Evidence of Similar Acts on Other Counts to Prove Identity of Perpetrator (R. v. Arp)

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.

11.16 Evidence of Similar Acts on Other Counts to Prove Identity of Perpetrator (R. v. Arp)

Note[92]

(Last revised June 2012)

[1] (NOA) is charged with (specify number) offences. The Crown must prove each charge beyond a reasonable doubt.

[2] Generally each count must be considered separately to determine if the evidence in relation to that count proves (NOA)’s guilt beyond reasonable doubt.

[3] In particular, you must not use the evidence in one count to infer that (NOA) is a person whose general disposition or character is such that s/he is likely to be the person who committed the offences charged in the other counts.

[4] There is one way you can use the evidence from one count to reach your verdict on another count, provided the circumstances relating to the counts are so similar that it defies coincidence that they would have been committed by different people.

[5] Consider the similarities and dissimilarities in the manner in which the offences were allegedly committed. You may find that the degree of similarity makes it likely[93] that two or more offences were committed by the same person. If you do, you can consider the evidence relating to each of those similar offences in deciding whether the Crown has proved, beyond a reasonable doubt, that (NOA) is the person who committed the other similar offence or offences. This is the only purpose for which you may use the evidence in relation to one count in deciding whether (NOA) is guilty on another count.

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.

(Review the similarities and dissimilarities between the other acts and the offence charged.)

[6] Unless you find that it is likely that the same person committed the similar offences, you must reach your verdict by considering the evidence related to each count separately and ignore the evidence relating to any other count or counts.

[7] I remind you that you must not convict (NOA) on any count unless you are satisfied that the Crown has proven his/her guilt on that count beyond a reasonable doubt.

[92] This instruction should be used when the evidence of similar acts is offered to prove identity and involves conduct charged as other counts in the indictment. When the evidence of similar acts offered to prove identity involves conduct not charged in other counts, the appropriate instruction is Final 11.15.

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