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

148 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
excluded to ensure a fair trial, arising from the Supreme Court case of
Harrer and the Charter. In Section VI, the general discretion employable
against Crown evidence where its prejudicial effect exceeds its probative
value is re-visited, and several reasons offered to explain why it is the
discretion most often engaged by the trial judge. In Section VII, the
question of where the common law discretions should be viewed as falling
in the general admissibility of evidence analysis is raised and the argument
made that the discretion is best conceived of as a free-standing
exclusionary rule, to be considered after relevance and technical
admissibility have been established. In Section VIII, the idea that the trial
judge’s exclusionary discretion is best understood as comprising of four
separate discretions is tested against competing viewpoints and shown to
be the preferable approach. Section IX highlights the most important
findings about the trial judge’s exclusionary discretion revealed by this
article, and concludes that the trial judge’s discretion remains important
in ensuring a fair trial.
II. THE GENERAL DISCRETION TO EXCLUDE CROWN
EVIDENCE AS IMPLIED INTO A STATUTE
The first type of exclusionary discretion rests upon judicial decisions
that have interpreted statutory provisions dealing with the admittance of
evidence in a criminal trial in a specific way. Generally, these decisions
have interpreted different statutory provisions, contained in statutes such
as the Canada Evidence Act 22 and the Criminal Code of Canada, 23 as
providing for a single exclusionary discretion. This discretion, exercisable
in the hands of the trial judge, allows for the exclusion of Crown evidence
where its prejudicial effect outweighs their probative value despite meeting
the required statutory criteria for admissibility. 24 This balancing of
22
CEA, supra note 20.
23
Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code].
24
Examples of such statutory provisions include:
Ss 9(1) and 11 of the Canada Evidence Act (providing for the admission of prior
inconsistent statements): see R v Woodcock, 2010 ONSC 1972); Section 12 of the
Canada Evidence Act (providing for the admission of evidence of prior convictions
against an accused who denies the fact of any such convictions): see Corbett, supra note
2; R v Charland (1996), 187 AR 161, 110 CCC (3d) 300 [Charland cited to AR]; S 715