Criminal Law Notebook

Acceptance of Evidence

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This page was last substantively updated or reviewed January 2019. (Rev. # 83239)

Introduction

In a criminal hearing, a trier of fact will generally determine facts based solely on admissible evidence given through witnesses, physical exhibits, and admissions by the parties.[1]The adversarial system depends on the production of evidence by parties in order to guarantee "its sufficiency and trustworthiness."[2] It is not for the judges "go looking for evidence" and it is irrelevant that other relevant materials may exist out there that was not adduced.[3]

Evidence provides a means of allowing facts to be proved for the purpose of deciding issues in litigation. The trier of fact may only consider evidence that is admissible, material and relevant. Even then, evidence that creates undue prejudice may nonetheless be ruled inadmissible.

The purpose of the rules of evidence are to permit the trier-of-fact to "get at the truth and properly determine the issues."[4]

Admissibility is exclusively the responsibility of the judge while the findings of fact is exclusively the responsibility of the jury.[5]

Duty to Review Evidence

The judge has a duty to exclude all inadmissible evidence, regardless of whether the issue is raised by counsel.[6]

Onus

A judge may only base a decision on "evidence presented at trial, except where judicial notice may be taken" or any other findings permitted under the Code.[7]

The party seeking to tender evidence must meet the necessary threshold requirements of admissibility before it can be considered.[8]

Requirements Before Acceptance

For a trier-of-fact to receive evidence, the judge must be satisfied that the evidence is:[9]

  1. relevant,
  2. material,
  3. not barred by rules of admissibility, and
  4. not subject to discretionary exclusion.

Once relevance and materiality is established, the evidence is admissible except where captured by an exclusionary rule.[10]

While the rules of evidence always apply to criminal matters, courts are entitled to be flexible with the evidence rules in order to "prevent miscarriages of justice."[11]

Objection to Acceptance of Evidence

On application to exclude evidence, counsel should be required to "state with reasonable particularity the grounds upon which the application for exclusion is made."[12]

Barring "unusual and unforeseen circumstances" any objections to the admission of evidence must be "taken before or when that evidence is tendered, not afterwards."[13] Unusual circumstances "do not include previously known yet unpursued Charter applications or a change in counsel."[14]

Consent to Admit

The existence of consent between the parties to admit evidence will generally the judge to accept the evidence irrespective of its lawful admissibility unless it impacts trial fairness.[15]

Defence Evidence Favoured

The courts should be reluctant to use exclusionary rules to prevent the accused from adducing evidence as it may support the defence.[16]

The standard for exclusion of defence-led evidence is more demanding as it uphold the "fundamental tenet of our justice system that it is generally better to produce an inaccurate acquittal than a wrongful conviction."[17]

Appellate Review

The admissibility of evidence is a question of law and is reviewable on a standard of correctness.[18] Admission of irrelevant or otherwise inadmissible evidence may be an error of law.[19]

Statutory Source of Rules
Provincial Laws of Evidence
How applicable

40 In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which those proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this Act and other Acts of Parliament, apply to those proceedings.

R.S., c. E-10, s. 37

– CEA

The effect of s. 40 should be apply to matters that are within provincial competence and does not extend to those matters of exclusively federal competence.[20]

