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Similar Facts

. Fitzpatrick v. Orwin

In Fitzpatrick v. Orwin (Ont CA, 2014) the Court of Appeal upheld a trial judge's tort ruling involving a nasty neighbour dispute on circumstantial grounds that may be indistinct from similar facts evidence. A pattern of harassment and abusive treatment by a party was applied to infer a specific extreme act of harassment for which no direct evidence existed:
[22] The inference drawn by the trial judge did not result from speculation. Rather, it was based on his findings of fact and the factual circumstances of the case, including: the ongoing dispute between the parties; the incident that occurred on November 11, the day before the coyote carcass incident; the absence of any motive on the part of anyone else; and the direct evidence of the respondents that, on the morning of November 12, the appellant was waiting for Mr. Squires to leave his home and discover the coyote carcass.

[23] In regard to the last finding, contrary to the appellant’s assertion, the trial judge did acknowledge that Mrs. Squires had not mentioned this when she gave her statement to the police. However, as the trial judge explained at paras. 78-81 of his reasons, they were shocked and upset about the events of November 11-12, 2007, and any discrepancies arose from that.

[24] We do not accept that the present case is similar to 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279, 115 O.R. (3d) 653, the case relied on by the appellant. In Pet Valu, this court found that the trial judge had drawn an inference for which there was no valid evidentiary basis. On the contrary, in the present case, the inference that the trial judge drew was solidly grounded in the evidence. In our view, based on the trial judge’s findings, that inference was virtually inescapable.
. R v C.K.

In R v C.K. (Ont CA, 2015) the Court of Appeal engaged in an extended and useful consideration of the principles involved in admitting similar fact evidence:
C. Ground #1: Similar fact Evidence

[24] At trial, the Crown applied to admit the evidence of each complainant as similar fact evidence for the counts involving the other. The Crown also applied to admit as similar fact evidence the testimony of R.L. and A.G. The trial judge allowed the application and admitted the evidence.

[25] Before this court, the appellant does not challenge the decision to admit the evidence of both complainants as similar fact evidence; however, the appellant maintains his challenge to the evidence of R.L. and A.G.

(1) Trial judge’s decision on similar fact evidence

[26] The trial judge looked at the evidence of R.L. and A.G. in the context of the analysis set out in Handy for the admission of similar fact evidence.

[27] The trial judge noted that, as a starting point, similar fact evidence based on discreditable conduct of an accused is inadmissible. However, the evidence is admissible if the Crown can prove sufficient similarities between the acts the accused is charged with and the offered evidence in relation to a live issue in the trial. She also noted that that the Crown must prove that the probative value of the evidence outweighs any prejudicial effect.

[28] The trial judge concluded that the issue in question, in support of which the similar fact evidence was being proffered, was the actus reus of the alleged offences and whether the appellant’s expected blanket denial was credible.

[29] The trial judge then examined the probative value of the evidence in light of the factors identified in Handy and made the following findings:
(1) Proximity: The sexual contact between R.L. and the appellant was proximate in time to the assaults against the complainants. A.G.’s allegations were not.

(2) Similarity in details: Both complainants and A.G. were children at the time of the alleged acts and the appellant was a father-figure to all three. The appellant also assumed a father-figure role towards R.L. The assaults all began with fondling, and progressed to oral and then anal sex in the case of the complainants and R.L. The assaults occurred in the appellant’s home in the case of all four witnesses and also in public places in the case of the complainants and R.L. The assaults were numerous in the case of both complainants and R.L. The three children were all told that what had occurred was a secret. Money was always involved. The assaults took place over a long period of time, except in the case of A.G.

(3) Number of occurrences: There were numerous sexual acts in the case of R.L., but not in the case of A.G.

(4) Circumstances surrounding the acts: All of the alleged victims were essentially fatherless. The appellant played the role of a father-figure in the case of all four, as the giver of money and affection and the one with whom the complainants and R.L. had a special bond. She noted that A.G. did not have a special bond with the appellant, but he respected his elders and did what he was told. The acts occurred where they could be discovered – in the basement, or, in the case of A.G., a bathroom of the appellant’s home, in the appellant’s car, in parking lots, and in his tour bus.

