Generally: Evidence of bad character and bad acts of non-accused witnesses admissible whenever relevant; but evidence of accused witness not admissible unless accused himself puts character in issue
Character Evidence and the Accused -
Character evidence usually circumstantial – trier asked to infer that person behaved in certain way at certain time because that behaviour would be consistent with person’s character; throwback to old times
-
CL strictly limits admissibility and use of character evidence, due to policy concerns:
-
Reliability and probative value of character evidence
-
Efficiency concerns due to time and resources necessary to explore collateral issues
-
Not lack of Relevance: Relevance with respect to accused’s character conceded, but:
-
May cause undue prejudice in relation to its PV,
-
May create unfair surprise, may unduly distract from issues,
-
May be too time consuming in relation to PV
-
Propensity or disposition to behave in certain way
-
Deeply engrained behavioural traits or sum of persons traits
-
Compendious summary of person’s pas actions, good and bad
-
Different from habit Watson
-
Habit: past conduct inference present conduct; ex. Type of cigarettes you buy, morning routine, repeated past conducts allow us to infer how you’ll conduct self in present; character rules apply
-
Character: past conduct inference disposition inference present conduct, ex. Repeated past angry outbursts allow us to infer they’re an angry disposition, then infer presently they had this outburst
-
Common Character Traits: violence, anger, paedophilia, honesty, dishonesty, public sexual morality
Character Evidence Rule
-
Subject to the similar fact evidence rule, the crown may not, as part of its case in chief, lead evidence that the accused has previously engaged in discreditable or criminal, or is of bad character,
-
BUT, IF the accused puts character in issue by introducing character evidence, such as circumstantial evidence of innocence, the crown may reply to this (McNamara, Morris)
-
Theory: crown is proving accused committed a crime –an act, not what kind of person the accused is
-
Inclusionary and exclusionary
-
Rule of Exclusion: excludes evidence that demonstrates no more than general bad character of accused
-
Rule of restricted admissibility: restricts inference that can be drawn from permissible evidence
Putting Accused’s Character in Issue -
Where at trial the accused adduces evidence of his good character (not just by testifying), prosecutor may answer by adducing evidence of prior convictions of the accused for any offences, including any previous conviction by reason of which greater punishment may be imposed
-
Entitled crown to go further than under s. 12 CEA: permits cross examination about the specifics underlying the conviction, rather than just the fact that there was a conviction
-
Just as crown may not lead evidence of prior bad acts (subject to similar fact evidence), accused may not lead evidence of prior good acts – but where accused does put character in issue, crown may respond
Three ways that accused might put his character in issue:
-
By adducing evidence of good reputation Rowton, Levasseur
-
Where evidence of good reputation by a 3rd party is called, crown may only rebut with its own evidence of general bad reputation, not evidence of disposition
-
By testifying as to his own good character through specific good acts (direct or implicit) McNamara
-
Where accused does this by referring to specific instances that show good conduct, the crown is not confined to only giving evidence of bad reputation, and may cross-examine the accused as to his statements to show evidence of disposition
-
Normally, when accused does this, it is not intentional
Ex. I worship the ground my wife walks on; or Defence asks 3P Was Accused a Fighter?
