R. v. B. (C.R.)

R. v. B. (C.R.)
Collection
Supreme Court Judgments
Date
1990-04-12
Report
[1990] 1 SCR 717
Case number
20704
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 20704
Decision Content
R. v. B. (C.R.), [1990] 1 S.C.R. 717
C.R.B. Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. b. (c.r.)
File No.: 20704.
1989: October 30; 1990: April 12.
Present: Dickson C.J. and Lamer, Wilson, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Evidence ‑‑ Similar fact evidence ‑‑ Admissibility ‑‑ Sexual offences ‑‑ Accused convicted of sexual offences against his natural daughter ‑‑ Whether evidence of alleged prior acts of sexual misconduct by the accused with the daughter of his common law wife should have been admitted.
The accused was charged with sexual offences against his natural daughter, the complainant, who was in his custody subsequent to the death of her mother. At trial, the issue was not who had committed the offences but whether the complainant should be believed. The complainant testified that the acts of sexual misconduct by the accused began in 1981 when she was eleven years old and continued for almost two years. According to her testimony, the acts occurred two or three times a week, progressing from fondling to oral sex, sexual intercourse and buggery. On occasion, she and the accused urinated on each other. To support her testimony, the Crown sought to introduce evidence that in 1975 the accused had had sexual relations with a 15‑year‑old girl, M.H.S., the daughter of his common law wife, with whom he had also enjoyed a father‑daughter relationship. M.H.S., who was at the time already sexually active, testified that within a year of living in their home, the accused began making sexual advances towards her. It started with fondling and, ultimately, the accused had intercourse with her five or six times. In addition, oral sex and masturbation occurred. In his ruling on the voir dire, the trial judge set out the proper test for the reception of similar fact evidence but later stated that the admissibility of M.H.S.'s testimony depended on "whether the similarities are sufficient to show that the accused had common characteristics in the methods he used in the sexual acts with [the complainant and M.H.S.] and that it is likely that they are one and the same man". He admitted the evidence and, at the end of the trial, convicted the accused. The majority of the Court of Appeal held that the similar fact evidence was properly admitted and upheld the conviction. This appeal is to determine whether the Court of Appeal was correct in holding that the evidence was admissible, notwithstanding the trial judge's reference to identity and the distinctions relied on by the accused between the case alleged against him and the similar fact evidence.
Held (Lamer and Sopinka JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Wilson, L'Heureux‑Dubé, Gonthier and McLachlin JJ.: Evidence which is adduced solely to show disposition or propensity is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to the general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect. Where, as in this case, the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high to permit its reception. The trial judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, for the purpose of determining whether, in the context of the case before him, the probative value of the evidence outweighs its potential prejudice and justifies its reception.
In this case, the trial judge did not err in admitting the evidence of M.H.S. He set out the proper test for the reception of similar fact evidence and clearly proceeded on the assumption that the evidence was prima facie inadmissible. The trial judge's concern with the degree of similarity between the two stories was proper. While his comment suggesting that the similar fact evidence related to the identity of the perpetrator, which was not in issue, was in error, his reasons for convicting show that he was not at all concerned with identity, and considered the central issue of the case to be whether the complainant should be believed. The fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence. In the context of the ruling as a whole and all the circumstances, the error was not material and did not undermine the validity of the trial judge's decision. In general, however, a trial judge should, in cases involving highly prejudicial similar fact evidence, clearly indicate the issue to which the evidence is relevant.
Where identity or mens rea is not in issue, similar fact evidence may be useful in providing corroboration. Indeed, where, as in this case, the word of the child alleged to have been sexually assaulted is pitted against the word of the accused, similar fact evidence may be helpful on the central issue of credibility.
Finally, it cannot be concluded from the similarities and dissimilarities between the evidence of the complainant and the similar fact evidence of M.H.S., and from the considerable lapse of time between the two alleged relationships, that the evidence necessarily fails the "high probative value" test. The fact that in each case the accused established a father‑daughter relationship with the girl before the sexual violations began might arguably go to show, if not a system or design, a pattern of similar behaviour suggesting that the complainant's story is true. The question then is whether the probative value of the evidence outweighs its prejudicial effect. Even if the admissibility of the evidence is borderline, this Court should not interfere with the conclusion of the trial judge, who was charged with the task of weighing the probative value of the evidence against its prejudicial effect in the context of the case as a whole. Where the law accords a large degree of discretion to a trial judge, appellate courts should be reluctant to interfere with the exercise of that discretion in the absence of a demonstrated error of law or jurisdiction.
