The Search for a Better Understanding of Discretionary Power in Evidence Law

Queens Law Journal, Vol. 42, 2007

26 Pages Posted: 27 Jul 2006

See all articles by Peter Sankoff

Peter Sankoff

University of Alberta - Faculty of Law


This article is about the use of discretion as a tool to decide upon the admissibility of evidence in a criminal proceeding. Focusing upon the Supreme Court of Canada's decision in R. v. Corbett, [1988] 1 S.C.R. 670, and the admissibility of prior criminal convictions to test a defendant's credibility, it considers the benefits and drawbacks of utilizing a flexible discretion as opposed to a fixed rule. The author concludes that the Courts have paid little attention to what it actually means to exercise discretion and, in particular, have failed to consider whether they intend this tool to simply provide room to deal with unforeseen fact scenarios, or, conversely, to allow judges a free choice to apply any theoretical model they choose to the issue. While discretion and flexibility are necessary components of a sound model of evidentiary admissibility, the current approach unwisely abandons predictability in the name of flexibility, without ensuring that this flexibility is exercised in a principled manner. The results are inconsistency, injustice and a failure to deal with the underlying issue of admissibility in a coherent manner.

Keywords: discretion, Corbett, criminal record, evidence

Suggested Citation

Sankoff, Peter, The Search for a Better Understanding of Discretionary Power in Evidence Law. Available at SSRN:

Peter Sankoff (Contact Author)

University of Alberta - Faculty of Law ( email )

Edmonton, Alberta T6G 2H5

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