Criminal Law Notebook

Similar Fact Evidence

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This page was last substantively updated or reviewed August 2021. (Rev. # 77851)

General Principles

See also: Character Evidence and Discretionary Exclusion of Evidence

Similar Fact Evidence (SFE) is a form of character evidence that relates to "extrinsic misconduct by an accused" and is presumed inadmissible.[1] The SFE rule is described as an exception to the general rule against bad character evidence.[2]

SFE may be admitted even where some prejudice may attach to it so long as there is sufficient probative value to it.[3]

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.[4] Similarly, it is inadmissible when tendered to "establish character, as circumstantial proof of the accused's conduct".[5]

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".[6]

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.[7] 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".[8]

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".[9]

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.[10] 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".[11] 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.[12]

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.[13]

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".[14]

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.[15]

Burden and Standard

SFE is "presumptively inadmissible" and viewed with suspicion as persons should generally not be punished for prior bad acts.[16] Consequently, it should only be "exceptionally" admitted where the crown discharges the burden.[17]

The requirements of admissibility must be proven on a balance of probabilities.[18] There is no obligation to prove the prior bad acts, whether criminal or not, on a criminal standard of beyond a reasonable doubt.[19]

Appellate Review

The requirements of the test of similar fact evidence is a question of law and reviewable on a standard of correctness.[20] 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".[21]

History

Historically, the admission of SFE was based on categories such as proof of identity, to rebut innocent association or accident.[22]

  1. ↑ R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J, at para 36
    R v Luciano, 2011 ONCA 89 (CanLII), 267 CCC (3d) 16, per Watt JA, at para 226
    See also:
    R v Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33, per Binnie J
    R v D(LE), 1989 CanLII 74 (SCC), [1989] 2 SCR 111, per Sopinka J
    R v Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 SCR 949, per McIntyre J
    R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190, per Lamer J (dissenting on diff. issue) at pp. 201-2 (SCR)
    R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345, per Sopinka J at pp. 367-68 (SCR)
    R v B(CR), 1990 CanLII 142 (SCC), [1990] 1 SCR 717, per McLachlin J at pp. 734-35
    R v Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339, per Cory J, at para 40
    R v Robertson, 1987 CanLII 61 (SCC), [1987] 1 SCR 918, per Wilson J
    R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, per McLachlin J, at p. 613
    R v Lepage, 1995 CanLII 123 (SCC), [1995] 1 SCR 654, per Sopinka J
    R v C(MH), 1991 CanLII 94 (SCC), [1991] 1 SCR 763, per McLachlin J
    R v Litchfield, 1993 CanLII 44 (SCC), [1993] 4 SCR 333, per Iacobucci J
    R v B(FF), 1993 CanLII 167 (SCC), [1993] 1 SCR 697, per Iacobucci J
    R v ZWC, 2021 ONCA 116 (CanLII), per Strathy CJ, at para 96 R v Rowton (1865), 169 E.R. 1497 (CCA) (UK) at p. 1506
    Makin v The Attorney General for New South Wales , [1894] A.C. 57 (UK) at 65 (P.C.)
  2. ↑ R v Percy, 2020 NSCA 11 (CanLII), per Beveridge JA, at para 46
    R v B(CR), 1990 CanLII 142 (SCC), [1990] 1 SCR 717, at pp. 724-5
  3. ↑ Robertson, supra
  4. ↑ ZWC, supra, at para 96
    Handy, supra, at para 53
    Arp, supra, at para 41
    see also R v JAT, 2012 ONCA 177 (CanLII), 288 CCC (3d) 1, per Watt JA, at para 51
    R v RO, 2015 ONCA 814 (CanLII), 333 CCC (3d) 367, per Tulloch JA, at para 15
  5. ↑ ZWC, supra, at para 96
    Handy, supra, at para 31
    Luciano, supra, at para 221
  6. ↑ R v ZWC, 2021 ONCA 116 (CanLII), per Strathy CJ, at para 94
  7. ↑ R v LB, 1997 CanLII 3187 (ON CA), 116 CCC (3d) 481, per Charron JA
  8. ↑ LB, ibid.
  9. ↑ R v Suzack, 2000 CanLII 5630 (ON CA), 141 CCC (3d) 449, [2000] OJ No 100, per Doherty JA
  10. ↑ Handy, supra, at para 139
    R v R v Bond, [1906] 2 K.B. 389(*no CanLII links)
  11. ↑ R v Koufis, 1941 CanLII 55 (SCC), [1941] SCR 481, at p. 490
    Maxwell v DPP , [1935] A.C. 309 (H.L.) (UK), at p. 317
  12. ↑ Handy, supra, at para 38
  13. ↑ R v WB, 2000 CanLII 5751 (ON CA), 145 CCC (3d) 449, per Doherty JA, at para 97 ("Propensity reasoning involves two inferences. First, one infers from conduct on occasions other than the occasion in issue that a person has a certain disposition (state of mind). Second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue: ... . Assuming the evidence can reasonably support both inferences, there is nothing irrational or illogical in using propensity reasoning to infer that an accused committed the act alleged. Viewed in this way, the evidence of the accused's discreditable conduct is a form of circumstantial evidence and meets the legal relevance criterion")
  14. ↑ Robertson, supra, at para 42
  15. ↑ R v White, 2015 ABQB 601 (CanLII), per Graesser J, at para 29
  16. ↑ Handy, supra, at para 55
    B(CR), supra, at p. 15
    R v Perrier, 2004 SCC 56 (CanLII), [2004] 3 SCR 228, per Major J, at para 17
  17. ↑ Handy, supra, at para 60
    B(CR), supra, at p. 732
  18. ↑ Handy, supra
  19. ↑ R v Carpenter, 2010 BCCA 27 (CanLII), 279 BCAC 287, per Hall JA
  20. ↑ R v Tessier, 2002 SCC 6 (CanLII), [2002] 1 SCR 144, per Iacobucci J
    R v Ward, 1979 CanLII 14 (SCC), [1979] 2 SCR 30, per Spence J
    R v Moreau, 1986 CanLII 4618 (ON CA), 26 CCC (3d) 359, per Martin JA
  21. ↑ R v JH, 2018 ONCA 245 (CanLII), per van Rensburg JA, at para 11
  22. ↑ Percy, supra, at para 47
    R v Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 SCR 949, per McIntyre J

