Similar Fact Evidence in Ontario Criminal Proceedings

Similar fact evidence is presumptively inadmissible. To make it admissible, the Crown bears the burden of showing on a balance of probabilities that the probative value of the similar fact evidence in relation to a particular issue at trial outweighs its potential prejudicial effect.

An aspect of the presumptive rule against admitting similar fact evidence is that evidence on one count cannot be used to prove guilt on another count where the counts do not arise out of the same events. This rule aims to prevent the jury from either: (1) placing more weight than is justified on the evidence of similar facts (known as “reasoning prejudice”); or (2) finding the accused guilty based on forbidden propensity reasoning (known as “moral prejudice”), that is, reasoning that a person who has engaged in disreputable conduct alleged in one count has a propensity or disposition to do the type of act charged in another count.

Absent an error of law, an unreasonable analysis , or a misapprehension of material evidence, a trial judge’s decision to admit similar fact evidence is entitled to substantial appellate deference. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

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