Similar FactSimilar Fact

In true similar fact cases, the In true similar fact cases, the probativeness is found in the similarities probativeness is found in the similarities and the connectedness between the act and the connectedness between the act charged and the conduct on other charged and the conduct on other occasions.occasions.

Similar Fact RuleSimilar Fact Rule

An exception to the general exclusionary An exception to the general exclusionary Character evidence ruleCharacter evidence rule

It applies where a party proffers “other act” It applies where a party proffers “other act” evidence (ie. discreditable conduct) as evidence (ie. discreditable conduct) as proof that the party opposite was more proof that the party opposite was more likely to have committed the act/fact at likely to have committed the act/fact at issue, or did so with a certain knowledge issue, or did so with a certain knowledge or intentor intent

Handy/Shearing SCCHandy/Shearing SCC

Propensity or disposition evidence: Propensity or disposition evidence: presumptively inadmissible due to presumptively inadmissible due to prejudice considerationsprejudice considerations

Admissible in exceptional circumstances Admissible in exceptional circumstances where probative value outweighs prejudice where probative value outweighs prejudice on a particular admissible issueon a particular admissible issue

Onus on proponent, BOPOnus on proponent, BOP

Looking for …Looking for …

Cogency and strength of evidence – ie. Cogency and strength of evidence – ie. situation specific, more focussed and situation specific, more focussed and specific to circumstances of the facts in specific to circumstances of the facts in issue before the Courtissue before the Court

Probative value exceeds prejudice where Probative value exceeds prejudice where the force of the similar circumstances the force of the similar circumstances defies coincidence or other innocent defies coincidence or other innocent explanationexplanation

The idea is that the more cogent the evidence The idea is that the more cogent the evidence and the greater its probative value, the more and the greater its probative value, the more likely the evidence will be used for its legally likely the evidence will be used for its legally relevant purposerelevant purpose

The TOL is to determine whether the evidence The TOL is to determine whether the evidence of disposition or propensity is strong enough to of disposition or propensity is strong enough to be capable of raising in the minds of the TOF, be capable of raising in the minds of the TOF, acting reasonably, the “double inference” acting reasonably, the “double inference” contended by the proponent on a fact in issue contended by the proponent on a fact in issue

The inferences sought must accord with The inferences sought must accord with the TOL’s common sense, intuitive notions the TOL’s common sense, intuitive notions of probability, and unlikelihood of of probability, and unlikelihood of coincidencecoincidence

In exceptional circumstances …In exceptional circumstances …

Similar fact admissible ifSimilar fact admissible ifRelevant to a fact in issue, other than bad Relevant to a fact in issue, other than bad

character or propensity itselfcharacter or propensity itselfProbative value greater than prejudiceProbative value greater than prejudice

This may involve …This may involve …

Expert opinionExpert opinionGeneral reputationGeneral reputationSpecific incidents of misconduct on other Specific incidents of misconduct on other

occasionsoccasionsEvidence of possession of documents or Evidence of possession of documents or

thingsthingsPast or present associationsPast or present associations

e.g.e.g.

The Crown calling cogent evidence of The Crown calling cogent evidence of other misconduct to prove identity where other misconduct to prove identity where the evidence constitutes a “unique the evidence constitutes a “unique trademark” or “signature” of the way the trademark” or “signature” of the way the accused has committed the same or accused has committed the same or similar crimes on another occasion, similar crimes on another occasion, provided probative > prejudiceprovided probative > prejudice

If the proferred character does If the proferred character does no moreno more than show that the opposite party is the than show that the opposite party is the type “likely” to have engaged in the type “likely” to have engaged in the conduct at issue, then the probative value conduct at issue, then the probative value is insufficient to meet the requirements of is insufficient to meet the requirements of the similar fact test, and will be the similar fact test, and will be outweighed by the prejudicial valueoutweighed by the prejudicial value

Mustafa: p. 681Mustafa: p. 681

Accused charged with fraud (profferring Accused charged with fraud (profferring stolen credit card in payment for meat)stolen credit card in payment for meat)

Defence: misidentificationDefence: misidentificationCrown allowed to call evidence that the Crown allowed to call evidence that the

accused had visited the store before, filled accused had visited the store before, filled the cart with meat, and abandoned same the cart with meat, and abandoned same (botched trial run for later crime?)(botched trial run for later crime?)

