Judgment released: July 12, 2011 Link to judgment
In applying Rule 30, dealing with documentary discovery, the Court adopted the definition of “relevancy” set out at paragraph 2.35 of Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3d ed (Toronto: Lexis Nexis, 2009), as follows:
2.35 A traditionally accepted definition of relevance is that in Sir J.F. Stephen’s A Digest of the Law of Evidence, where it is defined to mean:
… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.
Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:
For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter.
Although the question of relevance and admissibility generally is for the trial judge, whether a fact bears the required relationship to another fact is not usually determined by the application of a legal test. It is an exercised in the application of experience and common sense. Thayer believed that logic (not the logic of deductive reasoning, but of knowledge and experience) provided the best guide to the application of this fundamental principle of evidence law. Doherty J.A. in R. v. Watson stated that “relevance”:
… requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”. If it does then “Fact A” is relevant to “Fact B”. As long as “Fact B” is in itself a material fact in issue or is relevant to a material fact in issue in the litigation, then “Fact A” is relevant and prima facie admissible.