Evidence of Similar Acts on Other Counts to Support Credibility of Complainant

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.

11.18 Evidence of Similar Acts on Other Counts to Support Credibility of Complainant

Similar Acts on Other Counts[1]

Credibility of Complainant[2]

(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 more likely to have committed the offences charged in the other counts.

[4] There is one way you can use the evidence from one count to reach a verdict on another count. Consider whether the evidence discloses a distinctive pattern of conduct of (NOA). Ask yourself whether that pattern is so distinctive that 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, this may assist you in assessing the complainants’ credibility. This is the only purpose for which you may use this evidence of a distinctive pattern. If you do not find such a distinctive pattern of conduct, then you must consider each count separately to determine if the evidence in relation to that count proves (NOA)’s guilt beyond a reasonable doubt.

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 tainting, collusion, collaboration of the complainants in the various counts. (Review evidence of the possibility of collusion, collaboration or tainting whether intentional or innocent.)

If you conclude that the similarity of (NOC1)’s testimony is the result of tainting, collusion, collaboration with (NOC2), you must not you use the evidence of one to support the Crown’s case with respect to the other. (Specify similar act evidence to be disregarded.)[99]

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.

[5] Do not assume that just because you conclude that one complainant is telling the truth, the others must be telling the truth as well. Similarly, do not assume that just because you conclude that one complainant is not telling the truth, that the other(s) are not telling the truth either.

[6] Consider the similarities and dissimilarities between those other counts which you find likely occurred and the offence charged.

(Review the similarities and dissimilarities.)

[7] 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.

[8] 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.

[1] This instruction should be used when the evidence of similar acts from counts involving different complainants is offered to prove that an offence alleged against a particular complainant was committed.

[2] This instruction should be used when evidence of similar acts charged in other counts in the indictment is offered to support a complainant’s evidence that the offence alleged by him/her actually occurred. When the evidence of similar acts offered to prove that an offence was committed involves extrinsic misconduct, the appropriate instruction is Final 11.17.

[99] When there are more than two complainants this instruction will have to be modified.