Saturday, March 5, 2016

Similar Fact Evidence: The Law on Sexual Harassment in the Workplace in Ontario by David Harris & Ken Alexander

   The receipt and consideration of similar fact evidence in sexual harassment and sexual assault proceedings is a very serious issue which has the potential to undermine trial fairness and indeed the reliability of the evidence and findings.  It is not a matter to be taken lightly by any means. This is especially true where a statutory enactment expressly provides that a prosecutor's role is not to seek a particular order against a respondent but to see that the complaint is evaluated fairly and dispassionately to the end of achieving a just result.

     David Harris and Ken Alexander address this issue in their text entitled The Law on Sexual Harassment in the Workplace in Ontario.  This is what they have to say on the potential pitfalls of the admission of similar fact evidence in these cases.

Similar Fact Evidence

     The decision of the Board of Inquiry in Bell and Karczak  v. Ladas and Flaming Steer Steak House (Shime) 1 CHRR D/155 noted the inherent danger in admitting similar fact evidence in that the accused person may be found guilty based on proof of a disposition as opposed to the commission of the alleged act:

"The danger in admitting similar fact evidence is that the accused person may be convicted not on the basis of evidence relating to the offence, with which she or he is charged, but on the basis of evidence of other acts which show the accused has a disposition which makes it likely that the accused committed the offence for which he or she is being tried."

Particularly with respect to sexual cases, the Board noted that particular scrutiny should be given to the admission of such testimony, given the possibility that the witnesses may have rehearsed their respective evidence:

"In the context of sexual cases very close thought should be given to admitting similar acts.  Apart from evidence tending to show particular peculiarities, careful consideration should be given to the statement of Lord Cross of Chelsea in Boardman  v.  Director of Public Prosecutions (1975) A.C. 421, (1974) 3 All E.R. 887 where discussing similar fact evidence he said,

"In such circumstances the first question which arises is obviously whether his accusors may not have put their heads together to concoct false evidence and if there is any real chance of this having occurred the similar fact evidence must be excluded.  In Reg  v. Kilbourne (1973) A.C. 729, it was only allowed to be given by boys of a different group from the boy an alleged offence against whom was being considered.  But even if collaboration is out of the way it remains possible that the charge made by the complainant is false and that is simply a coincidence that others should be making or should have made independently allegations of a similar character against the accused.  The likelihood of such a coincidence obviously becomes less and less the more people there are who make similar allegations and the more striking are the similarities in the various stories.  In the end, as I have said it, it is a question of degree."

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