R. v. Handy (J.) (2002), 160 O.A.C. 201 (SCC)
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[French language version follows English language version]
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Temp. Cite: [2002] O.A.C. TBEd. JN.061
Her Majesty The Queen (appellant) v. James Handy (respondent)
(27996; 2002 SCC 56; 2002 CSC 56)
Indexed As: R. v. Handy (J.)
Supreme Court of Canada
McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
June 21, 2002.
Summary:
The accused was charged with sexual assault causing bodily harm. The trial judge allowed the Crown to introduce similar fact evidence. A jury convicted the accused of the included offence of sexual assault. The accused appealed his conviction.
The Ontario Court of Appeal, in a decision reported at 131 O.A.C. 297, allowed the appeal and ordered a new trial. The Crown appealed.
The Supreme Court of Canada dismissed the appeal.
Criminal Law – Topic 5204.3
Evidence and witnesses – General – Admissibility – Evidence of disposition or propensity of accused – The Supreme Court of Canada stated that evidence of general propensity or disposition was generally inadmissible – However, similar fact evidence would be admitted where it was so highly relevant and cogent that its probative value in the search for truth outweighed any potential of misuse – The onus was on the prosecution to satisfy the court on a balance of probabilities that in the context of the particular case, the probative value of the evidence in relation to a particular issue outweighed its potential prejudice and thereby justified its reception – The court discussed difficulties in the application of the test – See paragraphs 31 to 97.
Criminal Law – Topic 5209
Evidence and witnesses – Admissibility and relevancy – Prejudicial evidence – The accused was charged with sexual assault causing bodily harm – The complainant testified that the accused continued vaginal intercourse after she had withdrawn her consent and forcibly performed anal intercourse despite her protestations – The Crown sought to introduce similar fact evidence from the accused’s former wife to the effect that the accused had a propensity to inflict painful sex and when aroused would not take no for an answer – The evidence involved seven incidents of physical and/or sexual abuse – The trial judge admitted the evidence and a jury convicted the accused of the included offence of sexual assault – The Supreme Court of Canada held that the trial judge erred in admitting the evidence – The trial judge failed to properly evaluate the probative value of the evidence, especially with respect to potential collusion – The court discussed other frailties of the evidence, including dissimilarities – The court held that the trial judge understated the evidence’s potential evidence for distraction and prejudice – See paragraphs 98 to 153.
Criminal Law – Topic 5209
Evidence and witnesses – Admissibility and relevancy – Prejudicial evidence – [See
Criminal Law – Topic 5204.3
].
Criminal Law – Topic 5213
Evidence and witnesses – Admissibility and relevancy – Similar acts – When admissible – The Supreme Court of Canada stated that factors connecting similar facts to the circumstances set out in a charge included proximity in time of the similar acts, extent to which the other acts are similar in detail to the charged conduct, number of occurrences of the similar acts, circumstances surrounding or relating to the similar acts, any distinctive feature(s) unifying the incidents, intervening events, and any other factor which would tend to support or rebut the underlying unity of the similar acts – Factors helpful in assessing prejudice included the inflammatory nature of the similar acts, whether the Crown could prove its point with less prejudicial evidence, the potential distraction of the trier of fact from its proper focus on the facts charged, and potential for undue time consumption (collectively moral prejudice and reasoning prejudice) – See paragraphs 82 and 83.
Criminal Law – Topic 5213
Evidence and witnesses – Admissibility and relevancy – Similar acts – When admissible – The Supreme Court of Canada referred to the “conclusiveness” test for the admission of similar fact evidence – The test provided that “unless the similar fact evidence taken together with the other evidence in the case, would be consistent with guilty and with no other conclusion, it ought to be rejected” – The court rejected the test and held that similar fact evidence did not have to be conclusive to be admitted – See paragraphs 94 to 97.
Criminal Law – Topic 5213
Evidence and witnesses – Admissibility and relevancy – Similar acts – When admissible – The accused was charged with sexual assault causing bodily harm – The Crown sought to introduce similar fact evidence from the accused’s ex-wife about seven incidents of physical and/or sexual abuse – Prior to the alleged assault, the ex-wife had told the complainant about, inter alia, her abuse allegations – She also told her that she had received criminal compensation and stated that “all you had to do [to get the money] was say that you were abused” – The trial judge admitted the similar fact evidence – He held that there was no direct evidence of collusion and regardless, it was a decision for the trier of fact – A jury convicted the accused of sexual assault – The Supreme Court of Canada ordered a new trial – The trial judge’s refusal to resolve the issue of collusion as a condition precedent to admissibility was an error of law – See paragraphs 104 to 114 and 153.
Criminal Law – Topic 5213
Evidence and witnesses – Admissibility and relevancy – Similar acts – When admissible – The Supreme Court of Canada discussed the admission of similar fact evidence – The court stated that “In the usual course, frailties in the evidence would be left to the trier of fact, in this case the jury. However, where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration.” – See paragraph 134.
