Similar Fact Evidence

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General Principles

See also: Character Evidence

Similar Fact Evidence (SFE) is a form of character evidence that relates to "extrinsic misconduct by an accused".[1]

While Canadian law refers to "similar fact evidence" the term has been found to be misleading.[2] Other terms for the rule include "prior discreditable conduct", "prior bad acts" or "similar offending".

Purpose
This form of evidence is admissible to show "that persons tend to act in a manner consistent with their character".[3]

The evidence should be treated cautiously as it risks violating the presumption of innocence by convicting based on prejudices, including their lifestyle, rather than proof of fact.[4] There is also a general presumption in criminal law that a person tried in a criminal court must only answer to evidence "limited to matters relating to the transaction which forms the subject of the indictment".[5] Propensity evidence should also be avoided as it tends to direct the investigation on the "usual suspects" rather than on the offence itself and is counter to the assumption that offenders can rehabilitate.[6]

What Evidence Applies
Evidence will be SFE where it:

  1. relates to prior conduct of the accused;
  2. may have a prejudicial effect;
  3. is being admitted for a purpose that establishes guilt.

The rule will apply equally to evidence of multiple complainants reporting similar events used for the purpose of corroborating each others evidence as much as it applies to similar fact witnesses.[7]

Burden and Standard
SFE is "presumptively inadmissible" and viewed with suspicion as persons should generally not be punished for prior bad acts.[8] Consequently, it should only be "exceptionally" admitted where the crown discharges the burden.[9]

The requirements of admissibility must be proven on a balance of probabilities.[10] There is no obligation to prove the prior bad acts, whether criminal or not, on a criminal standard of beyond a reasonable doubt.[11]

Appellate Review
The requirements of the test of similar fact evidence is a question of law and reviewable on a standard of correctness.[12]

  1. R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908
    R v Luciano, 2011 ONCA 89 (CanLII) at para 226
    See also:
    R v Shearing, [2002] 3 SCR 33, 2002 SCC 58 (CanLII)
    R v D(LE), [1989] 2 SCR 111, 1989 CanLII 74 (SCC)
    R v Sweitzer, [1982] 1 SCR 949, 1982 CanLII 23 (SCC)
    R v Morris, [1983] 2 SCR 190, 1983 CanLII 28 (SCC)
    R v Morin , [1988] 2 SCR 345, 1988 CanLII 8 (SCC)
    R v B(CR), [1990] 1 SCR 717, 1990 CanLII 142 (SCC)
    R v Arp, [1998] 3 SCR 339, 1998 CanLII 769 (SCC)
    R v Robertson, [1987] 1 SCR 918, 1987 CanLII 61 (SCC)
    R v Seaboyer, [1991] 2 SCR 577, 1991 CanLII 76 (SCC), at p. 613
    R v Lepage, [1995] 1 SCR 654, 1995 CanLII 123 (SCC)
    R v C(MH), [1991] 1 SCR 763, 1991 CanLII 94 (SCC)
    R v Litchfield, [1993] 4 SCR 333, 1993 CanLII 44 (SCC)
    R v B(FF), [1993] 1 SCR 697, 1993 CanLII 167 (SCC)
  2. R v LB, 1997 CanLII 3187 (ON CA), per Charron JA. (as she was)
  3. LB, ibid.
  4. Handy, supra at para 139
    R v Bond, [1906] 2 K.B. 389
  5. Koufis, [1941] S.C.R. 481, at p. 490
    Maxwell v D.P.P ., [1935] A.C. 309 (H.L.), at p. 317
  6. Handy, supra at para 38
  7. R v White, 2015 ABQB 601 (CanLII), at para 29
  8. Handy, supra, at para 55
    R v B(CR) (1990), 55 CCC (3d) 1 at p. 15
  9. Handy, supra, at para 60
    R v B.(C.R.), 1990 CanLII 142 (SCC), [1990] 1 SCR 717 at 732
  10. Handy, supra
  11. R v Carpenter, 2010 BCCA 27 (CanLII)
  12. R v Tessier, 2002 SCC 6 (CanLII)
    R v Ward, 1979 CanLII 14 (SCC), [1979] 2 SCR 30, 44 CCC (2d) 498
    R v Moreau, (1986) 15 OAC 81, 26 CCC (3d) 359 (Ont CA)

Admission of Similar Fact

The modern view on SFE is a "principled approach" where the evidence is admissible only where the probative value out weighs the prejudicial effect.[1]

To admit SFE the judge should be satisfied that: [2]

