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

The Trial Judge's Four Discretions 147
this may be explained by the fact that some overlap exists between
discretions 19 – they are not always easily distinguished, nor their methods
of operation easily understood. 20
More importantly, an analysis of the four types of exclusionary
discretions identified by Delisle et al provides some significant new
insights into how each operates, including what their scope is and what
areas of their operation remain unclear. 21 While this article follows the
lead of those legal scholars and considers the four exclusionary discretions
identified by them, it expands upon their brief commentary by thoroughly
comparing each of the discretions, as opposed to simply considering each
separately. By discussing each of the exclusionary discretions and making
the necessary links with other stages of the admissibility of evidence
analysis, a better understanding of how these four discretions operate is
developed.
This article is divided into nine sections. Section II will examine the
general discretion to exclude Crown evidence that can be implied into a
statute. Section III will review the general discretion at common law to
exclude Crown evidence where its prejudicial effect outweighs its probative
value. Section IV examines the general discretion at common law to
exclude defence evidence where its prejudicial effect substantially
outweighs its probative value. Section V canvasses the discretion
recognized in law that permits improperly obtained evidence to be
Hawkins, [1996] 3 SCR 1043 at para 85, 141 DLR 193 [Hawkins]; R v Courchene
(1999), 135 Man R (2d) 267 at para 33 (available on WL Can) (QB).
19
Paciocco & Stuesser, supra note 1 at 36-37. For extensive discussion of this, see
Section IV and Conclusion below.
20
See Harrer, supra note 13 at paras 41-42, per McLachlin and Major JJ (concurring)
which exemplify these difficulties. While many of the exclusionary discretions
discussed in this article are mentioned or seem to be alluded to by these two justices
in their discussion of the trial judge’s exclusionary discretion, they seem to conflate
what this article recognizes as different, and separate, kinds of discretion. As an
example, they appear to conflate the exclusionary discretion existing at common law
exercisable against Crown evidence with that existing within a statutory rule of
admissibility, namely section 12 of the Canada Evidence Act, RSC 1985, c C-5 [Canada
Evidence Act], also applicable against Crown evidence: see Sections I and II below.
What is more, their reasons leave questions concerning the scope of the different
exclusionary discretions, and of their relationship to one another unanswered,
including any possible overlap, questions which this article eagerly takes up.
21
Delisle et al, supra note 8.