MLJ Volume 36-1.pdf - Robson Hall Faculty of Law
MLJ Volume 36-1.pdf - Robson Hall Faculty of Law MLJ Volume 36-1.pdf - Robson Hall Faculty of Law
174 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1 the forbidden inference that, because of the complainant’s bad character, she “got what she deserved”. While recognizing the highly limited nature of the discretion exercisable against defence evidence, Gorman J disagreed with defence counsel’s view that defence evidence as to a complainant’s reputation for truth and veracity was automatically admissible, with the question being one of weight rather than admissibility. 150 As the trial judge noted: The inherent “dangers” involved in the presentation of such evidence should not be underestimated. We all may have views on the character of others, but expressing “our communities” view of such character is much more difficult and problematic. It will invariably be based upon hearsay and the worse forms of gossip, rumour or an innuendo. In addition, such evidence will always, to a certain extent, be colored by our personal views of that person. No one can proffer such an opinion on behalf of their community free from such frailties. 151 Gorman J’s view is the correct one; defence evidence of the kind at issue in TJB, or otherwise, is not automatically receivable just because it is introduced by the defence on behalf of an accused; it is always subject to being excluded by the trial judge where its prejudicial effect substantially outweighs its probative value. That said, the discretion must be exercised very cautiously, especially relative to the Seaboyer discretion applicable to Crown evidence, since the accused’s right to make full answer and defence is “such a fundamental principle of justice that it cannot be lightly interfered with.” 152 It follows that, where a “proper foundation” as defined by relevant jurisprudence is present, defence evidence on the character of the complainant, no matter how objectionable and inflammatory, must be received. It is important to note that a proper foundation is not a perfect foundation, but merely one that gives the trial judge a reasonable basis for concluding that the witness’s testimony is not confined to his or her own opinions or views of the complainant’s reputation for truthfulness, but one which is at least in part informed by the neighborhood’s view (which clearly the witness must have some personal knowledge of). Thus, in TJB, Gorman J allowed testimony of one of three defence witnesses to be received, even though the witness had significant difficulty in 150 TJB, supra note 132 at paras 5-6. 151 Ibid at para 16. 152 Ibid at para 19.
The Trial Judge's Four Discretions 175 distinguishing between her personal view of the complainant’s character and the community’s view of the complainant’s reputation for truthfulness. 153 In determining whether a proper foundation for the proposed defence evidence has been laid in this context, which in effect disabuses a trial judge of their power to exclude this kind of evidence in all circumstances, a trial judge’s considerations should include: i. Whether the witness’s testimony reveals that he or she might be mistaken as to identity of the complainant; ii. Whether the witness goes further than merely expressing his or her personal opinion as to the complainant’s reputation for truthfulness and veracity; iii. Whether the witness has personal knowledge of the views of community on the complainant’s reputation for veracity and truthfulness, or whether his or her opinion is completely devoid of personal knowledge and solely reliant on hearsay. All the above said, in balancing probative value against prejudicial effect for defence evidence, the trial judge may need to consider some of the same factors as it does with respect to the discretion exercisable against Crown evidence. For instance, in assessing the probative value of defence evidence, a consideration of its credibility is undertaken. 154 Of the four kinds of exclusionary discretions herein examined, it is fair to say that the ambit of the discretion applicable to defence evidence is the most constrained, though it bears repeating that prior to Seaboyer, defence evidence was altogether immune from a judicial discretion to exclude. Despite its limitations, the discretion to exclude defence evidence has been exercised on a number of occasions and there is no longer any question as to its existence. 153 TJB, supra note 132 at para 21. Of note, Gorman J exercised his discretion to exclude the evidence from the other two witnesses finding that a “proper foundation” was not present to support their respective testimonies. Hence, this defence evidence’s prejudicial effect was found to substantially outweigh its probative value: at paras 20 & 22. 154 Ibid at para 18.
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The Trial Judge's Four Discretions 175<br />
distinguishing between her personal view <strong>of</strong> the complainant’s character<br />
and the community’s view <strong>of</strong> the complainant’s reputation for<br />
truthfulness. 153 In determining whether a proper foundation for the<br />
proposed defence evidence has been laid in this context, which in effect<br />
disabuses a trial judge <strong>of</strong> their power to exclude this kind <strong>of</strong> evidence in all<br />
circumstances, a trial judge’s considerations should include:<br />
i. Whether the witness’s testimony reveals that he or she might<br />
be mistaken as to identity <strong>of</strong> the complainant;<br />
ii. Whether the witness goes further than merely expressing his<br />
or her personal opinion as to the complainant’s reputation for<br />
truthfulness and veracity;<br />
iii. Whether the witness has personal knowledge <strong>of</strong> the views <strong>of</strong><br />
community on the complainant’s reputation for veracity and<br />
truthfulness, or whether his or her opinion is completely<br />
devoid <strong>of</strong> personal knowledge and solely reliant on hearsay.<br />
All the above said, in balancing probative value against prejudicial<br />
effect for defence evidence, the trial judge may need to consider some <strong>of</strong><br />
the same factors as it does with respect to the discretion exercisable against<br />
Crown evidence. For instance, in assessing the probative value <strong>of</strong> defence<br />
evidence, a consideration <strong>of</strong> its credibility is undertaken. 154<br />
Of the four kinds <strong>of</strong> exclusionary discretions herein examined, it is<br />
fair to say that the ambit <strong>of</strong> the discretion applicable to defence evidence is<br />
the most constrained, though it bears repeating that prior to Seaboyer,<br />
defence evidence was altogether immune from a judicial discretion to<br />
exclude. Despite its limitations, the discretion to exclude defence evidence<br />
has been exercised on a number <strong>of</strong> occasions and there is no longer any<br />
question as to its existence.<br />
153<br />
TJB, supra note 132 at para 21. Of note, Gorman J exercised his discretion to exclude<br />
the evidence from the other two witnesses finding that a “proper foundation” was not<br />
present to support their respective testimonies. Hence, this defence evidence’s<br />
prejudicial effect was found to substantially outweigh its probative value: at paras 20<br />
& 22.<br />
154<br />
Ibid at para 18.
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