  1. the conduct is that of the accused;
  2. the evidence is relevant;
  3. the evidence is material;
  4. the conduct is discreditable to the accused;
  5. the evidence is probative, to the extent that its probative value outweighs its prejudicial effect

The answer must be in the affirmative to all of the questions.[3]

A categorical approach to SFE based on what purpose the evidence is being adduced for is not appropriate.[4]

The application of the test is the same whether it is evidence of extrinsic acts or arises from the evidence applied to other counts on the indictment.[5]

Where it is presented only for the purpose of establishing that the accused's character makes him more likely to have committed the offence it is prohibited.[6]

SFE may be admitted where its probative value to an "issue in question" outweighs its prejudicial effect.[7] The essence of the exception allows the judge to consider propensity only where the propensity evidence is sufficiently precise to overcome the prejudice it endures.[8]

The burden is upon the Crown on a balance of probabilities to establish the probative value outweighing the prejudicial effect.[9]

The Crown has the burden of adducing evidence of the "improbability of coincidence" between incidents.[10]

The admissibility question should focus on the acts themselves and whether their similarities permit admission.[11]

  1. R v Handy
    D(LE), supra
    R v B(CR), at p. 22 (CCC) ("while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.")
  2. R v RL, 2007 CanLII 60171 (ON SC), at para 7 citing Handy
    Luciano at para 227
  3. Luciano at para 227
    R v B.(L.); R v G.(M.A.), 1997 CanLII 3187 (ON CA), (1997), 35 O.R. (3d) 35 (C.A.), at para 10
  4. Boardman v DPP, [1975] AC 421
  5. R v Moo, 2009 ONCA 645 (CanLII), at para 97
  6. R v Clermont, [1986] 2 SCR 131, 1986 CanLII 26 (SCC)
    R v Morris, [1983] 2 SCR 190, 1983 CanLII 28 (SCC)
    R v Morin, [1988] 2 SCR 345, 1988 CanLII 8 (SCC)
  7. R v C.R.B., 1990 CanLII 142 (SCC), (1990), 55 CCC (3d) 1 (S.C.C.) at p. 22 ("Evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury")
  8. R v G.E.S., 2007 CanLII 20796 (ON SC), at para 7 ("evidence identifies a disposition or propensity with sufficient precision to make the evidence worth receiving")
  9. R v Handy at para 55 ("The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.")
  10. R v Mahalingan, 2008 SCC 63 (CanLII), [2008] 3 SCR 316 at para 72
    R v Johnson, 2011 ONSC 195 (CanLII), at para 131
  11. R v MacCormack, 2009 ONCA 72 (CanLII) at para 52

Count-to-Count Admissibility

Generally, on a trial for a multi count information, evidence relevant to one count cannot be used to support another count without violating the similar fact rule. R v T.C.F., 2006 NSCA 42 (CanLII) At para 23 ("... generally evidence of the commission of a crime charged on one count of an indictment is not admissible to show that the accused committed some other crime charged in the indictment. It also means that evidence tending to show only or mainly that the accused is of bad character or has committed discreditable acts is not to be used in deciding whether he or she is guilty of an offence. ") </ref>

In a prosecution on a multi-count indictment with different complainants, the Crown may seek to admissibility of evidence to apply across several counts as similar fact evidence.[1] These applications are often dealt with at the conclusion of the Crown's evidence.[2] Or at the end of the case.[3]

Absent a ruling on similar fact in a trial on a multi-count indictment, the trial judge must give instructions warning a jury against the miss use of evidence from one county in relation to any other account."[4]

  1. R v Johnson, 2011 ONSC 195 (CanLII), at para 130
  2. Johnson at para 130
    R v Last, 2009 SCC 45 (CanLII), (2010), 247 CCC (3d) 449 (S.C.C.) at para 34.
  3. e.g. R v U.C., 2009 ONCA 367 (CanLII), at para 19
  4. R v Nduwayo, 2008 BCCA 255 (CanLII)

Purpose of the Evidence

Evidence admitted for the purpose of establishing the actus reus has a lower standard of admission and may be admitted where the similarities of evidence is less cogent.[1]

  1. R v Cresswell, [2009] OJ No 363 (ONCA) at para 9

Factors

Similar fact evidence is "presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on the balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception." [1]

When assessing the similarities of incidents in a similar fact evidence application, the court should consider:[2]

  1. the temporal proximity of the incidents;
  2. the physical or spatial proximity of the events;
  3. the similarity in detail between the various acts;
  4. the number of putatively similar acts;
  5. the circumstances surrounding the incidents at issue;
  6. distinctive features unifying the incidents; and
  7. the occurrence and nature of any intervening events.

