictment beyond a reasonable
    doubt.

[95]

For these reasons, a trial judge must take great
    care to ensure that such evidence goes before the jury only after a
    determination that its probative value outweighs its prejudicial effect. If the
    evidence is admitted, the jury must be instructed, in an appropriate and timely
    way, about the proper and improper use(s) of the evidence. In order to make
    that distinction, the jury must be clearly informed of the purpose for which
    specific pieces of evidence may be used.

[96]

The starting point, however, is that evidence of
    the accuseds uncharged prior discreditable conduct is
presumptively
    inadmissible
. This is due to the exclusionary rule against evidence of
    general propensity, disposition, or bad character:
Handy
, at para. 36.
    See also
Morris v. The Queen
, [1983] 2 S.C.R. 190, at pp. 201-2,
per
Lamer J. (dissenting, but not on this point);
R. v. Morin
, [1988] 2
    S.C.R. 345, at pp. 367-68;
R. v. B. (C.R.)
, [1990] 1 S.C.R. 717, at
    pp. 734-35; and
R. v. Arp
, [1998] 3 S.C.R. 339, at para. 40. Evidence
    of general propensity, disposition, or bad character is
inadmissible
if it only goes to establishing that the accused is the type of person likely
    to have committed the offence(s) in question:
Handy
, at para. 53,
    citing
Arp
, at para. 41. See also
J.A.T.
, at para. 51;
R.
    v. R.O.
, 2015 ONCA 814, 333 C.C.C. (3d) 367, at para. 15. Such evidence is
    also generally inadmissible when it is tendered to establish character, as
    circumstantial proof of the accuseds conduct:
Handy
, at para. 31;
R.
    v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 221.

[97]

This rule of exclusion does, however, yield on
    exceptional occasions:
Handy
, at paras. 60, 64. Evidence of
    uncharged prior discreditable conduct may be admitted if it is relevant,
    material, and the Crown establishes, on the balance of probabilities, that its
    probative value outweighs its prejudicial effect:
J.H.
, at para. 54,
    citing
Handy
, at para. 55;
Luciano
, at para. 222; and
J.A.T.
,
    at para. 51. In
J.H.
, at paras. 56-60, Watt J.A. described the
    procedure to determine the admissibility of such evidence on a Crown application.

[98]

The assessment of the probative value of the
    evidence requires the trial judge to consider: (a) the strength of the evidence
    that the extrinsic acts in question occurred; (b) the connection between the
    accused and the similar acts, and the extent to which the proposed evidence
    supports the inferences the Crown seeks to make (sometimes referred to as the
    connectedness between the similar act evidence and the questions in issue);
    and (c) the materiality of the evidence  that is, the extent to which the
    matters the evidence tends to prove are live issues in the proceeding: see
    David Paciocco, Palma Paciocco & Lee Stuesser,
The Law of Evidence
,
    8th ed. (Toronto: Irwin Law, 2020), at pp. 74-75.

[99]

The second and third factors must not be glossed
    over. The Crown must be prepared to establish exactly what inferences it will
    be asking the jury to draw from the evidence, and the extent to which the
    evidence tends to permit those inferences.

[100]

Defence counsel should also be prepared to
    identify, to the extent possible, the issues that will actually be in play at
    trial. This may serve to eliminate the Crowns need to adduce the evidence, or
    to limit the evidence required.

[101]

Having assessed the probative value of the
    evidence, and the issues to which it is relevant, the trial judge must examine
    the prejudicial effect of the proffered evidence and balance it against its
    probative value. It is well-established that prejudice in this context comes
    in two forms: so-called moral prejudice and reasoning prejudice.

[102]

Moral prejudice refers to the risk that the jury
    may convict the accused on the basis of bad personhood:
R. v. McDonald
,
    2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 83, citing
Handy
, at
    paras. 31, 71, 100, and 139. That is, not on the basis of the evidence, but on
    the basis that the accused is a bad person who is likely to have committed the
    offences with which they are charged. There is a related concern that the jury
    may punish the accused for their prior bad acts as revealed in the evidence
    of the uncharged prior discreditable conduct:
R. v. D.(L.E.)
, [1989] 2
    S.C.R. 111, at pp. 127-28.

