"First Rate" Fact Finding: Reasonable Inferences in Criminal Trials: A Lecture in Honour of Ivan Cleveland Rand

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Naturally, I have given some thought as to how I can honour Ivan Rand in this lecture. I feel that I can make a connection in terms of substance. I hope to link his well-known focus on the rule of law to my subject of drawing reasonable inferences in criminal trials. Style is more of a challenge. I feel in my bones that Ivan Rand would not have cared for a PowerPoint presentation. As well, when he wrote a paper, delivered a judgment or gave a lecture, he produced a knowledgeable, structured analysis of a particular area of law such as fraud. (1) His judgments, scholarly papers, and lectures were not striking for digressions, frivolities, or soul-searching about choice of words. He did not indulge in the lengthy footnotes described by Chuck Zerby in his book The Devil's Details, as the "corridor where the scholar pops out of his office to stretch his legs and meeting colleagues, gossips, tells jokes, rants about politics and society, and feels free to offer opinions based on nothing but his prejudices and whims." (2) Rather, Rand was a practitioner of the art of the footnote as brief citation.

He was not averse to bold asides, such as the sweeping assertion in his article on fraud that fraud was present in almost every class of sport. (3) And it appears that he took pleasure in the collection of what might be called historical trivia, such as examples of "mischievous frauds" in the same article. (4) He referred to the existence of 2,000 "Van Dykes" when only 70 were painted by that artist. (5) Such observations or decorative illustrations were included in his text rather than his footnotes. In spite of my admiration for such flourishes as the 2,000 Van Dykes, I think it is fair to say that his sense of humour, personal opinion and interest in scholarly gossip were implied rather than explicit in his writing and lectures.

In contrast, my view is that the appropriate place for asides, trivia, and fooling around is generally the footnote. I like the relative freedom footnotes provide for lists, tangents, and quibbling. I like the scope for the self-indulgence of both quoting and taking issue with oneself and of sly digs at others. The footnote, oddly, is a written medium through which the author's voice can be more clearly heard than in the text. In spite of the fact that it is a stretch to make the connection, I propose to try to honour this "implied" aspect of Rand's scholarship by delivering this lecture in the form of verbal footnotes to my PowerPoint presentation. (6)

Let me turn then to the reference to "first rate" in my title. According to former Dean MacKay of the University of Western Ontario Faculty of Law, "first rate" was one of Ivan Rand's favourite expressions. (7) He applied it to anything special, such as a first rate blizzard or a first rate automobile accident. (I had some first rate turbulence flying here from Vancouver.) First rate fact finding in the form of reasonable inferences is particularly important in criminal trials, where freedom, reputation and the safety of the public are at stake. A concern in the critical literature on the law of evidence is that fact finders should carefully examine and tailor the inferences they may draw and not base factual findings on off-the-peg stereotypes. For example, sexual assault trials have attracted particular concern about stereotypical reasoning. There has been a good deal of feminist engagement with inferences in that context. In my own work, for instance, I have focused on the drawing of inferences of consent from prior sexual history. (8)

I am not going to denounce the stereotyping of women in sexual assault trials today. In fact, I am going to indulge in stereotyping myself and tell you a story about an Irishman. (My defence is that we are close to St. Patrick's Day.) This particular Irishman went out drinking one night. He drank heartily. He came home with two small bottles of whiskey in his back pockets. As he came in his front door he fell backwards and broke both bottles. …