-
By calling expert psychiatric evidence of propensity or disposition (Lupien, Robertson, Mohan)
-
Psychiatric evidence with respect to disposition or its absence is admissible on behalf of defence, if relevant to an issue in the case, where the disposition in question constitutes a characteristic feature of an abnormal group falling within the range of study of the psychiatrist, and from whom the jury can therefore receive appreciable assistance (Robertson)
-
Recall Mohan test for expert psychiatric evidence:
-
Must be relevant
-
Must be of appreciable assistance to trier of fact
-
Must be evidence that would otherwise be unavailable to the ordinary layman without specialized training
-
[Maybe: Attack on Character of Victim or 3P; basically getting to Corbett analysis, you paint such stark picture of how bad they are you’re giving false impression that you’re so different]
Character NOT put in issue by:
-
Standard introductory questioning, like oath helping stuff who are you, not how great are you McNamara
-
Simply denying allegations, explaining defence or repudiating parts of Crown case; difference between putting credibility in issue and character in issue where evidence can be led against McNamara
-
Responsive answers to Crown cross-ex; Crown says you’re just a peace loving individual aren’t you, when nothing has been led related in evidence in chief, you say well yeah and that’s it Bricker
Process for Putting Accused’s Character in Issue:
-
Accused opens the door:
-
By cross-examination of crown witness
-
By one of three ways above
-
Crown’s reply:
-
By cross-examination of reputation witness
-
By cross-examination of the accused
-
By invoking s. 666 CC – essentially rebutting good character evidence with bad character evidence
-
By leading similar fact evidence (note, if it were really SFE, crown would have led it in case in chief, so likely didn’t meet test for SFE, but is still “similar”)
Proving Bad character of accused (Crown)
-
Character is directly relevant to issue in trial
-
ex. Dangerous offender cases, previous conduct
-
Evidence meets SFE test set out in R v. Handy
-
Evidence is relevant to issue in trial, and character aspect is incidental
-
ex. Spousal homicide, previous evidence of threats, has bad character aspect but circumstantial aspect for motive/opportunity/means
-
Evidence is incidental to proper cross-examination of accused on credibility
-
ex. Chambers criminal conspiracy, in course of cross-ex they said accused tried to bribe witness, bad character but relevant to accused’s disposition and credibility of that witness
-
Accused puts his character is issue (overt and inadvertent, double aspect evidence)
-
ex. Accused’s statement to police introduced by Crown, says he’s not violent and is loving husband but charged with manslaughter: Crown CANNOT introduce evidence of criminal record for assault, because it’s Crown not Accused putting his character in issue; admissible statement but no character attack
Crown Rebuttal:
-
To good reputation evidence led by accused must be confined to general reputation evidence, directed to showing evidence from accused not true
-
Accused has asserted particular disposition, may cross-ex accused on specific acts related to that disposition
-
Limits of cross-ex when accused testified is moral
Ways to Use Bad Character Evidence:
-
Substantive: use to prove guilt of accused
-
Limited: for limited purpose, not to show accused is type of person who would likely have committed crime
-
Neutralizing/Rebuttal: to rebut evidence of ‘good character’ led by defence (if overt)
Specific Acts
-
Crown may not lead evidence of specific bad acts of accused which are not subject matter of charges before court
-
If accused testifies, he may give evidence of specific instances of his own good conduct and thereby put his character in issue [he can talk about reputation and specific acts]
-
Witnesses other than accused may not testify to prior good acts of accused (still bound by Rowton)
Cut Throat Defences:
Co-accused pointing fingers at each other, lots of the limits are taken out, but it can disrupt innocence presumption; court must balance right of one accused to have fair trial with right of other accused to make full answer and defence, warn jury about improper uses of the evidence Prokofiew
R. v. Morris
-
Crown wanted to use newspaper clipping that M had on heroin trade: logically relevant, showing interest and informed of trafficking, relevant to importation of narcotics, even though low PV, jury can decide that weight
-
Defence/dissent: clipping didn’t relate to charge in case, sole purpose of clipping was to attack accused’s character and show that he has a disposition towards crime, which offends character evidence rule, prejudicial; its inadmissible even if relevant
R. v. McNamara et al 1981 ONCA
-
JS one of many individuals plus corporations accused/convicted of conspiracy to defraud, while testifying made statements about how he conducted himself honestly in business, that he gave mandates to run companies “as they should be – legally”, and how he would declare interests at BofD meetings
-
Accused went beyond repudiating allegations against him, because he was implying that he would not do those things because he was a person of good character
-
Now crown is allowed to give evidence of general reputation as well as his moral disposition, including prior conviction for tax evasion- which he had said hadn’t ever happened before
R. v. Rowton 1865
-
R school master charged with indecent assault, called several witness to attest to his good character; Crown replied with boys from school who said he was capable of grossest indecency and flagrant immorality
-
Crown could reply to R’s assertion of good character, but is restrained to give evidence of same nature of accused
-
Witnesses may only give evidence of good general reputation (not disposition), so crown can only reply with evidence of bad general reputation (not disposition) or individual opinion of witnesses
-
Nothing more unjust than accused having advantage of character which may be reverse of what he really deserves
-
Forms of Eliciting Reputation Evidence with evidence from witnesses called for character evidence
Q1: Do you know accused?