Thompson: p. 683Thompson: p. 683

Two young boys identified accused as a Two young boys identified accused as a person who made homosexual advances person who made homosexual advances on themon them

Crown allowed to lead what was found in a Crown allowed to lead what was found in a search of his home: photos of other naked search of his home: photos of other naked boysboys

Deals with defence of innocent association Deals with defence of innocent association or misidentificationor misidentification

Examples of Facts in IssueExamples of Facts in Issue

IntentIntentSystemSystemPlanPlanMaliceMalice IdentityIdentityRebut defences of accident, mistake and Rebut defences of accident, mistake and

innocent associationinnocent association

MakinMakin

““It is undoubtedly not competent for the It is undoubtedly not competent for the prosecution to adduce evidence that the prosecution to adduce evidence that the accused has been guilty of criminal acts accused has been guilty of criminal acts other than those covered by the Indictment other than those covered by the Indictment for the purpose of leading to the for the purpose of leading to the conclusion that the accused is a person conclusion that the accused is a person likely from his criminal conduct or likely from his criminal conduct or character to have committed the offence character to have committed the offence for which he is being tried.”for which he is being tried.”

Makin continuedMakin continued

““On the other hand, the mere fact that the On the other hand, the mere fact that the evidence adduced tends to show the evidence adduced tends to show the commission of other crimes does not commission of other crimes does not render it inadmissible if it be relevant to an render it inadmissible if it be relevant to an issue before the jury, and it may be issue before the jury, and it may be relevant if it bears upon the question relevant if it bears upon the question whether the acts alleged to constitute the whether the acts alleged to constitute the crime … were designed or accidental, or crime … were designed or accidental, or to rebut a defence otherwise open to the to rebut a defence otherwise open to the accused.”accused.”

Clermont: p. 695Clermont: p. 695

Charge: rapeCharge: rape Accused: admitted sexual relations, issue: Accused: admitted sexual relations, issue:

consentconsent Proferred by Crown: another rape 5 years earlier Proferred by Crown: another rape 5 years earlier

by the same accused, different complainantby the same accused, different complainant SCC: inadmissibleSCC: inadmissible The earlier non-consent doesn’t inform this The earlier non-consent doesn’t inform this

consentconsent At most the evidence displays a “tendency” to At most the evidence displays a “tendency” to

disregard consentdisregard consent

Shearing: p. 695Shearing: p. 695

20 counts of sexual offences20 counts of sexual offences Accused a spiritual leaderAccused a spiritual leader He preached that sexual relations with him was He preached that sexual relations with him was

a method of achieving a higher consciousnessa method of achieving a higher consciousness Two of the complainants were sisters that lived Two of the complainants were sisters that lived

in a group home, their mother was a member of in a group home, their mother was a member of the cult, they were notthe cult, they were not

The other complainants were members of the The other complainants were members of the cultcult

Shearing: continuedShearing: continued The multiple counts were tried in one IndictmentThe multiple counts were tried in one Indictment For the sisters, the issue was: did the events For the sisters, the issue was: did the events

occuroccur For the others: consentFor the others: consent Common theme: spiritual imagery, abuse of Common theme: spiritual imagery, abuse of

positionposition Held: combination of spiritual imagery, horror Held: combination of spiritual imagery, horror

stories, and prophylactic power of the accused’s stories, and prophylactic power of the accused’s touch was “distinctive”touch was “distinctive”

The evidence went beyond disposition or The evidence went beyond disposition or propensitypropensity

Handy: SCCHandy: SCC

Held: credibility of complainant is not Held: credibility of complainant is not acceptable as the identified issue for acceptable as the identified issue for admission fo similar factadmission fo similar fact

NoteNote

When similar fact is given to the TOF, they When similar fact is given to the TOF, they are so given by a TOL who limits the use are so given by a TOL who limits the use of the evidence to the admissible purpose of the evidence to the admissible purpose and warns against propensity reasoningand warns against propensity reasoning

Morin: p. 707Morin: p. 707

Charged with murder of a young girlCharged with murder of a young girl Diagnosed as a schizophrenicDiagnosed as a schizophrenic A small percentage of schizophrenics have a A small percentage of schizophrenics have a

tendency or capability of committing the crime at tendency or capability of committing the crime at issueissue

Held: expert evidence placing him in a “class” of Held: expert evidence placing him in a “class” of persons capable of committing the offence persons capable of committing the offence charged, not admissiblecharged, not admissible

