R. v. Handy

R. v. Handy
Collection
Supreme Court Judgments
Date
2002-06-21
Neutral citation
2002 SCC 56
Report
[2002] 2 SCR 908
Case number
27996
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Evidence
Notes
SCC Case Information: 27996
Decision Content
R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56
Her Majesty The Queen Appellant
v.
James Handy Respondent
Indexed as: R. v. Handy
Neutral citation: 2002 SCC 56.
File No.: 27996.
2001: October 9; 2002: June 21.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Evidence -- Admissibility -- Similar fact evidence -- Accused convicted of sexual assault -- Whether evidence by accused’s former wife of alleged past assaults against her should have been admitted as similar fact evidence.
Evidence -- Collusion -- Admissibility of testimony of witness -- Whether determination that complainant and witness had not colluded should have been condition precedent to admitting similar fact evidence of witness.
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.
The issue at trial to which the similar fact evidence related was the consent component of the actus reus and, in relation to that issue, the accused’s alleged propensity to refuse to take no for an answer. Identifying the issue merely as credibility risked admitting evidence of nothing more than general disposition. The similar fact evidence of the former wife was capable of raising an inference that the accused derived pleasure from sex that was painful to her and would not take no for an answer. The second inference, i.e., that he proceeded in this case, knowing the complainant did not consent, is more problematic. The trial judge paid insufficient attention to dissimilarities between the alleged similar acts and the offence charged. At least one allegedly similar incident was largely irrelevant and there were important dissimilarities in the other incidents. None of the allegedly similar incidents began as consensual, the dynamics of the situations differed, and all occurred in the very different context of a long-term, dysfunctional marriage.
The former wife’s evidence described incidents more reprehensible than the actual charge before the court and had a serious potential for moral prejudice. It also had the potential to create significant reasoning prejudice by distracting the jury from their proper focus and by consuming undue time. Prejudice does not necessarily recede as probative value advances. As the Crown did not discharge its onus of establishing on a balance of probabilities that the probative value of the similar fact evidence outweighed its potential for prejudice, it ought to have been excluded.
Cases Cited
Discussed: R. v. Robertson, [1987] 1 S.C.R. 918; Makin v. Attorney-General for New South Wales, [1894] A.C. 57; Morris v. The Queen, [1983] 2 S.C.R. 190; Sweitzer v. The Queen, [1982] 1 S.C.R. 949; R. v. D. (L.E.), [1989] 2 S.C.R. 111, rev’g (1987), 20 B.C.L.R. (2d) 384; explained: R. v. B. (C.R.), [1990] 1 S.C.R. 717; R. v. Arp, [1998] 3 S.C.R. 339; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Morin, [1988] 2 S.C.R. 345; not followed: Pfennig v. R. (1995), 127 A.L.R. 99; referred to: R. v. Watson (1996), 50 C.R. (4th) 245; R. v. B. (L.) (1997), 35 O.R. (3d) 35; Director of Public Prosecutions v. Boardman, [1975] A.C. 421; Harrison’s Trial (1862), 12 How. St. Tr. 833; R. v. Seaboyer, [1991] 2 S.C.R. 577; Leblanc v. The Queen, [1977] 1 S.C.R. 339; United States v. York, 933 F.2d 1343 (1991); R. v. C. (M.H.), [1991] 1 S.C.R. 763; R. v. Batte (2000), 34 C.R. (5th) 197; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Lepage, [1995] 1 S.C.R. 654; R. v. Sims, [1946] 1 All E.R. 697; R. v. Clermont, [1986] 2 S.C.R. 131; R. v. Bosley (1992), 18 C.R. (4th) 347; R. v. Proctor (1992), 69 C.C.C. (3d) 436; R. v. Hanna (1990), 57 C.C.C. (3d) 392; R. v. Scopelliti (1981), 63 C.C.C. (2d) 481; R. v. Straffen, [1952] 2 Q.B. 911; R. v. Carpenter (1982), 142 D.L.R. (3d) 237; R. v. Smith, [1992] 2 S.C.R. 915; Cloutier v. The Queen, [1979] 2 S.C.R. 709; R. v. Simpson (1977), 35 C.C.C. (2d) 337; R. v. Huot (1993), 16 O.R. (3d) 214; R. v. Rulli (1999), 134 C.C.C. (3d) 465; R. v. Fleming (1999), 171 Nfld. & P.E.I.R. 183; R. v. Dupras, [2000] B.C.J. No. 1513 (QL); Director of Public Prosecutions v. Kilbourne, [1973] A.C. 729; United States v. Enjady, 134 F.3d 1427 (1998), certiorari denied, 525 U.S. 887 (1998); Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136; R. v. H., [1995] 2 A.C. 596; R. v. Kenny (1996), 108 C.C.C. (3d) 349; R. v. McDonald (2000), 148 C.C.C. (3d) 273; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Smith (1915), 84 L.J.K.B. 2153; R. v. Minhas (1986), 29 C.C.C. (3d) 193; R. v. Corbett, [1988] 1 S.C.R. 670; Director of Public Prosecutions v. P., [1991] 2 A.C. 447; R. v. Marquard, [1993] 4 S.C.R. 223.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).
