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

182 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
the free standing exclusionary discretion first recognized in Wray is no
more than a component of the exclusionary rule of relevance and has no
independent existence. From this perspective, logical relevance is not
enough. What is required is legal relevance; in addition to establishing
logical relevance, the determination is made that the benefits of the
evidence outweigh its cost, making the evidence worth receiving. 179
This approach has not been the prevailing one and, thankfully,
authoritative case law does not support it. 180 In R v Morris, the majority of
the Supreme Court, per Lamer J, made clear that the standard of legal
relevance has never been the law in Canada. 181 The standard of logical
relevance is preferable for clarity of legal reasoning and because it makes
the most sense to discuss the exclusionary discretion separately from and
after the basic rule of admissibility and specific exclusionary rules have
been applied. It is necessary these steps be completed first, for they inform
the analysis taken up by the trial judge at the exclusionary discretion stage.
This is a reflection of the fact that specific exclusionary rules are but
specific manifestations of the broader residual discretion possessed by the
trial judge, 182 itself an exclusionary rule.
For something to be relevant it has to possess at least some probative
value – the evidence has to make the proposition for which it is proffered
more probable than it would be in its absence. So at the preliminary stage
of the admissibility analysis, one first needs to assess the probative value of
the evidence in a pointed and narrow way, as required by the rules of
relevance and materiality, which if not met require the evidence be
excluded in all circumstances. 183 Relevancy should be defined narrowly. If
The established test for the admission of evidence at a trial rests on
relevancy. Under this test, where evidence is tendered by impeachment
purposes, … the admission of the evidence requires a showing of
relevance to the credibility of a witness on a material matter and a
demonstration that the potential value of the evidence for this purpose
outweighs its potential prejudicial effect.
179
Paciocco & Stuesser, supra note 1 at 37.
180
See Mohan, supra note 2; DD, supra note 3; Paciocco & Steusser, supra note 1 at 37.
181
Morris, supra note 2 at 199-201. See also Corbett, supra note 2 at 719, per La Forest
(dissenting).
182
Corbett, supra note 2 at 715, per La Forest J (dissenting).
183
It bears repeating that the analyses that occur under the rules of relevance and
materiality and subsequently under specific exclusionary rules, such as the hearsay