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.[1] A categorical approach to SFE based on what purpose the evidence is being adduced for is not appropriate.[2]

Elements of Admission

To admit SFE the judge should be satisfied that: [3]

  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.[4]

The admissibility question should focus on the acts themselves and whether their similarities permit admission.[5]

SFE may be admitted where its probative value to an "issue in question" outweighs its prejudicial effect.[6] 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.[7]

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.[8]

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.[9]

Burden

The burden is upon the Crown on a balance of probabilities to establish the probative value outweighing the prejudicial effect.[10]

The Crown has the burden of adducing evidence of the "improbability of coincidence" between incidents.[11]

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
  1. ↑ R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J
    R v D(LE), 1989 CanLII 74 (SCC), [1989] 2 SCR 111, per Sopinka J
    B(CR), supra, 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. ↑ Boardman v DPP , [1975] AC 421 (UK)
  3. ↑ R v RL, 2007 CanLII 60171 (ONSC), per Spies J, at para 7 citing Handy, supra
    R v Luciano, 2011 ONCA 89 (CanLII), 267 CCC (3d) 16, per Watt JA, at para 227
  4. ↑ Luciano, ibid., at para 227
    R v B(L); R v G(MA), 1997 CanLII 3187 (ON CA), 35 OR (3d) 35 (CA), per Charron JA, at para 10
  5. ↑ R v MacCormack, 2009 ONCA 72 (CanLII), 241 CCC (3d) 516, per Watt JA, at para 52
  6. ↑ R v CRB, 1990 CanLII 142 (SCC), 55 CCC (3d) 1, per McLachlin J, 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")
  7. ↑ R v GES, 2007 CanLII 20796 (ONSC), per Seppi J, at para 7 ("evidence identifies a disposition or propensity with sufficient precision to make the evidence worth receiving")
  8. ↑ R v Clermont, 1986 CanLII 26 (SCC), [1986] 2 SCR 131, per Lamer J
    R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190, per McIntyre J
    R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345, per Sopinka J
  9. ↑ R v Moo, 2009 ONCA 645 (CanLII), 247 CCC (3d) 34, per Watt JA, at para 97
  10. ↑ Handy, supra, 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.")
  11. ↑ R v Mahalingan, 2008 SCC 63 (CanLII), [2008] 3 SCR 316, per McLachlin CJ, at para 72
    R v Johnson, 2011 ONSC 195 (CanLII), OJ No 317, per Hill J, at para 131

