NATIONAL JUDICIAL INSTITUTE « INSTITUT NATIONAL DE LA MAGISTRATURE A Principled Approach to Relevance: The Cheshire Cat in Canada Professor Christine Boyle University of British Columbia Evidence WorkshopA Principled Approach to Relevance: ‘The Cheshire Cat in Canada vouudda) —— a Christine Boyle! -_ —_ 1. Introduction ma —_ The concept of relevance 1s basic yet relatively neglected in Canadian case law, mm a and academte analyses of, the law of evidence. It seems to be an obvious requirement of a = faumess that fact determination be based only on information which has some legitimate =a — connection to a matertal issue. Inferences should ym urelevant i =~ Lnformation, Thus 1t1s possible to say that, generally, while a witness's prior inconsistent 2 __ =e OOUOD ‘statements are relevant to her credibility, hew’faceis not. However, it would be a challenge to provide fact finders, such as judges, administrative decision makers, or cena ie students of the law of evidence more generally, with an authoritative argiytical structure? ae cae tncluding a legal test of how to distinguish reievant from irrelevant information. ‘This i bk "alses a question of whether baste decisions about relevance are governed by the law of evidence and thus by the rule of law at all ‘The purpose of this paper is to provide a bnef survey of the current state of the Canadian law of evidence as a background to considering practical relevance issues ‘hich have arisen in English Canada, The question asked is whether analysis.af such. Issues can provide ideas for a principled approach to relevance, one in tune with Uueiele Canadian constitutional values of equality and faumess,? | Professor of Law, University of British Columbia, The author wishes to thank Jesse Nyman for his ‘esearch assistance as well as Mr, Justice Syeiey Lederman, and Professors Shi-ling isu, Marilyn MacCrimmon, Ken MacCrmmon, Paul Roberts and Moin Yahya for their helpful eomments on drafts, This paper s based on a presentation a a colloquium on "Teaching Evidence Scholarship" held at tne Yiiversuty of Nottmgham on 10-L1 September 2004. Freors and opinions are of course my ov, {My focus 8 on consideration of ivetevant evidence by fact finders rater than on whetice oes should exclude urelevant evidence, Though see Re Application Under 83.28 of the Crimmal Code (2004), 1 ia TADocument Management Library\Papers\2005\paper 75.doe GeAttention to the concept of relevance and inferential reasoning is to some extent influenced by perspective on the law of evidence in general, "What is the Law of Evidence"? This was a question asked by William Twining, in his book of exploratory essays called Rethinking Evidence.’ As part of his argument that the excepuons.tothe principle of free proof had been given an exaggerated importance Twining suggested that the law of evidence resembles the Cheshire Cat in Alice in Wonderland:* who keeps appearing and disappearing and fading away, so that sometimes one could sce the whole body, sometimes only a head, sometimes only a vague outline and sometimes nothing at all so that Alice was never sure whether or not he was there or, indeed, whether he existed at all> ‘The challenges in analysing (and teaching) such a Cheshire Cat of an area of law are obvious. In what ways, if any, does Anglo-Canadian law actually discipline determinations of relevance and the inferential process, in 1ts many different legal contexts?® The concept of relevance can be found where the Cat is least vi “sometimes nothing at all" ‘The most familiar part of the subject of evidence 1s the extensive legal doctrine relating to rules of procedure (such as competence and the examination of witnesses) and C.R. (6%) 82, at 106, for the view that "relevance is @ common iaw rule” Further, "[rJelevance 1s a matter to be decided by the judge as a question of law." R.x-Diutroy (2003), 18 C.R. (6) 36 (Ont,C.A.), at 52 Most legal fact-finding does not mvolve juries, and even where juries are anvolved its not self-evident that {they should not be trusted to filter out relevant information not caught by any other nule. However, cases ‘can arise where there are costs to the admission of irrelevant evidence, in terms of efficiency and the interests of witnesses, including accused persons, 1 draw on my own experience of one case where a ‘witness was asked whether she was a lesbian, a question she was not required to answer. For some notes on tnadmussibitity and non-consideration of iretevant evidence, see Peter Tillers, “Rethinking Relevance” hitp:/tllers.nevhome.html, aecessed January 25, 2005, ~ (Cambridge, Mass: Basil Blackwell Ltd. 1990), at 178, * Lewis Camtoll, Alice mx Wonderland (Vancouver: Douglas & Melntyre, 1993). Canadian acmiration of the Cheshire Cat metaphor s not, of course, onginal to this paper. See. e.g, D.A.Rollie Thompson, "Fhe Cheshire Cat, or ust his Smile? Evidence Law i Child Protection” (2003), 21 C.F.LQ. 319. Me r . * Ibid, at 197. * See Christine Boyle and Marilyn MacCrimmon, "To Serve the Cause of Justice: Diserplining Fact Determination” (2001), 20 Windsor Yearbook of Access to Justice 55, E\Document Management Library\Papers\2005\paper 75.doc Pe tls