  1. ↑ R v VHM, 2004 NBCA 72 (CanLII), 189 CCC (3d) 345, per Ryan JA citing McWilliams, Canadian Criminal Evidence 4th Ed. (Aurora, Ont. Canada Law Book Inc, 2004 at para 23:10)
  2. ↑ VHM, ibid.
  3. ↑ Shortland v Hill & Anor [2017] EW Misc 14 (CC) (UK), at para 20[1]
  4. ↑ R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, per McLachlin J ("fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues."
  5. ↑ Queen v Dixon (No. 2.), 1897 CanLII 109 (NS SC), 3 CCC 220, per McDonald J
  6. ↑ R v D(LE), 1989 CanLII 74 (SCC), [1989] 2 SCR 111, per Sopinka J
    R v Ambrose, 1975 CanLII 1434 (NB CA), 25 CCC (2d) 90 (NBSC, Div. App.), per Limerick JA, aff'd 1976 CanLII 201 (SCC) , [1977] 2 SCR 717, per Spence J
    R v Stewart, 1968 CanLII 804 (BC CA), [1969] 2 CCC 244 see also Canadian Criminal Evidence, 3rd ed.,P.K. McWilliams states in paragraph 3:10410 cited in R v Bourque, 1991 CanLII 2607 (NS CA), 66 CCC (3d) 548, per Matthews JA
  7. ↑ R v Bornyk, 2015 BCCA 28 (CanLII), 320 CCC (3d) 393, per Saunders JA, at para 8 - judge improperly relied on academic articles not in evidence
    see also R v RSM, 1999 BCCA 218 (CanLII), per Finch JA, at para 20
    R v Cloutier, 2011 ONCA 484 (CanLII), 272 CCC (3d) 291, per Weiler JA
  8. ↑ R v Johnson, 2010 ONCA 646 (CanLII), [2010] OJ No 4153, per Rouleau JA, at para 90
  9. ↑ R v Candir, 2009 ONCA 915 (CanLII), 250 CCC (3d) 139, per Watt JA, at para 46 - requires evidence be (1) relevant (2) material (3) admissible
    R v Cyr, 2012 ONCA 919 (CanLII), 294 CCC (3d) 421, per Watt JA, at para 96 - sets out the four points of admissibility
    see also R v Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378, per Sopinka J
    R v Watson, 1996 CanLII 4008 (ON CA), 108 CCC (3d) 310, per Doherty JA
  10. ↑ see Zeolkowski, supra
    Watson, ibid.
  11. ↑ R v Muise, 2013 NSSC 141 (CanLII), per Rosinski J, at para 47 aff'd on other grounds 2015 NSCA 54 (CanLII), 324 CCC (3d) 525, per Fichaud JA
    R v Muise, 2013 NSCA 81 (CanLII), per Hamilton JA, at para 27
    R v Howe, 2016 NSSC 140 (CanLII), per Rosinski J, at para 7
  12. ↑ R v Hamill, 1984 CanLII 39 (BC CA), [1984] 6 WWR 530, per Esson JA
  13. ↑ R v Jir, 2010 BCCA 497 (CanLII), 264 CCC (3d) 64, per Frankel JA, at para 9
  14. ↑ Jir, ibid., at para 9
    R v Kutynec, 1992 CanLII 7751 (ON CA), 70 CCC (3d) 289, per Finlayson JA, at p. 294 (CCC)
    R v Bunbury, 2005 YKTC 51 (CanLII), per Ruddy J, at paras 11 to 14
  15. ↑ R v WJM, 2018 NSCA 54 (CanLII), per Beveridge JA, at paras 34 to 35
  16. ↑ Seaboyer, supra ("Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law. Exclusionary rules of evidence have been established with a purpose in mind. A trial does not benefit from admitting evidence which is not reliable. Such evidence can mislead the trier of fact. Such evidence can negatively impact upon trial fairness and truth-seeking.")
  17. ↑ Template:CanLIIT, at para 144(complete citation pending)
  18. ↑ R v Simpson, 1977 CanLII 1142 (ON CA), 35 CCC (2d) 337, per Martin JA
    R v Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144, per Iacobucci J, at para 184
    R v Harper, 1982 CanLII 11 (SCC), [1982] 1 SCR 2, per Estey J
  19. ↑ R v Mian, 2012 ABCA 302 (CanLII), 292 CCC (3d) 346, per curiam, at para 39 appealed on other grounds at 2014 SCC 54 (CanLII)
  20. ↑ R v Engler, 2015 ABPC 105 (CanLII)
    Albright , 1987 CanLII 26 (SCC), [1987] 2 S.C.R. 383 per Lamer J at para 23

Relevance and Materiality

Rules of Admissibility

Courts must only consider admissible evidence.[1] Where evidence is relevant and material the evidence should be admitted unless their exclusion is justified.[2]

The "modern trend" has been to admit any evidence that is relevant and probative— subject to the recognized exclusions and exceptions—and allow the trier of fact to determine the weight to a particular piece of evidence.[3]

Admissible evidence must have at least "some probative value."[4]

Real evidence that has been proven to be relevant and material are prima facie admissible regardless of whether the investigative conduct to seize the evidence was lawful or not.[5]

Much of the entirety of the rules of evidence concerns the question of what is admissible evidence. As such, admissibility of evidence can be better understood as evidence that is not prohibited by exclusionary rules. Frequently encountered rules of exclusion include:

  1. Witness competence
  2. Hearsay
  3. Opinion
  4. Character
  5. Conduct on occasions separate from the offence
  6. Illegally obtained evidence
  1. ↑ See also R v Zeolkowski, 1987 CanLII 6836 (MB CA), (1987) 333 CCC 231, per Philp JA
    R v Hawkes, 1915 CanLII 347 (AB CA), 25 CCC 29 (ABCA), per Stuart J
  2. ↑ R v FFB, 1993 CanLII 167 (SCC), [1993] 1 SCR 697, per Lamer CJ and Iacobucci J, at #par136 para 136 ("The basic rule in Canada is that all relevant evidence is admissible unless it is barred by a specific exclusionary rule.")
    R v Collins, 2001 CanLII 24124 (ON CA), 160 CCC (3d) 85, per Charron JA, at paras 18 to 19
    R v Cyr, 2012 ONCA 919 (CanLII), 294 CCC (3d) 421, per Watt JA, at para 116
    R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190, per McIntyre J - adopting Thayer's approach to the admission of evidence
  3. ↑ R v Elite Farm Services Ltd, 2021 BCSC 1583 (CanLII), per Crabtree J, at paras 47 to 48 ("The modern trend of the law of evidence has been to admit relevant and probative evidence, leaving it to the trier of fact to determine what weight should be given to a particular piece of evidence..")
    R v Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670
    R. v. L.(D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419(complete citation pending)
  4. ↑ R v Evans, 1993 CanLII 86 (SCC), per Sopinka J at pp. 662 to 663 (SCR)
  5. ↑ R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA, at para 34

Discretionary Exclusion of Evidence

See also: Discretionary Exclusion of Evidence

In addition to the application of specific rules exclusionary rules of evidence, there is a residual common law discretion to exclude any evidence where the prejudicial effect of the evidence outweighs the probative value.

Procedure

See also: Voir Dire

Whenever evidence is tendered, a judge may ask counsel for the purpose of tendering the evidence and counsel should give a response.[1]

  1. ↑ Cox, Criminal Evidence Handbook, 2nd edition, at p. 4

See Also

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