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Similar Facts

. R v Handy

R v Handy (SCC, 2002) is a leading case from the Supreme Court of Canada on similar fact evidence:
III. Analysis

24 The trial judge admitted the similar fact evidence in this case because he thought the way the respondent “acted on previous occasions with [his ex-wife], may very well assist the jury in determining how he acted with [the complainant]”. The common thread, according to the Crown, is that the respondent derives pleasure from inflicting pain on a sexual partner and insists on sex “his way” irrespective of consent.

25 From the respondent’s point of view, introduction of the similar fact evidence radically changed the trial. He was on trial for one incident, to which he pleaded not guilty, but was instead confronted with eight different incidents, of which seven were not the subject matter of any charge. The jury might conclude that a man with a track record of discreditable treatment of his ex-wife in their sexual relations would be acting in character by forcing himself on the resisting complainant, but this he says was unfair because it bolstered the complainant’s credibility by exogenous evidence that related neither to the complainant nor to the charge. At the least the jury might conclude that the respondent was a repugnant individual deserving of punishment and a conviction would, as a matter of rough equivalence, give him his just desserts.

A. The Disputed Inferences

26 The ex-wife’s testimony relates to incidents removed in time, place and circumstances from the charge. It is thus only circumstantial evidence of the matters the jury was called on to decide and, as with any circumstantial evidence, its usefulness rests entirely on the validity of the inferences it is said to support with respect to the matters in issue. The argument for admitting this circumstantial evidence is that the jury may infer firstly that the respondent is an individual who derives pleasure from sex that is painful to his partner, and will not take no for an answer, and secondly, that his character or propensity thus established gives rise to the further inference that he proceeded wilfully in this case knowing the complainant did not consent. As stated by Wilson J. in R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at p. 943:
In discussing the probative value we must consider the degree of relevance to the facts in issue and the strength of the inference that can be drawn.
See also R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 50 C.R. (4th) 245 (Ont. C.A.), at p. 258, per Doherty J.A.; R. v. B. (L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), at p. 45, per Charron J.A. See also: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at § 11.113; D. M. Paciocco and L. Stuesser, The Law of Evidence (2nd ed. 1999), at pp. 39-41; Cross and Tapper on Evidence (9th ed. 1999), at pp. 350 et seq.; Wigmore on Evidence, vol. 1A (Tillers rev. 1983), at pp. 1152-53.

27 The contest over the admissibility of similar fact evidence is all about inferences, i.e., when do they arise? What are they intended to prove? By what process of reasoning do they prove it? How strong is the proof they provide? When are they so unfair as to be excluded on the grounds of judicial policy and the presumption of innocence? The answers to these questions have proven so controversial as to create what Lord Hailsham described as a “pitted battlefield”: Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.), at p. 445.

28 There is more consensus on the nature of the problems than there is on the correctness of the solutions: compare the differing approaches in R. J. Delisle, “The Direct Approach to Similar Fact Evidence” (1996), 50 C.R. (4th) 286; A. E. Acorn, “Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense” (1991), 11 Oxford J. Legal Stud. 63; P. K. McWilliams, Canadian Criminal Evidence (3rd ed. (loose-leaf)), vol. 1, at p. 11-4; M. Rosenberg (now J.A.), “Evidence of Similar Acts and Other Extrinsic Misconduct”, in National Criminal Law Program, Criminal Evidence (1994), section 8.1, at p. 3; and L. Stuesser, “Similar Fact Evidence in Sexual Offence Cases” (1997), 39 Crim. L.Q. 160.

29 The immediate questions are whether the double inferences are properly raised on the facts of this case, and if so, whether they add such probative strength in the circumstances here that the ex-wife’s evidence ought to be admitted despite the potential prejudice. The respondent says that the so-called similar facts are insufficiently connected in time and circumstances to the offence charged, i.e., there is an insufficient nexus to make the conduct with his ex-wife a reliable guide to his alleged conduct with the complainant. Moreover, even if they are, he says he should not as a matter of policy be put at risk of conviction by confusing the jury about what he allegedly did in other times and at other places.

