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1/ A question about RV, for lawyers and academics interested in the decision. Still working my way through, but I found a part of the majority judgment curious. It is not essential to the decision, but I think it has the potential for mischief...
2/ In para. 45, majority states that the balancing exercise to admit requires weighing the factors "to determine whether the probative value of the cross-examination is significant enough to substantially outweigh the dangers of prejudice to the proper administration of justice".
3/ This uses some of the correct words, but seems to get them in the wrong order. Section 276 actually says that the evidence must have "significant PV that is not substantially outweigh by [PE]".
4/ Am I crazy, or does Karakatsanis get it backwards? In her version, the PV has to be significant enough to substantially outweigh the dangers of prejudice, when it is actually the prejudice that must substantially outweigh the PV for the evidence to go out.
5/ If my reading is correct, this is worrisome. Para 45 is the kind of "overview" paragraph that will be replicated by lower courts setting out structure.
6/ To be fair, Karakatsanis does replicate the statutory provision correctly at para. 60 - and this does not really play a role in the decision.
7/ That said, this paragraph reinforces my concern about the failure to pay enough attention to the onus/balance here. And not the first time I've heard it suggested that there must be "substantially" more PV than PE to admit.
8/ Para. 41 operates on these lines as well. It suggests that where the accused can show a need for CE based on full answer and defence (meaning there is PV), it is not the end of the analysis.
9/"The scope of the permissible questioning must also be balanced with he danger to the other interests protected by s 276(3), including the dignity and privacy interests of the complainant."
10/ This is certainly true, and I'm all for reducing the PE. But it doesn't get "balanced" equally. If accused can show PV of evidence, potential damage to other interests must substantially outweigh PV before exclusion occurs.
11/ We should never forget that the wording in s 276 was designed to reflect the fact that accused gets benefit of the doubt in evidentiary admissibility. Unlike Crown, whose evidence is out when PE>PV, accused evidence in unless PE substantially outweighs PV.
12/ Section 276 doesn't change this - it reflects it. In Darrach, there was a challenge to the term "significant", with defence suggesting it messed with the CL balance. SCC deflected this, by saying "significant" meant "not trivial".
13/ But basic idea and need to protect accused's interests were maintained.
14/ Assuming I am correct on this, what are defence lawyers supposed to do with para. 45 when confronted with it? "Well, I know it's the SCC and all, but it would seem to be wrongly expressed!"
15/ Though it does not go to the core of the decision, I am surprised the words "substantially outweighed" show up nowhere in the Karakatsanis analysis. Paras 64 and 67 are concerning in their own right.
