Supreme Court Judgments

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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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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,

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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

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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.

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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

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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

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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 Lord Goddard C.J. points out, and indeed as is

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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.

In two subsequent cases, R. v. Court[19], and R. v. Payne[20], Lord Parker held that the trial judge should have exercised his discretion to exclude admissible evidence. Both cases involved charges of driving while unfit, through drink. The evidence in issue in each case was that of a doctor who had examined the accused at the police station as to the extent to which the accused was under the influence of drink. The circumstances are described by Lord Parker, in the Payne case, at p. 638, as follows:

In both Court’s case, (1962) Crim. L.R. 697, C.C.A., and this case the defendants were asked when they went to the police station if they were willing to be examined by a doctor, and it was made clear to them in each case that the purpose of that was in order that the doctor should see whether they were suffering from any illness or disability. In both cases the defendants were told it was no part of the doctor’s duty to examine the respective defendants in order to give an opinion as to their unfitness to drive. Those statements to the defendants were made at that time pursuant to a definite policy which was that the doctor called would not examine a defendant in order to ascertain whether he was unfit to drive, but would merely examine him in order to see whether he was suffering from any other illness or physical disability, and, in particular, whether he was fit to leave the police station.

On the other hand, in The Queen v. Murphy[21], Lord MacDermott L.C.J., presiding in the Courts-Martial Appeal Court, while accepting the proposition that a court has a discretion to reject admissible evidence if it might operate unfairly against the accused, held that the Court‑Martial had properly exercised its discretion when, in

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considering a charge of disclosing information useful to the enemy, it admitted the evidence of police officers who had posed as members of a subversive organization to which the accused was suspected of being sympathetic, and, in that manner, had elicited from him the information, the subject of the charge, by asking questions about the security of his barracks.

In King v. The Queen[22], The Privy Council refused to interfere with the discretion of the trial court, which, on a charge of possession of a dangerous drug, had admitted evidence of a search of the person of the accused. A provision of the Jamaican Constitution gave protection to persons against search of persons on property without consent. The relevant statute law did not authorize the search, and the search was effected without furnishing him the opportunity of being searched in front of a justice of the peace, which was his legal right.

I have considered the authorities, previously cited, because they indicate that the proposition of law as to judicial discretion which, at the outset, was stated, in very limited terms, in respect of evidence of similar facts, by Lord Du Parcq in the Noor Mohamed case, i.e.:

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.

(The emphasis is my own.)

has emerged, full blown, into a statement, such as that made by Ashworth J. in Rumping v. Director of Prosecutions[23]:

There is of course ample authority for the proposition that a judge has an overriding discretion to exclude evidence even if such evidence is in law admissible.

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In support of this he cites only the Kuruma case.

This development of the idea of a general discretion to exclude admissible evidence is not warranted by the authority on which it purports to be based. The dictum of Lord Goddard, in the Kuruma case, appears to be founded on Noor Mohamed, and it has, I think, been unduly extended in some of the subsequent cases. It recognized a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused. Even if this statement be accepted, in the way in which it is phrased, the exercise of a discretion by the trial judge 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, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly.

I am in agreement with what was said, in relation to this point, by Davey C.J.B.C. in The Queen v. Sigmund et al.,[24] in the passage cited in the reasons of Cartwright C.J.C.

Lord Goddard’s own view as to the scope of the proposition which he was stating can be determined, to some extent, by his failure to apply it to the rather unusual facts of the Kuruma case. The appellant Kuruma was an African employee of a European farmer in Kenya. On his “day off” he cycled from the farm to his reservation along a route he knew to be regularly patrolled by the Kenya police. He could have reached his home by another route which was not patrolled, but chose not to do so. Regulation 29 of the Emergency Regulations of Kenya stated:

Any police officer of or above the rank of assistant inspector may… with or without assistance and using force if necessary… (b) stop and search…

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any individual, whether in a public place or not, if he suspects that any evidence of the commission of an offence against these regulations is likely to be found on such… individual, and he may seize any evidence so found.