Looking for “distinctive” behavioural Looking for “distinctive” behavioural characteristicscharacteristics

Sopinka 11.129 – 11.131Sopinka 11.129 – 11.131

The evidence must tend to show that the The evidence must tend to show that the accused shared a distinctive unusual accused shared a distinctive unusual behavioural trait with the perpetrator of a behavioural trait with the perpetrator of a crime which operated as a badge or mark crime which operated as a badge or mark of identificationof identification

The admissibility of the opinion evidence The admissibility of the opinion evidence depended upon the degree of depended upon the degree of distinctiveness of the trait in order to distinctiveness of the trait in order to outweigh its prejudicial valueoutweigh its prejudicial value

ContinuedContinued

Opinion evidence is not admissible where the Opinion evidence is not admissible where the offence is an ordinary crime and the perpetrator offence is an ordinary crime and the perpetrator or accused a normal personor accused a normal person

On the other hand, expert evidence concerning On the other hand, expert evidence concerning the perpetrator or the accused is relevant if it the perpetrator or the accused is relevant if it tends to prove a distinctive character trait tends to prove a distinctive character trait (emotional makeup, personality disorder etc.) (emotional makeup, personality disorder etc.) and that trait is relevant to the subject crimeand that trait is relevant to the subject crime

In this scenario, the opinion evidence permits a In this scenario, the opinion evidence permits a meaningful comparison of the accused and the meaningful comparison of the accused and the perpetrator that will incriminate or eliminateperpetrator that will incriminate or eliminate

ThereforeTherefore

Opinion evidence of a propensity or Opinion evidence of a propensity or disposition is admissible if it is so highly disposition is admissible if it is so highly distinctive or unique to constitute a distinctive or unique to constitute a signature and the evidence passes the signature and the evidence passes the probative > prejudicial analysisprobative > prejudicial analysis

Caccamo: p. 708Caccamo: p. 708

Police seized counterfeit money, restricted Police seized counterfeit money, restricted firearm and document written in Italianfirearm and document written in Italian

Crown called two expert witnesses: the seized Crown called two expert witnesses: the seized document was a rare copy of a criminal document was a rare copy of a criminal organization’s constitutionorganization’s constitution

Possession would be limited to membersPossession would be limited to members Held: admissible to show membership in the Held: admissible to show membership in the

criminal organization which qualifies the nature criminal organization which qualifies the nature and purpose of possession of the weapon and purpose of possession of the weapon

NoteNote There must be evidence linking the accused (party There must be evidence linking the accused (party

evidence is proferred against) to the “other act” evidenceevidence is proferred against) to the “other act” evidence

Mere opportunity is not enoughMere opportunity is not enough

TOL must determine whether the “similar acts” were TOL must determine whether the “similar acts” were likely perpetrated by one in the same personlikely perpetrated by one in the same person

Then determine whether there is some evidence upon Then determine whether there is some evidence upon which the TOF could determine that person was the which the TOF could determine that person was the accusedaccused

Sweitzer: SCCSweitzer: SCC

Accused identified as assailant in three Accused identified as assailant in three counts but not in 11 other episodes counts but not in 11 other episodes admitted as similar actsadmitted as similar acts

Held: inadmissible, the alleged similar fact Held: inadmissible, the alleged similar fact did not answer the fact in issue at trial: did not answer the fact in issue at trial: identityidentity

To Determine Nexus Between To Determine Nexus Between Similar Fact and Facts in IssueSimilar Fact and Facts in Issue

(1)(1) Proximity in time and placeProximity in time and place

(2)(2) Similarity in detailSimilarity in detail

(3)(3) Number of occurrencesNumber of occurrences

(4)(4) Circumstances surrounding similar actsCircumstances surrounding similar acts

(5)(5) Distinctive featuresDistinctive features

(6)(6) Intervening eventsIntervening events

(7)(7) Additional factors supporting unity Additional factors supporting unity

Collusion/CollaborationCollusion/Collaboration

Where two or more related events are tendered Where two or more related events are tendered to prove the accused did a particular act or had to prove the accused did a particular act or had a particular state of mind, the underlying premise a particular state of mind, the underlying premise for admissibility is the objective improbability of for admissibility is the objective improbability of the events occurring coincidentallythe events occurring coincidentally

Actual collusion or collaboration undermines the Actual collusion or collaboration undermines the logical basis for the admission of similar fact logical basis for the admission of similar fact where the theory of admissibility rests upon the where the theory of admissibility rests upon the improbability of coincidenceimprobability of coincidence

