You wouldn’t expect to find huge differences in the law of evidence between common law legal systems, even where legislation has replaced the common law. So it is reassuring to experience once again the similarity of Canadian evidence law to that in New Zealand: R v Schneider, 2022 SCC 34.
The appeal concerns the law of hearsay. In general terms, the decision framework for determining admissibility can be, and is, put as having three component parts: (1) is the evidence relevant? (2) Is it excluded pursuant to a rule? (3) Should an applicable discretion have been exercised so as to exclude it? [1]
The Supreme Court of Canada split 7-2 on the relevance component. The minority ([89] ff) would have excluded the evidence because it was impossible to determine its relevance as it was too vague to be identified. You have to know what the challenged evidence is before you can decide whether it is relevant. And here, its prejudicial effect necessarily outweighed its probative value ([96]).
The majority, being satisfied that the challenged evidence was relevant, then considered whether it was inadmissible because of the hearsay rule. Here the evidence was of what the defendant himself had said, and unsurprisingly it was not inadmissible hearsay. In New Zealand we don’t apply the hearsay rule to a defendant’s own statements because there are separate provisions in the Evidence Act 2006 covering this. [2]
Then, and this is the only bit that I find incongruous, the third component of the determination was addressed. It was referred to as a “balancing” of probative value against prejudicial effect. [3]
This so-called balancing has a long history in the common law. It isn’t really balancing, because a high risk of improperly prejudicial effect is not needed to make evidence inadmissible when its probative value is high. Improper prejudice usually amounts to a risk that the fact-finder will use the evidence in an improper process of reasoning. If there is that risk, and if it can’t be overcome by judicial instruction, then the evidence will be inadmissible no matter how probative it is.
Even where this discretion is described as a “weighing” exercise, this is a context where weighing is not balancing. But I have said this before, on 8 October 2019, in greater detail. This is just a matter of getting the decision model clear.
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[1] In New Zealand we no longer (since the enactment of our evidence law) use the term "discretion" to describe the decision process, and there is no deference to the trial judge. Instead, the various admissibility decisions in criminal cases are treated as applications of rules and admissibility is a question of law (see R v Gwaze [2010] NZSC 52, noted here on 18 May 2010) and on appeal the appellant is entitled to the unfettered judgment of the appeal court. In that sense it is sufficient to say that in New Zealand the decision framework has only the first two components mentioned in Schneider.
[2] The Evidence Act 2006 largely enacted the New Zealand common law together with the previous legislation (with some changes, such as the provisions concerning expert evidence, compare Ellis v R [2022] NZSC 115 and s 25 of the current Act) on specific topics. The special provisions on the admissibility of a defendant’s own statements (see s 27 and the sections mentioned therein) were necessary to preserve what had been an exception to the common law rule excluding hearsay (see Scheider at [52]).
[3] We have enacted this too: s 8, where it is described as a weighing, and the relevance rule is in s 7.
