Similar fact evidence

R. v. Johnson, 2010 ONCA 646 released online this week outlines in detail the general principles behind similar fact evidence. The Court writes:

I.    GENERAL PRINCIPLES

[81]          The fundamental rule that underpins the law of evidence in Canada is that all evidence that is logically probative to some material issue at trial is relevant, and therefore admissible unless excluded by some particular rule of law: R. v. Abbey, [1982] 2 S.C.R. 24, at p. 40; Morris v. The Queen, [1983] 2 S.C.R. 190, at p. 201.

[82]          However, evidence that is relevant may still be inadmissible if it is subject to a specific exclusionary rule.  Underlying many particular exclusionary rules is the broad principle that where the prejudicial effect of admitting otherwise relevant evidence would exceed its probative value, it is inadmissible: R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 736-740; R. v. Potvin, [1989] 1 S.C.R. 525, at p. 552.

[83]          The bad character evidence rule is an example of an exclusionary rule that rests upon this general principle.  Evidence of the accused's bad character cannot be adduced simply to show that the accused is the sort of person likely to commit the offence charged.  While this evidence might arguably be relevant, it is inherently prejudicial when used in this fashion: Morris, at pp. 201-202; R. v. G.(S.G.), [1997] 2 S.C.R. 716, at para 63.

[84]          One particularly prejudicial form of bad character evidence is evidence that establishes past criminal conduct on the part of the accused that does not form the basis of the charges before the court.  This type of past misconduct evidence has been identified as raising two forms of prejudice that will generally outweigh any probative value that might exist in the evidence itself.  They are commonly referred to as moral prejudice and reasoning prejudice: R. v. Handy, [2002] 2 S.C.R. 908, at paras. 31, 139-147.

[85]          Moral prejudice refers to the possibility that a jury, presented with evidence of uncharged misconduct, might choose to convict an accused person for the crimes charged, not because they are satisfied beyond a reasonable doubt that the charges have been proven, but as substitute punishment for the uncharged misconduct: R. v. D.(L.E.), [1989] 2 S.C.R. 111, at p. 128.  Even where a jury does not follow this explicit line of reasoning, they might still convict based on a belief that the accused is generally the kind of person likely to commit crimes, rather than on the basis of any particular evidence showing the accused to have committed the specific crime charged: Handy, at para. 139.

[86]          Reasoning prejudice, on the other hand, refers to the distracting nature of past misconduct evidence.  Rather than focusing the trial on the question of whether the charges have been proven by the Crown, past misconduct evidence risks distracting a jury with evidence of other criminal conduct: D. (L.E.), at p. 128; Handy, at para. 144.

[87]          Evidence that tends to prove the commission of uncharged criminal acts will normally appear much like the evidence adduced to prove the commission of charged criminal conduct.  Excessive court time devoted to proof of extraneous criminal conduct might well distract the jury from their ultimate task of considering whether the crimes that have actually been charged by the Crown have been proven beyond a reasonable doubt.

II.        ADMISSIBILITY OF SIMILAR FACTS

[88]          Three basic principles of evidence – relevance, balancing probative and prejudicial impact, and the prohibition against bad character evidence – underpin the modern doctrine of 'similar fact evidence'.  The similar fact evidence rule is really an exception to the exclusionary rule related to bad character evidence.  It permits the introduction of evidence demonstrating uncharged misconduct on the part of the accused where, due to its particular characteristics, its probative value exceeds the prejudicial effect normally associated with bad character evidence.

[89]          In 2002, the Supreme Court of Canada released its decision in Handy, which rationalized the law of similar fact evidence in Canada and provided critical guidance to trial judges on how to determine whether the proposed similar fact evidence is to be admitted under a principled framework. At the core of this framework is a balancing between prejudice and probative value.

A.     Threshold Matters

[90]          Before engaging in any balancing, the trial judge must first determine the threshold question of whether the presumptive exclusionary rule applies. The trial judge must determine whether the evidence in question is "discreditable" to the accused, in the sense that an ordinary person would disapprove of their conduct: Handy, at para. 34; S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 4th ed. Loose-leaf (Aurora: Canada Law Book, 2003), at para. 10:40.10.10.  If the evidence is not discreditable, the bad character justification for the exclusionary rule is never engaged in the first place. The evidence, if relevant, will be admissible, unless excluded by some other rule.

[91]          The trial judge must also determine whether there is some evidentiary link between the similar acts and the accused.  Where there is no evidence connecting the accused to the similar fact evidence itself, the evidence is irrelevant and inadmissible: Sweitzer v. The Queen, [1982] 1 S.C.R. 949, at p. 954. 

