Monday, April 28, 2014

Similar fact and collusion

R. v. Matthew O'Quinn, 2012 CanLII 67731 (NL PC) Laura Mennie Prov. J.
The accused was charged with a number of offences in relation to his girlfriend, including unlawful confinement, assault and uttering threats. The accused had been convicted of similar offences that he committed on four previous separate occasions involving four different girlfriends. The Crown sought to introduce evidence of the previous incidents as similar fact evidence to establish theactus reus of the present offences and to bolster the credibility of the complainant.
Held: Three of the four previous incidents were admissible as similar fact in respect of one offence only. In regards to one of the incidents, due to the air of reality to the suggestion of collusion, the Crown was unable to discharge the burden of proving on a balance of probabilities that collusion did not occur, see: R. v. B.(C.)(2003), 171 C.C.C. (3d) 159. Assessing the similar fact evidence in this case according to the tests as set out in R. v. Handy, [2002] 2 S.C.R. 908 and the dissent in R. v. T.L.M.(2011), 271 C.C.C. (3d) 148, 85 C.R. (6th) 170, 307 Nfld. & P.E.I.R. 262, 954 A.P.R. 262, 2011 CarswellNfld 115, 2011 NLCA 24, accepted in R. v. T.L.M.[2012] S.C.J. No.6, the similarities are mostly generic, the prejudicial effect is significant and the risk of propensity reasoning is high, such that the similar fact evidence is inadmissible with the exception of the actus reus of the unlawful confinement charge and to bolster the complainant's credibility with respect to that charge. The limitations are appropriate even though the likelihood of propensity reasoning is recognized as less in a judge alone trial, see: R. v. B.(T.)2009 ONCA 177 (CanLII).

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