R v B and B 2012

Case Name:
R. v. B


RE: Her Majesty the Queen, Applicant, and
Steven B and Bowland, Respondent

[2012] O.J. No. 257

2012 ONSC 51

254 C.R.R. (2d) 192

Court File No. 7191


Ontario Superior Court of Justice

D.J. Gordon J.

Heard: November 29, December 6-8, 2011.
Judgment: January 5, 2012.

(68 paras.)

Criminal law -- Evidence -- Admissibility -- Prejudicial evidence -- Confessions and statements by the accused -- Voluntariness -- Voir dire to determine admissibility of B's statement to police -- Accused were HIV-positive gay men who engaged in consensual sex with complainants without disclosing HIV status -- After bail court, where B was remanded into custody and ordered to be transported to detention centre, he was interviewed by police -- First minute of interview was unrecorded and B alleged police made inducements -- During interview, police asked about charges in another jurisdiction, continued to question B after he declined to answer and made improper comment regarding right to silence -- Numerous problems with statement which cumulatively rendered statement involuntary.

Voir dire to determine the admissibility of B's statement to police. B and Bowland, his co-accused, were both charged with aggravated sexual assault on KD and CS. B was faced with an additional count pertaining to CS. The accused and the complainants were gay men who participated in consensual sexual acts. However, the two accused, who were HIV-positive, allegedly did not disclose their HIV-positive status to the two complainants prior to engaging in intercourse. After receiving a complaint regarding B, the Ottawa police investigated and decided to arrest him. Police attended at his residence with an arrest warrant, but he was not home. Police later spoke to B by telephone, requested a meeting and, when asked, told him that he was not going to be arrested. B attended the meeting place and police initiated a high risk takedown. He was arrested for aggravated assault, breach of probation and was advised of a warrant for his arrest for aggravated assault in Waterloo and his right to counsel. After speaking with counsel, B was taken to bail court, remanded into custody and ordered to be transported directly to a detention centre. After bail court, B gave a videotaped statement to police. The first minute of the interview was not recorded. B alleged that on the way to the interview room and during the unrecorded minute of the interview, he advised the officer that he was not sure that he wanted to give a statement and was told that if he gave the officer the required information, he would be released from custody. The interview, for the most part, pertained to the events in Ottawa, but he was also asked about the Waterloo charges. During the interview, B declined to answer a number of questions and referred to legal advice he received, but the officer continued to ask questions. After the interviewing officer discovered that a minute was missing from the tape, she engaged in an email exchange with another officer regarding the tape. Both the Crown and B sought a ruling as to the admissibility of his statement based on voluntariness and Charter compliance.
HELD: B's statement was not admissible as it was not proven to be voluntary. While the interview, for the most part, was a model of professionalism, there were numerous problems arising before and during the interview including the missing minute, the exchange between officers regarding the missing minute, the passing reference to other charges, the officer's comment when B chose to exercise his right to silence and the officer's failure to comply with the remand warrant. While each event was insufficient, on its own, to question voluntariness, the cumulative effect rendered the statement involuntary.

Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B,
Criminal Code, R.S.C. 1985, c. C-46, s. 516

Counsel:
A. Rajna, for the Crown.
S. Reid, for the Respondent, Steven B.
C. Fromstein, for the Respondent, Noel Bowland.


PRE-TRIAL RULING NO. 1
ADMISSIBILITY OF STATEMENT
OF STEVEN B
1 D.J. GORDON J.:-- Steven B and Noel Bowland are charged with two counts of aggravated sexual assault on K.D. and C.S. on March 28, 2010. Mr. B faces an additional count pertaining to C.S. on March 27, 2010. The alleged offences are said to have occurred in the City of Kitchener.
2 The defendants and the complainants are gay men. They engaged in consensual sexual acts. The defendants are diagnosed as HIV positive. The primary issues at trial, as I understand the case, will be:

a) whether the defendants disclosed their HIV positive status to the complainants in advance; and
b) whether the complainants would have participated in unprotected sexual acts had they been aware of the defendants' status.
3 Mr. B was interviewed by a member of the Ottawa Police Service on May 6, 2010. Crown and defence counsel seek a ruling as to the admissibility of Mr. B's statement based on voluntariness and Charter compliance.
Voir Dire
4 A voir dire was held on the dates specified above. Completion was delayed as a result of ongoing Crown disclosure. Three witnesses testified:

