Abstract
In R. v. J.J., the Supreme Court of Canada upheld the new Criminal Code admissibility rules for the complainant’s private records held by the accused and the new procedural regime governing admissibility of private records and evidence of the complainant’s other sexual activity. The Court considered claims that these provisions violated section 7 and section 11(c) and 11(d) of the Canadian Charter of Rights and Freedom, and a six-member majority rejected all these claims. This paper analyzes a key theme in the majority judgment: discretion. The majority emphasized that one reason the new regime complies with the Charter is that it grants judges the evidentiary discretion to admit significant defence evidence and the procedural discretion to adjust procedures to ensure fairness on a case-by-case basis. This analysis highlights the majority’s reliance on judicial discretion and reveals some troubling features of that reliance. The majority’s appeal to evidentiary discretion worryingly downplays the Charter-based requirement that the balancing of prejudicial effect against probative value be weighted in favour of admitting relevant defence evidence. On the procedural side, the majority problematically grants trial judges broad discretion over procedures without providing a principled framework for its exercise.
Citation Information
Dufraimont, Lisa.
"R. v. J.J., Judicial Discretion and the Charter."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
115.
(2024).
DOI: https://doi.org/10.60082/2563-8505.1455
https://digitalcommons.osgoode.yorku.ca/sclr/vol115/iss1/13
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