The Queen v. Wray

The Queen v. Wray
Collection
Supreme Court Judgments
Date
1970-06-26
Report
[1971] SCR 272
Judges
Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe
On appeal from
Ontario
Subjects
Criminal law
Decision Content
Supreme Court of Canada
R. v. Wray, [1971] S.C.R. 272
Date: 1970-06-26
Her Majesty The Queen (Plaintiff) Appellant;
and
John Wray (Defendant) Respondent.
1970: January 29, 30; 1970: June 26.
Present: Cartwright C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Evidence—Confession—Statement by accused ruled inadmissible-—Admissibility of facts discovered as result of statement—Admissibility of part of statement—Discretion to exclude admissible evidence-—New trial directed.
The respondent was charged with non-capital murder. The trial judge ruled that a statement signed by the respondent was inadmissible as it was not voluntary. In the statement, the respondent told that he threw the murder weapon in a swamp. Later the police were directed by the respondent to the locality where, as a result of what he told them, they found the rifle the following day. The trial judge refused to allow the Crown to adduce evidence as to the part taken by the respondent in the finding of the murder weapon. At the conclusion of the trial, he directed a verdict of not guilty. The Court of Appeal affirmed the acquittal on the ground that a trial judge in a criminal case has a discretion to reject evidence, even if legally admissible and of substantial weight, if he considers that its admission would be unjust or unfair to the accused or calculated to bring the administration of justice into disrepute. The Crown was granted leave to appeal to this Court on the question as to whether the trial judge had a discretion to reject the evidence relating to the involvement of the accused in the locating of the murder weapon.
Held (Cartwright C.J. and Hall and Spence JJ. dissenting): The appeal should be allowed and a new trial directed.
Per Fauteux, Abbott, Martland, Ritchie and Pigeon JJ.: There is no judicial authority in this country or in England which supports the proposition that a trial judge has a discretion to exclude admissible evidence because, in his opinion, its admission would be calculated to bring the administration of justice into disrepute. The test of admissibility of evidence is whether the evidence is relevant to the matters in issue.
The trial judge has no general discretion to exclude admissible evidence because, in his opinion, its admission would be unjust or unfair to the accused. The exercise of a discretion by him arises only if the admission of the evidence, would operate unfairly. The allowance of admissible evidence relevant to the issue before the Court and of substantial probative value may operate unfortunately for the accused, but not unfairly. It is only the allowance of evidence gravely prejudicial to the accused, and whose probative force in relation to the main issue before the Court is trifling, which can be said to operate unfairly.
The trial judge’s discretion to exclude admissible evidence does not extend beyond his duty to ensure that the minds of the jury will not be prejudiced by evidence of little probative value, but of great prejudicial effect. Exclusion of evidence on the ground that, although its probative value was unquestionable, it was obtained by methods which the judge considers to be unfair, has nothing to do with his duty to secure a fair trial for the accused. The trial judge erred in law in excluding evidence as to the facts leading to the finding of the rifle.
Where the discovery of the fact confirms the confession—that is, where the confession must be taken to be true by reason of the discovery of the fact—then that part of the confession that is confirmed by the discovery of the fact is admissible, but further than that no part of the confession is admissible. The trial judge erred in law in excluding such parts of the confession as were confirmed as true by the discovery of such facts.
Per Fauteux, Abbott and Judson JJ.: There are dicta as to the exclusion of evidence which is admissible and relevant but of such slight probative value that it should be rejected because of its prejudicial tendency in the eyes of the jury. But this principle is not in issue in this appeal. Those dicta cannot support the broad exclusionary discretion which was exercised by the trial judge in this case and affirmed and extended by the Court of Appeal. There is no judicial discretion permitting the exclusion of relevant evidence, on the ground of unfairness to the accused. Judicial discretion in this field is a concept which involves great uncertainty of application. The task of a judge in the conduct of a trial is to apply the law and to admit all evidence that is logically probative unless it is ruled out by some exclusionary rule. If this course is followed, an accused person has had a fair trial. Deferring to the ruling in R. v. St. Lawrence, [1949] O.R. 215, the evidence should be confined to the fact of finding under the direction of the accused.
