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” Examples • Makin and Makin v. A.G. New South Wales  A.C. 57 (P.C.) • R. v. Litchfield (1993) 86 CCC(3d) 97 (S.C.C.) • Sweitzer v. The Queen, (1982) 68 C.C.C.(2d) 193 (S.C.C.) Test • 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 reasoning. 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 admissibility. • Where there is an air of reality to collusion, the proponent must disprove collusion BOP. • 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. Examples • Rebut defences of accident, mistake, innocent association. • Prove identity. • Prove knowledge. Examples • Prove opportunity by reference to previous bad act. • Prove motive by reference to previous bad act. Examples • Prove scheme, design or plan to prove intent. • Abnormal propensity to prove identity. • Modus operandi, or “mark” to prove identity. 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 guilt. 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. Note • 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.