Discretionary Exclusion of Evidence

From Criminal Law Notebook
This page was last substantively updated or reviewed October 2022. (Rev. # 89444)

General Principles

See also: Acceptance of Evidence and Exclusion of Evidence Under Section 24(2) of the Charter

Even where evidence is relevant, material, and admissible, the court retains a discretionary ability to exclude evidence where the probative value of the evidence is exceeded by its prejudicial effect or where necessary to ensure trial fairness. [1] The discretionary power derives from both the common law and s. 24(1) of the Charter.[2] The common-law power is protected under s. 11(d) of the charter which protects the right to a fair hearing.[3]

The law is primarily inclusionary and will tend to admit all evidence that is logically probative of some fact in issue, subject to the rules of exclusion and exception. Where it does not fall into an exclusion or exception issues with the evidence only goes to weight.[4]

The discretionary power allows for a cost-benefit analysis to determine if the value of the evidence to determine the case correctly "is worth the cost of its introduction to the litigation process."[5] This will involve considering the prejudicial effect including the misleading effect and time consumption.[6]

Burden of Proof

The onus is upon the party seeking to exclude evidence that has already been established as admissible.[7]

Factors

To weigh probative value against prejudicial effect, it has been proposed to consider: [8]

  1. Probative value:
    1. the strength of the evidence
    2. the extent to which it supports the inferences sought to be made, and;
    3. the extent to which the matters it tends to prove are at issue in the proceedings.
  2. Prejudicial effect:
    1. how discreditable it is;
    2. the extent to which it may support an inference of guilt based solely on bad character;
    3. the extent to which it may confuse issues, and;
    4. the accused’s ability to respond to it.
Jury Setting

In a jury setting, the judge must be scrupulous to only permit evidence that is "worthy of jury consideration" and "not whether the jury should accept and act upon the evidence."[9]

Non-jury Setting

In non-jury settings, the judge need not be as scrupulous. The judge is performing a gate-keeping function and so is capable of distinguishing prejudicial evidence. It is unreasonable that the judge is prejudiced from merely hearing evidence.[10]

Where prejudices exist the judges are capable of self-warning of the risks of the evidence. This will often be considered sufficient precaution.[11] A judge who is satisfied he are not prejudice should be taken at his word.[12]

Different Burden for Accused

It is generally accepted that the exclusion of evidence for prejudice when it is called by the defence is rare. The prejudical affect must be substantial.[13]

Procedure

The court should consider the discretion to exclude evidence as follows:[14]

  1. The judge must determine the probative value of the evidence assessing its tendency to prove a fact in issue in the case including the credibility of the witnesses.
  2. The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue... or because of the risk that the jury may use the evidence improperly to prove a fact in issue.
  3. The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.
Appellate Review

The exercise of this discretion requires substantial deference on appeal absent error in principle.[15] The weighing between the probative value and prejudicial effect of evidence is accorded "a good deal of deference" and "absent error in principle", the decision should not be disturbed.[16]