30 I should note that the Crown did not attempt to call any expert evidence in relation to the validity of the inferences respecting the respondent’s psychological make-up that it sought to have the jury draw from the ex-wife’s evidence and their applicability to the facts in issue.

B. The General Exclusionary Rule

31 The respondent is clearly correct in saying that evidence of misconduct beyond what is alleged in the indictment which does no more than blacken his character is inadmissible. Nobody is charged with having a “general” disposition or propensity for theft or violence or whatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on the ex-wife’s testimony (“reasoning prejudice”) or by convicting based on bad personhood (“moral prejudice”): Great Britain Law Commission, Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996), at § 7.2.

32 This is a very old rule of the common law. Reference may be made to seventeenth-century trials in which the prosecution was scolded for raising prior felonious conduct, as for example to Lord Holt C.J. in Harrison’s Trial (1692), 12 How. St. Tr. 833 (Old Bailey (London)), at p. 864: “Are you going to arraign his whole life? Away, Away, that ought not to be; that is nothing to the matter.”33 Subsequently, and most famously, the general exclusionary rule was laid down by Lord Herschell L.C. Makin v. Attorney-General for New South Wales, [1894] A.C. 57 (P.C.), in these terms, at p. 65:
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew 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.
34 The court spoke there of “criminal acts”, but this has been broadened to include any proffered “similar facts” of a discreditable nature (Robertson, supra, at p. 941; B. (L.), supra, at pp. 45-46), a category which includes the conduct alleged by the ex-wife in this case.

35 The dangers of propensity reasoning are well recognized. Not only can people change their ways but they are not robotic. While juries in fourteenth-century England were expected to determine facts based on their personal knowledge of the character of the participants, it is now said that to infer guilt from a knowledge of the mere character of the accused is a “forbidden type of reasoning”: Boardman, supra, at p. 453, per Lord Hailsham.

36 The exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial. See Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339.

Policy Basis for the Exclusion

37 The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible: Arp, supra, at para. 38; Robertson, supra, at p. 941; Morris, supra, at pp. 201-2; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 613.

38 If propensity evidence were routinely admitted, it might encourage the police simply to “round up the usual suspects” instead of making a proper unblinkered investigation of each particular case. One of the objectives of the criminal justice system is the rehabilitation of offenders. Achievement of this objective is undermined to the extent the law doubts the “usual suspects” are capable of turning the page and starting a new life.

39 It is, of course, common human experience that people generally act consistently with their known character. We make everyday judgments about the reliability or honesty of particular individuals based on what we know of their track record. If the jurors in this case had been the respondent’s inquisitive neighbours, instead of sitting in judgment in a court of law, they would undoubtedly have wanted to know everything about his character and related activities. His ex-wife’s anecdotal evidence would have been of great interest. Perhaps too great, as pointed out by Sopinka J. in B. (C.R.), supra, at p. 744:
The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning.
40 The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror’s ear, “swift as quicksilver it courses through the natural gates and alleys of the body”: Hamlet, Act I, Scene v, ll. 66-67.

C. The Narrow Exception of Admissibility

41 While emphasizing the general rule of exclusion, courts have recognized that an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse, per Sopinka J., dissenting, in B. (C.R.), supra, at p. 751:
The fact that the alleged similar facts had common characteristics with the acts charged, could render them admissible, and, therefore, supportive of the evidence of the complainant. In order to be admissible, however, it would be necessary to conclude that the similarities were such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence . . . . [Emphasis added.]
42 The “common sense” condemnation of exclusion of what may be seen as highly relevant evidence has prompted much judicial agonizing, particularly in cases of alleged sexual abuse of children and adolescents, whose word was sometimes unfairly discounted when opposed to that of ostensibly upstanding adults. The denial of the adult, misleadingly persuasive on first impression, would melt under the history of so many prior incidents as to defy innocent explanation. That said, there is no special rule for sexual abuse cases. In any case, the strength of the similar fact evidence must be such as to outweigh “reasoning prejudice” and “moral prejudice”. The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence. Although an element of “moral prejudice” may be introduced, it must be concluded by the trial judge on a balance of probabilities that the probative value of the sound inferences exceeds any prejudice likely to be created.