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.[1]

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.[2] These applications are often dealt with at the conclusion of the Crown's evidence.[3] Or at the end of the case.[4]

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."[5]

  1. ↑ R v TCF, 2006 NSCA 42 (CanLII), 212 CCC (3d) 134, per Cromwell JA, 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. ")
  2. ↑ R v Johnson, 2011 ONSC 195 (CanLII), OJ No 317, per Hill J, at para 130
  3. ↑ Johnson, ibid., at para 130
    R v Last, 2009 SCC 45 (CanLII), [2009] 3 SCR 146, per Deschamps J, at para 34
  4. ↑ e.g. R v UC, 2009 ONCA 367 (CanLII), 248 OAC 341, per Moldaver JA, at para 19
  5. ↑ R v Nduwayo, 2008 BCCA 255 (CanLII), 256 BCAC 292, per Finch CJ

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 ONCA 95 (CanLII), [2009] OJ No 363 (ONCA), per curiam, 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]

  1. ↑ R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J
    The Law of Evidence, by David M. Paciocco and Lee Stuesser, 5th ed. (Toronto: Irwin Law Inc, 2008), at p. 55

Similarities

The necessary degree of similarity "depends on context".[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;[3]
  2. the physical or spatial proximity of the events;
  3. the similarity in detail between the various acts;[4]
  4. the number of putatively similar acts;[5]
  5. the circumstances surrounding the incidents at issue;
  6. distinctive features unifying the incidents;[6]and
  7. the occurrence and nature of any intervening events.[7]

The task of the judge in analysis is not to "add up similarities and dissimilarities and then, like an accountant, derive a net balance".[8]

The question is better framed as whether there was a "persuasive degree of connection between the similar fact evidence and the offence charged'.[9]

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.[10]

Dissimilarities

The existence of distinct dissimilarities does not preclude the acceptance of similar fact evidence.[11]

  1. ↑ R v Capewell, 2020 BCCA 82 (CanLII), 386 CCC (3d) 192, per Abrioux JA, at para 82 ("While the degree of similarity required to establish the probative value of the evidence depends on context...")
    R v JM, 2010 ONCA 117 (CanLII), 251 CCC (3d) 325, at para 91 ("it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events compared") R v Burman, 2015 BCCA 519 (CanLII), per Frankel JA, at para 64
  2. ↑ e.g., R v Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339, per Cory J, at para 50
    R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J, at para 82
    Watt’s Manual of Criminal Evidence, Thomson Reuters, 2010, at p. 503
  3. ↑ D(LE), supra, at p. 125
    R v Simpson, 1977 CanLII 1142 (ON CA), 35 CCC (2d) 337, per Martin JA, at p. 345
    R v Huot, 1993 CanLII 8652 (ON CA), 16 OR (3d) 214 (CA), per Arbour JA (2:1), at p. 220
  4. ↑ Huot, supra, at p. 218
    R v Rulli, 1999 CanLII 3712 (ON CA), 134 CCC (3d) 465, per Finlayson JA, at p. 471
    C(MH), supra, at p. 772
  5. ↑ Batte, supra, at pp. 227-28
  6. ↑ Arp, supra, at paras 43 to 45
    R v Fleming, 1999 CanLII 18921 (NL CA), 171 Nfld. & PEIR 183 (Nfld. CA), at p. 104-5
    Rulli, supra, at p. 472
  7. ↑ R v Dupras, 2000 BCSC 1128 (CanLII), [2000] B.C.J. No 1513 (S.C.), per Satanove J, at para 12
  8. ↑ R v Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33, per Binnie J, at para 60
    R v JH, 2018 ONCA 245 (CanLII), per van Rensburg JA, at para 20
  9. ↑ Shearing, supra, at para 48
    JH, supra, at para 20
  10. ↑ R v TLM, 2011 NLCA 24 (CanLII), [2011] NJ No 118, per Hoegg JA (dissent), at para 62, adopted by SCC on appeal [2012] SCJ 6, 2012 SCC 6 (CanLII), per Deschamps J
  11. ↑ Shearing, supra, at para 60

Prejudice

Moral

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.[1]

Reasoning

The risk of "reasoning prejudice" includes risks such as:[2]

  • 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
  1. ↑ R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J
  2. ↑ Handy, ibid.