  1. ↑ R v Cloutier, 1979 CanLII 25 (SCC), [1979] 2 SCR 709, per Pratte J
    R v Smith, 1992 CanLII 79 (SCC), [1992] 2 SCR 915, per Lamer CJ
    R v Moose, 2004 MBCA 176 (CanLII), 24 CR (6th) 246, 190 Man. R. (2d) 156, per Huband JA
    R v MF, 2009 ONCA 617 (CanLII), 253 OAC 12, per Simmons JA), at para 25
    R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9, per Sopinka J, at pp. 20-21
    R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562, per La Forest J, at paras 23 to 24, 41 and 42 - common law permits exclusion of all evidence that renders trial unfair
    R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417, per Iacobucci J, at para 86
  2. ↑ see R v Spackman, 2009 CanLII 37920 (ON SC), per Trafford J
  3. ↑ Harrer, supra, at paras 23 and 24
  4. ↑ R v Corbett, 1988 CanLII 80 (SCC), 41 CCC (3d) 385, per Dickson CJ
  5. ↑ R v Cyr, 2012 ONCA 919 (CanLII), 294 CCC (3d) 421, per Watt JA, at paras 96, 97
    Mohan, supra, at pp. 20-21
  6. ↑ Cyr, supra, at para 97
  7. ↑ R v Jack, 1992 CanLII 2764 (MB CA), 70 CCC (3d) 67, 15 WCB (2d) 92, per Scott CJ, at p. 86
  8. ↑ R v Sand, 2003 MBQB 76 (CanLII), 175 Man R (2d) 27, per Menzies J, at para 29
  9. ↑ Cyr, supra, at para 98 citing R v Abbey, 2009 ONCA 624 (CanLII), 246 CCC (3d) 301, per Doherty JA, at para 89
  10. ↑ see e.g. R v Virani, 2012 ABCA 155 (CanLII), 524 AR 328, per curiam, at paras 13 to 14
    TG v Nova Scotia (Community Services), 2012 NSCA 43 (CanLII), 1002 APR 202, per Fichaud JA, at para 75 leave to SCC denied
  11. ↑ see R v Blea, 2012 ABCA 41 (CanLII), 287 CCC (3d) 444, per curiam, at para 49
  12. ↑ R v O’Brien, 2011 SCC 29 (CanLII), [2011] 2 SCR 485, per Abella J (5:2), at para 18 (“The trial judge was entitled to be taken at his word.”)
  13. ↑ R v Bishop, 2013 NUCA 3 (CanLII), NJ No 3 per Cote JA, at para 51 ("It is very rare that courts will exclude Defence evidence as being unfair or as having more prejudicial effect than probative value. Denying an accused the right to prove (or raise serious doubt about) his innocence must be approached with great caution. The disparate impact would have to be substantially stronger than the probative value:...")
    1fskf, 1991 CanLII 76 (SCC), per McLachlin J at p 388-91 [CCC]
    R v Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 SCR 129, 87 CCC (3d) 295, per Major J, at to 31 paras 27 to 31{{{3}}}
    R v Watson, CanLII 4008 (ON CA) 108 CCC (3d) 310, at para 47
    R v Sims, 1994 CanLII 1298 (BC CA), 87 CCC (3d) 402, per Wood JA, at paras 68to 70
    cf R v Bain, 1992 CanLII 111 (SCC), [1992] 1 SCR 91, per Gonthier J at p 118-19, 133 NR 1 at para 117
  14. ↑ R v RP, 1990 CanLII 6921 (ON SC), 58 CCC (3d) 334, per Sutherland J at 347
  15. ↑ R v CRB, 1990 CanLII 142 (SCC), [1990] 1 SCR 717, per McLachlin J (5:2), at p. 733
    Cyr, supra, at para 103
    R v DD, 2000 SCC 43 (CanLII), [2000] 2 SCR 275, per Major J, at paras 12 to 13, per Major J
  16. ↑ R v Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33, per Binnie J (7:2), at para 73

Probative Value

The probative value of evidence will depend on the "context in which it is proffered."[1] A judge should look at the "degree or extent the evidence will prove the fact(s) in issue."[2]

Determining the probative value of evidence includes considering the "frailties of the evidence, the inferences that may reasonably be drawn from it and the availability of other evidence to prove the same fact."[3] It also involves some weighing of evidence."[4] The judge must "identify the issue in question and the strength of the inference sought to be drawn from the evidence, in light of the reliability of the evidence."[5]

Probative value concerns the weight put on evidence and not its admissibility.[6]

Probative value includes considering its reliability.[7]

The reliability factor is particularly important when considering expert evidence.[8]

Post-offence conduct of interference with witnesses will generally be found to be probative of guilt.[9]

  1. ↑ R v Araya, 2015 SCC 11 (CanLII), 17 CR (7th) 252, per Rothstein J, at para 31
  2. ↑ R v Clyke, 2019 NSSC 137 (CanLII), per Rosinski J, at para 45
    R v Pascoe, 1997 CanLII 1413 (ON CA), 113 CCC (3d) 126, per Rosenberg JA, at paras 41 to 45
    R v Farouk, 2019 ONCA 662 (CanLII), per Harvison Young JA, at para 32 ("The probative value of evidence is a function of the extent to which it tends to prove an issue at trial.")
  3. ↑ R v Leitch and Jno-Baptiste, 2011 ONSC 2597 (CanLII), per Trafford J citing Pascoe, supra
  4. ↑ Farouk, supra, at para 32(" This requires the trial judge to engage in a preliminary weighing of evidence. ")
  5. ↑ Farouk, supra, at para 32
  6. ↑ R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190, per McIntyre J (4:3), at pp. 99-100 (CCC), at pp. 192-3 (SCR) - cites example of documents of heroine trade found in accused's residence
  7. ↑ R v Cyr, 2012 ONCA 919 (CanLII), 294 CCC (3d) 421, per Watt JA (3:0), at para 97
  8. ↑ Cyr, ibid., at para 97 citing Mohan, supra, at p. 21
  9. ↑ R v Tran, 2001 NSCA 2 (CanLII), 150 CCC (3d) 481, per Bateman JA (3:0), at para 27
    R v Pillay, 2004 CanLII 9962 (ON SC), per Wein J, at para 21

Prejudicial Effects

Although the first rule of evidence is to admit all relevant evidence there are certain types of relevant evidence that should not be admitted as it will have a prejudicial effect on the fairness of the trial. It is said that there are three grounds of excluding evidence on the basis of it prejudice: "moral", "logical", and "time".

