Lowering the Threshold for Admissibility of Defence Evidence in a Criminal Case
| Author | Edward L. Greenspan, Q.C. |
| Pages | 349-364 |
Lowering
the
Threshold
for
Admissibility
of
Defence
Evidence
in a
Criminal Case
Edward
L.
Greenspan,
Q.C.*
The
thesis
of
this article
is
that
the
only true threshold
for
admissibility
of
evidence tendered
by the
defence
is a
most modest threshold
of
min-
imal
relevance.
I
argue
that,
although this
may
appear
to be a
revolution-
ary
notion
and
contrary
to a
number
of
cases
in
Canada both
before
and
after
the
Charter
of
Rights
and
Freedoms,
this threshold
is
necessary
to
rec-
ognize,
maintain,
and
preserve
the
vital distinction between
the
adver-
sarial positions
of the
Crown
and the
defence
in
criminal matters.
My
discussion begins with
an
analysis
of the
philosophical underpinnings
of
the
adversarial
system,1
and why
that system demands
different
stan-
dards
of
admissibility
of
evidence between defence
and the
Crown.
It
is
often
asserted that
a
trial should
not be a
"sporting
contest";
a
trial
should
be a
quest
for
truth.
I
have
two
types
of
responses
to
those
who
critique
the
adversary system
in
this
way.
One is
that
the
adversary
system
is
indeed
the
best
way we
know
to
find
the
truth.
Lon
Fuller,
legal
philosopher,
was a
leading spokesperson
for
this view.
The
theory
of
adversary justice, which
he
presented,
highlights
the
superiority
of
the
adversary system
as a
system
for
discovering truth. Because
of
this
*
Of
Greenspan, White, Toronto.
I am
indebted
to
Julianna
A.
Greenspan
(of
Greenspan, White)
for her
able
assistance.
1 See
also E.L. Greenspan, Q.C., "The Future Role
of
Defence
Counsel,"
Perspec-
tives
in
Criminal Law: Essays
in
Honour
of
John
LL.J. Edwards
(Aurora,
ON:
Cana-
da Law
Book
Inc., 1985).
349
350
EDWARD
L.
GREENSPAN,
Q.C.
and
because
of the
apolitical nature
of his
theory,
I
call
it the
orthodox
theory
of the
adversary system.
The
other response asserts that truth
is
but one of the
important values
to be
pursued under
the
adversary sys-
tem,
although
not
necessarily
the
most important
one
under
all
circum-
stances. Versions
of
this view
are
shared
by
both supporters
and
critics
of
the
adversary system. Theories
of the
adversary system connected
with this type
of
response emphasize
the
relationship between
the
indi-
vidual
and the
state
in our
society; that
is,
they
are of a
political nature.
I
think
it is
possible
to
reconcile these
two
types
of
responses
—
although
other values
are
important
in the
adversary system,
it is
also
the
best system
for
discovering
the
truth.
And
both
of
these theories
of
the
adversary
system,
in my
opinion,
strongly support
the
application
of
a
markedly lower threshold
of
admissibility
of
evidence
offered
by
the
defence
in a
criminal case.
Lon
Fuller
was a
thoughtful
and
articulate proponent
of the
view
that
the
integrity
of the
adjudicative
process
depends
upon
the
adver-
sary
presentation
of
issues
before
a
neutral tribunal
and
thus,
on the
par-
ticipation
of
partisan advocates.
The
"fight" theory, Fuller might have
said,
is the
"truth"
theory.
The
separation
of
functions
is key to
"the phi-
losophy
of
adjudication that
is
expressed
in
'the
adversary
system'."2
It is
only
from
the
"fight"
to
assert competing versions
of the
facts
that
the
true
facts
can
emerge.
The
phoenix only emerges
after
there
have been ashes.
The
fight
is
essential
to the
search
for the
truth.
In the
following
passage,
Lon
Fuller explains
the
adversary process
and the
function
of the
advocate
as
follows:
The
judge
and
jury
must,
then,
be
excluded
from
any
partisan role.
At
the
same time,
a
fair
trial requires that each side
of the
controversy
be
carefully
considered
and be
given
its
full
weight
and
value.
But
before
a
judge
can
gauge
the
full
force
of an
argument,
it
must
be
presented
to him
with partisan zeal
by one not
subject
to the
restraints
of
judicial
office.
The
judge cannot know
how
strong
an
argument
is
until
he has
heard
it
from
the
lips
of one who has
dedicated
all the
powers
of his
mind
to its
formulation. This
is the
function
of the
advocate.
His
task
is
not to
decide
but to
persuade.
He is not
expected
to
present
the
case
in a
colorless
and
detached
manner,
but in
such
a way
that
it
will
appear
in
that aspect most
favorable
to his
client.
He is not
like
a
jew-
eler
who
slowly turns
a
diamond
in the
light
so
that each
of its
facets
may
in
turn
be
revealed. Instead
the
advocate holds
the
jewel
steadily,
L.L.
Fuller,
"The
Adversary
System,"
in
H.J.
Berman,
ed.,
Talks
on
American
Law
(New
York:
Vintage
Books,
1961)
30.
To continue reading
Request your trial