The risk of "moral prejudice" refers to risks of the evidence being used to draw a prohibited inference that the accused is the kind of person likely to the commit the offence charged.[3]

The risk of "reasoning prejudice" includes risks such as:[4]

  • 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 facts 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

Reasoning and moral prejudice are considered less of a concern for trials by judge alone than trial by jury. [5]

There is no requirement that there be a "pattern of propensity, hallmark evidence or repeated conduct in a particular situation" for the evidence to be admissible.[6]

  1. R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908
    The Law of Evidence, by David M. Paciocco and Lee Stuesser, 5th ed. (Toronto: Irwin Law Inc., 2008) at page 55
  2. e.g., R v Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339 at para 50;
    R v Handy at para 82
    Watt’s Manual of Criminal Evidence, Thomson Reuters, 2010, at p. 503
  3. Handy
  4. Handy
  5. R v B.(T.), 2009 ONCA 177 (CanLII), [2009] O.J. No. 751 (Ont. C.A.)
  6. R v TLM, [2011] NJ No 118 (NSLA) at para 62 per Hoegg JA in dissent, adopted by SCC on appeal [2012] SCJ 6

Probative Value and Prejudicial Effect

The determination of the probative value will depend on the purpose and issue for which the evidence is to be admitted.[1] The value of the evidence will be largely driven by the connection or "nexus" that exist between the proposed evidence and the offence(s).[2]

Where identity and mens rea are not at issue, SFE will be highly probative as corroborative evidence and should generally be useful in evaluating credibility.[3]

  1. R v Johnson, at para 132
    R v Mahalingan, 2008 SCC 63 (CanLII), [2008] 3 SCR 316 at para 72
  2. Handy at para 76
  3. R v CRB, 1990 CanLII 142 (SCC), [1990] 1 SCR 717

Specificity

Evidence of general disposition, general character, "generic" similarities, or "vague" facts will never be admissible.[1]

Generic similarities common among the commission of the type of offence will not be admissible.[2]

Facts that are "vague" will not be admissible.[3]

A "specific" disposition can be admitted where the evidence supports "a legitimate chain of reasoning and a 'persuasive degree of connection' justifying a similar fact ruling in favour of the prosecution".[4]

Examples of admissible disposition evidence includes:

  • “a specific disposition to sexually abuse his companion’s two young daughters”[5]
  • “specific propensity to engage in sexual misconduct with boys in his care who came to him in a vulnerable condition”[6]

It is important to also take note of material dissimilarities between transactions.[7]

  1. Johnson at para 133, 135
    R v Perrier, 2004 SCC 56 (CanLII), [2004] 3 SCR 228 at para 18 - disposition
    R v U.C., 2009 ONCA 367 (CanLII) at para 41 - disposition
    R v Chapman, 2006 CanLII 1178 (ON CA), (2006), 204 CCC (3d) 449 (Ont. C.A.) at para 24 - character
  2. R v Cresswell, 2009 ONCA 95 (CanLII), at para 8
    R v R.B., 2003 CanLII 13682 (ON CA), (2003), 68 O.R. (3d) 75 (C.A.) at para 49, 64, 69 aff’d 2004 SCC 69 (CanLII), [2004] 3 SCR 503
  3. Handy, at para 85
    e.g. R v OC, 2006 CanLII 3258 (ON CA) - judge rejected generic similarities: young female victims, touched in genital areas followed by apology
  4. Johnson at paras 135
  5. U.C., at para 41
  6. R v B.(R.), 2005 CanLII 30693 (ON CA), (2005), 77 O.R. 171 (C.A.) at para 11
  7. Handy at para 123
    Johnson at para 136

Collusion

See also: Analyzing Testimony#Evidence of Collusion or Tainting

Where there are "strikingly similar" incidents given by independent witnesses, the improbability of coincidental recollection give probity to the evidence as being connected.[1]

But where there is collusion between witnesses and they share their evidence with each other prior to giving evidence, this sharing either intentionally or unintentionally alters their evidence to be more similar and consistent.

