Narrative and relevance

R. v. White 2011 SCC 13 is a somewhat puzzling decision from the Supreme Court late last week.

The majority holds relevance is "somewhat attenuated in the context of narrative evidence". That makes some sense so long as the need for relevance is not totally removed. Obviously evidence is called for a reason and that reason must turn on the issues in dispute.

The Court then goes on expressly to say the exclusionary rules (for example hearsay) are not limited by the lowered relevance standard.

This last point is somewhat harder to follow. Hearsay, for example, is defined by purpose -- why is the evidence adduce? Is the evidence adduced for truth value? If so (and it's an out of court statement repeated in court) it's hearsay. The truth value must related to relevance -- otherwise the rule against hearsay is incoherent.

Perhaps the best way to understand the decision is to say narrative will seldom be excluded on relevance principles but if it is otherwise hearsay it must be strictly proven.

The Court holds:


[47]                          The basic requirement of relevance is somewhat attenuated in the context of narrative evidence. Evidence that is not adduced to prove a live issue, or support the prosecution's case, but that is merely provided to complete the narrative may be admitted even if it does not satisfy the strict requirements of relevance (Paciocco and Stuesser, at pp. 45-47). A trial judge need not provide specific limiting instructions with respect to each item of evidence that was merely presented to complete the narrative to the effect that it is "not probative" of the live issues in the case.

[48]                          I should make clear that I am only here adverting to the attenuation of the requirement of relevance as it pertains to narrative evidence and not to the relationship between narrative evidence and other specific exclusionary rules (e.g. the hearsay rule).