Similar Fact

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					Similar Fact
• A substantive use of what would normally
  run afoul of the character evidence rule.

• When it goes in, it goes in to assist the
  TOF to find the substantive facts in issue.

• General rule: “no other act (evidence)
  unless similar fact”

• Makin and Makin v. A.G. New South
  Wales [1894] A.C. 57 (P.C.)

• R. v. Litchfield (1993) 86 CCC(3d) 97

• Sweitzer v. The Queen, (1982) 68
  C.C.C.(2d) 193 (S.C.C.)
• See R. v. Handy (2002), 164 CCC(3d) 481
  (S.C.C.); R. v. Shearing (2002) 165
  CCC(3d) 225 (S.C.C.)
                Cox p. 31

• Similar Fact evidence is admissible if it is
  relevant to an issue beyond mere
  disposition or character, and its probative
  value outweighs its prejudicial effect.
          Standard of Proof

• Balance of Probabilities.

• This is true both between different counts
  or substantive claims that arise from the
  pleadings, and when the “other acts” arise
  outside the pleadings.
     TOL’s Instruction to TOF
• Cox, p. 35 “The jury should be warned not
  to draw an adverse inference because the
  similar fact evidence merely establishes
  that the accused is the sort of person to
  commit such crimes.”
This is the warning against forbidden
     TOL’s instruction to TOF

• TOL specifies to TOF for what purpose
  they may consider the similar fact
  evidence: ie. knowledge, intent, state of
  mind, rebut innocent association.
          Possible Collusion
• First and foremost, a matter of

• Where there is an air of reality to collusion,
  the proponent must disprove collusion

• Collusion can be direct or indirect,
  intentional or unintentional.
                 Cox, p. 38
• “Collusion and discussion amongst witnesses
  can have the effect of tainting or effectively
  undermining the reliability of a witness’ evidence
  and perception of events innocently and
  accidentally and unknowingly, and it can do this
  as well and as effectively as deliberate collusion
  for the purpose of concocting evidence. This is
  because hearing other people’s stories can tend
  to color one’s interpretation of personal events
  or reinforce a perception about which one had
  doubts or concerns.”
• To the extent the possibility of collusion
  does not act to exclude, it remains an
  issue of weight for the TOF.
             Similar Fact

• Can be admissible in the proponent’s case
  in chief, but may also become admissible
  by nature of the defence advanced, and
  therefore be admissible on rebuttal.

• Rebut defences of accident, mistake,
  innocent association.

• Prove identity.

• Prove knowledge.

• Prove opportunity by reference to previous
  bad act.

• Prove motive by reference to previous bad

• Prove scheme, design or plan to prove

• Abnormal propensity to prove identity.

• Modus operandi, or “mark” to prove
              Other rules

• Cannot use other act evidence which had
  been tried and resulted in acquittal, save
  and except for where that previous act is
  important for its knowledge component, as
  opposed to legal liability – ie. accused’s
  knowledge of wrongdoing, irrespective of
               Other rules

• Cox, p. 31: similar fact will not be admitted
  for an issue not in dispute

• Cox. p. 28 “evidence of similar acts is
  excluded where that evidence is only to
  establish that the accused is the sort of
  person likely to commit the crime …”
• Evidence of disposition is not excluded
  because it is irrelevant. There is a rational
  connection between past behavior as a
  predictor of future behavior, at least on a
  relevance standard. It is excluded for
  prejudicial value concerns. The force of
  the similar fact evidence has to overcome
  the potential prejudice.
• That this is a protection for party litigants,
  and not third parties. Pointing the finger at
  others, for example, by suggesting their
  propensity to act a certain way, and have
  acted that way again, is not excluded
  under this rule – e.g. establishing others
  with opportunity or proclivity.

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