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

The Trial Judge's Four Discretions 181
Third, the general discretion to exclude arising out of Harrer and the
Charter is more circumscribed: It is most likely to be implicated in cases
where evidence against an accused is improperly obtained. 176
Finally, in a criminal trial where the liberty of an accused is often at
stake, more often than not it will be Crown evidence at issue, meaning
discretions applicable to Crown evidence will most often be triggered.
VII.
SITUATING NON-STATUTORY DISCRETIONS: LOGICAL
RELEVANCE VS. LEGAL RELEVANCE
One area worth exploring with respect to non-statutory exclusionary
discretion is its place in the admissibility of evidence analysis. As suggested
earlier, an exclusionary discretion, regardless of the form it takes, is best
understood as operating as a free-standing exclusionary rule in the
admissibility analysis, to be considered after relevance and technical
admissibility have been established. 177 Nonetheless, some are of the view
that inherent in the concept of relevance is the requirement to assess the
evidence in terms of its benefits balanced against its costs. 178 Viewed thus,
evidence has been obtained through illegal or improper) means that the statutory
discretion contained in section 715 specifically contemplates excluding “improperly
obtained Crown evidence” in some circumstances (in order to ensure a fair trial). The
same cannot be said for the exclusionary discretion recognized in Seaboyer exercisable
against Crown evidence, which considers only that evidence whose probative value is
exceeded by its prejudicial effect (though this may well capture most improperly
obtained evidence). In this way, the statutory discretion contained in 715 of the
Criminal Code may be viewed as being wider in scope than the Seaboyer exclusionary
discretion employable against Crown evidence.
176
Paciocco & Stuesser, supra note 1 at 36-37; for contrary views, see Delisle et al, supra
note 8 at 194; Riley, supra note 18 at para 23. Recall also, that the Supreme Court of
Canada, in Potvin (supra note 24) stated that the discretion incorporated into section
715 of the Criminal Code could be employed to exclude improperly obtained evidence
in certain circumstances despite the fact it has met all statutory requirements for
admissibility. Having said that, I could find no judicial decision in which this
discretion was utilized in such a manner.
177
In Mohan, supra note 2, the majority’s reasons, per Sopinka J, endorse this view.
178
For a brief discussion of legal relevance, see Morris, supra note 2 at 193-205, per
Dickson, Lamer and Wilson JJ (dissenting). For an example of the view complained of
see Cowles v Balac (2006), 83 OR 3d 660 at para 201, 273 DLR (4th) 596 (CA), Borins
JA (dissenting on other grounds):