(5) Distinctive features: The alleged acts often occurred in public areas. The complainants and A.G. were told that the sexual acts were a secret. There was a financial benefit involved for all four, either cash or presents for the complainants, various forms of financial support for R.L., and money for A.G. The trial judge noted that the date and frequency of the sexual acts described by A.G were different from the conduct described by the complainants, and that R.L was older when the sexual activity began.
[30] The trial judge found that the alleged events and the relationship described by R.L. were strikingly similar to those described by the complainants. Moreover, while A.G.’s evidence was separated in time, there was clear similarity to the initial approach to the other three. The trial judge concluded that the Crown had proven on a balance of probabilities that the probative value of the evidence exceeded its prejudicial effect.
(2) Appellant’s submissions

[31] The appellant accepts that the Supreme Court’s decision in Handy governs the admissibility of similar fact evidence. However, the appellant argues that the trial judge erred when applying the framework outlined in Handy.

[32] Broadly speaking, the appellant makes three submissions. First, the trial judge erred in characterizing the issue to which the similar fact related too broadly. Second, the trial judge misapprehended the relevant evidence, and erred by focusing on generic similarities and ignoring differences between the evidence of the complainants on the one hand and R.L. and A.G. on the other. Third, the appellant submits that the evidence admitted was extremely prejudicial.
(3) The trial judge did not characterize the issue too broadly

[33] The trial judge identified the issue in question as the actus reus of the alleged offences in light of the appellant’s blanket denial that there was ever any inappropriate activity between him and his grandsons. As long as its probative value outweighs its prejudicial impact, similar fact evidence may be admitted for the purpose of proving the actus reus of the offence charged and to assess the credibility of a blanket denial: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 46.

[34] This case is distinguishable from R. v. R.B. (2003), 2003 CanLII 13682 (ON CA), 68 O.R. (3d) 75 (C.A.), relied on by the appellant. As noted by Simmons J.A., at paras. 52-54, the trial judge in that case had erred by framing the issue too widely as the credibility of the complainant and the accused. That, in turn, led to the threshold for admitting similar fact evidence being set too low. Here, the trial judge properly confined the issue in question to whether the actus reus of the offences had occurred.

(4) The trial judge did not misapprehend the evidence or err when considering the Handy factors

[35] As noted, the appellant submits that the trial judge misapprehended the evidence before her, and that she focused on generic similarities and ignored differences in the evidence of the complainants on the one hand and each of R.L. and A.G. on the other. I would reject the appellant’s arguments.

[36] The crucial question when determining the admissibility of similar fact evidence is whether, “in the specific context under consideration, the probative value of the [similar fact] evidence in relation to a particular issue outweighs its potential prejudice, thus [warranting] its reception”: R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 89. The similarity may reside in the distinctive nature of the acts at issue or in the circumstances in which those acts occurred: J.M., at para. 91. The degree of similarity required will depend on the issue to which the evidence is directed. This court has held that where the evidence is directed to the actus reus, the similarities do not need to amount to a “signature” for similar fact evidence to be admissible: R. v. J.W., 2013 ONCA 89, 302 O.A.C. 205, at para. 54.

[37] As noted by this court in R. v. Creswell, 2009 ONCA 95, at para. 7, the ruling of a trial judge admitting similar fact evidence is entitled to substantial deference:
It is well-established that a similar fact ruling is entitled to a high degree of deference and that an appellate court will not intervene with the trial judge’s ruling unless the trial judge’s analysis is “unreasonable, or is undermined by…legal error or misapprehension of material evidence”. [Citations omitted.]
[38] In effect, the appellant’s submissions ask this court to reinterpret the evidence and engage in a Handy-analysis afresh. The trial judge conducted a thorough and cogent analysis based firmly in the evidence. The appellant has not demonstrated a legal error in her analysis. Her conclusion, that the connecting factors between the accounts of the complainants on the one hand and those of R.L. and A.G. on the other were so strong that the probative value of the evidence outweighed its prejudicial effect, was reasonable and is entitled to deference. Contrary to the appellant’s assertions, the trial judge properly concluded that there was a considerable degree of connectedness between the evidence of R.L., A.G., and the complainants:
(1) The appellant argues that he did not have a fatherly role with respect to R.L., but there was significant evidence to suggest that he had assumed that role over R.L. after the latter began dating the appellant’s daughter at age 16.

