Similar fact evidence: previous conduct of the accused which is similar to the activity presently charged General rule: “Similar fact evidence is…presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a BOP 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” (Handy)
Where acts are so strikingly similar that the evidence is no longer just regarding character, it has significant PV regarding another element of the offence; objective likelihood of a coincidence is slight – where PV high then more likely admission (Arp)
Strict exception to bar on character evidence (if not sufficiently probative then = character evidence and inadmissible)
Judges are to instruct the jury that they may use this evidence to prove a particular point (identity, mens rea, et.c) but not to engage in reasoning that says the jury is the type of person that would commit this offence.
Burden on the crown to show that probative value outweighs the prejudice. One of the rare instances in evidence where burden on the Crown.
Sweitzer v. R. (1982) (S.C.C.)
Facts: accused charged with 12 counts of rape, convicted at trial
Decision:
There was no direct or circumstantial evidence for those rapes actually convicted for, and was effectively convicted for them based on evidence of the other counts
Cannot use similarities from other counts to convict – there must be some direct or circumstantial evidence for each specific count.
Arp, R. v. (1998) (S.C.C.)
Dramatically changed the law regarding Crown offering evidence of the accused’s bad character, and previous cases only still good law as far as consistent with it.
Decision:
If Crown wants to lead evidence of bad character of the accused, starting point is inadmissible, unless probative value (for something other than just showing bad character) significantly outweighs potential for prejudice (which always attaches).
To assess probative value, consider:
The strength of the evidence
The extent to which the proposed evidence supports the inferences sought to be made from it
The extent to which the matters it tends to prove are at issue in the proceedings
The extent to which it may support an inference of guilt based solely on bad character
The extent to which it may confuse the issues
The accused’s ability to respond to it
And it is mandatory for judge to give charge to jury telling them:
Can’t use evidence of bad character or similar fact evidence to infer accused was a particular type of person or that it makes accused more likely to have committed offence
What the evidence is relevant for
R. v. Handy (SCC) (2002)
Facts: charged with sexual assault of a woman who went to a hotel and initially agreed to sex. She said no later on but he had abusive sexual and anal intercourse with her, choked and hit her. Crown wanted to call his ex wife whom he subjected to gruesome sexual violence where she had said no. He denied all.
At trial: evidence admitted on the basis that it specifically established a pattern where he used an initially consented sexual scenario and turning it into a non-consensual one. Appealed on the grounds that the jury ought not to have considered evidence of alleged misconduct outside the subject matter of the charge and that it was highly prejudicial, and that the facts weren’t similar in any event.
Appeal: PP outweighed the probative value. The acts were disparate in nature and this case is one time where as previous was with wife of long term relationship. Credibility of the ex wife was problematic.
General rule:evidence of misconduct which does no more than blacken his character is inadmissible.
Policy: its potential for prejudice, distraction and time consumption.
Exception: where previous misconduct may be so highly relevant that its probative value outweighs any potential for misuse.
Sopinka test: it would be an affront to common sense to suggest that the similarities are just a coincidence.
R. v. Brown (1999) (Ont. CA)
Facts: Accused was charged with shaking a young child to death. Unrepresented accused called witnesses to testify to his good character. Then took the stand himself. Accused’s own son then testified that his father had assaulted him as a child.
Held: New trial ordered. The son’s evidence did not come within the similar fact exception –the son’s allegations bore no resemblance to the case for which the accused was charged.
Comment: don’t want the trial to become mired in the Crown trying to discount the good character evidence brought by the defence on every single point. This risks that the issue of the crime for which the accused is currently charged will be lost in the back and forth of trying to bring and discredit character evidence.
R. v. Profit (1993) (SCC)
Facts: School principal was convicted of sexual offences involving students.
Issue: CA appeal divided on the probative value of character evidence. Should there be a special rule for sex offence cases?
Held: Yes, there should be because sexual offences against children are generally committed out of the blue, it is less relevant for the defence to introduce evidence of good character.
Similar Fact Test
Identify the Non-Character Issue (relevance)
Evaluate the Probative Value of the SFE
Evaluate the Potential for Prejudice: Moral and Reasoning
Charge the jury if PV > PP – this can’t go to character but for proof of non-char E
Starting point: Similar Fact Evidence (SFE) is presumptively inadmissible. (Handy)
Crown must show on balance of probabilities that PV outweighs PP
1) Identify non-character issue: (relevance)
eg. Identity, i.e. so specific that it shows the same person committed the crimes
eg. actus reus, presence or absence of consent
eg. mens rea (Smith - wife found dead in bath tub, just like 2 previous wives→ rel to a.r. and m.r.)
eg. to rebut defence (Makin - couple was arguing death of 2 infants was an accident, but Crown could show 8 other children died in exactly the same circumstances went to whether acts were designed or accidental; rebutted defence)
2) Evaluate probative value of evidence for the specific issue (Handy)
Turns on the degree of connection between the prior act and the current charge
Consider:
Proximity in time of the similar acts—degree of connectedness
Extent to which the other acts are similar in detail to the charged conduct
Number of occurrences of the similar acts: see R. v. Smith
Circumstances surrounding or relating to the similar acts
Any distinctive feature(s) unifying the incidents
Intervening events - generally points to something that severs the connection
Any other factor which would tend to support or rebut the underlying unity of the similar acts - solidity of identity; how sure are you that the accused is the one associated with the prior act - allegation vs. conviction etc. and is there evidence of collusion or fabrication (i.e. copycatting—was there opportunity for fabrication):
Collusion b/n witnesses may deprive similar fact evidence of most of its probative value (Handy)
3) Determine “prejudicial effect”:
Counter w/ concerns over “moral prejudice” – potential stigma of bad personhood, and “reasoning prejudice”, including potential confusion and distraction of the jury from the actual charge against the respondent.
The strength of the SFE must outweigh both moral and reasoning prejudice(Handy)
Comprised of two elements:
Moral prejudice: likelihood of drawing a prohibited character inference
Risks an “unfocussed trial and wrongful convictions”
Consider: how inflammatory are prior similar acts, force of the character inference
Reasoning prejudice: (quality of E) concern that jury will be distracted
Jury may be revolted by prior acts - jury may be distracted from actual charge
4) Balance the probative value versus the potential for prejudice.
What amount of probative value is necessary?
Court kind of iffy on this in Handy– don’t have to be 100% convinced, but also nature of SFE that is admissible are things like hallmarks and calling cards
So is the probative value SO HIGH that the chance of mere coincidence is extremely slight
5) Charge to jury: permitted to use evidence as proof of the specific issue, but not for prohibited character reasoning (Arp)
