C H A P T E R 1 Introduction 1.

1. The Role of the Law of Evidence Few cases ultimately turn on disagreements about the law and what it requires. Most cases come down to disputes about facts. Typically, the parties disagree over what happened. As a result, most cases turn on evidence, which, of course, is the data factual decision-makers(referred to as triers of fact) use when resolving factual controversies. This is true whether the trier of fact is an adjudicator in an administrative hearing, a judge in a judge alone trial, or the jury in a jury trial. The law of evidence is therefore crucial. It determines what data can be considered, how it can be proved, and the use to which it can be put. If its rules prevent data from being proved or used by the trier of fact, the law of evidence can prevent a litigant from winning. There is no sense having a contract, for example, if the party you are trying to bind denies you have a contract and you cannot prove that you do. You will not enjoy the contract because you do not have the evidence necessary to trigger the law you want to rely upon. The gateway to the application of law is therefore evidence, and the law of evidence is the key that opens that gateway. We make this point not only to punctuate the importance of the law of evidence. This point also demonstrates that the law of evidence does not exist for its own sake. The law of evidence exists to provide a process for gaining access to the benefits provided by substantive rules. Its role is therefore facilitative, secondary or adjectival it is meant to

2 The Law of Evidence serve the application of the substantive law. To assist in demonstrating this it is helpful to introduce the three kinds of evidentiary rules that serve the substantive law, rules of process, rules of admissibility, and rules of reasoning. The operation of these rules is determined by the presiding judicial official (referred to as the trier of law), either the adjudicator in an administrative hearing, or the judge in a judge alone or jury trial.

. 1.1)Rules of Process Evidence laws rules of process serve the substantive law by outlining how evidence is presented to triers of fact. Those rules provide procedures designed to enhance the prospects that witnesses will tell the truth, such as the promise to tell the truth, the oath, and the affirmation. And they describe how information is to be communicated to the court. The law of evidence, therefore, controls the manner in which questions are posed, the way exhibits are presented, and the conduct of in-court demonstrations. 1.2)Rules of Admissibility

Where the law of evidence plays its most controversial role is in determining admissibility in identifying what information triers of fact are allowed to consider. Ideally, the rules of admissibility should be generous. Given its role in serving the application of the substantive law, the law of evidence should ideally enable triers of fact to have orderly access to any information that could help them make an accurate determination about whether the substantive law applies. This basic principle of access to evidence is well recognized. In R. v. Jarvis the Supreme Court of Canada elevated it to a constitutional level in criminal cases, referring to the principle of fundamental justice that relevant evidence should be available to the [trier of fact] in the search for the truth. 1 This principle is not, however, pursued single-mindedly. The rules of evidence frequently impede access to information. For example, the rule of solicitor-client privilege prevents lawyers from testifying about what their clients have said, even though solicitor-client conversations may produce the most frank and complete account of the clients information. The law of evidence has judged that a competing policy protecting the confidentiality of solicitor-client communications so that clients can be candid and secure proper legal 1 [2002] 3 S.C.R. 757. advice relevant to their actual situation is generally more important than the principle of access to evidence. Many rules of evidence exclude information from consideration entirely, in this way. Other rules of evidence rules of restricted admissibility allow information to be considered but purport to impose limits on the use that can be made of that information even where logically that information may have a range of possible uses. This is achieved by requiring triers of fact to avoid using restricted evidence for improper purposes in their decisions. If they do, they will have erred in law. In jury trials where evidence has been admitted for restricted purposes the judge must provide limiting instructions regarding the permissible inferences that may be drawn from the evidence. 2 The hearsay rule is an example of a rule of restricted admissibility. It does not prohibit the admissibility of everything that has been said prior to court. It simply holds that ordinarily courts must not treat what has been said out of court as though it is the equivalent of in-court testimony. In other words, courts should not use out-of-court statements as a narrative account of what happened as proof of the truth of its contents. On the other hand, if those out-of-court statements are relevant for other purposes they can be admitted and used for those limited purposes. For example, it is permissible to use an out-of-court statement made by a testifying witness to show that, in their current testimony, the witness has now changed their story from what they said before. The prior statement can be used to prove the contradiction, but not as proof of the facts it asserts. Most exclusionary rules work this way. They do not bar a particular kind of information. Instead, they restrict the uses to which information can be put when it is admitted. We find it helpful in instructing students of the law of evidence to suggest that there are three categories that can assist in understanding why the law of evidence excludes evidence or restricts admissibility rules of practical exclusion, rules of

