MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

172 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
evidence of disposition, according to the defence, demonstrated that Mr.
Morrisey, when he got angry or upset at the time of breakdown in a
personal relationship, turned his feelings of distress on himself as opposed
to his partners. The evidence was crucial to Mr. Morrisey’s state of mind at
the material time, since it vitiated the specific intent required for
murder. 140
Fuerst J, while recognizing that the relevance of the defence evidence
involved propensity reasoning, which is generally problematic since it is
premised on the belief that a person’s disposition is a reliable predictor of
conduct in a given situation, refused to exclude the evidence, pursuant to
her exclusionary discretion or otherwise. 141 She underlined that the danger
of propensity reasoning concerning the accused (that it will do no more
than blacken an accused’s character) makes Crown evidence of this kind
impermissible, 142 not defence evidence which seeks to assist an accused in
making full answer and defence. Because prejudice did not substantially
outweigh probative value, the evidence could not be excluded. Fuerst J
also underlined that a trial judge possesses the discretion to relax rules of
evidence in favour of an accused in order to prevent a miscarriage of
justice, which she was choosing to exercise if the impugned evidence,
strictly speaking, was not technically admissible for violation of the similar
fact evidence rule. 143 Last, the risk that the evidence would be used as
evidence of Mr. Morrisey’s general disposition was not unduly high since
the trial was by judge alone.
In R v Young, 144 expert evidence tendered by the defence addressing
the effect of alcohol on the human body survived where comparable
Crown evidence might not have. There, the trial judge refused to apply the
140
Morrisey, supra note 126 at paras 7-14 & paras 23-24.
141
Ibid at para 25-27.
142
Ibid at para 21. This kind of evidence is referred to as “similar fact evidence” when
tendered by the Crown. It is inadmissible unless it can meet the test for admission set
down in R v Handy, 2002 SCC 56, [2002] 2 SCR 908 [Handy], a test heavily imbued
by considerations of probative value and prejudice. Fuerst J refused to qualify the
defence evidence as “similar fact evidence” since it was not evidence that had been
tendered by the Crown for the purpose of blackening the character of the accused: at
para 21.
143
Morrisey, supra note 126 at para 26. Even though the evidence can be received in these
circumstances, this does not entitle it to any weight. Fuerst J notes as much, in her
reasons at para 24.
144
2003 BCSC 1831 (available on WL Can) [Young].