The Test for Admissibility

This is the test for admissibility for all evidence in all forums, except where altered by statute.

Evidence is admissible if it is:

(1) relevant;

(2) not excluded by a specific exclusionary rule (e.g. hearsay); and

(3) if it is more “probative” than “prejudicial”.

Relevancy

• There must be a nexus between facts such that, inferentially, if one fact exists so therefore does the other.

• Piece of evidence “A” must be capable of leading the trier of fact to find fact-in-issue “B”

• This connection can be direct or circumstantial

Sopinka 2.35

• “Relevance” is not determined by a legal test, it is an exercise in the application of experience and common sense

• Ie. Watson: “relevance” …requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”.

Watson, continued

• If it does, then “Fact A” is relevant to “Fact B”. As long as “Fact B” is itself a material fact-in-issue in the litigation, then “Fact A” is relevant and prima facie admissible (and now, subject to second and third stage admissibility concerns).

Refresher: terminology

• Admissibility v. weight

• Trier of fact v. trier of law

• New term: proponent v. opponent

Relevancy continued

• Relevancy is a question of …

LAW

• Relevancy is determined by the trier of …

LAW

Relevancy continued

• A question of law, determined by the trier of law without a finding of fact.

• A finding by the trier of law that there is some logical connection between piece of Evidence “A” and fact-in-issue “B” such that it could help the trier of fact find the necessary fact-in-issue

• Whether that piece of evidence is relied upon, and whether it assists the trier of fact is up to the trier of fact. The finding of relevancy is only a judicial determination that the piece of evidence is properly before them, and “could” be relied on by them.

Sidenote: Facts-in-Issue

The lack of relevance can be put forth by the opponent of the evidence as an objection to admissibility.

Arguments about relevance cannot be made without reference to the fact-in-issue.

“Facts-in-issue” are determined by the substantive law, and in civil cases, the pleadings as well.

Facts in Issue

In a criminal trial where the charge is assault, the facts-in-issue would be:

• Jurisdiction of the Court

• Identity of the perpetrator

• A non-consensual application of force

Facts-in-Issue

In a civil negligence action, the facts-in-issue would be:

• The act complained of.

• The duty of care.

• The standard of care.

• Damages: quantum.

• Perhaps a defence of volenti.

Facts-in-Issue

• As noted by Sopinka, facts-in-issue include the credibility of witnesses, and that can be the stated relevance of your line of questioning – ie. criminal record of witness, or their financial or emotional interest in the outcome of this proceeding.

• They can also be the foundational elements required for the admission of other evidence – ie. documents.

• Whether raised by your opponent, or the trier of law, you will be called upon to explain the relevancy of certain questions you ask a witness, or the physical exhibits you proffer to the Court.

• As the proponent, your task is to identify to the trier of law how the question/ evidence/ exhibit is relevant to the fact in issue you identify – again, how one leads to the other.

• Your opponent argues why one cannot lead to another – OR THAT THE FACT IS NOT IN ISSUE – and the trier of law allows or disallows the question/evidence.

• Note that facts-in-issue can change, as the parties’ cases develop, and new issues (such as defences) are raised, or facts are admitted by one party or the other.

Timing of Objection/Manner of the Presentation of Evidence

• While a TOL has a limited discretion to remove aspects of the evidence he/she has already admitted, counsel are expected to deal with evidential issues as they arise.

• In other words, the time for objection by an opponent is at the time the proponent proffers the evidence (ie. asks the offending question, or proffers the offending exhibit)

Timing/Manner Cont’d

• A normal trial involves a lot of evidence and most questions and answers pass without objection or argument. The TOL will undoubtedly assume that an opponent has no objection by their silence.

• The opponent is expected to object and, normally, argue the objection right then and there without adjournment. After audi alteram partem, a decision on the evidential point is made and the trial continues based thereon.

Timing/Manner Cont’d

• In general, all evidential rulings stand until appeal, in other words, all alleged legal errors are appealed as a package. Interlocutory appeals, except in extreme or unusual circumstances, are not allowed in our system.

• Lack of an objection at trial can lead to the dismissal of an appeal on the point, on the logic that the failure to object was a calculated and tactical decision of the opponent, who was happy to let the question/exhibit pass.

Timing/Manner

• If you have let one by you, and realize it later, the TOL is not functus, raise it as a soon as possible.

