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Evidence - Probative. R. v. D.S.
In R. v. D.S. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal sexual assault appeal.
Here the court comments on probative value:[25] The assessment of probative value is a very fact-specific analysis: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 265. A trial judge’s weighing of probative value and prejudicial effect is entitled to significant deference on appeal: see R. v. James (2006), 2006 CanLII 33664 (ON CA), 84 O.R. (3d) 227 (C.A.), at para. 33, leave to appeal refused, [2007] S.C.C.A. No. 234; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73. . R. v. M.W.
In R. v. M.W. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal Crown appeal, here on grounds of an unusual 'piecemeal' assessment of the evidence [ie. "... an error of law for the trial judge to consider the probative force of the video only after she concluded that she could not rely on any of ..." it.]:[4] The trial judge deemed the complainant’s testimony generally unreliable due to multiple inconsistencies. At para. 51 she concluded:Based on the many serious and material problems with K.L.’s testimony, I find I cannot rely on any of it. [5] The trial judge then turned to consider the video and concluded that, in light of her findings on reliability, she could not rely on the video. At para. 58:I do not find that the eight second video, on its own, is a sufficient basis to find, beyond a reasonable doubt, that the interaction between K.L. and M.W. was an assault or a sexual assault. There is potentially an innocent explanation. Because of the consistent unreliability of the complainant’s testimony, I cannot place any weight on her evidence about what is happening in the video, or whether her words heard on the video were honest and sincere. Because there is no reliable evidence about the context and creation of the video, I am not sure that an assault or sexual assault occurred. [6] The trial judge’s conclusion reflected a so-called “piecemeal” approach to assessing the evidence. It was an error of law for the trial judge to consider the probative force of the video only after she concluded that she could not rely on any of the complainant’s testimony: see R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, leave to appeal refused, [2012] S.C.C.A. No. 64; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 31; R. v. Button, 2019 ONCA 1024, at paras. 9-10.
[7] The trial judge’s approach to the assessment of the evidence was a legal error. On appeal, the burden is on the Crown to establish, with a reasonable degree of certainty, that the error of law might reasonably have had a material bearing on the acquittal: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 135; Button at para. 15.
[8] A trial judge’s assessment of the evidence attracts significant deference on appeal, absent a legally flawed approach that realistically affected the result. Here, the video provided confirmatory evidence of the complainant’s testimony and also contained all the elements of the offence of sexual assault. Consequently “the persuasive effect of the totality of the evidence – the strength of the Crown’s case – was taken out of play”: Rudge, at para. 66. The error of law might reasonably have had a material bearing on the acquittal. . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal dismissed a first-degree murder appeal - where a judge, his wife and a neighbour were killed.
Here the court finds an error in admitting physical evidence where it's prejudice outweighed it's probative value (the court later applies the curative proviso to excuse the error):[3] For the reasons that follow, I find that the trial judge erred by admitting into evidence the contents of a bag seized from the appellant’s residence without analyzing the probative value and prejudicial effect of each item in the bag individually. This was essential given the risk that the jury would misuse this evidence by concluding the appellant was the type of person who would commit the Garon murders. ....
....
(1) Admissibility of Items Seized from the Appellant’s Home
[20] The appellant argues that the trial judge erred by admitting evidence suggesting the appellant was planning other murders over the period since the Garon murders, or, in the alternative, erred by failing to give a sufficiently robust limiting instruction.
....
[27] Even when evidence has a permissible use, if it also incidentally exposes the general bad character of an accused – which it did here – a trial judge must balance the probative value of the evidence against its prejudicial effect: R. v. G.(S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at paras. 65, 69; R. v. O.R., 2015 ONCA 814, 333 C.C.C. (3d) 367, at paras. 15, 24-26.
[28] And even if a proper analysis were undertaken, resulting in the leather bag and all of its contents being admitted, it was incumbent on the trial judge to provide a sufficiently pointed limiting instruction in the final charge; one that described the evidence to which the instruction applied and clearly delineated the permissible and impermissible uses of that evidence: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 691, 693-694. Such an instruction would necessarily direct the jury to not: (1) punish the accused for past misconduct, or (2) reason from general disposition to guilt.
[29] The trial judge’s instruction did not achieve these two objectives and therefore did not go far enough to abate the risks present here. . R. v. Amin
In R. v. Amin (Ont CA, 2024) the Ontario Court of Appeal engages in an extending review of 'similar fact' evidence, here in the context of a 'Mr.Big' police sting operation where the goal is to obtain a confession from the defendant wrt the other, 'target' crime. The court's apparent concern was that by inducing the defendant to become involved with the fake crimes, the jury would be likely to be prejudiced against them in the same manner that 'similar fact' evidence can.