(2) The appellant also argues that he did not have a fatherly role towards A.G., but A.G. testified that he was very respectful of his elders. The trial judge clearly had this in mind when finding that the appellant played a fatherly role towards A.G., particularly given that she noted the absence of any “special bond” between them.

(3) The appellant takes issue with the trial judge’s finding that the assaults all began with fondling and escalated from there. It is true that the sexual activity between the appellant and R.L. began with oral sex, not fondling. But this misstatement of the evidence was minor and immaterial. The point is that, in each case, the invasiveness of the acts increased over time.

(4) The appellant asserts that there was no grooming in the case of R.L. However, there was an element of grooming, as R.L. (like the complainants) was shown pornography by the appellant.

(5) Contrary to the appellant’s assertions, the trial judge did not ignore the dissimilarities between the evidence. She noted the discrepancies, but clearly did not consider them to be sufficiently disparate to make a material difference in the analysis. Her decision is entitled to deference.

(6) The appellant argues that by focusing on the fact that sexual contact occurred in the appellant’s home and in public places, the trial judge focused on generic observations that did not disclose any similarity. However, I would reject that argument. The location where the sexual contacts occurred reveals that, in all cases, the appellant was not inhibited by the possibility that his acts might be discovered by his wife or a member of the public. At the same time, the appellant took advantage of opportunities for privacy in each case.
[39] In this case, the circumstances surrounding the acts bore a striking connectedness. The appellant exploited a privileged position over vulnerable young males – who had little to no relationship with their own fathers and who were in circumstances of financial disadvantage – for his own sexual gratification. Each received some material benefit from the appellant as a result of their sexual interactions with him. He was “the giver of money and affection” and he exploited this role for his own purposes. The present case is very similar to the decision in R. v. B.(C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 739, admitting similar fact evidence that demonstrated a pattern of behaviour in which the accused established a parental relationship with young girls before engaging in sexual activities with them. The similar fact evidence in this case was capable of raising the inference that the appellant had a situation-specific propensity to sexually exploit young males over whom he exerted financial or emotional influence.
. R v T.D.A.

In R v T.D.A. (Ont CA, 2017) the Court of Appeal comments on the evidence law of similar facts in the context of 'collusion':
[6] 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.

[7] 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.

[8] 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), [2002] 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.
[9] 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.

[10] 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.

[11] 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

[12] 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), [2002] 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.
. R. v. McDonald

In this criminal case, R. v. McDonald (Ont CA, 2017), Watt JA usefully eludicates on similar fact evidence (which he calls 'evidence of extrinsic misconduct'):
[75] 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.

[76] 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.

[77] 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.

[78] 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), [2004] 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.

[79] 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.

[80] 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), [1990] 1 S.C.R. 717, at pp. 732-733.

[81] 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).

[82] Turning now to the prejudice associated with the introduction of evidence of extrinsic misconduct or similar acts. There are two general kinds.

[83] 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), [1989] 2 S.C.R. 111, at pp. 127-128.

[84] 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.

[85] 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.

[86] 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.
. R v Arp

In R v Arp (SCC, 1998) the Supreme Court of Canada sets out the proper jury charge on similar fact evidence:
A. Admissibility of Similar Fact Evidence

1. Probative Value

37 This appeal concerns the proper charge to a jury on the use of similar fact evidence. This issue necessarily requires a careful review of the role of the trial judge in considering the admission of similar fact evidence. This is necessary in order to place the function of the jury in weighing similar fact evidence in its proper context.

