What is similar fact evidence?
Similar fact evidence is a pattern of behaviour that supports an allegation that a particular event likely occurred on the basis that the Respondent has engaged in similar behaviours in the past.
Similar fact evidence is subject to a special set of rules regarding admissibility in a hearing. Investigators also rely on similar fact evidence when conducting an investigation.
The principals regarding the admission of similar fact evidence were discussed by the Human Rights Tribunal of Ontario (“the Tribunal”) in Sinclair v. London City, 2008 HRTO 48 (CanLII) [“Sinclair”]. The rules regarding the admission of similar fact evidence differ from those that would be applied in a criminal trial, for example.
The determination on admissibility requires the balancing of the probative value of the evidence and the prejudicial effect it would have on the Respondent. This balancing act must take into consideration the context of human rights and related underlying values.
The Tribunal stated in Sinclair,
“While there is a general rule against admission of evidence relating to a person’s character or reputation, the Commission argued that this evidence properly falls within an exception to that principle permitting the admission of “similar fact evidence”. Evidence of similar facts will be admitted if the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56; Chacko v. Transpharm Canada Inc.(c.o.b. Toronto Institute of Pharmaceutical Technology), [2001] O.H.R.B.I.D. No. 11 at para. 11. This requires a weighing by the Tribunal of the benefits of the evidence in assisting the Tribunal in determining the issues before it against the potential prejudice to the hearing process and the party whose character is placed into question through such evidence.”
“Various factors may affect this balancing process, depending upon the issues in the case: see Handy, supra at paras. 49-97. Probative value often, but not always, arises from the degree of similarity of the alleged similar facts in relation to the disputed issues in the case. Prejudicial effect generally arises from the fact that it may lead to distraction from the central issues in the case, inordinate consumption of hearing time, and reasoning based on the general character of a witness. As noted by the Supreme Court, “[i]ts potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value.”
“The balancing of probative value against prejudicial effect, developed primarily in criminal cases such as Handy, must be applied with consideration of the nature of human rights cases and the values relevant to human rights proceedings. These include the fact that discrimination is often subtle and may be difficult to prove, and that a pattern of conduct may be particularly probative in many human rights cases. At the same time, the Tribunal is committed to fair, just and expeditious resolution of human rights cases, and the prejudicial effect of hearing evidence not only on the particular incident in question, but one or more other incidents, and the credibility of witnesses in relation to those events, may cause a significant lengthening of a hearing with little benefit for the determination of the issues in the case. There is also often prejudice to respondents in having to defend themselves against allegations that never formed the subject matter of human rights proceedings at the time they occurred. These factors must be taken into account in the balancing analysis.”
Although similar fact evidence will often be relevant it may not be admitted because of its prejudicial effects.
In Washington v. Toronto Police Services Board, 2009 HRTO 217 (CanLII) the Tribunal discussed the factors relevant to the balancing of the probative value and prejudicial effect. The Tribunal stated:
“Probative value of similar fact evidence often comes from the similarity of the alleged similar facts to the conduct at issue in the proceeding. The more the other allegations resemble those at issue in the proceeding, the more likely it is that they will be admitted. More alleged similar acts will often increase probative value. In considering probative value, the existence of a pattern may be important circumstantial evidence that weighs in favour of a finding of discrimination. Moreover, as noted by the Tribunal in Nassiah, the Tribunal’s approach generally favours broader production.”
“…. Allegations that did not end in a conviction for misconduct or a charge may arguably have probative value as similar fact evidence. First, the probative value of similar fact evidence generally comes from the existence of a pattern. The existence or significance of a pattern may not be apparent until a significant number of allegations have been made. It may be that had the pattern been apparent earlier, a different conclusion would have been drawn in the earlier complaints. Second, the fact that there was no conviction does not mean that the events were necessarily found not to have occurred or not proven."
[….]
“Moreover, even a determination that guilt has not been proven on the applicable standard of “clear and convincing evidence” […] does not definitively mean that information about the events leading to the complaint could not be found to be admissible, reliable and probative similar fact evidence in a Tribunal proceeding.”
“At the same time, one must be cautious about the potential probative value of unsubstantiated allegations…”
[….]
“On the other side of the balance, there are various possible prejudicial effects. One is the danger that Tribunal proceedings will be sidetracked by irrelevant issues. Scarce adjudicative resources should not be used for “fishing expeditions” for evidence that may well be irrelevant or inadmissible: McNeil at para. 28, Sinclair at para. 26. Neither the interests of the parties nor those of the public will be served if human rights applications against police routinely turn into inquiries that focus on the history of complaints against the officers involved rather than the events in question or lead to extended legal arguments about the admissibility of potential similar fact evidence.”
“Second, as recognized in King at para. 43, the respondent officers may have a privacy interest in records of complaints against them. The records sought relate to their employment and may have an impact on their reputation. As with probative value, the determination of the level of privacy interests engaged will depend on the specific nature of the records. In McNeil at para. 12, the Court confirmed that “no blanket ruling can be made in respect of privacy interests in police disciplinary records without regard to their contents.”
“There is another important privacy interest that was not discussed by any of the parties in their submissions: that of the complainants who made the allegations whose records are sought. Allegations of police misconduct often arise in situations in which the complainant was accused of criminal or inappropriate activity. A public complainant who withdrew or informally resolved an allegation may have done so in the belief and expectation that the matter was closed and the issues would not become public. In my view, the complainant’s privacy interests are significant when determining the issue of production of complaints that did not lead to discipline.”
As evidenced by the Tribunal’s statements above, there are various considerations when determining whether or not to rely on similar fact evidence. In he said, she said cases that boil down to credibility, the introduction of similar fact evidence can be quite compelling if its probative value is considered to outweigh any potential prejudicial effects.