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

152 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
A. The Appearance of the Implicit Statutory Discretion to
Exclude and Its Unique Operation
The statutory form of exclusionary discretion was first recognized by a
majority of members of the Supreme Court of Canada in Corbett. 37 In that
case, the matter at issue was the constitutionality of section 12 of the
Canada Evidence Act, which not only allows the Crown to cross-examine an
accused as to any prior convictions he or she might have, but also to prove
any such convictions where the accused refused to answer questions
pertaining to earlier conviction(s) or denied the existence of any such
convictions. 38
A majority of judges on the Supreme Court, while agreeing that
section 12 of the Canada Evidence Act should be read as leaving room for
the exclusionary discretion already existing at common law to operate, 39
disagreed on whether or not section 12, standing alone (that is without an
exclusionary discretion), violated the Charter’s fair trial protection housed
in section 11(d), which guarantees that any person charged with an offence
is to be presumed innocent and to receive a fair trial. 40 In the end, the lead
37
Corbett, supra note 2 at 692, 698, 732. Dickson CJC, Lamer J (concurring), Beetz J
(concurring separately), and La Forest J (dissenting) all recognized the existence of
such a discretion, though only La Forest J believed it should be exercised in favour of
Corbett. McIntyre and Le Dain JJ (concurring) refused to recognize such a discretion,
holding that the legislative provision at issue, namely Section 12 of the Canada
Evidence Act, was unambiguous in leaving no room for such a discretion to operate.
Estey J, while present, took no part in the judgment.
38
Canada Evidence Act, supra note 20, s 12(1). It is worth noting that for this section to
be implicated, an accused must first choose to testify.
39
Corbett, supra note 2 at 688, 691, per Dickson CJC, Lamer J, Beetz J, and at 701, per
La Forest J (dissenting).
40
Charter, supra note 4, s 11(d). Beetz J argued that not reading in such a discretion to
exclude would violate sections 7 and 11(d): Corbett, supra note 2 at 699. Two of the
other judges, Dickson CJC and Lamer J, disagreed. They believed, however, that a
discretion had to be read in to prevent a possible untoward effect of section 12 of the
Canada Evidence Act which could deprive the accused of a fair trial in a sense not
caught by the Charter. Put simply, the introduction of evidence of previous convictions
could divert the jury from the task of deciding the case on the basis of admissible
evidence relevant to the proof of the charge faced by the accused: Corbett, supra note 2
at 688. La Forest J (dissenting) held that reading in such a discretion would ensure
that section 12 of the Canada Evidence Act remained constitutionally valid: Corbett,
supra note 2 at 745-746.