A Wolf in Sheep’s Clothing? The Admissibility of Similar Fact Evidence as Narrative By K MacLeod

A Wolf in Sheep’s Clothing? The Admissibility of Similar Fact Evidence as Narrative

By Keenan MacLeod

Similar fact evidence is only intended to be admitted under exceptional circumstances.[1] Yet, Canadian courts have developed a dangerous trend of accepting evidence that would otherwise be inadmissible as part of a narrative loophole.[2] Crown prosecutors have been framing similar fact evidence for the purpose of establishing “context” and claim that it helps explain the narrative surrounding the alleged offence. This has since become a convenient method of circumventing evidentiary burdens and admitting otherwise inadmissible evidence as probative circumstantial evidence.

Some commentators have referred to the use of narrative evidence in criminal trials as a sheep in wolf’s clothing.[3] Narrative evidence adduced to provide background information to criminal allegations can be highly prejudicial to the accused because it can be proffered to establish bad character as circumstantial proof of the accused’s guilt. By admitting evidence through this narrative loophole, courts have accepted a backdoor channel for inadmissible evidence to be presented before the trier of fact. As a result, it dismisses the underlying reasons for excluding such evidence in the first place and removes a shield against wrongful convictions based on moral and prejudicial reasoning.

The Similar Fact Evidence Rule

Similar fact evidence is an extension of bad character evidence and is presumptively inadmissible in a criminal trial. The rationale for this evidentiary rule is based on the concept that its admission would give rise to a cognizable form of prejudice. Similar fact evidence can serve to distract the trier of fact and increase the risk of jurors engaging in prohibited propensity reasoning. Namely, it stigmatizes the accused by supporting the inference that they are simply the type of person likely to have commit the alleged criminal offence.

The Supreme Court of Canada in R v Handy expressed concern with routinely admitting similar fact evidence of general propensity as “it might encourage the police simply to ‘round up the usual suspects’ instead of making a proper unblinkered investigation of each particular case.”[4] However, similar fact evidence may be admissible if the Crown can establish on a balance of probabilities that the probative value of the evidence outweighs its potential prejudicial effect and that the evidence is relevant to a material issue at trial.[5]

Curbing the Narrative Loophole

Recently, in R v ZWC, the Ontario Court of Appeal sought to address the cavalier way in which narrative evidence is often introduced without much consideration of its prejudicial effect.[6] In ZWC, the accused had been charged with three counts of sexual assault against his wife, and one count of sexual assault against his daughter.[7] At trial, the judge admitted evidence of the accused’s uncharged prior discreditable conduct to establish animus and to help explain the relationship between the parties.[8] Namely, the evidence had been adduced to contextualize the reasons for why the complainant had decided to stay in a relationship with the accused and to demonstrate a pattern of control over the complainant and their daughter.[9]

On appeal, Strathy J held that a new trial was required as the trial judge failed to properly weigh the prejudicial effect of the evidence against its probative value leaving the evidence “unfiltered” and “uncontrolled”.[10] Thus, effectively prejudicing the accused. Furthermore, the trial judge’s jury instructions had not identified to the trier of fact the risk of reasoning prejudice when considering the evidence.[11] Consequently, creating a possibility that the jury had convicted the accused simply on the evidence of unproven prior discreditable conduct.[12]

Creating limitations & Minimizing the Prejudicial Effect

R v ZWC is an important case in demonstrating how the Crown may attempt to tender evidence that is beyond the scope of the allegation under the guise of “narrative”. Furthermore, it provides the proper guidance as to how trial judges can admit evidence that goes to the narrative of the case. Additionally, it establishes reasonable limitations to its use. Regarding a preliminary assessment of the evidence, Strathy J stated the following:

In considering whether to proffer evidence of prior discreditable conduct, the Crown must start from the principle that such

evidence is presumptively inadmissible, and its introduction is exceptional. […] Vague terms, such as "narrative", "context,"

and "background," cannot be permitted to serve as a substitute for a careful assessment of how the evidence will assist

the jury in understanding other admissible evidence, what inferences the jury may properly draw from the evidence, and

how impermissible reasoning can be prevented.[13]

The decision in ZWC emphasizes that trial judges are required to turn their minds to the necessity of similar fact evidence. Additionally, it is the responsibility of the Crown to establish “exactly what inferences it will be asking the jury to draw from the evidence”.[14] Furthermore, the trial judge must instruct the jury on how the evidence is exactly intended to be used in the trial to mitigate its prejudicial effect.[15]

The Current State of Similar Fact Evidence as Narrative

Similar fact evidence and bad character evidence tendered to demonstrate a narrative can still be probative and add value to the trier of fact in their decision-making process. If the evidence is proffered to help explain a material issue at trial and it survives the rigours of balancing its probative value against prejudice, admitting the evidence will be justified.[16] However, it should be admitted sparingly and only if it is necessary to contextualize other evidence or to make the case more intelligible or sensible.[17] Absent these limitations, courts risk the possibility of erroneous convictions. Ultimately, the decision in R v ZWC represents an important shift towards upholding existing exclusionary rules of evidence and limiting the usage of the narrative loophole.

[1]R v Handy, 2002 SCC 56 at para 55. [2] R v Stauth, [2021] AJ No 319 at para 35. [3] Christopher Nowlin, “Narrative Evidence: A Wolf in Sheep’s Clothing, Part I” (2006) 51:2 Crim LQ 238 at 238. [4] Supra note 1 at para 38. [5] Ibid at para 55. [6] R v ZWC, [2021] OJ No 887 at para 122. [7] Ibid at para 1. [8] Ibid at para 2. [9] Ibid at para 23. [10] Ibid at para 119. [11] Ibid at para 120. [12] Supra note 9. [13] Ibid at para 22. [14] Ibid at para 99. [15] Ibid at para 32. [16] Supra note 5. [17] Supra note 2 at para 36.