SIMILAR FACT - PRESUMPTIVELY INADMISSIBLE
R. v. Handy, 2002 SCC 56,  2 SCR 908 CanLII
The accused was charged with sexual assault causing bodily harm. His defence was that the sex was consensual. The complainant’s position was that she had consented to vaginal sex but not hurtful or anal sex. The Crown sought to introduce similar fact evidence from the accused’s former wife to the effect that the accused has a propensity to inflict painful sex, including anal sex, and when aroused will not take no for an answer. The similar fact evidence concerned seven alleged prior incidents.
The accused denied assaulting the complainant and committing any of the alleged assaults on his ex-wife. He argued that his ex-wife and the complainant had colluded. His ex-wife acknowledged that she had met the complainant a few months before the alleged sexual assault took place and that she had told the complainant about the accused’s criminal record, her allegations of abuse, that she had received $16,500 from the Criminal Injuries Compensation Board, and that all she had to do to collect the money was say that she had been abused. The trial judge admitted the similar fact evidence and ruled that it was not for him to resolve the possibility of collusion. The jury convicted the accused of sexual assault. The Court of Appeal held that the former wife’s testimony had been wrongly admitted and ordered a new trial.
Held: The appeal should be dismissed.
The similar fact evidence was wrongly admitted. The former wife’s testimony related to incidents removed in time, place and circumstances from the charge. It was thus only circumstantial evidence of the matters the jury was called on to decide and, as with any circumstantial evidence, its usefulness rested entirely on the validity of the inferences it was said to support with respect to the matters in issue. The argument for admitting the circumstantial evidence was that the jury might infer firstly that the accused is an individual who derives pleasure from sex that is painful to his partner, and will not take no for an answer, and secondly, that his character or propensity thus established gave rise to the further inference that he proceeded wilfully in this case knowing the complainant did not consent.
The prejudicial effect of this evidence outweighed its probative value and the trial judge had no discretion to admit it.
Furthermore, his refusal to resolve the issue of collusion as a condition precedent to the admissibility of the evidence was an error of law. A new trial is required.
The general exclusionary rule that similar fact evidence is presumptively inadmissible has been affirmed repeatedly and recognizes that the potential for prejudice, distraction and time consumption associated with the evidence generally outweighs its probative value.
Issues may arise, however, for which its probative value outweighs the potential for misuse. Similar circumstances may defy coincidence or other innocent explanation.
As the evidence becomes more focussed and specific to the charge, its probative value becomes more cogent.
The onus is on the prosecution to show on a balance of probabilities that the probative value of the similar fact evidence outweighs its potential for prejudice.
Similar fact evidence does not cease to be propensity evidence because it relates to an issue other than general disposition.
The principal driver of probative value is the connectedness of the evidence to the alleged offences.
Factors that may support admission of such evidence include the
proximity in time of the similar acts,
similarity in detail,
the number of occurrences of similar acts,
similarities of circumstances,
and any distinctive features.
Exclusionary factors include
the inflammatory nature of the similar acts,
whether the Crown can prove its point with less prejudicial evidence,
the potential for distraction,
and whether admitting the evidence will consume undue time.
If the evidence of collusion amounts to no more than opportunity to collude, the issue usually is best left to the jury. In this case, however, there was some evidence of actual collusion, or at least an “air of reality” to the allegations. The Crown was thus required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts was not tainted with collusion. That much would gain admission. It would then be for the jury to make the ultimate determination of its worth.
It was not sufficient for the Crown simply to proffer dicey evidence that if believed would have probative value. It was not incumbent on the defence to prove collusion. It was a condition precedent to admissibility that the probative value of the proffered evidence outweigh its prejudicial effect and the onus was on the Crown to satisfy that condition. The trial judge erred in law in deferring the whole issue of collusion to the jury. ...,