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

190 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
really independent of relevance? While I argue that the correct approach is
to treat each separately, the balancing of probative value against prejudice
according to the Supreme Court is still commonly considered as an aspect
of legal relevance. 214
As a final point, something need be said about the reasons for the
dearth of literature on the trial judge’s exclusionary discretion. First,
according to Weinberg, who studied the trial judge’s exclusionary
discretion pre-1975, when only the Wray formula was in existence, it is
largely explainable by the fact that the discretion to exclude is rarely
exercised, especially where evidence is of high probative value. 215 While
this claim is less supportable today in light of developments to the
discretion that have widened its ambit, it still holds a kernel of truth in
that where the probative value of evidence is high the exclusionary
discretion would appear to have little room to operate since there is less
chance that the prejudicial value will be able to outweigh it. 216 This is even
truer when one considers some courts’ recognition that jury instructions
can often reduce the level of prejudice – even serious prejudice – to the
extent necessary to permit evidence which might not otherwise have
sufficient probative value, to be received. That said, the trial judge’s
exclusionary discretion remains a prominent factor in admittance into
evidence decisions in many contexts. 217 This is true notwithstanding the
fact that this discretion is “residual” in nature, and therefore of necessity,
to be applied “sparingly so as not to marginalize or trump the many
specific evidentiary rules which constitute the law of evidence.” 218
Second, a principled approach, characterized by a balancing of
prejudice against probative value, is pervading the law of evidence, making
it difficult to isolate disparate forms of exclusionary discretion for
214
Mohan, supra note 2 at 20-21. See also Paciocco & Stuesser, supra note 1 at 38. For a
recent trial level decision: see Morrisey, supra note 126.
215
See Weinberg, “Judicial Discretion”, supra note 186 at 38 and accompanying notes.
216
See, for example, R v Muchikekwanape, 2002 MBCA 78, 166 CCC (3d) 144 (Man CA)
at paras 41-47 [Muchikekwanape].
217
Welsh, supra note 6 (out-of court identification evidence); R v Pena, 1997 CarswellBC
1202 (WL Can), 1997 CanLII 2087 (BC SC) (videotape evidence); Jabiaranha, supra
note 7 at para 26-32 (scope of cross- examination); Powell, supra note 2 (post-offence
conduct); Hawkins, supra note 18 (hearsay); Muchikekwanape, supra note 216
(photographic evidence).
218
Welsh, supra note 6 at para 37.