Criminal Law – Topic 5213
Evidence and witnesses – Admissibility and relevancy – Similar acts – When admissible – [See
Criminal Law – Topic 5204.3
and first
Criminal Law – Topic 5209
].
Criminal Law – Topic 5214.4
Evidence and witnesses – Admissibility and relevancy – Similar acts – To prove propensity – The Supreme Court of Canada stated that “Similar fact evidence is sometimes said to demonstrate a ‘system’ or ‘modus operandi’, but in essence the idea of ‘modus operandi’ or ‘system’ is simply the observed pattern of propensity operating in a closely defined and circumscribed context. References to ‘calling cards’ or ‘signatures’ or ‘hallmarks’ or ‘fingerprints’ similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. The issue at that stage is no longer ‘pure’ propensity or ‘general disposition’ but repeated conduct in a particular and highly specific type of situation. At that point, the evidence of similar facts provides a compelling inference that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken … by the jury.” – See paragraphs 90 and 91.
Evidence – Topic 1026
Relevant facts – Relevance and materiality – Admissibility – Prejudicial evidence – [See
Criminal Law – Topic 5204.3
and first
Criminal Law – Topic 5209
].
Evidence – Topic 1257
Relevant facts – Relevance and materiality – Similar acts – To prove course of conduct – [See first
Criminal Law – Topic 5209
and
Criminal Law – Topic 5214.4
].
Evidence – Topic 4025
Witnesses – General – Credibility – Collusion or complicity – [See third
Criminal Law – Topic 5213
].
Cases Noticed:
R. v. Robertson, [1987] 1 S.C.R. 918; 75 N.R. 6; 20 O.A.C. 200; 33 C.C.C.(3d) 481; 58 C.R.(3d) 28, refd to. [para. 26].
R. v. Watson (K.S.) (1996), 92 O.A.C. 131; 50 C.R.(4th) 245 (C.A.), refd to. [para. 26].
R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 35 O.R.(3d) 35 (C.A.), refd to. [para. 26].
Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.), refd to. [para. 27].
R. v. Harrison (1692), 12 State Tr. 833, refd to. [para. 32].
Makin v. New South Wales (Attorney General), [1894] A.C. 57 (P.C.), refd to. [para. 33].
R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 36].
R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 36].
R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, consd. [para. 36].
R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, consd. [para. 36].
R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 37].
R. v. LeBlanc, [1977] 1 S.C.R. 339; 8 N.R. 107, refd to. [para. 43].
United States of America v. York (1991), 933 F.2d 1343 (7th Cir.), refd to. [para. 45].
R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550; 37 A.R. 294, consd. [para. 49].
R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63, refd to. [para. 53].
R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 66].
R. v. W.B. (2000), 134 O.A.C. 1; 34 C.R.(5th) 197 (C.A.), refd to. [para. 68].
R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 69].
R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 69].
R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191, refd to. [para. 69].
R. v. Sims, [1946] 1 All E.R. 697 (C.C.A.), refd to. [para. 71].
R. v. Clermont, [1986] 2 S.C.R. 131; 69 N.R. 202, refd to. [para. 74].
R. v. Bosley (M.) (1992), 59 O.A.C. 161; 18 C.R.(4th) 347 (C.A.), refd to. [para. 74].
R. v. Proctor (1992), 75 Man.R.(2d) 217; 6 W.A.C. 217; 69 C.C.C.(3d) 436 (C.A.), refd to. [para. 74].
R. v. Hanna (1990), 57 C.C.C.(3d) 392 (B.C.C.A.), refd to. [para. 74].
R. v. Scopelliti (1981), 63 C.C.C.(2d) 481 (Ont. C.A.), refd to. [para. 77].
R. v. Straffen, [1952] 2 Q.B. 911, refd to. [para. 77].
R. v. Carpenter (1982), 142 D.L.R.(3d) 237 (Ont. C.A.), refd to. [para. 78].
R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 81].
R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 81].
R. v. Simpson (1977), 35 C.C.C.(2d) 337 (Ont. C.A.), refd to. [para. 82].
R. v. Huot (C.) (1993), 66 O.A.C. 155; 16 O.R.(3d) 214 (C.A.), refd to. [para. 82].
R. v. Rulli (M.) (1999), 120 O.A.C. 357; 134 C.C.C.(3d) 465 (C.A.), refd to. [para. 82].
R. v. Fleming (D.P.) (1999), 171 Nfld. & P.E.I.R. 183; 525 A.P.R. 183 (Nfld. C.A.), refd to. [para. 82].
R. v. Dupras, [2000] B.C.J. No. 1513 (S.C.), refd to. [para. 82].
Director of Public Prosecutions v. Kilbourne, [1973] A.C. 729 (H.L.), refd to. [para. 84].
