Constructing narratives: Law’s alternate universe

The law is incorrigibly possessed of a discourse that idealizes truth. From the fact-finder’s (that is, judge or jury) perspective, “getting at the truth is her job,”¹¹ w hile witnesses providing testimonial evidence, for example, are obligated to tell “nothing but the truth.” In practice, however, the law does not contemplate arriving at absolute truth for successful fact-finding. The law’s standard of proof in Canadian civil proceedings, for example, is a more modest preponderance of the evidence or balance of probabilities, which expresses the notion that legal fact-finding can and should proceed on something less than full factual knowledge. The inference is that partial truth may occasionally suffice as adequate truth.

Law maintains a system of rules to ascertain facts. At trial, fact-finders evaluate (1) the admissibility of evidence and (2) the weight or appreciation of evidence. Determining admissibility acts as initial review/acceptance of the evidence for inclusion in the judicial record. Here admitted evidence is understood as reliably representing reality, or having the potential to do so—to an extent that satisfies minimum legal requirements. If, during the maturation of proceedings, the fact-finder ultimately assigns sufficient weight to the evidence, it may be regarded as compelling enough to influence belief in the factual proposition that it represents.¹² Although one may generally know what evidence has been heard and considered—the record of the proceedings will reveal the evidence (and associated narrative) that was admitted—the weight assigned to specific evidence (or the reasoning for its appreciation) may not always be articulated in the record. Indeed, the factors that influence the weight attributed may also be imperceptible to the fact-finder herself. It is not often that we ask why we believe.

Consideration of the explorer record directs us to the concept of reliability, a central question of admissibility. Significantly, the question of “reliability is one which bridges the issue of admissibility and weight.”¹³ Reliability is clearly one of the most important considerations in the assessment of evidence. The term reliability escapes easy definition or description, except by reference to the often-quoted freedom from suspicion, and, by extension, its connection to the idea of plausibility}⁴

The rule against hearsay is fundamental to considerations of reliability. This is the best known of the common law’s evidentiary’ exclusionary' rules.¹’’ Frederick Koch refers to hearsay evidence as “any oral or written statement made by a person who did not testify at trial when such a statement is used to prove the truth of any facts asserted in that statements.”¹⁶ As an example, the explorer record is hearsay because its authors are unavailable to testify in court¹⁷ and their asserted truth, as tendered by litigants, is relevant to a fact at issue. At trial, out-of-court hearsay statements function like formal in-house testimony,¹⁸ except that the declarant is unavailable to the tribunal. The main problem with hearsay and the general need for its prohibition relates to the inability to test the reliability of the statement. If the declarant is unavailable, how can one determine sincerity, memory, perception, as well as narration problems?¹⁹

Modern evidentiary practice has introduced the concept of a principled approach to address hearsay problems. Fact-finders have utilized it extensively in aboriginal rights and title cases to clear a path, at least in theory, for the admission of the ancient aboriginal stories. The principled strategy functions on the notion that “the rules of evidence are not cast in stone nor are they enacted in a vacuum.”²⁰ It eschews formality and favours flexibility, permitting hearsay to be more freely admitted, provided threshold reliability and necessity can be established.²¹ It is a common principle in law that reliability can be established if the fact-finder can infer that the statement is free from suspicion. Expert witnesses, like historians, may be called to help establish such trustworthiness. The principled approach has a different starting point: rather than being focused on exclusion, it generally favours inclusion. Precisely within this inclusive space have imperial and colonial writings proliferated, allowing them to flourish in the legal record.