ContinuedContinued

Although reliability and creditworthiness is Although reliability and creditworthiness is normally the province of the TOF, where normally the province of the TOF, where there is a real possibility of collusion or there is a real possibility of collusion or collaboration, it is a matter of lawcollaboration, it is a matter of law

Collusion can be intentional tainting or Collusion can be intentional tainting or unintentional or even unconsciousunintentional or even unconscious

The absence of collusion is a condition The absence of collusion is a condition precedent to admissibilityprecedent to admissibility

ContinuedContinued

Once there is some evidence of collusion Once there is some evidence of collusion (or an air of reality to the allegations), the (or an air of reality to the allegations), the Crown has the legal burden to negate the Crown has the legal burden to negate the allegationsallegations

The TOL must be satisfied on a BOP that The TOL must be satisfied on a BOP that the evidence is not the product of collusionthe evidence is not the product of collusion

Even where admitted, the TOL must warn Even where admitted, the TOL must warn the TOFthe TOF

ContinuedContinued

In In HandyHandy, the complainant and accused’s former , the complainant and accused’s former spouse (the similar act witness) had met.spouse (the similar act witness) had met.

The former spouse told the complainant about The former spouse told the complainant about the accused’s criminal record, abuse by him the accused’s criminal record, abuse by him during marriage, her receipt of money from the during marriage, her receipt of money from the Criminal Injuries Compensation Board (that you Criminal Injuries Compensation Board (that you just needed to say you were abused)just needed to say you were abused)

Held: SCC sufficient to raise issue of collusionHeld: SCC sufficient to raise issue of collusion

Considerations: PrejudiceConsiderations: Prejudice Moral prejudice: TOF deciding a case because Moral prejudice: TOF deciding a case because

of “bad personhood”of “bad personhood” Reasoning Prejudice: TOF coming to a Reasoning Prejudice: TOF coming to a

conclusion due to forbidden reasoning conclusion due to forbidden reasoning (propensity), and undue weight(propensity), and undue weight

TOF mislead from its true job, deciding these TOF mislead from its true job, deciding these Facts in IssueFacts in Issue

Difficulty for Accused in Defending Himself from Difficulty for Accused in Defending Himself from all Sorts of Allegations, Old and New.all Sorts of Allegations, Old and New.

Effective Use of Judicial Resources, ie. trying Effective Use of Judicial Resources, ie. trying numerous allegationsnumerous allegations

Considerations: Probative ValueConsiderations: Probative Value

(1)(1) Purpose of proferred evidencePurpose of proferred evidence(2)(2) Link between accused and discreditable actsLink between accused and discreditable acts(3)(3) Importance of material fact in issueImportance of material fact in issue(4)(4) Cogency of evidenceCogency of evidence(5)(5) Strength of the evidence of (2)strength of Strength of the evidence of (2)strength of

inferences to be drawn – ie. distinctivenessinferences to be drawn – ie. distinctiveness(6)(6) Connectedness between discreditable conduct Connectedness between discreditable conduct

and offence chargedand offence charged(7)(7) Substantial similarities or dissimilaritiesSubstantial similarities or dissimilarities(8)(8) Possibility of collaboration or collusionPossibility of collaboration or collusion

Instructions By TOLInstructions By TOL Cannot use evidence on one count of multi-Cannot use evidence on one count of multi-

count Indictment on other counts unless count Indictment on other counts unless expressly allowed to do so under similar fact, or expressly allowed to do so under similar fact, or conviction for that matterconviction for that matter

TOF must be told that they must first be satisfied TOF must be told that they must first be satisfied that the similar acts occurred and are those of that the similar acts occurred and are those of accusedaccused

TOL must identify purpose of evidence and TOL must identify purpose of evidence and permitted reasoning – ie. potentially relevant to permitted reasoning – ie. potentially relevant to intent, but what they make of the similar fact intent, but what they make of the similar fact evidence is up to themevidence is up to them

Warning not to use it for any other purposeWarning not to use it for any other purpose

Instructions ContinuedInstructions Continued

The TOL should point out the similarities The TOL should point out the similarities and dissimilarities of the similar fact and dissimilarities of the similar fact evidenceevidence

TOL should warn of any frailties of the TOL should warn of any frailties of the similar fact evidence (e.g. collusion)similar fact evidence (e.g. collusion)