MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

146 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
where this is necessary to ensure a fair trial). 14 This article challenges that
conception.
A review of the case law in recent years confirms Delisle et al’s
previous claim 15 that the law – the common law and the Charter – has
come to recognize four free-standing general kinds of exclusionary
discretion to which a trial judge may turn to exclude otherwise admissible
evidence. This is profoundly different from affairs as late as 1970, where
only one narrow form of exclusionary discretion was recognized. 16 To be
clear, this means that a modern trial judge, depending on the
circumstances, can rely on different, independent forms of discretion to
effect the same purpose: to exclude what is otherwise admissible
evidence. 17 Instead of a single form or type of discretion, trial judges
possess a number of general exclusionary discretions, each of which has a
separate juridical source. The specific form of discretion which any court
relies upon (or considers) in a particular case is not always clear. 18 Some of
14
See McWilliams et al, supra note 11 at 5-1–5-22; Paciocco & Stuesser, supra note 1 at
36-37. For case law support, see R v Buhay, 2003 SCC 30 at para 40, [2003] 1 SCR
631 [Buhay]. For further discussion, see Section VII below.
It is worth underscoring that some academic commentators view the first
category of exclusionary discretion as including within it certain sub-categories of
discretion. So, for example, the discretion applicable to defence evidence, which
permits evidence to be excluded where its prejudicial effect substantially outweighs its
probative value (see Section III below), is merely a variant of the general discretion
that permits evidence to be excluded because the benefits of its admission cannot
justify the adverse effects its admission will cause: See Paciocco & Stuesser, supra note
1 at 35-45.
15
Delisle et al, supra note 8 at 184-85.
16
In R v Wray, (1970), [1971] SCR 272 at 293-295 (per Martland J), 11 DLR (3d) 673,
[Wray], the majority of the Supreme Court found an exclusionary discretion
exercisable in the hands of trial judges but heavily circumscribed its use, holding that
improperly obtained evidence did not fall within its remit. Instead the discretion
could only be exercised against evidence that could be characterized as gravely
prejudicial, of tenuous admissibility, and of trifling probative value, a high standard
indeed. For further discussion of Wray, see Section II, below. According to Paciocco
& Stuesser, supra note 1 at 35, for most of the past century judges “were considered to
have little to no discretion to exclude technically admissible evidence.”
17
The trial judge’s determinations whether the requirements of relevancy, materiality,
and the requirements of admittance under any specific exclusionary rules are met on
the facts of a particular case is not the discretion spoken of here.
18
See, for example, R v SGT, 2008 SKCA 119 at para 97, 314 Sask R 44; R v Riley,
[2009] OJ No 2474 (QL) at paras 22-24, 2009 CanLII 30455 (SCJ) [Riley]; R v