Criminal Code, R.S.C. 1985, c. C-46, s. 718.2 .
Authors Cited
Acorn, A. E. “Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense” (1991), 11 Oxford J. Legal Stud. 63.
Cross and Tapper on Evidence, 9th ed. By Colin Tapper. London: Butterworths, 1999.
Delisle, R. J. “The Direct Approach to Similar Fact Evidence” (1996), 50 C.R. (4th) 286.
Durston, Gregory. “Similar Fact Evidence: A Guide for the Perplexed in the Light of Recent Cases” (1996), 160 Justice of the Peace & Local Government Law 359.
Great Britain. Law Commission. Consultation Paper No. 141. Evidence in Criminal Proceedings: Previous Misconduct of a Defendant. London: HMSO, 1996.
Lloyd-Bostock, S. “The Effects on Juries of Hearing About the Defendant’s Previous Criminal Record: A Simulation Study”, [2000] Crim. L.R. 734.
Martin, G. Arthur. “Similar Fact Evidence”, [1984] Spec. Lect. L.S.U.C. 1.
McCormick on Evidence, vol. 1, 5th ed. By John W. Strong, General Editor. St. Paul, Minn.: West Group, 1999.
McWilliams, Peter K. Canadian Criminal Evidence, vol. 1, 3rd ed. Aurora, Ont.: Canada Law Book, 1988 (loose-leaf updated October 2001, release 27).
Mueller, Christopher B., and Laird C. Kirkpatrick. Federal Evidence, Cumulative Supplement to vol. 2, 2nd ed. Rochester, N.Y.: Lawyers Cooperative Publishing, 1994 & Supp. 2001.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 2nd ed. Toronto: Irwin Law, 1999.
Pickel, Kerri L. “Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help” (1995), 19 Law & Hum. Behav. 407.
Rosenberg, Marc. “Evidence of Similar Acts and Other Extrinsic Misconduct”. In National Criminal Law Program, Criminal Evidence. Vancouver: Federation of Law Societies of Canada, 1994, section 8.1.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
Stuesser, Lee. “Similar Fact Evidence in Sexual Offence Cases” (1997), 39 Crim. L.Q. 160.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 1A. Revised by Peter Tillers. Boston: Little, Brown & Co., 1983.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 2. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1979.
Wissler, Roselle L., and Michael J. Saks. “On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt” (1985), 9 Law & Hum. Behav. 37.
APPEAL from a judgment of the Ontario Court of Appeal (2000), 48 O.R. (3d) 257, 131 O.A.C. 297, 32 C.R. (5th) 316, 145 C.C.C. (3d) 177, [2000] O.J. No. 1373 (QL), allowing the accused’s appeal from a decision of the Ontario Court (General Division). Appeal dismissed.
Christopher Webb, for the appellant.
Richard N. Stern and David E. Harris, for the respondent.
