Today's decision in R. v. Cudjoe, 2009 ONCA 543 seemingly simplifies that law relating to similar fact evidence.
The Court seems to suggest that evidence of bad acts will be admitted, regardless of similarity or exclusion of coincidence, if "the probative value of the evidence on a fact in issue exceeds its prejudicial effect".
If this reading of the case is correct (and it related to a tragic domestic situation and so it may be the breadth of language should be read down?) it could have wide reaching effects. The Court holds:
[63] As a general but not unyielding rule, the prosecutor is not entitled to introduce, as part of the prosecution's case in-chief, evidence of an accused's bad acts, other than those charged, to support an inference of guilt from general bad character. We generally bar the introduction of evidence of other bad acts because it invites propensity reasoning – a finding of guilt based on character not conduct: R. v. Batte (2000), 49 O.R. (3d) 321 ( C.A. ), at para. 100. Evidence of bad acts of an accused, other than the acts charged, may be admitted as an exception to the general rule, however, when the probative value of the evidence on a fact in issue exceeds its prejudicial effect: Batte at para. 90.
[64] In a prosecution for a crime of unlawful homicide, such as murder, evidence of an accused's prior abuse of the deceased may illuminate the nature of the relationship between the principals, demonstrate animus and establish a motive for the killing. This circumstantial evidence, used prospectantly, may assist in proving complicity in an unlawful killing and in establishing the state of mind that accompanied it: R. v. F. (D.S.) (1999), 43 O.R. (3d) 609 (C.A.), at p. 616; R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.), at p. 167; R. v. Misir (2001), 153 C.C.C. (3d) 70 (B.C.C.A.), at para. 17; Plomp v. R. (1963), 110 C.L.R. 234 (H.C.).
James Morton
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6 comments:
James:
The language of para. 63 seems to be highly circumscribed by para. 64. I can't see this opening the floodgates--but you're the lawyer.
This *really* isn't my area, but doesn't this lead to a bizarrely counter-intuitive result?
If the standard is that "[e]vidence of bad acts of an accused, other than the acts charged, may be admitted as an exception to the general rule ... when the probative value of the evidence on a fact in issue exceeds its prejudicial effect", that means that only "less-bad" previous acts can be introduced as probative of a "really bad" current charge - but shouldn't it be the other way around as well?
As para 64 notes, on a charge of homicide, you can (potentially) introduce evidence of previous acts which were sub-homicidal. But because of the probative/prejudicial balancing test, that means you might *never* be able to introduce, say, evidence of previous homicide in a trial on a charge of something less than homicide - which seems, as I said, counter-intuitive.
For example: on this decision, you could introduce evidence of prior assaults as probative of an alleged homicide; but you could not introduce evidence of a prior homicide as probative of an alleged assault. Sticking to the domestic violence scenario, you could not introduce evidence of a prior homicide by the accused of his former wife in a trial about alleged assault of his current wife. Doesn't that seem... well, odd?
Bob, I think you've misunderstood the court. The basic rule of evidence law in order for a piece of evidence to be admissible, it must be relevant. The court then determines relevance by weighing the probative value against the prejudicial value.
In a nutshell, this basically means that the court will have to weigh the value of the evidence as far as its ability to help them render a finding of fact (the probative value) against any kind of unfair damage it might do the accused's defence (the prejudice), i.e. anything that would appeal too much to a judge/jurors emotions and not at all to their logic.
It doesn't sound at all like the court is saying that the first crime has to be lesser than the charges the accused is facing. convictions.
Fish - I think the effect I'm describing is built into the very nature of the test. As you say, "the court will have to weigh the value of the evidence as far as its ability to help them render a finding of fact (the probative value) against any kind of unfair damage it might do the accused's defence (the prejudice), i.e. anything that would appeal too much to a judge/jurors emotions and not at all to their logic" - using that metric, and assuming a spectrum of crimes ranging from "really bad" (eg murder) to "not so bad" (eg trespass or simple assault), things towards the "really bad" end of the scale will, by their very nature, tend to be overly prejudicial and will often outweigh any potentially probative value. The test, then, would hardly ever result in evidence of a "really bad" crime being admissible in a trial for something closer to the "not so bad" end of the scale (imagine, in a trial for assault, the prejudicial effect on the jury of hearing that the accused was previously convicted of homicide).
In any event, the larger point is this: allowing this exception, as the court has articulated it, runs the risk that the door to "previous bad act" evidence will eventually be thrown wide open - because at some point some court will look at the test, note that it has the counterintuitive result which I'm describing, conclude that such a result is bizarre and counter-productive (since it makes only "not so bad" convictions easier to obtain - why wouldn't we want a rule which makes the "really bad" convictions easier to obtain?) and, on an instrumental basis, decide that, in order to further the underlying purpose of the exception, it should allow evidence of a previous "really bad" act. And that, it strikes me, would not be a good development.
Wow. Great input.I actually learned something.
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