The Basics of Admissibility and the Evaluation of Evidence

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 32-62

32

CHA PTER 2

THE BASICS OF

ADMISSIBILIT Y A ND

THE EVALUATION

OF EVIDENCE

1. THE BASIC RULE OF ADMISSIBILIT Y

Information can be admitted as e vidence only where it is relevant

to a material issue in the case.

There is a “basic rule” that all evidence must sat isfy in order to gain

admission. This rule requires that all ev idence must be relevan t to a

live or material issue in the case: “If an item of evidence is not relevant

to a live issue, then that item of evidence should be removed from con-

sideration.”1 It should be excluded when offered as evidence, or, if it has

already been communicated in a jur y trial, the jury should be told that

the evidence has no probative value.2

Even if evidence meets this “basic rule,” it may be inadmissible.

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 exclusionar y discretion.3 Relevance and

materiality a re therefore necessary, but not sufficient, conditions for

admissibility. Whether evidence satisfies the basic prelimin ary con-

dition for admissibility of relevance and m ateriality is a matter to be

1 R v White, [2011] 1 SCR 433 at par a 36 [Whit e 2011].

2 Ibid. See als o R v Calnen, [2019] 1 SCR 301 at para 142, Martin J disse nting on

other grounds [Calne n].

3 R v Johnson, 2010 ONCA 646 at paras 81–82.

The Basics of Adm issibility and the Evalu ation of Evidence 33

decided by the trial judge as an issue of law. A judge commits a legal

error by admitting or considering irrelevant evidence.

Where relevant and material ev idence does gain admission, it must

be used only for the purpose for which it was adm itted. 4 The evidence

may have more than one legitimate use, but it is an error to use admis-

sible evidence for an irrelevant or improper purpose.5

Often lawyers fai l to distinguish bet ween the separate concepts of

relevance and materialit y, referring to “immaterial” evidence as being

“irrelevant.”6 In R v Tru scott, the Ontario Court of Appeal subsumed

materiality i n 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 to the proceedings.”7 The fir st concept described by the

court — whether the evidence makes a fact to which it is directed more

or less likely — describes the concept referred to in this text as “rel-

evance.” The second concept described by the court — whether the ev i-

dence is directed to a live or materia l issue in the proceedings — is

referred to in this te xt as “materiality.” While it is by no means wrong

to use the term “relevance” to capture both concepts, it is useful ana-

lytically to di stinguish between them.8

2. M ATER I ALI TY

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

“immaterial.” To identify immaterial evidence, id entify the fact this

evidence is being called to prove or disprove. Then ask whether

that fact is a proper and live issue in the case. If it is not, the evi-

dence is immaterial.

2.1) The Concept Explained

Regardless of the kind of proceeding, courts or tribunal s resolving

issues of fact are being a sked to settle particular controversies. They are

not interested in information about matters other t han those that need

4 Calnen, above note 2 at pa ra 113, Martin J.

5 See, e.g., R v Swanson, 2002 BCCA 528.

6 See, e.g., R v Arp, [1998] 3 SCR 339 at para 38 [Arp].

7 R v Truscott (2006), 213 CCC (3d) 183 (Ont C A) at para 22 [Tru scott].

8 See R v Collins (2001), 160 CCC (3d) 85 (Ont CA) at paras 18 –19, for a descrip-

tion of materia lity and relevance, and for a general s ummary of the role thes e

notions play in determining admissibility.