Evidence of Similar Acts to Prove Identity (Extrinsic Misconduct)

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.

11.15 Evidence of Similar Acts to Prove Identity (Extrinsic Misconduct)

Note[90]

(Last revised June 2012)

[1] You have heard evidence that (NOA) (allegedly) did 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 (NOA) is the person who committed the offence alleged in the indictment (specify). I will now explain the law concerning the use of this evidence.

[2] You must decide whether the Crown has proved that (NOA) likely[91] 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 only one way you can use the evidence of other acts that you find (NOA) likely committed. If you conclude that (NOA) likely committed the other acts, then you must consider whether the other acts and the offence are so similar that they were likely committed by the same person. Consider the similarities and dissimilarities between those other acts and the offence charged. Ask yourself whether any of those other acts and the offence charged are so similar that it defies coincidence that they would have been committed by different people. If so, then you may use that evidence in deciding whether the Crown has proved beyond a reasonable doubt that (NOA) is the person who committed the offence charged. 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.

(Review similarities and dissimilarities.)

[5] 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.

[90] This instruction should be used when the evidence of similar acts is offered to prove identity and involves conduct not charged as a count in the indictment. When the evidence of similar acts offered to prove identity involves conduct charged in other counts, the appropriate instruction is Final 11.16.

[91] 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.