R. v. STETTNER, 2024 SKCA 88, SEPTEMBER 11, 2024.

FACTS: The accused was convicted of a number of assault related offences against his former partner (AR). During the trial, evidence was presented from the complainant relating to incidents of “misconduct” committed by the accused that were not covered by the charges laid against him. The accused referred, as an example, to the following evidence provided at the trial by AR in direct examination:

Q How — how — was it different than the way you described in September in terms of how he did that?

A Not very much different. It’s — I feel like it’s, like, a signature move almost. But he lifted me off the ground, off my feet, and I remember hearing my neck crack. Like, it obviously doesn’t feel very nice and it, obviously, is scary when something like that happens, so…

Q So your entire body is off the ground?

A Yes.

Q Okay. And did you maintain — I guess, first of all, could you breathe when that was happening?

A No.

Q And do you remember anything about how your body reacted, or observations at that time?

A Yeah. I — I don’t — I don’t like saying it, I — I always feel like it’s going to space because, like, you get — you hear, like, something in your ears and you can’t really see and everything goes, like, it’s fading away almost. So I don’t know how to describe it, but, yeah, I — I feel like I almost passed out that time. I have passed out other times, but not that time.

The accused appealed from conviction, arguing that the “trial judge erred by admitting evidence of misconduct on his part that was extrinsic to the offences charged and relying on that evidence in convicting him, and by determining that the offence of assault by choking, contrary to s. 267(c) of the Criminal Code, is an offence included in the offence of attempting to overcome resistance to the commission of an indictable offence, contrary to s. 246(a)” (at paragraph 6).

HELD: The appeal was allowed, and a new trial ordered.  The Saskatchewan Court of Appeal held that the trial judge did not err in convicting the accused of the included offence, but had erred in admitting the extrinsic misconduct evidence and relying upon it.  It ordered a new trial.

The Admissibility of the Extrinsic Misconduct Evidence:

The Court of Appeal noted that “[e]vidence of an accused person’s discreditable acts that do not form part of the charges for which they are on trial is presumptively inadmissible. This is because there is a danger that a trier of fact may assume, from the acceptance of evidence of extrinsic misconduct, that the accused is a bad person who is more likely to have committed the offence with which they are charged. Accordingly, there is an exclusionary rule against evidence of general propensity, disposition or bad character…Such evidence is inadmissible if it does no more than show that the accused is the type of person likely to have committed the offence, or if it is tendered to establish the accused’s bad character as circumstantial proof of their conduct in relation to the present charges” (at paragraph 50).

The Court of Appeal indicated that before this type of evidence is admitted, “the evidence must always be carefully assessed by the trial judge to determine whether its probative value exceeds its prejudicial effect. And, where such evidence is admitted, the trial judge must ensure that it is used only for a permissible purpose (R v Giesbrecht, 2019 MBCA 35 at paras 76–78, 373 CCC (3d) 70). Even where the charges at issue in the trial concern allegations of violence in the context of a domestic relationship, evidence of extrinsic misconduct is not automatically admissible under the rubric of context or narrative, or for the purpose of facilitating an understanding of the parties’ relationship. Extrinsic misconduct evidence remains inadmissible if it does no more than establish a pattern of bad conduct to show that the accused is more likely to have committed the offence charged (at paragraph 53).

In addition, the Court of Appeal suggested that “[b]ecause evidence of extrinsic misconduct is presumptively inadmissible, where the Crown seeks to introduce such evidence, it must identify the basis upon which it purports to have the evidence admitted and the use to which it suggests the evidence should be put, so that the accused may have an opportunity to respond and the trial judge can conduct the proper admissibility assessment” (at paragraph 54).  

Finally, the Court of Appeal held that “[i]t is an error of law for a trial judge to admit evidence of extrinsic misconduct, and to rely on it in deciding on the accused’s guilt, without first conducting an inquiry into its admissibility…A trial judge’s gatekeeper function requires them, even in a judge-alone trial, to ensure that only properly admissible evidence is received and considered when rendering a verdict. Presumptively inadmissible extrinsic misconduct evidence ‘does not magically become admissible’ simply because there is silence by the defence at the time it is tendered” (at paragraphs 55 and 56).  

This Case:

The Court of Appeal held that in this case, “the trial judge erred in law by admitting evidence of Mr. Stettner’s bad conduct that was extrinsic to the charges upon which he was being tried without analysing whether it was properly admissible, and by relying on that evidence to conclude that he was guilty of offences arising out of the September and November incidents” (at paragraph 57).

The Court of Appeal concluded that “the trial judge used the extrinsic misconduct evidence in this case for an improper purpose, namely, to infer that Mr. Stettner’s propensity for such conduct made it more likely that he had committed the offences with which he was charged. This was a legal error, and I am not persuaded that the verdict would necessarily have been the same if the error had not been made” (at paragraph 64).

Included Offences:

The accused was charged with the offence of attempting to overcome resistance to the commission of an indictable offence, contrary to section 246(a) of the Criminal Code. He was convicted of the included offence of assault by choking, contrary to section 267(c).

The Court of Appeal indicated that though it was not “making” any “determination about whether the offence enumerated in s. 267(c) is necessarily always included in an unparticularized charge under s. 246(a)”, it saw “no error in the trial judge’s conclusion that it was an included offence in this case, based on the way the Crown had worded the informations” (at paragraph 67).

The Court of Appeal concluded that “through the addition of apt words to the principal charge, namely, the words ‘by choking her with his arm’, the Crown particularized the charge in such a way that the offence of assault by choking under s. 267(c) is an included offence. This is because, in order to prove the full offence under s. 246(a), the Crown would have to prove, as a constituent element, that Mr. Stettner intentionally applied force to A.R., or that he attempted to do so, by choking her with his arm. Put another way, given the words of description used by the Crown in the charge, the offence under s. 267(c) was wholly embraced in the charge under s. 246(a), and Mr. Stettner was put on notice that, if those facts were proven, he was liable to being convicted of the offence under s. 267(c) even if the full offence under s. 246(a) were not proven” (at paragraph 77).