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Similar Facts II

. R v Cole

In R v Cole (Ont CA, 2021) the Court of Appeal considered 'evidence of extrinsic misconduct' (apparently the same thing as similar fact evidence):
The governing legal principles

[79] Evidence of extrinsic misconduct is prima facie inadmissible, and therefore only exceptionally admissible, because it “brings baggage to the trial”: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 219; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 37. Indeed, it can create “reasoning prejudice” by distracting jurors from their proper focus on the charge particularized in the indictment and by lengthening the trial process: Luciano, at para. 220. The admission of extrinsic misconduct evidence can also adversely affect the ability of accused persons to defend the charged offences, since resisting proof of the extrinsic misconduct will invariably consume what are often limited defence resources: Handy, at para. 146.

[80] Admitting extrinsic evidence also creates the risk of “moral prejudice” by showing that the person charged has a discreditable, or even a criminal disposition, the kind of person capable of committing the charged offence: Luciano, at paras. 219; Handy, at para. 139. Put another way, if the trier of fact learns of the bad character of the accused, they may more readily believe the criminal allegation, or to think that the accused otherwise deserves to be punished.

[81] As such, extrinsic misconduct evidence is only admissible in those exceptional cases where the benefits of admission outweigh the costs. The test that provides for the exceptional admissibility of presumptively inadmissible extrinsic evidence of misconduct was settled in Handy, at para. 55:
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.
[82] As Binnie J. made clear in Handy, at para. 76, “[t]he principal driver of probative value … is the connectedness (or nexus) that is established between the similar fact evidence and the offences alleged”. Connectedness refers to the logical chain of permissible reasoning that enables the extrinsic evidence to inform the issue the evidence is offered to prove. Therefore, for a proper evaluation of connectedness to occur, the issue that the extrinsic misconduct evidence bears upon must be precisely identified: Luciano, at para. 230.

[83] Evidence of extrinsic misconduct which does no more than “blacken” an accused’s character is inadmissible: Handy, at para. 31. In other words, a chain of reasoning between the extrinsic misconduct evidence and the issue sought to be proved will not be permissible if its relevance depends on the inference that the extrinsic misconduct evidence shows the accused to have the kind of general discreditable disposition or bad character to be capable of committing the offence charged: Handy, at paras. 31-36, 65, and 68. To fortify a conviction by relying on the general inference that ‘the accused is the type of person to commit this kind of offence so they may have done so’ carries the risks of illogically and unfairly disregarding the possibility of rehabilitation, and encouraging the police to “round up the usual suspects”: Handy, at para. 38.

[84] In addition, convicting a person because of the type of individual they are, rather than what they are proved to have done, is contrary to the basic principle that an accused person is presumed innocent unless and until the Crown proves that they have committed the specific offence alleged: Luciano, at para. 219; Handy, at para. 43.
. R. v. Z.W.C.

In R. v. Z.W.C. (Ont CA, 2021) the Court of Appeal considered a similar fact evidence issue in a criminal sexual assault case [additional at paras 106-114, 122-128]:
[96] The starting point, however, is that evidence of the accused’s uncharged prior discreditable conduct is presumptively inadmissible. This is due to the exclusionary rule against evidence of general propensity, disposition, or bad character: Handy, at para. 36. See also Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at pp. 201-2, per Lamer J. (dissenting, but not on this point); R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 367-68; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 734-35; and R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 40. Evidence of general propensity, disposition, or bad character is inadmissible if it only goes to establishing that the accused is the type of person likely to have committed the offence(s) in question: Handy, at para. 53, citing Arp, at para. 41. See also J.A.T., at para. 51; R. v. R.O., 2015 ONCA 814, 333 C.C.C. (3d) 367, at para. 15. Such evidence is also generally inadmissible when it is tendered to establish character, as circumstantial proof of the accused’s conduct: Handy, at para. 31; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 221.

