Babak Successfully Appeals Two Convictions.

In R v Brooks, 2023 BCCA 121, 

Babak successfully appealed two convictions for sexual assault against two complainants. The Court of Appeal set aside the convictions. This case is significant on the issue of similar fact evidence and bad character evidence. The analysis is as follows.

In this case, there were four complainants. They all alleged sexual assault but the Crown charged in respect of only three of them and sought to admit the evidence of the fourth as uncharged similar fact. The appeal revolved around the admissibility of the uncharged complainant (AA’s) evidence as similar fact to support the convictions on the charged counts. This is the context of an X-ray technician working on patients. The judge admitted the evidence of all 4 witnesses as similar fact evidence across counts but this was in error.

There are a few takeaways from this case:

1. The process for admitting the similar fact evidence of AA in this case caused confusion and misunderstanding. At para 75, the BCCA notes that the judge admitted the similar fact evidence of AA without hearing it on a voir dire, and therefore, without fully understanding the issues that would actually be engaged in the trial and being able to conduct the full analysis. For example, the evidence was admitted in part to rebut collusion at the voir dire, but the reasons for judgment excluded collusion as a relevant factor.

2. The admissibility of the similar fact evidence is driven by the purposes for which it’s admitted. The judge admitted the similar fact evidence in part to rebut the defence of accident, but the defence had specifically disavowed that defence. The defence had also disavowed reliance on collusion. Therefore, those uses of the evidence were never relevant and could not support the admission of the evidence. That left only two other uses relied on: proof of actus reus and supporting credibility.

3. Regarding proof of actus reus, the Court of Appeal found two issues. First, again, the actus reus regarding AA was not at issue. The accused admitting touching but said it was incidental to his X-ray taking. 
Second, the BCCA found the acts involving AA and the other witnesses were not similar enough. In this case, all the witnesses alleged sexual misconduct in the course of a doctor (X-ray technician)-patient relationship. Aside from that relationship, the specific circumstances of AA’s evidence bore “almost no relation” to those of the other witnesses. 
This finding suggests that the mere relationship between the accused and witnesses will not suffice to ground similar fact. There needs to be some similarity in the specific circumstances of that relationship. This case is helpful in understanding what degree of similarity between acts is “similar enough.”

4. That left only credibility as a ground of admission for the similar fact evidence, and that functioned as nothing but uncharged propensity evidence. Therefore, the evidence was not admissible. The judge relied on AA’s similar fact evidence in convicting the accused on the charged counts, so a new trial was ordered.

5. There’s also an important tactical lesson in there for the defence – forgoing certain defences and arguments can undermine the relevance and admissibility of similar fact evidence. Of the 4 grounds relied on for admission, three of the grounds were irrelevant because the defence’s conduct did not put them at issue.

6. Finally, There’s also an important tactical lesson in there for the Crown – seeking the admission of evidence comes with the risk that the evidence is improperly admitted, particularly in an area as thorny as similar fact evidence. Consider whether the risk of error is worth the evidence.