Introduction

AuthorDavid M. Paciocco/Lee Stuesser/Palma Paciocco
Pages1-31
1
CHAPTER 1
INTRODUCTION
1. THE ROLE OF THE LAW OF EVIDENCE
Few cases ultimately turn on disagreements about the law and what it
requires. Most cases come down to disputes about facts. Typically, the
parties disagree over what happened. As a result, most cases turn on
“evidence,” which, of course, is the data factual decision-makers (referred
to as “triers of fact”) use when resolving factual controversies. This is
true whether the trier of fact is an adjudicator in an administrative
hearing, a judge in a “judge-alone” trial, or a jury in a jury trial. In the
trial process, it is the responsibility of the legally trained adjudicator —
the “trier of law” to administer the law of evidence by determining
what information the trier of fact can consider, and ensuring that the
trier of fact (whether the trial judge or adjudicator themselves, or the jur y
in a jury tri al) uses that evidence only in ways permitted by law. If triers
of law do not control the evidence in a case appropriately, they will have
erred in law.1
The law of evidence is therefore crucial. It determines the informa-
tion that may be presented for consideration during the hearing, how
that information may be proved, and the use to which it may be put in
deciding the case. Gener ally, evidence that does not clear these hurd les
may not be considered, since fairness demands that cases be decided
1 R v Smith (2011), 274 CCC (3d) 34 (Ont CA) at para 59.
THE LAW OF EVIDENCE2
based upon the information received in open court.2 In R v CDH,3for
example, the trial judge improperly conducted his own out-of-court
research by examining a sexual offence complainant’s social media
page. Not only was it unfair for the trial judge to consider information
not shared with the par ties and the public in open court but also, under
the rules of evidence, the information he found was inadmissible char-
acter evidence about a sexual assault complainant and should never
have been considered. The rule of evidence that would have excluded
the evidence consulted by the trial judge exists because the kind of
information considered is more apt to mislead than instruct.
The rules of evidence can therefore prevent triers of fact from con-
sidering data. Although most rules of evidence, like the character evi-
dence rule implicated in R v CDH, exist to enhance the accuracy of the
fact-finding process, those r ules sometimes exclude even relevant infor-
mation. By doing so, the rules of evidence can prevent a litigant from
winning and enjoying the benefit of the substantive rules of law. There
is no sense having a contract, for example, if the party you are trying
to bind denies you have a contract and you cannot prove that you do
because the evidence you rely on to prove the contract is excluded by
the rules of evidence. The gateway to the application of law is therefore
evidence, and the law of evidence is the key that opens that gateway.
We make this point not only to punctuate the import ance of the law
of evidence. This point also demonstrate s that the law of evidence does
not exist for its own sake. The law of evidence exists to provide a pro-
cess for gaining access to t he benefits provided by substantive rules. Its
role is therefore facilitative, secondary, or “adjectival” it is meant to
serve the application of the substantive law. To assist in demonstrating
this, it is helpful to introduce the three kinds of evidentiary rules that
serve the substantive law: “rules of process,” “rules of admissibility,
and “rules of reasoning.” The operation of these rules is determined by
the presiding judicial official (referred to as the “trier of law”), either
the adjudicator in an administrative hearing, or the judge in a “judge-
alone” or jury trial.
2 There are exception s. The doctrine of judicial notice p ermits some uncontro-
versial and w idely known information to b e considered, even when not proved
in court. See Ch apter 9, Section 9, “Judicial Notice.” The parties may al so admit
facts with out the need for proof, and there are statutor y provisions of limited
application that pr esume some facts to be true . See, e.g., Danyluk v Ainsworth
Technologies Inc, [2001] 2 SCR 460.
3 R v CDH,2015 ONCA 102.

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT