Charge of evidence inadmissibility fails to persuade appeal court in sex assault decision

Law360 Canada (September 12, 2024, 8:56 AM EDT) --

John L. Hill

The modus operandi of sexual predators has become all too familiar. In the United States, there was Jeffrey Epstein, and in Canada, there was Selva Subbiah.

The pattern of offences was similar. With a female accomplice, unsuspecting women would be lured to the predator’s premises, administered a “date rape” drug and sexually abused. Jeffrey Epstein was denied bail on charges of sex trafficking and was found dead in his cell, apparently by suicide. Selva Subbiah spent over two decades in Kingston Penitentiary before being deported.

On Sept. 5, 2024, the Ontario Court of Appeal issued its judgment in R. v. P.N.W., 2024 ONCA 662. The appellant, referred to as P.N.W. because of a publication ban, had been convicted of drugging and sexually assaulting multiple women, including C.R. (referred to in the judgment as the appellant’s “coerced accomplice” or by the alias “Heidi” in the trial judgment (R. v. P.N.W., 2017 ONSC 5698).

The appellant had faced a 45-count indictment. Counts one through nine related to assaults, sexual assaults and administering a stupefying or overpowering drug to enable the accused to commit sexual assault against his then-girlfriend, Heidi, with whom he co-habited in a relationship of four years’ duration.

Counts 10 through 38 relate to drugging and sexually assaulting 14 other women. Counts 39 through 45, to which P.N.W. pleaded guilty, were for trafficking in prohibited substances and possession of proceeds of crime. He was convicted on all but six of the 38 charges. Almost two years after his conviction, he was sentenced as a dangerous offender with an indeterminate sentence (R. v. P.N.W., 2019 ONSC 2957). His appeal challenged his conviction on only three counts upon which he had been convicted and his sentence.

Defence counsel on appeal was vigilant in trying to seize on any flaw in the trial judge's charge that could be the basis for challenging the conviction. One suggested error was that the trial judge failed to hold an admissibility hearing when the Crown called evidence that next-door neighbours had heard a fight between the accused and “Heidi.” This evidence, defence counsel urged, should be inadmissible since it suggested the accused’s bad character.

The appeal court agreed that the general rule is that discreditable conduct by an accused not part of a particular charge is presumptively inadmissible. An exception is where the conduct can be shown as similar fact evidence used to prove a separate count (R. v. Tsigirlash, 2019 ONCA 650). Here, the neighbour’s evidence that sounds of fighting between the appellant and “Heidi” once or twice a week is bad character evidence. However, the admission of such evidence without an admissibility hearing was a harmless error to which defence counsel did not object. In a similar case, no procedural unfairness resulted when similar fact evidence was admitted without a formal application (R. v. Graham, 2015 ONCA 113).

The appellant also argued that in two of the counts against him, it was alleged he gave the complainant ketamine without her consent to facilitate the sexual assault. P.N.W. said the complainant in these charges regularly bought cocaine from him. She consented to return to a third party’s residence and provided sexual services until she passed out from drugs and alcohol. This complainant swore the drug was ketamine and not cocaine. Defence counsel argued there was no evidence that P.N.W. drugged her or directed her to have sex with the third party.

However, the appeal court held that this narrative was unpersuasive. This complainant knew how ketamine reacted to her and put her in a dissociative state. There was ample evidence to justify the trial judge’s findings.

These grounds attacking conviction read in the judgment as the defence clutching at straws. The more important appeal was that the trial judge erred in imposing an indeterminate sentence rather than a 15-year determinate sentence and a 10-year supervision order.

This attack on the trial judge’s assessment also met with failure. P.N.W. had been psychiatrically assessed by Dr. Philip Klassen, who diagnosed the appellant as suffering from an antisocial personality disorder and exhibiting significant features of psychopathy; past conduct included killing his intimate partner’s dog, beating her brother and sending her naked in winter to run to her mother’s house. There was no reasonable expectation that a determinate sentence would adequately protect the public from serious personal injury offences in future. The disorders found by Dr. Klassen are notoriously treatment-resistant.

The trial judge and the appeal court should be complimented for imposing a publication ban on naming P.N.W. Once imprisoned, P.N.W. would be subject to the unwritten “con code” where sexual offenders may receive the punishment that the courts cannot impose. Epstein died in a jail cell under unusual circumstances. Subbiah was stabbed and hospitalized by fellow inmates when knowledge of his crimes became known. Hopefully, P.N.W.’s imprisonment will end without further violence.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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