Collusion is to be considered both in determining the admissibility of similar fact evidence as well as the reliability of the witness's evidence overall.[2]

The existence of collusion can rebut the premise upon which admissibility depends.[3]

Evidence of collusion can reduce or eliminate the probative value of the witness's evidence as it ceases to be independent and compelling.[4]

Collusion is generally not something that should simply be left to the jury to decide.[5]

Potential inadvertent collusion through rumours and media accounts may occur and should not by itself exclude similar fact evidence. However, such occurrence should go to the weight.[6]

Where there is an air of reality to the existence of collusion there is then a condition precedent for the Crown to prove on a balance of probabilities that the similar fact evidence was not tainted by the collusion.[7]

Where the evidence amounts simply to an "opportunity" to collaborate then the issue will be left to the trier-of-fact to determine the weight.[8]

  1. R v U.C., 2009 ONCA 367 (CanLII) at para 40
  2. C.L. at para 71
  3. Handy at para 110
  4. R v C.L., 2013 ONSC 277 (CanLII) at para 71
  5. R v Handy, 2000 CanLII 5707 (ON CA), 48 O.R. (3d) 257 (C.A.) at para 52, per Charron J.A. aff’d on appeal to SCC
    c.f. R v Dorsey, 2012 ONCA 185 at para 26 per MacPherson JA. - mere opportunity of collusion should be left to the jury
  6. R v Dorsey, 2012 ONCA 185 (CanLII)
  7. R v Johnson, per Hill J. at para 141
    Handy, at para 112
  8. Handy at para 111 ("[t]he issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually be best left to the jury")

Similarities Between Acts

The degree of similarity required "is assessed in relation to the issue sought to be established and must be evaluated in relation to the other evidence in the case."[1]

What would be called "generic similarities" are to be given less consideration. The risk of "relying primarily on generic similarities" to support evidence establishing the actus reus includes the risk that the "initial inference arising from the prior conduct becomes so general, that it approaches bad personhood" and also the risk the accused's "non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case." [2]

  1. R v Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33
    e.g. R v H(J), 2006 CanLII 40664 (ON CA)
  2. R v Blake, 2003 CanLII 13682 (ON CA), (2003), 181 CCC (3d) 169, affirmed 2004 SCC 69 (CanLII), (2004), 188 CCC (3d) 428 (S.C.C.) at para 64

Prejudices

See also: Discretionary Exclusion of Evidence

Evidence will be prejudicial where it "involves the distraction of the jury from the proper focus of the charge".[1]

SFE should not be admitted where the "facts may induce in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process".[2]

In judge-alone trials the typical moral and reasoning prejudices are reduced.[3]

  1. R v MT, 2009 CanLII 29204 (ON SC), at para 18
  2. R. v D. (L.E.) (1987), 1987 CanLII 2536 (BC CA), 20 B.C.L.R. (2d) 384 (C.A.), at p. 399 per McLachlin JA. (as she was)
    MT at para 18
  3. e.g. e.g. R v Conway, 2016 CanLII 85720 (NL SCTD) at para 69

Types of Probative Similar Fact Evidence

SFE can be admitted to show the accused's state of mind.[1]

  1. R v Brooks 1989 CanLII 2894 (BC CA), (1989), 71 C.R. (3d) 25 (BCCA) at 12
    Leblanc v R., 1975 CanLII 190 (SCC), [1977] 1 SCR 339, 29 CCC (2d) 97 at 111

History of Abuse

It has also been probative to admit evidence of an abusive relationship that would warrant animus between the complainant and accused.[1]

Evidence of prior abuse by the accused can be admissible to show that fear was a factor in delayed disclosure.[2]

A propensity to physically control and assault the complainant in particularly degrading ways can be probative to show valid disposition to commit the offence.[3]

Patterns of "bizarre" sexual behaviour including a complete indifference to whether the complainant was consenting is relevant to a sexual assault.[4]

  1. e.g. Hindessa, 2009 CanLII 48836 (ON SC)
  2. R v F, DS, 1999 CanLII 3704 (ON CA)
  3. S(P), 2007 ONCA 299 (CanLII), at para 38
  4. R v Stroud, 2007 ONCA 697 (CanLII)

Rebut an Anticipated Defence

Evidence of prior bad conduct may be admitted to rebut the defence that the offence could not have occurred where there were other adults nearby and could detect the offence.[1]

SFE can be used to rebut defence evidence of an alternate suspect.[2]

  1. R v T.L.M., [2012] 1 SCR 233, 2012 SCC 6 (CanLII)
    R v Moore, 1994 CanLII 8730 (ON CA)
  2. R v Sparkes, 2005 CanLII 15707 (ON CA)
    R v Vanezis, 2006 CanLII 37954 (ON CA)

Identity of Accused

Evidence showing the accused committing the same offence in other instances may only be admitted where there is a "high degree of similarity between the acts renders the likelihood of coincidence objectively improbable."[1]

There is a two step procedure for admitting SFE to establish identity:[2]

  1. the trial judge must examine the factual nexus between the proposed similar fact evidence and the offence charged, and evaluate whether the degree of similarity between them is sufficient to establish the objective probability that the same person committed them; and
  2. the trial judge must consider whether there is "some evidence" linking the accused to the similar acts.

