R. v. Brown, 2018 ONCA 481

Dans cette affaire, le juge du procès avait permis au poursuivant de mettre en preuve des photographies d’une arme à feu extraites du téléphone cellulaire de l’accusé, qui correspondaient à une arme qui avait été utilisée pour la commission d’un vol. Ayant reconnu qu’il s’agissait d’une preuve de propension pouvant amener le jury à penser que l’accusé est le type d’individu qui possède et utilise des armes, le juge du procès a davantage considéré qu’il s’agissait d’une preuve circonstancielle reliant l’accusé à l’arme utilisée lors du vol, et a permis la preuve suivant le principe que sa valeur probante surpassait son effet préjudiciable.

La Cour d’appel de l’Ontario reproche toutefois au juge du procès de ne pas avoir mis le jury en garde relativement au côté propension de la preuve et ordonne un nouveau procès: 

[42]      The ultimate probative value and prejudicial effect of the Photographs turned on the jury’s factual findings: both parties accept that if the jury found that the Photographs were of the Gun, they would be highly probative to their determination of whether the appellant had knowledge of the Gun. In such a circumstance the Photographs would not be extrinsic character evidence – they would be relevant circumstantial evidence of possession, as the Crown submitted at trial. However, if the jury found that the firearm in the Photographs was not the Gun, then the Photographs had the potential to lead the jury to conclude that the appellant, as the type of person who looks at pictures of guns on his cell phone, was more likely to possess a prohibited gun associated with criminal violence.

[43]      All evidence of general propensity, disposition, or discreditable conduct is presumptively inadmissible: R. v. Handy, 2002 SCC 56 (CanLII), [2002] 2 S.C.R. 908, at paras. 31-36; R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at p. 731. Whether such evidence gains admission depends upon whether “the probative value of the evidence in relation to a particular issue outweighs its potential prejudice”: Handy, at para. 55. Evidence that does no more than reveal the general, discreditable disposition of the accused will not meet this standard since “proof of general disposition is a prohibited purpose” (emphasis in original): Handy, at para. 72. Evidence revealing general propensity, disposition or general discreditable conduct must have some other probative purpose that outweighs the risk of prejudice it presents.

[44]      Even where evidence that shows an accused’s bad character or general propensity is admitted, it should be accompanied by a clear instruction to the jury that they cannot use that evidence in order to conclude that the accused is a bad person or is of a certain general disposition and is therefore more likely to have committed the offence charged: R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at p. 1311. The jury needs to understand the purposes for which it can use such evidence in its deliberations: in certain circumstances it is necessary to instruct the jury not to reach a conclusion based upon general propensity or bad character: R. v. Chamot, 2012 ONCA 903 (CanLII), 302 O.A.C. 104, at para. 61; R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 34 O.R. (3d) 332 (C.A.).

[45]      If the jury were to come to the conclusion that the Photographs were not of the Gun then it would follow that the appellant had images of another similar weapon in his cell phone. In my view, the jury needed to be instructed as to what use they could make of the Photographs in that event. The answer, of course, is none – if the jury concluded that the Photographs were not of the Gun, then the Photographs could only be relevant insofar as they were evidence of general propensity, and should accordingly not have been considered. The trial judge should have provided clear instructions that the Photographs were of no assistance if the jury were to conclude that the firearm images in the Photographs were not of the Gun, and provided express guidance on what use the jury could have made of the Photographs if they were uncertain of whether they depicted the Gun.

[46]      In my view, the combination of factors surrounding the admission of the Photographs and related references to the jury charge renders the failure to give the jury any guidance about the use they could make of this evidence serious. The ruling that the Photographs were admissible depended in part on the jury’s receiving proper limiting instructions. The trial judge expressly undertook to provide such instructions, but did not do so. The potential prejudice was heightened because of the general similarity between the extrinsic misconduct and the offence before the court: possessing pictures of a gun and actually possessing a similar gun.

[47]       Finally, given the potential prejudicial effect of the Photographs identified above, I am of the view that the positions taken by counsel were insufficient to temper the risk of the jury’s engaging in propensity reasoning – the relevant concern relates to the effect of the evidence, and not necessarily the use the Crown put to it. Although Crown counsel did not rely on the Photographs in her submissions to the jury, neither did the Crown actively dissuade the jury from the impermissible line of reasoning I have just set out. More is required than for counsel to put the evidence out there and let the jury make of it what they will.

[48]      Although, as this court held in R. v. Beausoleil, 2011 ONCA 471 (CanLII), 277 C.C.C. (3d) 50 (C.A.), at paras. 19-21, a failure to provide limiting instructions of this nature will not necessarily result in reversible error, here there was a real risk that the jury would use the evidence of the Photographs for an improper purpose. In such circumstances the trial judge must caution against the misuse of this evidence, and the trial judge’s failure to do so here was an error: Chamot, at para. 62

[49]      I note that the appellant’s trial counsel did not object to the trial judge’s failing to charge on this point. A failure to object is a factor to be taken in to account when considering a non-direction to the jury, but it is not determinative of the analysis: Chamot, at para. 73; Samuels, at para. 50. This failure does not impact my analysis above – particularly in the light of the significant risk that the jury could misuse the evidence absent a limiting instruction, and the trial judge’s undertaking to include such a limiting instruction in his charge.

[50]      For these reasons, subject to my analysis below of the Crown’s reliance on the curative proviso, I find the failure to provide the jury with limiting instructions concerning the Photographs to be a reversible error.