Similar fact evidence and collusion

Similar fact evidence is always somewhat problematic.  Generally an accused is on trial for what the individual is charged with and not other events.  As a result, similar fact evidence creates a danger of prejudice – and this is especially so where the facts may be similar not because of a similar realty but rather because of collusion between witnesses.  Today’s decision in R. v. Dorsey, 2012 ONCA 185 discusses the law:

[25]       In Handy, supra, Binnie J., at paras. 110-112, sets out the principles governing collusion and potential collusion in the context of a similar fact application:

Collusion is a factor, yes, but more than that it is a crucial factor because the existence of collusion rebuts the premise on which admissibility [of similar fact evidence] depends.

If the evidence [of collusion] amounts to no more than opportunity, it will usually best be left to the jury.

The Court in Arp, supra, concluded that the test for the admission of similar fact evidence is based on probability rather than reasonable doubt. Accordingly where, as here, there is some evidence of actual collusion, or at least an "air of reality" to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission. It would then be for the jury to make the ultimate determination of its worth.  [Emphasis added.]

[26]       Where the similar fact test is met, that is, the probative value of the evidence outweighs its legally prejudicial effect, but there is also evidence of actual collusion among the complainants whose testimony constitutes the similar fact evidence, the Crown must show, on a balance of probabilities, that the evidence of similar fact is not tainted by collusion.  If the Crown is unable to satisfy this onus, and the judge finds actual collusion among complainants, he must exercise his gatekeeper function and deny the similar fact application.  However, where the evidence shows only the opportunity for collusion or collaboration possibly tainting the evidence, then the matter should be left to the jury.  The jury must consider the effect of the possible collusion when deciding the weight to be given to the similar fact evidence.  At para. 111 ofHandy (above), Binnie J. says, “if the evidence [of collusion] amounts to no more than opportunity, it will usually be left to the jury.” 

[27]       In R. v. Shearing (2002), 165 C.C.C. (3^rd) 225 (S.C.C.), at para 44, Binnie J. says:

Here, there is some evidence of opportunity for collusion or collaboration and motive, but nothing sufficiently persuasive to trigger the trial judge’s gatekeeper function.  There is no reason here to interfere with the trial judge’s decision to let the collusion issue go to the jury.  He instructed the jury to consider “all of the circumstances which affect the reliability of that evidence including the possibility of collusion or collaboration between the complainants”.  He defined collusion as the possibility that the complainants in sharing their stories with one another, intentionally or accidentally allowed themselves to change or modify their stories in order that their testimony would seem more similar or more convincing.  It was for the jury to make the ultimate determination whether the evidence was “reliable despite the opportunity for collaboration” or that “less weight or no weight should be given to evidence which may have been influenced by the sharing of information”. [Emphasis added.]

[28]       In R. v. F.(J.) (2003), 177 C.C.C. (3^rd) 1 (O.C.A.), at para 86, Feldman J.A. says:

The Supreme Court has recently addressed the seriousness of the possibility that evidence has been tainted by collusion in the context of the treatment of similar fact evidence. In the cases of R. v. Handy (2002), 164 C.C.C. (3d) 481 and R. v. Shearing (2002), 165 C.C.C. (3d) 225, the court held that before admitting similar fact evidence, the trial judge must be satisfied of its reliability and exclude it if not satisfied on a balance of probabilities that the evidence is not tainted by collusion. Once admitted, the jury must still be warned to assess the evidence carefully and to consider whether it can be considered reliable given the possibility of deliberate or accidental tainting by collusion among the witnesses.  [Emphasis added.]