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Evidence - Prejudice. Jarvis v. Oliveira
In Jarvis v. Oliveira (Ont CA, 2024) the Ontario Court of Appeal allowed a negligence appeal "from a civil jury trial concerning a collision between a motorist and a young pedestrian" - where a central issue was the degree of the plaintiff's fault, the trial court denying liability entirely.
In these quotes, the court addresses the 'prejudice' experienced by the plaintiff, both in the defendant's closing address and in the jury charge:[51] In my respectful view, the sequence of events outlined above resulted in a trial that was unfair. Respondent counsel was permitted to impugn the character of Ms. Jarvis, a minor at the time of the events at issue, based on evidence of marginal probative value. This was done by installment over the course of the trial, and in the face of counsel’s representation to the trial judge that he would not attempt to “besmirch” her character. This occurred despite appellant counsel’s repeated requests for clarity on this issue. I accept that there were no strong objections to the trial judge’s charge, but appellant counsel did provide input into the final version, maintaining that there should be an instruction about character evidence. However, at that point, it was doubtful that any warning could have reclaimed trial fairness. The charge that was given did not restore the balance.
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(d) Respondent Counsel’s Jury Address Was Inflammatory and Prejudicial
[66] The prejudice that accompanied the admission of the bad character evidence was compounded by respondent counsel’s jury address, which highlighted the evidence repeatedly.
[67] Inflammatory jury addresses are typically the province of criminal appeals. The focus is usually on Crown counsel: see Robert J. Frater, Prosecutorial Misconduct, 2nd ed. (Toronto: Thompson Reuters, 2017), at pp. 249, 264-265. The issue sometimes arises by counsel for a co-accused in a multiple-accused trial: see R. v. Giesecke (1993), 1993 CanLII 8600 (ON CA), 13 O.R. (3d) 553 (C.A.). Inflammatory jury addresses are objectionable because they distract jurors from their solemn duty to reach a verdict based on their appraisal of the evidence and the applicable law. Inflammatory jury addresses appeal to emotion, prejudice, other irrelevant considerations, or a combination of each. They have no place in the adjudicative process.
[68] The same principles apply to civil jury trials. In Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), this court set out the principles that should inform the propriety of opening and closing addresses in the civil jury context. After noting the prohibition against the expressions of personal opinion by counsel, Cronk J.A. wrote, at para. 16:Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are “inflammatory”, in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness. [Emphasis added.] See also Fiddler, at paras. 16-17; J. Kenneth McEwan, Sopinka on the Trial of an Action, 4th ed. (Toronto: LexisNexis, 2020), at pp. 183-186.
[69] That being said, the courts afford counsel “considerable latitude in a closing address”: Brochu, at para. 17, citing Sopinka on the Trial of an Action. In Landolfi, Cronk J.A. wrote that, at para. 77:This principle lies at the core of the advocate’s duty to his or her client and the independence of the bar. Counsel are required to advance their client’s cause fearlessly and with vigour, so long as this is done in accordance with the rules of court and professional conduct and in conformity with counsel’s obligations as an advocate and officer of the court. [70] Cronk J.A. then reaffirmed the limitations on counsel from her earlier reasons in Brochu, reproduced above. See also Fiddler, at paras. 35-37.
[71] In my view, respondent counsel’s address was designed to appeal to the jury’s emotions by denigrating Ms. Jarvis’ character. He had previously asked the trial judge to tell the jury that Ms. Jarvis was fleeing “the scene of a crime”, the implication being that she was a “criminal”. This request was made in the face of counsel’s previous representations that he was not attempting to “besmirch” Ms. Jarvis’ character.
[72] Respondent counsel further claimed that Ms. Jarvis had “cheated” the taxi driver, implying that she was a bad person who did not deserve to be compensated. Respondent counsel fortified this submission with the following rumination: “Now, this is not something any person would likely be proud of but there may be some people who are proud of it.” This censorious and moralizing commentary, which had no factual foundation, had no place in counsel’s jury address.
[73] In the face of an inflammatory jury address, a judge presiding over a civil jury trial has three options. They may caution the jury by giving a correcting instruction, strike the jury, or declare a mistrial: Gilbert v. South, 2015 ONCA 712, 127 O.R. (3d) 526, at para. 21; and Penate, at para. 19. As discussed below, no caution was given about counsel’s improper remarks.
(e) The Jury Charge Was Inadequate
[74] The jury charge must be examined both in terms of how it addressed the inadmissible evidence and the inflammatory jury address. In this case, they are inextricably bound. The charge failed to meaningfully address the dangers associated with this nascent theme of the trial.
