Barrister and Solicitor
Legal Writing and Research
Evidence - Similar Facts - Collusion
R v T.D.A. (Ont CA, 2017)
In this case the Court of Appeal comments on the evidence law of similar facts in the context of 'collusion':
 The appellant’s principal submission concerning the admission of the similar fact evidence turns on the issue of collusion. He submits that the trial judge erred in finding that the Crown had met its burden of showing, on a balance of probabilities, that the evidence of the similar fact witnesses was not tainted by collusion.
 On this issue, the Crown conceded the evidence was sufficient to establish “an air of reality” respecting potential collusion, and the defence conceded that there was no direct evidence of collusion and no evidence of deliberate concoction by either witness. While counsel sought to blunt the defence concessions in oral argument, on our view of the record the trial judge was entitled to proceed on the basis he did.
 In conducting his admissibility analysis, the trial judge considered and applied the relevant legal principles relating to collusion in the similar fact context, as canvassed in R. v. Dorsey, 2012 ONCA 185 (CanLII), 289 O.A.C. 118, at para. 26; R. v. C.B. (2003), 2003 CanLII 32894 (ON CA), 167 O.A.C. 264 (Ont. C.A.) at paras. 36, 39 and 40; and R. v. Shearing, 2002 SCC 58 (CanLII),  3 S.C.R. 33, at para. 44. In particular, he noted the following passage from this Court’s decision in C.B., at para. 40:
Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events. The trial judge was alive to the appellant’s argument that the facts lending an air of reality to collusion could – and, in this case, did – rise to the level of inadvertent or unconscious collusion or collaboration. He dealt with this argument directly, in particular by addressing the four primary points relied on by the defence as the basis for collusion, namely:
(i) that the two witnesses had been told by the complainant’s step-mother (the appellant’s daughter) what had allegedly happened to the complainant before they went to the police;
(ii) both witnesses were at the preliminary hearing and heard the complainant’s testimony;
(iii) both witnesses were told by a private investigator, hired by the complainant’s father in connection with the complaint and a civil suit against the appellant, that if they had any evidence to disclose it would help the complainant, and that both gave very similar and very generic statements to the investigator; and
(iv) that the complainant’s step-mother had told them that if they disclosed what had happened to them, it would help the complainant.
 The appellant submits that, in spite of these concerns, the trial judge subjected them to little or no analysis. We disagree. The trial judge conducted a very thorough analysis of the evidence, including that of the two similar fact witnesses. He found that they gave their evidence in a straightforward manner, with few inconsistencies, and that their evidence was reliable and capable of belief. Referring to Shearing, at para. 44, he recognized there was a possibility that by “the sharing of the stories” with one another the witnesses may have intentionally or accidentally allowed themselves to modify their stories to make their testimony seem more similar. He concluded, however, that the evidence did not go beyond mere possibility or opportunity in this case. He was satisfied, for purposes of the threshold admissibility analysis, that the Crown had shown on a balance of probabilities that the proffered evidence was not tainted by collusion.
 The appellant effectively urges us to re-assess the evidence and arrive at a different conclusion. We see no basis for doing so. In our view, the trial judge properly exercised his important gatekeeper role. He examined the evidence and found the witnesses credible and reliable. He applied the relevant legal principles. His decision regarding the collusion issue is entitled to deference on appeal
 In other respects, the trial judge very carefully reviewed and applied the relevant principles for the admission of similar fact evidence, generally, as set out in R v. Handy, 2002 SCC 56 (CanLII),  2 S.C.R. 908, at paras. 104-112. He was satisfied that the probative value of the proffered evidence outweighed its potential prejudice and that the witnesses had not colluded together in respect of their testimony. He found that the relevant criteria had been met, and ruled the similar fact evidence admissible.