i) Detective O'Connell
ii) Sergeant McGetrick; and
iii) Mr. B.
Focus
5 In terms of voluntariness and Charter compliance, the focus is with the following events:

i) officer's visit in cell block;
ii) police failure to comply with remand warrant;
iii) missing minute on video statement;
iv) exchange between officers as to same;
v) rights to counsel and caution as to Waterloo charges; and
vi) officer's comment as to Mr. B exercising his right to silence.
Evidence

i) Initial Ottawa Investigation
6 Ottawa Police Service received a complaint regarding Mr. B on April 30, 2010. Sergeant McGetrick, then with the Partner Assault Unit, was assigned the lead investigator on May 3, 2010. She reviewed the investigative records, then involving a single event.
7 On May 5, 2010, the decision was made to arrest Mr. B. Sergeant McGetrick made reference to other persons possibly being at risk given Mr. B's HIV positive status. The officer was also aware of a warrant for the arrest of Mr. B in Waterloo regarding three counts of aggravated sexual assault.
8 A Feeney warrant was obtained and officers attended Mr. B's residence. Mr. B was not at home.

ii) The Arrest
9 Sergeant McGetrick called Mr. B on his cell phone at 11:32 p.m. on May 5, 2010. She requested a meeting. Mr. B asked if he was going to be arrested. The officer re-sponded in the negative, being concerned Mr. B would not show up for the meeting if he knew the truth. A meeting was arranged at a local Tim Horton's restaurant.
10 Mr. B was a passenger in a motor vehicle operated by a friend. On arrival at the restaurant, he did not see the officer and decided to order a coffee and wait in the parking lot. The vehicle entered the drive through lane for this purpose. At this point, two police vehicles immediately blocked their passage.
11 Sergeant McGetrick, along with several officers from the tactical unit, conducted a "high risk takedown". At approximately 12:25 a.m. on May 6, 2010, Mr. B was placed under arrest. Sergeant McGetrick reported informing Mr. B the arrest was for one count of aggravated sexual assault and one count of breach of probation. Further, she said Mr. B was told of a warrant for his arrest in Waterloo for three counts of aggravated sexual assault. Sergeant McGetrick then proceeded to deliver the rights to counsel and caution in the usual manner.
12 Mr. B reported Sergeant McGetrick asking if he was aware of a warrant for his arrest in Waterloo. He was then placed under arrest and was told by the officer the charges were aggravated sexual assault and breach of probation. Mr. B said he assumed the charges were from Waterloo as Sergeant McGetrick did not specify any place.
13 Mr. B went on to say he was overwhelmed by the manner of arrest by the tactical unit and, as a result, was not paying close attention to what Sergeant McGetrick was saying to him. Mr. B did not recall being informed of his rights to counsel but reported the officer saying something about contacting a lawyer.
14 Mr. B was transported to the police station and placed in a holding cell.

iii) Mr. B Speaks to Lawyer
15 Mr. B spoke to a lawyer on two occasions, shortly after arrest and later in the afternoon following his return from bail court.
16 At the time of the initial conversation, Mr. B said he understood that he was facing a charge of aggravated sexual assault in Waterloo. In bail court, Mr. B reported being informed of an Ottawa charge for aggravated sexual assault. When speaking to the lawyer after bail court, Mr. B said he was now not sure what was going on with the Waterloo charges.

iv) Visit at Holding Cell
17 At the request of Mr. Reid, the videotape for the holding cell area was retrieved by the Ottawa Police Service.
18 In her testimony at the preliminary hearing and initially on this voir dire, Sergeant McGetrick reported there was no contact with Mr. B following his arrest and until the inter-view later that night.
19 The holding cell video revealed a visit occurring at approximately 12:27 to 12:30 p.m. on May 6, 2010. Sergeant McGetrick saw this video shortly before the voir dire continued following the adjournment. She had no recollection of visiting Mr. B and no memory of the conversation. Sergeant McGetrick could only "speculate" the meeting was to inform Mr. B he would be going to bail court. Indeed, he was escorted from his holding cell for that purpose at 12:58 p.m. The officer testified that she never makes promises, threats or inducements to persons detained in custody.
20 Mr. B acknowledged the conversation involved his going to bail court. He also said Sergeant McGetrick informed him that he would return to the police station after court to provide his statement and then be released from custody.

