1. Similar Fact

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

3. Similar Fact Rule An exception to the general exclusionary Character evidence rule An exception to the general exclusionary Character evidence rule It applies where a party proffers “other act” evidence (ie. discreditable conduct) as proof that the party opposite was more likely to have committed the act/fact at issue, or did so with a certain knowledge or intent It applies where a party proffers “other act” evidence (ie. discreditable conduct) as proof that the party opposite was more likely to have committed the act/fact at issue, or did so with a certain knowledge or intent

4. Handy/Shearing SCC Propensity or disposition evidence: presumptively inadmissible due to prejudice considerations Propensity or disposition evidence: presumptively inadmissible due to prejudice considerations Admissible in exceptional circumstances where probative value outweighs prejudice on a particular admissible issue Admissible in exceptional circumstances where probative value outweighs prejudice on a particular admissible issue Onus on proponent, BOP Onus on proponent, BOP

5. Looking for … Cogency and strength of evidence – ie. situation specific, more focussed and specific to circumstances of the facts in issue before the Court Cogency and strength of evidence – ie. situation specific, more focussed and specific to circumstances of the facts in issue before the Court Probative value exceeds prejudice where the force of the similar circumstances defies coincidence or other innocent explanation Probative value exceeds prejudice where the force of the similar circumstances defies coincidence or other innocent explanation

6. The idea is that the more cogent the evidence and the greater its probative value, the more likely the evidence will be used for its legally relevant purpose The idea is that the more cogent the evidence and the greater its probative value, the more likely the evidence will be used for its legally relevant purpose The TOL is to determine whether the evidence of disposition or propensity is strong enough to be capable of raising in the minds of the TOF, acting reasonably, the “double inference” contended by the proponent on a fact in issue The TOL is to determine whether the evidence of disposition or propensity is strong enough to be capable of raising in the minds of the TOF, acting reasonably, the “double inference” contended by the proponent on a fact in issue

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

8. In exceptional circumstances … Similar fact admissible if Similar fact admissible if Relevant to a fact in issue, other than bad character or propensity itself Relevant to a fact in issue, other than bad character or propensity itself Probative value greater than prejudice Probative value greater than prejudice

9. This may involve … Expert opinion Expert opinion General reputation General reputation Specific incidents of misconduct on other occasions Specific incidents of misconduct on other occasions Evidence of possession of documents or things Evidence of possession of documents or things Past or present associations Past or present associations

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

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

12. Mustafa: p. 681 Accused charged with fraud (profferring stolen credit card in payment for meat) Accused charged with fraud (profferring stolen credit card in payment for meat) Defence: misidentification Defence: misidentification Crown allowed to call evidence that the accused had visited the store before, filled the cart with meat, and abandoned same (botched trial run for later crime?) Crown allowed to call evidence that the accused had visited the store before, filled the cart with meat, and abandoned same (botched trial run for later crime?)

13. Thompson: p. 683 Two young boys identified accused as a person who made homosexual advances on them Two young boys identified accused as a person who made homosexual advances on them Crown allowed to lead what was found in a search of his home: photos of other naked boys Crown allowed to lead what was found in a search of his home: photos of other naked boys Deals with defence of innocent association or misidentification Deals with defence of innocent association or misidentification

14. Examples of Facts in Issue Intent Intent System System Plan Plan Malice Malice Identity Identity Rebut defences of accident, mistake and innocent association Rebut defences of accident, mistake and innocent association

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

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

17. Clermont: p. 695 Charge: rape Charge: rape Accused: admitted sexual relations, issue: consent Accused: admitted sexual relations, issue: consent Proferred by Crown: another rape 5 years earlier by the same accused, different complainant Proferred by Crown: another rape 5 years earlier by the same accused, different complainant SCC: inadmissible SCC: inadmissible The earlier non-consent doesn’t inform this consent The earlier non-consent doesn’t inform this consent At most the evidence displays a “tendency” to disregard consent At most the evidence displays a “tendency” to disregard consent

18. Shearing: p. 695 20 counts of sexual offences 20 counts of sexual offences Accused a spiritual leader Accused a spiritual leader He preached that sexual relations with him was a method of achieving a higher consciousness He preached that sexual relations with him was a method of achieving a higher consciousness Two of the complainants were sisters that lived in a group home, their mother was a member of the cult, they were not Two of the complainants were sisters that lived in a group home, their mother was a member of the cult, they were not The other complainants were members of the cult The other complainants were members of the cult