[103]

Reasoning prejudice, in contrast, diverts the
    jury from its task, and describes the risk that the jury will give the evidence
    more weight than is logically justified: see
R. v. Bent
, 2016 ONCA
    651, 342 C.C.C. (3d) 343, at para. 46;
R. v. Lo
, 2020 ONCA 622, at
    para. 111;
Handy
, at para. 31. Reasoning prejudice may include the
    following:

·

The jury becomes confused by evidence extrinsic
    to the charges on the indictment. Specifically, the jury may become confused
    by the multiplicity of incidents, and become distracted by the cumulative force
    of so many allegations from their task of deciding carefully each charge one by
    one:
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68;

·

The jury is distracted from the actual charges,
    and confused about which evidence relates to the crime charged and which
    evidence relates to the similar fact incidents:
Handy
, at para. 100;

·

The evidence awakens in the jury sentiments of
    revulsion and condemnation that deflect them from the rational, dispassionate
    analysis upon which the criminal process should rest:
Calnen
, at
    paras. 176, 180,
per
Martin J. (dissenting in part, but not on this
    point);

·

The accused cannot properly respond to the
    extrinsic evidence due to the passage of time, surprise, and/or the collateral
    nature of the inquiry: Paciocco, at p. 70; and

·

Trial time is consumed by unduly focusing on
    whether the similar acts occurred:
Handy
, at paras. 83, 144. See also
R.
    v. Grant
, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 39.

[104]

In assessing the prejudicial effect of the
    evidence, the trial judge may consider a variety of factors, including: (a) how
    discreditable the conduct is  the more inflammatory and egregious the conduct,
    the greater the likelihood of moral prejudice:
Lo
, at para. 114,
    citing
Handy
, at paras. 83, 100, and 140; (b) the extent to which the
    evidence may support an inference of guilt based solely on bad character; (c)
    the extent to which the evidence may confuse the jury; and (d) the ability of
    the accused to respond to the evidence:
Luciano
, at para. 233, citing
R.
    v. B. (L.)
(1997), 35 O.R. (3d) 35 (C.A.), leave to appeal refused, [1997]
    S.C.C.A. No. 254.

[105]

After considering the prejudicial effect of the
    evidence, the trial judge is required to engage in the familiar task of
    balancing the prejudicial effect against the probative value.

(2)

Uncharged prior discreditable conduct evidence in intimate partner
    violence cases

[106]

As the trial judge accurately observed, evidence
    of uncharged prior discreditable conduct has frequently been admitted in
    domestic violence cases to describe the nature of the parties relationship,
    sometimes referred to as context or background. It is on this basis that
    the evidence is said to have probative value.

[107]

Evidence of uncharged prior discreditable
    conduct has also been used to establish 
animus
, which may be
    relevant to both the
actus reus
and the
mens rea
of the
    offence(s). As described by the authors in the
Law of Evidence
, at p.
    90:

Where such evidence demonstrates a strong
    disposition to act violently or sexually towards the victim, it is not being
    used to prove the bad character of the accused but, as
R. v. Batte
explained, to support the specific inferences that the accused is disposed to
    act violently (or sexually)
towards the victim
and that the accused
    had that disposition on the occasion in question.

[108]

In
J.H.
, at paras. 54-55, Watt J.A.
    observed that the exercise of whether or not to admit the uncharged prior
    discreditable conduct evidence in domestic assault trials is inherently
    case-specific. He described this as follows:

Whether the evidence will be admitted by
    exception or excluded under the general rule is a function of the circumstances
    of each case. These circumstances determine where the balance as between
    probative value and prejudicial effect will settle, not some prefabricated rule
    or exclusive list of exceptions:
J.A.T.
, at para. 54.

Despite the absence of any such rule or list
    of exceptions, evidence of uncharged disreputable conduct has often been
    received in prosecutions alleging assaultive behaviour in a domestic
    relationship, including charges of sexual assault. Among the issues upon which
    this evidence has been admitted are these:

i. as part of the narrative of relevant
    events;

ii. to provide context for other evidence;

iii. to facilitate understanding of the nature
    of the relationship between the principals;

iv. to demonstrate motive or
animus
on the part of the accused for committing the offences;

v. to explain the failure of the complainant
    to leave the relationship or to report the abuse earlier; and

vi. to rebut a claim of fabrication.