The judgment of the Court was delivered by
1 Binnie J. -- The principal issues in this case are (i) the test for the admissibility of discreditable similar fact evidence where the credibility of the complainant (as distinguished from the identification of the accused) is the issue, and (ii) the impact of potential collusion on the admissibility of such evidence.
2 The respondent was charged with sexual assault causing bodily harm. The complainant, a casual acquaintance, says that consensual vaginal sex following a drinking session at a bar turned into hurtful non-consensual vaginal and subsequently anal sex accompanied by physical abuse. At the respondent’s trial, the Crown sought to introduce the evidence of his ex-wife about seven allegedly “similar fact” incidents (or “similar acts”) that occurred during their seven-year, abusive and sometimes violent cohabitation (interrupted by his incarceration for unrelated sexual assaults) which produced three children. The trial judge admitted the evidence and the jury convicted the respondent of the lesser offence of sexual assault.
3 The respondent says that the jury ought not to have considered evidence of alleged misconduct which was outside the subject matter of the charge in the indictment, and that evidence of his allegedly brutal disposition, or alleged propensity for hurtful sex, was highly prejudicial to a fair trial. Moreover, he says, the “similar” facts are not similar and in any event the complainant and his ex-wife colluded. The Ontario Court of Appeal ruled that the similar fact evidence was wrongly admitted and ordered a new trial. I agree and would dismiss the appeal.
I. Facts
4 The complainant’s evidence was that on the evening of December 6, 1996, she went out drinking with some friends. The respondent, whom she had met six months earlier, was also at the bar. The two spent the evening drinking and flirting with one another. After leaving the bar, they went to the home of one of the complainant’s friends to smoke marijuana. The respondent and the complainant left the house together and drove to a nearby motel intending to have sex. In the course of vaginal intercourse, she became upset because the respondent was hurting her, forcing himself into her. She told him that it was painful but he continued. He then brusquely switched to anal intercourse. She said, “Stop that, it hurts”. She tried to get him off her or to make him stop but he would not. She slapped his face. She says he hit her on the chest, he grabbed her arms, squeezed her stomach and choked her, and he punched her. She says she was pleading and crying. She had consented to vaginal sex but she did not consent to and did not want anal sex. After the incident, she told the respondent that he had made her bleed. He allegedly responded to her by saying, “What the hell am I doing here? Why does this kee[p] happening to me?”
5 A number of witnesses testified that they had seen bruises on her throat, chest and arms in the days following the incident. The complainant was diagnosed with post-traumatic stress.
A. The Similar Fact Evidence
6 The respondent’s defence was that the sex was consensual. The issue thus came down to credibility on the consent issue. The Crown sought to introduce similar fact evidence from the respondent’s former wife to the effect that the respondent has a propensity to inflict painful sex and when aroused will not take no for an answer. It was thus tendered to explain why the complainant should be believed when she testified that the assault proceeded despite her protest.
(1) Incident One
7 In March 1990, a few weeks after their first child was born, the ex-wife says the respondent wanted to have sexual intercourse with her to “see what it would feel like”. She did not want to do so because she thought that it would be painful. The respondent insisted that they have vaginal intercourse. Once they started she told the respondent that she was in pain but he did not stop.
(2) Incident Two
8 Five or six months later she and the respondent visited her sister and brother-in-law in their mobile trailer. After everyone went to bed, the respondent wanted to have sexual intercourse. She told the respondent that she did not want to have sex because her sister and her husband were at the other end of the trailer. She tried to move away from him. The respondent told her to shut up and had vaginal intercourse with her anyway.
(3) Incident Three
9 She returned home one day to find that the respondent had invited a number of people to their apartment for a party. After seeing the respondent tickle two women on the couch, she got angry and told everyone to leave. After most of the guests departed, she went into the bedroom. The respondent followed her. He was upset that she had broken up his party. He tried to have intercourse with her. She tried to get away but he blocked the door with a dresser. She then attempted to flee through the second floor bedroom window, but he pulled her back in. He then forced her to have vaginal intercourse and passed out.
