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The Ontario Court of Appeal dismissed a conviction appeal in a sexual interference case, finding the jury was properly instructed on reasonable doubt and no further limiting instruction was required.
On the facts, the trial judge did not usurp the jury's fact‑finding because certificates of analysis were uncontested and the jury was repeatedly told they were sole judges of fact; the order of charges and the wording of the charge did not improperly encourage propensity reasoning given the contextual links between counts, proper instructions on burden and included offences, and absence of objection; the jury was properly instructed about the limited use of text messages as contemporaneous circumstantial evidence and not for propensity; accordingly the convictions are upheld and the appeal i…
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The prior uncharged incidents alleged to have occurred in India are admissible for the limited purposes of providing context about the nature of the relationship and demonstrating animus/motive because they are relevant and have probative value that outweighs their prejudicial effect in a judge-alone trial where the evidence is solely the complainant's testimony; they are not admissible to establish propensity or bad character and must not be used for any purpose other than the circumscribed purposes stated by the Crown.
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Because the Crown expressly invited the jury to use the complainant's prior consistent Facebook message as corroboration and the trial judge failed to provide a limiting instruction about permissible and impermissible uses of that evidence, there was an error of law and a real risk the jury misused the evidence; the appropriate remedy is to allow the appeal and order a new trial.
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The court refused severance of two Abbotsford counts from nine Kamloops counts in a sexual assault indictment, finding a joint trial was in the interests of justice.
The court dismissed an application to admit Curtis Crossley’s guilty plea, finding it was not sufficiently relevant and risked unfair prejudice and jury speculation.
Trial counsel's persistent elicitation of extremely prejudicial bad character evidence portraying the appellant as a serial rapist fell well outside the range of competent representation and that evidence could not be cured by limiting instructions; combined with counsel's failure to request timely disclosure of the complainant's outstanding arrest warrant and criminal record, the cumulative prejudice rendered the verdicts unreliable and necessitated a new trial.
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The trial judge's failure to give a specific limiting instruction about extensive prior discreditable conduct evidence created a real risk that the jury used the evidence for impermissible propensity reasoning and moral prejudice; that error was not harmless and requires a new trial (conviction set aside).
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The trial judge did not err: he correctly applied Corbett principles and exercised discretion to admit the two prior firearms convictions with limiting instructions; he properly balanced probative value and prejudice in admitting the cellphone handgun photograph as circumstantial evidence of access to a weapon; and the party liability instructions were legally correct, factually balanced and acceptable given counsel's input and absence of objection, therefore the appeal is dismissed.
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The court granted severance of an eight-count sexual-offence indictment, ordering separate trials by complainant after finding significant prejudice and a weak factual nexus.
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