v) Bail Court
21 At bail court, Mr. B was remanded in custody to appear on May 10, 2010. A transcript of the proceeding was not provided. However, there is no dispute the remand warrant issued on the court appearance directed the police officers to deliver Mr. B to the regional detention centre. Instead, he was escorted back to the police station and placed in the holding cell.
22 Sergeant McGetrick did not conduct an interview of Mr. B following the arrest as, she said, there was insufficient time to prepare. The officer had been on duty since 7:00 a.m. on May 5, 2010, and needed to rest before the interview. She also indicated the need to complete paperwork. In result, Sergeant McGetrick was concerned with Mr. B appearing in court within the requisite twenty-four hours and, hence, the decision was made to send him at the time it occurred.
23 Sergeant McGetrick was expecting Mr. B to be returned to the police station following the court appearance. She did not see the remand warrant and was unaware of the requirement to transport Mr. B to the detention centre. Sergeant McGetrick acknowledged never having a defendant returned to the police station in the past.

vi) The Interview
24 Mr. B was escorted from his holding cell at 8:29 p.m. on May 6, 2010 to meet with Sergeant McGetrick.
25 The videotape reports the commencement of the interview at 8:27 p.m. There appears to be some discrepancy in the various clocks. The interview takes approximately two hours. On completion, Mr. B is escorted back to his holding cell. He was delivered to the detention centre the next day.

vii) The Missing Minute
26 The initial part of the interview was not recorded. Approximately one minute is missing.
27 Detective O'Connell was in the monitor room for the interview. She has been involved in hundreds of interviews but, for some unknown reason, failed to push the record button. The officer has no memory of subsequently engaging the videotape.
28 The video statement commences with Sergeant McGetrick informing Mr. B he is under arrest for the ten counts of aggravated assault and two counts of breach of probation.
29 Neither officer initially made notes of the conversation occurring in the unrecorded time period.
30 Mr. B reported a conversation with Sergeant McGetrick on the way to the interview room. He said he informed the officer he was not sure if he wanted to give a statement anymore. In response, Mr. B indicated Sergeant McGetrick told him not to worry, that if he gave her the information she needed, he would be released from custody.
31 Further, in the unrecorded time in the interview room, Mr. B stated Sergeant McGetrick assured him he would be going home after answering her questions.

viii) The Officers' Exchange
32 On May 12, 2010, Sergeant McGetrick discovered the initial part of the interview was not recorded. She delivered an email to Detective O'Connell, saying:

Hi Allie,

I copied the B interview for Waterloo and discovered that you did not start recording the interview until after B and I were in the interview room. I clearly gave B an introduction upon entering the room, my name, date, time, his name, fact that the interview was being monitored. This was not recorded on the tape and is not indicated in your IA. Your IA starts when the tape starts, at me advising him what he is under arrest for. The missed information is vital and should be at least recorded on your IA. You will have to add an amended IA to reflect what was missed in your initial IA. Let me know when this is done.

Thanks,
Nicole
33 Detective O'Connell replied on the same date as follows:

On the 12th May, 2010, Det O'Connell was advised by Sgt McGetrick that she viewed the recorded accused interview with Steven B and her entrance into interview room 042P with accused was not recorded. Det O'Connell was the scribe for the interview and was witness to the entrance of the accused and Sgt McGetrick in room 042P. Det O'Connell witnessed Sgt McGetrick introduce herself to the accused and told him that the interview was being audio/video recorded. The accused laughed slightly and pointed to the video camera over his left shoulder. The following was not written into the statement summary notes. Det Standing was also inside the recording room with Det O'Connell.
34 For some unknown reason, Sergeant McGetrick did not receive this response from Detective O'Connell. Following the preliminary hearing on January 8, 2011, Sergeant McGetrick informed Detective O'Connell that she would have to explain the missing part of the interview. The email was located.
35 Both officers were aware of the usual witness exclusion orders at a preliminary hearing and that witnesses are not to discuss evidence.

ix) Rights to Counsel - Interview
36 As previously mentioned, the video statement commences with the officer referring to the ten charges of aggravated sexual assault. These are the Ottawa charges. Rights to counsel and caution are then read to Mr. B. In so doing, Sergeant McGetrick made reference to an "outstanding arrest warrant" (page 3).
37 The interview, for the most part, pertains to events in Ottawa. At the mid-point (page 34), Sergeant McGetrick says to Mr. B: "You know that there's an arrest warrant for you in Waterloo Regional. What's that all about?" Mr. B declined to respond. The officer would later return to the Waterloo charges (page 49) and engage Mr. B in a discussion.
38 Sergeant McGetrick did not provide any further information to Mr. B, save to respond to his question as to why there were three charges. A second rights to counsel and counsel were not read to him.