Per Lamer and Sopinka JJ. (dissenting): There is no special rule with relation to similar fact evidence in sexual offences. Similar fact evidence, to be admitted, must have relevance to an issue in the case other than to simply show a general disposition to commit the crime charged; and, if it does, its probative value must exceed its prejudicial effect. The identification of the probative value of the evidence is thus a crucial factor in the application of the similar fact rule. Evidence adduced solely for the purpose of showing propensity is inadmissible. In some circumstances, however, the acts of an accused are admissible, notwithstanding their tendency to show propensity, if those acts have a close or striking similarity to the act charged. The admission of similar fact evidence on this basis does not depart from the policy that evidence of propensity alone is not to be admitted. There is a distinction between evidence of general character and modus operandi. What the law seeks to forbid is a process of reasoning that would condemn the accused because of the accused's character. A highly individualized modus operandi is tantamount to evidence that the accused left his calling card. The process of reasoning which connects the accused to the crime charged is the same as in the case of other evidence of identification and is distinguishable from the prohibited line of reasoning. In short, the basis for admitting the evidence is relevance other than mere propensity.
In the present case, the trial judge erred in admitting the evidence. He misstated the relevance of the evidence and did not determine whether the prejudicial effect of the evidence outweighed its probative value. It is pure speculation to say that he treated the evidence as relevant to the issue of the credibility of the complainant. Assuming, however, that the trial judge's statement accepting the evidence of the complainant can be construed as relating the similar fact evidence to that issue, it was an insufficient identification of relevance to an issue. The complainant's credibility in this case was co‑extensive with the issue of innocence or guilt. The Crown's case was based almost entirely on the evidence of the complainant, and the defence was a denial of the complaint. Any relevant evidence having the tendency to show guilt could be said to be relevant to the issue of credibility of the complainant. More specific identification was required: both the relevance of the evidence and its use for a purpose not prohibited by law had to be clearly identified.
The fact that the alleged similar facts had common characteristics with the acts charged did not render them admissible, and therefore, supportive of the evidence of the complainant. In order to be admissible, 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. There is nothing in the reasons of the trial judge to suggest that the evidence was considered in light of these principles. In any event, the common characteristics in the evidence of the two girls were not so unusual that it would be against common sense to conclude that they were not both telling the truth. The two cases were separated by a considerable passage of time and there were material differences as well. The fact that the accused in each case established a father‑daughter relationship was not so exceptional. With respect to collaboration, although the Crown must negate conspiracy or collaboration in accordance with the criminal standard, no attempt was made to negate the possibility of collaboration.
The fact that similar fact evidence is useful as corroborative evidence for the testimony of children is not a basis for admissibility. Before evidence can be treated as corroborative, it must be found to be admissible.
Cases Cited
By McLachlin J.
Considered: Director of Public Prosecutions v. Boardman, [1975] A.C. 421; referred to: Makin v. Attorney‑General for New South Wales, [1894] A.C. 57; Cloutier v. The Queen, [1979] 2 S.C.R. 709; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Morin, [1988] 2 S.C.R. 345; R. v. D. (L.E.), [1989] 2 S.C.R. 111; R. v. Scopelliti (1981), 63 C.C.C. (2d) 481; Guay v. The Queen, [1979] 1 S.C.R. 18; Sweitzer v. The Queen, [1982] 1 S.C.R. 949; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Mansfield (1977), 65 Cr. App. R. 276; R. v. Scarrott, [1978] Q.B. 1016; Sutton v. The Queen (1984), 152 C.L.R. 528; Harris v. Director of Public Prosecutions, [1952] A.C. 694; R. v. Campbell, [1956] 2 All E.R. 272; R. v. Hampden (1684), 9 How. St. Tr. 1053; R. v. Hall (1887), 5 N.Z.L.R. 93; R. v. Wray, [1971] S.C.R. 272; R. v. Rance (1975), 62 Cr. App. R. 118.
