3. The Limits of Principle and Purpose

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 551-553

Page 551

In celebrating the march to a principled, purposive approach it has always to be borne in mind that there are two components to it, not one: (1) the rejection of technicality, and (2) the ascendancy of principle and purposive analysis. These two components work in tandem. Specifically, we would not have rejected technical rules of proof and left nothing in their place. We rejected them because of the conviction that principled and purposive approaches to admissibility are better than rigid, pigeon-holed outcomes.

This is important to bear in mind because if we read the evolution of the law of evidence solely as a movement away from technicality we will move too far. This thinking can lead to the widespread rejection of rules of admissibility. There are, of course, legal systems internationally that do not use rules of admissibility, or that use them only rarely. We believe that it would impoverish our law to follow suit by jettisoning key rules of proof.

First, many of our rules of exclusion exist to pursue considerations of policy that are extraneous to the correct outcome in the case. While we discourage an overly liberal use of rules of subordinated evidence

Page 552

which, by their nature, undermine the accurate determinations about factual controversies (particularly when operating to the disadvantage of those accused of crimes), the litigation process does not operate in isolation. It operates in a broader world and its practices have implications, including for the privacy of individuals, the proper relationship between the state and the individual in a free and democratic society, and the integrity of the administration of justice. We will always need to control the flow of information in the interests of broader policies and principles.

Second, most of our rules of exclusion, including hearsay, opinion evidence, and character evidence rules, represent the collected wisdom about how best to achieve accurate outcomes. We know from experience that some information, or the improper use of information, can distort outcomes. These rules of non-evidence, if properly applied, therefore contribute to accurate outcomes. If we fail to apply these rules, we accept a poorer body of information.

Third, the assumption that decision-makers can weigh evidence as effectively without the assistance of rules of admissibility is suspect. Rules of admissibility have the virtue of requiring a close consideration, at the front end when...