Preface

• Author: Matthew Gourlay/Brock Jones/Jill D. Makepeace/Glen Crisp/Renee Pomerance
• Pages: 31-32

PREFACE

We have titled this book Modern Criminal Evidence. Of course, much of evidence law

is not particularly mode rn, rooted as it is in age-old principles. Yet change is inevitable.

Every legal dispute takes place within a so cial context. To quote Aharon Barak: “Just as

change in social reality is the l aw of life, responsiveness to change in social rea lity is

the life of the law.”1 It could be said that legal rulings are not def initive truths but rather

working hypotheses set to expire or mutate in the fa ce of new realities.

From time to time, we have seen broad conceptual shift s in our approach to evidence.

One notable example is the hea rsay revolution which was triggered by the out-of-court

statement of a small child alleging a sexua l assault2 and has burgeoned into a broad and

complex framework that is still evolving . Other areas of the law are stuck in anachronistic

ruts. The process of reform requires t hat we maneuver the tension between the certaint y

of rules and the flexibility of p rinciples. We must move with caution to avoid throwing

the babies out with the bathwater. Change emerges in in cremental segments. Even the

drama of the hearsay revolution unfolde d one step—or one case—at a time.

While usually slow and steady, change can occur at a more rap id pace. Much of this

book was written during the f irst 11 months of the worldwide COVID-19 pandem ic.

We learned to “pivot” to accommodate this unprecedented and d eadly phenomenon.

Across Canada and beyond, jus tice systems adapted procedures to reduce exposure

to health risks. The transition to technolo gy—long overdue before the pandemic—was

implemented in record time, proof that neces sity is often the mother of invention. It

should not take a pandemic to inspire creative so lutions to legal problems or the chan-

nelling of resources into justice initiatives. We can hop e that the momentum of positive

change, albeit in response to highly negative exigencies, will continue; that it will not

wither through a poverty of im agination or an unhealthy attachment to the status quo.

Whatever change lies on the horizon, we can ex pect that some precepts will endure.

Any evidentiary riddle is su bject to the overarching concepts of probative value and

prejudicial effect. Thi s is the ultimate litmus test for admissibility. Does admission of the

evidence do more good than har m or more harm than good? Does the evidence—and

the principle that governs its use—contrib ute to the just resolution of disputes?

Law is not an end in itself. It is, funda mentally, a tool of justice. Even Professor Wig-

more, author of the famed mamm oth, multi-volume treatise of rules, recognized that

rules alone will not suffice. In th e preface to his third edition, penned in 1946, he wrote

the following, remarkably, using capital let ters for emphasis: “ALL THE RULES IN THE

WORLD WILL NOT GET US SUBSTANTIAL JUS TICE IF THE JUDGES AND THE L AW-

YERS HAVE NOT THE CORRECT LIVING MORAL ATTITUDE TOWARDS SUBSTANTIAL

1 The Judge in a De mocracy (Princeton, NJ: Pri nceton University Press , 2006) at 18.

2 R v Khan, [1990] 2 SCR 531, 1990 CanL II 77.

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