RELEVANCE/MATERIALITY and PROBATIVE VALUE/PREJUDICIAL EFFECT

Prejudicial Effect in Sexual Offences Seaboyer

1. 
   Evidence that complainant has engaged in consensual sexual conduct on other occasions (including with accused) is not admissible solely to support inference that complainant is by reason of such conduct:
   

b) Less worthy of belief as witness

2. 
   Evidence of c’s consensual sexual conduct may be admissible for purposes other than inference relating to consent or credibility where it possesses PV on issue in trial and where that PV is not substantially outweighed by PE, examples:
   

1. 
   Evidence of specific instances of sexual conduct tending to prove a person other than accused caused physical consequences of rape alleged by prosecution
   
2. 
   Evidence of sexual conduct tending to prove c’s bias or motive to fabricate
   
3. 
   Evidence of prior sexual conduct, known to accused at time of act charged, tending to prove the accused believed c was consenting to act charged not absolute rule, but normally expect proximity in time between conduct alleged to give rise to honest belief and conduct charged
   
4. 
   Evidence of prior sexual conduct which meets requirements for reception of similar fact evidence, bearing in mind that cannot be used illegitimately merely to show c consented or is unreliable witness
   
5. 
   Evidence tending to rebut proof introduced by prosecution regarding c’s sexual conduct
   

3. 
   Before evidence of consensual sexual conduct on part of victim is received, it must be established on voir dire (may be held in camera) by affidavit or testimony of accused or 3rd parties, that proposed use of evidence of other sexual conduct is legitimate
   
4. 
   Where evidence that c has engaged in sexual conduct on other occasions is admitted on jury trial, judge should warn jury against inferring from evidence on conduct itself, either that c might have consented to act alleged or that c is less worthy of credit
   

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  Criminal Code Rape Shield Laws  limiting admissibility clarified in Seaboyer
  

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  S.277: Excludes evidence of sexual reputation for purpose of challenging or supporting credibility of P
  

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  Court says idea that credibility affected by sexual experience is universally discredited
  
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  So evidence it excludes can serve no legitimate purpose in trial, not infringing Fair Trial Right
  

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  S.276: Blanket exclusion of evidence subject to 3 exceptions: Rebuttal, ID, Consent (same occasion as trial issue)
  

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  Question: does this exclude evidence which is relevant to D and PV is not substantially outweighed by PE? Will evidence excluded be of trifling weight?
  
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  Not ok provision: what about honest but mistaken belief raising RD; what about P lacking credibility for being biased or having motive to fabricate; can’t deny building blocks of defence; evidence of sexual activity may be relevant to explain physical conditions Crown relies on to establish intercourse or use of force (semen, pregnancy, injury, disease) which may go to consent
  
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  Where this evidence may draw inference on subsequent conduct, it’s like s.277 should be closely scrutinized; in other cases this would be allowed for SFE, not fair to exclude just for sexual offences
  
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  S.276 infringes on s.7 and s.11(d) Charter rights, renders inadmissible evidence which may be essential to presentation of legitimate defences and fair trial; not saved by s.1 Oakes for overbreadth and injury outweighing objective
  

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  Facts: W was outside, H & C went into rental unit and deceased (D) was shot; W charged with murder, asserts defence that didn’t know H had gun, so he wasn’t involved in the shooting
  
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    Defence theory: spontaneous gunfight
    
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  Relevance issue: friend said D carried a gun with him ‘like a credit card’, suggests evidence of habit
  
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    Logical relevance: D always carrying gun made it more probable he was carrying a gun when shot
    
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    Materiality/legal relevance: if D was armed when he was shot, this makes defences theory of spontaneous gunfight more plausible, which allows jury to infer that W was not part of shooting
    
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  PE: jury thinking D deserved it doesn’t outweigh PV: jury warning, other evidence showed criminal lifestyle
  

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  Fact in issue: Was D carrying a gun? Evidence: he never left home without it; Premise: habit
  