Q2: How long have you know him
Q3: In what circumstances do you know him (identity community ex. Workplace, church, see Levasseur)
Q4: Do you know his or her reputation (for honesty, morality) relevant character trait
R. v. Levasseur 1987 ABCA
-
L charged with B&E, stole truck and car from employer; said she removed cars at employer’s request and had colour of right, gave evidence of her good character via testimony from her next employer, what business community thought; TJ said it could only be reputation of character in residential community
-
“Neighbourhood” requirement no longer relevant, reputation witnesses can be from work community
-
If you have not known accused for long period of time, and have to talk to others to evaluate accused’s reputation, not qualified to be reputation witness
-
Rule should seek to provide for best qualified witnesses, if they happen to be business associates not residential neighbours, no rational reason for excluding testimony (in this day and age)
-
Clarke increasing urbanization of society, person’s community will not necessarily coincide with particular geographic location
R v. Profit 1993 SCC
-
As a matter of common sense, but as principle of law, TJ may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will not be reflected in reputation in the community of accused for morality
-
As matter of weight, TJ can find propensity value of character evidence as to morality is diminished in such cases
R. v. Lupien 1970 SCC
-
L charged with gross indecency (homosexual), defence was he thought his companion was a woman, wanted to call expert to testify to effect that he was a homophobe and had violent reactions to homosexual practices
-
Cannot use expert to express his view of the intent of accused to jury, based upon evidence not before jury
-
Dissent: evidence showed that L was not normal man – as a general rule psychiatric evidence of a man’s disinclination to commit the offence charged should not be admitted, but in case of homosexuality where the participants have a characteristic that makes them more identifiable as a group, it is appropriate
R. v. Robertson 1975 ONCA
-
R charged with murder of 9 year old girl, wanted psychiatric evidence to show that person who would commit the crime would show characteristics of violence and aggression, and that R did not possess these tendencies
-
Evidence that the offence has distinctive features which ID perpetrator as having an unusual personality trait constituting him a member of an unusual and limited class of persons would render admissible evidence that showed the accused to not possess these traits: but disposition to violence not so uncommon to be abnormal
R. v. Mohan 1994 SCC
-
M charged with sexual assault on 4 patients, wanted to lead expert evidence that the perpetrator of such offences would be part of a limited and unusual group of individuals that M did not fall into because he didn’t possess those characteristics (specifically, that perpetrator fit profile of paedophile or sexual psychopath)
-
Person who committed sexual assaults on young women not part of group with abnormal/distinct characteristics
-
Legal question of normality or abnormality of accused is admissibility question, depends mostly on relevance, governed not by scientific expertise but common sense and experience, with consideration to expert opinion
-
No support of finding that profile of paedophile or psychopath has been standardized so he could be matched with profile of the offender depicted in the charges; expert group profiles not sufficiently reliable
R v. SGG
-
Woman running Fagan-like criminal enterprise in Vancouver; crown sought to lead prior sexual activity between grown woman and young men in her gang
-
Relevant because by virtue of her intimate connection with them, can draw inference that she could exercise such significant control over them – they stole for her and killed for her; evidence had incidental character aspect, even though this had discreditable aspect by not relating directly to murder charge
Morin 1988 SCC
-
Accused charged with murder in sexual assault and stabbing death of 9 year old neighbour
-
Defence was: I wasn’t there so I didn’t do it, but if I was there I was insane
-
Leading psychiatric evidence to say he was schizophrenic and less likely guilty, Crown cross-ex’d expert and found some of those traits would make him more likely killer
-
Fails admissibility required particular psychiatric disorder to be unusual and sufficient to ID perpetrator
-
To be relevant on issue of identity evidence must tend to show:
-
Accused shared distinctive unusual behavioural trait with perpetrator of crime, trait being sufficiently distinctive to be almost a badge or mark to ID;
-