[75] In Gilbert, Laskin J.A. addressed what should be included in a correcting instruction, at paras. 26-27:Ideally, a correcting instruction should have four components. It should
- be clear and unambiguous;
- point out to the jury the offending comments;
- explain that these comments are improper and why they are so; and
- instruct the jury to disregard the comments and base its findings and decision solely on the evidence.
The trial judge has considerable scope in fashioning a correcting instruction. An appellate court should not intervene unless the interests of justice require it to do so. [Emphasis added.] [76] Similarly, in Fiddler, LaForme J.A. said, at para. 18:Generally courts are to be guided by the principle that clear improprieties in an opening or closing address by counsel are to be identified for the jury and coupled with an unambiguous direction that they are to be disregarded as irrelevant. In this way, the jury will know what statements by counsel are wrong or inappropriate and will be left in no doubt about the way in which it is to approach its task: Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767 (C.A.), at paras. 106-07. This need not involve an admonishment of counsel, although, in some cases, that may be appropriate in the exercise of the trial judge's discretion. [Emphasis added.] [77] In my view, the trial judge’s correcting instructions on character evidence were not sufficient. The jury needed to be told in unequivocal terms that it must not use the evidence concerning the taxi fare, and counsel’s comments about it, to find that Ms. Jarvis was a bad person, a “cheat”, who was undeserving of compensation. Instead, and with respect, the instruction was confusing. For convenience, I repeat the instruction here:Ms. Seixas’ testimony was that Ms. Jarvis did not pay the taxifare and was fleeing from the cab is part of the narrative as to how this collision occurred. Ms. Jarvis has no recollection of the collision. This evidence was not put to Ms. Jarvis. The evidence should not be used to show that Ms. Jarvis has a bad general reputation. It is proper for you in deciding the credibility of a witness and the weight to be given to the witnesses’ evidence, to consider all the evidence both for and against this admission. However, you must not use it for any other purpose. If you see fit, you may reject it altogether, and decide on the credibility and weight of the witness’ testimony without regard to this evidence. [78] As noted above, during the pre-charge conference, it would appear that the trial judge thought the evidence had impeachment value, that it was relevant to credibility. She removed a sentence objected to by both counsel. But the final instruction, as set out above, remained largely tethered to the issue of credibility, oscillating between the evidence of Ms. Jarvis and Ms. Seixas. It would have been confusing to the jury.
[79] The trial judge was required to instruct the jury not to use the taxi fare evidence to infer that Ms. Jarvis was a person of bad character who should not be compensated. The jury should also have been instructed to disregard respondent counsel’s inflammatory comments about the taxi fare evidence. She should have also told them not to fill out the jury sheet in the manner that respondent counsel had told them to. Instead, when setting out the positions of the parties, the trial judge endorsed some of the problematic aspects of the evidence by repeating the theme of respondent counsel’s approach.
[80] In conclusion, the trial judge’s final instructions did not defuse the prejudicial impact of the improperly admitted evidence, nor did they neutralize the improper comments in respondent counsel’s closing address. . Jarvis v. Oliveira
In Jarvis v. Oliveira (Ont CA, 2024) the Ontario Court of Appeal allowed a negligence appeal "from a civil jury trial concerning a collision between a motorist and a young pedestrian" - where a central issue was the degree of the plaintiff's fault, the trial court denying liability entirely.
Here the court finds an almost classical instance of evidentiary 'prejudice', which in this case may be indistinguishable from inadmissible 'bad character' or 'similar fact' evidence:(b) The Taxi Fare Evidence Was Inadmissible
[52] As outlined above, over the course of the trial, it became apparent that the trial judge admitted the taxi fare evidence as narrative evidence, although this was never clarified through reasons. There was also an implicit suggestion by respondent counsel, repeated by the trial judge in her charge to the jury, that the evidence of why Ms. Jarvis was running was relevant to how she was running and her level of attention. Again, there was no formal ruling on the matter. As such, we do not have the benefit of the trial judge’s reasoning on how the evidence was relevant. Just as importantly, the trial judge did not engage in the balancing of the probative value of the evidence against its prejudicial impact, even though the issue was put squarely before her during appellant counsel’s submissions.
[53] It was undisputed that Ms. Jarvis was running at the time of the collision. The question of why she was running, while perhaps loosely related to the narrative of events, was not otherwise relevant. Respondent counsel contended, both at trial and on appeal, that the reason why Ms. Jarvis was running was probative of the speed and the manner in which she was running.