• If a piece of evidence has been let in conditionally, on the promise by the proponent to make it relevant, or otherwise prove its foundation, and the proponent fails to do so, the opponent should move for its exclusion prior to (or at) the close of the proponent’s case.

Relevance: Direct

• In a trial for the criminal offence of first-degree murder, you ask the witness whether he saw what happened to the victim. He replies: “I saw the Defendant shoot the victim with a gun five times in the face.”

• This is direct evidence of an eyewitness. The link between the testimony and the facts-in-issue - including the cause of death, the identity of the perpetrator, the intent of the perpetrator – is direct and clear.

• The “relevance” of the profferred testimony is that it could lead a jury to find those facts-in-issue, if they relied on the evidence and gave it sufficient weight.

Relevance: Circumstantial

• Same offence, same trial. We learn there are no eyewitnesses. Crown calls an insurance salesman to the stand who testifies that the Defendant purchased a $2 million insurance policy on the victim, the day before the shooting. Further, that the Defendant has since demanded payment on the policy, and showed no emotion in doing so, even though the victim was the Defendant’s wife.

Objection: Relevance

• Answer?

Answer by proponent: Crown

• This evidence is relevant to the following facts-in-issue: identity, intent.

Identity

• If the jury accepts the evidence of the insurance salesman, they “may” find that the perpetrator was the person who held a financial interest in the death of the victim.

• The evidence goes to “motive” and motive goes to “identity.”

• The jury may also make something of the timing of the insurance application on the issue of planning and deliberation (intent).

• The link is circumstantial, yet it is there.• The strength of the link is an argument for …

• Third stage admissibility: prejudice and probative value.

• What of the evidence that the Defendant was “not emotional?”. Relevant?

Answer: Proponent

• One would expect the husband of a person to be distraught over a death, even when picking up his insurance money.

• Evidence is not to be considered in isolation, the proponent and Court can refer to the other evidence, and put this piece in context to advance relevance.

• It is NO answer that “no jury could convict on that evidence”, burden and standard of proof is not at issue. The evidence could be helpful in them finding the fact-in-issue. There is a link.

• If the evidence of “non-emotion” is inflammatory, the objection is …

• Prejudice v. probative value

Note

• Note as well that it would not be an objection known to law for the opponent to state: “objection, my client was clearly upset over the death of his wife, we heard that from the last witness.”

• This objection is mixing up the roles of the TOF and TOL.

• Emotion or lack thereof is but one piece of evidence the TOF may consider.

Note continued

• The fact that the TOF has heard two (or more) different versions on that issue is a problem they face all the time. It doesn’t affect determinations of relevance.

• The TOF will (a) decide, based on all of the evidence at the end of the trial, whether the accused was in fact emotional; and secondly (b) whether that tells them anything about the issues of identity or intent.

Note

• “Circumstantial” evidence can be objected to on the basis that the proposed “link” requires the jury to engage in speculation or conjecture – ie. the proposed “link” essentially requires an inference not based on the evidence

Note

• Another form of relevant, yet circumstantial evidence is “habit.”

• ie. Evidence that a person repeatedly acted in a certain way in the past when circumstances similar to the present occasion arose, has been received as evidence that the person acted in conformity with the past practice on the occasion in question.

Note Cont’d

• The reasoning is that the fact that a person was in the habit of doing a certain thing in a given situation suggests that the person acted in the same way when a similar situation arose. It makes the conclusion that a person acted in a particular way more likely than it would be without the evidence of habit.

Note Cont’d

• Note that this “habit” evidence is often excluded in criminal trials when it is called against an accused. This is not because of lack of relevance, but because of the character evidence rule as it operates in favor of an accused (no other parties in civil or criminal), and the prejudicial concern over the potential “misuse” of such evidence by a TOF engaging in “disposition reasoning” – ie. he has done it before, and this helps me conclude he did it again.

Hodge’s Rule

• Treated circumstantial and direct evidence differently.

• It mandated an instruction to the TOF as follows:It is my duty to urge you not to find the

accused guilty on circumstantial evidence alone, unless you are satisfied, not only that the circumstantial evidence is consistent with the conclusion that the accused committed the offence … but also that the facts which have been proved are such as to be inconsistent with any other rational conclusion than … [guilt]

Per Cooper SCC

• Not an instruction required by law.

• A regular instruction concerning proof beyond a reasonable doubt will suffice.

