Ontario Criminal


Propensity reasoning could be controlled by limiting instructions and cross-examination

Crown sought to admit statements accused made to acquaintances of victim and victim’s ante-mortem statements as prior discreditable conduct in relation to first-degree murder charge. Accused had threatened victim but not by name with witnesses clearly believing accused was referencing victim. Ante-mortem statements involved victim wanting to move out due to problems with accused as Crown’s theory was accused despised victim who was living with accused. Threats were alleged to be relevant to animus, identity and motive and critical to rebut defences of provocation, intoxication, third-party suspect and self-defence, should these defences be raised. Evidence admissible. Evidence was clearly probative and accused would have opportunity to cross-examine witnesses. Issue was not whether admitting statements would increase chance that accused would be convicted, but whether statements would be improperly used by jury. Propensity reasoning could be controlled by both limiting instructions and cross-examination. Jury could be reminded that they must consider all evidence; that they were not to determine guilt or innocence based on threats alone and that just because accused made threats did not mean he was bad person.

R. v. Martineau (Apr. 22, 2015, Ont. S.C.J., C.A. Gilmore J., File No. Newmarket CR-12-00002982) 121 W.C.B. (2d) 38.

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