Similar Fact Evidence

This page was last substantively updated or reviewed August 2021. (Rev. # 91715)

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General Principles

Similar Fact Evidence (SFE) is a form of character evidence that relates to "extrinsic misconduct by an accused" and is presumed inadmissible. The SFE rule is described as an exception to the general rule against bad character evidence. It has also been described as the "rule against general bad character".

SFE may be admitted even where some prejudice may attach to it so long as there is sufficient probative value to it.

SFE of general propensity, disposition or bad character that only goes to prove the accused is the "type of person" to commit the offence is always inadmissible. Similarly, it is inadmissible when tendered to "establish character, as circumstantial proof of the accused's conduct."

The determination of what use SFE can be made at trial has been described as "[o]ne of the greatest challenges face by a trial judge."

SFE Rule Applies to Bad Acts Only

While Canadian law refers to the phrase "similar fact evidence", the term has been found to be misleading. 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."

It has been described that SFE imperils "fundamental tenants" of our system by inviting conviction "based on the kind of person the accused is shown to be or based on acts other than those alleged against the accused."

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. 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." 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.

In certain respects, the rule against SFE is a version of the broader rule of exclusion where the probative value is outweighed by the prejudicial effect.

Propensity as Inference

Propensity evidence suggests two inferences that can be a legally relevant form of circumstantial evidence. First, it infers the accused's disposition and state of mind using collateral events. Second, it infers from that disposition that the accused acted in a certain way in the events that make up the subject of the case.

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.

SFE captures all types of prior discreditable conduct and is not limited to "criminal acts."

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.

Burden and Standard

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

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

Appellate Review

The requirements of the test of similar fact evidence is a question of law and reviewable on a standard of correctness. However, the conclusions of similar fact analysis on the law is "entitled to a high degree of deference" and should only be interfered with if "the analysis is unreasonable or if there is legal error or a misapprehension of material evidence."

History

Historically, the admission of SFE was based on categories such as proof of identity, to rebut innocent association or accident.

Admission of Similar Fact

The modern view on SFE is the "principled approach" where the evidence is admissible only where the probative value out weighs the prejudicial effect. A categorical approach to SFE based on what purpose the evidence is being adduced for is not appropriate.

The test requires that the judge be satisfied on a balance of probability that probative value outweighs its potential prejudice.

Elements of Admission

To admit SFE the judge should be satisfied that:

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 elements.

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

SFE may be admitted where its probative value to an "issue in question" outweighs its prejudicial effect. 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.

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.

Test Applies Whether or Not Acts are Extrinsic to Charges

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.

Burden

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

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

The court may allow similar fact evidence after establishing that:

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

R v Handy

Count-to-Count (or "Cross-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.

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

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 misuse of evidence from one county in relation to any other account."

The screening of "cross-count" use of evidence will involve more than just SFE factors as it may have other potential use.

"Issue in Question"

The stated purpose of the evidence must be specific.

Simply stating the "credibility" of the accused is not specific enough.

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.

Examples of other purposes include:

• proof of actus reus
• identification
• supporting reliability or credibility
• rebut inference of coincidence
• rebut consent or honest but mistaken belief

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."

Similarities

The necessary degree of similarity "depends on context."

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

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 task of the judge in analysis is not to "add up similarities and dissimilarities and then, like an accountant, derive a net balance."

The question is better framed as whether there was a "persuasive degree of connection between the similar fact evidence and the offence charged."

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.

Dissimilarities

The existence of distinct dissimilarities does not preclude the acceptance of similar fact evidence.

Judge-alone Trials

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

There is little risk of reasoning prejudice in a judge-alone trial given that the judge is "presumed to know the law and the proper and improper use of evidence."

The risk of conviction on the basis of moral prejudice is not a "significant concern in a judge-alone trial."

Both forms of prejudice are "significantly reduced" where the application is on a count-to-count similar fact application, as the evidence is "admissible independent of its status as similar fact."

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. The value of the evidence will be largely driven by the connection or "nexus" that exist between the proposed evidence and the offence(s).

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.

Where actus reus is at issue, the degree of similarity may be higher or lower than in an ID case.

The judge must analyze the "cogency" and "strength" of the SFE.

Factors favouring admission include:

• the degree of similarity of the acts;
• the temporal connection of the acts to the offence;
• the number of similar acts; any distinguishing features, and the similarity of the circumstances.

Those factors favouring the exclusion include:

• the potential for distracting the trier of fact;
• 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.

There is no requirement for admissibility that the prior conduct be "strikingly similar" outside of the case of identity evidence.

Specificity

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

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

Facts that are "vague" will not be admissible.

General Disposition and Character Propensity Not Admissible

Whenever the propensity evidence relates only to general disposition and character, the prejudicial effect will usually outweigh any probative value and will not be admissible.

Evidence Must be "Specific"

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."

Examples of admissible disposition evidence include:

• “a specific disposition to sexually abuse his companion’s two young daughters”
• “specific propensity to engage in sexual misconduct with boys in his care who came to him in a vulnerable condition”
• showing the state of mind such as a "plan, scheme, system, design, intention, ... knowledge, motive, to rebut innocent intent, mistake."

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

Collusion

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

Use of Collusion Evidence

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.

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

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

Collusion Evidence for Juries

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

Burden

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.

Exposure to Media and Rumours

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.

Complainant Contact Without Collusion

In certain contexts such as for historical sexual assaults, it can be natural for complainants to have discussions about the incidents and will not amount to collusion.

Opportunity Only

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.

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."

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."

Prejudicial Effects

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

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."

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

Types of Probative Similar Fact Evidence

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

History of Abuse

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

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

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

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

It has been observed that failure to present the history of the relationship as narrative evidence risks "presenting an entirely sterile and antiseptic record devoid of the realities of the individual circumstances of the participants."

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.

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

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." The features must be "distinctive" and amount to a "signature."

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

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." At this step, evidence linking the accused to the past acts is not relevant. Factors to be considered include:

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.

Credibility in Sexual Assault Cases

In sexual assault cases, "the similarities and dissimilarities between the sexual acts are ... often not as compelling as the circumstances surrounding the incidents."

Differences such as the ages of the victims or the sexual act may not undermine the similarity or connectedness arising from the relationship between victims and accused and the opportunity to commit the offence as it relates to the issue of whether the assaults occurred.

Fraud

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

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

Proving Actus Reus/Enhancing Credibility

Same Complainant

Generally, court have admitted similar fact evidence that came from the "same complainant."

Multiple Complainants

Absent an application for SFE, 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. A limiting jury instructions would be needed to direct the use of multi-complainant evidence.

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

Procedure

Where the Crown intends to rely on 'count-to-count' similar fact evidence, the Crown must provide notice to defence and the court prior to the commencement of trial. There does not need to be a separate voir dire as the Court may rely upon the trial evidence to make a determination.

Notice must be given to the defence of an application to adduce similar fact evidence. 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.

The SFE application can also be done ahead of trial by way of police statements and transcripts.

Case Digests

• Similar Fact Evidence

See Also

• Precedent - Notice to Adduce Similar Fact Evidence
• Character of Accused
• Character of Non-Accused Persons
• New Zealand Report on Prior Bad Acts in Criminal Law