Similar Fact Evidence

• Author: Mr. Justice Marc Rosenberg
• Pages: 391-416

Similar

Fact

Evidence

Mr.

Justice

Marc

Rosenberg

A.

INTRODUCTION

Until

last year's decision

in R. v.

Handy?

a

functional

principled

approach

to

similar

fact

evidence that could

be

consistently applied

eluded

the

Supreme Court

of

Canada,

despite

its

efforts

to set out a

series

of

principles

to

explain

and

develop

the law of

evidence. While

some principles

had

been stated

in a

number

of

cases,2

courts

had

found

the

principles

difficult

to

apply

and the

Supreme Court

failed

to

adopt

a

consistent, predictable approach. Yet, having

a

similar

fact

rule that

works,

one

that

can be

understood

and

applied,

is of

great importance

to the

fair

resolution

of

criminal cases.

As

Justice

Binnie

said

in

Handy,

quoting

from

an

article

by an

English barrister,

the

similar

fact

evidence

ruling

is "as

close

as a

Judge comes

to

singlehandedly deciding

the

out-

come

of a

case.

"3

With

the

similar

fact

evidence

as

part

of its

case,

the

prosecution

can

mount

an

almost overwhelming case. Similar

fact

evidence does

not

*

Of the

Court

of

Appeal

for

Ontario.

1

(2002),

164

C.C.C. (3d)

481

(S.C.C.)

[Handy].

2

Such

as R. v. B.

(C.R.)

(1990),

55

C.C.C. (3d)

1

(S.C.C.)

[C.R.B.]

and R. v.

Sweitzer

(1982),

68

C.C.C. (2d) 193.

3

Handy,

supra

note

1 at

para. 138, citing

from

G.

Durston, "Similar Fact Evi-

dence:

A

Guide

for the

Perplexed

in the

Light

of

Recent Cases" (1996)

160

Jus-

tice

of the

Peace Journal

&

Local Government

Law 359 at

359.

391

*

392 MR.

JUSTICE

MARC

ROSENBERG

simply

assist

in

proving guilt

but

prejudices

the

jury against

the

accused.4

If the

evidence

is

improperly

admitted,

there

is a

real risk

of a

wrongful

conviction.

Without

the

evidence,

especially

in

sexual assault cases when

the

prosecution frequently seeks

to use it,

where there

is

little evidence

independent

of the

complainant,

the

prosecution will

often

not

succeed.

If

the

evidence

is

improperly excluded

the

risk that

a

dangerous sexual

predator could

be

freed

via a

wrongful

acquittal increases dramatically.

Because

the

stakes

are so

high,

judges,

lawyers,

and

authors have

struggled

to

understand, explain,

and

apply

the

similar

fact

rule,

a

rule

that

in its

modern

form

traces back

to the

1894 Privy Council decision

in

Makin

v. New

South

Wales

(Attorney

General).5

In

this paper,

I

will

focus

on

four

aspects

of the

similar

fact

evidence

rule. Much

of

this discussion relies

on the

Handy

decision, which

is

without doubt

the

most important decision

from

the

Supreme Court

on

this

issue since

Makin.

First,

I

will discuss

the

role

of

so-called propensity

or

disposition rea-

soning. Courts have used language suggesting that such reasoning

is

always

prohibited

and

therefore

that similar

fact

evidence that merely

demonstrates

a

propensity

or

disposition

to

commit crime

is

inadmissible.

This

has led to

confusion

and

difficulty

in

applying

the

similar

fact

rules

in the

very type

of

cases where such evidence might

be

highly probative.

Second,

I

will deal with

the use of

similar

fact

evidence

to

bolster

the

credibility

of a

central witness

in the

prosecution's case. This

is a

spe-

cial

problem

in

sexual assault

cases,

where

the

only evidence

may be

from

the

complainant

and

particularly where

the

complainant

is a

child.

In the

1980s,

the

Criminal

Code

and the

Canada

Evidence

Act

were amend-

ed to

abolish

the

requirement

for

corroboration

of the

evidence

of

chil-

dren

and

sexual assault complainants. Since then,

the

courts have seen

increasing numbers

of

cases based

on the

testimony

of a

single witness.

The

nature

of

these crimes

is

such that

often

there

is no

witness

to the

act and

little

if any

circumstantial evidence

to

confirm

the

story

of the

complainant. While

it is

permissible

to

convict

in the

absence

of

corrob-

oration, cautious triers

of

fact

naturally seek something

to

assist them

in

resolving

a

credibility contest between

a

single witness

for the

prosecu-

tion

and the

defence.

Similar

fact

evidence

can

provide that

confirma-

tion,

but

understanding when that evidence

is

properly admissible

to

4 C.

Tapper,

Cross

and

Tapper

on

Evidence,

9th ed.

(London:

Butterworths,

1999)

at

334.

5

[1894] A.C.

57

[Matin].