psychiatric evidence that male accused had strong inclination to choke partner during sex would be relevant on issue of identity in murder case where someone died in from strangulation during sex;
-
Conversely, fact that accused is member of abnormal group some of the members of which have unusual behavioural characteristics shown to have been possessed by perpetrator is not sufficient
-
the greater number of ppl in society having that tendency, the less relevant
-
Dr evidence only showed the appellant is a simple schizophrenic; small percentage of them have tendency or capability of committing this crime in the abnormal fashion in which it was committed; no evidence appellant has these tendencies unless one assumes that he did the crime
-
Evidence directed at proving that someone other than the accused committed the crime is admissible so long as it meets standards of relevance and sufficient PV McMillan
-
Where accused attacks character of 3rd party to show that person is more likely to be the perpetrator due to a disposition, it is open to the crown to attack character of accused in similar manner McMillan
-
The disposition of a 3rd person, if relevant and admissible, may be proved by:
-
Evidence of reputation
-
Proof of specific acts
-
Psychiatric evidence if disposition in question falls within proper sphere of expert
Character of victims in sexual assault cases: -
Like the accused, complainants of sexual assault are “protected”
-
s. 276 CC: cannot use complainant’s character to show that she was more likely to consent, or that she is not credible; evidence of reputation can be used for other purposes but excluded unless it has significant PV over PE
-
s. 277 CC: in proceedings in respect of certain offences, evidence of sexual reputation whether general/specific is not admissible for addressing the reputation of the complainant
Character of victims in self-defence: -
Accused can lead evidence of character or violent acts of deceased to show apprehension of violence Scopelliti
-
No need for accused to have been aware at time of attack of the deceased’s previous bad acts or reputation for violence; can show that deceased likely provoked the attack which makes self-defence more probable Scopelliti
-
Where self-defence is raised, following is admissible Scopelliti
-
Evidence of previous assaults towards 3Ps by deceased, know to accused
-
Evidence of deceased’s reputation for violence, know to accused
-
Evidence of deceased’s disposition for violence even if unknown to accused admissible where there is other evidence of victim’s aggression on the occasion in question (can be accused’s testimony)
-
Accused’s state of mind relevant regarding past acts against him or past acts he knows about; the more he knows from own personal experience, the more reasonable his fear and basis for self defence
R v. Darrach 2000 SCC
-
Accused charged with sexual assault, tried to introduce evidence of complainant’s sexual history on voir dire,
-
Challenged constitutionality of s.276.1(2)(a) (affidavit with detailed particulars about evidence), s.276(1) and (2)(c) (governs admissibility of sexual conduct evidence generally), s.276.2(2) (complainant not compellable witness at hearing determining admissibility sexual activity evidence)
-
D right to make full answer and defence Charter s.7, right not to be compelled to testify against himself 11(c), and right to fair trial not violated 11(d)
-
S.7 not to give accused most possibly favourable procedures and only their interests accounted; never had right to adduce irrelevant evidence, or to adduce misleading evidence to support illegitimate inferences
-
PFJs include 3 purposes in s.276: i. protecting integrity of trial by excluding misleading evidence, ii. Protecting rights of accused, iii. Encouraging reporting of sexual violence and protecting security and privacy of witnesses
-
Test for Admissibility s.276(2): evidence relevant AND more PV over PE
-
S.276(1) only excludes twin myths, which are not probative of consent or credibility, severely distort; otherwise evidence can be admitted but PV still over PE
-
Myths: more likely to have consented and of being less credible witness due to past sexual experience
-
S.276(2)(c) “significant” probative value raises threshold for admissibility in that section; not too high
R v. McMillan 1975 ONCA
-
Accused charged with killing his baby; Adduced evidence that wife had a psychopathic personality disorder
-
TJ wouldn’t let Crown adduce similar evidence on mental state of the accused; raised two issues on appeal:
-
Character evidence on wife admissible: where 3P character evidence goes to ID, so long as there are some other circumstances connecting that party to the crime, evidence can be admitted.