Judge-alone Trials

Reasoning and moral prejudice are considered less of a concern for trials by judge alone than trial by jury. [1]

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".[2]

The risk of conviction on the basis of moral prejudice is not a "significant concern in a judge-alone trial".[3]

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".[4]

  1. ↑ R v TB, 2009 ONCA 177 (CanLII), [2009] OJ No 751, per Borins JA
  2. ↑ R v JH, 2018 ONCA 245 (CanLII), per van Rensburg JA, at para 23
  3. ↑ JH, ibid., at para 24
    TB, supra, at para 33
  4. ↑ JH, ibid., at para 24

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]

Where actus reus is at issue, the degree of similarity may be higher or lower than in an ID case.[4]

The judge must analyze the "cogency" and "strength" of the SFE.[5]

Factors favouring admission include:[6]

  • 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:[7]

  • 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.[8]

  1. ↑ R v Johnson, 2011 ONSC 195 (CanLII), OJ No 317, per Hill J, at para 132
    R v Mahalingan, 2008 SCC 63 (CanLII), [2008] 3 SCR 316, per McLachlin CJ, at para 72
    R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J, at to 75 para 69 to 75
  2. ↑ Handy, ibid., at para 76
  3. ↑ R v CRB, 1990 CanLII 142 (SCC), [1990] 1 SCR 717, per McLachlin J
  4. ↑ Handy, supra, at para 78
  5. ↑ Handy, supra, at paras 82 and 134
  6. ↑ Handy, supra, at paras 82 to 83
    R v Headley, 2018 ONSC 5818 (CanLII), per Barnes J, at para 9
  7. ↑ Handy, supra
    Headley, supra
  8. ↑ Robertson, supra
    R v CRB, 1990 CanLII 142 (SCC), [1990] 1 SCR 717, per McLachlin J

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]

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.[4]

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".[5]

Examples of admissible disposition evidence include:

  • “a specific disposition to sexually abuse his companion’s two young daughters”[6]
  • “specific propensity to engage in sexual misconduct with boys in his care who came to him in a vulnerable condition”[7]
  • showing the state of mind such as a "plan, scheme, system, design, intention, ... knowledge, motive, to rebut innocent intent, mistake".[8]

It is important to also take note of material dissimilarities between transactions.[9]

