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

186 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
little difficulty as the threshold has become a low one. 197 In other words,
most evidence will be found relevant, and thus, in most cases, little, if any,
discretionary power on the part of the trial judge to find that the evidence
before them is irrelevant exists. 198 In Arp, the Supreme Court of Canada
made this readily apparent when it opined that no minimum amount of
probative value is required for a piece of evidence to be relevant. In the
court’s words, “To be logically relevant, an item of evidence does not have
to firmly establish, on any standard, the truth or falsity of a fact in issue.
The evidence must simply tend to increase or diminish the probability of
the existence of a fact in issue.” 199
Third, the prevalent view is to define relevance narrowly, with a
narrow consideration of only the probative value of the evidence.
This analysis conducted under the rule of relevance is very unlike the
broad ways that probative value and prejudice are considered by the trial
judge when exercising an exclusionary discretion, based on the variety of
factors that present themselves on any given set of facts, particularly the
general discretion spoken of here that exists at common law and allows for
the exclusion of Crown evidence where its prejudice exceeds its probative
value.
VIII. FOUR SEPARATE DISCRETIONS?
The characterization of the trial judge’s exclusionary discretion as four
separate discretions, while in my view supported by authoritative case law
and by at least one set of legal scholars, 200 is not universally accepted. In
fact, most scholars take a different view.
McWilliams et al 201 (as well as Sopinka et al) 202 identify two “broad
discretions” to which a trial judge may turn to exclude technically
admissible evidence, namely the discretions to exclude where prejudice
exceeds probative value and where the admission of evidence would
197
R v J-LJ, 2000 SCC 51, [2000] 2 SCR 600 at para 47, per Binnie J; Paciocco &
Steusser, supra note 1 at 19; Corbett, supra note 2 at paras 715, 720, per La Forest J
(dissenting).
198
Arcangioli, supra note 188 is the exception to the rule: see Section VI above.
199
Arp, supra note 2 at para 38.
200
Delisle et al, supra note 8 at 184–185.
201
McWilliams et al, supra note 11 at 5-2.
202
Sopinka et al, supra note 5 at para 2.54.