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

156 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
credibility was low but the potential prejudice to an accused was high. 53
While a majority of judges, including Beetz J held it should, McIntyre and
Le Dain JJ strongly asserted that without a Charter infringement (which
they did not find on the facts) the doctrine of parliamentary supremacy
required the strict application of section 12, leaving no room for the
recognition of such an exclusionary discretion exercisable in the hands of
the trial judge. They went so far as to say that construing the section so as
to provide for such a discretion would usurp Parliament’s function
because the court would, in effect, be amending the Canada Evidence Act
and preventing Parliament from exercising its power to alter the common
law through clear legislative enactment. 54
This latter contention by McIntyre and Le Dain JJ requires comment,
as it implicitly raises another form of discretion which was in place and
recognized at common law at the time. This kind of discretion, to be
discussed next, currently is the broadest of the four discretions, and unlike
the discretion recognized in Corbett, derives its authority from the
common law, specifically the decision in Wray, 55 though the balancing
exercise by which it operates has been significantly relaxed by virtue of the
Supreme Court’s decision in R v Seaboyer. 56
McIntyre and Le Dain JJ identified this as the only discretion in law
that exists to exclude otherwise admissible evidence in a particular case.
But as they accurately point out, its common-law derived authority
prevents it from having the legal stature to overcome the clear statutory
pronouncement in section 12 of the Canada Evidence Act. Nor did they
believe the court could “elevate a general common law discretionary power
to the level of an amendment to a specific and clear provision” without
compromising the principle of parliamentary supremacy. 57
The interpretation of the statute by a majority of members of the
Supreme Court so as to allow for the continued operation of an
exclusionary discretion on the part of the trial judge would overcome the
53
Corbett, supra note 2 at 699.
54
Corbett, supra note 2 at 699-701.
55
Supra note 16.
56
[1991] 2 SCR 577, 83 DLR (4th) 193 [Seaboyer cited to SCR]. This has led to a
significant increase in the frequency with which it is exercised to exclude Crown
evidence.
57
Corbett, supra note 2 at 699-700.