While cycling, the accused was stopped by a police road-block. He dismounted, and was stripped and searched by two constables, both of them below the rank of assistant inspector. Testifying on behalf of the Crown, they reported finding two rounds of ammunition and a pocketknife in the possession of Kuruma. On the strength of this testimony and in accordance with the emergency laws of Kenya (Reg. 8a(1) (b), Emergency Regulations 1952), the accused was sentenced to death for being in unlawful possession of ammunition. He denied having been in possession of either the ammunition or the pocketknife, and based his appeal on the ground that the only evidence against him was the fruit of an unlawful search and ought to have been excluded.

The pocketknife was never presented in evidence. The police claimed that it was returned to the accused after his arrest. The constables also contended that the search and discovery of the ammunition on the person of the accused were witnessed by three other persons. Yet no such witnesses were called by the Crown and the conviction was obtained on the sole testimony of the constables. The accused was not entitled under Kenya law to a jury trial (ss. 258, 259, 318(2) of the Criminal Procedure Code). Instead, his case was heard by a magistrate and three assessors. The magistrate, in reaching his decision, ignored the unanimous advice of the assessors.

If Lord Goddard intended that the discretion which he defined was applicable if the trial judge felt that the proposed evidence had been obtained in an unfair manner, it is difficult to see how he could avoid saying that the discretion should have been exercised in Kuruma’s favour. If, however, he meant that the discretion arose where the admission of evidence, though legally admissible, would operate unfairly, because, as stated in Noor Mohamed, it had trivial probative value, but was

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highly prejudicial, then the course followed in the disposition of the Kuruma case is quite understandable.

In cases such as R. v. Court and R. v. Payne, I think confusion has arisen between “unfairness” in the method of obtaining evidence, and “unfairness” in the actual trial of the accused by reason of its admission. The result of those two cases was, in effect, to render inadmissible evidence which the ratio decidendi of the Kuruma case had held to be admissible. The view which they express would replace the Noor Mohamed test, based on the duty of a trial judge to ensure that the minds of the jury be not prejudiced by evidence of little probative value, but of great prejudicial effect, by the test as to whether evidence, the probative value of which is unimpeachable, was obtained by methods which the trial judge, in his own discretion, considers to be unfair. Exclusion of evidence on this ground has nothing whatever to do with the duty of a trial judge to secure a fair trial for the accused.

The difficulty of achieving any sort of uniformity in the application of the law if a broad discretion of this kind is recognized is clearly illustrated in the cases which I have considered. What is the standard of “unfairness” which excludes the medical opinions in the cases of Court and Payne, in which the accused had been misled as to the purpose of the medical examinations, and yet permits the admission of evidence obtained by an illegal search of the person in the Kuruma case and in the King case, and evidence obtained through deception by agents provocateurs in the Murphy case?

In my opinion, the recognition of a discretion to exclude admissible evidence, beyond the limited scope recognized in the Noor Mohamed case, is not warranted by authority, and would be undesirable. The admission of relevant admissible evidence of probative value should not be prevented, except within the very limited sphere recognized in that case. My view is that the trial judge’s discretion does not extend beyond those limits, and, accordingly, I think, with respect,

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that the definition of that discretion by the Court of Appeal in this case was wrong in law.

I am in agreement with Cartwright C.J.C. and with my brother Judson that, on the issue of the admissibility of the evidence sought to be introduced by the Crown in this case, notwithstanding the exclusion of the confession, the law in Canada is correctly stated by McRuer C.J.H.C. in The King v. St. Lawrence[25]:

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.

Accordingly, I am of the opinion that the learned trial judge erred in law in excluding evidence as to the facts leading up to the finding of the rifle, and in excluding such parts of the confession as were confirmed as true by the discovery of such facts.

I would allow the appeal and direct a new trial.

Fauteux and Abbott JJ. agreed with the reasons of Judson J.

