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

158 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
be equally true of the statutory discretions recognized by the Supreme
Court within the contexts of sections 715 and 715.1 of the Criminal Code
in Potvin and L (DO).
B. Why It Was Necessary for the Supreme Court to
Recognize This Kind of Discretion
Before turning to the next form of discretion, it is of some importance
to spell out why reading in room for “the trial judge’s exclusionary
discretion” to operate within a statutory rule of admissibility was necessary.
First, ensuring an accused person a fair trial, as required and contemplated
by the Charter, 63 means that statutorily admissible evidence sometimes has
to be excluded. As two Supreme Court justices opined, “[The] judicial
discretion [conferred by section 715.1 of the Criminal Code] has its
foundation in the judge’s duty to ensure a fair trial for the accused.” 64 The
recognition of a statutory exclusionary discretion would strain against
Charter challenges on the basis that the mechanical application of the
statutory rule by the court had led to an unfair trial and a breach of
sections 11(d) and 7 65 of the Charter. The Supreme Court, per L’Heureux-
Dube and Gonthier JJ (concurring), referring to Baron v Canada, 66 seemed
attuned to this point in R v L(DO): “…this court has held that residual
judicial discretion may be constitutionally required in order to provide a
mechanism for balancing the rights of the accused and the state.” 67 In the
had to be met for evidence to be excluded under the Wray discretion.
63
As a result of Harrer, supra note 13 at paras 21-24 trial judges now also have a
“constitutionalized common law duty,” which exists apart from the Charter, to ensure
a fair trial in a sense that goes beyond that strictly contemplated by the Charter: see
Section IV discussion below.
64
L (DO), supra note 24 at probably 461, per L’Heureux Dube and Gontheir JJ
(concurring).
65
Section 11(d) of the Charter, supra note 4 provides an accused with a right to a fair
trial. It reads: “any person charged with an offence has the right to be presumed
innocent according to law in a fair and public hearing by an independent and
impartial tribunal” [emphasis added]. The Supreme Court of Canada has also held
that an accused’s right to a fair trial is “a principle of fundamental justice” and thus
entitled to protection under section 7 of the Charter: R v Pearson, [1992] 3 SCR 665 at
682-683, 77 CCC (3d) 124.
66
[1993] 1 SCR 416, 99 DLR (4th) 350.
67
L (DO), supra note 24 at 461.