Introduction

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 1-31

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.