By Sopinka J. (dissenting)
Director of Public Prosecutions v. Kilbourne, [1973] A.C. 729; Director of Public Prosecutions v. Boardman, [1975] A.C. 421; Makin v. Attorney‑General for New South Wales, [1894] A.C. 57; R. v. Sims, [1946] K.B. 531; Cloutier v. The Queen, [1979] 2 S.C.R. 709; Sweitzer v. The Queen, [1982] 1 S.C.R. 949; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. D. (L.E.), [1989] 2 S.C.R. 111, rev'g (1987), 20 B.C.L.R. (2d) 384; Harris v. Director of Public Prosecutions, [1952] A.C. 694; R. v. Straffen, [1952] 2 Q.B. 911.
Authors Cited
Andrews, John A. and Michael Hirst. Criminal Evidence. London: Waterlow Publishers, 1987.
Cross on Evidence, 6th ed. By Sir Rupert Cross and Colin Tapper. London: Butterworths, 1985.
Forbes, J. R. S. Similar Facts. Sydney: Law Book Co., 1987.
Foster, Sir Michael. Crown Law. Oxford, 1762.
Hoffmann, L. H. "Similar Facts After Boardman" (1975), 91 L.Q.R. 193.
Phipson on Evidence, 12th ed. By John Huxley Buzzard, Richard May and M. N. Howard. London: Sweet & Maxwell, 1976.
Sklar, Ronald B. "Similar Fact Evidence ‑‑ Catchwords and Cartwheels" (1977), 23 McGill L.J. 60.
APPEAL from a judgment of the Alberta Court of Appeal (1987), 56 Alta. L.R. (2d) 20, 82 A.R. 45, 39 C.C.C. (3d) 230, dismissing the accused's appeal from his convictions on charges of incest, gross indecency, buggery and sexual intercourse with a female under the age of 14 years. Appeal dismissed, Lamer and Sopinka JJ. dissenting.
Terence Semenuk, for the appellant.
Lindsay MacDonald, for the respondent.
//McLachlin J.//
The judgment of Dickson C.J. and Wilson, L'Heureux-Dubé, Gonthier and McLachlin JJ. was delivered by
McLachlin J. -- The accused was charged with sexual offences against a young child, his natural daughter. The issue was not who had committed the offences but whether they had occurred at all. The main Crown evidence was that of the child. The question was whether she should be believed.
In support of the child's testimony, the Crown sought to introduce evidence that the accused had previously had sexual relations with an older girl, the daughter of his common law wife, with whom he had enjoyed a father-daughter relationship. The trial judge admitted the evidence and convicted the accused. Although the judge appears to have applied the correct test, a comment suggesting that the similar fact evidence related to the issue of identity was in error. The Court of Appeal, Harradence J.A. dissenting, held that the similar fact evidence was properly admitted and upheld the conviction: (1987), 56 Alta. L.R. (2d) 20.
The question before us is whether the majority of the Court of Appeal was correct in holding that the evidence was admissible, notwithstanding the trial judge's reference to identity and the distinctions relied on by the accused between the case alleged against him and the similar fact evidence.
The Test for Similar Fact Evidence
The common law has traditionally taken a strict view of similar fact evidence, regarding it with suspicion. In recent years, the courts have moved to loosen the formalistic strictures which had come to encumber the rule. The old category approach determining what types of similar fact evidence are admissible has given way to a more general test which balances the probative value of the evidence against its prejudice.
Despite the apparent simplicity of the modern rule for the admission of similar fact evidence, the rule remains one of considerable difficulty in application. The problems stem in part from a tendency to view the modern formulation of the rule in isolation from the historical context from whence it springs. While the contemporary formulation may permit a more flexible, less restricted analysis, the dangers which it addresses and the principles upon which it rests remain unchanged.
The Similar Fact Rule in England
As late as the 17th century, English law contained no rule preventing the admission of either character or similar fact evidence. Occasionally one finds a reference to the potential unfairness of such evidence, such as the comment of the judge in R. v. Hampden (1684), 9 How. St. Tr. 1053, that "[t]o rake the whole course of a man's life is very hard." But in general, such evidence was admitted.