JUDSON J.—I agree with the conclusion of Cartwright C.J.C. that we ought not to overrule Rex v. St. Lawrence[26]. This case reviews the law which has stood since Rex v. Warwickshall[27], to the effect that even if a confession is inadmissible in evidence, nevertheless facts which become known by means of this confession may be proved on behalf of the prosecution. The use that has been made of this principle has usually had to do with the finding of articles connected with the crime. The finding of the articles may be proved even though the confession is inadmissible.

The theory for the rejection of confessions is that if they are obtained under certain conditions, they are untrusworthy. This theory has no appli-

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cation whatever to incontrovertible facts, such as the finding of articles. It is now being suggested that this evidence should be excluded even though it is relevant and admissible and of great probative value on the ground that its reception would operate unfairly against the accused and, according to the Court of Appeal, bring the administration of justice into disrepute. I am not concerned at this stage with 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. There are plenty of dicta to this effect:

Maxwell v. Director of Public Prosecutions[28]; Stirland v. Director of Public Prosecutions[29]; R. v. Cook[30]; Noor Mohamed v. The King[31].

The principle is also stated in 7 C.E.D., 2nd ed., p. 105, that matters of slight probative value may be excluded in the discretion of the judge when likely to cause undue prejudice, unfair surprise or confusion of issues. This principle, I repeat, is not in issue in this appeal. We are concerned here with a matter of great probative value, the finding of the weapon which was used to shoot Donald Comrie in the service station during the course of the holdup.

The dicta which have been quoted from Noor Mohamed v. The King, Kuruma v. The Queen[32], Callis v. Gunn[33], cannot, in my opinion, support the broad exclusionary discretion which was exercised by the trial judge in this case and affirmed and extended by the Court of Appeal.

ln Noor Mohamed, the accused was charged with the murder of his mistress by the administration of potassium cyanide. The evidence excluded related to the death of the accused’s wife two years before, also as a result of potassium cyanide. It was excluded on the principle laid down in Makin v. Attorney General for New South Wales[34], because it plainly tended to show that the accused had been guilty of the murder of his wife two years before and this, for the

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purpose of persuading the jury that he was the kind of person who, two years later, would murder his mistress by the same means. Then followed the statement concerning judicial discretion to exclude evidence of “trifling” weight even though there might be “some tenuous ground for holding it technically admissible.” I do not think that Noor Mohamed is of any assistance in the case before us.

In Kuruma, the accused was charged with the possession of ammunition contrary to the Emergency Regulations of 1952 of Kenya. It was submitted that the evidence of possession was secured as a result of an unlawful search. The evidence was admitted and the principle stated that both in civil and criminal cases the test of the admissibility of evidence was relevancy to the matters in issue. If it is relevant, it is admissible, and the court is not concerned with how it was obtained.

That was the ratio of the case and, in my opinion, it is correct. The statement that the court has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused person is obiter and it cannot be supported by the authorities quoted.

Callis v. Gunn was concerned with the admissibility of fingerprints. The accused had declined to make any statement but he did allow his fingerprints to be taken. He was not warned that he was under no compulsion. At trial the fingerprint evidence was rejected. On appeal it was held that it should have been admitted; that a caution was unnecessary before fingerprints were taken, and that there was nothing that would justify the justices in excluding the evidence. Then followed the statement that there is an over-riding discretion in a trial court to disallow evidence if its admission would operate unfairly against the defendant, and that the discretion should be exercised if the evidence was obtained oppressively or by false representations or a trick, threat or bribe.

If this statement is read as supporting a judicial discretion to exclude any relevant evidence for the reasons given, I would not accept

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it. In this I agree with Davey C.J.B.C., in Regina v. Sigmund et a/[35], when he said:

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.

