R v SG

In this case, the Crown sought to appeal against the decision of a trial judge to exclude certain evidence from being presented to the jury in a case involving the respondent, who was charged with multiple counts of assault and sexual assault against his wife. The excluded evidence was provided by the 10-year-old daughter of the respondent and the victim, who recounted details of one particular incident that formed the basis of three separate charges in the indictment. The trial judge found the evidence to be irrelevant and, even if relevant, decided that it should be excluded as its probative value was substantially outweighed by the danger of unfair prejudice to the respondent. The judge also considered whether the jury might reject the child's evidence on the basis that it was confusing and determined that there was a danger of unfair prejudice because the respondent would be unable to properly test the evidence.

The legal issues before the court were whether the evidence of the child was relevant and admissible under the rules of evidence, and if so, whether the trial judge had correctly applied the balancing test under section 137 of the Evidence Act. The court needed to determine whether the trial judge's decision to exclude the evidence was correct, and if not, whether the errors were so significant as to warrant setting aside the trial judge's determination. The Crown argued that the evidence was both relevant and admissible and that the trial judge had erred in excluding it.

The court found that the evidence provided by the child was indeed relevant to the charges against the respondent and that the trial judge had erred in finding it irrelevant. The court further found that the trial judge had failed to identify the facts in issue and had not properly considered the probative value of the evidence. The trial judge's decision to exclude the evidence was therefore found to be in error. The court held that the evidence was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. Consequently, the Crown's appeal was allowed, and the trial judge's determination to exclude the evidence was set aside.