This changed in the 17th century. Because the common law had no firm rule against even the cruder forms of character evidence, a statute was enacted in 1695 that in cases of treason (of which there were many at the time) the prosecution should be limited to proof of the acts set out in the indictment. While the ambit of the statute was narrow, the idea which it embodied increasingly found favour in the courts. In 1762 a text writer named Foster (Crown Law (1762), at p. 246), referred to the "rule of rejecting all manner of evidence in criminal prosecutions that is foreign to the point in issue", stating the rule is "founded on good sense and common justice. For no man is bound . . . to answer at once and unprepared for every action of his life. . . ." A modern commentator summarizes the situation in the 18th century as follows:
In the 18th century the English courts resolved to confine evidence more closely to the matter in hand. In particular juries should not hear an accused's criminal record or the free-ranging denigration. . . . Evidence of that sort was seen to be insufficiently relevant. Indeed it was worse because, while the legal mind may transcend such distractions, lay juries, it was held, could not.
(J. R. S. Forbes, Similar Facts (1987), at p. v.)
The same writer concludes at p. 7: "By 1800 the law of evidence was apt to exclude general character evidence, even if it still admitted similar facts fairly liberally."
The legal formalism and emphasis on stare decisis that marked the 19th century approach to law narrowed the scope for the admission of similar fact evidence. Cases in which similar fact evidence had been admitted were reified into a series of categories in which, and only in which, similar fact evidence could be admitted. Similar fact evidence was admitted to show intent, a system, a plan, malice, identity, as well as to rebut the defences of accident, mistake and innocent association.
Nineteenth century courts started from the premise that a person should not be convicted on the basis that he had committed other offences. They developed a general exclusionary rule with the following exception: evidence of previous misconduct could be admitted if it possessed special probative value, making it useful for some other inference over and above the inference that because the accused had committed a crime before he was likely to have committed the offence with which he stood charged. Whether or not this exception was established was determined by asking whether the evidence fell into one of the established categories of admissibility. Viewed thus, the so-called similar fact rule was in reality an exception -- narrowly defined -- to the general rule excluding evidence of prior misconduct or propensity.
This approach is embodied in the oft-quoted passage from Makin v. Attorney-General for New South Wales, [1894] A.C. 57, at p. 65. Lord Herschell L.C. first enunciated the general principle of exclusion (the first limb of the rule):
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.
He then stated the exception (the second limb of the rule), 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 to rebut a defence which would otherwise be open to the accused.
From the point of view of underlying principle, the Makin rule may be seen as essentially concerned with probative value. On the one hand, it recognized the grave prejudice that evidence of previous wrongdoing or propensity might work. Such evidence often does not possess great logical or probative force. Yet at the same time it has great potential for harm, raising the danger that the jury may convict, not because they are satisfied that the Crown has proved beyond a reasonable doubt that the accused committed the offence with which he stands charged, but because the accused is a bad or suspicious person. On the other hand, the Makin rule acknowledged the common sense proposition that in some cases the probative value of the evidence might justify its reception.
As a rule of application the analysis in Makin typically involved two steps. Courts first asked whether the proposed evidence went beyond mere propensity. If that hurdle was met, they went on to determine whether the evidence fell within one of the accepted exclusionary categories. In practice, the two steps often merged since evidence falling within the established categories of exception to the general exclusionary rule usually went beyond mere propensity.
Problems with the category approach to similar fact evidence became increasingly apparent in the less formalistic 20th century. On the one hand, the effect of the categories and the frequently referred to requirement of "striking similarity" was that similar fact evidence, which from the point of view of common sense had great relevance, might be excluded -- a result which provoked one judge to declaim:
Viewed in the light of science . . . or common sense, there is without doubt a nexus. . . .
. . . the common law must often result in what the public may regard as a failure of justice. That is really not our concern.
(R. v. Hall (1887), 5 N.Z.L.R. 93 (C.A.), at pp. 108 and 110.)
Other judges reacted to the tendency of the rule to exclude probative evidence, by drawing distinctions that were fundamentally unworkable or imaginary in order to admit evidence which common sense told them should be admitted. On the other hand, the rule sometimes permitted reception of evidence of doubtful worth. Provided it fell within one of the accepted categories, evidence of prior misconduct or inclination might be admitted even though its relevance was suspect.
