Appeal citing lack of general propensity warning to jurors dismissed

Law360 Canada (October 24, 2024, 8:16 AM EDT) --

John L. Hill

When B.B. went to jail in the summer of 2017, he hoped a relationship with a woman who had been his surety would continue. The two communicated while B.B. was in jail by phone and letter. When B.B. was released on Oct. 20, 2017, and allowed to serve his sentence on weekends, he lived at his former surety’s apartment.

His behaviour during that time resulted in B.B. being charged with seven counts of assault, one count of assault with a weapon and two counts of sexual assault with a weapon. He pleaded guilty to three of the assault charges. A jury found him guilty of all the remaining counts. The complainant related damaging testimony regarding B.B.’s abusive and controlling behaviour that ultimately resulted in his conviction.

B.B. appealed his convictions and argued that the trial judge erred in not instructing the jury to infer his guilt by relying on uncharged conduct the complainant raised in her testimony or assuming that B.B. was a bad person in general and likely committed the alleged offences. The Ontario Court of Appeal released its decision on Oct. 21, 2024 (R. v. B.B.,2024 ONCA 766).

The appeal court noted that the trial judge had given two limiting instructions in making his charge to the jury. He cautioned them not to assume B.B. was a “bad person” and likely to have committed the offences because of his prior convictions or that he spent time in custody or was serving an intermittent sentence at the time the complaints were made. He further instructed that only the evidence relating to each charge could be considered, and it would be improper to infer that because behaviour relating to one event could be used to find guilt on another offence. However, the appellant claimed that the trial judge did not provide a general propensity instruction, and in failing to do so, he fell into error. The defence counsel at trial had not raised such a request at a pre-charge conference or after the jury instructions were delivered.

In analyzing the need for a general propensity instruction, the Court of Appeal reminded itself of the Supreme Court of Canada’s instruction that appeal courts must take a “functional approach” and understand that jury instructions should be considered in the context of the evidence, the entire charge and the trial as a whole (R. v. Goforth, 2022 SCC 25).

Even though the jury was not directed that they should not engage in cross-count reasoning as might be suggested in R. v. Chamot, 2012 ONCA 903, it must be understood that the general rule is subject to an exception. A warning is not required if the facts of the case negate any realistic possibility that the evidence will be misused (R. v. Amin, 2024 ONCA 237). Justice David Paciocco observed in R. v. M.R.S., 2020 ONCA 667, that a propensity direction need not be given where an accused is not prejudiced and could be spared from the judge’s having to recite the damaging permissible uses of similar fact evidence. In the B.B. case, the defence had, in his closing address to the jury, recited some of the evidence about which it now complains to try to convince the jury that the complainant was manufacturing false allegations. The evidence the appellant says the jury should have been warned about considering was the evidence the defence at trial said was helpful in discredit the complainant.

This case differed from the Amin and M.R.S. cases in that B.B.’s bad character (spending a few weeks in jail) was considerably less serious than the evidence of the charges he alleged to have committed (assaults with a weapon and sexual assault). The evidence in the B.B. case could plausibly and permissibly have shown that the relationship between the appellant and the complainant had soured, which could suggest a motive for the complainant to exaggerate or lie.

Neither the Crown nor the defence invited the jury to use the evidence for an improper purpose. A limiting instruction would have risked confusing the jury to ignore evidence that could have benefited the defence (R. v. Beausoleil, 2011 ONCA 471; R. v. Fast, 2022 ABCA 33).

The failure to provide a limiting instruction does not amount to reversible error and is in line with the guidance provided by the Beausoleil and the M.R.S. cases. The appeal was dismissed.

(Editor's Note: This story has been updated from an earlier version to present a more accurate description of what transpired.)

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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