United States of America v. Enjady (1998), 134 F.3d 1427 (10th Cir.), certiorari denied (1998), 525 U.S. 887, refd to. [para. 84].
Pfennig v. R. (1995), 127 A.L.R. 99 (Aust. H.C.), not folld. [paras. 92, 95].
Hodge’s Case (1838), 2 Lew. C.C. 227; 168 E.R. 1136, refd to. [para. 96].
R. v. H., [1995] 2 A.C. 596; 185 N.R. 21 (H.L.), refd to. [para. 107].
R. v. Kenny (D.) (1996), 142 Nfld. & P.E.I.R. 250; 445 A.P.R. 250; 108 C.C.C.(3d) 349 (Nfld. C.A.), refd to. [para. 108].
R. v. D.M. (2000), 135 O.A.C. 365; 148 C.C.C.(3d) 273 (C.A.), refd to. [para. 109].
R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [para. 118].
R. v. Smith (1915), 84 L.J.K.B. 2153 (K.B.), refd to. [para. 128].
R. v. Minhas (1986), 16 O.A.C. 42; 29 C.C.C.(3d) 193 (C.A.), refd to. [para. 132].
R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 142].
R. v. L.E.D. (1987), 20 B.C.L.R.(2d) 384 (C.A.), refd to. [para. 145].
Director of Public Prosecutions v. P., [1991] 2 A.C. 447 (H.L.), refd to. [para. 150].
R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 150].
Authors and Works Noticed:
Acorn, A.E., Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense (1991), 11 Oxford. J. Legal Stud. 63, generally [para. 28].
Cross, Rupert, and Tapper, Colin, Evidence (2nd Ed. 1999), pp. 350 et seq. [para. 26].
Delisle, R.J., The Direct Approach to Similar Fact Evidence (1996), 50 C.R.(4th) 286, generally [para. 28].
Durston, Gregory, Similar Fact Evidence: A Guide for the Perplexed in the Light of Recent Cases (1996), 160 Justice of the Peace Journal & Local Government Law 359, p. 359 [para. 138].
Great Britain Law Commission, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant, Consultation Paper No. 141 (1996), sect. 7.2 [para. 31].
Lloyd-Bostock, S., The Effects on Juries of Hearing About the Defendant’s Previous Criminal Record: A Simulation Study, [2000] Crim. L.R. 734, p. 742 [para. 141].
Martin, G. Arthur, Similar Fact Evidence, [1984] Spec. Lect. L.S.U.C. 1, pp. 9, 10 [para. 77].
McCormick, Charles Tilford, Handbook on the Law of Evidence (5th Ed. 1999), vol. 1, p. 687 [para. 89].
McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1988) (2001 Looseleaf Update) (Release 27), vol. 1, p. 11-4 [para. 28].
Mueller, Christopher B., and Kirkpatrick, Laird C., Federal Evidence (2nd Ed. 1994) (2001 Supp.), vol. 2, sect. 161 [para. 84].
Paciocco, David M., and Stuesser, Lee, The Law of Evidence (2nd Ed. 1999), pp. 37, 38, 39 [para. 26].
Pickel, K.L., Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help (1995), 19 L. & Hum. Behav. 407, generally [para. 141].
Rosenberg, March, Evidence of Similar Acts and Other Extrinsic Misconduct, National Criminal Law Program, Criminal Evidence (1994), pp. 3, sect. 8.1 [para. 28]; 8 [para. 80].
Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), sect. 11.26 [para. 115]; sect. 11.30 [para. 57]; sect. 11.74 [para. 146]; sect. 11.113 [para. 26]; sect. 11.141 [para. 67]; 11.173 [para. 138].
Stuesser, Lee, Similar Fact Evidence in Sexual Offences Cases (1997), 39 Crim. L.Q. 160, generally [para. 28].
Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourn Rev. 1979), vol. 2, pp. 245, 246 [para. 81].
Wigmore, John Henry, Evidence in Trials at Common Law (Tillers Rev. 1983), vol. 1A, pp. 1152, 1153 [paras. 26, 67].
Wissler, Roselle L., and Saks, Michael J., On the Inefficacy of Limiting Instructions; When Jurors use Prior Conviction Evidence to Decide on Guilt (1986), 9 L. & Hum. Behav. 37, p. 43 [para. 141].
Counsel:
Christopher Webb, for the appellant;
Richard N. Stern and David E. Harris, for the respondent.
Solicitors of Record:
Ministry of the Attorney General for Ontario, Toronto, Ontario, for the appellant;
Richard N. Stern and David E. Harris, Toronto, Ontario, for the respondent.
This appeal was heard on October 9, 2001, before McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.
The following judgment of the court was delivered by Binnie, J., on June 21, 2002, in both official languages.
