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Evidence - Similar Fact (4). R. v. Nygard [cross-count use]
In R. v. Nygard (Ont CA, 2026) the Ontario Court of Appeal dismisses a criminal appeal, here brought against convictions "by a jury of four counts of sexual assault in relation to four complainants".
The court considered the use of similar fact evidence, here in a cross-count context:The trial judge did not err in permitting similar fact evidence to be used on a cross-count basis
[13] The appellant argues that the trial judge erred in finding that the evidence rose to the level required to suggest that the similarities were not coincidental, and in finding that the probative value of the purported similar fact evidence outweighed its prejudicial effect.
[14] We do not agree.
[15] It was open to the trial judge to find the requisite degree of similarity between the acts alleged was sufficient to dispel the probability of coincidence. The trial judge identified seven similarities between the evidence of the complainants, similarities that went to heart of the appellant’s argument that the assaults had never occurred and that the complainants were lying. The evidence was plainly relevant to the complainants’ credibility and supported their allegations that the actus reus of the offence had occurred. Absent an error in law or in principle, or a misapprehension of the evidence, a trial judge’s conclusion as to the sufficiency of the similarity is entitled to substantial deference: see e.g., R. v. R.C., 2020 ONCA 159, at para. 63. We see no such error.
[16] The trial judge’s decision that the probative value of the evidence outweighed its prejudicial effect is entitled to deference. The trial judge acknowledged that there were some important dissimilarities in the evidence, but it was open to him to conclude that the significant similarities he identified “tipped the balance” in favour of an instruction permitting cross-count use of the evidence. He mitigated the risk of improper reasoning based on clusters of similarities by instructing the jury to consider the similarities and dissimilarities between a given count and the counts they found likely occurred, and made clear that the jury could engage in similar fact reasoning only between counts that shared similarities.
[17] The trial judge reviewed similarities and dissimilarities identified by the parties to assist the jury in its task. Importantly, he reminded the jury that the appellant was not to be convicted on any count unless the jury was satisfied that the Crown had proven guilt on that count beyond a reasonable doubt. His approach was thorough and error free. We note that the appellant takes no issue with the trial judge’s instructions to the jury, which carefully outlined the way in which the evidence could be used. Nothing more was required.
[18] This ground of appeal must be rejected.
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