8. The Mandatory Direction

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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When similar fact evidence is admitted its use is restricted. Judges err if they misuse it and jurors must be trained not to do so. Although no specific wording is required, a proper jury direction should ordinarily:

· direct the jury to avoid relying on the prohibited inference.127The jury must be told "that they may not use the similar fact evidence to

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reason from general disposition or character to guilt"128by "infer[ring] that the accused is a person whose character or disposition is such that he or she is likely to have committed the offence or offences charged";129· direct the jury that they are not to "punish the accused for past misconduct [revealed by the discreditable conduct evidence] by finding the accused guilty of the offence or offenses charged";130· provide direction on the appropriate, non-prohibited use to which the discreditable conduct evidence may be put in the case at hand,131 including by describing for the jury the issue the evidence addresses and instructing them that they are not to use it for any other purpose;132· advise the jury not to use the evidence unless they are satisfied that the similar fact incident occurred;133· direct the jury on the frailties of the similar fact evidence;134and

· (where the desired inference depends upon coincidence reasoning) direct the jury to consider whether that apparent coincidence can be explained away by collaboration or contamination between witnesses.135The most critical aspect is the "limiting instruction" described in the first bullet. The failure to provide it normally results in a successful appeal. There are exceptions. Where the discreditable conduct evidence relates to the victim of the alleged offence a judge may not be required to train the jury to avoid the prohibited inference since the risk of moral prejudice is believed to be low.136Similarly, where the misconduct evidence describes a "completely different type of wrongdoing," the failure to give a direction may not be fatal if the misconduct is materially less offensive than the conduct charged,137or is presented in a non-inflammatory way.138

[127] R. v. B.(F.F.) (1993), 18 C.R. (4th) 261 at 275; R. v. N.(R.K.) (1997), 114 C.C.C. (3d) 40 at 47-48 (Ont. C.A.).

[128] R. v. B.(C.), above note 55 at para. 35.

[129] R. v. Arp, above note 29 at 356.

[130] R. v. B.(C.), above note 55 at para. 35.

[131] R. v. Rulli, above note 49.

[132] R. v. Handy, above note 10 at para. 70.

[133] R. v. B.(C.)...

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