Evidence - Week 2 Notes

Evidence - Week 2 Notes: Relevancy, Probative Value, and Prejudicial Effect R v Watson (1996, SCC) Facts : Watson charged with murder; Hedley and Caine dropped off at victim's workplace. Crown's theory is that it's a pre-planned hit where Watson was lookout. Defence believes there was a spontaneous dispute. One expert testified that victim always carried a gun, but Crown objects to relevancy. Issue : Whether the evidence of the expert is admissible in court. Rules : Relevance must be assessed in the context of the entire case and respective positions taken by Crown and the defence ( Sims )  Probative Value : There is no minimum probative value for evidence to be deemed relevant. Relevance doesn't involve considerations of sufficiency of probative value ( Morris ) o Admissibility : No exclusionary rules in criminal cases where otherwise relevant evidence is suggests that party is has bad character ( Arcangioli ); trial judge must determine whether it will significantly prejudice jury o Prejudice : An improper use or effect of evidence - commonly, the possibility that evidence might be used to support impermissible inferences  Relevance : As per Morris , relevance requires a determination as to whether as a matter of human experience and logic Fact A makes Fact B more probable than without Fact A. o If it does, then Fact A is relevant to Face B; hence, if Fact B is relevant in itself, then Fact A is prima facie admissible o Materiality : A fact is immaterial if it relates to an issue that is of no consequence to the litigation nor of no moment to the outcome in the case ( Elliot ; Quiznos )  Circumstantial Evidence : (1) Evidence of Habit - involves an inference of conduct on given occasion based on established pattern of past conduct (i.e., reliable predictor of actions) o (2) Evidence of Disposition - involves inference of the existence of a state of mind from a person's conduct based on other occasions (i.e., reliable predictor conducts in each situation) Application : Witness's evidence that deceased carried gun suggests repeated and specific conduct, and inference from possession of gun is relevant to issue at trial.  Admissibility : Proposed evidence had significant value for defence on question of whether deceased was armed at relevant time. Conclusion : Trial judge erred in holding evidence was inadmissible. Evidence of habits is relevant to person's behavior on occasion. Chain of inferences are acceptable. Probative Value and Prejudicial Effects Prejudicial Effects : Trial judge's estimate of how likely the jury, even if properly instructed, will use the evidence for improper purposes or the detrimental effect of the evidence on other aspects of the process  Most characteristic type is the possibility that evidence, although relevant an in principle admissible to support one kind of inference, might be used to support an impermissible inference  Forms of Prejudice : Danger that evidence (1) will arouse jury's emotions of prejudice, hostility, or sympathy; (2) create a side issue that unduly distracts jury; (3) consume an undue amount of time;

Evidence - Week 2 Notes: Relevancy, Probative Value, and Prejudicial Effect (4) present an unfair surprise to opponent who had no reasonable grounds to anticipate the issue; and (5) will be presented in a form as to usurp function of jury ( Clark ) Probative Value : The trial judge's estimation of how important the evidence, used for a legitimate purpose, is likely to be used in jury's reasoning  Evidence tendered by defence could be excluded if probative value were significantly outweighed by prejudicial effect ( Williams ) R v Seaboyer (1991, SCC) Facts : Seaboyer was charged with sexual assault of a woman with whom he had been drinking in a bar. Appellant contended that he should have been permitted to cross - examine as to other acts of sexual intercourse which may have caused bruises and other aspects of the complainant's condition which the Crown had put in evidence. Issues : Whether s. 276 infringes on s. 7 and 11(d) of Charter , and if saved by s. 1 Discussion : Issue is whether under s. 7 there is a potential deprivation of liberty flowing from ss. 267+7 that takes place in a manner that conforms with the principles of fundamental justice (i.e., whether legislation infringes on Charter guarantee in purpose and effect)  Contention : The right of the innocent not to be convicted is reflected in our society's fundamental commitment to a fair trial, as expressed in s. 11(d) of the Charter . Thus, courts have been reluctant to exclude even tenuous defence evidence ( Wray ) o It follows that prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law Application : s. 267, unlike s. 277 does not condition exclusion on the use of the evidence for an illegitimate purpose; rather it constitutes a blanket exclusion. As such, it excludes numerous defences that should be received in interests of a fair trial (e.g., honest belief, evidence of fabrication, prostitute extortion) - and this is not saved by s. 1.  Applicable Principles in Sexual Assault : (1) On trial, evidence that complainant ahs engaged in sexual conduct is not admissible solely to support inference that complainant is less worthy of belief; o (2) Evidence of past sexual conduct may be admissible for purposes where it possesses probative value on issue at trial; o (3) Before evidence is presented, must be established on voir dire that proposed use of evidence is legitimate; and o (4) Judge should warn jury against inferring from evidence of conduct itself that complainant consented or is less worthy of credit Conclusion : When the defence offers evidence, the prejudicial effect must substantially outweigh the probative value of the evidence for the evidence to be excluded R v Goldfinch (2019, SCC)

Evidence - Week 2 Notes: Relevancy, Probative Value, and Prejudicial Effect Facts : Accused sought to bring evidence that friends of benefits relationship between himself and complainant. Trial judge held that exclude it would create an element of artificiality that would compromise his ability to allow a full defence Issue : Whether evidence of a relationship with an implicit sexual component engages s. 276 of Criminal Code , and if so, when such evidence may be admitted Discussion : Specific instances of sexual activity must involve accused pointing to identifiable activity, but degree of specificity required depends on nature of evidence, how accused intends to use it, and the potential prejudice to administration of justice.  Specify with Precision : Hence, just provide context or narrative is insufficient; otherwise, may be used to support twin myths in sexual assault o Relevance in (a) mistaken belief defence; or (b) inconsistency of statements about relationship with accused ( Barton )  Procedural Requirements in Sexual Assault : Under s. 276.2(3), judges who admit evidence must provide written reasons identifying the relevance of evidence submitted. Such requirement reflects that sexual assault prosecutions require a heightened attention to the general principle that no party shall be allowed to distort process by producing irrelevant evidence ( Darrach ) Conclusion : Specifying sexual nature is inappropriate unless can specify the inference they're seeking Evidence in Criminal Code Evidence of Complainant's Sexual Activity : Under s. 276(1), evidence not admissible by reason that the complainant is (a) more likely to have consented; or (b) is less worthy of belief Conditions of Admissibility : Under s. 276(2), evidence rests on (a) not being adduced for purposes outlined in s. 276(1); (b) is relevant to issue at trial; (c) is of specific instance of sexual activity; and (d) has significant probative value. . . Factors to Consider : (a) interest of justice, including right of accused to make full defence;  (b) society's interest in encouraging reporting of sexual assault;  (c) whether reasonable prospect that evidence assists in arriving at just determination;  (d) need to remove from fact-finding any discriminatory belief/bias;  (e) risk that evidence may unduly arouse sentiments of prejudice, sympathy, or hostility in jury;  (f) potential prejudice to complainant's personal dignity and right of privacy;  (g) right of complainant to personal security; and  (h) other facts considered relevant