On the first step the crown must establish that the "proposed evidence of similar acts bears a “striking similarity” to the offence charged" which would include observing "a unique hallmark or signature, or from the cumulative effect of a number of similarities".[3] At this step, evidence linking the accused to the past acts is not relevant.[4] Factors to be considered include:[5]

  1. proximity in time,
  2. similarity in detail,
  3. the number of occurrences,
  4. circumstances surrounding or relating to the similar acts,
  5. distinctive features unifying the incidents, and
  6. intervening events.
  1. R v Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339 at para 43
  2. R v Butorac, 2013 BCCA 421 (CanLII) at para 30
  3. Butorac, ibid. at para 30
  4. Butorac, ibid. at para 30
  5. Butorac, ibid. at para 30

Fraud

Similar fact evidence may be admissible to show that the accused undertook a system to defraud the victim.[1]

This can also be used to negate the defence of "innocent intent".[2]

  1. R v Foley, 1996 CanLII 708 (BC CA) at para 17
    R v Brooks 1989 CanLII 2894 (BC CA), (1989), 71 C.R. (3d) 25 (BCCA) at para 12
  2. e.g. R v Winter, 2008 CanLII 46998 (NL PC)

Proving Actus Reus/Enhancing Credibility

Same Complainant
Generally, court have admitted similar fact evidence that came from the "same complainant".[1]

Multiple Complainants
Where the accused is being tried for multiple offences of a similar nature, such as sex offences, that are against different complainants the evidence of each complainant must be considered separately or else it will be seen as being used as propensity evidence. It is wrong to suggest that because one complainant is telling the truth it is more likely another is as well.[2] A limiting jury instructions would be needed to direct the use of multi-complainant evidence.[3]

However, evidence of each complainant can be used to rebut suggestions that the witnesses independently invented their evidence.[4]

  1. See: R v D.(L.E.) 1989 CanLII 74 (SCC), (1989), 50 CCC (3d) 142 (S.C.C.) at pp. 155-162
    R v R.(G.), (1993), 80 CCC (3d) 130 (Ont.C.A.)(*no link) at pp. 137-140
    R v Litchfield 1993 CanLII 44 (SCC), (1993), 86 CCC (3d) 97 (S.C.C.) at pp. 116-117
    R v H.(D.A.), 1997 CanLII 14385 (NS CA), (1997), 119 CCC (3d) 238 (NSCA) at pp. 263-264
    R v W.(D.D.), 1997 CanLII 12487 (BC CA), (1997), 114 CCC (3d) 506 (BCCA) at para 54-58
    R v F.(D.S.), 1999 CanLII 3704 (ON CA), (1999), 132 CCC (3d) 97 (Ont.C.A.) at para 19-35
    R v Batte, 2000 CanLII 5750 (ON CA), (2000), 145 CCC (3d) 449 (Ont.C.A.) at para 102-114
    R v MacDonald 2002 CanLII 14251 (ON CA), (2002), 170 CCC (3d) 46 (Ont.C.A.) at para 34-35
    R v C.(D.A.R.) (2002), 170 CCC (3d) 64 (P.E.I.S.C.A.D.)(*no link) at para 22-49
    R v D.(T.J.), [2004] O.J. No. 1444 (C.A.)(*no link) at para 1-4
    R v L.(D.), [2004] O.J. No. 4692 (C.A.)(*no link)
    R v W.(S.), [2004] O.J. No. 4164 (C.A.)(*no link)
    R v R.(B.) 2006 CanLII 29082 (ON CA), (2006), 212 CCC (3d) 65 (Ont.C.A.) at para 29-43
    R v S.(P.) 2007 ONCA 299 (CanLII), (2007), 221 CCC (3d) 45 (Ont.C.A.) at para 23-42
  2. R v Popal, 2009 ONCA 408 (CanLII) at para 7
  3. Popal, ibid.
  4. R v Finelli, [2008] O.J. No. 2242 (Sup. Ct.) per Spies J.

Procedure

Notice must be given to the defence of an application to adduce similar fact evidence.[1] This notice should be given no later than at the closing of the Crown's case and before the defence decides whether to call evidence.[2]

  1. R v D.L.W., 2013 BCSC 1016 (CanLII) at paras 19 to 21
  2. D.L.W., ibid. at paras 19 to 21

Case Digests

See Also