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

The Trial Judge's Four Discretions 167
ability to disregard the prejudicial aspects, if any ...” 118 of evidence by
properly cautioning themselves. Where a trial is held before judge alone, it
seems prudent that trial judges be given a little bit “greater latitude to
consider evidence whose admission might be questioned” 119 were it to be
put before a lay jury. 120
Another related factor mentioned by some courts, 121 with the
potential to have great impact on the admissibility of evidence analysis, is
whether jury instructions can reduce potential prejudice to a point where
evidence which would not otherwise have had sufficient probative value to
overcome prejudice can, as a result of such instruction, gain admittance.
As noted by the Supreme Court in Mohan, “the possibility that evidence
118
R v Andirchow, 2008 ABPC 298, 459 AR 36 at para 20.
119
R v Sutherland (2001), 156 CCC (3d) 264 at para 19, 146 OAC 53 (Ont CA)
[Sutherland]. It also seems prudent that trial judges be given more leeway in their
discretionary determinations whether the requirements of admittance under any
specific exclusionary rules are met on the facts of a particular case where the case is
being heard by a judge alone and not a judge and jury: see R v Poslowsky (1997), 11 CR
(5th) 141 at para 34-35 (available on WL Can) (BC SC).
120
In my view this should not be done as a matter of course. The exclusionary discretion
exists in part because some evidence is so potentially prejudicial that it should not be
considered by the trier of fact, regardless of the mode of trial. It is likely for this reason
that in R v Sutherland, Justice Laskin, while reasoning that judges should be given more
room to accept evidence they might not otherwise in the presence of a jury, did not
recommend “a wholesale abandonment” in these circumstances, “of the trial judge’s
gatekeeper function which requires that he or she exclude evidence where its
prejudicial value outweighs its probative value.”(Powell, supra note 2 at para 24,
referring to the Court’s reasons in Sutherland, supra note 119, per Laskin J). I submit
that this duty on a trial judge in most cases must be discharged. (See, for example,
Powell, supra note 1 at paras 17-24 where the trial judge decided to exclude the gun
evidence in spite of the absence of a jury and in spite of his acknowledgement that
trial judges have a greater ability than lay jurors to disregard any prejudicial aspects of
evidence.) Only in the most exceptional circumstances should a judge decide to accept
otherwise excludable evidence for reason only that the trial is before a judge alone as
opposed to a judge and jury.
121
Aziga, supra note 101 at para 25; Paul, supra note 116 at para 23. Interestingly, in R v
Chretien, 1999 BCCA 411 at para 20, 137 CCC (3d) 87, the Court rejects this factor
as being one that should be considered in balancing probative value against prejudice,
in deciding whether to apply an exclusionary discretion. In light of the Supreme
Court’s clear recognition of this factor in cases such as Mohan (supra note 2 at 24) and
Corbett (supra note 2 at 693), there is no question as to its existence, notwithstanding
the contrary statement made in this regard in Chretien.