1. Nowlin Narrative: Lecture 3

2. Narrative Evidence as Prior Bad Acts Question: Is “narrative” of an accused’s prior bad acts admissible as “context” or “background”? Larmirande and Guimond were charged with robbery of a grocery store, and murder of an employee there.

3. Lamirande and Guimond Police seized the notebook of Lamirande. It showed her association with Indian Posse. The trial judge allowed this evidence in as “background, context and narrative.” It was “necessary to the development of the case for the Crown. The notes were “relevant” in these ways.

4. The defence argued that this was nothing more than “bad character”, and that narrative was not an exception to the bad character rule. The Manitoba Court of Appeal disagreed citing Rowbotham.

5. Rowbowtham Rowbotham was serving a sentence a sentence in Kingston Pen for a conspiracy conviction. He was now charged with conspiracy to import and traffic in a narcotic. A witness testified that he was recruited by the accused while both were serving in Kingston Pen.

6. The Crown sought, successfully, to introduce the fact that the accused was serving at Kingston for a prior conspiracy conviction as it “was necessary to the development of the Crown’s case.” This basis for admissibility was described as “freestanding.”

7. The Manitoba Court of Appeal also applied this “freestanding” rule to evidence of the get away driver, that the two of them had worked together on robberies in the past. The Crown argued this evidence was “necessary” to show that the present robbery was not “spur of the moment”, but, rather, an ongoing criminal enterprise.

8. The Crown argued that it also put into context why a sawed off shotgun with tape around it was so readily available, why violence so easily contemplated, and how a different and second location could be quickly chosen when the first location proved unavailable.

9. Held: the evidence that the accused and Desjarlais had planned together and executed other robberies of a similar nature within a very short time prior to the robbery in question was highly relevant in explaining the background to the present robbery.

10. Nowlin It is difficult to understand why the jury needed to hear about prior robberies when the jury heard evidence of the planning of this one. How does this make the prior robberies “necessary” to telling the story of the present?

11. If not part of the act itself or its planning, and if it does not amount to similar fact evidence, what is its relevance?

12. Admissibility of Confessions of Prior Bad Acts as Narrative General Rule: Just as prior bad acts are inadmissible, so are confessions to prior bad acts. Inadmissible portions of statements should be edited. ie. a fact otherwise not admissible in evidence does not become admissible merely because it is incorporated in a confession.

13. In R. v. L.(F.) the Crown sought to tender a confession of the accused to his wife as to the sexual assault on a child which involved his general practices and fantasies which included young girls and their panties. The remainder of the confession, the court held, was admissible to provide context to the “bald” confession.

14. In the Court’s mind, the “weight” of the statement could only be assessed in the context in which it occurred. Nowlin: isn’t the statement admissible as relevant to this transaction as opposed to only being “narrative”, and as it is being allowed to be used in assessing weight, doesn’t it mean this evidence is more than narrative?

15. Post-Offence Undercover Admissions and Bad Acts as Narrative e.g. the “Mr. Big scenario”, where a target is asked to set out his crimes as a pre-condition to employment in the criminal enterprise. Defence lawyers typically challenge the admissibility of the prior bad acts related by their clients in these interviews (most of which have never been investigated or charged), as well as that of the scripted crimes requested by the police handlers and acted out by the accused.

16. Nowlin The panacea for the myriad evidential problems this scenario presents (particularly its violation of the character evidence rule) appears to be narrative.

17. Jones In Jones, the accused stood trial for two aggravated assaults. The trial judge allowed in evidence of his claim to police in the undercover operation that he was ready to beat up a woman for pay. On appeal, this evidence was held “no doubt” admissible to give a full picture of the narrative that the appellant gave to the undercover officers.

18. Nowlin This use stretches the temporal aspect of narrative to the future: ie. post-offence. Ie. this is no longer putting the Crown’s case in chronological perspective.

19. Narrative as Bad Character “Relationship” Evidence Canadian courts appear to recognize a general rule in favor of admitting bad acts when they occur in the context of a marital or similar relationship – particularly with respect to prior violent or sexual acts in that relationship. It has been used to justify the admissibility of similar fact relationship evidence – merely to demonstrate the nature of the relationship (violent) which is seen as probative.

20. Non-Similar Fact relationship Evidence Barbour: facing trial for the murder of Margaret Harris. Identity not in issue. Trial Judge admitted evidence of the violent nature of their relationship. SCC: this is nothing more than “disposition” evidence. It showed him to be a “jealous” man, and the jury was told she was seeing another man, although there was no proof the accused knew that.

21. Vs. B.(S.)

23. F.(D.S.)

25. Baptiste