• Note: can still be given, not required.

Conditional Relevance

• On a relevance objection, the proponent can ask the trier of law for “leeway” when the relevance is not immediately apparent

• The trier of law can essentially give the questioner a few more questions and answers to establish relevance

Probative Value vs. Prejudicial Value

• Probativeness concerns the “value” of the evidence towards determining the facts-in-issue (facts-in-issue = elements of the tort, elements of the criminal offence). Direct evidence of a witness on the point is normally considered to be of a high probative value. A physical exhibit which is capable of many meanings in the case is considered less so.

Note Sopinka 2.49 Probative Vale vs. Relevance

• There are no degrees of relevance in Canadian law.

• For example, R. v. Morris, newspaper clippings concerning the importation of heroin from Pakistan, found in the accused’s possession.

• The accused was charged with heroin importation from Hong Kong.

Morris Cont’d

• It was held by the SCC that the trial judge erred in excluding the newspaper articles for their tenuous relationship to the facts in issue in the case at bar.

• Held: the TOF could conclude circumstantially that the accused was informing himself regarding the importation of heroin. If the article concerned Hong Kong, its probative value (weight) would arguably increase, but the fact that the article dealt with Pakistan, did not affect its relevance.

Note 89, p. 57 Sopinka

• Per Alta C.A.: it need only be shown that one possible interpretation of the facts is relevant to an issue at trial, the strength or weakness of the evidence is for the TOF.

Sopinka 2.58

• In assessing probative value, a TOL is necessarily determining the degree or extent to which the evidence will prove the fact in issue for which it is tendered. This will sometimes require an assessment of the strength of the inferential link between the evidence called and the fact in issue.

But …

• The probative value may also depend upon the reliability of the evidence in question. For example, an examination of its frailties.

• Note that in undertaking this exercise, the TOL is not to usurp the role of the TOF and decide facts for them.

Prejudicial Value

• “prejudice” does not mean how hurtful the evidence is to one side’s case or the others, rather it is the “danger” the evidence poses to the administration of justice or the job of the trier of fact

• For example, evidence that can have the effect of simply inflaming the passions of the jury, is often excluded for prejudicial value reasons (e.g. graphic pictures of the dead complainant).

• Evidence which could be misused by the jury is similarly excluded, such as prior bad character evidence of an accused.

• Evidence which has the potential of taking too much time, or might dominate the attention of the trier of fact are also prejudicial value concerns.

Test

• Note that the probative value/prejudice test is, for the most part, one of which factor is “outweighed” by the other – so it really is a balance dictated by which factor overrides by “50 percent plus one.”

Exception

• There is an exception in the criminal law for evidence called by the accused. The test is influenced at that point by another concept: the right at common law and constitutionally for an offender to make “full answer and defence.”

• The test is re-worked for the accused, and accused only, to be: “where the prejudice substantially outweighs probative value.”

Exception

• In other words, where the probative value is trifling, and the prejudice patent.

Limited Admissibility

• We have spoken about “conditional relevance” and “conditional admissibility.” In both concepts, the TOL allows a question (or other piece of evidence) on counsel’s undertaking to establish its relevance or other required foundation for its admissibility.

• Limited admissibility is a different concept.

Limited Admissibility

• This concept tells us that some evidence can be admissible for some purposes, but not others.

• This would be made clear by an instruction from the TOL to the TOF – ie. I have let this piece of evidence in, but caution you that it can only be used, as a matter of law, for this purpose, and not for this purpose.

Limited Admissibility

• For example, reference is made to an accused’s criminal record while he is under cross-examination. An objection is made by the opponent. The objection: not one of relevance, as the credibility of a witness is always relevant. The objection is one of prejudice vs. probative value (third stage admissibility), as well as the character evidence rule (second stage).

Limited Admissibility

• It is open for the TOL to rule that reference to the record is allowed. The TOF will be allowed to hear of (or see) the accused’s criminal record. However, they will only be allowed to use it to assess his credibility as a witness. They will expressly not be allowed to use it to determine that he was more likely to have committed this offence due to his criminal antecedents. Ie. prohibited disposition reasoning.

Limited Admissibility

• In other words, it is open to a TOL to both assess and acknowledge the prejudice presented by a certain piece of evidence, but in admitting it, rule that any potential prejudice can be dealt with by way of an appropriate limiting instruction.