[92]          Once the evidence falls within the exclusionary rule and there is some evidence that links the accused to the acts in question, the Crown bears the onus of establishing, on a balance of probabilities, that the probative value of the similar fact evidence outweighs its prejudicial effect.  It is impossible to measure probative value without first understanding how the proposed evidence might be relevant. Thus, to meet their burden, the Crown must identify a matter in issue that the similar fact evidence is relevant to.  As Binnie J. explained in Handy at para. 27, "The contest […] is all about inferences."  It is therefore incumbent on the Crown to  identify a series of inferences that it asks the trier of fact to draw other than that the accused is merely of bad character and therefore more likely to have committed the offence: R. v. Perrier, [2004] 3 S.C.R. 228, at para. 18.

[93]          Because the probative force of the inferences that the Crown asks the jury to draw may be inexorably linked with the reliability of the proposed evidence, the trial judge must first be satisfied that the proposed evidence is capable of being reasonably believed and supporting the inferences that the Crown asks the trier of fact to make: Handy at para. 134.

B.    Measuring Probative Value

[94]          The next task for the trial judge is to evaluate the probative value of the evidence within the context of the Crown's formulation of the issue in question. 

[95]          In Handy, Binnie J. provided, at para. 82, a useful list of considerations that had developed over the years for measuring probative force:

·        Proximity in time between the similar acts and the charged conduct;

·        Similarity in detail between the similar acts and the charged conduct;

·        Number of occurrences of the similar acts;

·        The circumstances surrounding the similar acts;

·        Any distinctive features that unify the incidents;

·        Any intervening events; and

·        Any other factor that would tend to support or rebut the underlying unity of the acts.

[96]          As the last point makes clear, this list is not exhaustive.  Similarly, in any given case, not all of these factors will necessarily be relevant.  Rather, they serve as useful guideposts to assist the trial judge determine the strength or weakness of the probative force of the evidence.

[97]          Where the matter at issue is proof of a motive, a somewhat different analysis is required.  Evidence of an accused's motive is relevant, as it can impact questions of identity and intent: Lewis v. The Queen, [1979] 2 S.C.R. 821, at p. 833; R. v. Griffin, [2009] 2 S.C.R. 42, at para. 60.  Consequently, evidence establishing motive is normally admissible.  However, where, as in the present case, the evidence of motive arises from discreditable conduct, the evidence's admissibility must still be gauged.  In these circumstances, motive evidence is not automatically admissible.  The trial judge must still balance probative value versus prejudicial effect: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 27. 

[98]          This said, motive evidence does not fit neatly within the normal similar fact evidence "test".  This, in large measure, is due to the fact that its probative value does not arise from any similarity.  Rather, as set out at para. 80 of Handy:

[W]here the issue is animus of the accused towards the deceased, a prior incident of the accused stabbing the victim may be admissible even the victim was ultimately shot … The acts could be said to be dissimilar but the inference on the "issue in question" would nonetheless be compelling. [Emphasis in original]

[99]          It is not sufficient for the Crown to identify some past conflict between an accused and a victim, and then speculate that it establishes animus and therefore motive.  The Supreme Court in R. v. Barbour, [1938] S.C.R. 465, at p. 469, warned that "it is rather important that the court should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or explain the acts charged merely because it discloses some incident in the history of the relations of the parties."

[100]      Thus, evidence of past misconduct that is woven into a speculative theory of motive does nothing more than bring in the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have: see, e.g. R. v. Smith, [1992] 2 S.C.R. 915, at pp. 938-941.

[101]      On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence: see, e.g. R. v. Moo (2009), 247 C.C.C. (3d) 109 (Ont. C.A.), at paras. 70-109.

C.    Measuring Prejudicial Effect

[102]      Even where proposed similar facts are probative, the trial judge must still guard against admitting evidence that is, on balance, overly prejudicial.  It is the task of the trial judge to determine the extent to which moral and reasoning prejudice are engaged on the facts of the case. 

D.    Balancing the Factors

[103]      After measuring and weighing the probative value and the prejudicial effect of the proposed evidence, the trial judge decides whether to admit the evidence.  Although a trial judge has no discretion to admit proposed similar fact evidence that is more prejudicial than probative, a trial judge must still be afforded appropriate deference given the inherent difficulty in balancing probative and prejudicial effects: Handy, at para. 153.

[104]      If similar fact evidence is found to be admissible, the trial judge must give the jury a limiting instruction to minimize the risk that they would engage in the prohibited reasoning the exclusionary rule seeks to avoid.  The instruction must also provide guidance to the jury as to how they can use the evidence properly.