3. Trends in the Law of Evidence
| Author | David M. Paciocco - Lee Stuesser |
| Profession | Justice of the Ontario Court of Justice - Professor of Law, Bond University |
| Pages | 7-12 |
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Three related trends have marked the progress of evidence law in Canada over the last two decades: (1) the move to a contextual or "purposive" approach, (2) the development of the overarching exclusionary discretion, and (3) increased admissibility. Since these trends define
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the current culture of the law of evidence their early description serves the introductory discussion that follows.
In the past, the law prized certainty. It gave priority to providing clear, predictable rules that would apply equally in all cases. The doctrine of precedent, in turn, ensured that once a rule was recognized, it would become entrenched in the law. As a result, evidentiary rules purporting to provide clear answers proliferated. For example, there were dozens of rules that operated as exceptions to the hearsay rule; if a litigant could fit the out-of-court statement into a pre-existing exception, the out-of-court statement could be used for a hearsay purpose, but not otherwise.
This kind of approach provided a veneer of technical precision and predictability to the process of proof but there were problems. The rules of evidence that were produced were invariably overinclusive or underinclusive. In other words, they either failed to catch those situations they were created to catch, or they caught situations they were not meant to catch. This is in part because the human capacity to design perfect rules - rules that will invariably and only accomplish their underlying goal - is limited. This is true of all rules, including substantive rules. Yet the problem of imperfect rules has always been particularly acute for rules of proof. This is because the law of evidence is about facts and, as indicated, facts are infinitely variable, compounding the challenge of perfect design. The law of evidence therefore works best if a purposive and flexible approach is taken.
The law of evidence was already moving to more flexible standards as part of a general trend to make the law more functional and less technical. In Canada, however, two particular social developments accelerated and amplified the shift to a "purposive" or principled, context-based approach. The sexual offence awakening and the Canadian Charter of Rights and Freedoms each showed the underperformance of the law of evidence to be intolerable and led to a wholesale change in the way the rules of proof operate.
In the 1980s the prevalence of sexual offences, long under the social radar, was exposed, particularly for child victims. Meanwhile feminists and law reformers were showing how inhospitable the rules of evidence were to the prosecution of these offences. Many of these rules, including rules of evaluation that called for corroboration (strict technical confirmation) of the testimony of sexual assault complainants and children, were intended to protect accused persons against
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false sexual offence allegations. But these rules rested in stereotype and dull assumptions about women, children, and sexual offences. Appropriately, they have now been replaced by practices designed to repel stereotype and to focus on the merits of the individual case.
The increased sensitivity to sexual victimization also played a leading role in tearing...
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