(4) Incident Four
10 Sometime early in 1992, the respondent came home drunk and wanted to have anal intercourse. She told him that she did not want to do so because it had hurt her on previous occasions. The respondent initiated anal intercourse nonetheless. She kept moving and tried to get away. Eventually, he grabbed a bottle of baby oil from underneath the bed and applied the oil to his penis and her anus. He initiated anal intercourse. They were interrupted by a crying baby, and she used the distraction to escape to the basement but the respondent followed her. He told her that if she did not stop running, he would tie her up with a rope. She ran naked from the house and over to the neighbour’s house. The police were called but she did not lay charges.
(5) Incident Five
11 The respondent was imprisoned from 1992 until 1995 for sexual assaults on two other women (although the fact they were “other” women was withheld from the jury by agreement of counsel). In that period he placed a threatening phone call to his then wife, which precipitated their divorce. They resumed living together soon after he was released. Shortly thereafter, she became upset because the respondent had gone out with a woman he had once dated. The respondent became angry, grabbed her by the throat, threw her around, pinned her against the wall and broke their glass coffee table. He did not, however, sexually assault her on that occasion.
(6) Incident Six
12 One night during the summer of 1996, she and the respondent were returning home after dropping off their friends. The respondent told her that instead of going home, they were going to a gravel pit where she “was going to get it up the ass”. She testified that he had forced her to have sex with him at the gravel pit in the past. She told him that she was willing to do anything other than anal intercourse because it hurt too much. The respondent, however, insisted on anal intercourse. Once at the gravel pit he attempted anal intercourse, but was unsuccessful because there was insufficient room in the back seat of the car. The respondent took her out of his car and put her face down on the hood. He attempted anal intercourse again. He eventually turned her over onto her back and had vaginal intercourse.
(7) Incident Seven
13 In October 1996, her grandfather passed away. She and the respondent were alone in her mother’s home. She was crying and upset. She testified that her crying “turned [the respondent] on” and that he wanted to have sexual intercourse on her mother’s new couch. She told him that she did not want to. The respondent put her on the couch and commenced vaginal intercourse. She cried. While they were having intercourse, he punched her a number of times in the stomach to make her cry louder.
B. The Respondent’s Testimony
14 The respondent denied committing any of the alleged assaults on his ex-wife. With respect to the complainant’s allegations, he testified that he met her at the bar, that they were both intoxicated and that they left the bar together. Eventually they went to a motel room. He testified that once inside the room, the complainant straddled him while he lay on his back and they engaged in approximately 15 to 20 minutes of vaginal intercourse. He denied that she had complained or told him to stop. He also denied hitting her and choking her. He testified that she drove him home at approximately 6:40 a.m. He did not see her again.
C. The Evidence of Collusion
15 The ex-wife testified that she had met the complainant a few months before the alleged sexual assault took place. She had told the complainant at that time about the respondent’s criminal record and her allegations of his abuse of her during their marriage. The ex-wife told the complainant that she had received $16,500 from the Criminal Injuries Compensation Board and agreed when it was put to her in cross-examination that “[a]ll you had to do [to get the money] was say that you were abused”. The ex-wife’s cross-examination was, in part, as follows:
Q. You knew [the complainant]?
A. Yes, I did.
Q. You had met her in the summer of ‘96?
A. That’s correct.
Q. She had come over and visited with you, right?
A. That’s correct.
Q. At one point, she actually said to you that she thought that [the respondent] loved you very much?
A. Yes, she did.
Q. And you straightened her out?
A. That’s correct.
Q. And you told her that he had been to jail?
A. Yes, I did.
Q. You told her that he abused you?
A. Yes, I did.
Q. And you told her that you collected $16,500 from the government. All you had to do was say that you were abused.
A. Yes.
Q. So she knew all of that before December of 1996?
A. Yes. [Emphasis added.]
16 Subsequently, on December 6, 1996, the complainant met up with the respondent at the bar and, after sharing some marijuana, agreed to accompany him to a motel for sex.