See also
F. (D.S.)
, at pp.
    616-17;
R. (B.S.)
, at para. 38.

[109]

If evidence of uncharged prior discreditable
    conduct has probative value, for one of the reasons described above, and is
    admitted, the trial judge is
required
to instruct
    the jury on its use. That instruction should identify the evidence in question,
    and explain the permitted and prohibited uses of the evidence:
R. v. Largie
,
    2010 ONCA 548, 101 O.R. (3d) 561, at para. 107, leave to appeal refused, [2010]
    S.C.C.A. No. 460, [2011] S.C.C.A. No. 119.

[110]

Ultimately, the trial judges balancing of the
    probative value and the prejudicial effect of the evidence is entitled to
    significant deference, absent an error in law or principle, a misapprehension
    of material evidence, or a decision that is plainly unreasonable:
Lo
,
    at para. 116, citing
R. v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at
    paras. 31, 38;
Shearing
, at para. 73. See also
R. v. James
(2006), 84 O.R. (3d) 227 (C.A.), at para. 33, leave to appeal refused, [2007]
    S.C.C.A. No. 234.

[111]

There may be situations where, having assessed
    the prejudicial effect of the proposed evidence, the trial judge determines
    that the evidence is so prejudicial that it must be excluded in its entirety.
    If, however, the trial judge determines that the probative value of the
    evidence outweighs its prejudicial effect, then the trial judge is required to
    take measures to minimize the prejudicial effect of the evidence and to prevent
    its misuse. In addition to a limiting instruction, there are several options.

[112]

The trial judge does not have to admit
all
the evidence tendered by the Crown. As the trial
    judge here noted, one must consider whether the issue to be proven by the
    evidence can be established by evidence of a lesser prejudicial nature: see
Handy
,
    at para. 83. The trial judge may thus limit the volume and extent of evidence
    that the Crown is permitted to adduce.

[113]

In addition, or alternatively, the trial judge
    may admit the evidence, but only on the condition that it is edited, or it is
    adduced in a more restricted form, such as a statement or through excerpts of
    evidence at the preliminary hearing: see Paciocco, at p. 95, referring to
Shearing
,
    at para. 142;
R. v. McLean
(2002), 170 CCC (3d) 330 (Ont. C.A.), at
    para. 20.

(3)

Application of the Principles

[114]

While evidence of uncharged prior discreditable
    conduct has been routinely and properly admitted in cases of intimate partner
    violence, this is not by way of a categorical exception to the presumptive
    inadmissibility of such evidence: see
J.H.
, at para. 55. Its
    well-known dangers must be kept front and centre in a case-specific analysis,
    balancing the probative value and the prejudicial effect of the evidence. This
    analysis requires a close look at the evidence the Crown proposes to admit, the
    issues to which it will be directed, and the manner in which it will be
    presented.

[115]

Although the trial judge acknowledged the
need
to assess both moral prejudice and reasoning
    prejudice, and found that the evidence was undoubtedly prejudicial, he did not
    actually consider the nature and extent of the reasoning prejudice that could
    arise, or balance that prejudice against the probative value of the evidence.
    Returning to the factors identified earlier in the assessment of the
    prejudicial effect of the evidence of uncharged prior discreditable conduct, we
    see that: (a) the evidence was highly discreditable, and included the alleged
    sexual assault of C.Q. when she was recovering from childbirth, a physical
    assault of C.L. as a young child, and multiple sexual assaults of both C.Q. and
    C.L. in China; (b) the evidence gave rise to significant moral prejudice, and a
    risk that the jury would infer the appellants guilt based on bad character;
    (c) the evidence introduced the real risk of reasoning prejudice by confusing
    the jury about which acts the appellant was being tried for; and (d) the
    evidence limited the appellants ability to respond, because the events
    occurred many years earlier in China, and any attempt to challenge the
    complainants allegations would likely have simply emphasized them in the
    jurys eyes.

