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

150 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
the first case in which such a statutory discretion was recognized, the
Supreme Court interpreted section 12 of the Canada Evidence Act as
“leaving room” for the exclusionary discretion existing at common law to
operate. 28 In contrast, in Potvin, the Supreme Court interpreted the
provision at issue, section 715 of the Criminal Code, as “conferring” an
exclusionary discretion on a trial judge. 29 In the later case of Hawkins 30 a
plurality of the Supreme Court, citing Potvin, held that section 715
“preserves” a residual discretion to exclude. 31 Finally, in L (DO), the
Supreme Court interpreted the provision at issue, then section 715.1 of
the Criminal Code, as “incorporating” a judicial discretion to exclude. 32
Section 715.1 was also the subject of some discussion in lower courts, 33
28
Corbett, supra note 2 at 688, 691, per Dickson CJC, Lamer J, Beetz J, and La Forest J
(dissenting).
29
Potvin, supra note 24 at 552.
30
Supra note 18.
31
Supra note 18 at para 53.
32
Supra note 24 at para 3. For the then-text of section 715.1 of the Criminal Code, see L
(DO), supra note 24 at 430, per L’Heureux Dube and Gonthier JJ
33
In R v Toten, (1993), 14 OR (3d) 225 at 249-252, 83 CCC (3d) 5 [Toten cited to OR],
the Ontario Court of Appeal offered an entirely different perspective on what was
then section 715.1 of the Criminal Code than the Supreme Court does in L (DO).
Specifically, it seems to find two overlapping statutory discretions operating at the
same time within this section of the Criminal Code.
First, the statutory provision leaves room for the common law discretion
exercisable against Crown evidence to operate: where the prejudice to the trial process
outweighs its probative value the evidence must be excluded. The Court underlined
that this first discretion is constitutionally enshrined by section 7 of the Charter.
Second, according to the Court, there is also a discretion implied into section
715.1 that allows videotaped evidence to be excluded “which does not serve the
purpose of the statute”: Toten at 252. The Court identified the purpose of this
statutory rule of admissibility as being “to enhance the truth-finding function of the
trial.”: Toten at 250. Even though the Court was quick to recognize two overlapping
discretions, it was just as quick to circumscribe their use, stating that the inclusionary
rule created by then section 715.1 (providing for the admission of videotaped
statements by victims or witnesses under 18 about sexual offences) should only be
displaced sparingly.
In my own view, the first discretion identified by the Court in Toten is sufficient
to exclude evidence which does not serve the purpose of the statute. The catalogue of
factors considered within the balancing or weighing exercises of most, if not all,
statutory discretions have been clearly crafted in support of the statutory provision.
Incorporating a second exclusionary discretion within statutory rules of admissibility