-
If implicit purpose of adducing the evidence is to invite comparison to yourself re: who is more likely to have done it, you have put your character in issue, Crown can rebut (The “Scopelliti boomerang”).
-
Implicit in defence advanced that there were two people in house who could have inflicted injuries which caused baby’s death: one was psychopath (wife) other person of good character (respondent);
-
Crown ok to show two persons present in house who were psychopaths
R v. Grandinetti 2005 SCC
-
Cory G first degree murder; his aunt Connie G found dead in a ditch; Connie may have been killed by 3P
-
Where defence wants to lead evidence on 3P being killer, there must be some factual connection to this homicide for relevance and PV = Alternate Perpetrator Issue
-
Disposition of 3P to commit offence is probative and admissible provided there is other evidence tending to connect 3P to the offence
-
Rick made threat about drug debt to deceased a year before, but no follow up at all; court said that was merely trying to point finger at innocent third party, no difficulties with deceased or motive to kill; not sufficient link
R. v. Scopelliti 1981 ONCA
-
S charged with murder, self-defence, provocation, excessive force in self-defence: deceased constantly coming into store and harassing/scaring S, S believed they were going to rob him
-
TJ admitted certain acts of deceased not known to S (as justifying/corroborating S’s fear) – decision upheld
Similar Fact Evidence Rule & Character
General SFE Rule: SFE presumptively inadmissible, but presumption can be rebutted if Crown satisfies judge, on BOP, that in the context of the case the PV of proffered evidence re: particular issue outweighs PE, justifies reception (Handy)
-
Exception to rule that evidence of prior bad acts is inadmissible; substantive use
-
Admissible because it tends to prove:
-
Not that accused is man with criminal propensities, but
-
That he the accused was the man who committed the offence charged; need evidence that accused did it
-
A variety of circumstantial evidence, drawing inference about guilt, strong enough inference is allowed; we know evidence is PE, but PV enough to go to jury
Sources of Similar Facts:
-
Charges tried together: separate acts are being tried at same time on same “information” or “indictment”; D can always apply to sever, if not severed, judge must say each of counts is separate, don’t mix up evidence and charges unless Crown applies for SFE Rule to apply
-
Past Convictions: acts for which accused has been previously convicted, similar offence
-
Uncharged Acts: acts for which accused has never been tried and is not currently being tried
-
Stays and Acquittals: ordinarily impermissible; usually can’t say this offence similar to last because not convicted of first ex. Kiting cheques, knew before you were overdrawn
-
Title misleading; nature of offences may be different, but name relates to history of striking similarity – hit wife with belt establishes motive for killing her with revolver later
Dangers of assessing the character of the accused
-
Putting person’s entire life on trial
-
Trial efficiency: how much time can you spend assessing whether or not accused did something bad 10 years ago
Process for admitting SFE (Handy) – always starting with relevance analysis
-
Starting point is presumption of inadmissibility
-
Whether PV over PE can only be determined in light of purpose for which evidence proffered
-
Ask, what is the probative value of the evidence
-
Identify the “issue in question” and how the SFE relates to that issue
-
Proceedings where character of accused/convicted is an actual live issue
-
Dangerous offender hearings
-
Sentencing hearings
-
Defamation suits
-
If not one of those 3, consider how SFE is logically and legally relevant
-
Cogency: similarities and dissimilarities between the facts charged and the similar fact evidence; connection between accused and SFE (Arp) and nexus between SFE and Issue
-
Likelihood of coincidence must be objectively improbable (Smith)
-
Proximity in time of similar acts
-
Extent to which the other acts are similar in detail to the charged conduct (Straffen, McFadden)
-
Search for similarities is question of degree
-
Number of occurrences of similar acts
-
Circumstances surrounding or relating to similar acts (Handy)
-
Intervening events
-
Consider potential for collusion Handy (wife who was victim of bad acts, spoke to complainant in case and told her all she had to do was report to criminal injuries compensation ppl to get $ for reporting)- if air of reality of collusion, Crown must disprove it