[116]

A proper consideration of the evidence and its
    potential prejudicial effect should have led the trial judge to consider
    whether there were ways in which to mitigate its impact while preserving its
    probative value. It might have persuaded him to give a more timely and
    effective mid-trial instruction that prepared the jury for the reception of the
    evidence, explained how the evidence should be used, and cautioned them against
    its misuse.

[117]

As the trial progressed, however, the prejudice
    was amplified by the manner in which the Crown presented the evidence  priming
    the jury with a dramatic opening statement, and front-end loading the trial
    with C.Q.s lengthy and graphic recitation of various sexual and physical
    assaults allegedly perpetrated by the appellant in China, distinct in time from
    the offences with which the appellant was charged.

[118]

I agree with the submission of appellants
    counsel that the volume and extent of this evidence was significant. Much of it
    went well beyond the parameters contemplated by the Crowns application and the
    trial judges ruling. Moreover, the mid-trial instruction (which occurred after
    some of the most prejudicial evidence had been admitted) did not provide the
    jury with an adequate framework in which to understand the permitted use of
    this evidence, and to protect against its improper use. Neither the mid-trial
    instruction nor the trial judges final instruction identified the serious risk
    of reasoning prejudice in this case, or explained to the jury how it could be
    avoided.

[119]

I conclude that the trial judges failure to
    assess and balance the prejudicial effect of this evidence was an error of law.
    It allowed the probative value to overwhelm his analysis, and led to a body of
    highly prejudicial evidence being admitted at trial, unfiltered and
    uncontrolled. The prejudice was significant, in part due to the Crowns failure
    to lay an appropriate foundation for the jurys reception of the evidence, and
    in part due to the manner in which the evidence unfolded at trial. There is a
    real risk that the jury convicted the appellant for his uncharged prior
    discreditable conduct, and not for the offences with which he was charged.

[120]

The risk was not attenuated by the jury
    instruction, which was focused on moral prejudice rather than reasoning
    prejudice. In the result, a new trial is required.

I.

ADDITIONAL OBSERVATIONS

[121]

Experience shows that trials all too often go
    off the rails due to the admission of unnecessary or excessive evidence of an
    accuseds prior discreditable conduct. As this appeal demonstrates, such
    evidence can prolong the trial, confuse the jury, and result in unfairness to
    the accused. The benefit of hindsight permits me to suggest how some of the
    challenges in this trial might have been addressed.

(1)

The responsibility of the Crown

[122]

In considering whether to proffer evidence of
    prior discreditable conduct, the Crown must start from the principle that such
    evidence is presumptively inadmissible, and its introduction is exceptional. It
    must be confined to cases in which the evidence is necessary, and where its
    probative value exceeds its prejudicial effect, having regard to both moral
    prejudice and reasoning prejudice. Vague terms, such as narrative, context,
    and background, cannot be permitted to serve as a substitute for a careful
    assessment of how the evidence will assist the jury in understanding other
    admissible evidence, what inferences the jury may properly draw from the
    evidence, and how impermissible reasoning can be prevented.

[123]

The Crown must also provide a specific
    foundation for the admission of the evidence, to enable the trial judge to
    appreciate the nature and scope of the evidence it proposes to adduce, and to
    assess whether the probative value of the evidence exceeds its prejudicial
    effect.

[124]

In this case, the trial judge may not have had
    the benefit of a full evidentiary record on the Crowns application to admit
    evidence of the appellants uncharged prior discreditable conduct. There is no
    reference to a record in the Crowns factum in the court below, no reference to
    it in the parties submissions on the
voir dire
, and no reference to
    it in the trial judges reasons. An appropriate record could have included
    extracts from the complainants evidence at the preliminary hearing or possibly
    other prior statements. This might have prompted the trial judge to press the
    Crown on whether the volume and extent of evidence could have been reduced, or
    whether the evidence could have been adduced in a more controlled manner.

[125]

If the evidence is admitted, the Crown must take
    care to control the flow of the evidence so that it comports with the trial
    judges ruling and minimizes the risk of prejudice. It is apparent from the
    trial record in this case that the evidence of both complainants went well
    beyond the scope of the trial judges ruling.

(2)

Eliminating or minimizing prejudicial effect

[126]

Both the Crown and defence must turn their minds
    to whether the necessity for the evidence can be eliminated, or its prejudicial
    effects reduced, by appropriate admissions or undertakings. The trial judge
    should press them to explore alternatives to the admission of the evidence, or
    to reduce its impact.

