C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]
IN THE [LEVEL OF COURT] OF [PROVINCE]
HER MAJESTY THE QUEEN
– and –
NOTICE OF INTENTION TO ADDUCE SIMILAR FACT EVIDENCE
WHEREAS the accused, [accused name], has been charged that [on or about/between] [dates of the offence] he/she is alleged to have committed offences contrary to section(s) [list sections] of the Criminal Code;
AND WHEREAS the trial for these outstanding charges is currently scheduled to begin before the [level of court] on [date] at [time].
AND WHEREAS the Crown intends to call evidence from complainants AB and CD.
- AB will testify to allegations under s. xxx occurring [dates of the offence].
- CD will testify to allegations under s. xxx occurring [dates of the offence].
TAKE NOTICE that pursuant to the common law set out in R v Handy, 2002 SCC 56, that at the forthcoming trial upon the above-noted charges, the Crown seek to have the court rely on evidence of AB and CD as cross-count similar fact evidence to establish the following:
AND TAKE NOTICE that the Crown seeks to use these records to establish the following facts:
THE APPLICANT RELIES ON THE FOLLOWING LEGAL GROUNDS
- Evidence of extrinsic misconduct is presumptively inadmissible as it violates the rule against bad character and propensity evidence: R v Percy, 2020 NSCA 11.
- On a multi-count indictment alleging offences against different complainant, Courts must consider the credibility of each complainant, and the merits of each charge, separately unless the unrelated evidence is found to be properly admitted as similar fact evidence across counts in the indictment. Absent a ruling on SFE, it is an error of law to reason that because one complainant is telling the truth it is more likely another is as well: e.g. R v Popal, 2009 ONCA 408 (CanLII).
- The burden is upon the Crown on a balance of probability that the probative value outweighs the prejudicial effect: Handy.
- Before a court may use similar fact evidence, it must be satisfied that:
- the conduct is that of the accused;
- the evidence is relevant;
- the evidence is material;
- the conduct is discreditable to the accused;
- the evidence is probative, to the extent that its probative value outweighs its prejudicial effect.
- The value and prejudice of the evidence will greatly depend on the context in which it is found. Much of the value will flow from the degree of connection between the evidence and the offences.
- When assessing the value of the evidence, the court may consider factors including (Handy at para 82):
- the temporal proximity of the incidents;
- the physical or spatial proximity of the events;
- the similarity in detail between the various acts;
- the number of putatively similar acts;
- the circumstances surrounding the incidents at issue;
- distinctive features unifying the incidents; and
- the occurrence and nature of any intervening events.
- In R v Bent, 2016 ONCA 651 (CanLII) Chief Justice Strathy elaborated on Handy and considered additional questions for the court to consider:
- Does the evidence relate to a specific issue, other than that the accused is a person of bad character?
- Is the evidence tainted by collusion, which undermines the improbability of coincidence?
- What are the similarities and differences between the evidence that forms the basis of the charge and the proposed similar fact evidence?
- How strong is the evidence that the similar acts occurred?
- have the allegations been admitted in prior proceedings?
- are the allegations the subject matter of outstanding charges?
- by what method of proof are the acts to be proved?
- can the trier of fact fairly assess the evidence in the context of the trial without undue distraction?
- will the defence be able to fairly respond to the allegations in the context of the prosecution?
- The prejudice analysis has two components. There is “moral prejudice”, which is the risk of the evidence being used to draw a prohibited inference that the accused is the “kind” of person to commit the offence. Then there is “reasoning prejudice” which includes concerns that:
- The trier of fact may be distracted from deciding the issue in a reasoned way because of the inflammatory nature of the proposed evidence;
- The trier of fact may become confused about what evidence pertains to the crime charged and what evidence relates to the similar fact
- The trial will begin to focus disproportionately on whether the similar act happened
- The accused will be unable to respond to the allegation that the similar act occurred because of the passage of time, surprise or the collateral nature of the inquiry
- the potential of consuming inordinate court time;
- the extent to which the evidence is prejudicial and whether there is other less prejudicial evidence to prove the same point.
THE APPLICANT RELIES ON THE FOLLOWING FACTUAL GROUNDS
- The evidence between the three complainant’s AB and CD will have the following elements in common that provide corroboration to parts of each allegation.
IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE:
- [SET OUT documents and transcripts upon which the applicant relies upon; e.g affidavit, transcript, business records, oral evidence]
- Any additional evidence as counsel may advise and this Honourable Court may permit.
THE APPLICANT SEEKS THE FOLLOWING RELIEF:
- The Crown asks that the Court’s analysis of the intent of the accused should take into account the similarities of his conduct with respect to the complainants AB and CD and consider drawing inferences that ... .
- The Crown asks that the Court’s analysis of evidence of AB and CD be considered in light of the similarities between the stories and that where applicable corroboration be considered when assessing individual credibility and when assessing the Crown evidence as a whole.
FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT:
In accordance with the appropriate Rules of Court,
Tel: (xxx) xxx-xxxx
Fax: (xxx) xxx-xxxx
DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.
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