  1. ↑ R v Johnson, 2011 ONSC 195 (CanLII), OJ No 317, per Hill J, at paras 133, 135
    R v Perrier, 2004 SCC 56 (CanLII), [2004] 3 SCR 228, per Major J, at para 18 - disposition
    R v UC, 2009 ONCA 367 (CanLII), 248 OAC 341, per Moldaver JA, at para 41 - disposition
    R v Chapman, 2006 CanLII 1178 (ON CA), 204 CCC (3d) 449, per Simmons JA, at para 24 - character
  2. ↑ R v Cresswell, 2009 ONCA 95 (CanLII), OJ No 363, per curiam, at para 8
    R v RB, 2003 CanLII 13682 (ON CA), 68 OR (3d) 75 (CA), per Simmons JA (2:1), at paras 49, 64, 69 aff’d 2004 SCC 69 (CanLII), [2004] 3 SCR 503, per curiam
  3. ↑ R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J, at para 85
    e.g. R v OC, 2006 CanLII 3258 (ON CA), 205 CCC (3d) 167, per Sharpe JA - judge rejected generic similarities: young female victims, touched in genital areas followed by apology
  4. ↑ R v McNamara (No. 1), 1981 CanLII 3120 (ON CA), 56 CCC (2d) 193, [1981] OJ No 3254, per curiam, at p. 285 (leave to appeal refused [1981] 1 SCR xi, 56 CCC (2d) 576n)
    R v Headley, 2018 ONSC 5818 (CanLII), per Barnes J, at para 7
  5. ↑ Johnson, supra, at para 135
  6. ↑ UC, supra, at para 41
  7. ↑ R v B(R), 2005 CanLII 30693 (ON CA), 77 OR 171 (CA), per Laskin JA, at para 11
  8. ↑ Headley, supra, at para 8
    R v Downey, 2002 CanLII 18692 (ONSC), , [2002] OJ No 2228, per Hall J, at para 315
  9. ↑ Handy, supra, at para 123
    Johnson, supra, 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 UC, 2009 ONCA 367 (CanLII), 248 OAC 341, per Moldaver JA, at para 40
  2. ↑ R v CL, 2013 ONSC 277 (CanLII), 274 CRR (2d) 342, per Campbell J, at para 71
  3. ↑ R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J, at para 110
  4. ↑ CL, supra, at para 71
  5. ↑ R v Handy, 2000 CanLII 5707 (ON CA), 145 CCC (3d) 177, per Charron JA, at #par52 para 52, aff'd on appeal to SCC
    cf. R v Dorsey, 2012 ONCA 185 (CanLII), 288 CCC (3d) 62, per MacPherson JA, at para 26 - opportunity of collusion should be left to the jury
  6. ↑ Dorsey, ibid.
  7. ↑ R v Johnson, 2011 ONSC 195 (CanLII), OJ No 317, per Hill J, at paras 133, , at para 141
    Handy (SCC), supra, at para 112
  8. ↑ Handy (SCC), supra, 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, per Binnie J
    e.g. R v H(J), 2006 CanLII 40664 (ON CA), 215 CCC (3d) 233, per Lang JA
  2. ↑ R v Blake, 2003 CanLII 13682 (ON CA), 181 CCC (3d) 169, per Simmons JA (2:1), affirmed 2004 SCC 69 (CanLII), 188 CCC (3d) 428 (SCC), per curiam, 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), per Echlin J, at para 18
  2. ↑ R v D(LE), 1987 CanLII 2536 (BCCA), , 20 BCLR (2d) 384 (CA), per McLachlin JA, at p. 399
    MT, supra, at para 18
  3. ↑ e.g. R v Conway, 2016 CanLII 85720 (NLSCTD), per Adams J, 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 (BCCA), 71 CR (3d) 25 (BCCA), per MacFarlane JA at 12
    R v Leblanc, 1975 CanLII 190 (SCC), [1977] 1 SCR 339, 29 CCC (2d) 97, per De Grandpre J 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]

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".[5]

  1. ↑ e.g. R v Hindessa, 2009 CanLII 48836 (ONSC), per Molloy J
  2. ↑ R v F, DS, 1999 CanLII 3704 (ON CA), 132 CCC (3d) 97, per O'Connor JA
  3. ↑ R v S(P), 2007 ONCA 299 (CanLII), 221 CCC (3d) 45, per Goudge JA, at para 38
  4. ↑ R v Stroud, 2007 ONCA 697 (CanLII), per Moldaver and Armstrong JA
  5. ↑ R v SB, [1996] O.J. No. 1187 (Gen. Div.)(*no CanLII links) , per Hill J, at para. 31

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 TLM, 2012 SCC 6 (CanLII), [2012] 1 SCR 233, per Deschamps J
    R v Moore, 1994 CanLII 8730 (ON CA), 92 CCC (3d) 281, per curiam
  2. ↑ R v Sparkes, 2005 CanLII 15707 (ON CA), per curiam
    R v Vanezis, 2006 CanLII 37954 (ON CA), 213 CCC (3d) 449, per Moldaver JA

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] The features must be "distinctive" and amount to a "signature".[2]

There is a two step procedure for admitting SFE to establish identity:[3]

  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".[4] At this step, evidence linking the accused to the past acts is not relevant.[5] Factors to be considered include:[6]

  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, per Cory J, at para 43
    R v Perrier, 2004 SCC 56 (CanLII), [2004] 3 SCR 228, per Major J, at para 19
  2. ↑ Capewell, supra, at para 82 ("If .. the purpose of the evidence was to prove identity, distinctive features amounting to a "signature" may be required...")
    R v Cresswell, 2009 ONCA 95 (CanLII), OJ No 363, per curiam, at para 9 ("We note as well that Handy states that admissibility is conditioned by the issue to which the evidence is directed. Here, the evidence went not to identity, where distinctive features amounting to a “signature” may be required, but rather to the actus reus, where less cogent similarities may render the evidence admissible.")
  3. ↑ R v Butorac, 2013 BCCA 421 (CanLII), 301 CCC (3d) 504, per Neilson JA, at para 30
  4. ↑ Butorac, ibid., at para 30
  5. ↑ Butorac, ibid., at para 30
  6. ↑ Butorac, ibid., at para 30

