Misuse of Propensity Reasoning

In a recent decision from the Alberta Court of Appeal, R v K.W.P., 2025 ABCA 312 a new trial was ordered due to the trial judge perceiving animus by the accused and improperly assuming a propensity to commit the alleged crimes by relying upon bad character evidence.

The appellant was convicted of two offences, assault by choking and sexual assault during the breakdown of the marriage to the complainant.

The trial judge took exception to portions of the appellant’s evidence in particular portraying himself as the unwitting victim of the complainant’s unhappiness.  The judge found that the appellant was “extremely angry and hurt and felt justified in this anger and hurt.  This justification made it easier if his wife’s unhappiness has nothing to do with him.  It is a self-serving denial.”  Quoting the trial judge’s reasons for conviction, the Court of Appeal quoted paragraphs 82-84:

This same justification is why [the appellant] very matter of factly told this court that he grabbed [the complainant’s] phone from her and attempted to open it and then took the laptop that his son was using in order to look at this so that he might get the “truth” about his suspicions that [the complainant] was seeing another man. He then hid these devices from [the complainant]. While these actions may be understandable on an emotional level in the context of a breakdown of a marriage, [the appellant] did not betray any insight into the inappropriateness of this behaviour when he testified to it many months later. There was no hint that he thought there was anything wrong with what he had done – even the parts that involved his son.

[83] It was clear that, just as [the appellant] felt entitled to an itinerary of his wife’s UK trip even though she was not living with him and they were estranged at that time, [the appellant] felt entitled to forcibly take [the complainant’s] devices from her without her permission.

[84] It is this same entitlement – an entitlement fueled by pain and anger – that allowed [the appellant] to assault [the complainant] in February and again in June of 2022. (Emphasis Added)

The Court of Appeal noted at paragraphs 11-12:

The admissibility and use of evidence relevant to motive or animus, particularly in the context of domestic violence, is well established.[6] The use of such evidence in assessing credibility is also well established.[7] Even where evidence is admitted for that purpose a balancing of the probative value and prejudicial effect of that evidence is required.[8]

While the issue of animus was raised by the appellant in relation to the complainant, no similar argument was made in relation to the appellant by the Crown at trial. Further, neither party referred to the applicable principles on the limited use of such evidence. As a result, reference to the broader record does not assist in clarifying the trial judge’s statement at paragraph 84 of her reasons.

The Court of Appeal noted that the judge’s analysis made no reference to motive, animus or their use in assessing credibility.  Rather, it moved directly from an observed attitude to a conclusion that the appellant was responsible for both offences.  This conclusion was reached prior to any examination of the complainant’s evidence in her decision and before a definitive finding on credibility of either the complainant or the appellant in the context of all the evidence at trial.

Thus, the trial judge’s reasoning slipped into impermissible propensity reasoning by relying on bad character evidence to convict the appellant.

This case is an important reminder to be careful about the use of animus and propensity evidence when not properly grounded or relevant.  Animus can only be used to establish motive or intent and it is not automatically admissible.  Further, evidence of animus must be probative and provide actual insight into the relationship rather than simply revealing past conflicts or “bad character” as the trial judge found in this case.