subordinated evidence, and rules of non-evidence. Rules of practical exclusion reject evidence in order to encourage trial efficiency. There are rules, for example, limiting the number of expert witnesses that can be called, absent special permission to call more. Rules of subordinated evidence exclude data from consideration because of competing considerations of policy or principle. Solicitor-client privilege, introduced above in this chapter, is an example. Another example is the rule that excludes some unconstitutionally obtained Rules of non-evidence exclude information that will not help the trier of fact information that is not really evidence at all, hence the name non-evidence. Irrelevant information is an obvious example of nonevidence. Other rules of non-evidence are more subtle. They exclude information that seems helpful on its face but which may in fact be unhelpful because it can distort the truth. The hearsay rule, introduced above, is an example. Experience shows that we typically know too little to judge rationally the accuracy of a speakers information if the speaker is not present in court to answer questions about their honesty, their opportunity to observe, their memory, or what precisely they meant to communicate. A hearsay statement that may seem tremendously useful on its face will be dangerous to act upon without more information from the person who made that hearsay statement. The interesting thing about rules of non-evidence is that, despite the common impression that the rules of evidence tend to exclude useful information, these rules of exclusion are meant to improve the accuracy accuracy of fact-finding. These three categories of exclusionary rule are not, of course, airtight. The objectives achieved by many rules fall into more than one of these categories. The exclusion of irrelevant evidence, for example, occurs not only because it is non-evidence, but also because excluding irrelevant evidence serves the needs of practical exclusion by making trials more efficient. Even though the three categories of exclusion are imperfect, they are useful in answering the most important question in understanding the rules of exclusion why. If lawyers do not understand why a rule of exclusion exists they will not use it properly. Only common law systems like our own make heavy use of rules of admissibility. Most legal systems have few such rules. They trust triers of fact to sort through the information, choose what is useful, and give it the weight or importance it deserves. The difference in approach is not only a matter of philosophical disagreement about how best to determine the truth. It is an inevitable consequence of the disparate processes that are employed. Non-common law systems tend to use inquisitorial practices in which triers of fact or their assistants participate actively in finding the data for decision-making. These systems tend not to use the contained, oral hearings employed by common law systems to gather information. In inquisitorial systems decisions are often made based on court files that will include transcripts or summaries of earlier witness interviews. As a result, inquisitorial procedures tend not to be conducive to exclusion, which is much easier to achieve in a contained oral hearing with a presiding official where the presentation and content of information can be controlled. The exclu-sionary function is therefore one of the distinguishing characteristics of common law systems. 3 1.3)Rules of Reasoning Just because evidence has been admitted does not mean it will influence the outcome. The trier of fact may not trust the admitted evidence. The witness who

delivers it may not be believable, or the evidence may not conform to common sense, or may conflict with other more compelling proof. Often, by the end of the case, the evidence proves to be unimportant even if it is believed. There are therefore two stages at which evidence is evaluated: (1) the admissibility stage where it is evaluated for compliance with rules of admissibility, and (2) the deliberation stage where the trier of fact makes the ultimate decision in the case by weighing the evidence and applying its finding to the relevant rules of substantive law. The law of evidence does have some rules of reasoning to assist during this deliberation stage. There are rules, for example, that describe the standards required for success by the competing parties by establishing burdens and standards of proof. There is also case law on the evaluation of the testimony of children, or the demeanour of witnesses. And there are rules that warn triers of fact that certain kinds of proof will often be dangerous to rely upon. Rules of reasoning, however, comprise the smallest category of evidentiary rules. This is because the law of evidence is about facts, and facts are infinitely variable. The significance that facts have as proof varies from case to case and is often the subject of reasonable debate. For example, it is generally believed that convicted criminals tend to be less trustworthy than others. The law therefore permits the criminal record of a witness to be proved so that the trier of fact knows who they are being asked to believe. In spite of the laws assumption that his information is generally helpful, some people, when judging testimony, will think the past criminal record of the witness has little impact on whether the witness is telling the truth in a particular case. And not all criminal convictions are equal. Convictions can be imposed in a variety of circumstances and vary in nature. Some are for minor offences that say little about honesty. Rather than preordain the effect that a criminal conviction will have on the credibility of witnesses by developing a rule, the law of evidence therefore leaves that up to the good 3 J.B. Thayer, A Preliminary Treatise on Evidence at the Common Law, reprint of 1898 ed. (New York: Augustus M. Kelly, 1969) sense of individual triers of fact to evaluate in context. This is how the law of evidence generally behaves. Since the evaluation of evidence is more a matter of common sense than of law, and since different people tend to see the world differently, the law of evidence tends to stay out. The weight triers of fact choose to give to items of evidence is generally a matter of discretion. The lawyers role in all of this is to use the opportunity for argument at the close of the case to point out the strengths and contribution of its own evidence, and the problems and perils of evidence presented by opposing lawyers. A firm understanding of the law of evidence can assist immeasurably in making good legal argument on these points. This is because the careful evaluation of factual data turns on concepts commonly encountered in the law of evidence, things such as weight, probative value, credibility, and reliability. The exclusionary rules of non-evidence can also assist in planning legal argument for they work to identify evidence that may seem to be helpful but which on critical examination is not; even when evidence passes the threshold of admissibility of these rules, it will still suffer to a degree from the

underlying problems those exclusionary rules are meant to address. Triers of fact should be alerted to these problems. Understanding why evidence is excluded therefore assists in crafting cogent legal arguments about what use should be made of the evidence that has been admitted. 1.4)The Challenge of the Law of Evidence The rules of evidence designed to achieve these various roles tend to be highly conceptual. They often require subtle but crucial distinctions to be made between kinds of reasoning or inferences. This makes them difficult to apply. So, too, does the mission of the law of evidence in regulating the proof of facts. Since facts are infinitely variable, the rules of evidence aim at moving targets and always require the exercise of judgment to apply. The rules are therefore as complex in design and as difficult to apply as they are important. Master them and enjoy a tremendous litigation advantage. Misunderstand them at your peril and the peril of your clients. 2. The Sources of Evidence Law Most of the law of evidence in Canada consists of common law rules. Each jurisdiction within Canada, including Canada itself, has an evi-