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Evidence - Similar Fact (3). Jarvis v. Oliveira
In Jarvis v. Oliveira (Ont CA, 2024) the Ontario Court of Appeal allowed a negligence appeal "from a civil jury trial concerning a collision between a motorist and a young pedestrian" - where a central issue was the degree of the plaintiff's fault, the trial court denying liability entirely.
Here the court finds an almost classical instance of evidentiary 'prejudice', which in this case may be indistinguishable from inadmissible 'bad character' or 'similar fact' evidence:(b) The Taxi Fare Evidence Was Inadmissible
[52] As outlined above, over the course of the trial, it became apparent that the trial judge admitted the taxi fare evidence as narrative evidence, although this was never clarified through reasons. There was also an implicit suggestion by respondent counsel, repeated by the trial judge in her charge to the jury, that the evidence of why Ms. Jarvis was running was relevant to how she was running and her level of attention. Again, there was no formal ruling on the matter. As such, we do not have the benefit of the trial judge’s reasoning on how the evidence was relevant. Just as importantly, the trial judge did not engage in the balancing of the probative value of the evidence against its prejudicial impact, even though the issue was put squarely before her during appellant counsel’s submissions.
[53] It was undisputed that Ms. Jarvis was running at the time of the collision. The question of why she was running, while perhaps loosely related to the narrative of events, was not otherwise relevant. Respondent counsel contended, both at trial and on appeal, that the reason why Ms. Jarvis was running was probative of the speed and the manner in which she was running.
[54] I do not find this submission persuasive. It rests on an unfounded assumption that a person running from a cab fare is likely to be more careless than someone who is running across the street for some other reason, such as trying to get out of the rain, attempting to cross as the pedestrian “walk” sign changes, or simply being in a rush. The unfairness of this evidence was amplified by the fact that Ms. Jarvis could not give substantive evidence about the events that night. She was incapable of testifying about her state of mind at the time.
[55] Ultimately, and no matter how respondent counsel sought to characterize it, the taxi fare evidence was evidence of bad character. In Racette v. Saskatchewan, 2020 SKCA 2, Tholl J.A. stated the general rule, at para. 23: “As a starting point, character evidence – good or bad – is generally inadmissible in a civil action”. There are exceptions to this rule, but none of them apply in this case.
[56] One exception arises during the cross-examination of witnesses. As this court said in Deep v. Wood et al. (1983), 1983 CanLII 3101 (ON CA), 143 D.L.R. (3d) 246 (Ont. C.A.), at p. 250: “cross-examination relating to general reputation for untruthfulness or to prior criminal convictions or to findings of professional misconduct involving dishonesty may be used to diminish the credibility of a witness” (emphasis added). Similarly, in Sidney N. Lederman, Michelle K. Fuerst, and Hamish C. Stewart, The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022), the authors state that, subject to preventing vexatious and oppressive questions, “a witness can be asked nearly anything as a test of his or her credibility” (at p. 711).
[57] This exception is inapplicable in this case. Although Ms. Jarvis testified, she had no memory of the event. She was not cross-examined on the taxi fare incident. Thus, the evidence was not admissible for the purpose of assessing Ms. Jarvis’ credibility.
[58] It might be said that the evidence could have been used to assess Ms. Seixas’ credibility. But the exception had no realistic application to Ms. Seixas as a witness. She was called by the respondents. As noted above, when objecting to the trial judge’s earlier draft of her charge, respondent counsel said: “I’m not sure who was being impeached.”
[59] There is another exception. It is also inapplicable. The common law has recognized the admissibility of similar fact evidence in civil cases: Mood Music Publishing Co. Ltd. v. De Wolfe Ltd., [1976] 1 All E.R. 763 (C.A.), at p. 766. See also The Law of Evidence in Canada, at pp. 709-712. This label was thrown around from time to time during the trial. But respondent counsel acknowledged that this route to admissibility did not apply.
