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

The Trial Judge's Four Discretions 191
discussion and withering away room for the free-standing discretion that
exists at common law to operate. Telling examples of this are the
emergence of the principled approach to hearsay in R v Khan, 219 and the
reformulation of the similar fact evidence rule in R v Handy. 220 The latter
change to the law of evidence adopts a balancing of probative value against
prejudicial effect exercise into an exclusionary rule itself, 221 which raises
the question of whether in the context of similar fact evidence, an
exclusionary discretion, as understood in this article, can be said to exist at
all, a question which is beyond this article’s purview.
Third, “the modern trend has been to admit all relevant and probative
evidence and allow the trier of fact to determine the weight which should
be given to that evidence, in order to arrive at a just result.” 222 As noted by
L’Heureux-Dube and Gonthier JJ (dissenting) in L (DO), “A just result is
best achieved when the decision-makers have all relevant and probative
information before them.” 223 The Supreme Court of Canada’s recent
emphasis on the danger that juries may come to an incorrect decision in
the absence of evidence, militating towards courts receiving more and
more evidence, does not bole well for the exercise of the judicial discretion
to exclude. 224
Given that it is here to stay, efforts must nevertheless be made to
better understand the nature of the trial judge’s exclusionary discretion.
While its ambit has changed over the years, there is no question of the
ongoing need for an exclusionary discretion exercisable in the hands of a
trial judge to preserve a fair trial and to prevent the untoward effects a
mechanical application of rules of admissibility (whether common law or
statutory in origin) can have. Where an exclusionary discretion is not
exercised when it should be, it is possible that evidence which is highly
prejudicial will be received with all the attendant dangers that this entails,
219
[1990] 2 SCR 531, 59 CCC (3d) 92.
220
Handy, supra note 142.
221
Ibid at paras 56-69.
222
R v Nikolovski, [1996] 3 SCR 1197 at para 19, 141 DLR (4th) 647, per Cory J, citing
L’Heureux-Dube and Gonthier JJ (concurring) in L (DO), supra note 24. For further
support of this proposition, see Corbett, supra note 2 at 720, per La Forest J
(dissenting) and para 51, per Dickson CJ and Lamer J.
223
L (DO), supra note 24 at 454-455.
224
Though this trend should not be viewed as a return to the Wray standard for the
exclusion of technically admissible evidence.