38 The rule allowing for the admissibility of similar fact evidence is perhaps best viewed as an “exception to an exception” to the basic rule that all relevant evidence is admissible. Relevance depends directly on the facts in issue in any particular case. The facts in issue are in turn determined by the charge in the indictment and the defence, if any, raised by the accused. See Koufis v. The King, 1941 CanLII 55 (SCC), [1941] S.C.R. 481, at p. 490. To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. See Sir Richard Eggleston, Evidence, Proof and Probability (2nd ed. 1978), at p. 83. As a consequence, there is no minimum probative value required for evidence to be relevant. See R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at pp. 199‑200.

39 Evidence of propensity or disposition (e.g., evidence of prior bad acts) is relevant to the ultimate issue of guilt, in so far as the fact that a person has acted in a particular way in the past tends to support the inference that he or she has acted that way again. Though this evidence may often have little probative value, it is difficult to say it is not relevant. In this regard, I disagree in part with Lord Hailsham’s judgment in Director of Public Prosecutions v. Boardman, [1975] A.C. 421. He wrote, at p. 451 that “[w]hen there is nothing to connect the accused with a particular crime except bad character or similar crimes committed in the past, the probative value of the evidence is nil and the evidence is rejected on that ground”. I think this statement may go too far, and find the approach taken by Lamer J., as he then was, in Morris, supra, is more accurate. He stated, at p. 203:
Disposition the nature of which is of no relevance to the crime committed has no probative value and . . . for that reason excluded. But if relevant to the crime, even though there is nothing else connecting the accused to that crime, it is of some probative value, be it slight, and it should be excluded as inadmissible not as irrelevant. [Emphasis added.]
40 Thus evidence of propensity or disposition may be relevant to the crime charged, but it is usually inadmissible because its slight probative value is ultimately outweighed by its highly prejudicial effect. As Sopinka J. noted in R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127‑28, there are three potential dangers associated with evidence of prior bad acts: (1) the jury may find that the accused is a “bad person” who is likely to be guilty of the offence charged; (2) they may punish the accused for past misconduct by finding the accused guilty of the offence charged; or (3) they may simply become confused by having their attention deflected from the main purpose of their deliberations, and substitute their verdict on another matter for their verdict on the charge being tried. Because of these very serious dangers to the accused, evidence of propensity or disposition is excluded as an exception to the general rule that all relevant evidence is admissible.

41 However, as Lord Hailsham stated in Boardman, supra, at p. 453, “what is not to be admitted is a chain of reasoning and not necessarily a state of facts” (emphasis added). That is, disposition evidence which is adduced solely to invite the jury to find the accused guilty because of his or her past immoral conduct is inadmissible. However, evidence of similar past misconduct may exceptionally be admitted where the prohibited line of reasoning may be avoided. In R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, McLachlin J. writing for the majority carefully reviewed the issue of similar fact evidence. She reviewed the reasoning put forward in Boardman, supra, and, at p. 730 observed:
This view of similar fact evidence posits a test which is related to, yet distinct from the general rule that evidence is not admissible if its prejudicial effect outweighs its probative value: see R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272. That rule is an exclusionary rule applied to evidence which would otherwise be admissible. The reverse is the case with similar fact evidence. In determining its admissibility, one starts from the proposition that the evidence is inadmissible, given the low degree of probative force and the high degree of prejudice typically associated with it. The question then is whether, because of the exceptional probative value of the evidence under consideration in relation to its potential prejudice, it should be admitted notwithstanding the general exclusionary rule.
After a review of the other pertinent authorities she concluded at pp. 734‑35:
This review of the jurisprudence leads me to the following conclusions as to the law of similar fact evidence as it now stands in Canada. The analysis of whether the evidence in question is admissible must begin with the recognition of the general exclusionary rule against evidence going merely to disposition. As affirmed in Boardman and reiterated by this Court in Guay, Cloutier, Morris, Morin and D. (L.E.), evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect. In a case such as the present, where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception. The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end of determining whether, in the context of the case before him, the probative value of the evidence outweighs its potential prejudice and justifies its reception.
42 It can be seen that in considering whether similar fact evidence should be admitted the basic and fundamental question that must be determined is whether the probative value of the evidence outweighs its prejudicial effect. As well it must be remembered that a high degree of deference must be given to the decision of a trial judge on this issue. See B. (C.R.), supra, at pp. 732‑33.