In this appeal we are clearly faced with the question whether we should make new law and give a trial judge a discretion to exclude relevant and admissible evidence if he thinks that it will operate unfairly against the accused or, according to his opinion, bring the administration of justice into disrepute. The reason given for the unfairness here is that the weapon was discovered partly as a result of an inadmissible confession and partly as a result of the accused going with the police officers and pointing out the place where the weapon was concealed. In my opinion, there is no justification for recognizing the existence of this discretion in these circumstances. This type of evidence has been admissible for almost 200 years. There is no judicial discretion permitting the exclusion of relevant evidence, in this case highly relevant evidence, on the ground of unfairness to the accused.

If this law is to be changed, a simple amendment to the Canada Evidence Act would be sufficient—an amendment to the effect that no fact discovered as a result of an inadmissible confession shall be provable in evidence against an accused person. Such a change should not be effected by turning to a theory of judicial discretion to admit or reject relevant evidence based upon the unsubstantial dicta to which I have referred in these reasons. 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

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unless it is ruled out by some exclusionary rule, if this course is followed, an accused person has had a fair trial. The exclusionary rule applied in this case is one that should not be accepted.

How are the facts relating to the discovery of the weapon to be put before the jury? The minimum in this case is the account of Wray’s trip from Toronto in the company of police officers to a swamp 15 miles west of the scene of the crime and the search for and the discovery of the weapon under the direction of the accused. This was late in the day of June 4, 1968. The police searched until it was dark and found the weapon the next morning.

The next question is whether any part of the inadmissible confession may be put in. The cases and the commentators differ on this point. The choice is between restricting the evidence to proof of the fact of finding on the direction of the accused, or admitting, in addition, that part of the confession that is confirmed by the fact of finding.

The cases, both English and Canadian, and they are many, were all reviewed in Rex v. St. Lawrence[36]. McRuer C.J.H.C. states his conclusion at pp. 228-9 and I would adopt this conclusion:

After the most earnest consideration that I have been able to give the whole matter in the time at my disposal, I have come to the conclusion that my decision must rest on this fundamental principle:

Where the discovery of the fact confirms the confessions—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. Of all the authorities referred to, Taylor most nearly agrees with this view of the law.

It is therefore permissible to prove in this case the facts discovered as a result of the inadmissible confession, but not any accompanying statement which the discovery of the facts does not confirm. Anything done by the accused which indicates that he knew where the articles in question were is admissible to prove the fact that he knew the articles were there when that fact is confirmed by

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the finding of the articles; that is, the knowledge of the accused is a fact, the place where the articles were found is a fact. If he does or says something that indicates his knowledge of where the articles are located, and that is confirmed by the finding of the articles, then the fact of his knowledge is established. On the other hand, it is not admissible to show that the accused said he put the articles where they were found, as the finding of them does not confirm this statement. The finding of them is equally consistent with the accused’s knowledge that some other person may have put them in the place where they were found.

After stating the principle, he then reviewed the evidence in detail and ruled out the admission in the confession that the accused had thrown the object of the search over the fence into the place where it was found. He confined the evidence to the finding.

In the case before us, although there is much to be said for the inference that knowledge of the gun and its broken condition in this obscure hiding place and its disclosure to the police does confirm the confession of the accused that he threw it where it was found, I would defer to the ruling in St. Lawrence and confine the evidence to the fact of finding under the direction of the accused.

I would allow the appeal and direct a new trial.

HALL J. (dissenting)—Save as to what I say later respecting Rex v. St. Lawrence[37], I am in agreement with the reasons of Cartwright C.J.C. and would dismiss the appeal.

It must be conceded that a trial judge has, by law, a measure of discretion to reject admissible evidence under certain circumstances. Lord Du Parcq stated the principle in relation to the facts of that case in Noor Mohamed v. The King[38] as follows:

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 profes-

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sedly 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.

It was developed as to other circumstances in Kuruma v. The Queen[39], where Lord Goddard said:

…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

and in Callis v. Gunn[40], in which Lord Parker said:

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.

and by Spence J. in Colpitts v. The Queen[41]. With respect, I am unable to accept the view that what was said by the distinguished jurists in

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the foregoing quotations was obiter. Each was recognizing in his own way relative to the facts of the particular case a facet of the centuries-old broad principle developed in the administration of British criminal justice that an accused has a constitutional right to a fair trial.

