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Evidence Case Dicta - Similar Fact (R v Handy) (2). R. v. S.S.
In R. v. S.S. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here brought against several sexual assault counts.
Here the court considered the related evidentiary issues of 'collusion' and similar fact evidence:[19] In his reasons the trial judge referred to the test in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, which permits presumptively inadmissible similar fact evidence to be put to the jury if the Crown proves on a balance of probabilities that its probative value (to an issue other than mere propensity) outweighs its prejudicial effect. The trial judge found that the evidence of each complainant in this case was admissible across counts as evidence that the alleged acts occurred because (i) irrespective of the differences, the circumstances surrounding their allegations were similar enough to support that inference, and (ii) there was no air of reality to the appellant’s allegation of collusion.
[20] An assessment of the probative value of proposed evidence depends largely on the “extent to which the proposed evidence supports the inferences the Crown seeks to make” and the “extent to which the matters the evidence tends to prove are live issues in the proceeding”: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 98. The material live issue the Crown sought to use the similar fact evidence to prove in this case was that the criminal acts the sisters alleged occurred. The cogency of the inference the Crown invites depends upon there being sufficient similarities to make it objectively improbable that the two sisters would “coincidentally give the same type of evidence” about the alleged acts: R. v. Norris, 2020 ONCA 847, 398 C.C.C. (3d) 1, at para. 17. “Striking similarity” is not generally required to yield probative value when similar fact evidence is being offered for this purpose: Norris, at para. 15. The determination of whether it does and whether that probative value outweighs the prejudice the evidence will cause is for the trial judge to make and is subject to a deferential standard of review: Norris, at para. 26. A trial judge’s decision on a similar fact application is owed substantial deference and should only be interfered with “if the analysis is unreasonable or if there is legal error or a misapprehension of material evidence”: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 42; R. v. J.H., 2018 ONCA 245, at para. 11. I see no basis for interfering with the trial judge’s assessment.
[21] As the Supreme Court held in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60, “the judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance”. That is to say, the analysis is not to be formulaic but rather an inquiry into whether, based on factors such as proximity in time, similar details or distinctive features, and circumstances surrounding or relating to the similar acts, there is a “persuasive degree of connection between the similar fact evidence and the offence charged”: Handy, at para. 82; Shearing, at para. 48.
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[23] The trial judge’s focus on the circumstances surrounding the alleged assaults does not warrant appellate intervention. In Shearing, the Supreme Court acknowledged that although the sexual acts alleged were not particular or distinctive, underlying unity was found in the appellant’s abuse of authority in relation to the complainants: para. 50. And this court has held repeatedly that in sexual assault cases, “similar circumstances are often more compelling than similarities or dissimilarities in conduct”: R. v. S.C., 2018 ONCA 454, 361 C.C.C. (3d) 419, at paras. 23-26; R. v. B.(L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (Ont. C.A.), at pp. 52-53, leave to appeal refused, [1997] S.C.C.A. No. 524; R. v. A.E.S.P., 2022 ONCA 405, at para. 25; J.H., at paras. 19-21; R. v. J.C., 2021 ONCA 787, 407 C.C.C. (3d) 3, at paras. 68-72.
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[27] Nor did the trial judge err in finding that the allegation of collusion did not have an “air of reality”. The framework articulated in Handy admits evidence for which, “absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence”: para. 41. In other words, collusion rebuts the improbability of coincidence. The “air of reality” test is engaged when a potential issue of collusion between witnesses arises. If there is an “air of reality” to an allegation that witnesses discussing the events may have colluded (purposely or inadvertently), the Crown must prove, on a balance of probabilities, that the similar fact evidence was not tainted by this collusion: Handy, at paras. 106, 112.
[28] It was open to the trial judge to find that there was no air of reality to the allegation of collusion between C.L. and P.L. on the record before him, which included C.L and P.L.’s credible testimony that they had not shared details of the abuse with each other. It is well-settled in this court’s jurisprudence that neither the opportunity to collude nor a “disclosure conversation” between complainants, is sufficient on its own to give rise to an “air of reality”: Handy, at para. 111-12; Shearing, at paras. 43-44; R. v. Wilkinson, 2017 ONCA 756, 356 C.C.C. (3d) 314, at para. 31. The trial judge properly heeded the warning to not jump to a conclusion about collusion “simply because of a conversation”: R. v. B.H., 2022 ONCA 812, at para. 19.
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[30] In the end, the trial judge found the complainants’ evidence that they had not shared specific details of the assaults with one another to be credible. There is no basis to disturb this finding. Consistent with the Supreme Court’s decision in Handy, similar fact evidence must meet the threshold of being “reasonably capable of belief”, and trial judges are to consider the credibility of the similar fact evidence in exercising their gate-keeping function: para. 134. This court has similarly held that a trial judge is entitled to assess whether similar fact witnesses are credible and reliable in their analysis of possible collusion: R. v. T.D.A., 2017 ONCA 910, at paras. 10-11.