[127]

In this case, the trial judge found that the
    evidence was admissible for three reasons: (a) to prove
animus
and the
    nature of the relationship; (b) to explain why the complainants had not
    reported their allegations; and (c) to explain why C.Q. had remained in the
    marital relationship. In response to the Crowns application, defence counsel
    stated that he was not intending to cross-examine the complainants on why they
    had not reported the abuse earlier or why C.Q. had remained in the marital
    relationship. This commitment, had it been pursued, might have undermined a
    substantial part of the prosecutions rationale for the admission of the
    evidence.

[128]

Moreover, as the evidence unfolded at trial,
    both complainants explanations came up naturally and did not require reference
    to the prior abuse. C.Q. only discovered that non-consensual marital sex was
    illegal in Canada when she read a brochure at CAMH, which led to her reporting
    the abuse. And C.L. did not disclose the abuse because she was afraid that
    others would believe she was dirty and because of her mothers fear they
    would be deported. An appropriate focus on eliminating or reducing prejudice
    might have foreseen this line of questioning and obviated the need for much of
    the contentious evidence.

(3)

Jury instructions

[129]

If defence counsels concessions and the
    complainants carefully tailored evidence were insufficient to address the
    three reasons for which the Crown sought to adduce evidence of the appellants
    prior discreditable conduct, then jury instructions could have served as an
    appropriate caution against inappropriate reasoning. For example, the trial
    judge could have instructed the jury that (a) they were not allowed to draw an
    adverse inference from the complainants delay in reporting: see
R. v. D.D.
,
    2000 SCC 43, [2000] 2 S.C.R. 275; and (b) they could not rely on the
    discredited myth that complainants always leave their abusive relationships.

[130]

The same applies to the trial judges concern
    that without the evidence of prior abuse, the jury might speculate about why
    the abuse only began in Canada. If impermissible and speculative reasoning was
    a concern, then the better course of action was to explain that such reasoning
    was inappropriate, that the jury was not to speculate, and that they were to
    decide the case solely on the evidence.

[131]

The trial judge might have invited the Crown to
    consider at what point in the trial the evidence was to be introduced, how it
    was to be introduced, and whether a contemporaneous mid-trial instruction would
    have been advisable, either
before
or
immediately
after the jury heard the evidence. Such an
    instruction might have, for example: (a) identified specifically, by date and
    with a brief synopsis, the uncharged prior discreditable conduct; (b)
    identified the jurys permitted use of the evidence; and (c) identified the
    prohibited use of the evidence. In connection with the prohibited use of the
    evidence, the trial judge might have instructed the jury that they could not
    convict the appellant on the basis of bad personhood (i.e. moral
    prejudice), but also that they could not convict the appellant because they
    wanted to punish him for his uncharged prior discreditable conduct (i.e.
    reasoning prejudice). He might have instructed them that their task was to
    keep their eye firmly on the ball  namely, to determine whether the
    appellant was guilty, beyond a reasonable doubt, of the counts in the
    indictment, and not whether he was guilty of the uncharged prior discreditable
    conduct.

[132]

Finally, great care must be taken in crafting
    final instructions to explain to the jury how they are to use, and how they are
    not to use, the evidence. It is not clear to me what the jury was expected to
    take from the instruction that the purpose of the evidence was to allow them to
    understand the nature and state of the family relationship prior to the
    allegations at issue, and to demonstrate the appellants 
animus
or
    dislike of the complainants. If the evidence is being introduced as
    narrative  that is, as evidence that was not relevant and material in its
    own right, but to assist the jury in understanding admissible evidence  then
    it is incumbent on the trial judge to clearly instruct the jury on exactly how
    the evidence is to be used.

J.

DISPOSITION

[133]

For these reasons, I would allow the appeal and
    order a new trial.

Released: February 25, 2021  G.R.S.

George
    R. Strathy C.J.O.

I
    agree. David Watt J.A.

I
    agree. B. Zarnett J.A.






[1]
Ms. Kranjc was not the trial Crown, and Mr. Halfyard was not
    defence counsel at trial.


