Barrister and Solicitor
Legal Writing and Research
Evidence - Relevance
Evidence - Circumstantial - Motive
Evidence - Similar Fact Evidence
R. v. McDonald (Ont CA, 2017)
In this criminal case, Watt JA usefully eludicates on several basic concepts of evidence law (respectively: relevance, motive and similar fact evidence):
 Relevance is a bedrock concept in the law of evidence. But it is not an inherent characteristic of any item of evidence. Attaching a label to an item of evidence, in this case, “extrinsic misconduct”, does not establish its relevance. For relevance is relative. It exists as a relation between an item of evidence and a proposition of fact that the proponent of the evidence seeks to establish by its introduction. See R. v. Luciano, 2011 ONCA 89 (CanLII), 267 C.C.C. (3d) 16, at para. 204.With respect to motive, the court continued:
 Relevance is a matter of everyday experience and common sense. An item of evidence is relevant if it renders the fact that it seeks to establish slightly more or less probable than that fact would be without the evidence, through the application of everyday experience and common sense: Luciano, at para. 204.
 It follows that, to be relevant, an item of evidence need not conclusively establish the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. All that is required is that the item of evidence reasonably show, by the application of everyday experience and common sense, that the fact is slightly more probable with the evidence than it would be without it: Luciano, at para. 206; R. v. Arp, 1998 CanLII 769 (SCC),  3 S.C.R. 339, at para. 38.
 A final point about relevance. We assess relevance in the context of the entire case and the positions of counsel. Relevance does not exist in the abstract or in the air: R. v. Cloutier, 1979 CanLII 25 (SCC),  2 S.C.R. 709, at pp. 730-33; Arp, at para. 38. Hence the importance that the proponent identify the issue(s) to which the evidence is relevant: R. v. Handy, at paras. 73-75.
 Evidence of motive is a species of circumstantial evidence used to prove, or to assist in proving, a human act. By nature, evidence of motive is prospectant: because a person had a motive to do an act X, that person probably did the act X alleged: Peter Tillers, ed., Wigmore on Evidence, vol. 1A (Toronto: Little, Brown and Company, 1983) § 51, pp. 1144-1146; see also R. v. Yumnu, 2010 ONCA 637 (CanLII), 260 C.C.C. (3d) 421, at para. 273, affirmed on other grounds, 2012 SCC 73 (CanLII),  3 S.C.R. 777.And with respect to similar fact evidence (aka extrinsic misconduct):
 Motive may be evidenced by a person’s words, conduct or some combination of each. On occasion, the conduct said to establish motive may involve the commission of offences other than those charged or other extrinsic misconduct: Luciano, at para. 114. The evidence of extrinsic misconduct must be relevant to prove the alleged motive and properly admissible under the rules of evidence.
 Whether the descriptor is “evidence of extrinsic misconduct” or “evidence of similar acts”, the general rule of admissibility and the test to be met to engage the exception remain the same.
 Evidence of extrinsic misconduct or similar acts is prima facie inadmissible. The rule generally prohibits character evidence from being used circumstantially to prove conduct. This prohibits an inference from the extrinsic misconduct or similar acts to propensity or disposition (character) to do the acts charged, and a second inference from propensity or disposition (character) to guilt of the offence charged: Handy, at para. 31; Arp, at para. 40.
 The policy basis for the exclusionary rule is well-established. Despite the relevance of propensity inferred from extrinsic misconduct or similar acts, this evidence may also capture the attention of the trier of fact, especially a jury, to an unwarranted degree. Its potential for prejudice, distraction and time-consumption is considerable and nearly always outdistances its probative value. And so it is that, generally at least, evidence of extrinsic misconduct or similar acts supportive of an inference of propensity or disposition is excluded from the case an accused has to answer: Handy, at para. 37.
