2. Why a Principled, Purposive Approach Was Wise

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 548-551

Page 548

As is apparent throughout this book, the movement towards a principled and purposive law of evidence was inspired by the failure of technical rules. Technical rules are autocratic about outcomes. They purport to require that when a certain set of facts exist, preordained results occur. The case of Myers v. D.P.P. ¹ has become the classic illustration in validating the wisdom of our recent movement away from technicality towards principle and purpose.

Myers and his associates were stealing cars. They took the vehicle identification numbers off wrecked vehicles of the same make and model, and put them on the stolen vehicles. They then sold the stolen vehicles as cars they had "repaired." The evidence - business records - showed this to be so because each vehicle sold as "repaired" bore the indelible engine block vehicle identification number of a stolen car, as well as non-matching moveable identification plates from damaged vehicles. Yet the House of Lords excluded the business records. They were hearsay - offered to prove the truth of their contents - and at the time no relevant hearsay exception applied.

The decision in Myers did not produce the "right" outcome in this sense - perfectly good evidence was rejected. Yet the decision to enforce the existing technical rules of evidence was not entirely indefensible. Applying the rules of proof regardless of the outcome respects basic ideas about the nature of law and the role of courts. In its classic form, the law values formal justice, which is achieved by treating like cases alike, more than it values particular opinions in specific cases about whether the rules produced the "right" result. This is a corollary of the rule of law, with its central notion that people should be ruled by law rather than by the wills, tastes, or perspectives of other people. In a pure rule of law system, it is expected that the judge can say "It is not my decision. I am simply applying the law." Protecting the integrity of technical rules of law can require judges to apply those rules even when they seem manifestly inappropriate in the case at hand.

This does not mean that perverse outcomes such as the one in Myers were ever celebrated. They were tolerated in the interests of broader considerations. If the law can be moved around to produce outcomes that are intuitively attractive to the judge, the law has been replaced with power. It is also worth remembering that while rules may be imperfect, they...