R. v. Carpenter (2010): The BC Court of Appeal Clarifies the Appropriate Standard of Proof for Determining the Admissability of Similar Fact Evidence
This month the SCC denied leave to appeal in the case of R. v. Carpenter, 2010 BCCA 27. This was an appeal of the British Columbia Supreme Court decision in R. v. Carpenter, 2006 BCSC 1936. The primary issue was whether or not a judge, before admitting similar fact evidence, must be convinced beyond a reasonable doubt or on a balance of probabilities that the same person committed both crimes.
Similar Fact Evidence
Similar fact evidence refers to the evidence related to a prior transgression of the accused and whether it can be used to establish guilt in a present transgression. The test for the use of similar fact evidence was developed by the SCC in R. v. Arp,  3 S.C.R. 339 and was more recently considered in the case of R. v. Handy,  2 S.C.R. 908. In Handy, the accused was charged with sexual assault causing bodily harm. The SCC ruled that the similar fact evidence provided by his wife (which suggested that the accused had violent sexual tendencies) was wrongfully admitted.
In Arp, the issue was the admissibility of similar fact evidence relating to the murder of two women. In coming to its decision, the SCC set out the test for the use of similar fact evidence of identity. In the present case, the BCCA noted that Handy did not vary Arp. Thus, Arp was a more appropriate guide. The test states:
[I]n considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determine whether the probative value of the evidence outweighs its prejudicial effect. In most cases where similar fact evidence is adduced to prove identity it might be helpful for the trial judge to consider the following suggestions in deciding whether to admit the evidence:
(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities.
(2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused’s involvement in each act.
(3) There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.
(4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused’s guilt for any one act…
Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question [emphasis added].
In the present case, Mr. Carpenter was indicted on nine counts, three each of sexual assault, unlawful confinement, and threatening. It was alleged that in one incident he snuck up behind a chamber maid while she was vacuuming a room, placed a pillowcase over her head, and sexually assaulted her. At another hotel a similar crime occurred. Again, a pillow case was used and the sexual assault began while the victim was vacuuming a hotel room. (For a detailed list of similarities see para. 37 of the BCSC decision.) Notably, a third incident involving a 13-year-old girl differed from the other two, which were very similar in fact. She was assaulted in the laundry room of the hotel where she worked. The crimes occurred in March, July and September of 2005.
None of the victims could identify the assailant. However, the March incident with the 13-year-old girl and the September assault yielded DNA evidence matching the assailant. The July assault in the hotel room did not. Ultimately, the March and September incidents were linked by DNA, and the July and September incidents were linked by facts. Therefore, the Crown asserted, “it follows that the same person committed the [July] incident and that the similar fact evidence provides the circumstantial evidence that allows for that inference to be drawn.”
The implication was that if “the similar fact evidence of the other two incidents is admissible with respect to the [July] incident then…the similar fact evidence…will be the entirety of the body of evidence against the accused on the issue of identity with respect to the Coast incident.” If not then the Crown would likely have no evidence upon which to convict the accused of the July incident.
The BC Court of Appeal
Mr. Carpenter appealed his convictions for the July and September incidents before the BC Court of Appeal. Justice Hall, in his written reasons for judgement, considered the following three questions:
1. Was the similar fact evidence admissible as determined by the trial judge?
2. What standard of proof was required in order to determine if the similar fact evidence was admissible?
3. Was the jury verdict unreasonable considering that Mr. Carpenter was convicted of the July incident solely on similar fact evidence from the September incident?
The BC Court of Appeal ruled that the evidence was admissible, the appropriate standard was on a balance of probabilities, and that the jury verdict was not unreasonable. The most noteworthy determination was related to the standard of proof. Counsel for Mr. Carpenter attempted to rely on what, in my opinion, is unclear language from the Arp decision.
In particular, writing for the majority in Arp, Justice Cory stated: “the general rule that preliminary findings of fact may be determined on a balance of probabilities is departed from in those certainly rare occasions when admission of the evidence may itself have a conclusive effect with respect to guilt” (Arp at para. 71). According to Carpenter this was one of those “rare occasions.”(Again, the similar fact evidence was the only evidence tying Carpenter to the July incident.) However, in the following paragraph Justice Cory noted: “[s]imilar fact evidence…as circumstantial evidence, must be characterized differently, since, by its nature, it does not carry the potential to be conclusive of guilt” (Arp a para. 72).
But apparently in contradiction to the aforementioned statement, Justice Cory noted in the next paragraph that the balance of probabilities standard may be appropriate when the similar fact evidence is the sole item of circumstantial evidence tying the accused to the crime (Arp at para. 73). However, this was qualified by: “it follows that the standard of proof beyond a reasonable doubt will govern the jury’s determination whether one person must have committed both acts.”
On a first read of Arp, paragraphs 71, 72 and 73 seem to suggest that if similar fact evidence is the only evidence tying a person to a crime, then its admissibility must be determined on the reasonable doubt standard. But, as noted by the BCCA, the paragraphs at issue deal with different questions. The BCCA concluded that the statement by Justice Cory in para. 73 of Arp, applies only to a “jury’s determination” as to whether the accused committed both acts, and not when the judge is considering the admissibility of the evidence.
A standard of proof based on a balance of probabilities is reasonable for determining the admissibility of similar fact evidence. Even in cases where the admissibility of evidence is likely to have a significant impact on a finding of guilt, a jury still has to determine beyond a reasonable doubt whether or not that evidence can be used to find that the accused committed both or more acts. While the balance of probabilities threshold is lower than the reasonable doubt standard, it only relates to a preliminary finding of admissibility. Following that, the jury is held to a higher standard.