Stuart O'Connell Criminal Law Blog

  In similar fact evidence cases, at the admissibility stage, the trial judge’s main task is to weigh the probative value of the evidence against its potential prejudicial effect. The possibility of collusion may significantly affect this balancing. See R. v. Wilkinson , 2017 ONCA 756 (CanLII), at para. 29. The theory of similar fact evidence turns largely on the improbability of coincidence. Collusion, by offering an alternative explanation for the "coincidence" of evidence emanating from different witnesses, destroys its probative value, and therefore the basis for its admissibility. R. v. Shearing ,  2002 SCC 58 (CanLII), Shearing, at para. 40. Accused to Establish an Air of Reality to the Allegation of Collusion The dividing line between cases in which collusion is a live issue, and cases in which it is not, is the presence of an “air of reality.” As Binnie J. held in Handy ,2002 SCC 56 (CanLII), at para. 111: “The issue is concoction or collabo...

Similar Fact Evidence Evidence of an accused’s discreditable conduct, apart from that alleged conduct which forms the basis of the charges, is presumptively inadmissible at trial, as evidence tendered solely to show a general disposition or a mere propensity to act or to think or to feel in a particular way is inadmissible. However, evidence of other discreditable conduct may be admitted where the prosecution establishes, on a balance of probabilities, that in the context of a particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.  Probative value is increased by there being a sufficiently strong connection between the past discreditable conduct and the contested facts at trial. The considerable passage of time between those two sets of facts affects the probative value (and hence the admissibility) of the proffered evidence of other discreditable conduct, a...