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  Inference: D probably carrying gun when he left home on day of shooting; significant PV
  

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  Further inference from possession to use of weapon is essential to make M’s evidence relevant to any issue in trial
  

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  Fact in issue: Was C shot by D or H? Evidence: D was target of H’s assault and H was C’s friend; Premise: A person is more likely to be shot by his friend’s adversary than by his friend
  

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  Inference: More likely that C was shot by D than by H
  

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  Chain of Inference:
  

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  If D’s habit was to carry gun, it is more probable that he carried gun on day of shooting
  
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  If D carried a gun on day of the shooting, it is more probable that he (not H) fired the second gun
  
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  If D (not H) fired second gun, it is more probable that this was spontaneous shoot-out not premeditated ambush (second degree charge vs. manslaughter conviction)
  
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  If spontaneous shoot-out not premeditated ambush, it is more probable there was no plan for ambush and accused had nothing to do with shooting
  

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  TJ excluded as irrelevant newspaper clippings in accused’s house regarding Pakistan drug trade in charges for importing drugs from Hong Kong; Is article related to importing from completely different country relevant?
  
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  SCC Maj: clipping logically relevant to show preparatory steps taken, though low PV
  
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  Dissent: relevant but inadmissible because it’s character evidence
  
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  May be of no weight for jury, but test for relevancy is very low and there is no minimum standard; concerns about prejudicial effects should be analysed under another exclusionary rule – effectively overrules Cloutier
  

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  Dr charged with sexually assaulting 4 female patients, wanted expert evidence in that person who committed these offences was likely sexual psychopath and accused wasn’t
  

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  Court said expert evidence of distinctive character trait can be adduced, if accused or perpetrator having that trait would be relevant such that comparison of the two is useful  wasn’t reliable science here
  
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  Relevance is threshold for expert evidence like all other; a matter for judge as question of law, reliability PV key
  
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  Prima facie admissible if so related to fact in issue that it tends to establish it, but that’s just logical relevance
  
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  PV over PE: Other considerations regarding admissibility are cost benefit analysis; cost = impact on trial process
  
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  Evidence logically relevant may be excluded if: PE over PV, inordinate amount of time not commensurate with its value, or if it is misleading where effect on the trier of fact, esp jury, out of proportion to reliability
  

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  Exclusion of logically relevant evidence on these grounds is more properly a general exclusionary rule, but whether treated as aspect of relevance or an exclusionary rule, the effect is the same
  

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  Accused charged with sexual assault of woman who he had drinks with at bar
  
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  Constitutionality of Criminal Code ss.276, 277 restricting right of defence in trial for sexual offence to cross-examine and lead evidence of a complainant’s sexual history
  
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  Majority said s.276 offends Charter; but not going to let CL allow evidence even without having PV
  

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  Focus on Thayer’s Maxim, relevant evidence be admitted and irrelevant excluded for fair trial, subject to qualification that value of evidence must outweigh potential prejudice; focus on uses of evidence
  

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  Relevance determined not in vacuum but in relation to issue in trial, evidence may be relevant to one issue and irrelevant to another or may mislead trier of fact on second issue, could prejudice
  
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  In Wray only exclude evidence gravely prejudicial to accused, tenuous admissibility, and trifling probative value; more appropriate description in Sweitzer
  
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  Most excluding power with Crown evidence; can exclude defence evidence if substantially PE
  

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  Been reluctant to restrict defence because concerned about convicting innocent people
  

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  Dissent from L’Heureux-Dube was that s.276 not violating s.7, excludes only irrelevant or prejudicial evidence, and in the alternative it’s easily justified under s.1
  
  
  

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  Attempted shooting of police officer, witness overheard accused and lawyer before prelim, accused said he had a gun but didn’t point it; Crown wants evidence in
  
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  Majority says utterance can’t meet threshold of relevance for admissibility because it’s meaning can’t be determined without its context (which witness couldn’t give) or its meaning is so speculative it’d PE
  