Per Cartwright C.J., dissenting: The confession of the respondent was improperly obtained and was rightly excluded as being involuntary. However, evidence of the fact that the respondent told the police where the murder weapon could be found was legally admissible under the rule in R. v. St. Lawrence, supra, but not evidence that he said he had thrown it there. But, because the manner in which the respondent was induced to indicate the location of the weapon was as objectionable as that in which he was induced to make the confession, it was open to the trial judge to hold that the admission of evidence of that fact would be so unjust and unfair to the respondent and so calculated to bring the administration of justice into disrepute as to warrant his rejecting the evidence in the exercise of his discretion. There being evidence on which it was open to the trial judge to exercise his discretion in the way he did, the propriety of that exercise is not open to review on an appeal by the Crown.
Per Hall J., dissenting: A trial judge has, by law, a measure of discretion to reject admissible evidence under certain circumstances. The only test applied in respect of statements admitted or rejected after a voir dire however damaging they may be to an accused or however their exclusion may benefit an accused, is that the discretion be exercised judicially. If the discretion has been judicially exercised by the judge, it is not subject to review or to being weighed on appeal.
Per Spence J., dissenting: It is the duty of every judge to guard against bringing the administration of justice into disrepute. The proper discharge of this duty is one which is of paramount importance to the continued life of the state; In the present case, the confession or statement of the accused and also the information given by him as to where the weapon could be found were procured by trickery, duress and improper inducements and they were clearly inadmissible. Had the trial judge permitted the Crown to adduce all the evidence as to the part taken by the accused in the finding of the murder weapon, it would not only have brought the administration of justice into disrepute but it would have been a startling disregard of the principle that no one should be made to testify against himself.
APPEAL by the Crown from a judgment of the Court of Appeal for Ontario[1], affirming the acquittal of the respondent on a charge of non capital murder. Appeal allowed, Cartwright C.J. and Hall and Spence JJ. dissenting.
Clay M. Powell, for the appellant.
Robert Carter and W.B. Gordon, for the respondent.
CARTWRIGHT C.J. (dissenting)—This appeal is brought, pursuant to leave granted by this Court on November 19, 1969, from a unanimous judgment of the Court of Appeal for Ontario1 pronounced on October 20, 1969, dismissing an appeal from the acquittal of the respondent on October 31, 1968, following his trial before Henderson J. and a jury at Peterborough. The verdict of not guilty was directed by Henderson J. at the conclusion of the trial. The charge against the respondent was that at the Township of Otonabee in the County of Peterborough on March 23, 1968, he unlawfully did kill Donald Comrie and thereby did commit non-capital murder.
At approximately 12.10 p.m. on Saturday, March 23, 1968, Donald Comrie was shot through the heart in the front office of Knoll’s Service Station. Fifty-five dollars, all the bills which had been in the cash register, were missing. There was no eye-witness of the shooting but John Frish, a boy 12 years of age, a nephew of the owner of the Service Station, heard “a crack” and going to investigate found the deceased lying face down and, through the front window, saw a man carrying a rifle running away from the scene. The bullet which had caused Comrie’s death was recovered from his body and there was expert evidence that it had been fired from a rifle which was found by the police on June 5, 1968, in a swampy wooded area adjoining the Fyfe Road about 15 miles from the place where Comrie had been killed. This rifle was identified as belonging to James Albert Wray, a brother of the respondent, who testified that he had first noticed that the rifle was missing on the Tuesday following March 23, 1968. He had not reported its disappearance to the police or to the Insurance Company in which the Wray family had insurance on the contents of their home.
Nothing would be gained by setting out in detail the facts recited at the trial. It is sufficient to say that the evidence against the respondent which was admitted was all circumstantial and was not sufficient to warrant leaving the case to the jury. The question before us arises out of the exclusion by the learned trial judge of certain evidence tendered by the Crown.