From the point of view of theory too, the category approach associated with Makin was subject to criticism. The categories focussed attention on the purpose for which the similar fact evidence was adduced, rather than the real question -- its relevance: see J. A. Andrews and M. Hirst, Criminal Evidence (1987), para. 15.34. As R. B. Sklar stated ("Similar Fact Evidence -- Catchwords and Cartwheels" (1977), 23 McGill L.J. 60, at p. 62), "[w]hether the evidence was really relevant to the issue by whatever the rationale and whether, if it was, it was relevant enough to justify its reception despite its nearly uncontrollable tendency to damn the accused in the minds of the jury, was lost in the shuffle." (Emphasis in original.) If the evidence fell within a recognizable category, it was admitted even if its relevance may have been suspect. Moreover, the emphasis on the need for the evidence to relate to an issue other than disposition was arguably artificial. As Professor Andrews and Mr. Hirst have commented, at pp. 342-43:
15.37 Although the courts made a great show of relying on the categories of relevance and of avoiding the forbidden chain of reasoning [guilt from propensity], their whole approach was really based upon a fundamental misconception. In reality, similar fact evidence can hardly ever show design or rebut a defence except by encouraging the court or jury to utilise the forbidden chain of reasoning. Whether the judges realised this or not, the undeniable fact is that in many of the leading cases evidence was admitted where it could only have been relevant because it showed disposition or propensity.
Provided some element, however small, other than disposition could be found to which the evidence related, it went in, although the effect might be almost entirely related to disposition.
Difficulties such as these led the House of Lords to re-address the question of similar fact evidence in Director of Public Prosecutions v. Boardman, [1975] A.C. 421. On its face, Boardman constitutes no great departure from Makin, with three of the five Law Lords (Lords Morris, Hailsham and Salmon) expressly affirming the validity of Makin. However, all five judges rejected the category approach that had become associated with Makin, emphasizing that similar fact evidence is not automatically admissible merely because it fits into a prescribed category. The admissibility of similar fact evidence was to be based on general principle, not categories and catch phrases. That general principle was relevance.
While the five separate and sometimes conflicting opinions delivered in Boardman may not provide a comprehensive picture of the various ways in which cogency may be found, the ratio decidendi of the case is clear: the admissibility of similar fact evidence depends on its bearing a very high degree of probative value -- sufficient to outweigh the inherent prejudice likely to flow from its reception. In the result, the House of Lords in Boardman held that the similar fact evidence in question was admissible on the ground of high probative value or "striking similarity", Lords Wilberforce and Cross expressing the reservation that they regarded the case as "borderline".
If the judges in Boardman were not willing to overrule Makin, some were prepared to engage an interpretation different from that which has been traditionally accorded the case. A majority of the judges accepted the first limb of the rule in Makin -- the exclusionary proposition -- although arguably in modified form. Lord Hailsham embraced in unequivocal terms the proposition that similar fact evidence merely going to show character or disposition is always inadmissible on the ground of irrelevancy (p. 451). The other judges, while emphasizing the importance of the general exclusionary rule against character and disposition, were prepared to accept that in exceptional circumstances evidence going only to disposition might be admissible. This marked a significant departure from the established position. The jurisprudence following on Makin had proceeded on the assumption that the evidence must relate to something other than disposition; mere disposition evidence could never be admitted. In Boardman the majority of the court accepted that a court or jury may properly infer guilt from evidence of disposition where the high and specific relevance of that evidence warrants such an inference.
On the second branch of the Makin rule, the speeches in Boardman emphasize Lord Herschell L.C.'s reference in Makin to the relevance of the evidence to an issue before the jury, while rejecting as definitive his allusion to the traditional categories of admissible similar fact evidence. All judges affirmed that in determining if the proffered evidence is admissible the courts must look primarily to its logical force in the context of the case and balance it against its potential prejudice to the accused.
Two points emerge from the foregoing discussion of Boardman. The first is the reaffirmation of the importance of a general exclusionary rule for evidence which goes merely to character or disposition and nothing more, albeit in a qualified form. For all the judges, it is from this rule that consideration of the admissibility of similar fact evidence begins. Boardman does not take us back to the 17th century where evidence of character and disposition could be freely received. Rather it formulates a new and essentially strict test for the reception of such evidence, which is admitted as an exception to the general exclusionary rule as a consequence of its high probative force.
The second point emerging from Boardman is the proposition that to be admissible, the probative force of the evidence must outweigh its potential prejudice in all the circumstances of the case. This introduces the idea of a sliding scale of admissibility. The degree of probative value required to establish the admissibility of similar fact evidence will generally be high where the evidence is Crown evidence suggesting serious criminality or immorality, as was the case in Boardman; hence their Lordships' insistence on such phrases as "striking similarity", the potential of the evidence to negate all "coincidence", "exceptional circumstances" and a "strong degree of probative force". Yet the possibility is left open that in other cases, where there is less prejudice to overcome (for example, in similar fact evidence presented by the defence or evidence of habits or business practices in civil cases) the degree of probative value required for admission may be lower.