Prejudice is not simply evidence that is harmful to the defence case, but rather it is evidence that will create unfairness by misuse, over consumption of time, or distraction/confusion of issues. The impact will effect "fairness and the integrity of the proceedings"[1] Likewise, prejudice does note mean "damage to the accused's position by proper use of evidence."[2]

All judges have a discretion to exclude any evidence on the basis that its prejudicial effect will out-weigh the probative value.[3]

Where evidence is relevant to one count but irrelevant and possibly prejudicial to another count, the court may still admit the evidence but provide a limiting instruction to the jury on the limited use of the evidence.[4]

When the evidence is called by the defence the balance between probative value and prejudicial effect is weighed further in the side of admission. A judge should only exclude evidence where the prejudicial effect "substantially outweighs" the probative value.[5]

When dealing with a jury we must presume that limiting instructions and cautions will be followed and the evidence will be "confined within its proper bounds."[6]

In review, the absence of objection will be a factor in considering if the evidence is significantly prejudicial.[7]

The forms of prejudicial evidence that should not be admitted was categorized as follows:[8]

  1. It threatens the fairness of the trial;
  2. It cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process; or
  3. There is a real risk that the jury will misuse or be unable to properly assess the evidence regardless of the trial judge’s instructions.


  1. ↑ R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, 66 CCC (3d) 321, per McLachlin J (7:2), at p. 390 (CCC)
    R v Collins, 2001 CanLII 24124 (ON CA), 160 CCC (3d) 85, 150 OAC 220, per Charron JA, at para 19
    R v Tran, 2001 NSCA 2 (CanLII), 150 CCC (3d) 481, per Bateman JA (3:0), at para 28 - the fact that the evidence suggests guilt does not make it prejudicial
  2. ↑ R v Kebede, 2022 ABCA 353 (CanLII) (working hyperlinks pending), at para 62
    R v Allender, 1995 CanLII 7443 (BC CA) (working hyperlinks pending) at 16, 115 WAC 241 (BC CA), aff’d 1997 CanLII 355 (SCC), [1997] 2 SCR 333(complete citation pending)
  3. ↑ R v Mohan, 1994 CanLII 80 (SCC), (1994) 29 CR (4th) 243 (SCC), per Sopinka J
  4. ↑ R v Cote, 2003 NBCA 38 (CanLII), 176 CCC (3d) 89, per Drapeau CJ
  5. ↑ R v Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33, per Binnie J (7:2)
    Seaboyer, supra
    R v Clarke, 1998 CanLII 14604 (ON CA), 129 CCC (3d) 1, per Rosenberg JA
  6. ↑ R v Cyr, 2012 ONCA 919 (CanLII), 294 CCC (3d) 421, per Watt JA, at para 99
    R v Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670, per Dickson CJ (6:1), at pp. 692-693
  7. ↑ R v Jaw, 2009 SCC 42 (CanLII), [2009] 3 SCR 26, per LeBel J (7:2), at para 44, citing R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, per Lamer CJ, at paras 37 to 38
    R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J, at para 58
  8. ↑ R v Frimpong, 2013 ONCA 243 (CanLII), 1 CR (7th) 242, per curiam
    R v Burton, 2017 NSSC 3 (CanLII), per Arnold J, at para 55

Moral and Reasoning Prejudices

First, there is evidence of moral prejudice which has the potential of creating outrage in the mind of the trier-of-fact and could influence them to make their decision based on emotion. For example, a jury may get the urge to punish an accused for past bad acts even though they are not at issue in the trial. Second, there are reasoning prejudices (sometimes called logical prejudices) that invite the jury to make illogical inferences.

In a non-jury setting, concerns of reasoning prejudice and moral prejudice are lessened.[1]

Moral

The risk of "moral prejudice" refers to risks of the evidence being used to draw a prohibited inference that the accused is the kind of person likely to the commit the offence charged.[2]

Reasoning

The risk of "reasoning prejudice" includes risks such as:[3]

  • The trier of fact may be distracted from deciding the issue in a reasoned way because of the inflammatory nature of the proposed evidence
  • The trier of fact may become confused about what evidence pertains to the crime charged and what evidence relates to the similar fact
  • The trial will begin to focus disproportionately on whether the similar act happened
  • The accused will be unable to respond to the allegation that the similar act occurred because of the passage of time, surprise or the collateral nature of the inquiry
  1. ↑ R v DeKock, 2009 ABCA 225 (CanLII), 454 AR 102, per curiam, at paras 33 to 37, 43 to 45
    R v TB, 2009 ONCA 177 (CanLII), 243 CCC (3d) 158, per Borins JA, at paras 26 to 30, 33
    R v Blea, 2012 ABCA 41 (CanLII), 287 CCC (3d) 444, per curiam, at para 48
  2. ↑ R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J
  3. ↑ Handy, ibid.

