Copyright (c) 2002 The Alberta Law Review
Alberta Law Review
ARTICLE: Searching for Truth but Missing the Point
40 Alberta L. Rev. 333
KEITH D. KILBACK * AND MICHAEL D. TOCHOR **
There is no "true." There are merely different ways of perceiving truth.
In recent years and with increasing frequency, the Supreme Court of Canada has referred to a criminal trial as being a search for the truth. The conceptualization of a criminal trial as a search for truth is a shift from older jurisprudence that sees the criminal trial process as an independent testing of facts to the required legal standard in order to determine if facts have been proven beyond a reasonable doubt. In a series of pithy and sometimes casual references, the Supreme Court has presented this notion as a "given" in Canadian jurisprudence. Closer examination of the role of truth seeking in the criminal trial process reveals that such a view was not always so readily accepted, and that the recent introduction of this idea is perhaps not well-founded.
Two main criticisms of the view that a criminal trial is a search for truth can be offered. First, at a fundamental level, it is impossible for a trier of fact to know the truth. At best, a trial judge accepts facts as proven based on the evidence presented, but judges cannot know for certain whether those facts are true, in the literal sense of the word.
Second, the Supreme Court appears to be using the idea to lend support to philosophically diverse policy decisions by simply stating that those decisions are necessary in order to advance the "search for truth." By ...
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