This view of similar fact evidence posits a test which is related to, yet distinct from the general rule that evidence is not admissible if its prejudicial effect outweighs its probative value: see R. v. Wray, [1971] S.C.R. 272. That rule is an exclusionary rule applied to evidence which would otherwise be admissible. The reverse is the case with similar fact evidence. In determining its admissibility, one starts from the proposition that the evidence is inadmissible, given the low degree of probative force and the high degree of prejudice typically associated with it. The question then is whether, because of the exceptional probative value of the evidence under consideration in relation to its potential prejudice, it should be admitted notwithstanding the general exclusionary rule.
The Canadian Jurisprudence
The Canadian jurisprudence since Boardman is generally consistent with the approach advocated in that case. It has followed Boardman in rejecting the category approach to the admission of similar fact evidence. At the same time, cases in Canada have on the whole maintained an emphasis on the general rule that evidence of mere propensity is inadmissible, and have continued to emphasize the necessity that such evidence possess high probative value in relation to its potential prejudice.
This Court has repeatedly affirmed since Boardman that the starting point for determining whether similar fact evidence is admissible is the general exclusionary rule against the reception of evidence of disposition or character, aligning itself with the view of the majority in Boardman on this aspect of the rule. In Cloutier v. The Queen, [1979] 2 S.C.R. 709, Pratte J., for the majority, held that in general similar fact evidence merely going to show disposition is inadmissible because it has "no real probative value with regard to the specific crime attributed to the accused: there is no sufficient logical connection between the one and the other" (p. 731). Applying the rule from R. v. Rance (1975), 62 Cr. App. R. 118, at p. 121, he stated that similar fact evidence is admissible "if, but only if, it goes beyond showing a tendency to commit crimes of this kind and is positively probative in regard to the crime now charged" (p. 735). Similarly, in Morris v. The Queen, [1983] 2 S.C.R. 190, Lamer J. (whose statements on this point may be considered to be the unanimous view of the Court) cited with approval Lord Cross's statement in Boardman that in cases of exceptional probative value, evidence going to disposition might be admissible. More recently, Sopinka J., speaking for this Court in R. v. Morin, [1988] 2 S.C.R. 345, and in R. v. D. (L.E.), [1989] 2 S.C.R. 111, affirmed the general inadmissibility of evidence of disposition. To similar effect, Martin J.A., speaking for the Ontario Court of Appeal in R. v. Scopelliti (1981), 63 C.C.C. (2d) 481, stated at p. 496:
. . . the admission of similar fact evidence against an accused is exceptional, being allowed only if it has substantial probative value on some issue, otherwise than as proof of propensity (unless the propensity is so highly distinctive or unique as to constitute a signature).
While our courts have affirmed the general exclusionary rule for evidence of disposition and propensity, they have for the most part cast it in terms of Boardman rather than Makin. It is no longer necessary to hang the evidence tendered on the peg of some issue other than disposition. While the language of some of the assertions of the exclusionary rule admittedly might be taken to suggest that mere disposition evidence can never be admissible, the preponderant view prevailing in Canada is the view taken by the majority in Boardman -- evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.
The second characteristic of Canadian treatment of the similar fact rule since Boardman is a rejection of the category approach in favour of one of general principle. In Guay v. The Queen, [1979] 1 S.C.R. 18, the Court, per Pigeon J., held that the admissibility of similar fact evidence is based on "general principles" and that there is discretionary power in the trial judge to exclude such evidence (p. 32). Citing Boardman with approval, he rejected a mechanical, category approach, holding that there is "no closed list of the sort of cases where such evidence is admissible" but that it is "well established that it may be admitted to rebut a defence of legitimate association for honest purposes, as well as to rebut evidence of good character" (p. 32).
