AuthorDavid M. Paciocco/Lee Stuesser/Palma Paciocco
Few cases ultimately turn on disagreements about the law and what it
requires. Most cases come down to disputes about facts. Typically, the
parties di sagree over what happened. As a result, most ca ses 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 i n a jury trial. In t he
trial proces s, it is the responsibility of the legally trained adjudicator —
the “trier of law” to administer the law of evidence by determi ning
what information the tr ier 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 determi nes 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 fairne ss demands that ca ses be decided
1 R v Smith (2011), 274 CCC (3d) 34 (Ont CA) at para 59.
based upon the informat ion received in open court.2 In R v CDH,3 for
example, the tria l judge improperly conducted his own out-of-court
research by exa mining 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 in formation he found was inadmissible cha r-
acter evidence about a sexual ass ault complainant and should never
have been considered. The rule of evidence that would have excluded
the evidence consulted by the tr ial 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 f rom con-
sidering data. Although most rules of evidence, like the character ev i-
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 havi ng a contract, for example, if the party you are tr ying
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 exi sts 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 substant ive law. To assist in demonstrating
this, it is helpful to introduce the three kinds of evidentiary rules that
serve the substant ive law: “rules of process,” “rules of admissibility,
and “rules of reasoni ng.” The operation of these rules is deter mined by
the presiding judicial off icial (referred to as the “trier of law”), either
the adjudicator in an administ rative 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.

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