-
Collusion destroys foundation on which admissibility sought
-
No obligation on defence to prove collusion
-
Where air of reality to collusion, Crown must satisfy judge on BOP that SFE not tainted
-
What is the strength of the evidence that the similar acts actually occurred/gatekeeper
-
Was there a conviction/admission to similar past acts (Straffen)
-
Are there any concerns with credibility of person asserting past acts (Handy)
-
Usually frailties in evidence left to trier of fact; but if admissibility bound up with and dependent on probative value, credibility of SFE is factor that TJ as gatekeeper can consider
-
Ask, what is the prejudicial effect of admitting the SFE
-
Moral prejudice: potential stigma of “bad personhood”; consider inflammatory nature of similar acts, how serious SFE relative to charges; poisoning jury (Handy)
-
Reasoning prejudice: potential distraction and confusion of jury from actual charge against accused; undue time consumption; revulsion and condemnation might deflect from dispassionate analysis, unfairness in trial where accused denies SFE
-
Then, balance the probative value against the prejudicial effect
-
Evidence of prior bad acts will be admissible if prosecution satisfies judge, on balance of probabilities, that in the context of the particular case the PV outweighs the PE in relation to the specific issue on BOP
-
No common measurement of PV and prejudice; not necessarily inverse relationship between PV and PE; relative importance of issue, can Crown make point with less prejudicial evidence
-
Where the evidence is admitted, a special charge ought to be given to the jury (Arp)
-
Jury may find that the manner of the commission of offence is so similar that it was likely committed by the same person
-
Judge shall review the similarities
-
If jury concludes that it is likely the same person then the evidence in the other cases may assist in determining the count charged
-
If accepted, the evidence must only be used for the limited purpose for which it was offered
-
The jury must not use the evidence to infer character or disposition
-
[Must warn jury not to rely on prohibited inference; not punish for past misconduct; provide direction on appropriate, non-prohibited use (Arp); not use evidence unless satisfied SF incident occurred; Direct jury on frailties of SFE; where desired inference depends on coincidence reasoning, direct jury to consider whether apparent coincidence can be explained by collaboration or contamination between witnesses]
Makin v. AG New South Wales 1894 UK
-
Dead baby found in M’s backyard, more found in backyard of current house, and houses they used to live in
-
Because the evidence adduced tends to show that the accused committed another crime which is relevant to a specific issue, evidence of all dead babies may be admissible as SFE in prosecution of one/first dead baby
-
Law has moved beyond this case
-
General Rule: Crown may not lead evidence of criminal acts other than those charged in indictment to show accused by character or criminal conduct is likely to have committed offence charged (propensity) BUT
-
Second Branch: Fact that evidence tends to show propensity of other crimes doesn’t render evidence inadmissible if relevant (enough) to issue before jury, and may be relevant if it bears upon question whether the acts were designed or accidental, or to rebut a defence – court slotting in exceptions in these old cases
R. v. Smith 1915 UK
-
Brides in the Bath; S charged with murdering wife BM – third wife to turn up dead in the bathtub, he stood to benefit financially from all of their deaths; defence theory that she died accidentally
-
Evidence of other 2 murders properly admitted for purpose of showing accident or design of S, trial judge correct in directing the jury that they were only to decide the case in regards to BM
-
Circumstances absolutely negating coincidence of multiple death, so leading evidence of so similar deaths was proper, not to prove other acts, but that he was killer in this case
-
Unexpectedly sudden deaths by lifting legs and submerging face; alone in house, money, same alibi
-
Can look to see if evidence is part of a design, or party of a system
R. v. Straffen 1952 UK
-
S escaped from prison, during that time little girl was killed – denied killing her, but evidence brought that he admitted that he had been convicted of killing 2 other little girls but not this one
-
