4. The Protection of Principle and Purpose

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 554-554

Page 554

As has been repeatedly pointed out, most admissibility determinations are now "discretionary." This necessarily means that judges exercise some choice in admitting evidence. As a result, at the appeal level "deference" has become the buzzword. In virtually every major area of admissibility, including character evidence, hearsay, opinion evidence, the operation of the exclusionary discretion, the exclusion of illegally obtained evidence, and the administration of warnings about dangerous evidence, appellate courts affirm that they will give significant deference to the decisions made by trial judges. Deference has to exist, but it must be applied properly. It is applied properly by bearing in mind the difference between strong form discretion and the exercise of judgment. Strong form discretion permits decision-makers to do what they want. It is inconsistent with law. This is not what discretion means. By contrast, the exercise of judgment recognizes that reasonable people applying the proper principles of evaluation may come to different decisions. It is only within this range that...