II. Judicial History
A. Ontario Court (General Division) __ Jennings J.
17 At the conclusion of the voir dire, the trial judge admitted the “similar fact” evidence on the basis that:
(i) the ex-wife’s proposed evidence might assist the jury in determining how he had acted with the complainant;
(ii) the evidence was discreditable to the respondent and could only be admitted if its probative value outweighed its prejudicial effect;
(iii) the issue for the jury was the credibility of the complainant’s allegation that sex continued in a violent manner in the face of attempts to refuse sex and not simply whether a withdrawal of consent had been communicated; and
(iv) the similar fact evidence, if believed, “establishe[d] a pattern of using an initially consensual situation to escalate into violent, painful sexual connection, with both vaginal and anal penetration”. It would show a pattern of behaviour and confirm the credibility of the complainant, both of which the trial judge described as legitimate purposes for the reception of the evidence. This showed more than a mere propensity to commit the acts based upon bad character. The cogency was derived from
the overriding similarity of the conversion of an occasion when consensual sex may be anticipated, into one of continuing vaginal sex after complaint, pain and request to stop, accompanied by physical attack, and of initiating and continuing anal sex without consent, persuades me the proposed evidence has the substantial probative value required, and as was the case in R. v. B. (L.) [[1997] 35 O.R. (3d) 35] the proposed evidence is relevant to an important issue, the credibility of [the complainant].
18 The trial judge ruled that it was not for him to resolve the possibility of collusion between the former wife and the complainant.
There is no direct evidence of collusion between [the ex-wife and the complainant], although the former told the latter of the assaults upon her. Regardless, this is a decision for the trier of fact to make. [Emphasis added.]
B. Ontario Court of Appeal (2000), 48 O.R. (3d) 257
19 Charron J.A. for the court held that the trial judge had identified the correct test for admitting similar fact evidence but he had erred in its application. In her opinion, the evidence should not have been admitted at trial since the probative value of the evidence was outweighed by its potential prejudicial effect.
20 The strength of the evidence was weakened by the fact that the respondent had denied the incidents and that they formed the subject matter of other proceedings in which they were as yet unproven.
21 The alleged similar acts were quite disparate in nature and, despite sharing certain characteristics, it was difficult to fit them into any pattern specific enough to bolster the complainant’s credibility. Charron J.A. further held that there were non-superficial dissimilarities. While the acts alleged by the ex-wife took place during a conjugal, long-term relationship, the acts alleged by the complainant took place during a short, casual affair that had began with her consent.
22 Charron J.A. also held that there had been a potential for collusion that further weakened any probative value that could be derived from the former wife’s testimony. She held that potential for collusion “is always a serious consideration in the assessment of the strength of this kind of evidence” (para. 41) since collusion between witnesses may deprive similar fact evidence of most of its probative value. The prospect of collusion is “not a matter that can simply be left for the jury to determine without giving it due consideration in the assessment of the probative value of the evidence” (para. 41).
23 The credibility of the ex-wife was problematic. She had considerably delayed reporting any of the incidents. The eventual timing of her complaints raised issues with respect to her motives. The complaint with respect to four incidents had first been made in support of an uncontested application for compensation before the Criminal Injuries Compensation Board when the respondent was in prison. The rest of the complaints had been made after her final separation from the respondent and shortly after she had learned of the charges laid in this case.
III. Analysis
24 The trial judge admitted the similar fact evidence in this case because he thought the way the respondent “acted on previous occasions with [his ex-wife], may very well assist the jury in determining how he acted with [the complainant]”. The common thread, according to the Crown, is that the respondent derives pleasure from inflicting pain on a sexual partner and insists on sex “his way” irrespective of consent.
25 From the respondent’s point of view, introduction of the similar fact evidence radically changed the trial. He was on trial for one incident, to which he pleaded not guilty, but was instead confronted with eight different incidents, of which seven were not the subject matter of any charge. The jury might conclude that a man with a track record of discreditable treatment of his ex-wife in their sexual relations would be acting in character by forcing himself on the resisting complainant, but this he says was unfair because it bolstered the complainant’s credibility by exogenous evidence that related neither to the complainant nor to the charge. At the least the jury might conclude that the respondent was a repugnant individual deserving of punishment and a conviction would, as a matter of rough equivalence, give him his just desserts.