On June 4, 1968, shortly after 10.00 a.m., Inspector Lidstone of the Ontario Provincial Police drove up to the respondent’s home and asked the respondent to accompany him to the Police Headquarters in Peterborough. From then until 7.18 p.m. on the same day the respondent was continuously with the police and one Jurems, a private investigator, who, as the learned trial judge found, was acting for and with the police and was as regards the respondent a person in authority. At 7.18 p.m. the respondent signed a statement in the form of questions and answers written by Inspector Lidstone. If admitted it would have been evidence on which the jury could have convicted the respondent of the charge against him. It ended as follows:
Q. What happened to the gun?
A. I threw it in the swamp.
Q. Where?
A. Near Omomee.
Q. Will you try and show us the spot?
A. Yes.
Q. Is there anything else you wish to add to this John?
A. Not now thank you.
(signed) John Wray
7.18 p.m.
At 7.25 p.m. the police set out with the respondent in their car, followed by Jurems in another car, and were directed by the respondent to the locality where, as a result of what he told them, they found the rifle the following day. During the afternoon of June 4, 1968, Mr. Gordon, a lawyer retained by the respondent’s family, attempted to get in touch with the police by telephone but the police did not return his calls. Asked why they had not done so, Inspector Lidstone said in cross-examination:
we did not want to take a chance that Mr. Wray as a result of speaking to Mr. Gordon wouldn’t take the police out to where the gun was found.
Following a lengthy voir dire, the learned trial judge ruled that the statement signed by the respondent was legally inadmissible as it was not voluntary. This ruling was not challenged. It was supported by the evidence.
For the appellant it is submitted that the learned trial judge erred in law in refusing to allow the Crown to adduce evidence as to the part taken by the respondent in the finding of the murder weapon.
The question on which leave to appeal to this Court was granted is as follows:
Did the Court of Appeal for Ontario err in law in holding that the learned trial Judge had a discretion to reject the evidence relating to the involvement of the accused in the locating of the murder weapon?
It is first necessary to decide whether the evidence which the Crown sought to adduce was legally admissible. The appeal was argued, and rightly so, on the basis that the respondent’s confession was inadmissible; the submission of the Crown is that, in spite of this, it was entitled to prove not only the finding of the rifle but also the fact that its location was pointed out to the police by the respondent and to give in evidence so much of the confession as was verified by the fact of the finding.
It is impossible to reconcile the numerous decisions as to what follows when an inadmissible confession or some part of it is verified by subsequently discovered evidence. In a most helpful article by A. Gotlieb, entitled “Confirmation by subsequent facts”, in (1956) 72 L.Q.R. 209, a number of cases are collected and discussed. The learned author points out that authorities exist to support each of the following five views:
(1) Subsequent facts are admissible but they cannot in any way be connected with the confession.
(2) Evidence can be given of subsequent facts and that they were discovered as a result of a statement made by the accused.
(3) Evidence may be given of subsequent facts and so much of the confession as strictly relates to them.
(4) Subsequent facts and the whole confession that led to their discovery are admissible.
(5) Subsequent facts are not admissible.
In my opinion the third view is that which prevails in Canada. It is founded on the full and careful judgment of McRuer C.J.H.C. in Rex v. St. Lawrence[2]. At p. 391 the learned Chief Justice states the rule succinctly as follows:
Where the discovery of the fact confirms the confession—that is, where the confession must be taken to be true by reason of the discovery of the fact—then that part of the confession that is confirmed by the discovery of the fact is admissible, but further than that no part of the confession is admissible.
In R. v. Haase[3], the Court of Appeal for British Columbia applied the rule enunciated in R. v. St. Lawrence but Davey J.A., as he then was, who gave the judgment of the majority, stated at p. 328 that the appellant did not question the admissibility of certain evidence under “the St. Lawrence rule” and that therefore “it would be inappropriate to examine the rationale of that rule and its scope”. The judgment of the Court of Appeal was affirmed by this Court in a short oral judgment delivered without calling on counsel for the respondent, which is reported at (1964) 50 W.W.R. 386. In view of this it appears to me that the rule rests on the judgment of McRuer C.J.H.C. and cannot be said to have the added authority of the Court of Appeal for British Columbia or of this Court. On the other hand, as Haase was a case of capital murder, the affirmation of the conviction indicates that neither the Court of Appeal nor this Court disagreed with “the St. Lawrence rule”.
