Introduction

• Author: David M. Paciocco/Lee Stuesser
• Pages: 1-25

1

CHA PTER 1

INTRODUCTION

1. THE ROLE OF THE LAW OF EVIDENCE

Two kinds of issues get adjudicated in most hearings, is sues of law and

issues of fact. In t he overwhelming m ajority of cases, t he same adjudi-

cator decides both kind s of quest ions, but in jury trials responsibilit y

is divided; judges are the “triers of law” and the juries are the “triers of

fact.” Whether the trier of fact is a jury, or a judge, or an adjudicator or a

panel of adjudicators in an administrative hearing, it is obvious that the

function of the “trier of fact” is critical to achieving a just outcome. The

goal of a ny adjudicative hearing is to resolve the relevant controversy

according to law, but typica lly the facts are in dispute and need to be

resolved correctly before the substantive l aw can be applied correctly.

In Canada, the model for resolving factual controversies is adversar ial.

The parties produce the informat ion or “evidence” that the trier of fact

will use to make its decision. Evidence, therefore, is the data that triers

of fact use in performing t he fact-f‌inding function, a nd it is the role of

the law of evidence to regulate what dat a triers of fact will receive.

It is apparent, then, that the “rules of evidence” do not exist for their

own purpose. Instead they exist to permit facts to be resolved properly so

that the rules of substantive law can be applied. Given this, it is helpful

to def‌ine “evidence” according to its function: evidence of a fact is infor-

mation that tends to prove it. This def‌inition reinforces that the rules of

evidence are mainly facilitative, secondary, or “adjectival,” in the sens e

that they are meant to assist in the correct application of other rules of

THE LAW OF EVIDENCE2

law. As a matter of principle, the rules of ev idence should accommodate

the presentation and consideration of any information that could help

the trier of fact to come to an accurate factual determination.

The animating pri nciple that captures t his sentiment is sometimes

called the “principle of access to evidence,” and it ha s indeed been in-

f‌luential in the development of the rules. Yet the laws of evidence do not

just facilitate f‌indings of fact. They often exist to accomplish important

policy objectives or to pursue principles of their own. For example, the

rule preventing the tribun al from considering some unconstitutionally

obtained evidence exists to ensure th at the trial process is fair and th at

the admin istration of justice rema ins un sullied by police misconduct.

Denying such ev idence to the tr ier of fact can i mpede accurate fact

f‌inding b ecause t he excluded evidence m ay be relevant and probative

of the facts in issue. Yet the evidence is rejected because competing

considerations are g iven priority over the value in coming to a cor rect

disposition of the matter in controversy.

The development of the law of evidence has been the product of

the continuous balancing of competing considerations. Its rules can be

understood only by paying close regard to the interest s at stake. These

rules per form a var iety of functions, controlling what information the

trier of fact can receive, how that information is to be presented, as well

as the use that can be made of it.

2. ADMISSIBILITY AND EXCLUSION

2.1) Generally

Most rules of ev idence deal with the admissibility of evidence. Evi-

dence is “admissible” when it can properly be considered by the trier of

fact. It is “excluded” when it cannot. Since decisions are to be based on

evidence and not speculation, the rules of admissibility will often if not

invariably determ ine the succes s or failure of litigation.1 It is therefore

signif‌icant that the exclusionary f unction i s a d istingui shing charac-

teristic of the common law rules of evidence.2 Most r ules of evidence

identify information that cannot be admitted.

1 For example, in R. v. Grover (2007), 226 C.C.C. (3d) 193 (S.C.C.), an acquittal

based on spec ulation that the accuse d had an innocent purpos e for falsifying a

document was over turned. Indeed, the “i nnocent purpose” theory u sed to justify

the acquitta l was contradicted by the acc used’s own testimony.

2 J.B. Thayer, A Preliminary Treatise on Evide nce at the Common Law, reprint of

1898 ed. (New York: Augustus M. Kelly, 1969) at 264.