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Evidence - Relevance
MORE CASES
Part 2
. R. v. Wood
In R v Wood (Ont CA, 2022) the Court of Appeal commented on relevance and admissibility in this criminal appeal:[59] It is fundamental that to be receivable in a criminal trial, an item of evidence must be relevant, material, compliant with any applicable admissibility rule, and be more probative than prejudicial according to the applicable standard: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting, but not on this point).
[60] As is well known, relevance is not an inherent characteristic of any item of evidence. Rather, it exists as a relation between an item of evidence and a proposition of fact that its proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense. The threshold for relevance is not high. Evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than that fact would be without the evidence. We assess relevance in the context of the entire case and the positions of counsel: Calnen, at para. 108, per Martin J. (dissenting, but not on this point); R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-206.
[61] Trial judges retain the general discretion to exclude evidence that is relevant, material, and compliant with any applicable admissibility rule where an imbalance exists between the probative value of that evidence and its prejudicial effect: Calnen, at para. 110, per Martin J. (dissenting, but not on this point); R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 31. Where the balance settles as between probative value and prejudicial effect depends upon who is the proponent of the evidence.
[62] Where the proponent of the evidence is the Crown, the exclusionary discretion is engaged where the prejudicial effect of the evidence exceeds its probative value: Calnen, at para. 107, per Martin J. (dissenting, but not on this point); White, at para. 31. See also, R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3.
[63] Where the proponent of the evidence is the defence, evidence that is relevant, material, and compliant with any applicable admissibility rules may only be excluded where the prejudicial effect of that evidence substantially exceeds its probative value: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 611; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 107.
[64] In the absence of legal error, a misapprehension of material evidence or a conclusion that is plainly unreasonable, a trial judge’s evaluation of where the balance between probative value and prejudicial effect settles attracts substantial deference on appeal: Shearing, at para. 73; Luciano, at para. 234. . R. v. Megill
In R. v. Megill (Ont CA, 2021) the Court of Appeal set out basic evidentiary definitions of relevance and materiality:[64] The circumstances in which the evidence is received in a criminal trial are well known. Relevance. Materiality. Admissibility. See R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting, but not on this point). Likewise, the principles governing the reception of expert opinion evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 24.
[65] Evidence is relevant if it has some tendency, as a matter of logic and human experience, to make the fact or proposition that it is offered to establish more likely than it would be in the absence of the evidence. We assess relevance in the context of the case as a whole and the positions of counsel: Calnen, at para. 108, per Martin J. (dissenting, but not on this point); R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-5.
[66] Evidence is material if what it is offered to prove or disprove is a fact in issue as determined by the allegations and the governing substantive or procedural law. Evidence that is immaterial is excluded on that ground. If erroneously admitted in a jury trial, the judge should tell the jury that they are not to consider it: Calnen, at para. 109, per Martin J. (dissenting, but not on this point); Luciano, at para. 207. . R v Vassel
In R v Vassel (Ont CA, 2018) the Court of Appeal provides a definition of 'relevance':[82] Relevance. An item of evidence is relevant if it renders the fact it seeks to establish by its introduction slightly more or less probable than that same fact would be without that evidence. Relevance is a matter of everyday experience and common sense. It is assessed in the context of the entire case and the positions of counsel: R. v. Luciano, 2011 ONCA 89 (CanLII), 267 C.C.C. (3d) 16, at paras. 204-206. . R v Jackson
In R v Jackson (Ont CA, 2015) the Court of Appeal articulated some useful comments on the evidentiary concept of "relevance":The Meaning of “Relevant” and “Relevance”
[119] The terms “relevant” and “relevance” are old friends of the law of evidence. Familiar faces. Constant companions. We know them well enough to say several things about them without being critical in any way.
[120] Relevance is not a legal concept. It is a matter of everyday experience and common sense. It is not an inherent characteristic of any item of evidence. Some have it. Others lack it.