[60] Ultimately, the evidence was inadmissible. Its prejudicial impact far outweighed any marginal value it had in explaining the narrative of events to the jury. It was subsequently used to paint Ms. Jarvis in an unfavourable light – that she was a dishonest person who was not worthy of being compensated for her devastating injuries. And it must be remembered that, at the time, she was a minor, a 16-year-old, who was very intoxicated, and who ran from a measly $13 fare. A young person in these circumstances can hardly be characterized as a “cheat” who is undeserving of compensation. . R. v. C.D.
In R. v. C.D. (Ont CA, 2023) the Court of Appeal considered "count-to-count similar act evidence":[23] We start by observing that looking at each point of similarity in isolation decontextualizes the similar act admissibility analysis. The jurisprudence is clear that the assessment of similarity is contextual, and that multiple points of similarity may work in tandem to make similar act evidence sufficiently probative to overcome its prejudicial effect: Handy, paras. 76-84; R. v. Norris, 2020 ONCA 847, 398 C.C.C. (3d) 1, at para. 18. ... . R. v. Atwima
In R. v. Atwima (Ont CA, 2022) the Court of Appeal considered an issue of similar fact evidence to establish identification in a criminal case:[36] As similar act evidence is presumptively inadmissible, even across counts, the sole question to be resolved at the application was whether the jury would be required to determine the issue of identity on each count by considering only the evidence admitted on that count (the presumptive position) or whether the jury would be entitled to determine the issue of identity on each count by considering all of the evidence heard at trial (the similar act position): see R. v. Poulin, 2017 ONCA 175, 346 C.C.C. (3d) 191, at para. 40.
[37] The onus rests on the Crown to establish the admissibility of similar act evidence by satisfying the trial judge that its probative value outweighs its potential prejudicial effect in the context of the particular case: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. The ultimate weighing of probative value and prejudicial effect requires an initial calibration of both.
[38] The probative value of similar act evidence springs from the objective improbability of coincidence: Handy, at paras. 47-48. In contrast, the prejudicial effect of similar act evidence springs from the moral and reasoning prejudice that may result from the admission of the evidence. Moral prejudice is rooted in concerns over whether the trier of fact will decide the case based upon the perceived bad character of the accused. Reasoning prejudice is rooted in concerns over things like the potential injection of delay and complexity into a trial, as well as juror distraction and confusion: see R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68. See also: Handy, at paras. 31, 36; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609, at paras. 110-11. Of course, many of these concerns for prejudice will be attenuated, like in this case, where the application to admit similar act evidence relates to the cross-count use of evidence already elicited at trial: see R. v. Norris, 2020 ONCA 847, 398 C.C.C. (3d) 1, at para. 24; R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 87.
[39] Coming back to probative value, where the issue upon which the evidence is proffered is identity, such as this case, the demand for similarity between acts increases. The bar for similarity in the identity context is often referred to as a “high degree of similarity” or “strikingly similar”: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 45. See also: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 20; R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 98. The reason for the heightened bar for similarity relates to the driver of cogency in relation to similar act evidence used to establish identity: “the improbability that two persons would display the same configuration of matching characteristics in committing a crime”: Perrier, at para. 19. See also Handy, at para. 78.
[40] At the first stage of the similar act analysis involving questions of identity, the similarity stage, the court looks to the acts and asks how similar they are. From time-to-time, acts will contain signatures or trademarks, such that their similarity will be striking: Arp, at para. 45. See e.g., R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716, at paras. 5, 10, 12 and 24. More frequently, though, the requisite degree of similarity will result from an accumulation of commonalities, none of which will be sufficiently significant to constitute a signature or trademark.
[41] In assessing whether the evidence has that cumulative effect, we take guidance from Handy, at para. 82, where Binnie J. provided the following list of helpful considerations: (a) the “proximity in time of the similar acts”; (b) the “extent to which the acts are similar in detail”; (c) the number of occurrences involved; (d) the “circumstances surrounding or relating to the similar acts”; (e) the distinctive features involved in those acts; (f) whether there were any intervening events; and (g) “any other factor which would tend to support or rebut the underlying unity of the similar acts.”