43 It follows that where identity is at issue in a criminal case and the accused is shown to have committed acts which bear a striking similarity to the alleged crime, the jury is not asked to infer from the accused’s habits or disposition that he is the type of person who would commit the crime. Instead, the jury is asked to infer from the degree of distinctiveness or uniqueness that exists between the commission of the crime and the similar act that the accused is the very person who committed the crime. This inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable. See Hoch v. The Queen (1988), 165 C.L.R. 292 (Aust. H.C.). That is, there is always a possibility that by coincidence the perpetrator of the crime and the accused share certain predilections or that the accused may become implicated in crimes for which he is not responsible. However, where the evidence shows a distinct pattern to the acts in question, the possibility that the accused would repeatedly be implicated in strikingly similar offences purely as a matter of coincidence is greatly reduced. Sopinka J. in Morin, supra, where similar fact evidence was used to prove identity, made this point clear (at p. 367):
In similar fact cases it is not sufficient to establish that the accused is a member of an abnormal group with the same propensities as the perpetrator. There must be some further distinguishing feature. Accordingly, if the crime was committed by someone with homosexual tendencies, it is not sufficient to establish that the accused is a practising homosexual or indeed has engaged in numerous homosexual acts. The tendered evidence must tend to show that there was some striking similarity between the manner in which the perpetrator committed the criminal act and such evidence.
See also R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.), at p. 496, per Martin J.A. (evidence of propensity is not admissible “unless the propensity is so highly distinctive or unique as to constitute a signature”).

44 Because similar fact evidence is admitted on the basis of an objective improbability of coincidence, the evidence necessarily derives its probative value from the degree of similarity between the acts under consideration. The probative value must, of course, significantly outweigh the prejudice to the accused for the evidence to be admissible. See B. (C.R.), supra. However, the majority in B. (C.R.), at pp. 732‑33, rejected the proposition that the evidence must show a “striking similarity” between the acts in question in order for the evidence to have the requisite probative value. I agree that the requirement of “striking similarity” needs to be qualified. This point is carefully made in R. v. P., [1991] 3 All E.R. 337 (H.L.), where the accused was charged with the rape of both his daughters and with committing incest with them. The counts were tried together, and the evidence of both daughters was admitted in relation to each count to prove the commission of the crime (at p. 348):
When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it, notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, . . . the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle. [Emphasis added.]
Since the evidence of both girls described a prolonged course of conduct involving the use of force and general domination, the circumstances, taken together, gave strong probative force to the evidence of one in respect of the other, notwithstanding that the manner of the commission of the alleged crimes did not disclose a “striking similarity”.

45 Instead, a principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement in the alleged similar acts or counts is unlikely to be the product of coincidence. This conclusion ensures that the evidence has sufficient probative force to be admitted, and will involve different considerations in different contexts. Where, as here, similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trademark or signature will automatically render the alleged acts “strikingly similar” and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence. Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed ‑‑ that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities. This review will enable him or her to decide whether the alleged similar acts were all committed by the same person. This preliminary determination establishes the objective improbability that the accused’s involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force. Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi‑count indictment) may be admitted to prove the commission of another act (or count).

