Mandatory presumptions only impose an evidentiary burden where opposing party need merely raise a reasonable doubt about it
E.g. blood alcohol rule: “absent any evidence to the contrary”
Boyle, R. v. (1983) (Ont. C.A.) Criminal Code s.354(2) says if in possession of motor vehicle with obliterated serial number it is to be presumed that accused knew it was stolen – although there may be no evidence to the contrary, still seems jury could have reasonable doubt as to whether accused knew, and Ontario C.A. struck down s.354(2).
Downey, R. v. (1992) (S.C.C.)Criminal Code s.212(3) presumption that someone living with a prostitute lives off of the avails of prostitution, absent evidence to the contrary. S.C.C. said this violated s.11(d) since could lead to a conviction in the face of reasonable doubt.
Relevance and Discretion to Exclude
Relevance
Evidence that tends to make the desired inference more probable than it would be without that evidence is relevant
As long as the evidence that is brought forward is not harmful and doesn’t waste too much time, it’s not usually contentious if irrelevant is brought before the court.
Morris, R. v. (1983) (S.C.C.)
Facts: accused charged with importation of narcotics. Police found newspaper clippings about drug business in foreign country (expanding heroin trade in SE Asia). Convicted.
Issue: Was the newspaper clipping properly admitted into evidence?
Majority decision (4-3):newspaper clippings admissible for Crown to invite inference that accused is guilty
The whole court agreed that the evidence was relevant, but the point of contention was whether it should have been admitted.
McIntyre (majority): I completely agree with the law that were applying, but I don’t agree with how Lamer characterizes the clipping. Properly admitted, relevant, but of low probative value. Shouldn’t confuse the probative value of the evidence with its admissibility – even if the evidence if weak (or even slightly prejudicial) it should be admitted.Trial judge has discretion to admit, and should not be second guessed.
Dissent: sole purpose of the evidence was to discredit the accused’s general disposition.
Probative Value
Probative value = the significance that a trier of fact assigns to an item of evidence, the strength of the inference it supports
Materiality
Materiality = what is it that the opponent has to prove; the fact sought to be established must concern a matter in issue between the parties
The issues of the case determined by:
Substantive law
Pleadings
Certain procedural rules
Evidence that is tendered may be relevant to the matter sought to be established but what was sought to be established was beside the point; it is immaterial.
E.g. Accused is charged with possession of undersized lobsters. Defence adduces evidence that the accused didn’t know that there were undersized lobsters in his catch. However, there is no mens rea requirement so the accused state of mind is doesn’t matter – it’s immaterial.
Lavallee, R. v. (1990) (S.C.C.)
Facts: wife killed husband after years of abuse, defense based on her fear and ‘battered wife syndrome’. The wife testified, and some of what she claimed was corroborated by hospital records. Wife relied on self-defence. History of abuse, but there was a significant gap in time between any threats and the time she shot her husband.
Issue: statutory definition of self-defence didn’t require immanence, but common law had established this requirement. Crown argued that a history of abuse was immaterial.
Decision:Expanded the definition of self-defence – the evidence of past abuse then became of material importance (no longer immaterial)
Comment: note there was a base of evidence here (i.e. wife’s testimony, hospital records, etc. showing long history of violence) and the social background information was accepted in order to provide context to this base of evidence.
Multiple Relevance
A single piece of evidence may be relevant to different matters. However, though evidence may be admissible when tendered for one purpose, in may nonetheless be inadmissible when tendered for another purpose.
Discretion to Exclude
Admissibility
Relevant evident is admissible unless:
Exclusionary rule (reliability) – evidence must be reliable
Exclusionary rule (other value) – some values (such as privilege) are more important than reliability (i.e. exclude information even if it is reliable on some other grounds)
Exclusionary discretion – prejudicial effect outweighs the probative value
Four scenarios where there may be judicial discretion to exclude evidence:
Discretion may be read into a statute (Corbett)
Recent shift
Discretion at common law to weigh the prejudicial effect against the probative value (Corbett, Seaboyer)
Where it was the accused that was trying to get the benefit of the exclusionary discretion, it isn’t just simple balancing: prejudicial effect had to be substantially higher than the probative value (Seaboyer)
To ensure a fair trial – new and uncertain
Has arisen in two kind of cases: extradition (out of Canada) and cases of extradited Canadians (back to Canada)
Allows cross-examination of any witness of their previous criminal record
Only comes into effect if you are on the witness stand (can’t simply file the criminal record with the court)
Trier of fact should know about your criminal record so that they can assess your credibility (in theory)
Prior to the Charter, the judge had no discretion to stop this kind of cross-examination
Applies to everyone including the accused who decides to take a stand
Corbett, R. v. (1988) (S.C.C.)
Facts: Accused had previously been convicted of murder. Defence moved to allow him to be questioned on this conviction on the witness stand.
