Admissability of Evidence

FILE: Case #00-01-01 (2000-2001) *preliminary matter: ruling on admissibility of evidence, full reasons see Case #00-01-02 (2000-2001)
DATE: March 16, 2001
PARTIES: University of Toronto v. R.D. and University of Toronto v. K.U.

Hearing Date(s): information not available

Panel Members:
C. Anthony Keith, Q.C., Senior Chair

Trial Division – preliminary hearing to Case #00-01-02 – admissibility of evidence – similar responses in terms tests by co-accused – University request for ruling on admissibility in advance - similar fact evidence – incumbent upon Chair to make similar fact evidence determination and give ruling – see Arp v. The Queen and s. 15 of the Statutory Powers Procedure Act - no qualifications or expertise enabling course professor to give opinion evidence - arbitrary comparators broke down on cross-examination - evidence adduced to confirm charges – no probative value to evidence - flawed analysis and comparisons in evidence – test of objective improbability of coincidence not satisfied and prejudice to accused outweighed probative value of evidence - see Arp v. The Queen - admission of disputed evidence prejudicial - evidence relating to the two term tests inadmissible in the hearing and disregarded by the Panel in disposing the charges

Disposition of Presiding Chair on a point of law, pursuant to s. 22(a) of the Code, which arose out of the hearing of charges in Case #00-01-02. The charges related to allegations that the two, co-accused Student’s engaged in inappropriate communications during the final examinations of two courses, in an attempt to cheat or obtain unauthorized assistance. The Students objected to some of the University’s evidence as not being properly admissible. The disputed evidence consisted of allegedly extraordinarily similar patterns of responses by the two accused in two tests in one of the courses at issue. No charges had been laid with respect to the Student’s participation in the tests. The University asked for a ruling on the admissibility of the evidence in advance, and asserted that the information should be admitted as similar fact evidence. The Chair considered submission from counsel, the decision of the Supreme Court in Arp v. The Queen, (1998) 129 C.C.C. (3d) 321, and s. 15 of the Statutory Powers Procedure Act, and found that it was incumbent upon him to make the determination identified in Arp v. The Queen, and give his ruling as to the evidence’s admissibility. The Chair considered the alleged similar fact evidence and the course professor’s testimony, and found that the course professor had no qualifications or expertise which would enable her to give opinion evidence as to similarity, probability or statistical analysis, and that the comparators which she had selected for her purposes were arbitrary, and the validity of which broke down on cross-examination. The Chair found that the evidence was adduced for the purpose of confirming that the accused committed the offences with which they were charged and that the evidence had little, to no, probative value. The analysis and comparisons in the evidence were significantly flawed, unreliable and demonstrated the intention of the course professor to find a basis for bolstering the suspicions of the final exam invigilator that the two accused had engaged in improper communication or cheating. The Chair found that there was no basis for finding that there was a degree of similarity between the alleged similar facts and the facts in issue in the hearing which would satisfy the test of objective improbability of coincidence laid down in Arp v. The Queen, or that their probative value significantly outweighed the prejudice to the accused. The Chair found that the admission of the disputed evidence would cause prejudice in that neither accused faced any charges with respect to the two term tests, and therefore evidence relating to those tests was irrelevant and, if admitted, would lead the Tribunal into areas of inquiry to which the accused had not been called upon to respond. The Chair directed that the evidence relating to the two term tests was inadmissible and would be disregarded by the Panel in disposing of the charges.