[42] Where the evidence of similarity points towards the acts having been likely committed by the same person, the trial judge must go on to the second stage and consider whether there is evidence linking the accused to the similar acts: Perrier, at paras. 23-24; R. v. Woodcock (2003), 2003 CanLII 6311 (ON CA), 177 C.C.C. (3d) 346 (Ont. C.A.), at para. 81; and Arp, at paras. 54-56. There need only be “some evidence” linking the accused to those acts: R. v. Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at p. 954; Arp, at paras. 56-57; and Perrier, at para. 24. The “some evidence” threshold requires more than mere opportunity or possibility but does not demand more than “some evidence” upon which it can be said that the acts were in fact the acts of the accused: Sweitzer, at p. 954, cited with approval in Arp, at paras. 54, 56-57, and in Perrier, at paras. 23-24. See also Durant, at para. 91. This has been characterized as a “low evidentiary threshold” at the admissibility stage: Jesse, at para. 63. . R. v. J.C.
In R. v. J.C. (Ont CA, 2021) the Court of Appeal reviewed the recognized approach to similar fact evidence:(c) Applicable Legal Principles for Admitting Similar Act Evidence
[33] Similar act evidence is presumptively inadmissible. This exclusionary rule is rooted in a general prohibition against the admission of bad character evidence. To rebut this presumption, the Crown must satisfy the court on a balance of probabilities that the probative value of the evidence in relation to a particular issue or issues at trial outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55; R. v. R.C., 2020 ONCA 159, at para. 54.
[34] Determining the admissibility of similar act evidence involves a three-step inquiry.
[35] First, the court considers the probative value arising from the evidence. Probative value is derived from the “objective improbability of coincidence that more than one person (acting independently) would coincidentally give the same type of evidence”: R. v. Norris, 2020 ONCA 847, at para. 17, referring to R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 48; Handy, at paras. 76, 110; and R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 87. Despite the prejudicial quality of similar act evidence, its probative value will overtake that prejudice where it would be an “affront to common sense to suggest that the similarities were due to coincidence”: Handy, at para. 41, citing R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 751.
[36] As a pre-condition to the assessment of probative value, the trial judge must consider whether there exist any alternative explanations for the evidence, such as whether it is tainted by collusion or otherwise. If this is the case, the foundation upon which the admissibility of similar act evidence rests – the objective improbability of coincidence – evaporates. Therefore, if there is an air of reality to the allegation of collusion, the Crown bears the onus of disproving collusion on a balance of probabilities: Handy, at paras. 99, 104, and 112.
[37] If the court is satisfied that the integrity of the similar act evidence has not been undermined by collusion, then the trial judge must calculate the probative value of that evidence. This is not a theoretical exercise. It must be understood in relation to the specific issue(s) at trial which the evidence is elicited to address: Handy, at para. 69; B. (C.R.), at p. 732. Determining the issue(s) to which the evidence relates is key to understanding the “drivers of cogency in relation to the desired inferences”: Handy, at para. 78.
[38] The court in Handy set out a helpful, non-exhaustive list of factors at para. 82, which assist in determining the cogency between the proffered similar act evidence and the circumstances set out in the charges: proximity in time, similarity in detail, number of occurrences, surrounding circumstances, distinctive features, intervening acts, and any other factors supporting or rebutting the “underlying unity of the similar acts.”
[39] Second, the court considers the prejudice that would result from introducing the evidence into the trial. There are two aspects to this inquiry: moral prejudice and reasoning prejudice.
[40] Both forms of prejudice may cause the trier of fact to stray from its proper focus. Moral prejudice arises from concerns that the trier of fact may decide a case based on the perceived bad character of the accused: Handy, at paras. 31, 36; R. v. Lo, 2020 ONCA 622, 393 C.C.C. (3d) 543, at para. 110. Reasoning prejudice considers whether the trier of fact “may become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations”: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68. A further detrimental consequence flowing from reasoning prejudice is the potential lengthening of criminal trials.
[41] In the final stage of the analysis, the court weighs the probative value of the evidence against its prejudicial effect. The trial judge’s decision to admit the evidence “is entitled to substantial deference” when it comes to where that balance lies: Handy, at para. 153; see also Shearing, at para. 73; B. (C.R.), at pp. 733, 739. This is so because trial judges are best positioned to consider the overall context of the trial, taking into account all factors in determining whether they should exercise their discretion in favour of admission.
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