 However, evidence of extrinsic misconduct or similar acts is not shown the exit door on every occasion on which it is tendered for reception. Sometimes, an issue may arise in a trial on which evidence of extrinsic misconduct or similar acts may be so highly relevant and cogent that its probative value in the search for the truth outweighs its potential for misuse by the trier of fact. In these cases, it falls to the Crown to establish, on a balance of probabilities, that the probative value of the evidence exceeds its prejudicial effect: R. v. Perrier, 2004 SCC 56 (CanLII),  3 S.C.R. 228, at para. 18. See also Handy, at para. 41. The policy basis for the exceptional admission of this evidence is that the deficit of probative value weighed against prejudicial effect on which the prophylactic approach is predicated is reversed. Probative value exceeds prejudicial effect, because the force of similar circumstances defies coincidence or other innocent explanation: Handy, at para. 47; Perrier, at paras. 19-20.
 Where evidence of extrinsic misconduct or similar acts is tendered to prove identity, that is to say, that it was the accused who committed the offence(s) charged, a high degree of similarity between the extrinsic misconduct or similar acts and the offence(s) charged is required before the evidence will be admitted. The similarity may be a unique feature, akin to a signature, or an accumulation of significant similarities: Arp, at paras. 43, 45, and 48-50. Where the evidence is adduced to establish identity, the jury is asked to infer from the degree of distinctiveness or uniqueness that exists between the crime charged and the evidence of extrinsic misconduct or similar acts that the accused is the very person who committed the offence(s) charged. This inference becomes available only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable: Arp, at para. 43.
 Essential to a determination of probative value, thus to settling the probative value-prejudicial effect balance, is the need to identify the issue to which the evidence of extrinsic misconduct or similar acts relates. Probative value, like relevance, cannot be assessed, much less determined in the abstract. The issues that arise in any given case derive from or are a function of the allegations contained in the indictment and the defences advanced by the person charged: Handy, at paras. 73-75. We reject a category approach to admissibility in favour of a general principle that assesses, then balances, probative value and prejudicial effect: R. v. B. (C.R.), 1990 CanLII 142 (SCC),  1 S.C.R. 717, at pp. 732-733.
 The initial assessment of the similarity between the extrinsic misconduct or similar acts and the offence(s) charged must be based on the acts themselves and not on evidence of the accused’s involvement in those acts: Perrier, at paras. 21-22. See also R. v. Woodcock (2003), 2003 CanLII 6311 (ON CA), 177 C.C.C. (3d) 346 (Ont. C.A.), at paras. 79-81, leave to appeal refused, 330 N.R. 191 (note).
 Turning now to the prejudice associated with the introduction of evidence of extrinsic misconduct or similar acts. There are two general kinds.
 Moral prejudice refers to the stigma of “bad personhood”, a verdict based on prejudice, rather than proof. This involves a forbidden chain of reasoning where guilt of the offence charged is inferred from the general disposition or propensity established by the extrinsic misconduct or similar acts: Handy, at paras. 31, 71, 100 and 139. A related concern is that the jury may also tend to punish an accused for the other misconduct by finding him guilty of the offence(s) charged through the application of a less demanding standard of proof: R. v. D. (L.E.), 1989 CanLII 74 (SCC),  2 S.C.R. 111, at pp. 127-128.
 Reasoning prejudice refers to the distraction of jurors from their proper focus on the offence(s) alleged by the introduction of evidence of extrinsic misconduct: Handy, at paras. 100 and 144. Jurors might become confused as they concentrate on resolving whether the accused actually committed the similar acts or engaged in the extrinsic misconduct. Their attention may be deflected from the main purpose of their deliberations, the allegations contained in the indictment: D. (L.E.), at pp. 127-128. This distraction is aggravated by the consumption of time required for the introduction of this evidence: Handy, at para. 144.
 Decisions of trial judges admitting or rejecting evidence of extrinsic misconduct or similar acts are entitled to a high degree of deference on review by appellate courts: Arp, at para. 42; B. (C.R.), at p. 739; Handy, at para. 153. Deference will give way, however, in the face of legal error, a misapprehension of material evidence or an unreasonable result: Luciano, at para. 234.
 A final note concerns the use of evidence of extrinsic misconduct or similar acts. Evidence of extrinsic misconduct or similar acts is evidence of limited admissibility with inherent prejudice. As a result, limiting instructions are required to explain its permitted use and to inoculate jurors against its prohibited use: Luciano, at para. 116; D. (L.E.), at pp. 127-128.