[121] Relevance is relative. It posits a relationship between an item of evidence and the proposition of fact the proponent of the evidence seeks to prove (or disprove) by its introduction. There is no relevance in the air: R. v. Luciano, 2011 ONCA 89 (CanLII), 267 C.C.C. (3d) 16, at paras. 204-5.
[122] Relevance is also contextual. It is assessed in the context of the entire case and the positions of counsel. Relevance demands a determination of whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise: R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at p. 731.
[123] The law of evidence knows no degrees of relevance, despite the frequent appearance of descriptives like “minimally, marginally or doubtfully”, “tangentially” and “highly” that tag along for the ride from time to time. . 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. . R v Kler
In R v Kler (Ont CA, 2017) the Court of Appeal comments usefully on the concept of 'relevance' and post-offence conduct:[123] Relevance is not an inherent characteristic of any item of evidence. It exists as a relation between an item of evidence and a proposition of fact that the party introducing the evidence proposes to establish by its introduction. Relevance is relative and contextual. It is a matter of everyday experience and common sense and is assessed in the context of the entire case and the positions of counsel: R. v. Luciano, 2011 ONCA 89 (CanLII), 267 C.C.C. (3d) 16, at paras. 204-6.
[124] An individual item of evidence may give rise to more than one inference. That it does so does not render it irrelevant, or call for its exclusion on the basis of some rule of admissibility. Individual items of evidence are not to be subjected to piecemeal evaluation, or rejected as irrelevant or inadmissible because they fail to satisfy the criminal standard of proof. It is the whole of the evidence, often greater than the sum of its individual parts, that is subjected to the criminal standard of proof.
[125] Whether the descriptive used is post-offence conduct or after-the-fact conduct, the designation tells us that what is involved is evidence of things done or said after an offence has been committed: not before and not at the same time, but after. This is circumstantial evidence to which no special rule attaches: R. v. White, 2011 SCC 13 (CanLII), [2011] 1 S.C.R. 433, at paras. 31, 105, 185.
[126] As with circumstantial evidence generally, jury instructions about the use of evidence of post-offence conduct must not invite the jury to apply the criminal standard of proof to the individual items of evidence: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 42-49.
[127] The courts eschew a list or category approach to determine whether things done or said after an offence has been committed may be relied upon as evidence of post-offence conduct. It all comes down to relevance. Examples of relevant evidence abound, among them, evidence than an accused destroyed or attempted to destroy objects that tended to link him or her to the commission of the offence charged. See e.g. R. v. Vant, 2015 ONCA 481 (CanLII), 324 C.C.C. (3d) 109, at para. 129. . R. v. McDonald
In this criminal case, R. v. McDonald (Ont CA, 2017), Watt JA usefully eludicates on the evidentiary concept of relevance:[65] Relevance is a bedrock concept in the law of evidence. But it is not an inherent characteristic of any item of evidence. Attaching a label to an item of evidence, in this case, “extrinsic misconduct”, does not establish its relevance. For relevance is relative. It exists as a relation between an item of evidence and a proposition of fact that the proponent of the evidence seeks to establish by its introduction. See R. v. Luciano, 2011 ONCA 89 (CanLII), 267 C.C.C. (3d) 16, at para. 204.
[66] Relevance is a matter of everyday experience and common sense. An item of evidence is relevant if it renders the fact that it seeks to establish slightly more or less probable than that fact would be without the evidence, through the application of everyday experience and common sense: Luciano, at para. 204.
[67] It follows that, to be relevant, an item of evidence need not conclusively establish the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. All that is required is that the item of evidence reasonably show, 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; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 38.
[68] A final point about relevance. We assess relevance in the context of the entire case and the positions of counsel. Relevance does not exist in the abstract or in the air: R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at pp. 730-33; Arp, at para. 38. Hence the importance that the proponent identify the issue(s) to which the evidence is relevant: R. v. Handy, at paras. 73-75.
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