[31] It is true that a judge, sitting alone, would have to be careful at the admissibility stage about making definitive credibility findings (beyond whether the similar fact evidence is reasonably capable of belief), so as to not prejudge the issues before hearing all of the evidence and submissions on the trial proper. But this was a jury trial. The jurors in this case were not privy to what occurred at the similar fact voir dire, would not have been aware of the trial judge’s reasons for admitting the similar fact evidence (and specifically his explanation for rejecting the possibility of collusion), and in the final charge were instructed to draw their own conclusions about the complainants’ credibility. . R. v. Amin ['Mr.Big' sting]
In R. v. Amin (Ont CA, 2024) the Ontario Court of Appeal engages in an extending review of 'similar fact' evidence, here in the context of a 'Mr.Big' police sting operation where the goal is to obtain a confession from the defendant wrt the other, 'target' crime.
One of the court's apparent concerns was that by inducing the defendant to become involved with the fake crimes, the jury would be likely to be prejudiced against them in the same manner that 'similar fact' (Handy) evidence can do:A. Overview
[1] Evidence that accused persons committed bad acts other than the crime they are charged with committing is dangerous. This evidence can poison the jury and lead them to convict accused persons because they appear to be bad people who keep bad company, rather than because the Crown has proved that they committed the charged crime. The improper admission and misuse of such evidence can result in wrongful convictions. This risk is heightened where the Crown relies on similarities between the accused’s bad acts other than the crime charged and that crime to prove that the accused is the person who committed the crime because there is a risk that such similarities are merely a coincidence.
[2] Police undercover operations intended to elicit confessions pose these and other dangers. These operations frequently induce the suspect to join a fictitious organization and participate in simulated crimes or bad actions, culminating in an interview in which the organization’s boss asks the suspect to confess as the price of joining the organization. They inevitably elicit evidence of the suspect’s bad acts other than the charged crime by showing the suspect’s willingness to associate with bad people and/or perform simulated crimes or other wrongful acts that can be highly prejudicial. They also risk inducing false confessions because the suspect is motivated to join the organization and fears that failure to confess will result in rejection.
[3] The justice system has developed safeguards governing the admission and use of evidence of the accused’s bad acts other than the crime charged and statements by the accused made during police undercover operations to protect against wrongful convictions. Where the Crown uses evidence of the accused’s bad acts other than the crime charged to help prove the accused’s identity as the perpetrator, it can only be admitted if it is very similar to how the charged crime was committed and its value outweighs the risks that the jury will misuse it. Trial judges who admit this evidence must warn jurors that they cannot use it to convict accused persons simply because they appear to be bad people. Further, trial judges must carefully evaluate the reliability of statements made to undercover officers to guard against the danger of false confessions.
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D. Analysis
[26] The appellant argues that there must be a new trial because the trial judge both erroneously admitted the murder advice and failed to warn the jury about the dangers of misusing that advice and the June 27 statements. I agree. As I will explain, the trial judge did not comply with the legal safeguards governing the admission and use of the murder advice and June 27 statements. These errors require a new trial because they create a real risk that the jury convicted the appellant because he appeared to be a bad and violent person rather than because the Crown proved its case.
(1) The Governing Legal Framework: Handy and Hart
[27] Admitting evidence that an accused has committed bad acts other than the offence charged is dangerous. The Supreme Court of Canada has described such bad act evidence as poisonous and warned that its admission and use without proper safeguards risks wrongful convictions: Handy, at paras. 58, 138-141, 146; R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at p. 735.[2] This evidence triggers the danger of moral prejudice, which is the natural human tendency to judge people based on their character and convict accused persons because they are bad people. For instance, juries may reason that accused persons committed a violent crime because they are violent people: Handy, at paras. 39-40. This evidence also poses a second danger, reasoning prejudice, because it risks confusing the trier of fact and distracting from the facts underlying the actual charge against the accused: Handy, at para. 100.
[28] Handy adopted a test to guard against the dangers of bad act evidence. This test applies to bad act evidence led by the Crown, including both criminal acts and other conduct an ordinary person would disapprove of: Handy, at para. 34; R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras. 88, 90. The test makes bad act evidence presumptively inadmissible unless the Crown can show on a balance of probabilities that it is relevant to an issue other than the accused’s general propensity to commit bad acts and that its probative value in relation to that issue outweighs the risks of moral and reasoning prejudice: Handy, at paras. 55, 69-75, 100.