x) Officer's Comment
39 During the interview, Mr. B would decline to answer a number of questions, making reference to legal advice he had received.
40 Sergeant McGetrick would continue to ask questions. At p. 37 of the transcript, the following exchange occurs:

Q. Okay. What's the youngest guy you'd sleep with?
A. I don't know. I - I'm not gonna - I really shouldn't make any more statements.
Q. Okay. So how long ago did you hook up with MacKenzie?
A. I'm not gonna make any more statements.
Q. Okay, you don't have to answer anything I'm gonna keep talking, okay. Maybe you'll choose to - to make a statement regarding something. Did you tell MacKenzie that you're H.I.V. positive?
A. I'm not gonna make any more statements.
Q. Okay. I'm guessing by saying that you didn't.
A. I'm not gonna make anymore statements.
41 There is no dispute the officer's comments regarding exercising the right to silence was improper.
Discussion
42 For the most part, the interview conducted by Sergeant McGetrick is a model of professionalism. She treated Mr. B with respect and dignity. In so doing, the officer succeeded in engaging Mr. B in a discussion. Nevertheless, there are a number of problems arising before and during the interview as previously identified.
43 Each event, save for that involving the remand warrant, is insufficient alone to seriously question voluntariness. The cumulative effect, however, provides a greater challenge to the Crown.

i) The Missing Minute
44 It is unfortunate neither officer made detailed notes of the interview. No doubt, they expected a complete recording.
45 The explanation, as to the tape delay, by Detective O'Connell is reasonable. Mistakes happen. The onus is then on the officers to explain as to what occurred in the untaped portion of the interview.
46 I am not persuaded as to the accuracy of Mr. B's version. It would be highly unlikely for an experienced police officer to promise release, particularly in an interview room when a video was expected to be operating. Nevertheless, there is an evidentiary gap. The officers provide a brief account of events in this missing minute. But, questions arise due to the manner in recording same, as next considered.

ii) Officers' Exchange
47 When the missing portion is discovered, Sergeant McGetrick immediately made inquiry. Her email to Detective O'Connell, in my view, was improper as it provided the expected response. The subsequent meeting, following the preliminary hearing, was also improper. These events bring into question the independence of memories. The exchange could easily have been accomplished without clouding the issue.

iii) Holding Cell Visit
48 The three minute visit at the holding cell is of concern. Sergeant McGetrick was candid in saying she had no recollection of the event or of what was discussed. Notes should record every exchange with an individual in custody.
49 Once again, I am not persuaded by Mr. B's version of the conversation. However, a doubt exists as the officer can only "speculate" the visit was to address going to bail court. In result, there is a question as to whether the Crown has met the evidentiary onus.

iv) Sufficient Information - Waiving Counsel
50 In her evidence, Sergeant McGetrick was clear in making reference to the Waterloo warrant at the time of arrest. Mr. B was unsure.
51 I accept Mr. B's evidence as to being overwhelmed on arrest. Although having some dealings with police officers in the past, a high risk takedown would have been a traumatic event for him and could well have impacted on his focus and perception of what the officer said.
52 Sergeant McGetrick was of the view Mr. B understood the reasons for his detention and, further, he did not exhibit any confusion necessitating a further explanation. I am not certain such was the case, particularly given the nature of the arrest. The onus is on the officer to be certain the detained person fully understands.
53 During the interview, Sergeant McGetrick made a passing reference to the Waterloo warrant. No further information was provided, other than responding to his question as to why there were three charges.
54 The issue is whether Mr. B had "sufficient information": see R. v. Smith, [1991] 1 S.C.R. 714 (S.C.C.), at para. 28; R. v. Evans, [1991] 1 S.C.R. 869 (S.C.C.), at paras. 35 and 47; and R. v. Swatsky (1997), 118 C.C.C. (3d) 17 (Ont. C.A.).
55 Sergeant McGetrick wanted to inquire as to two distinct matters, the Ottawa and the Waterloo charges. Both involved allegations of aggravated sexual assault. However, the factual underpinnings are different.
56 I am not persuaded Mr. B was provided with sufficient information so that he could make an informed decision on waiving his rights to counsel. Brief factual information could easily have been provided as the officer had the warrant.