It is my opinion that, applying the reasoning of McRuer C.J.H.C. to the facts of the case at bar, evidence that the respondent told the police where the murder weapon was to be found was legally admissible but that evidence that he said he had thrown it there was not.
However, before leaving this phase of the matter it is necessary to consider the effect of the judgment of this Court in DeClercq v. The Queen[4]. My brother Martland, who gave the reasons of the majority, said at p. 911:
While it is settled law that an inculpatory statement by an accused is not admissible against him unless it is voluntary, and while the inquiry on a voir dire is directed to that issue, and not to the truth or falsity of the statement it does not follow that the truth or falsity of the statement must be irrelevant to such an inquiry.
The great weight of authority indicates that the underlying reason for the rule that an involuntary confession shall not be admitted is the supposed danger that it may be untrue. If this is the only reason for the rule it is logical that so much of an involuntary confession as is shown by subsequently discovered evidence to be true should be admitted: but why, it may be asked, should an involuntary statement which the accused subsequently admits on his oath to be true be excluded? The anomaly of so holding is pointed out in the dictum of Robertson C.J.O. giving the unanimous judgment of the Court of Appeal for Ontario in Rex v. Mazerall[5]:
It would be a strange application of a rule designed to exclude confessions the truth of which is doubtful, to use it to exclude statements that the accused, giving evidence upon this trial, has sworn to be true.
While in my view this observation was obiter, it is difficult to reject its reasoning if the only ground for excluding an involuntary confession is the danger of its being untrue. If, on the other hand, the exclusion of an involuntary confession is based also on the maxim nemo tenetur seipsum accusare the truth or falsity of the confession does become logically irrelevant. It would indeed be a strange result if, it being the law that no accused is bound to incriminate himself and that he is to be protected from having to testify at an inquest, a preliminary hearing or a trial, he could none the less be forced by the police or others in authority to make a statement which could then be given in evidence against him. The result which would seem to follow if the exclusion is based on the maxim would be that the involuntary confession even if verified by subsequently discovered evidence could not be referred to in any way.
I have reached the conclusion that we ought not to over-rule R. v. St. Lawrence, which has stood for twenty years, and that consequently it should be held that the evidence which the Crown sought to introduce at the trial was legally admissible. This was the view taken in the courts below and was the basis on which the appeal was argued before us.
The question then is as stated in the order granting leave to appeal which has been quoted above. It is a question of law whether the learned trial judge had power, in his discretion, to exclude the evidence as he did. If he had that power then, subject to a qualification to be stated hereafter, it is not, in my opinion, a pure question of law whether he ought to have exercised his discretion in the way he did. The discretionary power, if it exists, is not created by any statute but rests upon judicial decisions. Those chiefly relied on by the respondent are the following:
Noor Mohamed v. the King[6], in which dealing with the admissibility of evidence of similar acts, Lord Du Parcq said at p. 192:
It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust, to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.
Kuruma v. the Queen[7], in which Lord Goddard said at p. 204:
…No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. This was emphasized in the case before this Board of Noor Mohamed v. The King, and in the recent case in the House of Lords, Harris v. Director of Public Prosecutions. If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out. It was this discretion that lay at the root of the ruling of Lord Guthrie in H.M. Advocate v. Turnbull.
Callis v. Gunn[8], in which Lord Parker said at p. 501:
That is dealing with admissibility in law, and as Lord Goddard, C.J. points out, and indeed as is well known, in every criminal case a judge has a discretion to disallow evidence, even if in law relevant and therefore admissible, if admissibility would operate unfairly against a defendant. I would add that in considering whether admissibility would operate unfairly against a defendant one would certainly consider whether it had been obtained in an oppressive manner by force or against the wishes of an accused person. That is the general principle.
It will be observed that the nature of the discretionary power asserted in the two latter cases appears to differ in kind from that asserted in the first. Under the rule in Noor Mohamed the judge excludes the evidence because of the danger of the jury attaching undue weight to it or using it for the inadmissible purpose of showing that the accused is the sort of person who is likely to commit the offence for which he is on trial. It does not furnish support for the assertion of a discretionary power to exclude legally admissible evidence relevant to the issue before the jury and objectionable only on the ground that it was obtained in an improper or unlawful manner.