A. The Disputed Inferences
26 The ex-wife’s testimony relates to incidents removed in time, place and circumstances from the charge. It is thus only circumstantial evidence of the matters the jury was called on to decide and, as with any circumstantial evidence, its usefulness rests entirely on the validity of the inferences it is said to support with respect to the matters in issue. The argument for admitting this circumstantial evidence is that the jury may infer firstly that the respondent 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 gives rise to the further inference that he proceeded wilfully in this case knowing the complainant did not consent. As stated by Wilson J. in R. v. Robertson, [1987] 1 S.C.R. 918, at p. 943:
In discussing the probative value we must consider the degree of relevance to the facts in issue and the strength of the inference that can be drawn.
See also R. v. Watson (1996), 50 C.R. (4th) 245 (Ont. C.A.), at p. 258, per Doherty J.A.; R. v. B. (L.) (1997), 35 O.R. (3d) 35 (C.A.), at p. 45, per Charron J.A. See also: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at § 11.113; D. M. Paciocco and L. Stuesser, The Law of Evidence (2nd ed. 1999), at pp. 39-41; Cross and Tapper on Evidence (9th ed. 1999), at pp. 350 et seq.; Wigmore on Evidence, vol. 1A (Tillers rev. 1983), at pp. 1152-53.
27 The contest over the admissibility of similar fact evidence is all about inferences, i.e., when do they arise? What are they intended to prove? By what process of reasoning do they prove it? How strong is the proof they provide? When are they so unfair as to be excluded on the grounds of judicial policy and the presumption of innocence? The answers to these questions have proven so controversial as to create what Lord Hailsham described as a “pitted battlefield”: Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.), at p. 445.
28 There is more consensus on the nature of the problems than there is on the correctness of the solutions: compare the differing approaches in R. J. Delisle, “The Direct Approach to Similar Fact Evidence” (1996), 50 C.R. (4th) 286; A. E. Acorn, “Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense” (1991), 11 Oxford J. Legal Stud. 63; P. K. McWilliams, Canadian Criminal Evidence (3rd ed. (loose-leaf)), vol. 1, at p. 11-4; M. Rosenberg (now J.A.), “Evidence of Similar Acts and Other Extrinsic Misconduct”, in National Criminal Law Program, Criminal Evidence (1994), section 8.1, at p. 3; and L. Stuesser, “Similar Fact Evidence in Sexual Offence Cases” (1997), 39 Crim. L.Q. 160.
29 The immediate questions are whether the double inferences are properly raised on the facts of this case, and if so, whether they add such probative strength in the circumstances here that the ex-wife’s evidence ought to be admitted despite the potential prejudice. The respondent says that the so-called similar facts are insufficiently connected in time and circumstances to the offence charged, i.e., there is an insufficient nexus to make the conduct with his ex-wife a reliable guide to his alleged conduct with the complainant. Moreover, even if they are, he says he should not as a matter of policy be put at risk of conviction by confusing the jury about what he allegedly did in other times and at other places.
30 I should note that the Crown did not attempt to call any expert evidence in relation to the validity of the inferences respecting the respondent’s psychological make-up that it sought to have the jury draw from the ex-wife’s evidence and their applicability to the facts in issue.
B. The General Exclusionary Rule
31 The respondent is clearly correct in saying that evidence of misconduct beyond what is alleged in the indictment which does no more than blacken his character is inadmissible. Nobody is charged with having a “general” disposition or propensity for theft or violence or whatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on the ex-wife’s testimony (“reasoning prejudice”) or by convicting based on bad personhood (“moral prejudice”): Great Britain Law Commission, Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996), at § 7.2.
32 This is a very old rule of the common law. Reference may be made to seventeenth-century trials in which the prosecution was scolded for raising prior felonious conduct, as for example to Lord Holt C.J. in Harrison’s Trial (1692), 12 How. St. Tr. 833 (Old Bailey (London)), at p. 864: “Are you going to arraign his whole life? Away, Away, that ought not to be; that is nothing to the matter.”