[54] I do not find this submission persuasive. It rests on an unfounded assumption that a person running from a cab fare is likely to be more careless than someone who is running across the street for some other reason, such as trying to get out of the rain, attempting to cross as the pedestrian “walk” sign changes, or simply being in a rush. The unfairness of this evidence was amplified by the fact that Ms. Jarvis could not give substantive evidence about the events that night. She was incapable of testifying about her state of mind at the time.
[55] Ultimately, and no matter how respondent counsel sought to characterize it, the taxi fare evidence was evidence of bad character. In Racette v. Saskatchewan, 2020 SKCA 2, Tholl J.A. stated the general rule, at para. 23: “As a starting point, character evidence – good or bad – is generally inadmissible in a civil action”. There are exceptions to this rule, but none of them apply in this case.
[56] One exception arises during the cross-examination of witnesses. As this court said in Deep v. Wood et al. (1983), 1983 CanLII 3101 (ON CA), 143 D.L.R. (3d) 246 (Ont. C.A.), at p. 250: “cross-examination relating to general reputation for untruthfulness or to prior criminal convictions or to findings of professional misconduct involving dishonesty may be used to diminish the credibility of a witness” (emphasis added). Similarly, in Sidney N. Lederman, Michelle K. Fuerst, and Hamish C. Stewart, The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022), the authors state that, subject to preventing vexatious and oppressive questions, “a witness can be asked nearly anything as a test of his or her credibility” (at p. 711).
[57] This exception is inapplicable in this case. Although Ms. Jarvis testified, she had no memory of the event. She was not cross-examined on the taxi fare incident. Thus, the evidence was not admissible for the purpose of assessing Ms. Jarvis’ credibility.
[58] It might be said that the evidence could have been used to assess Ms. Seixas’ credibility. But the exception had no realistic application to Ms. Seixas as a witness. She was called by the respondents. As noted above, when objecting to the trial judge’s earlier draft of her charge, respondent counsel said: “I’m not sure who was being impeached.”
[59] There is another exception. It is also inapplicable. The common law has recognized the admissibility of similar fact evidence in civil cases: Mood Music Publishing Co. Ltd. v. De Wolfe Ltd., [1976] 1 All E.R. 763 (C.A.), at p. 766. See also The Law of Evidence in Canada, at pp. 709-712. This label was thrown around from time to time during the trial. But respondent counsel acknowledged that this route to admissibility did not apply.
[60] Ultimately, the evidence was inadmissible. Its prejudicial impact far outweighed any marginal value it had in explaining the narrative of events to the jury. It was subsequently used to paint Ms. Jarvis in an unfavourable light – that she was a dishonest person who was not worthy of being compensated for her devastating injuries. And it must be remembered that, at the time, she was a minor, a 16-year-old, who was very intoxicated, and who ran from a measly $13 fare. A young person in these circumstances can hardly be characterized as a “cheat” who is undeserving of compensation. . R. v. MacMillan
In R. v. MacMillan (Ont CA, 2023) the Court of Appeal considered the central balancing of prejudicial and probative evidence:[65] Nevertheless, the trial judge conducted a robust balancing analysis of the probative value versus prejudicial effect of this evidence, in the event that there was some relevance to the complainant’s credibility. The trial judge is in the best position to conduct this balancing analysis: R. v. Zachariou, 2015 ONCA 527, at para. 9. The trial judge determined that the prejudicial effect outweighed the probative value of the evidence in this case. I see no error in his determination. . R. v. Schneider
In R. v. Schneider (SCC, 2022) the Supreme Court of Canada considers when to exclude evidence where it's prejudicial effect exceeds it's probative value:(c) Determine Whether to Use Judicial Discretion to Exclude the Evidence
[59] Finally, judges must determine whether they should exercise their discretion to exclude evidence by balancing probative value against prejudicial effect. Judges sitting with juries should consider the extent to which any prejudicial effect can be attenuated by appropriate instructions to the jury as to the use to which the evidence can properly be put. In addition, evidence can be excluded where there was a significant unfairness associated with obtaining it, such that it would render the accused’s trial unfair (Mohan; Paciocco, Paciocco and Stuesser, at pp. 47-48; Lederman, Fuerst and Stewart, at ¶¶2.75-2.77; Vauclair and Desjardins, at pp. 905-6). No such consideration arises in the circumstances of this case.