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".[1]

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.[2]

  1. ↑ R v LB, 1997 CanLII 3187 (ON CA), 116 CCC (3d) 481 (CA), per Charron JA, at para 37
    R v JH, 2018 ONCA 245 (CanLII), per van Rensburg JA
  2. ↑ JH, ibid., at para 21
    R v RB, 2005 CanLII 30693 (ON CA), , 77 OR (3d) 171 (CA), per Laskin JA

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), 75 BCAC 195, per Cumming JA, at para 17
    R v Brooks, 1989 CanLII 2894 (BCCA), 71 CR (3d) 25, per MacFarlane JA, at para 12
  2. ↑ e.g. R v Winter, 2008 CanLII 46998 (NL PC), 846 APR 1, per Hyslop J

Proving Actus Reus/Enhancing Credibility

Same Complainant

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

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.[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(LE), 1989 CanLII 74 (SCC), 50 CCC (3d) 142 (SCC), per Sopinka J, at pp. 155-162
    R v R(G), 1993 CanLII 14699 (ON CA), 80 CCC (3d) 130, per Doherty JA, at pp. 137-140
    R v Litchfield, 1993 CanLII 44 (SCC), 86 CCC (3d) 97, per Iacobucci J, at pp. 116-117
    R v H(DA), 1997 CanLII 14385 (NSCA), 119 CCC (3d) 238 (NSCA), per Freeman JA, at pp. 263 to 264
    R v W(DD), 1997 CanLII 12487 (BCCA), 114 CCC (3d) 506 (BCCA), per McEachern JA (2:1), at paras 54 to 58
    R v F(DS), 1999 CanLII 3704 (ON CA), 132 CCC (3d) 97 (Ont. CA), per O'Connor JA, at paras 19 to 35
    R v Batte, 2000 CanLII 5750 (ON CA), 145 CCC (3d) 449 (Ont. CA), per Rosenberg JA, at paras 102 to 114
    R v MacDonald, 2002 CanLII 14251 (ON CA), 170 CCC (3d) 46 (Ont. CA), per Doherty JA, at #par34 paras 34 to 35
    R v C(DAR), 2002 PESCAD 22 (CanLII), 170 CCC (3d) 64 (PEISCAD), per McQuaid JA, at paras 22 to 49
    R v D(TJ), 2004 CanLII 39037 (ON CA), , [2004] OJ No 1444 (CA), per curiam, at to 4 paras 1 to 4{{{3}}}
    R v L(D), 2004 CanLII 39930 (ON CA), [2004] OJ No 4692 (CA), per curiam
    R v W(S), 2004 CanLII 33348 (ON CA), , [2004] OJ No 4164 (CA), per curiam
    R v R(B), 2006 CanLII 29082 (ON CA), 212 CCC (3d) 65 (Ont. CA), per Cronk JA, at paras 29 to 43
    R v S(P), 2007 ONCA 299 (CanLII), 221 CCC (3d) 45 (Ont. CA), per Goudge JA, at paras 23 to 42
  2. ↑ R v Popal, 2009 ONCA 408 (CanLII), 252 OAC 10, per curiam, at para 7
  3. ↑ Popal, ibid.
  4. ↑ R v Finelli, [2008] OJ No 2242 (Sup. Ct.)(*no CanLII links) , per Spies J

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.[1] There does not need to be a separate voir dire as the Court may rely upon the trial evidence to make a determination.[2]

Notice must be given to the defence of an application to adduce similar fact evidence.[3] 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.[4]

The SFE application can also be done ahead of trial by way of police statements and transcripts.[5]

  1. ↑ R v Tsigirlash, 2019 ONCA 650 (CanLII), 157 WCB (2d) 46, per Zarnett JA
  2. ↑ e.g. Tsigirlash, ibid.
  3. ↑ R v DLW, 2013 BCSC 1016 (CanLII), per Romilly J, at paras 19 to 21
  4. ↑ DLW, ibid., at paras 19 to 21
  5. ↑ R v Lim #2, 2021 ONSC 44 (CanLII), per Molloy J, at para 5

Case Digests

See Also

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