By: Lisa Silver
Case Commented On: R v Schneider, 2022 SCC 34 (CanLII)
PDF Version: What Did You Say? Making Sense of the Admissibility of Evidence in R v Schneider
The law of evidence gets a bad rap. Too often, I hear lawyers muse that the rules of evidence are to be learned by rote and applied strictly. Evidence, if you know the rules, is simply a matter of application. There’s no magic, so the naysayers say, when it comes to evidence; it is what is, or it isn’t. The rules cannot change facts, nor can they create them. As a teacher and connoisseur of the law of evidence, I disagree. Evidentiary principles are built on legal and factual relationships that can be complex and intriguing. There is a hidden joy to those rules and principles. Yet, at the same time, evidentiary rules can revel in incongruities and blurry lines. This is why when the Supreme Court of Canada releases a decision on the law of evidence, we rule-lovers (or rule-breakers – perspective is everything when it comes to evidence) sit up and take notice. The most recent evidence decision in R v Schneider, 2022 SCC 34 (CanLII), is one such case offering clarity and opaqueness, laying down principles and applications, creating agreement and dissent, and all in all a package reminiscent of an old-fashioned “whodunnit”. In short, by trying to make sense of those rules, we find them to be much more nuanced, engaging, and personal than we expected. In this blog post, we will take out the old magnifying glass to analyze the Schneider decision to see where the drama lies when the Supreme Court of Canada tries to make sense of the rules surrounding the admissibility of evidence. In doing so, I will be laying down some “rules” or propositions of my own.
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