43 As set out in the dissenting reasons of Dickson J., concurred in by Laskin C.J., in Leblanc v. The Queen, 1975 CanLII 190 (SCC), [1977] 1 S.C.R. 339, at p. 345: “There is, however, a limited but legitimate area of exception to the general exclusionary rule that the accused has only to answer the specific charge contained in the indictment.”

44 The criminal trial is, after all, about the search for truth as well as fairness to an accused. Thus Lord Herschell L.C., in what is called the second “branch” of Makin, supra, said at p. 65:
On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.
45 In Makin itself, the death of one small child found buried in the back garden of the accused could conceivably be thought to be from natural or perhaps accidental causes, but when numerous other bodies were later dug up in the same backyard and at previous residences of the accused, the coincidence of so many premature deaths by innocent causes of babies of recent good health defied belief. Coincidence, as an explanation, has its limitations. As it was put in one American case: “The man who wins the lottery once is envied; the one who wins it twice is investigated” (United States v. York, 933 F.2d 1343 (7th Cir. 1991), at p. 1350).

46 It was thus held in Makin that the accumulation of babies found dead in similar circumstances permitted, in relation to the accused, the double inferences of propensity mentioned above. The improbability of an innocent explanation was manifest.

Policy Basis for the Exception

47 The policy basis for the exception is that the deficit of probative value weighed against prejudice on which the original exclusionary rule is predicated is reversed. Probative value exceeds prejudice, because the force of similar circumstances defies coincidence or other innocent explanation.

48 Canadian case law recognizes that as the “similar facts” become more focussed and specific to circumstances similar to the charge (i.e., more situation specific), the probative value of propensity, thus circumscribed, becomes more cogent. As the differences and variables that distinguish the earlier “similar facts” from the subject matter of the charge in this type of case are reduced, the cogency of the desired inferences is thought to increase. Ultimately the policy premise of the general exclusionary rule (prejudice exceeds probative value) ceases to be true.

D. The Test of Admissibility

49 The present rule was succinctly formulated by McIntyre J. in Sweitzer v. The Queen, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at p. 953:
The general principle described by Lord Herschell may and should be applied in all cases where similar fact evidence is tendered and its admissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission whatever the purpose of its admission.
50 The rule received more extended and comprehensive treatment by McLachlin J. in B. (C.R.), supra, itself. The accused was charged with sexual offences against his daughter. The daughter testified that the alleged acts began when she was 11 years old and continued for two years. The accused denied the allegations. In support of the child’s testimony, the Crown sought to adduce evidence showing that 10 years earlier, the accused had had sexual relations with his common-law wife’s 15-year-old daughter, with whom he had enjoyed a father-daughter relationship. Writing for a five-judge majority, McLachlin J. held that the evidence, though “borderline”, was admissible. Although evidence relating solely to the accused’s disposition will generally be excluded, exceptions to this rule will arise when the probative value of the evidence outweighs its prejudicial effect (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. . . . [E]vidence 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.
51 The Court thus affirmed that evidence classified as “disposition” or “propensity” evidence is, exceptionally, admissible. McLachlin J. continued at p. 735:
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.
52 McLachlin J. formulated the test for admissibility of disposition or propensity evidence, at p. 732:
. . . evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.
53 Subsequently, in R. v. C. (M.H.), 1991 CanLII 94 (SCC), [1991] 1 S.C.R. 763, McLachlin J. referred to B. (C.R.) as the governing authority (at pp. 771-72), as did a unanimous Court almost a decade later in its most recent pronouncement on the topic, in Arp, supra, per Cory J., at para. 41:
. . . 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. [Emphasis added.]
54 Cory J. added some observations in Arp at para. 80 about the trial judge’s instructions to the jury about the use to be made of propensity evidence. These observations should not be taken out of context. Contrary to some commentary, Arp did not qualify the Court’s endorsement of the general test set out in B. (C.R.) as is evident from Cory J.’s repeated references thereto (at paras. 42, 50 and 65):
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.

...

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.

...

The issue in every case is whether the probative value of the evidence outweighs its prejudicial effect. [Emphasis added.]
The B. (C.R.) test can thus be taken as stating the law in Canada.

55 Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.


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