Circumstances of death similar: all 3 manually strangled, no attempts of sexual assault, body left unhidden, no evidence of struggle
-
Evidence of past murders admitted as SFE to show that the person who manually strangled those two little girls also killed this girl similarly: not propensity but ID of person who did crime, not categorical, but PV over PE
DPP v. Boardman 1975 HL
-
HL rejects categorical approach that required evidence to be relevant to one of a limited set of issues (ie. To prove intent, a system, a plan, malice or ID, or to rebut defence of accident, mistake, or innocent association)
-
HL adopts principled approach: admissibility will depend on balancing PE against PV
-
SCC Adopts this approach in Sweitzer v. The Queen 1982: Categories remain as illustrations of applications of general rule, like Starr not getting rid of other approaches totally for principled
R v. CRB SCC 1990
-
Begin with recognition that general exclusionary rule applies about evidence only to disposition
-
Where SFE is of morally repugnant act, potential PE great and PV must be high to permit reception
-
Judge must consider distinctiveness degree or uniqueness between SFE and offences alleged, and connection if any of evidence to issues other than propensity in determining whether, in context of the case, PV outweighs PE
-
Only similarity: establishment of father/daughter relationship before sexual violations began, might show pattern of similar behaviour showing complainant’s story is true – floodgate open
-
SFE to show witness credible, but not sufficient evidence on that really – showing accused is bad might by default make him look less credible than complainant; lack of specificity on how SFE should apply, flood of sexual offence convictions; Dissent Sopinka
-
“Heavy prejudice” is not risk of conviction, it is risk of unfocussed trial and wrongful conviction
R. v. Arp 1998 SCC
-
A convicted of 2 counts first degree murder; admitted both murders as SFE against the other
-
Murder 1: victim got into vehicle never seen again, body found later by cross country skier, death caused by homicidal violence – victims rings and fibre from sweater found n A’s vehicle
-
Murder 2: victim disappeared, body found in snow bank next day, had been physically/sexually assaulted and strangled – DNA linked A to victim
-
Concern is not A’s disposition to do something, but similarity between the 2 acts tended to show they were done by the same person and A is that person
-
Jury infers from degree of distinctiveness between the crime and the SFE that accused is the very person that committed the crime;
-
Not infer from accused’s habits or disposition he is type of person who would commit crime; inference only possible if high degree of similarity rendering it objectively probable; can’t be coincidence
-
Where adduced on issue of Identity, a high degree of similarity is required, achieved through:
a) highly distinctive detail amounting to “signature” or b) cumulative effect of a number of significant similarities
R. v. Handy 2002 SCC – The Basic Rule Today
-
Complainant, casual acquaintance of H, says consensual sex following drinking session turned into hurtful non-consensual vaginal/anal sex accompanied by physical abuse; Crown wanted testimony of H’s ex-wife on accounts of sexual and/or physical abuse on 7 occasions; fails
-
Court sets out test
-
SFE would go to show H took pleasure in non-consensual intercourse, to prove no consent
-
Concern of collaboration between wife and complainant – wife told complainant, before encounter happened/complaint lodged, that she complained about H abusing her and got money
-
Similarity in detail: events with wife began non-consensually, with complainant began consensually then turned non-consensual
-
ID needs high degree of similarity; if issue is animus/motive/actus it’s less similar
-
Circumstances: sexual abuse in marriage vs. abuse during drunken one night stand
-
Strength of SFE – H denies abuse with wife, issues with ex-wife’s credibility
-
Moral prejudice – H at risk of prejudice of “bad personhood” – inflammatory nature of wife’s testimony
-
Reasoning prejudice – H denies SFE, creates risk that there will be unfairness in right to respond because H cannot counter with SFE to support his credibility (ie number of times sex with wife was consensual)
-
Basic Rule: though presumptively inadmissible, evidence of prior bad acts by accused admissible if Crown satisfies judge on BOP that, in context of case, PV in relation to specific issue outweighs PE
