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Evidence - Relevance (2). R. v. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal s.276 ['Evidence of complainant’s sexual activity'] appeal.
Here the court characterizes 'relevance':[69] Evidence is “relevant” if it “has any tendency to prove or disprove a fact in issue”: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 18. This is the standard that applies to the relevance requirement in s. 276 applications. It was described in the context of s. 276 by Doherty J.A. in R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71, at para. 89:Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative. . R. v. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal s.276 ['Evidence of complainant’s sexual activity'] appeal.
Here the court considers the SOR applicable to 'relevance determinations':[50] The majority decision in R. v. T.W.W., at paras. 21-22, confirms that on appellate review, relevance determinations and the application of legal principles raise questions of law to be decided on a correctness standard, without deference being owed to the trial judge. However, deference must be given to a trial judge’s evaluation of whether the prejudicial effect of the subject evidence substantially outweighed its probative value: R. v. T.W.W., at para. 21. In this case the trial judge did not exclude the evidence based on that discretionary evaluation. He excluded it because he found it to be irrelevant and its admission contrary to legal principles. A correctness standard therefore applies in reviewing his s. 276 determination. .... . Watson v. Law Society of Ontario [the numbered case cites can be accessed at the main Canlii case]
In Watson v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered the role of relevance in tribunal proceedings, including the appellate standard of review:[71] Relevance is a question of law.[67] As such, the tribunal is required to be correct on this issue. “To be relevant, the evidence must not only be logically relevant but must be sufficiently probative to justify admission.”[68] Relevance is both “a requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence” (i.e., logical relevance) and “a requirement that evidence be not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission” (i.e., legal relevance).[69] ... . R. v. Schneider
In R. v. Schneider (SCC, 2022) the Supreme Court of Canada examines the basic evidentiary principle of 'relevance', focussing on the role of 'meaning':(a) Determine Whether the Evidence Is Relevant to an Issue at Trial
[38] The first step in determining admissibility is considering whether the evidence is relevant. At this stage, this is often referred to as “logical relevance”. However, I will use the word “relevance” (rather than “logical relevance”) in this decision.
[39] To determine relevance, a judge must ask whether the evidence tends to increase or decrease the probability of a fact at issue (R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 38). Beyond this, there is no “legal test” for relevance (Paciocco, Paciocco and Stuesser, at p. 35). Judges, acting in their gatekeeping role, are to evaluate relevance “as a matter of logic and human experience” (R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 44). When doing so, they should take care not to usurp the role of the finder of fact, although this evaluation will necessitate some weighing of the evidence, which is typically reserved for the jury (Vauclair and Desjardins, at p. 687, citing R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at paras. 95 and 98). The evidence does not need to “firmly establish . . . the truth or falsity of a fact in issue” (Arp, at para. 38), although the evidence may be too speculative or equivocal to be relevant (White, at para. 44). The threshold for relevance is low and judges can admit evidence that has modest probative value (Arp, at para. 38; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 18). A judge’s consideration of relevance “does not involve considerations of sufficiency of probative value” and “admissibility . . . must not be confused with weight” (R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 715 , per La Forest J., dissenting, but not on this point, quoting Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at p. 192). Concepts like ultimate reliability, believability, and probative weight have no place when deciding relevance. Whether evidence is relevant is a question of law, reviewable on the standard of correctness (R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-21).
[40] This leads to the issue that divided the court below: what evidentiary context can a trial judge use to determine whether the evidence is capable of meaning, such that it could be relevant? Justice Charron addressed this in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 30:Relevance can only be fully assessed in the context of the other evidence at trial. However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot wait for the conclusion of the trial for resolution. Depending on the stage of the trial, the “context” within which an item of evidence is assessed for relevance may well be embryonic. Often, for pragmatic reasons, relevance must be determined on the basis of the submissions of counsel. The reality that establishing threshold relevance cannot be an exacting standard is explained by Professors D. M. Paciocco and L. Stuesser in The Law of Evidence (4th ed. 2005), at p. 29, and, as the authors point out, is well captured in the following statement of Cory J. in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 38:To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. [Emphasis deleted.] [41] As Charron J. explained, trial judges can consider relevance having regard to evidence that parties have adduced, as well as evidence that a party indicates that they intend to adduce. The judge can admit the evidence at issue conditional on counsel’s undertaking as to evidence to be adduced (Lederman, Fuerst and Stewart, at ¶2.72). Given the connection between meaning and relevance, Charron J.’s writing in Blackman logically extends to evidence that can inform meaning.
[42] This general proposition applies to party admissions. There is no basis to treat party admissions differently in the determination of relevance. At this stage in the analysis, trial judges do not need to have classified the evidence as a party admission. In drawing a tight circle around what other evidence can be taken into account in determining the relevance of party admissions (the “micro” versus “macro” distinction), the Court of Appeal majority erred in law.
[43] In making this point, I am mindful that evidence does not need to be unequivocal to be relevant. In R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, Sopinka J. underlined that while questions of admissibility are for the trial judge, whether a statement was made and whether it is true are questions for the trier of fact (pp. 664-66; see also Vauclair and Desjardins, at pp. 865-66). Party admissions, like other evidence, are not rendered inadmissible because the witness is equivocal in their testimony. Witnesses often have imperfect recollection and express uncertainty in their testimony. To the extent that these are matters related to admissibility (rather than the weight that the trier of fact gives to the evidence), they are properly to be considered by the trial judge when balancing probative value against prejudicial effect. Thus, the fact that a witness cannot recall the exact words used does not mean that such evidence has no relevance.
[44] Of course, parties are not permitted to “bootstrap” their argument on the admissibility of a party admission to any and all evidence. The party seeking to admit the proposed evidence should limit their submissions to the evidentiary context that is relevant to determining the meaning of the statement at issue. In a criminal case, the Crown may not argue that any evidence pointing towards the accused’s guilt provides relevant context. The focus should remain on whether the jury can give meaning to the witness’s testimony in a manner that is non-speculative, not the overall strength of the Crown’s case.
[45] In summary, judges determine relevance by asking whether, in light of all the other evidence, the at-issue evidence logically tends to make a fact in issue more or less likely. This standard applies to all evidence in criminal trials.
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