Criminal Law Notebook

Relevance and Materiality

This page was last substantively updated or reviewed October 2022. (Rev. # 95513)

General Principles

A trial judge has duty to ensure that only relevant, material and admissible evidence is received by a jury.[1]

  1. ↑ R v Camara, 2021 ONCA 79 (CanLII), per Watt JA, at para 52
    R v T(JA), 2012 ONCA 177 (CanLII), 288 CCC (3d) 1, per Watt JA, at paras 50 and 92

Relevance

See also: Acceptance of Evidence

Relevancy is evidence that tends, "as a matter of logic and human experience", to make a proposition more likely to be true.[1]

Relevance is "relative to" and must be assessed in context of (a) "the case as a whole" and (b) "the positions of counsel."[2]

Evidence must be relevant before it can be admissible. Irrelevant evidence must be excluded. [3] Any relevant evidence will be admissible unless otherwise excludable for legal or policy-based reasons.[4]

Relevancy requires that there be a nexus between facts. The evidence should permit an inference that if one fact exists the other must as well.[5] Relevance is "assessed in the context of the entire case and the positions of counsel. It requires a determination whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of a material fact more probable than it would be otherwise."[6]

Certain evidence does not cease to be relevant or become irrelevant simply because it can support more than one inference. [7]

Relevance is sometimes divided into 1) logical relevance and 2) legal relevance.[8] Logical relevance refers to the connection between two facts.

Limited Relevance

Where the evidence is of limited relevance or admissibility, the trial judge has a duty to instruct the jury on the permitted and prohibited uses of the evidence.[9]

Logical Relevance

For something to be logically relevant, it is not necessary that the evidence "firmly establish, on any standard, the truth or falsity of a fact in issue."[10] There is no minimum probative value required for evidence to be relevant.[11]

Legal Relevance

Legal relevance is the cost/benefit analysis of the admission of evidence on the basis of: [12]

  • the probative value outweighing prejudicial effect;
  • the "inordinate amount of time which is not commensurate with its value"; and
  • the evidence's "misleading" effect is "out of proportion to its reliability".

All relevant evidence is admissible exception for the discretionary power of the judge to exclude evidence that is unduly prejudicial, misleading, or confusing.[13]

Multi-count indictments

Where the accused is charged with multiple counts. The admissibility of evidence towards one count does not mean that it is admissible against other counts.[14]

Appellate Review

The relevance of evidence is a question of law and is reviewable on a standard of correctness.[15]

Constitution

It has been suggested that the admission of irrelevant evidence is contrary to the principles of fundamental justice found in s. 7 of the Charter.[16]

