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Criminal - Criminal Proceedings Rules (CPR). R. v. P.N.W.
In R. v. P.N.W. (Ont CA, 2024) the Divisional Court considered the 'similar fact' evidence doctrine:[19] This court canvassed the legal principles relating to the governing rule, the similar fact evidence rule – particularly in the context of the use of evidence across counts – in R. v. Tsigirlash, 2019 ONCA 650, and it is not necessary to repeat that analysis here. In short, the general rule is that evidence of discreditable conduct by the accused is presumptively inadmissible, unless that conduct is the subject matter of the charge. Where, as in the proceeding below, the Crown seeks to use extrinsic discreditable conduct evidence or discreditable conduct evidence admissible on one count to prove a separate count, the evidence will be inadmissible unless the discreditable conduct meets the test for similar fact evidence. The Crown was required to make an application under rr. 30.01-30.05 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7, a step intended to give the defence a meaningful opportunity to respond to the admission of the evidence.
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[21] However, in this instance the error was harmless. The neighbour’s evidence of numerous confrontations could have been called for no other reason than to establish a pattern of violence by the appellant against C.R. The appellant had to have understood this was the Crown’s purpose in eliciting evidence from the appellant’s neighbour and did not object to it. In its closing arguments, the Crown invited the trial judge to use the neighbour’s testimony both to find it more likely that the assaults occurred, and to lend credibility to C.R.’s own testimony about the assaults. The Crown went on to suggest that “similar fact evidence about what had been going on in that relationship” lent credibility to C.R.’s testimony on count 6. Again, there was no objection. The presence of nearly identical factors led this court, in R. v. Graham, 2015 ONCA 113, 330 O.A.C. 394, to conclude that there was no procedural unfairness to the defendant in admitting similar fact evidence without a formal application. In this case these factors also mitigated any risk of unfairness to the appellant.
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