46 By way of summary, McLachlin J.’s statement of the law relating to the admissibility of similar fact evidence in R. v. C. (M.H.), 1991 CanLII 94 (SCC), [1991] 1 S.C.R. 763, is apt. She put the proposition with great clarity, at pp. 771‑72:
Such evidence is likely to have a severe prejudicial effect by inducing the jury to think of the accused as a “bad” person. At the same time it possesses little relevance to the real issue, namely, whether the accused committed the particular offence with which he stands charged. There will be occasions, however, where the similar act evidence will go to more than disposition, and will be considered to have real probative value. That probative value usually arises from the fact that the acts compared are so unusual and strikingly similar that their similarities cannot be attributed to coincidence. Only where the probative force clearly outweighs the prejudice, or the danger that the jury may convict for non‑logical reasons, should such evidence be received.
47 C. (M.H.), supra, left open the issue as to the standard of proof which should be applied by the trial judge where similar fact evidence is adduced to prove identity. In this regard, it must be remembered that the admissibility of similar fact evidence involves an analysis not normally undertaken by a trial judge. As a general rule, a trial judge will admit evidence shown to be relevant, and will not engage in an evaluation of the probative value or weight of the evidence. If the trial judge is called on to make a preliminary finding of fact as a precondition to admissibility, this finding is usually unrelated to the quality or reliability of the evidence itself. See R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, at p. 474. Indeed, the judge must refrain from evaluating the quality, weight or reliability of evidence when determining admissibility since the weight to be given to evidence is properly the province of the jury. See R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679. However, in determining the admissibility of similar fact evidence the trial judge must, to a certain extent, invade this province. As Professor Smith stated in Case and Comment on R. v. Hurren, [1962] Crim. L. Rev. 770, at p. 771:
It should be noted that judges commonly distinguish facts as going to weight rather than admissibility (see, e.g., R. v. Wyatt); but it is submitted that, as regards similar fact evidence, no sharp line can be drawn and that admissibility depends on weight.
48 Thus, where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted. Where the fact in issue is the identity of the perpetrator of the crime, then in the usual course of events the trial judge must assess the degree of similarity demonstrated by the manner in which the acts in question were committed to determine whether it is likely the same person committed the alleged similar acts. Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question.

49 In determining whether similar fact evidence should be admitted to prove identity, the trial judge must have regard to the manner in which the alleged similar acts were committed. In general, evidence linking the accused to each alleged similar act should not be part of this evaluation. As Peter K. McWilliams, states in Canadian Criminal Evidence (3rd ed. 1988 (loose‑leaf)), at p. 11‑26.1, “[t]he link [to the accused] . . . is distinct from the link or nexus . . . which goes to the nature of the act and relates to its similarity or relevancy which is such as to overcome the general exclusionary rule” (emphasis in original). This distinction is made clear in Case and Comment on R. v. Brown, Wilson, McMillan and McClean, [1997] Crim. L. Rev. 502, at p. 503 (as reported by Richard Percival):
. . . There was evidence of striking similarities between the two groups of offences, and there was a signature or other special feature. . . . Once there was this link between the groups of offences, then evidence that linked a defendant with each group of offences was admissible against him on the other group. [Emphasis added.]
See also R. v. Barnes, [1995] 2 Cr. App. R. 491 (C.A.), at pp. 496‑98. In other words, the similarity of the acts indicates whether one person committed the crimes; in most cases, evidence as to the accused’s connection to each similar act indicates whether the accused committed the crimes. Only after the trial judge has considered the manner of the commission of the similar acts and is satisfied that there is evidence which could lead the jury to conclude that all the acts were committed by one person should he or she admit the evidence related to each act for the jury’s consideration, including the evidence of the accused’s involvement in each similar act.

50 In summary, in considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determine whether the probative value of the evidence outweighs its prejudicial effect. In most cases where similar fact evidence is adduced to prove identity it might be helpful for the trial judge to consider the following suggestions in deciding whether to admit the evidence:
(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities.

(2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused’s involvement in each act.

(3) There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.

(4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused’s guilt for any one act.
Once again these are put forward not as rigid rules but simply as suggestions that may assist trial judges in their approach to similar fact evidence.

51 The test for admissibility of similar fact evidence adduced to prove identity is the same whether the alleged similar acts are definitively attributed to the accused, or are the subject of a multi‑count indictment against the accused. See Boardman, supra, at p. 896, per Lord Wilberforce.

