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Evidence - Identification (3). R. v. Vu
In R. v. Vu (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal Crown appeal, here from "acquittals on two counts of sexual assault and one count of forcible confinement."
The court considers 'similar fact' evidence, here in an identification context:[36] Similar act evidence is presumptively inadmissible. The Crown holds the onus of establishing, on a balance of probabilities, that the evidence should be admitted. That onus is met where the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. Although the trial judge did not refer to any case law, he correctly summarized these legal principles.
[37] The probative value of the evidence comes from the objective improbability of coincidence: Handy, at paras. 47-48. The prejudice comes from both moral and reasoning prejudice that may result from the admission of the evidence. Moral prejudice concerns itself with whether the trier of fact will decide the case based upon the perceived bad character of the accused. Reasoning prejudice comes from the injection of delay and complexity into the trial: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 65, 68; Handy, at para. 31. Some of these concerns are attenuated in judge-alone trials such as this one: R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 88; R. v. T.B., 2009 ONCA 177, 95 O.R. (3d) 21, at paras. 27, 33; and R. v. MacCormack, 2009 ONCA 72, 95 O.R. (3d) 21, at paras. 56, 68-69.
[38] As the trial judge noted, where the proposed evidence is directed at the issue of identity, the law insists upon a “high degree of similarity” or “striking” similarity”: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 45; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 20; R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 98; and R. v. Atwima, 2022 ONCA 268, 161 O.R. (3d) 481, at para. 39. The reason for a heightened bar for similarity relates to the driver of cogency when it comes to the similar act evidence being used to establish identity: “the improbability that two persons would display the same configuration of matching characteristics in committing a crime”: Perrier, at para. 19; see also, Handy, at para. 78; and Atwima, at para. 39.
[39] There exist occasions where acts are so strikingly similar that they will constitute the offender’s signature or trademark: Arp, at para. 45; see e.g., R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716, at paras. 5, 10, 12, and 24. In those situations where signatures or trademarks do not exist, striking similarities can still arise from an “accumulation of commonalities” that, when considered together, are sufficient to reveal an improbability of coincidence that two or more people would display these matching characteristics: Arp, at para. 45; Handy, at para. 81.
[40] In assessing whether the proffered evidence has this cumulative effect, Binnie J. in Handy, at para. 82, provided a list of helpful considerations:(a) proximity in time between the acts;
(b) the extent to which they are similar in detail;
(c) the number of acts said to be similar;
(d) the circumstances surrounding or relating to the acts;
(e) the distinctive feature(s) that may be involved in the acts;
(f) whether there exist any intervening events; and
(g) “any other factor which would tend to support or rebut the underlying unity of the similar acts.” [41] Accordingly, similar act evidence is not considered on a piecemeal basis. Rather, the goal is to consider whether the similarities, viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actor. If so, the trial judge must go on to the second stage and determine whether the evidence is linked in some way to the accused: R. v. Woodcock, (2003), 2003 CanLII 6311 (ON CA), 14 C.R. (6th) 155 (Ont. C.A.), at para. 81; Arp, at paras. 54-56. There need only be “some evidence” linking the accused to the acts: R. v. Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at p. 954; Perrier, at para. 24; Durant, at para. 91; and Atwima, at para. 42. To be sure, this is a “low evidentiary threshold”: Jesse, at para. 63.
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