1. The Basic Rule of Admissibility

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 24-25

Page 24

Information can be admitted as evidence only where it is relevant to a material issue in the case.

There is a "basic rule" that all evidence must satisfy in order to gain admission. This rule requires that all evidence must be relevant to a material issue in the case. Even if evidence meets this "basic rule," it may not ultimately be admitted. Evidence that is relevant to a material issue may still be caught by an exclusionary rule, of which there are many, or it may be rejected through the operation of an exclusionary discretion. Relevance and materiality are therefore necessary but not sufficient conditions for admissibility. Whether evidence satisfies the basic preliminary condition for admissibility of relevance and materiality is a matter to be decided by the trial judge as an issue of law.

Often lawyers fail to distinguish between the separate concepts of relevance and materiality, referring to "immaterial" evidence as being "irrelevant."¹In R. v. Truscott the Ontario Court of Appeal subsumed materiality in its definition of relevance, noting that "[e]vidence will be irrelevant either if it does not make the fact to which it is directed more or less likely, or if the fact to which the evidence is directed is not material

Page 25

to the proceedings."²The first concept described by the Court - whether the evidence makes a fact it is directed to more or less likely - describes the concept referred to in this text as "relevance." The second concept described by the Court - whether the evidence is directed to a material issue in the proceedings - is referred to in this text as "materiality." While it is by no means wrong to use the term "relevance" to capture both concepts, it is useful analytically to distinguish between them.³

[1] See, for...