• Lewis Waring

Sexual Assault and Similar Fact Evidence - Sarah Dalton


As with other types of evidence, similar fact evidence (“SFE”) is only admissible when its probative value outweighs its prejudicial effect. The rationale for its presumed inadmissibility is that SFE is an example of bad character evidence. This evidentiary rule is especially challenging in sexual assault cases due to the prevalence of existing biases toward gender, race, and sexual orientation.

In R v Handy (“Handy”), a case involving charges of sexual assault, the Supreme Court of Canada (“the Court”) created four factors to consider when determining a piece of SFE’s probative value. In R v Percy (“Percy”), the Court departed from the precedent set in Handy, incorrectly applying the third factor, which considered the scope of the issue. Improper issue-framing is highly problematic because it affects the threshold of SFE admissibility. By dismissing the appeal, the court stringently weighed SFE by focusing on its dissimilarities, excluding relevant evidence. Sexual assault cases typically involve conflicting recollections, and more evidence is better than less to resolve such ambiguities. If Percy’s interpretation of Handy continues, it could negatively impact the amount of evidence before a court in sexual assault cases.


A controversial decision regarding similar fact evidence


The respondent (“Percy”) met the complainant (“Ms. C”) at the St. Mary’s University gym. On 2 September, 2017, they separately went drinking downtown with friends and eventually met up at a bar. Both parties returned to Percy’s apartment and began consensually kissing on the couch. The next day, Ms. C had a bruised neck and a sore vagina. Despite gaps in Ms. C’s recollection, she maintains she expressly said no to intercourse. Ms. C accused Percy of sexual assault, voyeurism, and choking. Percy denied the claims, alleging their night was consensual. The police found three videos on Percy’s phone depicting their sexual activity. On September 15, 2017, another claimant (“Ms. T”) accused Percy of sexual assault wherein Percy took videos depicting fellatio and vaginal intercourse. The Crown submitted these videos as SFE in Ms. C’s case.

At trial, the judge refused to admit the SFE and acquitted Percy, finding his testimony credible enough to raise a reasonable doubt as to the veracity of Ms. C’s statements. The Crown appealed, alleging the trial judge made several legal errors including improper framing of the issue and excluding of the SFE. However, the Nova Scotia Court of Appeal (“NSCA”) dismissed the appeal since the acquittal arose from the respondent’s testimony rather than unsound legal reasoning. Notably, the decision in Percy stood in contrast with Handy, the leading case on SFE. Despite this tension, the NSCA decision in Percy is gaining traction in the Canadian judiciary.

In Percy, the Crown proffered SFE at trial to address the issue of credibility. However, in Handy, a unanimous Supreme Court held that, in sexual assault cases, the issue is more precisely framed as “the consent component of the actus reus” rather than broadly framed as credibility. Therefore, the Crown argued the trial judge erred in law by improperly framing the issue as credibility rather than consent. Following the precedent in Handy, the appeal should have succeeded. However, Beveridge JA submitted the error did not alter the effectiveness of the Crown’s arguments since it was Percy’s testimony that secured his acquittal.


A problem with current rules of similar fact evidence


The incongruity between issue-framing in Handy and Percy is problematic. While the NSCA’s dismissal does not alter the law of consent, it does impact the weighing of the probative value of SFE. SFE may be admitted when the probative value of the evidence outweighs its prejudicial effect. A court can only assess the probative value after identifying the issue. Consequently, issue-framing impacts the admissibility of SFE. In Handy, the court confirmed that SFE is admissible in sexual assault cases when it shows a “specific propensity to engage [in] a particular kind of behaviour” or the “respondent's alleged propensity to refuse to take no for an answer”. Subsequently, the probative value of SFE portraying an accused’s propensity for sexual malfeasance outweighs its prejudicial effect.

The SFE that the Crown sought to introduce depicted sexual activity between Percy and Ms. T. In one video, Ms. T appears inert and unresponsive. The video evidence alone made it clear that she was “unable to give her consent to continued sexual intercourse.” The Crown posited that the videos depicting Ms. T were relevant to the actus reus of the offence and Percy’s modus operandi, since they show Percy’s indifference to his sexual partner’s consent and his propensity to engage in non-consensual sexual activities. This argument demonstrates the impact that issue-framing can have on the probative value of SFE which, in turn, affects its admissibility. In Percy, broad issue-framing at trial resulted in the exclusion of potentially significant evidence. Thus, the NSCA’s failure to find an error with the issue framing is significant in SFE admissibility jurisprudence.

Furthermore, the Court in Handy held that SFE is probative “where a trier of fact is able to legitimately infer, on the basis of the respondent’s past sexual misconduct in closely comparable circumstances, that coincidence is objectively improbable”. Following this reasoning, if the issue in Percy was consent rather than credibility, Ms. T’s video evidence would show an improbable coincidence. However, post-Handy, courts frequently exclude SFE if the prior sexual misconduct lacks similarity to the case at hand.

In Percy, the trial judge reasoned that Ms. T could not consent whereas Ms. C seemed like a willing participant. Therefore, the videos were too dissimilar to admit as SFE. However, a court should not look at dissimilarities too closely. Instead, the Court in Percy found that a court should look at finding sufficient similarities. This analysis is a contextual exercise wherein the court evaluates the SFE in light of the issue it is directed at. Handy held that sufficient similarity or specific propensity is adequate to admit SFE. As such, in Percy, the court weighed the videos’ dissimilarity too heavily. Had the court applied a contextual approach, Ms. T’s videos would bolster Ms. C’s claims. Consequently, the NSCA failed to recognize sufficient similarities.


Current rules of similar fact evidence step backward


In sexual assault cases that turn on the actus reus, courts tend to admit rather than exclude relevant evidence. The probative value of Percy’s conduct with Ms. T was greater than the courts determined. By not admitting it, the court is essentially assessing Ms. C’s interaction in a vacuum. Percy follows the post-Handy trend where courts “heighten scrutiny of the dissimilarities in the sexual nature of the incidents,” which negatively affects the probative value of SFE evidence. If incongruent issue framing continues, it could impact the jurisprudence of admitting SFE in sexual assault cases. As such, Percy represents a troubling step back from the progressive position taken in Handy.

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