R. v. Corbett and the search for a better understanding of discretionary power in evidence law: A thesis in three judgments

This thesis considers the use of discretion to decide upon 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, it considers the benefits and drawbacks of utilizing discretion as opposed to a fixed rule of admission. The author concludes that courts have paid little attention to what it actually means to "exercise discretion" and have failed to consider whether they intend this tool to simply provide room to deal with unforeseen fact scenarios, or to allow judges "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 without ensuring that discretion is exercised in a principled manner. The results are inconsistency, injustice and a failure to address the underlying issue in a coherent manner.