In Sweitzer v. The Queen, [1982] 1 S.C.R. 949, McIntyre J., speaking for the Court, held that "it would be an error to attempt to draw up a closed list of the sorts of cases in which the principle operates" (p. 953), concluding that the admissibility of similar fact evidence "will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission whatever the purpose of its admission" (p. 953). Subsequent cases have all affirmed the same approach. In R. v. Robertson, [1987] 1 S.C.R. 918, at p. 943, Wilson J., speaking for the Court, affirmed that the analysis must be based on general principle and posited a sliding scale of relevance:
The degree of probative value required varies with the prejudicial effect of the admission of the evidence. The probative value of evidence may increase if there is a degree of similarity in circumstances and proximity in time and place. However, admissibility does not turn on such a striking similarity. . . .
The old category approach was similarly rejected in R. v. Morin and R. v. D. (L.E.)
Catchwords have gone the same way as categories. Just as English courts have expressed doubts about the necessity of showing "striking similarity" (see R. v. Rance, supra; R. v. Mansfield (1977), 65 Cr. App. R. 276; R. v. Scarrott, [1978] Q.B. 1016), so in Robertson Wilson J. rejected the validity of this phrase as a legal test.
A third feature of this Court's treatment of the similar fact rule since Boardman is the tendency to accord a high degree of respect to the decision of the trial judge, who is charged with the delicate process of balancing the probative value of the evidence against its prejudicial effect. In Morris, the Court affirmed that the task of determining whether the evidence possesses sufficient probative value is that of the trial judge. Similarly, in Guay, Robertson, Morin, and D. (L.E.) this Court affirmed the decision of the trial judge with respect to similar fact evidence. This deference to the trial judge may in part be seen as a function of the broader, more discretionary nature of the modern rule at the stage where the probative value of the evidence must be weighed against its prejudicial effect. As a consequence of the rejection of the category approach, the admissibility of similar fact evidence since Boardman is a matter which effectively involves a certain amount of discretion. As pointed out in Morris, the weight to be given to evidence is a question for the trier of fact. Generally, where the law accords a large degree of discretion to a trial judge, courts of appeal are reluctant to interfere with the exercise of that discretion in the absence of demonstrated error of law or jurisdiction.
The difficulty of the trial judge's task and the amount of discretion entrusted to him or her is great. As Forbes, op. cit., puts it at pp. 54-55:
A judge presented with similar facts for the prosecution has to exercise an extraordinary complex of duties and powers. First he has to assess not only the relevance but also the weight of the disputed evidence, although the latter task is normally one for the jury. Second, he must somehow amalgamate relevance and weight to arrive at "probative value". Third, and with due regard to the exclusory presumption, he has to outweigh that probative value, in some rough balance if [sic] imponderables, against any prejudice which the evidence is likely to excite in the jurors' minds.
"The relative weight of proof and prejudice vary infinitely from one case to another and the opinion of a particular judge must depend on the impression the evidence makes upon him in the light of his experience and his own sense of what is fair. It is inevitable that some cases are so close to the borderline that different judges will take different views upon them, and it is, therefore the type of case in which this court will hesitate long to disturb a ruling of the trial judge. . . . (T)he matter in issue is to be determined very largely by intuitive means. . . ."
Where a trial judge has properly addressed these concerns and, after weighing the evidence and its potential prejudice, arrived at a conclusion as to its admissibility, appellate courts will not lightly intervene.
Other principles of importance emerge in the recent jurisprudence. One is the view taken in Boardman (p. 457) that the effect of the similar fact evidence must be considered in the context of other evidence in the case. Thus Sopinka J. writes in R. v. Morin, at p. 370:
It is difficult and arguably undesirable to lay down stringent rules for the determination of the relevance of a particular category of evidence. Relevance is very much a function of the other evidence and issues in a case.
See also Sutton v. The Queen (1984), 152 C.L.R. 528 (H.C. Aust.), at pp. 532-33.
This review of the jurisprudence leads me to the following conclusions as to the law of similar fact evidence as it now stands in Canada. The analysis of whether the evidence in question is admissible must begin with the recognition of the general exclusionary rule against evidence going merely to disposition. As affirmed in Boardman and reiterated by this Court in Guay, Cloutier, Morris, Morin and D. (L.E.), evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect. In a case such as the present, where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception. The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end of determining whether, in the context of the case before him, the probative value of the evidence outweighs its potential prejudice and justifies its reception.
Against this background, I turn to the facts in this case and the ruling of the trial judge.
Application of the Test for Similar Fact Evidence to this Case
The accused was charged with sexual off