19. Shearing: continued The multiple counts were tried in one Indictment The multiple counts were tried in one Indictment For the sisters, the issue was: did the events occur For the sisters, the issue was: did the events occur For the others: consent For the others: consent Common theme: spiritual imagery, abuse of position Common theme: spiritual imagery, abuse of position Held: combination of spiritual imagery, horror stories, and prophylactic power of the accused’s touch was “distinctive” Held: combination of spiritual imagery, horror stories, and prophylactic power of the accused’s touch was “distinctive” The evidence went beyond disposition or propensity The evidence went beyond disposition or propensity

20. Handy: SCC Held: credibility of complainant is not acceptable as the identified issue for admission fo similar fact Held: credibility of complainant is not acceptable as the identified issue for admission fo similar fact

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

22. Morin: p. 707 Charged with murder of a young girl Charged with murder of a young girl Diagnosed as a schizophrenic Diagnosed as a schizophrenic A small percentage of schizophrenics have a tendency or capability of committing the crime at issue A small percentage of schizophrenics have a tendency or capability of committing the crime at issue Held: expert evidence placing him in a “class” of persons capable of committing the offence charged, not admissible Held: expert evidence placing him in a “class” of persons capable of committing the offence charged, not admissible Looking for “distinctive” behavioural characteristics Looking for “distinctive” behavioural characteristics

23. Sopinka 11.129 – 11.131 The evidence must tend to show that the accused shared a distinctive unusual behavioural trait with the perpetrator of a crime which operated as a badge or mark of identification The evidence must tend to show that the accused shared a distinctive unusual behavioural trait with the perpetrator of a crime which operated as a badge or mark of identification The admissibility of the opinion evidence depended upon the degree of distinctiveness of the trait in order to outweigh its prejudicial value The admissibility of the opinion evidence depended upon the degree of distinctiveness of the trait in order to outweigh its prejudicial value

24. Continued Opinion evidence is not admissible where the offence is an ordinary crime and the perpetrator or accused a normal person Opinion evidence is not admissible where the offence is an ordinary crime and the perpetrator or accused a normal person On the other hand, expert evidence concerning the perpetrator or the accused is relevant if it tends to prove a distinctive character trait (emotional makeup, personality disorder etc.) and that trait is relevant to the subject crime On the other hand, expert evidence concerning the perpetrator or the accused is relevant if it tends to prove a distinctive character trait (emotional makeup, personality disorder etc.) and that trait is relevant to the subject crime In this scenario, the opinion evidence permits a meaningful comparison of the accused and the perpetrator that will incriminate or eliminate In this scenario, the opinion evidence permits a meaningful comparison of the accused and the perpetrator that will incriminate or eliminate

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

26. Caccamo: p. 708 Police seized counterfeit money, restricted firearm and document written in Italian Police seized counterfeit money, restricted firearm and document written in Italian Crown called two expert witnesses: the seized document was a rare copy of a criminal organization’s constitution Crown called two expert witnesses: the seized document was a rare copy of a criminal organization’s constitution Possession would be limited to members Possession would be limited to members Held: admissible to show membership in the criminal organization which qualifies the nature and purpose of possession of the weapon Held: admissible to show membership in the criminal organization which qualifies the nature and purpose of possession of the weapon

27. Note There must be evidence linking the accused (party evidence is proferred against) to the “other act” evidence There must be evidence linking the accused (party evidence is proferred against) to the “other act” evidence Mere opportunity is not enough Mere opportunity is not enough TOL must determine whether the “similar acts” were likely perpetrated by one in the same person TOL must determine whether the “similar acts” were likely perpetrated by one in the same person Then determine whether there is some evidence upon which the TOF could determine that person was the accused Then determine whether there is some evidence upon which the TOF could determine that person was the accused

28. Sweitzer: SCC Accused identified as assailant in three counts but not in 11 other episodes admitted as similar acts Accused identified as assailant in three counts but not in 11 other episodes admitted as similar acts Held: inadmissible, the alleged similar fact did not answer the fact in issue at trial: identity Held: inadmissible, the alleged similar fact did not answer the fact in issue at trial: identity

29. To Determine Nexus Between Similar Fact and Facts in Issue (1) Proximity in time and place (2) Similarity in detail (3) Number of occurrences (4) Circumstances surrounding similar acts (5) Distinctive features (6) Intervening events (7) Additional factors supporting unity