[60] Probative value relates to the degree of relevance to trial issues and the strength of inference that can be drawn from evidence (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 26, citing R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at p. 943; Hart, at paras. 94-98). Prejudicial effect relates to the likelihood that a jury will misuse the evidence (Hart, at para. 106; Paciocco, Paciocco and Stuesser, at p. 52). Weighing probative value against prejudicial effect has been referred to as a “cost benefit analysis” (Mohan, at pp. 21-22; Hart, at para. 94; Vauclair and Desjardins, at pp. 905-6).
[61] As noted, the “cost” associated with the evidence (i.e. the prejudice) can be attenuated by appropriate jury instructions. Proper instructions can effectively equip juries with an understanding of how to use evidence in a judicial manner (R. v. Khill, 2021 SCC 37, at para. 116; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 69).
[62] A trial judge’s determination that the probative value of evidence outweighs its prejudicial effect is discretionary and should be reviewed with deference (R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73). In addition, appellate courts are to review alleged errors in jury instructions “in the context of the entire charge and of the trial as a whole” (R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32, as cited in Araya, at para. 39) so as to afford trial judges “some flexibility in crafting the language of jury instructions” (Araya, at para. 39). I would underscore the importance of trial judges providing clear analysis on the probative value and prejudicial effect of the evidence to facilitate appellate review. . R. v. Aragon
In R. v. Aragon (Ont CA, 2022) the Court of Appeal considers an example (membership in a motorcycle gang) of prejudicial evidence and how to deal with it [more at para. 55-69]:[31] Appropriately, an admissibility voir dire was conducted. Extrinsic evidence linking an accused person to a criminal organization, such as an “outlaw motorcycle gang”, including evidence about that organization itself, is sufficiently discreditable to create prejudice against an accused. The evidence is therefore prima facie inadmissible: R. v. B.(L.) (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 20; R. v. M.R.S., 2020 ONCA 667, 396 C.C.C. (3d) 172, at paras. 62, 71-72; R. v. Tsigirlash, 2019 ONCA 650, at paras. 23, 25; R. v. Cook, 2020 ONCA 731, 394 C.C.C. (3d) 467, at paras. 40-41; R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 90.
[32] Therefore, “[t]he onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception”: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. . R. v. Howley
In R. v. Howley (Ont CA, 2021) the Court of Appeal considered the balance between probative and prejudicial evidence:[14] In balancing the probative value of evidence against its prejudicial effect, courts have come to recognize two well established sources of prejudice: moral prejudice and reasoning prejudice. As the Supreme Court explained in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, moral prejudice refers to the risk associated with evidence that could paint the accused with the stigma of “bad personhood” and cause the jury to assess the accused’s guilt or innocence on the basis of general propensity or disposition: at paras. 42, 100, and 139. By contrast, reasoning prejudice refers to the risk that evidence will distract the jury from its proper focus on the facts as charged: Handy, at paras. 100, 144 and 146. See also R. v. Lo, 2020 ONCA 622, 393 C.C.C. (3d) 543, at paras. 111-116.
[15] Needless cumulative evidence carries a risk of both moral prejudice and reasoning prejudice. As this court explained in R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 60, leave to appeal refused [2012] S.C.C.A No. 8:Th[e] forensic piling on of evidence by the acre unnecessarily lengthens trials, diffuses their focus and diverts the attention of the trier of fact. Cumulative evidence, whether testimony, exhibits or both, often occupies a borderland around the periphery of the case, adding nothing to the contested issues, preferring instead to suffocate the trier of fact with the uncontroversial or marginal. [16] Beyond the concerns for trial efficiency raised in Candir, a trial judge’s discretion to exclude cumulative evidence may also serve to prevent the prejudicial effect “which the sheer volume and repetition of [certain] evidence would have on the jury”: R. v. Parsons (1996), 1996 CanLII 11073 (NL CA), 146 Nfld. & P.E.I.R 210 (Nfld C.A.), at para. 42. Thus, for example, once a fact has been admitted, a trial judge has discretion to exclude further evidence that proves the same fact by more prejudicial means: R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 169 C.C.C. (3d) 489 (Ont. C.A.), at para. 29, leave to appeal refused [2003] S.C.C.A. No. 199.