  1. ↑ R v J-LJ, 2000 SCC 51 (CanLII), [2000] 2 SCR 600, per Binnie J ("Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence” (D. M. Paciocco and L. Stuesser, The Law of Evidence (1996), at p. 19).")
    R v Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339, per Cory J
    R v Jackson, 2015 ONCA 832 (CanLII), 332 CCC (3d) 466, per Watt JA, at para 122 )“[r]elevance demands a determination of whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise.”)
    R v Clarke, 1998 CanLII 14604 (ON CA) (working hyperlinks pending), per Rosenberg JA, at pp. 241-2 ("[T]he test of relevancy in the law of evidence is not an exacting one and is not dependent upon scientific proof.")
    R v B.(L.); R. v. G.(M.A.), 1997 CanLII 3187 (ON CA) (working hyperlinks pending), per Charron JA, at 492 (CCC) quoting Paciocco & Stuesser, Essentials of Canadian Law: The Law of Evidence (1996), at p. 19: ("The authors explained that evidence will be deemed relevant "where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.")
  2. ↑ R v Camara, 2021 ONCA 79 (CanLII), per Watt JA, at para 51
  3. ↑ Hollington v Hewthorn & Co. Ltd., [1943] K.B. 587 (CA), at p. 594 (“all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded”)
    R v R v Cloutier, 1979 CanLII 25 (SCC), 48 CCC (2d) 1 (SCC), per Pratte J
    R v Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378, 50 CCC (3d) 566, per Sopinka J
  4. ↑ R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190, per Lamer J, at p. 201
    R v Headley, 2018 ONSC 5818 (CanLII), per Barnes J, at para 6
  5. ↑ Cloutier, supra
  6. ↑ Cloutier, supra, at p. 27 and referenced in Watt's Manual of Criminal Evidence, 2010, (Thomson Carswell: Toronto, 2008) at Section 3.0
    R v Sims, 1994 CanLII 1298 (BC CA), 87 CCC (3d) 402, per Wood JA, at pp. 420-27 - relevance determined by the context of the entire case and taking into account Crown and defence
    R v Schneider, 2022 SCC 34 (CanLII) (working hyperlinks pending), per Rowe J, at para 40
    R v Blackman, 2008 SCC 37 (CanLII), [2008] 2 SCR 298, per Charron J, at para 30
  7. ↑ R v Underwood, 2002 ABCA 310 (CanLII), 170 CCC (3d) 500, per Conrad JA, at para 25
  8. ↑ R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9, per Sopinka J
  9. ↑ Camara, supra, at para 52 ("Where evidence of limited relevance or admissibility is received, the judge has an obligation to instruct jurors about the permitted and prohibited use of that evidence")
    R v Calnen, 2019 SCC 6 (CanLII), [2019] 1 SCR 301, per Martin J (dissenting different issue), at para 113
    R v Ball, 2019 BCCA 32 (CanLII), 371 CCC (3d) 381, per Dickson JA, at para 91
    R v T(JA), 2012 ONCA 177 (CanLII), 288 CCC (3d) 1, per Watt JA, at para 50
  10. ↑ R v Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339, per Cory J, at para 38
  11. ↑ Arp, ibid., at para 38 ("...there is no minimum probative value required for evidence to be relevant.")
  12. ↑ Mohan, ibid.
    R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190, per McIntyre J - discusses requirement of "logically probative" evidence
  13. ↑ R v Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670, 41 CCC (3d) 385, per Dickson CJ
    Morris, supra
    See also Discretionary Exclusion of Evidence
  14. ↑ R v Headly, 2018 ONSC 5818 (CanLII), per Barnes J, at para 6
    R v Brown, 2007 ONCA 71 (CanLII), 216 CCC (3d) 299, per Cronk J, at para 13
    R v F, 2006 NSCA 42 (CanLII), 212 CCC (3d) 134, per Cromwell JA, at para 26
    See also Similar Fact Evidence
  15. ↑ Mohan, supra, at para 18
  16. ↑ R v Hewitt, 1986 CanLII 4716 (MB CA), 32 CCC (3d) 54, per Huband JA ("The admission of irrelevant and prejudicial evidence by virtue of s. 317(1) is surely contrary to the principles of fundamental justice. ")
    R v Guyett, 1989 CanLII 7202 (ON CA), 51 CCC (3d) 368, per Brooke JA("It is sufficient to say that I agree with the judgment of the majority in Hewitt that s. 317 goes much farther than the general rules of admissibility and that under it, evidence of bad character can be introduced even if it shows nothing more. To this extent, the section violates the principles of fundamental justice and the guarantee in s. 7 of the Charter. In my opinion, this section cannot be read down.")

Materiality

See also: Acceptance of Evidence

Evidence must be material to be admissible. Material evidence refers to evidence that contributes to proving a fact that is of consequence to the trial. That is, there must be a relationship between the evidence and a legal issue put to the court.[1] Material evidence can include not only evidence establishing a fact that is necessary to prove an essential element of the case or it can be a fact that refutes or negates an essential element or any other relevant evidence.

This should be treated separately from the question of admissibility and relevance.[2]

As this diagram shows, materiality represents the proximity of a fact to an essential element to be proven as part of the Crown's case. Fact A is material where it supports some Fact B that, if made out, establishes some legal requirement at issue.
 

Relevancy Limited by Materiality

Relevancy can be chained together establishing a link between several propositions, but they must always link back to establishing or negating a material issue.

  1. ↑ R v Gill, 1987 CanLII 6779 (MB CA), (1987) 39 CCC (3d) 506, per Huband JA
    R v Bernardi, 1974 CanLII 1488 (ON CA), , 20 CCC (2d) 523 (ONCA), per Arnup JA
  2. ↑ Bernardi, supra, leave to SCC refused

See Also

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