Dissimilar Facts: Relationship Evidence in Taweel
NB: This post contains sexual content
As an exception to the general exclusionary rule prohibiting a party from leading evidence of the bad character of the accused and owing to the potential danger of its misuse, the threshold test for admissibility of similar fact evidence is necessarily stringent.1 Presumptively inadmissible, the test set forth by the SCC in R v Handy2 requires the prosecution to satisfy the trial judge on a balance of probabilities that the probative value of the evidence concerning a particular issue at trial outweighs its potential prejudicial effect.3 In R v Taweel,4 the NSCA was asked to consider the admissibility of similar fact evidence detailing a prior sexual history between the complainant and the accused. Since the introduction of rape shield legislation, evidence related to the prior sexual history of the complainant has been inadmissible for the purposes of establishing the complainant’s credibility or character.5 As the legislation affords no such protection to the accused, a court must look to the similar fact evidence exception for admissibility. However, the judgment in Taweel suggests that similar fact evidence related to prior sexual history, particularly evidence of a prior sexual relationship between the parties, may be of such low probative value as to be generally inadmissible for this purpose.
While Taweel reaffirms the test set out in Handy, the case’s primary contribution to evidence jurisprudence can, arguably, be found in Saunders JA’s investigation into the admissibility of the Crown’s supposed “relationship” evidence. In his judgment, Saunders JA recognizes defense counsel’s argument, that there is “nothing similar about the evidence at all”, as the appropriate basis for rejecting its admissibility as similar fact evidence.6 S. 276(1) of the Criminal Code7 bars evidence of a complainant’s prior sexual activity based on the problematic and prohibited lines of reasoning that such evidence could be used to determine whether a complainant is more likely to have consented or is less worthy of belief.8 This exclusionary rule applies to both consensual and non-consensual sexual activity.9
While no such rule excludes the use of prior sexual history evidence pertaining to the accused, logic dictates that the probative value of similar fact evidence of a sexual nature would find its basis in the aforementioned “twin myths”. This disconnect was not lost on Saunders JA who noted that while the Crown’s relationship evidence might be “tangentially relevant to the issue of whether the accused and complainant consented to sexual activity in PEI, it [was] not relevant or probative of anything in Nova Scotia”.10 Without offering an answer, Saunders JA considered whether the practice of admitting relationship evidence in this context is even “principled or defensible”.11 Having little to no probative value and a potentially insurmountable prejudicial effect, evidence of a prior sexual relationship may be not only inadmissible, but also irrelevant.
Closing the Door on Relationship Evidence
There were several inconsistencies in Taweel regarding the reasons for admission of the Crown’s similar fact or “relationship” evidence. While the trial judgment included justifications ranging from narrative to consent, it was evident from the transcript that the relationship evidence was admitted for a limited purpose and that it could not be used to assess the accused’s credibility or to be relied upon for the truth of its content.12 Nevertheless, confusion sewn by its admission led to reliance on the evidence for a wide range of issues including the material issue of guilt.13 According to Saunders JA, “[t]he door which the judge had been persuaded to open slightly so as to permit the introduction of such evidence for the limited purpose of narrative and context was ultimately left completely ajar”.14
While the appeal turned on the trial judge’s misuse of the relationship evidence, it was the poisonous nature of improperly admitted similar fact evidence which Saunders JA identified as having “infected the judge’s reasons and conclusions”, seriously compromising the verdict.15 Although cautioning future trial judges on the dangers of admitting similar fact evidence pertaining to prior sexual history, Saunders JA stops short of advocating for a complete prohibition on extrinsic relationship evidence, instead urging trial judges to employ a “strict and high level of vigilance over the admissibility of similar fact evidence”.16 While the door remains open to the admission of relationship evidence in sexual assault cases, the heightened gatekeeping function recommended by Saunders JA may prove to be an effective screen. It remains to be seen in what circumstances similar fact evidence of a prior sexual relationship will satisfy the high level of vigilance outlined in Taweel. However, considering Saunders JA’s misgivings regarding the probative value of such evidence, it follows that we will likely see a marked decline in the admission of “relationship” evidence at the trial level. This is a positive development in line with the legislative purpose behind s. 276 and yet another step toward eliminating rape myth reliance in our criminal justice system.
1 Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis Canada, 2018) at 714.
2 R v Handy,  2 SCR 908,  SCJ No. 57.
3 Ibid., at para 55.
4 R v Taweel, 2015 NSCA 107,  NSJ No. 503.
5 Criminal Code, RSC 1985, c C-46, s 276(1).
6 R v Taweel, 2015 NSCA 107,  NSJ No. 503 at para 93.
7 Criminal Code, RSC 1985, c C-46, s 276(1).
8 Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis Canada, 2018) at 696-97.
9 Ibid., at 697.
10 R v Taweel, 2015 NSCA 107,  NSJ No. 503 at para 148.
11 Ibid., at para 108.
12 Ibid., at para 103.
13 Ibid., at para 132.
15 Ibid., at para 166.
16 Ibid., at para 4.