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

162 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
force. 82 It was acknowledged that legally admissible evidence “could cause
errors in reasoning and judgment” 83 on the part of the trier of fact.
Situations arose where certain evidence (an inflammatory picture, for
example) would likely cause errors in judgment if received, despite being
technically admissible.
This high tripartite standard for characterizing evidence as sufficiently
prejudicial to justify exclusion was not to survive – as Paciocco notes,
significantly confining the scope of the discretion undermined the
discretion’s very purpose of preventing the unfair operation of evidence
that was legally admissible. 84 Much of the very evidence the exclusionary
discretion was meant to be employed against could not be characterized as
gravely prejudicial, of tenuous admissibility, and of trifling probative value.
Indeed, in Wray the Court held that the improperly obtained evidence in
that case – an involuntary confession that led to the discovery of the
murder weapon – was not excludable since the fact that it might “operate
unfortunately” to the accused was not enough. It had to “operate unfairly”
to the accused, which was only possible where the impugned evidence
possessed the three aforementioned attributes, 85 a rare occurrence indeed.
Unlike the exclusionary discretions recognized in law today, the
discretion in Wray was unduly focused on the probative value of the
evidence instead of on the circumstances surrounding how it was
obtained. If the evidence was of more than “trifling” probative value then
no matter how improperly it was obtained; or how prejudicial it might be
to the accused’s case or the fairness of the trial; or how much its
admittance might cause errors in reasoning and judgment, it would be
received into evidence. 86 In short, “the concern for probative evidence”
outweighed “the concern for adjudicative fairness as between the Crown
and its agents and an accused person.” 87
As a result of this fundamental flaw, the standard for determining
whether something was sufficiently prejudicial to justify exclusion was
relaxed. A more general weighing of probative value and prejudice, outside
82
Wray, supra note 16 at 293.
83
Paciocco, “Wray Formula”, supra note 81 at 143.
84
Ibid.
85
Wray, supra note 16 at 293.
86
R v Burlingham, 1995 2 SCR 206 at para 146, 124 DLR (4th) 7.
87
R v Clarkson, [1986] 1 SCR 383 at 391-392, 26 DLR (4th) 493.