La règle énoncée dans les arrêts Handy et Shearing

R. c. Kabli, 2008 QCCS 6600 (CanLII)

[214] Compte tenu du défi que pose la synthèse formulée par la Cour suprême dans les arrêts Handy et Shearing, il est utile de reproduire le résumé qu'en font tant le juge Watt que les auteurs Paciocco et Stuesser.

[215] Dans son ouvrage Manual of Criminal Evidence 2008, le juge David Watt résume la règle relative aux faits similaires issue des arrêts Handy et Shearing :

The rules governing the exceptional admissibility of evidence of similar acts have migrated from the traditional pigeon-hole to a principled approach. The change is similar to what has taken place in connection with hearsay exceptions.

The admissibility of evidence of similar acts is determined by:

i. the relevance of the evidence to an issue in the case, otherwise than by demonstrating the propensity of D to commit crimes or other disreputable or repugnant acts;

ii. the probative value of the evidence;

iii. the prejudicial effect of the evidence; and

iv. a balancing of the probative value against the prejudicial effect of the evidence.

In determining the relevance of similar act evidence, the old category approach may be helpful to illustrate the issues to which the evidence may be relevant. Similar act evidence may be relevant, for example, to rebut a defence otherwise open to D, to establish intent, to prove a motive for the offence, to support the credibility of V, or to provide background circumstances in which the offence is alleged to have occurred. The pigeon-holes may illustrate relevance, but they do not determine admissibility.

The principal driver of probative value is the connectedness of the evidence of similar acts to the offences charged. There is no absolute prohibition against propensity reasoning in determining probative value, only an insistence that propensity evidence relate to some other issue beyond general disposition or character. The degree of similarity required depends on the issues in the case, the purpose for which the evidence is tendered, and the rest of the evidence in the case. Similarity does not require a strong peculiarity or unusual characteristics underlying the events to be compared. Relevant factors in assessing probative value include, but are not limited to:

. i. temporal proximity of the similar acts;

. ii. similarity in detail between the similar acts and the offences charged;

. iii. the number of similar acts;

. iv. the circumstances surrounding the similar acts;

. v. distinctive features unifying the incidents;

. vi. intervening events; and

vii. any other facts that tend to support or rebut the underlying unity of the similar acts.

An important element in the determination of probative value is the prospect of collusion amongst the witnesses.

Where there is evidence of actual collusion amongst witnesses who give evidence of similar acts, or at least where there is an air of reality to an allegation of collusion, the onus is on P to satisfy the trial judge, on a balance of probabilities, that the evidence of similar acts is not tainted with collusion. Where the evidence of collusion amounts to no more than an opportunity to collude, the issue of collusion is best left with the jury.

Evidence of similar acts involves both moral and reasoning prejudice. Prejudice is not the risk of conviction, rather the risk of an unfocused trial and wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity.

Moral prejudice has to do with the potential for an inference of guilt based on "bad personhood". Reasoning prejudice may include juror confusion due to the number of other incidents, and distraction because of the cumulative force of several allegations, which deflect jurors from their task of deciding each charge carefully and separately.

Evidence of similar acts is presumptively inadmissible. The onus is on P to show, on a balance of probabilities, that the probative value of the evidence on an issue on which it is tendered outweighs its prejudicial effect. It should always be kept in mind in balancing probative value and prejudicial effect that prejudicial effect does not necessarily recede as probative value advances.

[216] Paciocco et Stuesser résument la règle ainsi:

[Evidence that the accused has engaged in discreditable or criminal acts, or is otherwise of a discreditable character] is presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on the balance of probabilities [before such evidence is admitted] that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

In assessing the probative value of the evidence, consideration should be given to such things as:

• the strength of the evidence that the discreditable or criminal act occurred;

• the extent to which the discreditable or criminal act supports the inferences sought to be made (a.k.a. the "connectedness" of the evidence to the "questions in issue"); and

• the extent to which the matters it tends to prove are at issue in the proceedings (the materiality of the evidence).

In assessing the risk of prejudice caused by the evidence, consideration should be given to such things as:

• "moral prejudice," being the risk that the evidence will be used to draw the prohibited inference that the accused is the kind of bad person likely to commit the offence charged; and

• "reasoning prejudice," which includes the risk that:

- the trier of fact may be distracted from deciding the issue in a reasoned way because of the inflammatory nature of the proposed evidence;

- the trier of fact may become confused about what evidence pertains to the crime charged, and what evidence relates to the alleged similar act;

- the trial will begin to focus disproportionately on whether the similar act happened; and

- the accused will be unable to respond to the allegation that the similar act occurred, because of the passage of time, surprise, or the collateral nature of the inquiry