Seeking More Than Truth: A Rationalization of the Principled Exception to the Hearsay Rule

Abstract

Canadian treatment of hearsay evidence has changed significantly in the preceding 20 years. Since 1990, the Supreme Court of Canada has adopted a more flexible approach to hearsay evidence through the development of the "principled exception." In this article, the author examines the purpose of evidence law and trial procedure from three different perspectives: as a tempered "truth-seeking" process, as a medium to communicate the acceptability of verdicts, and as a tool to regulate the epistemic and ethical conduct of decision-makers. He suggests that these three purposes are complementary and examines the principled exception to the hearsay rule using this pluralist approach. Overall, the author concludes that while the principled exception is primarily directed at promoting "truth-seeking," the necessity criterion and the current procedural format are also designed to enhance the communicative role of the trial process and to assist in the deliberation by the adjudicator. As such, the principled approach has been designed to seek more than the "truth."