v) Officer's Comments
57 Counsel acknowledge Sergeant McGetrick's comment regarding exercising the right to silence was improper. I agree.
58 Mr. B declined to respond to the officer. This suggests her comment was not persuasive.

vi) The Remand Warrant
59 Failure to comply with the remand warrant is troubling.
60 I accept Sergeant McGetrick's evidence as to being unaware of the requirement to transport Mr. B directly to the detention centre following his court appearance. An experienced police officer should understand such is the mandatory direction as provided in the remand warrant and section 516, Criminal Code. Such events occur almost daily, particularly in a community like Ottawa.
61 It appears two other officers also ignored the court order, the transporting officer and, presumably, the officer in charge of the holding cells.
62 In my view, returning a person in custody to the police station is unacceptable. A police officer's good faith cannot be claimed when it is based on ignorance of authority or on the law: see, for example, R. v. Buhay, [2003] 1 S.C.R. 631 (S.C.C.). Police officers are presumed to know the law as set out in the Criminal Code.
63 Counsel referred to R. v. Precourt (1976), 18 O.R. (2d) 714 (Ont. C.A.). Martin J.A. commented on unwarranted detention as a relevant circumstance in determining whether the Crown has met the onus of proving the statement voluntary.
64 Precourt predates the Charter. In my view, the consequences of a breach are now elevated, particularly when it involves a court order.
65 Simply put, had the officers complied with the remand warrant, as they are required to do, the interview would not have occurred.
66 There must be consequences for breaching a court order.
Conclusion
67 In all of the circumstances, I am not satisfied the Crown has met the onus of proving Mr. B's statement to be voluntary. The breach of the remand warrant alone negates voluntariness. The cumulative effect of the other events supports a similar finding.
68 Accordingly, Mr. B's statement is not admissible at trial.
D.J. GORDON J.
cp/ci/e/qllxr/qlvxw/qlced



Case Name:
R. v. B


RE: Her Majesty the Queen, Applicant, and
Steven B and Noel Bowland, Respondent

[2012] O.J. No. 740

2012 ONSC 946

Court File No. 7191


Ontario Superior Court of Justice

D.J. Gordon J.

Heard: January 24, 2012.
Judgment: February 9, 2012.

(16 paras.)

Criminal law -- Evidence -- Methods of proof -- Circumstantial evidence -- Similar fact evidence -- Application by Crown to admit similar fact evidence dismissed -- Two accused were charged with aggravated sexual assault for failure to disclose HIV-positive status to two complainants during consensual sexual acts -- Crown sought to admit similar fact evidence in respect of one accused comprised of two witnesses, a roommate and computer chat logs, indicating tendency not to disclose health status prior to sexual acts -- Evidence ruled inadmissible, as it went to propensity and was of uncertain reliability -- Highly prejudicial nature outweighed questionable probative value.

Application by the Crown to admit similar fact evidence in respect of the accused, B. B and Bowland were charged with two counts of aggravated sexual assault on two com-plainants. The defendants and the complainants were homosexual men who had engaged in consensual sexual acts. The defendants were diagnosed as HIV-positive. At issue at trial was whether the defendants had disclosed their HIV-positive status to the complainants in advance, and whether the complainants would have participated in unprotected sexual acts had they been aware of the defendants' status. The evidence tendered by the Crown consisted of preliminary hearing transcripts and transcripts of chat logs taken from the accused's computer. The proposed evidence related to whether the accused disclosed his HIV-positive status to the complainants in advance of their activity. Two witnesses reported making inquiry of the accused prior to unprotected sexual activity with B and being told he was "clean." B's former roommate referred to conversations with B that suggested disclosure of health status was not always provided prior to sexual activity. Similarly, the chat logs implied that disclosure was not made to sexual partners in every case.
HELD: Application dismissed. There were shortcomings in the proffered evidence, as the chat logs revealed mixed messages and raised reliability concerns, the conversations with the roommate focused on propensity, and the non-disclosure described by the two witnesses was contradicted by another witness. Much of the evidence pertained to outstanding charges in Ottawa. The evidence was highly prejudicial and its mixed or inconsistent evidence resulted in it falling short on probative value. The proffered evidence was inadmissible, subject to possible revisiting during trial, dependant on the nature of evidence presented.

Statutes, Regulations and Rules Cited:
Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 276

Counsel:
A. Rajna, for the Crown.
S. Reid, for the Respondent, Steven B.
C. Fromstein, for the Respondent, Noel Bowland.