Time Consumption

Prejudice arises from evidence that consumes too much time and resources. The trier-of-fact should not have their time wasted with minor evidence that will waste their time and confuse them from the real issues.

The time consumption should be commensurate to its value.[1]

  1. ↑ R v Cyr, 2012 ONCA 919 (CanLII), 294 CCC (3d) 421, per Watt JA, at para 97

Trial Fairness

There is common law authority to exclude relevant and material evidence where it would render the proceedings unfair.[1] This power is also derived from sections 7 and 11(d) of the Charter of Rights and Freedoms.[2] This can involve either excluding the evidence or simply limiting its use.[3]

The conduct of the trial, including the admission of evidence, should "not result in the trial being unfair because the accused has been denied a full opportunity to prepare his case, challenge and answer the Crown’s case." [4]

When considering hearsay tendered by accused the judge may relax the rules of admissibility in order to prevent a miscarriage of justice. This preferred treatment is due to the liberty interests at stake.[5]

An accused is not entitled to a perfect trial, only a fair one.[6]

  1. ↑ R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562, per La Forest J, at 14, 16, 21 paras 13, 14, 16, 21 to 23, 41, and 42
    R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417, per Iacobucci J, at para 86
  2. ↑ Harrer, supra, at paras 23 to 24
  3. ↑ R v Al-Shammari, 2016 ONCA 614 (CanLII), 350 OAC 369, per Juriansz JA, at para 39 - judge limited use of prior statement in cross examination to credibility assessment only and not truth of its contents
  4. ↑ R v Albright, 1987 CanLII 26 (SCC), [1987] 2 SCR 383, per Lamer J, at para 26
  5. ↑ Paciocco and Stuesser, The Law of Evidence, Sixth Edition, at p. 118
  6. ↑ R v Khan, 2001 SCC 86 (CanLII), [2001] 3 SCR 823, per Arbour J
    R v Cai, 2012 ABCA 157 (CanLII), [2002] AJ No 1521 (CA), per Côté JA

Crown Splitting its Case

See also: Trial Process#Reply or Rebuttal

As a general rule, the Crown will not be permitted to "split its case". It must "produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case."[1]

This rule should be applied to evidence that is "clearly relevant-not marginally, minimally or doubtfully relevant."[2]

This will sometimes be raised to prohibit the Crown from cross-examining a defence witness or the accused on a prior statement.[3]

  1. ↑ R v Krause, 1986 CanLII 39 (SCC), 29 CCC (3d) 385, per McIntyre J R v Drake, 1970 CanLII 577 (SK QB), 1 CCC (2d) 396, per MacPherson J, at 202
  2. ↑ Drake, ibid., at p. 202
  3. ↑ e.g. R v RL, 2002 CanLII 49356 (ON CA), 55 WCB (2d) 4, per curiam

Manner of Excluding Evidence

Editing Recorded Statements

It is not always the case that the entirety of the evidence being admitted will be excluded. Statements—written, audio or video recorded—often include a combination of admissible and excludable evidence. The judge must then edit out the offending portions before it can be admitted into evidence.

It is the judge's discretion whether to edit out portions of a statement as irrelevant or prejudicial against a co-accused.[1]

The judge is permitted to edit out probative evidence where the prejudicial effect is greater.[2]

Editing "must not change the meaning of the statement in a material manner" through removal of an inculpatory or exculpatory evidence.[3]

  1. ↑ R v Sidhu, 2011 ONSC 4577 (CanLII), per Baltman J, aff’d, 2013 ONCA 719 (CanLII), per Gillese JA, at para 8
  2. ↑ Sidhu, ibid., at para 8
  3. ↑ Sidhu, ibid., at para 8

Other Powers to Exclude Evidence

  1. ↑ R v Spackman, 2012 ONCA 905 (CanLII), 295 CCC (3d) 177, per Watt JA, at para 104

Subject-matters of Exclusionary Evidence

Alternate Suspect Evidence and Inadequate Investigation Defence

Similar Fact Evidence

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