The Basics of Admissibility and the Evaluation of Evidence

• Author: David M. Paciocco/Lee Stuesser
• Profession: Justice of the Ontario Court of Justice/Professor of Law, Bond University
• Pages: 24-48

24

CHAPTER 2

THE BASICS OF

ADMISSIBILITY AND

THE EVALUATION

OF EVIDENCE

1. THE BASIC RULE OF ADMISSIBILITY

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 preliminar y condition for admissibility of relevance and material-

ity 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.”1 In R. v. Truscott the Ontario Court of Appeal subsumed ma-

teriality in its def‌inition of relevance, noting that “[e]vidence will be ir-

relevant 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

1 See, for example, R. v. Arp(1998), 129 C.C.C. (3d) 321 at 338 (S.C.C.).

The Basics of Adm issibility and the Eva luation of Evidence 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 materi-

al 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

2. MATERIALITY

Evidence that is not directed at a matter in issue in the case is “im-

material.” To identify immaterial evidence, ask, “What is my op-

ponent trying to prove?” and then decide whether the thing sought

to be proved is a matter in issue.

2.1) The Concept Explained

Regardless of the kind of proceeding, courts or tribunals resolving

issues of fact are being asked to settle particular controversies. They

are not interested in information about matters other than those that

need to be settled. Evidence that is not directed at a matter in issue is

inadmissible because it is “immaterial.” By contrast, “[evidence] is ma-

terial if it is directed at a matter in issue in the case.”4

2.2) Primary Materiality

Evidence is material if it relates to a primary issue that arises for deci-

sion. For example, if the accused is charged only with robbery, proof

that the police found child pornography when executing a search war-

rant at his residence is immaterial. A court will, however, be interested

in evidence about whether the accused threatened the victim with bod-

ily harm when taking the money since the substantive law of robbery

includes as one of its elements proof that the accused used violence

or the threat of violence. If the accused person asks for evidence to be

excluded because of an unconstitutional search, the court will become

2 R. v. Truscott (2006), 213 C.C.C. (3d) 183 at para. 22 (Ont. C.A.).

3 See R. v. Collins (2001), 160 C.C.C. (3d) 85 at para s. 18–19 (Ont . C.A.), for a de-

scription of mate riality and relevance, a nd a general summary of t he role these

notions play in deter mining admiss ibility.

4 R. v. B.(L.) (1997), 9 C.R. (5th) 38 at 48 (Ont. C.A.).