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Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.
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11.17 Evidence of Extrinsic Similar Acts to Support Credibility of Complainant (Extrinsic Misconduct)

Note[1]

(Last revised June 2012)

[1]              You have heard evidence that (NOA) (allegedly) has done other acts that are similar to those charged in the indictment (specify conduct admitted as similar act evidence). This evidence may relate to the question of whether the incident occurred in the way that the complainant testified (specify issue in which the evidence is directed, e.g., consent, actus reus)[2] . I will now explain the law concerning the use of this evidence.

[2]              You must decide whether the Crown has proved that (NOA) likely[3] committed these other acts. If the Crown has not proved this, you must disregard this evidence in reaching your verdict.

[3]              If you conclude that (NOA) likely committed the other acts, this may suggest to you that s/he has a general disposition or character to do bad things, perhaps even very bad things. However, you must not infer from (NOA)’s general character or disposition that s/he is more likely to have committed the offence charged. Remember that (NOA) is on trial only for the charges set out in the indictment. It would be unfair to find someone guilty simply on the basis of a general disposition or character, since general disposition or character does not tell you anything useful about what happened on this specific occasion charged in the indictment. Finally, it is most important that you not find (NOA) guilty of the offences charged to punish him/her for the past misconduct.

[4]              There is one way you can use the evidence of any other acts that you find (NOA) likely committed. Consider whether the evidence discloses a distinctive pattern of conduct of (NOA). Ask yourself whether it would defy coincidence that two or more people independently would lie or be mistaken in their testimony about (NOA)’s conduct. If there is such a distinctive pattern, you may use this evidence in assessing the complainant’s credibility. This is the only way you can use this evidence.

When there is some evidence of collusion, collaboration or tainting, give the following instruction:

The potential value of this evidence comes from the similarity and independence of the accounts. If the accounts were not truly independent, the value of the evidence may be undermined.

You must consider all of the circumstances that affect the reliability of this evidence, including the possibility of collusion, collaboration or tainting of the evidence of the other acts that are similar to those charged. (Review evidence of the possibility of collusion, collaboration or tainting whether intentional or innocent.)

If you conclude that the similarity of the witnesses’ testimony is the result of collusion, collaboration or tainting, you must not use it to support the Crown’s case. (Specify similar act evidence that must be disregarded.)

Even if you do not reach that conclusion, you must still consider whether the evidence is reliable despite the opportunity for collusion, collaboration, or tainting, and whether it should be given less weight or no weight because it may not be independent.

(Consider the similarities and dissimilarities between those other acts which you find likely occurred and the offence charged.)

[1] This instruction should be used when evidence of similar acts is not charged in the indictment is offered to support complainant’s evidence that the offence actually occurred. When the evidence of similar acts offered to support complainant’s evidence involves conduct charged in other counts, the appropriate instruction is Final 11.18.

[2] See R. v. Handy, 2002 S.C.C. 56, [2002] S.C.R. 908, at paras. 69-75.

[3] Where the Crown’s case on the issue of identity is based entirely on the underlying unity between a single similar act and the offence charged, the standard of proof beyond reasonable doubt governs the jury’s determination whether one person must have committed both acts. In such a case, this instruction must be modified accordingly: R. v. Arp, [1998] 3 S.C.R. 339, at para. 73.