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  Give jury examples of surrounding words; I killed David or I had a gun has no probative value
  
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  Context key: gives meaning, complete thought or not, even if some relevance exclude if meaning PE and so speculative there’s tenuous probative value
  

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  Tuck wants evidence that deceased Jabaji had Ecstasy tablets with him; says relevant to issue as to who smuggled the knife into the club to kill Jabaji  if deceased brought it in not Tuck, then seems like deceased was aggressor
  
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  Issue: smuggled contraband = smuggling knife
  
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  Potential PE: jury may infer that he was violent person, propensity reasoning; PV is deceased brought knife in not accused; will address PE with a limiting instruction to jury
  
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  But seems like it should be “means” or “opportunity” [for bringing knife in] reasoning not propensity
  

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  Evidence of trafficking in front of complainant; c said drugged before acc raped her; Crown wants evidence in a assess after, since no jury – shows drug dealer would have better access to date rape drugs
  
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  But court says no nexus, recreational drugs are of different nature to date-rape drugs, users don’t have same access so dealers don’t either [yeah riiiiiight]; and dangerous to weigh admissibility at end
  

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  Could use expert evidence or statistics that cocaine traffickers often did have access to date rape drugs
  

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  Deceased raped, murdered; voir dire on admissibility of hearsay evidence of deceased
  
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  Dalzell (acc) says: she would have consensual sex with him even if he assaulted her friend because
  

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  She continued close relationship with Mr. Shallow after being abused, shows a character trait that she’s equally prepared to commence intimate relationship with Dalzell after he sexually assaulted her best friend; Dalzell saying they had consensual sex and her death afterward had nothing to do with that
  

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  Character trait evidence: “any proof presented in order to establish the personality, psychological state, attitude or general capacity of individual to engage in particular behaviour”
  
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  Relevance strained, don’t know anything about Shallow’s assault, no predicative value on her capacity to forgive and become intimate with someone who was not her lover at a time of very different sort of betrayal
  
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  Also trying to avoid prejudice jury with speculation that if Mr. Shallow hit her before he killed her now
  

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  Crown wants to qualify Detective as expert on existence and nature of Toronto street gangs, since victim trespassed on accused’s gang territory, trying to prove ID of shooter in murder
  
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  Accused admitting fact he’s gang member  gang members may have guns, may be PE and not admissible
  
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  Relevant 1: being gang member makes “motive” for killing more probable; PV
  

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  Properly instructed jury can disregard element of bad character, just focus on motive
  
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  Negative impact is balanced between the deceased and the accused
  

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  Inadmissible 2: gang members have guns, relevant to whether accused had gun, doesn’t greatly support inference, not sure if he had one that day, and significant PE
  
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  Criminal Code s.655: accused on trial for indictable offence may make admission to dispense with proof
  

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  D charged with murder of wife and kids; appeal on error in admitting circumstantial evidence
  
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  Neither fact that D read book “Torso” or his remarks after reading it had PV, shouldn’t have been admitted; said “if you’re going to commit murder, do it in Hamilton” and “impressed” woman in book got off despite evidence
  
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  On a charge of wife-murder, evidence that accused husband is cheating with another woman is relevant to issue of motive, if relationship with other woman isn’t too remote in time; D said too remote to have PV but court said jury can draw inference, is admissible, since D was trying to show self as faithful husband with cheating wife
  
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  If error to tell jury D’s false statements on fidelity admissible as consciousness of guilt, still no major miscarriage
  

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  Poulin charged with murder of wife, slight possibility she died naturally but more likely asphyxiated said coroner; D in financial troubles; insurance policy on wife = motive
  
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  Evidence admissible on D’s misappropriation of funds belonging to 2 policy holders of his insurance company and dealings with secretary (who he was sleeping with) from Mrs. Frew to show motive
  
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  Forgery and misappropriation of funds not then discovered, the discovery was inevitable unless he returned the funds; though evidence in that he’s chronic liar and TJ not properly instructing jury, still not miscarriage of justice