Issue: Whether s. 12 of the CEA violated section 11(d) of the Charter
Held: read into the statute the principle that the trial judge has discretion to not allow such cross-examination if it would unduly prejudice accused and if accused put their credibility in issue to restrict use only to credibility, not to infer accused is particular type of person that would commit this type of an offence.
Allow the Crown to do indirectly what they cannot do directly
Comment: one of the first decisions where the SCC abandoned Wray in favour of a balancing test. Although the cross-examination was permissible under the statute and had been interpreted pre-Charter, they read the discretion in so that it wouldn’t violate the Charter.
Before the Charter, there was no way for the judge to prevent this type of cross-examination
Potvin, R v. (1989) (S.C.C.)
Facts: Potvin and 2 others charged with second degree murder. One of the others refused to testify at trial, but did so at the preliminary inquiry. Generally, defence at preliminary inquiry just listens, and does not cross-examine since does not want to give their case away. At trial, Crown succeeded in having preliminary evidence admitted.
Issue: Defence argued s. 7 Charter violation
Decision:
Held s. 715 constitutional. Took a statute that appeared to put the question in the hands of the Crown and gave the court the discretion to exclude where the prejudicial effect outweighed the prejudicial value.
There must have been an opportunity to cross-examine, but there need not have been actual cross-examination. Although noted that if Crown had reason for thinking witness might not be available for cross-examination at trial (e.g. have cancer) should be bad practice to not tell defence at time of preliminary inquiry. Read in the discretion of the court to exclude evidence.
Seaboyer, R v. (1992) (S.C.C.)
Facts: Seaboyer accused of sexual assault of a friend visiting his school. He wanted to put forward evidence that she routinely came to the school to engage sexually with him and others, but s.276 (the original “rape shield provision”) didn’t allow it.
Issue:Whether the legislative amendment impaired the right of cross-examination to such an extent that it impaired the accused’s right to full answer and defence.
Does s. 276 violate s. 7 or s. 11(d) of the Charter?
Decision: s.276 found unconstitutional, because:
It may exclude evidence which is relevant to a defence of mistake (concerning consent) and the probative value of which is not substantially outweighed by potential prejudice to the trial process (the price of potentially convicting innocent people outweighs the risk of the jury drawing illegitimate inferences from such evidence)
Address the issue of the judges ability to exclude evidence:
Denounce the law in Wray – is instead a straight forward balancing of probative value vs. potential prejudice.
In the old case of Wray, the court held that evidence would only be excluded where the potential prejudice significantly outweighed the probative value.
Added the additional provision that where it is the accused who wants the discretionary exercise, the balancing test is more onerous:
Courts have been very cautious in restricting the power of the accused to call evidence in their defence
Where it was the accused that was trying to get the benefit of the exclusionary discretion, it isn’t just simple balancing: prejudicial effect had to be substantially higher than the probative value
Harrer, R. v. (1995) (S.C.C.)
Apart from the fixed rules of exclusion, judges have the exclusionary discretion to rule relevant evidence inadmissible if its potential for prejudice outweighs its probative value
Probative value determined according to:
Reliability / strength of the evidence.
Strength / extent of the inferences it leads to.
Importance of fact in issue those inferences relate to.
Potential for prejudice means potential to make trial unfair, and includes:
Fairness to parties and to witnesses
Potentially distorting effect it could have on the outcome of the case
E.g. could it invite improper inferences
E.g. extent to which it could excite / inflame the jury
E.g. character evidence can lead jurors to think accused is bad type of person and such people do things such as what accused is charged with
E.g. extent to which it may confuse the issues
Practicalities of presentation and response
Recall judge can admit it at large, or just for limited use with curative instruction to jury, so would argue whether or not curative instruction can overcome potential prejudice.
White
Under the BC Motor Vehicle Act, you are required to file a report of an accident.
Issue: If the accident results in a criminal prosecution, it this required report admissible
Held: Judge may use discretion to decide whether report should be admitted because its admission may violate the Charter.
R. v. Hunter (2001) (Ont. C.A.)
Facts: Accused was charged with attempted murder. A police officer purported to hear part of the conversation between the accused and someone else. Overhears an inculpatory statement.
Issue: is the statement admissible?
Held:Statement was excluded:
May have some probative value, but is far outweighed by the prejudicial effect since only heard a fragment of the conversation (don’t know the full context of a statement)
True meaning of the statement was highly speculative (low probative value), but the prejudicial effect was obvious.
Anderson v. Maple Ridge (District) (1993) (BCCA)
Facts: Plaintiff alleged that the defendant municipality had been negligent with the placement of a stop sign and road markings. A witness wanted to bring testimony that there had been a significant reduction in car crashes since the stop sign was moved.
Trial court: Evidence of subsequent repair is inadmissible – if there is some kind of hazard and you repair the hazard, then this evidence shouldn’t be brought back to haunt you.
BBCA: Overruled. The scope of the discretion of the court trying a civil case to exclude otherwise relevant evidence because of its prejudicial effect is a complex question that can be left to another day. But whatever the scope may be, it was exceeded in this case.