In the case at bar Aylesworth J.A., giving the unanimous judgment of the Court of Appeal, after quoting the passage from Noor Mohamed v. the Queen which I have set out above, continued as follows:
We think that to be only a partial statement of the rule involved in the case at bar, and it was couched in the language which I have read as being relevant only to the particular subject matter which the learned Law Lords were there considering.
and then, having quoted the passage from Kuruma v. The Queen set out above, continued:
In our view, a trial judge has a discretion to reject evidence, even of substantial weight, if he considers that its admission would be unjust or unfair to the accused or calculated to bring the administration of justice into disrepute, the exercise of such discretion, of course, to depend upon the particular facts before him. Cases where to admit certain evidence would be calculated to bring the administration of justice into disrepute will be rare, but we think the discretion of a trial Judge extends to such cases.
He went on to hold that the circumstances present in the case were such as to have warranted the learned trial judge’s rejection of the proffered evidence respecting the accused’s involvement in the discovery of the murder weapon upon both of the grounds stated, namely that to receive it would be (i) unjust or unfair to the accused and (ii) calculated to bring the administration of justice into disrepute.
A contrary view as to the scope of the discretionary power is expressed by Davey C.J.B.C. giving the unanimous judgment of the Court of Appeal for British Columbia in Regina v. Sigmund et al[9]. After a consideration of the authorities including Noor Mohamed v. R., Kuruma v. R. and Callis v. Gunn he says at pp. 102 and 103:
It is to be observed as Lords Goddard and Parker stated, and as Kerwin, C.J.C., mentioned in A.-G. Que. v. Begin (1955) S.C.R. 593 that this principle is altogether apart from the rules governing the admission of confessions.
In Kuruma v. The Queen, supra, Lord Goddard used quite general language, but founded it upon Noor Mohamed v. The King, and Harris v. Director of Public Prosecutions, supra. In my respectful opinion, it is quite plain that his language was only a reference to the principle laid down in those cases, and not an attempt to restate or expand it. I am not sure that Lord Parker intended to do more, although he did state some of the circumstances a Judge ought to consider in deciding whether the admission of evidence would operate unfairly against a prisoner, namely, ‘whether it had been obtained in an oppressive manner by force or against the wishes of an accused person.’
If Lord Parker meant to lay down a principle that a Judge has discretion to exclude any relevant evidence that would operate unfairly against an accused, or that has been obtained in an oppressive manner by force or against the wishes of the prisoner, I must respectfully disagree. I know of no other authority that goes so far, yet it is upon that principle said to have been laid down by Lord Parker that the exclusion of Sigmund’s exculpatory statement must rest.
It appears from what has been said above that the Courts of Appeal in British Columbia and in Ontario have taken opposite views on the question which we have to decide. The difficulty and importance of the question is aptly described by the words used by Lord Cooper in Lawrie v. Muir[10]:
The law must strive to reconcile two highly important interests which are liable to come into conflict—(a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the state to secure that evidence bearing upon the commission of a crime and necessary to enable justice to be done shall not be withheld from courts of law on any mere formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection for the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action for damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand the interest of the state cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods.
The relevant circumstances in the case at bar differ widely from those suggested in the passage from Noor Mohamed v. R. quoted above. The evidence which the Crown sought to adduce, far from having only trifling weight, might well have been found by the jury to be decisive; it is implicit in the reasons of the Court of Appeal that they regarded it as of substantial weight. I have difficulty in defining the conditions which would render a trial conducted strictly according to law “unjust or unfair” to an accused but the difficulty of defining the circumstances which call for its exercise does not necessarily negative the existence of the discretion which we are considering. In R. v. Murphy[11], Lord Macdermott said:
Unfairness in this context cannot be closely defined. It must be judged in the light of all the material facts and findings and all the surrounding circumstances. The position of the accused, the nature of the investigation, and the gravity or otherwise of the suspected offence may all be relevant. If the views expressed by Lord Goddard in Kuruma v. R. and by Lord Parker in Callis v. Gunn are accepted they uphold the view of the Court of Appeal in the case at bar. Further support for that view is to be found in Cross on Evidence, 3rd ed. (1967) which contains an illuminating discussion of the problem and related questions at pp. 23 to 27; 262 to 270; and 445 to 448. In Myers v. Director of Public Prosecutions[12], Lord Reid said:
It is true that a judge has a discretion to exclude legally admissible evidence if justice so requires, but it is a very different thing to say that he has a discretion to admit legally inadmissible evidence.