[97] This rule of exclusion does, however, yield on “exceptional” occasions: Handy, at paras. 60, 64. Evidence of uncharged prior discreditable conduct may be admitted if it is relevant, material, and the Crown establishes, on the balance of probabilities, that its probative value outweighs its prejudicial effect: J.H., at para. 54, citing Handy, at para. 55; Luciano, at para. 222; and J.A.T., at para. 51. In J.H., at paras. 56-60, Watt J.A. described the procedure to determine the admissibility of such evidence on a Crown application.

[98] The assessment of the probative value of the evidence requires the trial judge to consider: (a) the strength of the evidence that the extrinsic acts in question occurred; (b) the connection between the accused and the similar acts, and the extent to which the proposed evidence supports the inferences the Crown seeks to make (sometimes referred to as the “connectedness” between the similar act evidence and the “questions in issue”); and (c) the materiality of the evidence – that is, the extent to which the matters the evidence tends to prove are live issues in the proceeding: see David Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at pp. 74-75.

[99] The second and third factors must not be glossed over. The Crown must be prepared to establish exactly what inferences it will be asking the jury to draw from the evidence, and the extent to which the evidence tends to permit those inferences.

[100] Defence counsel should also be prepared to identify, to the extent possible, the issues that will actually be in play at trial. This may serve to eliminate the Crown’s need to adduce the evidence, or to limit the evidence required.

[101] Having assessed the probative value of the evidence, and the issues to which it is relevant, the trial judge must examine the prejudicial effect of the proffered evidence and balance it against its probative value. It is well-established that “prejudice” in this context comes in two forms: so-called “moral prejudice” and “reasoning prejudice.”

[102] Moral prejudice refers to the risk that the jury may convict the accused on the basis of “bad personhood”: R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 83, citing Handy, at paras. 31, 71, 100, and 139. That is, not on the basis of the evidence, but on the basis that the accused is a bad person who is likely to have committed the offences with which they are charged. There is a related concern that the jury may punish the accused for their “prior bad acts” as revealed in the evidence of the uncharged prior discreditable conduct: R. v. D.(L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-28.

[103] Reasoning prejudice, in contrast, diverts the jury from its task, and describes the risk that the jury will give the evidence more weight than is logically justified: see R. v. Bent, 2016 ONCA 651, 342 C.C.C. (3d) 343, at para. 46; R. v. Lo, 2020 ONCA 622, at para. 111; Handy, at para. 31. Reasoning prejudice may include the following:

• The jury becomes confused by evidence extrinsic to the charges on the indictment. Specifically, the jury “may become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations from their task of deciding carefully each charge one by one”: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68;

• The jury is distracted from the actual charges, and confused about which evidence relates to the crime charged and which evidence relates to the “similar fact” incidents: Handy, at para. 100;

• The evidence awakens in the jury sentiments of revulsion and condemnation that deflect them from “the rational, dispassionate analysis upon which the criminal process should rest”: Calnen, at paras. 176, 180, per Martin J. (dissenting in part, but not on this point);

• The accused cannot properly respond to the extrinsic evidence due to the passage of time, surprise, and/or the collateral nature of the inquiry: Paciocco, at p. 70; and

• Trial time is consumed by unduly focusing on whether the similar acts occurred: Handy, at paras. 83, 144. See also R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 39.

[104] In assessing the prejudicial effect of the evidence, the trial judge may consider a variety of factors, including: (a) how discreditable the conduct is – the more inflammatory and egregious the conduct, the greater the likelihood of moral prejudice: Lo, at para. 114, citing Handy, at paras. 83, 100, and 140; (b) the extent to which the evidence may support an inference of guilt based solely on bad character; (c) the extent to which the evidence may confuse the jury; and (d) the ability of the accused to respond to the evidence: Luciano, at para. 233, citing R. v. B. (L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 254.