[17] However, evidence is not prejudicial merely because it increases the chances of conviction: R. v. McMorris, 2020 ONCA 844, at para. 124. The Crown will not necessarily be “piling on” by building a strong case. In deciding whether or not to exclude cumulative evidence, the question is not whether the accused could be convicted with less, but rather whether the prejudicial effect of additional evidence outweighs its probative value, keeping in mind that probative value may diminish with repetition. As with any such balancing of probative value and prejudicial effect, the trial judge’s determination is entitled to a high degree of deference on appeal: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581. . R v Ansari
In R v Ansari (Ont CA, 2015) Watt JA usefully stated some basic principles of evidence law and their inter-relation [respecting relevance, admissibility, prejudice and whether evidence is probative]: [101] The resolution of this ground of appeal requires consideration and application of fundamental principles of the law of evidence. First, the notion of relevance. And, second, the admissibility rule that excludes relevant and material evidence on the ground that its probative value is exceeded by its prejudicial effect.
[102] Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between, on the one hand, an item of evidence and, on the other, a proposition of fact that the evidence is offered to prove. Relevance is a matter of everyday experience and common sense. An item of evidence is relevant if, by the application of everyday experience and common sense, it renders the fact it seeks to establish by its introduction slightly more or less probable than the fact would be without it: R. v. Luciano, 2011 ONCA 89 (CanLII), 267 C.C.C. (3d) 16, at para. 204.
[103] Relevance does not exist in the abstract or in the air: Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at pp. 730-732; Luciano, at para. 205. Relevance is also relative; we assess and determine it in the context of the entire case in which the evidence is proffered and the positions of counsel in that case: Cloutier, at pp. 730-732; and Luciano, at para. 205.
[104] To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is introduced. Nor does the evidence, to be relevant, need to make the proposition of fact more probable than not. An item of evidence is not irrelevant simply because it can sustain more than one inference. The requirement of relevance is met where the item of evidence reasonably shows, “by the application of everyday experience and common sense[,] that the fact is slightly more probable with the evidence than it would be without it”: Luciano, at para. 206.
[105] Admissibility is a legal concept. Admissibility rules exclude evidence that is both relevant and material on the basis of some policy consideration that the law regards as of sufficient importance to warrant exclusion of evidence that would otherwise assist the trier of fact in ascertaining the truth of the matter at hand. The rule that excludes relevant and material evidence on the basis that its probative value is outweighed by its prejudicial effect is a rule of admissibility.
[106] The prejudice component of this general exclusionary discretion may involve either or both of two types of prejudice.
[107] Moral prejudice refers to the risk of an unfocused trial and a conclusion of guilt based on a prohibited chain of reasoning from a general disposition or propensity to guilt of the offence charged. In other words, a finding of guilt that is based on character, not conduct: R. v. Handy, 2002 SCC 56 (CanLII), [2002] 2 S.C.R. 908, at paras. 31 and 139.
[108] Reasoning prejudice involves the distraction of the trier of fact from their proper focus on the offence charged by the introduction of evidence of other incidents that consume undue time and may be accorded more weight than should be their due: Handy, at para. 31 and 144.
[109] When invited to exclude relevant, material and otherwise admissible evidence on the basis that its prejudicial effect predominates over its probative value, a trial judge will consider the individual constituents of the rule – probative value and prejudicial effect – and then balance them to determine which predominates.
[110] The assessment of probative value involves consideration of the strength of the evidence; the extent to which it supports the inferences the proponent seeks to have drawn from it; and the extent to which the matters the evidence tends to prove are at issue in the proceedings: R. v. B. (L.); R. v. G. (M.A.) (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 23.
[111] An assessment of prejudicial effect should take into account:i. the degree of discreditable conduct disclosed by the evidence;
ii. the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;
iii. the extent to which the evidence may confuse issues; and
iv. the ability of the accused to respond to the evidence.
B. (L.); G. (M.A.), at para. 24. [112] A trial judge’s decision about where the balance settles between probative value on the one hand and prejudicial effect on the other is accorded a high degree of deference by appellate courts. Where a trial judge has applied the proper principles, weighed the probative value of the evidence and its potential prejudice and decided the issue of admissibility, appellate courts will not lightly intervene: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 42; R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 613; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 733-734; R. v. Samuels, 2013 ONCA 551 (CanLII), 310 O.A.C. 175, at para. 47; B. (L.); G. (M.A.), at para. 51.
[113] A final point concerns prophylactic measures undertaken by the trial judge to reduce the risk of reasoning or moral prejudice. A limiting instruction that explains the proper use of this evidence and enjoins prohibited reasoning is of critical importance in ensuring a fair trial: R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C. C.A.), at para. 51.
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