The learned author of Cross on Evidence (op, cit.) points out at p. 269 that there must be a limit to the doctrine that a fact such as the disclosure by the accused of the whereabouts of the murder weapon can be given in evidence even although his confession is inadmissible and asks the question: “What if the whereabouts… were ascertained by prolonged torture of the accused?”
Once it has been decided that the confession is inadmissible because of the manner in which it was obtained but that part of it becomes admissible in law because it is verified by the discovery of the murder weapon in the place in which the accused in the course of the confession stated it to be, the court is faced with a choice of deciding either that because it is relevant, of great weight and admissible in law it must be received or that because it was obtained or extorted by such means that to admit it would bring the administration of justice into disrepute in the minds of right-thinking men the presiding judge may in his discretion exclude it. The choice is a difficult one; but, not without hesitation, occasioned by the reasons of Davey C.J.B.C. quoted above and by the consideration that a murder should not go unpunished, I have reached the conclusion that the Court of Appeal were right in holding that the learned trial judge had a discretion to reject the evidence, relating to the involvement of the accused in locating the murder weapon, which he did reject, and consequently that the question of law on which leave to appeal was granted should be answered in the negative.
Earlier in these reasons I expressed the opinion that if the learned trial judge had power in his discretion to exclude the evidence it is not a pure question of law whether he ought to have exercised his discretion as he did. This is, I think, subject to the qualification that it would be a question of law whether there was any, as distinguished from sufficient, evidence to warrant his rejection of the proffered evidence. In my opinion there was such evidence in the case at bar. The suspected offence is non-capital murder, there is no need to enlarge upon its gravity; on the other hand, the nature of the investigation as a result of which the respondent disclosed the whereabouts of the murder weapon was such as to reflect no credit on the authorities concerned. The Court of Appeal were not guilty of overstatement when they said:
Admittedly the confession or statement by the accused was procured by trickery, duress and improper inducements and it was clearly inadmissible.
Added to this was the circumstance that the police failed to let the lawyer retained by the respondent’s family get in touch with him and did so for the stated reason that this might prevent the accused taking the police to the place where the murder weapon was located.
There being evidence to warrant the decision of the learned trial judge nothing would be gained by my expressing an opinion as to how he should have exercised his discretion.
Before parting with the matter, since the above reasons are somewhat discursive, I will endeavour to state in summary form my grounds for thinking that the judgment of the Court of Appeal should be upheld. The confession of the accused was improperly obtained and was rightly excluded as being involuntary. In spite of this, evidence of the fact that the accused told the police where the murder weapon could be found was legally admissible under the rule in Rex v. St. Lawrence; but, because the manner in which he was induced to indicate the location of the weapon was as objectionable as that in which he was induced to make the confession, it was open to the learned trial judge to hold that the admission of evidence of that fact would be so unjust and unfair to the accused and so calculated to bring the administration of justice into disrepute as to warrant his rejecting the evidence in the exercise of his discretion; and, finally, there being evidence on which it was open to the learned trial judge to exercise his discretion in the way he did, the propriety of that exercise is not open to review on an appeal by the Crown.
I would dismiss the appeal. In view of the terms of the order granting leave to appeal the appellant will pay the costs of the respondent as set out in that order.
Fauteux, Abbott, Ritchie and Pigeon JJ. agreed with the reasons of Martland J.
MARTLAND J.—The facts in this case have been outlined by Cartwright C.J.C. The issue of law before this Court is as to the validity of the principle stated in the reasons of the Court of Appeal of Ontario[13] that a trial judge in a criminal case has a discretion to reject evidence, even of substantial weight, if he considers that its admission would be unjust or unfair to the accused or calculated to bring the administration of justice into disrepute.