This being so, what standard is available to courts of appeal to measure the degree of discretion to be lawfully exercised in any given case other than that the discretion be exercised judicially? That is 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.

Are courts of appeal going to claim an unlimited discretion to interfere with the discretion lawfully possessed and judicially applied by trial judges and is this Court going to claim an ultimate discretion to weigh and, if necessary, find wanting that measure of discretion which reposes initially in the trial judge or in the Court of Appeal?

Are we to set up some standard by which the discretion of the trial judge is to be weighed on some imaginary scale calibrated to meet the circumstances of each individual case? Surely the established rule is that if the discretion has been judicially exercised by the trial judge, it is not subject to review or to being weighed on appeal. It is a rule of very general application in civil as well as in criminal matters and ought not to be breached because in a particular instance it may have contributed to a result which an appeal court considers undesirable.

Other parts of Wray’s statement were much more damaging to him than the portion relating to the finding of the rifle taken by itself, but the jurisdiction of the learned trial judge to exclude the statement because it was not a voluntary one is unchallengeable. The rifle was admissible in evidence as an exhibit apart altogether from the statement because the ballistic expert testified that it was from that rifle that the bullet which killed Donald Comrie came. No part of the

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statement was, therefore, necessary to identify the rifle as the murder weapon. I express no opinion at this time on the acceptance of St. Lawrence as a definitive statement of the relevant law in Canada. The practice based on St. Lawrence of blotting out or cutting out portions of an accused’s statement and of giving to the jury the statement edited and mutilated in this way is one which this Court in a proper case may wish to review.

SPENCE J. (dissenting)—I have had the opportunity of reading the reasons of Cartwright C.J.C. and also those of Judson J. and Hall J. As did Hall J., I have come to the conclusion that I agree with Cartwright C.J.C. I am of the opinion, however, that I should add some short remarks.

As the Chief Justice pointed out, Aylesworth J.A., in giving judgment for the Court of Appeal for Ontario[42] dismissing the appeal of the Crown to that Court, assigned not only one but a second reason for the exercise of the discretion by the learned trial judge in refusing to permit the evidence as to the accused’s indication of the place where the weapon could be found saying:

In our view, a trial judge has a discretion to reject evidence, even of considerable 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 underlining is my own.)

I am most strongly of the opinion that it is the duty of every judge to guard against bringing the administration of justice into disrepute. That is a duty which lies upon him constantly and that is a duty which he must always keep firmly in mind. The proper discharge of this duty is one which, in the present day of almost riotous disregard for the administration of justice, 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 the accused as to where the weapon

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could be found, as Aylesworth J.A. pointed out, were procured by trickery, duress and improper inducements and they were clearly inadmissible. Moreover, as the Chief Justice of this Court has indicated in his reasons the purpose of exercise of such trickery was stated by the Inspector of the Provincial Police to avoid taking a chance that the accused, as the result of speaking to his lawyer, would not take the police to the place where the gun was found.

Under these circumstances, I am in agreement with the Chief Justice when he characterized the description of the situation by the Court of Appeal as not any overstatement.

I am of the opinion that were the trial judge to have, as he very properly did, excluded as inadmissible the statement of the accused and yet have permitted the Crown to have adduced all the evidence as to the accused’s accompanying the police officers and pointing out to them the place where the weapon had been thrown away, in accordance with the information which he had given to them in the excluding statement, it would not only have brought the administration of justice into disrepute but it would have been a startling disregard of the principle of British criminal law, nemo tenetur seipsum accusare. Surely no authority need be stated to establish that as the most basic principle in our criminal law.

For these reasons, therefore, I also would dismiss the appeal.

Appeal allowed, CARTWRIGHT C.J. and HALL and SPENCE JJ. dissenting.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitor for the respondent: R.J. Carter, Toronto.