[29] Handy provides guidance on how to assess the probative value of bad act evidence when the Crown tenders it as propensity evidence. Propensity evidence is bad act evidence that the Crown tenders to show that the accused has a disposition to act in a particular way and thus acted in that way by committing the charged offence: R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 97. Propensity evidence is either general or specific: R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 170. General propensity evidence merely shows that the accused has a general disposition for violence or other crime and is never admissible: Handy, at para. 31. Specific propensity evidence is more context-specific and is sometimes admissible but remains dangerous because it still poses the risks of moral and reasoning prejudice: Dooley, at para. 170; Handy, at paras. 59-68. The degree of similarity between the bad acts and the facts of the charged crime determines the probative value of specific propensity evidence. A greater degree of similarity makes it unlikely that the similarities are a coincidence: Handy, at paras. 41-48, 76.
[30] The Handy test includes a special rule, which I will refer to as the identity rule. This rule guards against the special dangers of propensity evidence that the Crown seeks to use to prove the accused’s identity as the perpetrator: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 20. Under this rule, propensity evidence is only admissible to prove identity if it has a high degree of similarity to the charged crime that negates the possibility of coincidence: Perrier, at paras. 19, 44. The rule’s high threshold protects against the risk that the similarities are coincidental: Perrier, at para. 20, citing Handy, at para. 91. To meet it, the Crown must establish on a balance of probabilities that the same person committed both the other bad acts and the charged crime: Perrier, at para. 20. The Crown can do so by either showing a “‘unique trademark or signature’” or a number of significant similarities that cumulatively preclude coincidence: Perrier, at para. 19, quoting R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 45; see also Handy, at para. 77.
[31] Evidence obtained in police undercover operations designed to induce confessions can also risk wrongful convictions. These operations frequently involve undercover officers offering a suspect incentives to join a fictitious organization and then telling the suspect that to become a member the suspect must first confess to having committed the crime to the organization’s leader: Hart, at paras. 1-2. These operations often, but not always, take the form of a classic “Mr. Big” investigation in which undercover officers elicit a confession during an interview-like meeting between the suspect and the boss of a fictitious criminal organization, who is known as Mr. Big: Hart, at paras. 1-2. These operations pose three dangers: they risk resulting in unreliable confessions; they may prejudice accused persons in the eyes of the trier of fact by showing their willingness to join a criminal organization and engage in simulated crimes; and, they may become abusive and unduly coercive: Hart, at paras. 5-9. Like bad act evidence, the admission of confessions deriving from these types of operations can create a risk of wrongful convictions: Hart, at para. 8.
[32] The Hart test guards against the dangers posed by undercover police operations undertaken to obtain confessions. Hart applies to two types of police operations designed to elicit confessions: (1) those in which undercover officers recruit the accused into a fictitious criminal organization, and (2) other undercover operations not involving a fictitious criminal organization that still pose the three dangers Hart identified: Hart, at paras. 10, 85; R. v. Quinton, 2021 ONCA 44, 399 C.C.C. (3d) 514, at paras. 40-42; R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, at paras. 83-85, leave to appeal refused, [2017] S.C.C.A. No. 403. If Hart applies, any confession the accused makes to undercover officers during the operation is presumptively inadmissible unless the Crown establishes on a balance of probabilities that its probative value outweighs its prejudicial effect: Hart, at para. 85. Even if the Crown makes this showing, the trial judge may still exclude the confession if the police conduct is an abuse of process, as may be the case where the police use unacceptably coercive tactics: Hart, at paras. 86, 113-118. Hart uses but does not define the term “confession,” a point to which I will return later.
[33] Handy and Hart both address some of the same concerns, adopt a similar balancing test, and are subject to a deferential standard of appellate review. Both determine the evidence’s prejudicial effect by assessing the risks of moral and reasoning prejudice: Hart, at paras. 73-74; Handy, at para. 42. Further, both tests make the evidence presumptively inadmissible unless the Crown can prove on a balance of probabilities that the evidence’s probative value outweighs its potential prejudice: Hart, at para. 85; Handy, at para. 55. Finally, appellate courts will defer to trial judges’ balancing of probative value and prejudicial effect under both tests unless the trial judge errs in law, misapprehends the evidence, or reaches an unreasonable result: Hart, at para. 110; Handy, at para. 153; R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 85.
[34] However, the two tests focus on different types of evidence, take different approaches to assessing probative value, and vary in their approach to police misconduct. Hart addresses confessions by the accused accompanied by bad act evidence as context for the accused’s confession, while Handy solely concerns bad act evidence: Hart, at paras. 2, 73, 76; Handy, at para. 34. Because Hart concerns confessions that are often highly probative of guilt if reliable, its assessment of probative value focuses on reliability factors: Hart, at paras. 99-105. In contrast, when the Crown seeks to use other bad act evidence as propensity evidence, Handy assesses probative value principally by whether the bad acts other than the crime charged are similar enough to the facts of the charged offences to negate the possibility of coincidence: Handy, at para. 76. Finally, Hart addresses the risk of police misconduct while Handy does not: Hart, at para. 86. The court continues [at paras 36-62, with several useful case cites] to analyse these errors by the trial court, and further [at paras 63-75] by not cautioning the jury on the potential prejudicial effect of the 'similar fact' evidence.
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