section 136(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section excludes non-material evidence for the purposes of evidence in criminal cases.

SECTION WORDING

136(2) Notwithstanding the definition "evidence" in section 118, "evidence", for the purposes of this section, does not include evidence that is not material.

EXPLANATION

Section 136(2) of the Criminal Code of Canada excludes evidence that is not material from the definition of evidence for the purposes of this section. This section pertains to the admissibility of evidence in criminal trials. In essence, this provision states that only material evidence can be considered in court. The term evidence" that is being referred to here is defined in section 118 of the Criminal Code as anything that is used to prove or disprove a fact or issue". However, section 136(2) clarifies that not all evidence is deemed admissible. It must be material evidence, i.e., evidence that is relevant and essential to prove or disprove an issue or fact. The reason for this provision is to ensure that the trial process is fair and efficient. Allowing irrelevant or non-essential evidence to be presented in court can waste valuable time and potentially prejudice the jury. Therefore, only material evidence is allowed to be presented and considered during trial proceedings in order to ensure a fair outcome. Overall, section 136(2) of the Criminal Code of Canada is a crucial provision that helps maintain the integrity of the justice system by ensuring that only relevant and essential evidence is presented in court.

COMMENTARY

Section 136(2) of the Criminal Code of Canada is an important provision when it comes to the admissibility of evidence in Canadian criminal proceedings. The section states that evidence", for the purposes of this section, does not include evidence that is not material, notwithstanding the definition of evidence" in section 118. The section immediately raises questions about what is meant by not material." Before examining the meaning of not material" in the context of the section, it is important to understand the purpose of the provision. The section essentially provides that evidence that is not material - or relevant - to a particular issue in a trial, or that does not assist in the determination of guilt or innocence, is not admissible for that purpose. This is an important safeguard against the admission of evidence that is not probative of the central issues in a case and that may unfairly prejudice the accused. However, there is some ambiguity in the wording of the section. What does it mean for evidence to be not material"? In a legal context, material" evidence is evidence that has a direct bearing on the issues before the court. For example, evidence that directly implicates the accused in the commission of a crime is clearly material. On the other hand, evidence that is tangential or remote from the issues - or that does not bear on them at all - is not material. Therefore, Section 136(2) of the Criminal Code effectively states that if evidence is not material or relevant to the case at hand, it cannot be admitted as evidence. For instance, if the defendant in a criminal case is standing trial for conspiracy to commit a robbery, evidence of their poor driving would be considered not material. The prosecution would not be allowed to use that evidence as it is not relevant to the charges faced. The purpose of this section is to ensure fairness and justice in criminal trials. The accused should have the right to be tried on the basis of the evidence that is relevant to the charges they face, and not on the basis of evidence that is not material to the case. By excluding non-material evidence, the section guards against the use of irrelevant evidence that could potentially sway a jury or lead to an unfair verdict. It is worth noting that Section 136(2) is not the only provision in the Criminal Code that governs the admissibility of evidence. Section 24(2) provides that evidence that would bring the administration of justice into disrepute is not admissible. This provision is intended to ensure that the courts only consider evidence that is reliable and has been obtained in accordance with the Charter of Rights and Freedoms. All in all, Section 136(2) of the Criminal Code of Canada plays a crucial role in ensuring that only material evidence is admitted in criminal trials. By excluding irrelevant evidence, the section ensures that defendants are tried on the basis of relevant evidence that is properly probative of the issues. This is an essential safeguard against unfairness and injustice in the criminal justice system, and one that is essential to ensuring the integrity of the criminal process as a whole.

STRATEGY

Section 136(2) of the Criminal Code of Canada is an important provision that outlines the scope of admissible evidence in criminal proceedings. The section provides that evidence that is not material is not admissible as evidence in court. This provision is designed to protect the fairness and integrity of the criminal justice system by ensuring that only relevant and reliable evidence is used to prove the guilt or innocence of the accused. Some strategic considerations when dealing with this section of the Criminal Code of Canada include: 1. Identifying and assessing the relevance of evidence: The first step in dealing with section 136(2) is to identify the evidence that is likely to be presented in court. Lawyers and prosecutors must carefully review the evidence to determine its relevance and materiality to the case. Evidence that is not material should be excluded under this provision. 2. Challenging the admissibility of evidence: If a lawyer or prosecutor believes that evidence is not material, they can challenge its admissibility in court. This may involve making an argument to the judge explaining why the evidence should be excluded and citing relevant case law. 3. Preparing persuasive arguments: To successfully argue that evidence is not material, lawyers and prosecutors must be prepared to make persuasive arguments that convince the judge or jury that the evidence is not relevant to the case. This may involve presenting alternative theories of the case or highlighting inconsistencies in the evidence. 4. Considering the impact of the evidence on the case: Before deciding to challenge the admissibility of evidence, lawyers and prosecutors must consider the potential impact of the evidence on the case. If the evidence is admissible and highly probative, it may be more strategic to challenge its reliability or credibility rather than to argue that it is not material. Some strategies that could be employed when dealing with section 136(2) include: 1. Focusing on the elements of the offense: Lawyers and prosecutors can focus on the specific elements of the offense and argue that evidence that does not relate to those elements is not material and should be excluded. 2. Challenging circumstantial evidence: Circumstantial evidence, which is evidence that indirectly suggests guilt or innocence, can be particularly problematic under section 136(2). Lawyers and prosecutors can challenge the admissibility of circumstantial evidence by arguing that it is not material to the case. 3. Highlighting inconsistencies in the evidence: Lawyers and prosecutors can challenge the admissibility of evidence by pointing out inconsistencies in the evidence and arguing that it is not reliable or credible. 4. Preparing alternative arguments: Lawyers and prosecutors can prepare alternative theories of the case that do not rely on the evidence in question. This can be an effective strategy if the evidence is weak or highly contested. In conclusion, section 136(2) of the Criminal Code of Canada is an important provision that must be carefully considered when dealing with evidence in criminal proceedings. Lawyers and prosecutors must be strategic in their approach to dealing with this provision, and employ a range of strategies to argue the admissibility of evidence in court. By doing so, they can ensure that the fairness and integrity of the criminal justice system is maintained.