52 However, where the similar acts are alleged as part of a multi‑count indictment, the consideration of the admissibility of similar fact evidence will have to be taken into account in deciding whether the counts should be severed. Nevertheless, the trial judge should be careful not to confuse admissibility with severance. A motion to sever under s. 591(3)(a) of the Code must be brought by the accused, who bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance. Yet the burden of demonstrating that similar fact evidence should be admitted must be borne by the Crown. These respective burdens may involve the consideration of similar factors, but as Lord Scarman noted in R. v. Scarrott (1977), 65 Cr. App. R. 125 (C.A.), at p. 135, “[i]t does not follow that because a multi‑count indictment has been allowed to proceed that therefore the evidence given will be evidence on all the counts contained in the indictment”. Thus, to paraphrase the Manitoba Court of Appeal in R. v. Khan (1996), 1996 CanLII 7296 (MB CA), 49 C.R. (4th) 160, at p. 167, notwithstanding the trial judge’s refusal to sever the counts in a multi‑count indictment, it remains open to him or her, as the evidence progresses at trial, to determine as a matter of law that evidence on one count is not admissible as similar fact evidence on the other counts. The assessment of similar fact evidence and the determination of its probative value and admissibility places an onerous burden* on the trial judge. It is a task that must be undertaken with great care.

2. Link to the Accused

53 Where the similar fact evidence adduced to prove identity suggests that the same person committed the similar acts, then logically this finding makes the evidence linking the accused to each similar act relevant to the issue of identity for the offence being tried. Similarly, in a multi‑count indictment, the link between the accused and any one count will be relevant to the issue of identity on the other counts which disclose a striking similarity in the manner in which those offences were committed.

54 A link between the accused and the alleged similar acts is, however, also a precondition to admissibility. This requirement was set forth in R. v. Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at p. 954:
Before evidence may be admitted as evidence of similar facts, there must be a link between the allegedly similar facts and the accused. In other words there must be some evidence upon which the trier of fact can make a proper finding that the similar facts to be relied upon were in fact the acts of the accused for it is clear that if they were not his own but those of another they have no relevance to the matters at issue under the indictment.
Similarly, in Harris v. Director of Public Prosecutions, [1952] A.C. 694 (H.L.), it was held, at p. 708, that “evidence of ‘similar facts’ cannot in any case be admissible to support an accusation against the accused unless they are connected in some relevant way with the accused and with his participation in the crime”.

55 Should the trial judge be required to conclude not only that the evidence suggests that the acts are the work of one person with sufficient force to outweigh the prejudicial effect of the evidence, but that they also are likely the acts of the accused? This is the approach advocated by Professor R. Mahoney in “Similar Fact Evidence and the Standard of Proof”, [1993] Crim. L. Rev. 185, at pp. 196‑97, and is implicitly favoured by those courts which have endorsed the “anchor” or “sequential” approach to similar fact evidence. See, e.g., R. v. Ross, 1980 CanLII 3023 (BC CA), [1980] 5 W.W.R. 261 (B.C.C.A.); R. v. J.T.S., [1997] A.J. No. 125 (QL) (C.A.).

56 The suggestion that the evidence linking the accused to the similar acts must also link the acts to the accused goes too far. Once the trial judge has concluded that the similar acts were likely the work of one person and that there is some evidence linking the accused to the alleged similar acts, it is not necessary to conclude that the similar acts were likely committed by the accused. The answer to this question may well determine guilt or innocence. This is the very question which the trier of fact must determine on the basis of all the evidence related to the similar acts, including of course the accused’s involvement in each act. The standard set out in Sweitzer should be maintained. This only requires that the trial judge be satisfied that there is some evidence which links the accused to the similar acts.

57 Nevertheless, it must be noted that both Sweitzer, supra, and Harris, supra, suggest that evidence of mere opportunity will not suffice to establish a sufficient “link to the accused” to render similar fact evidence admissible. This limitation is explained by Viscount Simon’s statement in Harris, supra, at p. 708 that the similar acts must be connected “in some relevant way with the accused and with his participation in the crime” (emphasis added). Evidence of mere opportunity showing no more than the possibility that the similar act is that of the accused will not suffice to show the accused’s participation in the alleged similar act. Though the low standard set in Sweitzer is appropriate and flexible, evidence which discloses no more than a mere possibility that the alleged similar act is the act of the accused will not suffice to render the similar fact evidence admissible.



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