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Report No. 94

6.2. Canadian case of 1971.-

However, in 1971 there came an important pronouncement of the Supreme Court of Canada which seems to limit the discretion very narrowly, while not abolishing it altogether. In the Canadian case of 1971, the accused had been acquitted upon a verdict of murder by the trial judge (in a trial held with jury). The appeal against acquittal filed by the Crown to the Court of Appeal for Ontario had also been dismissed.1 This dismissal was challenged by the Crown in its appeal before the Supreme Court of Canada. The main question involved was as to the validity of the principle stated in the reason of the Court of Appeal of Ontario, that a trial judge in a criminal case has a discretion to reject evidence, even of substantial weight, if the trial judge considered that the admission of the evidence would be unjust or unfair to the accused. By a majority the Supreme Court of Canada allowed the appeal of the Crown.

The alleged illegal evidence in this case was a confession of the accused which had led to the discovery of incriminating facts (the finding of the rifle with which the murder was committed). After a review of English and Canadian decisions, Mr. Justice Martland, speaking for the majority of the Supreme Court of Canada, held that the recognition of a discretion to exclude admissible evidence, beyond the limited scope recognised in a Privy Council case of 1949,2 was not warranted by authority and would be undesirable. He expressly disagreed with the observations of Lord Goddard, Lord Chief Justice,3 in the English case of 1955, to the effect that "the judge had always a discretion to disallow evidence if the strict rules of evidence would operate unfairly against the accused." He pointed out that the English decisions pronounced after 1955 had all relied on the dictum of Lord Goddard, which itself was (in his view) not warranted by authority.

1. Queen v. Wray, 1971 SCR 272 (Canada).

2. Noor Mohammed v. King, 1949 AC 181: (1949) 1 AB ER 510 (PC).

3. Kuruma v. Queen, 1955 AC 197 (PC).

Evidence Obtained Illegally or Improperly - Proposed Section 166a of the Indian Evidence Act, 1872 Back

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