Here the court notes that "probative value is a matter of degree":[55] The trial judge first erred in law by failing to assess how probative the advice about evading detection was as context for the June 27 statements. Because probative value is a matter of degree (Magonza v. Canada (Citizenship and Immigration), 2019 FC 14, at paras. 21, 23), trial judges must first assess the degree of probative value of the evidence to properly balance that probative value and any prejudicial effect: R. v J.W., 2022 ONCA 306, 161 O.R. (3d) 609, at paras. 20-22, 36, 39, leave to appeal refused, [2022] S.C.C.A. No. 220. The trial judge did not do this. Instead, he simply labeled the advice as probative. This was conclusory and insufficient: J.W., at para. 46. . R v Ansari
In R v Ansari (Ont CA, 2015) Watt JA usefully stated some basic principles of evidence law and their inter-relation [respecting relevance, admissibility, prejudice and whether evidence is probative]: [101] The resolution of this ground of appeal requires consideration and application of fundamental principles of the law of evidence. First, the notion of relevance. And, second, the admissibility rule that excludes relevant and material evidence on the ground that its probative value is exceeded by its prejudicial effect.
[102] Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between, on the one hand, an item of evidence and, on the other, a proposition of fact that the evidence is offered to prove. Relevance is a matter of everyday experience and common sense. An item of evidence is relevant if, by the application of everyday experience and common sense, it renders the fact it seeks to establish by its introduction slightly more or less probable than the fact would be without it: R. v. Luciano, 2011 ONCA 89 (CanLII), 267 C.C.C. (3d) 16, at para. 204.
[103] Relevance does not exist in the abstract or in the air: Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at pp. 730-732; Luciano, at para. 205. Relevance is also relative; we assess and determine it in the context of the entire case in which the evidence is proffered and the positions of counsel in that case: Cloutier, at pp. 730-732; and Luciano, at para. 205.
[104] To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is introduced. Nor does the evidence, to be relevant, need to make the proposition of fact more probable than not. An item of evidence is not irrelevant simply because it can sustain more than one inference. The requirement of relevance is met where the item of evidence reasonably shows, “by the application of everyday experience and common sense[,] that the fact is slightly more probable with the evidence than it would be without it”: Luciano, at para. 206.
[105] Admissibility is a legal concept. Admissibility rules exclude evidence that is both relevant and material on the basis of some policy consideration that the law regards as of sufficient importance to warrant exclusion of evidence that would otherwise assist the trier of fact in ascertaining the truth of the matter at hand. The rule that excludes relevant and material evidence on the basis that its probative value is outweighed by its prejudicial effect is a rule of admissibility.
[106] The prejudice component of this general exclusionary discretion may involve either or both of two types of prejudice.
[107] Moral prejudice refers to the risk of an unfocused trial and a conclusion of guilt based on a prohibited chain of reasoning from a general disposition or propensity to guilt of the offence charged. In other words, a finding of guilt that is based on character, not conduct: R. v. Handy, 2002 SCC 56 (CanLII), [2002] 2 S.C.R. 908, at paras. 31 and 139.
[108] Reasoning prejudice involves the distraction of the trier of fact from their proper focus on the offence charged by the introduction of evidence of other incidents that consume undue time and may be accorded more weight than should be their due: Handy, at para. 31 and 144.
[109] When invited to exclude relevant, material and otherwise admissible evidence on the basis that its prejudicial effect predominates over its probative value, a trial judge will consider the individual constituents of the rule – probative value and prejudicial effect – and then balance them to determine which predominates.
[110] The assessment of probative value involves consideration of the strength of the evidence; the extent to which it supports the inferences the proponent seeks to have drawn from it; and the extent to which the matters the evidence tends to prove are at issue in the proceedings: R. v. B. (L.); R. v. G. (M.A.) (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 23.
[111] An assessment of prejudicial effect should take into account:i. the degree of discreditable conduct disclosed by the evidence;
ii. the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;
iii. the extent to which the evidence may confuse issues; and
iv. the ability of the accused to respond to the evidence.
B. (L.); G. (M.A.), at para. 24. [112] A trial judge’s decision about where the balance settles between probative value on the one hand and prejudicial effect on the other is accorded a high degree of deference by appellate courts. Where a trial judge has applied the proper principles, weighed the probative value of the evidence and its potential prejudice and decided the issue of admissibility, appellate courts will not lightly intervene: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 42; R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 613; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 733-734; R. v. Samuels, 2013 ONCA 551 (CanLII), 310 O.A.C. 175, at para. 47; B. (L.); G. (M.A.), at para. 51.
[113] A final point concerns prophylactic measures undertaken by the trial judge to reduce the risk of reasoning or moral prejudice. A limiting instruction that explains the proper use of this evidence and enjoins prohibited reasoning is of critical importance in ensuring a fair trial: R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C. C.A.), at para. 51.
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