PRE-TRIAL RULING NO. 3
ADMISSIBILITY OF SIMILAR FACT EVIDENCE
1 D.J. GORDON J.:-- Steven B and Noel Bowland are charged with two counts of aggravated sexual assault on K.D. and C.S. on March 28, 2010. Mr. B faces an additional count pertaining to C.S. on March 27, 2010. The alleged offences are said to have occurred in the City of Kitchener.
2 The defendants and the complainants are gay men. They engaged in consensual sexual acts. The defendants are diagnosed as HIV positive. The primary issues at trial, as I understand the case, will be:

a) whether the defendants disclosed their HIV positive status to the complainants in advance; and
b) whether the complainants would have participated in unprotected sexual acts had they been aware of the defendants' status.
Application
3 Crown counsel seeks a ruling as to the admissibility of certain evidence, described as similar fact, as hereafter particularized.
4 The application pertains only to Mr. B. Counsel for Mr. Bowland takes no position.
5 The initial application sought a preliminary ruling on admissibility should Mr. B call evidence such that it put his character in issue. In pre-trial ruling No. 2, I granted the de-fence application, permitting evidence related to the sexual activity of the complainants pursuant to section 276. In result, Crown counsel now seeks a ruling on the trial proper so as to permit, if granted, the introduction of certain evidence as part of the Crown's case against Mr. B.
Hearing
6 The application was heard on the date specified above. The evidence tendered consisted of preliminary hearing transcripts and transcripts of certain chat logs, the latter taken from Mr. B's computer.
Proposed Evidence
7 The proposed evidence, as I understand it, relates to the first issue; namely, whether Mr. B disclosed his HIV positive status to the complainants in advance.
8 The evidence is briefly described as follows:

a) M.C. and D.S. are two young gay males who had unprotected sexual encounters with Mr. B in January and April 2010. These witnesses report making inquiry of Mr. B before the event and being told he was "clean". M.C. and D.S. are two complainants in the Ottawa case that has not yet been scheduled for trial;
b) S.M. was Mr. B's roommate in Ottawa in early 2010. He referred to conversations with Mr. B that suggest disclosure of health status was not always provided prior to sexual encounters; and
c) Similarly, the chat logs imply that disclosure was not made to sexual partners in every case.
Law
9 Propensity evidence is generally excluded.
10 In R. v. Handy, [2002] S.C.J. No. 57 (S.C.C.), Binnie J., at para. 41, referred to the narrow exception where the "... evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse ...".
11 In determining whether probative value outweighs prejudicial effect, Binnie J. identified a number of factors, set out at paras. 76-84, namely:

i) proximity in time;
ii) similarity in detail;
iii) number of occurrences of similar acts;
iv) circumstances surrounding the similar acts;
v) any distinctive features unifying the incidents;
vi) intervening acts;
vii) any other factor to support or rebut the underlying unity of the similar acts;
viii) inflammatory nature of the similar acts;
ix) whether Crown can prove its point with less prejudicial evidence; and
x) potential distraction of the jury from its proper focus on the facts charged.
Analysis
12 Generally speaking, the proposed evidence satisfies some of the aforementioned factors. There are shortcomings, including:

a) although M.C. and D.S. refer to non-disclosure by Mr. B, another witness, M.B., testified to the contrary;
b) much of the evidence pertains to the outstanding Ottawa charges;
c) the S.M. conversations focus on propensity;
d) mixed messages are revealed in the chat logs; and
e) obvious concern as to the reliability of the chat log statements.
13 All of the proposed evidence is similar fact in nature. Crown counsel argues the evidence of S.M. is admissible on its own as it refers to Mr. B's state of mind. I disagree. The key component is propensity.
14 Reference was also made as to how Mr. B became infected. Although there was some confusion as to the purpose of such evidence, counsel agree it is not similar fact. Relevance, however, has not yet been established.
15 I am not persuaded Crown counsel has met the requisite test. The evidence is highly prejudicial and the mixed, or inconsistent, nature of the evidence results in it falling short on probative value. Lastly, the evidence of S.M. deals with propensity and is characteristic of the basis for the original exclusionary rule.
16 Accordingly, the proposed evidence is not admissible and the Crown's application is dismissed. The ruling may be revisited during trial, dependant on the nature of evidence presented.
D.J. GORDON J.
cp/ci/e/qlafr/qljxr