Document Type

Article

Publication Date

2013

Source Publication

Queen's Law Journal, Vol. 39, Issue 1 (Fall 2013), pp. 11-40

Abstract

Ron Delisle's concern that lawyers and judges be constantly mindful of the purposes and policies underlying the rules of evidence led him to become one of the pioneers of the principled approach to evidence. This paper seeks to evaluate the extent to which the efforts of Canadian courts to incorporate principles into evidence law have alleviated the problem of the complexity of the traditional rules. Evidentiary rules are complex because they are dense or technical. Evidentiary principles are more capable of flexible and contextual application than evidentiary rules, but principles too are complex in the sense that they are less determinate than rules. Applying principles may be intellectually more demanding than applying rules, but it is ultimately more likely to accord with the underlying values of the law of evidence. The Supreme Court of Canada's pronouncement on similar ffact evidence in R v Handy offers an example of an area where the Court has replaced complex rules with principles that are themselves complex and subtle but that succeed in bringing the law closer to its underlying values. In contrast, in R v Mapara the Court has made the law on hearsay even more complex by retaining the traditional rule-based exceptions to the general exclusionary rule while superimposing the possibility of using the principles of necessity and reliability to challenge the applicability of those exceptions in particular cases. There is still hope, in the author's view, that the principled approach will serve to reduce the complexity of the law of evidence. However, this will not happen unless the courts adopt that approach wholeheartedly, replacing rules with principles rather than layering the latter on top of the former.

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This article is published and copyrighted by the Queen's Law Journal. The article is reprinted in the Osgoode Digital Commons with permission from the publisher.

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