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• W2078105959 abstract "Justice Frank Iacobucci and the Revolution in the Common Law of Evidence† Hamish Stewart Faculty of Law, University of Toronto. I Introduction The Supreme Court of Canada's approach to the law of evidence since 1990 has rightly been described as 'revolutionary.'1 Justice Frank Iacobucci was appointed to the Supreme Court in 1991, near the beginning of this critical period. His background did not suggest that he would likely make a major contribution to the development of the law of evidence: he had never practised as a litigator or sat as a trial judge, and the law of evidence was not one of his areas of scholarship. But, notwithstanding this background, Justice Iacobucci was a central and enthusiastic participant in the common law evidence revolution, writing for the majority in several critical cases and usually concurring with the revolutionary approaches proposed by other members of the Court. With one partial exception, his decisions concerning the common law of evidence have made a salutary contribution to the evidence revolution. II Salituro: An Early Example of Principled Reasoning The main focus of this article will be Justice Iacobucci's contributions to the common law rules concerning the admission and exclusion of evidence; however, before turning to those contributions, it is worth pausing to note how one of his earliest decisions at the Supreme Court of Canada, concerning the competence of a witness rather than admissibility as such, demonstrates his attitude towards the common law of evidence. At common law, neither the accused person nor his or her spouse was a competent witness for either the prosecution or the defence. There is a [End Page 479] common law exception for offences involving the health, liberty, or person of the spouse.2 By virtue of statute, the accused's spouse is now a competent witness for the defence and, in certain cases, for the prosecution as well.3 But in the great majority of criminal prosecutions, the accused's spouse remains an incompetent witness for the prosecution. She or he is prohibited from testifying for the Crown, even if she or he wishes to do so. In Salituro,4 the accused was convicted of defrauding his wife, from whom he was estranged at the time of the trial. The wife's testimony was essential to the Crown's case. On appeal, the accused argued that his wife was an incompetent witness and should not have been permitted to testify. The argument appeared sound: the fraud offence did not fit into any of the common law or statutory exceptions to the rule of spousal incompetency. Justice Iacobucci, speaking for a unanimous Supreme Court, created a new exception to the spousal incompetency rule for an irreconcilably separated spouse. The new exception was firmly rooted in the rationale for the rule and in Charter values. Justice Iacobucci considered the historical rationales for the spousal incompetency rule and reasoned that only the policy of preserving marital harmony could be an acceptable rationale in the Charter era.5 Creating a new exception for an irreconcilably separated spouse would be consistent with this rationale.6 Accordingly, the accused's estranged wife was a competent witness, and the accused's conviction was upheld. The logic of the argument may have suggested that the spousal incompetency rule should be abrogated altogether, as it was arguably an archaic remnant of the legal view that married women have no independent legal personality; but Justice Iacobucci held that such a far-reaching reform was a legislative rather than a judicial task.7 The decision in Salituro illustrates the principal virtue of Justice Iacobucci's approach to problems in the law of evidence: his willingness to subject a common law rule of evidence to scrutiny in light of the underlying reasons for the rule and of contemporary legal values. Justice Iacobucci, together with the other members of the Supreme Court, made extensive use of this approach in revolutionizing the common law of evidence..." @default.
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• W2078105959 date "2007-01-01" @default.
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• W2078105959 title "Justice Frank Iacobucci and the Revolution in the Common Law of Evidence" @default.
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• W2078105959 doi "https://doi.org/10.1353/tlj.2007.0021" @default.
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