I will deal with the latter part of this proposition first. I am not aware of any judicial authority in this country or in England which supports the proposition that a trial judge has a discretion to exclude admissible evidence because, in his opinion, its admission would be calculated to bring the administration of justice into disrepute. The test of admissibility of evidence was stated by Lord Goddard in Kuruma v. The Queen[14], as follows:
In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. The extent to which a discretion exists to disallow evidence if the strict rules of admissibility would operate unfairly against an accused, which was referred to by Lord Goddard in that case, will be considered later in these reasons. The exercise of a discretion of that kind is a part of the function of the court to ensure that the accused has a fair trial. But other than that, in my opinion, under our law, the function of the court is to determine the issue before it, on the evidence admissible in law, and it does not extend to the exclusion of admissible evidence for any other reason.
I turn next to the statement that a trial judge in a criminal case has a discretion to reject evidence, even of substantial weight, if its admission would be unjust or unfair to the accused. The origin of this proposition is to be found in the Kuruma case, cited above. In that case the Judicial Committee of the Privy Council held that illegally obtained evidence was nevertheless legally admissible against an accused, and affirmed the conviction of the accused based upon such evidence. Lord Goddard did, however, say, in the course of his reasons, at p. 204:
No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of evidence would operate unfairly against the accused.
He supported his statement by reference to the judgment of the Privy Council in Noor Mohamed v. The King[15], and that of the House of Lords in Harris v. Director of Public Prosecutions[16], In both those cases the matter in issue was as to the admissibility of evidence of other prior offences, and it was in relation to the use of that kind of evidence that the frequently quoted dictum of Lord Du Parcq, in the Noor Mohamed case, was stated. He had been dealing with a passage from the judgment of Lord Sumner in the case of Thompson v. The King[17] which had recognized the admissibility, in that case, of evidence tending to show the predisposition of the accused to commit an offence of the kind with which he was charged. Lord Sumner said this, at p. 232:
Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.
Lord Du Parcq, in his reasons in the Noor Mohamed case, after referring to this passage, said, at pp. 191 and 192:
Their Lordships respectfully agree with what they conceive to be the spirit and intention of Lord Sumner’s words, and wish to say nothing to detract from their value. On principle, however, and with due regard to subsequent authority, their Lordships think that one qualification of the rule laid down by Lord Sumner must be admitted. An accused person need set up no defence other than a general denial of the crime alleged. The plea of not guilty may be equivalent to saying “Let the prosecution prove its case, if it can,” and having said so much the accused may take refuge in silence. In such a case it may appear (for instance) that the facts and circumstances of the particular offence charged are consistent with innocent intention, whereas further evidence, which incidentally shows that the accused has committed one or more other offences, may tend to prove that they are consistent only with a guilty intent. The prosecution could not be said, in their Lordships’ opinion, to be “crediting the accused with a fancy defence” if they sought to adduce such evidence. It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.
In Harris v. Director of Public Prosecutions, after citing the latter part of the passage just quoted, Lord Simon said, at p. 707:
This second proposition flows from the duty of the judge when trying a charge of crime to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused. If such a case arose, the judge may intimate to the prosecution that evidence of “similar facts” affecting the accused, though admissible, should not be pressed because its probable effect “would be out of proportion to its true evidential value” (per Lord Moulton in Director of Public Prosecutions v. Christie, (1914) 24 Cox C.C. 249, 257). Such an intimation rests entirely within the discretion of the judge.
It is of interest that the phrase “operate unfairly against the accused”, used by Lord Simon in this passage, which clearly is dealing only with the admission of evidence of “similar facts”, is used by Lord Goddard in the Kuruma case.
In Callis v. Gunn[18], the question in issue arose on a case stated by the Oxfordshire Justices as to whether they had properly excluded evidence as to fingerprints. The accused, after being charged with larceny, and while still in custody, was asked to give fingerprints, which he did, without objection. He had not been cautioned that he might refuse, and that, if he did give them, they might be used in evidence against him.
The Court held that the evidence ought to have been admitted, but Lord Parker C.J., after citing the Kuruma case as authority for the proposition that in considering whether evidence is admissible the test is whether it is relevant to the matter in issue, and that, if admissible, the court is not concerned with how the evidence is obtained, went on to say at p. 501:
That is dealing with admissibility in law, and as