Do We Care about the Truth? Real Truth v. Legal Truth

• Author: Hon. Michel Proulx
• Pages: 239-252

Do

We

Care

about

the

Truth?

Real

Truth

v.

Legal

Truth

THE

HON.

MICHEL

PROULX,

QC

1988

Throughout

the

centuries,

the

merits

and

weaknesses

of the

adversarial sys-

tem

have been debated. Though

it has

been said that

the

purpose

of the

trial

is

the

pursuit

of

truth,

one of the

central elements

of the

debate

is

whether

the

trial-the

adversarial

arena-is

the

best

way to

reveal

the

truth.

As Mr.

Justice

Haines

of the

Ontario

Supreme Court once said, "Truth

may be

only inci-

dental

to a

point.

The

trial

is not a

faithful

reconstruction

of the

evidence

as

if

recorded

on a

giant television screen."

For

this reason,

we

often

distinguish

the

legal truth from

the

real truth.

The

adversarial system

may not get to the

truth

for a

variety

of

reasons.

Among them

are the

rules

of

exclusion

of

evidence,

the

imperfections

of the

witnesses,

the

skill

(or

lack

of it) of the

lawyers involved,

and the

judge's mis-

takes.

Any or all of

these elements

can

impede

the

legal system's pursuit

of

truth. Although

the

role played

by the

defence lawyer

in the

pursuit

of

truth

is

viewed with much scepticism

by the

public,

the

issue

is

rarely discussed

within

the

profession

itself.

Therefore,

I

decided

to

address this question here:

Does

the

defence lawyer care about

the

truth?

We

have already

had a

con-

vincing argument from Eddie Greenspan that

it is

wrong

for

counsel

to

pass

moral judgment

on a

client,

and

that

the

client's legal guilt should

be

deter-

mined

by the

court. While Greenspan's point

is

well taken

and

remains

a

basic

rule

of

ethics,

it can

also

be

argued that

a

defence lawyer

has no

obligation

to

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