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

The Trial Judge's Four Discretions 165
discretion “must come to some appreciation of the probative value of the
evidence.” 97
Prejudice refers to any adverse effects arising from the introduction of
evidence. 98 For example, evidence can be excluded “where its admission
would involve an inordinate amount of time that is not commensurate
with its value.” 99 As stated in R v Collins, 100 for something to count as
prejudice it need not be shown that it will be adverse to the other party’s
position. Instead, it must simply have the potential to adversely affect the
fairness and integrity of the proceedings. The trial judge cannot exclude
relevant evidence solely for the reason that it tends to prove the guilt of
the accused. 101 For something to constitute prejudice, it must be more
than mere speculation or conjecture. 102 In Duguay, 103 the Court held that
the evidence must either have the potential to render the trial unfair for
the accused or be susceptible in some way to misuse by the trier of fact.
Again, here, with respect to the assessment of prejudicial value, there
is ambiguity in that in the past some courts have focused on prejudice to
the trial process as concerns only the accused, 104 while others have focused
on prejudice as concerns the trial process more generally. 105 The latter view
includes a consideration of the impact evidence can have on accused
persons, victims, and third parties. The weight of recent authority supports
the latter interpretation. 106 The factors considered under the prejudice side
of the equation have included:
1. a tendency that the evidence is given more weight than it deserves; 107
97
R v Duguay, 2005 NBQB 48 at para 88, 277 NBR (2d) 165 [Duguay QB].
98
Paciocco & Stuesser, supra note 1 at 40-41.
99
Mohan, supra note 2 at 20-21.
100
(2001), 160 CCC (3d) 85 at para 19, 150 OAC 220 (Ont CA).
101
R v Tran, 2001 NSCA 2 at para 28, 19 NSR (2d) 18 (NS CA); R v Aziga, 2008
CarswellOnt 7630 at para 25 (WL Can), 2008 CanLII 66631 (Ont SCJ) [Aziga].
102
R v Kinkead, 1999 CarswellOnt 1264 at para 18 (WL Can), 1999 CanLII 14909 (Ont
SCJ).
103
Supra note 7 at para 73.
104
See, for example, Wray, supra note 16.
105
Mohan, supra note 2 at 20-21.
106
See DD, supra note 3 at para 11 (affirming Mohan, supra note 2). See also Paciocco &
Steusser, supra note 2 at 40; R v Bartkowski, 2004 BCSC 321 (available on WL Can)
[Bartkowski]; R v Boyd, 2006 MBQB 128 at para 25, [2006] 11 WWR 721 [Boyd].
107
McWilliams et al, supra note 11 at 5-14.4; R v Paul, 2004 CarswellOnt 1293 (WL Can)
at para 32, 2004 CanLII 12063 (SCJ) [Paul].