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

164 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
Seaboyer and Mohan is usually applied by any court grappling with whether
to exclude a piece of Crown evidence under this form of exclusionary
discretion 92 and any evidence that might have been caught by the
restrictive Wray discretion will almost certainly be caught by the wider
Seaboyer discretion.
The Wray formulation has also fallen into disuse because it has no
ability to exclude evidence based on the circumstances in which it was
obtained. Thankfully, some of the exclusionary discretions which have
come to be recognized in law, as well as the exclusionary rule brought in by
virtue of the introduction of subsection 24(2) of the Charter, 93 have come
to fill the large void left by the Supreme Court in the Wray decision.
B. The Seaboyer Exclusionary Discretion
Considering the concepts of prejudice and probative value would help
illustrate how the discretion articulated in Seaboyer operates. As a starting
point, both the level of prejudice and probative value are determined by
reference to the specific facts of a case, and therefore are not to be
considered in the abstract. 94
The probative value of evidence is determined primarily by
considering its credibility, its reliability, and the strength of the inference
it gives rise to. 95 “The assessment of probative value requires that the
Crown clearly identify the purpose for which the evidence ... is
proffered.” 96 A judge contemplating the exercise of his or her exclusionary
92
See e.g. Mohan, supra note 2 at 20-21, 37-38; DD, supra note 3; Powell, supra note 2.
93
Subsection 24(2) places a duty on courts in certain circumstances to exclude
unconstitutionally obtained evidence: see generally Paciocco & Stuesser, supra note 1
at 350; Grant, supra note 46.
94
Corbett, supra note 2 at 744, per La Forest J (dissenting). Although La Forest J made
this point in the context of the statutory discretion that exists within section 12 of the
Canada Evidence Act, it is equally applicable in this context as well. For an actual
example of how this approach manifests itself: see Morris, supra note 2, per McIntyre J,
where the low probative value of the presence of a newspaper article concerning the
heroin trade in Pakistan rather than in Hong Kong found among the accused’s
possessions, it still provided for the inference that the accused had apprised himself
on the sources of supply of heroin and was thus receivable.
95
Paciocco & Stuesser, supra note 1 at 35, 41.
96
Powell, supra note 2 at para 8.