30. Collusion/Collaboration Where two or more related events are tendered to prove the accused did a particular act or had a particular state of mind, the underlying premise for admissibility is the objective improbability of the events occurring coincidentally Where two or more related events are tendered to prove the accused did a particular act or had a particular state of mind, the underlying premise for admissibility is the objective improbability of the events occurring coincidentally Actual collusion or collaboration undermines the logical basis for the admission of similar fact where the theory of admissibility rests upon the improbability of coincidence Actual collusion or collaboration undermines the logical basis for the admission of similar fact where the theory of admissibility rests upon the improbability of coincidence

31. Continued Although reliability and creditworthiness is normally the province of the TOF, where there is a real possibility of collusion or collaboration, it is a matter of law Although reliability and creditworthiness is normally the province of the TOF, where there is a real possibility of collusion or collaboration, it is a matter of law Collusion can be intentional tainting or unintentional or even unconscious Collusion can be intentional tainting or unintentional or even unconscious The absence of collusion is a condition precedent to admissibility The absence of collusion is a condition precedent to admissibility

32. Continued Once there is some evidence of collusion (or an air of reality to the allegations), the Crown has the legal burden to negate the allegations Once there is some evidence of collusion (or an air of reality to the allegations), the Crown has the legal burden to negate the allegations The TOL must be satisfied on a BOP that the evidence is not the product of collusion The TOL must be satisfied on a BOP that the evidence is not the product of collusion Even where admitted, the TOL must warn the TOF Even where admitted, the TOL must warn the TOF

33. Continued In Handy, the complainant and accused’s former spouse (the similar act witness) had met. In Handy, the complainant and accused’s former spouse (the similar act witness) had met. The former spouse told the complainant about the accused’s criminal record, abuse by him during marriage, her receipt of money from the Criminal Injuries Compensation Board (that you just needed to say you were abused) The former spouse told the complainant about the accused’s criminal record, abuse by him during marriage, her receipt of money from the Criminal Injuries Compensation Board (that you just needed to say you were abused) Held: SCC sufficient to raise issue of collusion Held: SCC sufficient to raise issue of collusion

34. Considerations: Prejudice Moral prejudice: TOF deciding a case because of “bad personhood” Moral prejudice: TOF deciding a case because of “bad personhood” Reasoning Prejudice: TOF coming to a conclusion due to forbidden reasoning (propensity), and undue weight Reasoning Prejudice: TOF coming to a conclusion due to forbidden reasoning (propensity), and undue weight TOF mislead from its true job, deciding these Facts in Issue TOF mislead from its true job, deciding these Facts in Issue Difficulty for Accused in Defending Himself from all Sorts of Allegations, Old and New. Difficulty for Accused in Defending Himself from all Sorts of Allegations, Old and New. Effective Use of Judicial Resources, ie. trying numerous allegations Effective Use of Judicial Resources, ie. trying numerous allegations

35. Considerations: Probative Value (1) Purpose of proferred evidence (2) Link between accused and discreditable acts (3) Importance of material fact in issue (4) Cogency of evidence (5) Strength of the evidence of (2)strength of inferences to be drawn – ie. distinctiveness (6) Connectedness between discreditable conduct and offence charged (7) Substantial similarities or dissimilarities (8) Possibility of collaboration or collusion

36. Instructions By TOL Cannot use evidence on one count of multi- count Indictment on other counts unless expressly allowed to do so under similar fact, or conviction for that matter Cannot use evidence on one count of multi- count Indictment on other counts unless expressly allowed to do so under similar fact, or conviction for that matter TOF must be told that they must first be satisfied that the similar acts occurred and are those of accused TOF must be told that they must first be satisfied that the similar acts occurred and are those of accused TOL must identify purpose of evidence and permitted reasoning – ie. potentially relevant to intent, but what they make of the similar fact evidence is up to them TOL must identify purpose of evidence and permitted reasoning – ie. potentially relevant to intent, but what they make of the similar fact evidence is up to them Warning not to use it for any other purpose Warning not to use it for any other purpose

37. Instructions Continued The TOL should point out the similarities and dissimilarities of the similar fact evidence The TOL should point out the similarities and dissimilarities of the similar fact evidence TOL should warn of any frailties of the similar fact evidence (e.g. collusion) TOL should warn of any frailties of the similar fact evidence (e.g. collusion)