[105] After considering the prejudicial effect of the evidence, the trial judge is required to engage in the familiar task of balancing the prejudicial effect against the probative value.
. R. v. Norris

In R. v. Norris (Ont CA, 2020) the Court of Appeal comments on similar fact evidence as a form of bad character evidence:
[23] The presumptive inadmissibility of similar act evidence – a form of bad character evidence – is rooted in concerns over moral and reasoning prejudice. Moral prejudice results where triers of fact decide cases, not based on what the accused has done, but based on the kind of person the trier of fact perceives the accused to be: Handy, at paras. 31, 36; R. v. Lo, 2020 ONCA 622, at para. 110. Reasoning prejudice results where similar act evidence gives rise to confusion and distracts the trier of fact from its proper focus on the charges before the court.
. R v Lo

In R v Lo (Ont CA, 2020) the Court of Appeal reviews the law of similar facts:
[110] Evidence of similar acts is circumstantial evidence. Like other examples of circumstantial evidence, it gives rise to inferences. It is subject to a general rule of presumptive inadmissibility. The exclusionary rule sets its face against the use of character evidence as circumstantial proof of conduct on a specific occasion. The rule bars an inference from the similar acts that an accused has the propensity or disposition to do the type of acts charged and is thus guilty of the offence(s) charged: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at. paras. 27, 31; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 17.

[111] Evidence of similar acts engenders both reasoning and moral prejudice. Reasoning prejudice refers to the confusion that may result from a multiplicity of incidents and the tendency of a lay trier of fact to put more weight on the evidence than is logically justified. Moral prejudice has to do with the danger of conviction based on bad personhood, a chain of reasoning our law abjures: Handy, at para. 31.

[112] To overcome the rule of presumptive inadmissibility of similar acts, the onus is on the Crown to satisfy the trial judge, on a balance of probabilities, that the probative value of the evidence on a particular issue outweighs its prejudicial effect, thereby warranting its admission: Handy, at paras. 47, 55; Perrier, at para. 18.

[113] Since the admissibility of evidence of similar acts depends on the improbability of coincidence, any evidence that tends to negate this improbability is important in the admissibility analysis. Evidence of actual collusion or evidence that provides an air of reality to an allegation of collusion tends to do so. It then falls to the Crown to satisfy the trial judge, on a balance of probabilities, that the evidence of similar acts is not tainted with collusion. In these circumstances, the evidence of similar acts would be admitted with the ultimate determination of the persuasive force of the evidence left for the jury to decide: Handy, at para. 112; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 41.

[114] When considering moral prejudice arising out of the reception of evidence of similar acts, the nature of the conduct evidenced by the similar acts is a factor to consider. The more inflammatory that conduct, the more likely a conclusion based on bad personhood: Handy, at paras. 83, 100, and 140.

[115] On the other hand, reasoning prejudice involves the distraction of jurors by the cumulative force of evidence about so many allegations from their task of determining guilt of the offences charged. Arguably, the likelihood of reasoning prejudice may be diminished where the evidence of similar acts is not extrinsic to the offences charged, rather is co-extensive with them: Shearing, at paras. 69-70.

[116] A trial judge's decision about where the balance falls between probative value and prejudicial effect is accorded a high degree of deference in this court absent an error in law or principle, a misapprehension of material evidence, or a decision that is plainly unreasonable: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at paras. 31, 38; Shearing, at para. 73.

[117] The final points concern the timing of the inquiry into the admissibility of evidence of similar acts.

[118] Where the similar acts are alleged as part of a multi-count indictment and the accused seeks severance of the counts, consideration of the admissibility of evidence of similar acts across counts is an important factor in the severance analysis. A ruling permitting across counts use of evidence of similar acts favours a joint trial since the evidence on all counts will be adduced in any event: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 at para. 33. See also, R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 52. The timing of the motion is left to the sound discretion of the trial judge: Last, at para. 34.

[119] A ruling made at one point in a criminal trial may be revisited later in the proceedings should circumstances change and warrant a reconsideration: R. v. B. (H.), 2016 ONCA 953, 345 C.C.C (3d) 206 at para. 51, citing R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 30; R. v. Le, 2011 MBCA 83, 270 Man. R. (2d) 82, at para. 123 leave to appeal refused, [2011] S.C.C.A. No. 526.


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