A Principled Approach to Relevance: The Cheshire Cat in Canada
INNOVATIONS IN EVIDENCE AND PROOF: INTEGRATING THEORY, RESEARCH & TEACHING, pp. 87-117, Paul Roberts, Mike Redmayne, eds., Oxford: Hart Publishing, 2007
Posted: 19 Mar 2011
Date Written: 2007
Abstract
"What is the Law of Evidence?" was a question asked by William Twining in his book of exploratory essays called Rethinking Evidence. As part of his argument that the exceptions to the principle of free proof had been given an exaggerated importance he used the "realist metaphor" of the Cheshire Cat in Alice in Wonderland:
who keeps appearing and disappearing and fading away, so that sometimes one could see the whole body, sometimes only a head, sometimes only a vague outline and sometimes nothing at all, so that Alice was never sure whether or not he was there or, indeed, whether he existed at all. (Cambridge, Mass: Basil Blackwell Ltd. 1990, 178 at 197.)
This paper addresses the challenges presented by such a Cheshire Cat of legal subject in the Canadian context. In what ways does the discipline of law actually discipline the process of fact determination, in its many different legal contexts? The author discusses the human process of fact determination including the drawing of inferences, the impact of constitutional norms including equality, and the "principled approach" to rules of evidence. Examples include the testing of a claim to be homosexual in a refugee hearing, whether an inference of consent can be drawn from sexual history evidence, and the drawing of inferences from silence.
Keywords: Canada, Law of evidence, Relevance, Inferences
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