33 Subsequently, and most famously, the general exclusionary rule was laid down by Lord Herschell L.C. Makin v. Attorney-General for New South Wales, [1894] A.C. 57 (P.C.), in these terms, at p. 65:
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.
34 The court spoke there of “criminal acts”, but this has been broadened to include any proffered “similar facts” of a discreditable nature (Robertson, supra, at p. 941; B. (L.), supra, at pp. 45-46), a category which includes the conduct alleged by the ex-wife in this case.
35 The dangers of propensity reasoning are well recognized. Not only can people change their ways but they are not robotic. While juries in fourteenth-century England were expected to determine facts based on their personal knowledge of the character of the participants, it is now said that to infer guilt from a knowledge of the mere character of the accused is a “forbidden type of reasoning”: Boardman, supra, at p. 453, per Lord Hailsham.
36 The exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial. See Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Morin, [1988] 2 S.C.R. 345; R. v. B. (C.R.), [1990] 1 S.C.R. 717; R. v. Arp, [1998] 3 S.C.R. 339.
Policy Basis for the Exclusion
37 The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible: Arp, supra, at para. 38; Robertson, supra, at p. 941; Morris, supra, at pp. 201-2; R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 613.
38 If propensity evidence were routinely admitted, it might encourage the police simply to “round up the usual suspects” instead of making a proper unblinkered investigation of each particular case. One of the objectives of the criminal justice system is the rehabilitation of offenders. Achievement of this objective is undermined to the extent the law doubts the “usual suspects” are capable of turning the page and starting a new life.
39 It is, of course, common human experience that people generally act consistently with their known character. We make everyday judgments about the reliability or honesty of particular individuals based on what we know of their track record. If the jurors in this case had been the respondent’s inquisitive neighbours, instead of sitting in judgment in a court of law, they would undoubtedly have wanted to know everything about his character and related activities. His ex-wife’s anecdotal evidence would have been of great interest. Perhaps too great, as pointed out by Sopinka J. in B. (C.R.), supra, at p. 744:
The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning.
40 The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror’s ear, “swift as quicksilver it courses through the natural gates and alleys of the body”: Hamlet, Act I, Scene v, ll. 66-67.
C. The Narrow Exception of Admissibility
41 While emphasizing the general rule of exclusion, courts have recognized that an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse, per Sopinka J., dissenting, in B. (C.R.), supra, at p. 751:
The fact that the alleged similar facts had common characteristics with the acts charged, could render them admissible, and, therefore, supportive of the evidence of the complainant. In order to be admissible, however, it would be necessary to conclude that the similarities were such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence . . . . [Emphasis added.]
42 The “common sense” condemnation of exclusion of what may be seen as highly relevant evidence has prompted much judicial agonizing, particularly in cases of alleged sexual abuse of children and adolescents, whose word was sometimes unfairly discounted when opposed to that of ostensibly upstanding adults. The denial of the adult, misleadingly persuasive on first impression, would melt under the history of so many prior incidents as to defy innocent explanation. That said, there is no special rule for sexual abuse cases. In any case, the strength of the similar fact evidence must be such as to outweigh “reasoning prejudice” and “moral prejudice”. The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence. Although an element of “moral prejudice” may be introduced, it must be concluded by the trial judge on a balance of probabilities that the probative value of the sound inferences exceeds any prejudice likely to be created.
43 As set out in the dissenting reasons of Dickson J., concurred in by Laskin C.J., in Leblanc v. The Queen, [1977] 1 S.C.R. 339, at p. 345: “There is, however, a limited but legitimate area of exception to the general exclusionary rule that the accused has only to answer the specific charge contained in the indictment.”
44 The criminal trial is, after all, about the search for truth as well as fairness to an accused. Thus Lord Herschell L.C., in what is called the second “branch” of Makin, supra, said at p. 65:
On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or t