The Nov. 1 Court of Appeal for Saskatchewan decision in R. v. R.P.P., 2024 SKCA 102, involves a man identified only as R.P.P., who had been convicted of assault, sexual assault and sexual interference against his stepdaughter when she was around 10.
At issue before the appeal court was the trial judge’s treatment of “extrinsic misconduct” on the part of R.P.P. — alleged questionable behaviour that took place apart from the incident for which he was charged.
The complainant, born in 2003, was identified as E.R. (A publication ban is in place that prohibits revealing anything that could divulge her identity.)
R.P.P. and E.R.’s mother had been in a common law relationship from 2005 to 2017. Each had children of their own before the relationship, and they had a child together during their time as a couple. At the time of the alleged offences, there were as many as seven children living in the home.
Sometime between 2012 and early 2014, R.P.P. returned home one morning after doing a night shift at work. E.P. testified that she and two of her step-siblings were sleeping in the bed used by R.P.P. and his partner, her mother.
When R.P.P. entered the bedroom, E.P. was in bed but awake.
E.P. alleged that R.P.P. climbed into the bed and rubbed his genitals against her buttocks. Thinking this may have been inadvertent, E.P. moved farther away in the bed. But R.P.P. moved closer and did it again. Then there was a third time, at which point E.P. left the bed.
During cross-examination, E.P. agreed it may have been R.P.P.’s hand that touched her rather than his genitals.
E.P. also testified that R.P.P. had a bad temper and that he was at times physically abusive — spanking her, forcefully grabbing her by the arm and slapping her in the face “more than once for lying.”
E.P.’s sister supported this testimony.
In response, R.P.P. denied ever spanking, grabbing or slapping E.P.
But E.P. and her sister also alleged various sexualized behaviours on the part of R.P.P. that took place around the home.
E.P. testified that R.P.P. encouraged her to walk around in the nude and that he wanted the household to have one “naked day” per week. The sister said R.P.P. “hyper-sexualized everything,” would encourage E.P. to wear fewer clothes and would try and get the children to wear less clothing by overheating the house during the winter.
Also, E.P.’s sister testified that there was an incident between 2010 and 2011 where R.P.P. “exposed his penis to several of the children to show them a wood tick on it, under the guise of teaching them the proper way to remove a tick from one’s body.”
But R.P.P. said it was not like that. He said the younger children regularly slept in the bed with him and his partner. He also insisted there were no occasions when the kids would have seen him naked.
He did, however, recall the incident where he came home from work and E.P. was sleeping in his bed with her back to him. He testified that after he got into the bed he put his arm over E.P., but that there was no sexual touching.
Also, R.P.P. said the trial court should not believe the testimony of E.P.’s sister, as she was a “problem child.”
The trial judge accepted E.P.’s testimony as “credible and reliable” and also accepted the sister’s testimony about the physical assaults. More importantly, she accepted the claims that R.P.P. had touched E.P. in a sexual way that morning while in bed.
The appeal court noted the trial judge referred to R.P.P.’s extrinsic misconduct — the walking around naked, the overheating the house, the encouraging the children to disrobe, the wood tick incident — when she “summarized the parties’ arguments.”
She convicted R.P.P. and sentenced him to 19 months in prison.
R.P.P. appealed the sex convictions. He did not appeal the assault conviction, his appeal lawyer later confirmed.
Appeal court Justice Jeffery Kalmakoff, with Justices Keith Kilback and Jillyne Drennan concurring, sided with R.P.P., finding that the trial judge was wrong to include this extrinsic conduct evidence without first holding a voir dire, a secondary hearing held to determine whether something can be admissible at trial.
“Evidence of an accused person’s discreditable acts that do not form part of the charges for which they are on trial is presumptively inadmissible,” noted Justice Kalmakoff. “This is because there is a danger that a trier of fact may assume, from the acceptance of extrinsic misconduct evidence, that the accused is a bad person who is more likely to have committed the offence with which they are charged.”
He found the trial judge to have “used the extrinsic misconduct evidence of R.P.P.’s ‘sexualized behaviour around the children’ not as evidence of motive but as evidence of propensity in her credibility assessment.”
According to the Ontario Court of Appeal decision in R. v. Batte, [2000] O.J. No. 2184, propensity reasoning “involves two inferences.”
“First, one infers from conduct on occasions other than the occasion in issue that a person has a certain disposition (state of mind). Second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue,” stated the Ontario court.
Chris Murphy, Murphys Criminal Law
“Ultimately, the trial judge appeared to use that bad character evidence in a way that suggested that she believed that the appellant was predisposed to have committed these offences,” said Murphy, principal at Murphys Criminal Law. “She used this bad character evidence, like, this is the type of guy who would have done this. And ultimately the Court of Appeal confirmed that the use of that evidence was not proper.”
It was a circumstance where “the Crown led evidence that [R.P.P.] was just not a good guy.”
“One of the principles of criminal law in Canada is that you can’t be convicted because you are of bad character. The evidence has to establish beyond a reasonable doubt that you’re guilty … in relation to a certain set of allegations. You can’t just be convicted because you’re a bad guy.”
A trial judge must be a “gatekeeper” in this regard, he said.
“The trial judge has an obligation to keep inadmissible evidence out, and if the trial judge doesn’t do that, then there can be problems with the verdict. I think also that Courts of Appeal across Canada have been clear that this extrinsic misconduct evidence can easily creep its way into a trial. And that can be dangerous — especially [in jury trials]. This was not a case where there was a jury, but if that type of evidence can get before a jury, it can be very difficult for an accused person to have a fair trial.”
The Crown who acted on appeal was not able to comment.
CORRECTION: R.P.P.’s sentence was erroneously written as 19 years when it was actually 19 months. We apologize for the error.
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