-
Must be discreditable conduct by accused out of court, otherwise just circumstantial
-
Difficulties applying test: propensity evidence is still that, sometimes that does matter like Smith it’s not propensity as serial killer per se but his propensity to marry rich women and kill them in bath and we can stop trying to call it something else
-
ID what evidence really supports; ID how similar it has to be to pass test; ID factors connecting out of court bad acts with charged; Differentiate between improper general propensity with more focused; SFE need not be conclusive, it’s a type of circumstantial and just needs to be PV over PE and tends to prove
-
Significant evidence attaches to this type of evidence, so court be more careful about letting it in
R. v. McFadden
-
M charged with killing deceased while doing work on her house – claims he blacked out, isn’t denying killing so the issue is if it is first or second degree murder or manslaughter
-
Crown theory first degree: planned or deliberate, or committed during commission of sexual assault
-
Crown wanted to lead evidence that M previously made sexual advances to a customer, P, on a previous occasion to support theory for murder – court rejects, facts not similar enough to get in under SFE
-
However, M puts credibility in issue by saying he loves his wife, has no reason go to elsewhere for sex
-
Crown then puts P on witness stand – but issue arose as to what they were having her testify for –bad character (allowed now), or to contradict M that in past he tried to go elsewhere for sex (this is collateral)
R v. Shearing 2002 SCC
-
Accused led Kabalarians, enlightenment through steps of consciousness, sexual experience the means, charged with 20 sexual offences with young girls; 2 complainants sisters living there because mom was housekeeper, 9 others at home were believers; counts tried together and each admitted as SFE for others
-
At SCC, cogency of SFE rests on validity of double inference that 1. Accused had situation specific propensity to groom adolescent girls for sexual gratification by exploiting cult beliefs/housing, and 2. He proceeded in that way with each complainant
-
Some evidence of opportunity for collusion or collaboration and motive, and of communication among complainants; also evidence not strong so TJ right to let question of collusion go to jury; SFE admissible
-
Circumstantial evidence: cogency of SFE rests entirely on validity of inferences it supports re: issues in question
R v. Perrier 2004 SCC
-
Charges on accused in 2 incidents; issue was ID; Crown admitted gang membership rotated but said accused in all 3 incidents; TJ erred telling jury to consider evidence from one incident as SFE with respect to identification, not of the gang, but of the accused for other incidents
-
Similarities between incidents demonstrate it was likely same gang committing offences but don’t point to individual trademark/characteristic to ID appellant
-
Focus must be on high degree of similarity between acts, not evidence of accused’s involvement; more similar means more PV; Then focus on whether same gang committed acts; then decide same individual
-
Gang membership, just gives possibility he was there on other occasion; evidence of group activity needs also evidence linking individual to each group offence by distinctiveness of his role or other independent evidence
Noor Mohamed v. The King 1949 British Guyana
-
D goldsmith accused of murdering woman he lived with by causing her to take cyanide, which he had around the house for his work; no direct evidence he caused her to take it, and some evidence she committed suicide
-
Prosecution led evidence he had previously killed wife with cyanide on pretence of cure for toothache
-
Appeal: Defence successfully argued the PE of evidence outweighed PV, so wrongly admitted
Character and SFE in civil cases
Mood Music v. deWolfe Ltd
-
P & D both make and supply background music, P alleging D stole copyrighted songs, D said coincidence
-
P wanted SFE they previously “trapped” D into infringing their copyright, and D had infringed others’ copyright
-
Evidence of other instances of copyright infringement allegations sufficient for PV to be relevant, admissible
-
In civil cases the courts will admit evidence of similar facts if it is logically probative… provided that it was no oppressive or unfair to other ide and that the other side had notice and is able to deal with it
Extrinsic Exclusionary Rules (Policy Based)
Share with your friends: |
