On February 22, 1632, a book was delivered to Ferdinando II de’ Medici, Grand Duke of Tuscany, titled Dialogue Concerning the Two Chief World Systems. Ferdinando was a patron of its author Galileo Galilei, known mononymously as Galileo, an Italian mathematician, astronomer and philosopher. The Dialogue advocated the model of astronomy known as Copernican heliocentrism in which the Earth and planets revolve around a relatively stationary Sun at the centre of the solar system. It had been making the rounds in Florence in manuscript form since 1630. It was delivered to Ferdinando the day after it was published and soon became a runaway bestseller.

By the summer of 1632 the Dialogue had caused a scandal in Rome where charges of heterodoxy were circulating. It was a violation of a regulation of the Roman Church that prohibited all books advocating Copernican theory. The regulation was contained in a Decree issued by the Vatican’s Congregation of the Index on March 5, 1616. It declared the works of Nicholas Copernicus and Diego de Zuniga to be “false and completely contrary to the divine Scriptures”. It “prohibited and condemned” all books teaching the same thing “lest this opinion spread further and endanger Catholic truth”. [In, Richard J. Blackwell, Behind the Scenes at Galileo’s Trial (2006), at p. 4]

On September 23, 1632, Galileo was summoned to Rome for a trial conducted under the auspices of the Congregation of the Holy Office known as the Roman Inquisition. The court was comprised of ten cardinals appointed by Pope Urban VIII. The trial began on April 12, 1633, and the interrogation of Galileo was completed in three sessions. A summary report was sent to the Congregation for judgment and the Pope’s decision was released on June 16, 1633. Galileo was convicted of being “vehemently suspected of heresy”. On June 22, 1633, the Inquisition ordered that the Dialogue be prohibited “by public edict” and Galileo was sentenced to imprisonment at the “will and pleasure” of the Holy Office. The sentence was amended the following day and Galileo spent the rest of his life under house arrest.

On October 31, 1992, over three hundred years later, as a result of a study completed by the Pontifical Council for Culture, Pope John Paul II issued a declaration acknowledging the errors committed by the Roman Inquisition in handling the Galileo case.

The pursuit of truth by the Vatican’s Congregation of the Index, and trials conducted by the Roman Inquisition, are failures of due process. Galileo’s trial, consisting of three interrogation sessions, lacked the basic tenets of trials at common law such as the right to trial before an independent court, the right to a lawyer, the right to cross-examine witnesses and the application of rules of evidence and procedure. By any standard, Galileo’s trial was an injustice. But Galileo’s trial was not about justice. It was about truth – truth as revealed in Scripture and protected by the Vatican’s Congregation of the Index. If Galileo would not bend to the truth then the Roman Inquisition would take care of that.

Professor David Wootton, in Galileo: Watcher of the Skies (2010) describes the events of the third interrogation, at pp. 223-4:

“Finally on Tuesday 21 June Galileo was required to report to the Inquisition. There he was once more interrogated. He denied ever having been committed to Copernicanism, although he said that before 1616 he had thought that either Copernicus or Ptolemy might be right. He insisted that his book should not be read as a defence of Copernicanism. He was threatened with torture and held overnight. The next day he appeared, dressed in the white robes of a penitent, before the Congregation of the Inquisition at the monastery of Santa Maria sopra Minerva. There he was declared guilty of having given grounds for vehement suspicion of having held Copernican doctrines and of thus being guilty of heresy. Giving grounds for ‘vehement suspicion’ was a perfectly normal charge in Renaissance law, used in cases where the evidence fell short of being conclusive; in this case, Galileo had confessed not to being a Copernican but to having presented arguments in favour of Copernicanism with insufficient care. His sentence was read to him and he was required to abjure Copernicanism. A copy of his book, now banned, was burnt in front of him.”

Galileo’s recantation has divided the opinion of historians ever since. Professor Wootton has asked, at p. 261: “To the question, Was his Copernicanism an unproven hypothesis or a scientific truth? the answer has to be that his initial commitment to Copernicanism went far beyond the available evidence.” We can debate endlessly at what point it became rational to adopt Copernicanism. Galileo was of the view that the arguments in Copernicus’ On the Revolutions were convincing. He said that “you could not understand Copernicus without agreeing with him” but he had no decisive astronomical evidence. Alexander Koyre, one of the founders of the history of science, has therefore presented Galileo as a theoretical mathematician and a philosopher rather than the first modern scientist. [See: Koyre, Galileo et l’experience de Pise. A propos d’une legend, Annales de l’Universite de Paris 12 (1937), at pp. 441-53; In Wooten, at p. 261]

Professor Wootton has argued that it is unreasonable to ask Galileo to have been braver or bolder – to have gone into exile or died for his principles. Bertold Brecht, the German dramatist, recognized that the recantation made possible Galileo’s publication of the Discourses and Mathematical Demonstrations Relating to Two New Sciences in 1638. The Two New Sciences is a testament that covers much of his work in physics. It was published in the Netherlands where the writ of the Roman Inquisition banning publication of his future works was of less consequence. Galileo died on January 8, 1642. He was 77. [See: Brecht, Life of Galileo (1955); In, Collected Plays:5]

I could chose other cases against which to pose the question: What is a fair trial? Some examples are Thomas More, Joan of Arc and Susan B. Anthony. But the inquisition of Galileo presents the search for the truth in starker relief. I said that Galileo’s trial was a failure of due process. It may not have been seen as a failure under the Renaissance law of the time. But certainly, by today’s standards, it would be considered a failure under the rules of due process as applied in trials at common law. Or would it?

I have always understood a trial at common law to be governed by the overarching purpose of seeing that justice is done. Truth and justice are not the same thing. A modern trial at common law in Canada is driven by two things: (1) the Charter of Rights which guarantees fundamental principles such as the right to a trial before an independent court, the right to make full answer and defence, the right to a lawyer, the right to cross-examine witnesses and the availability of remedies for the breach of these rights; and, (2) the vast precedent of the common law that preserves the rules of trial procedure and the admissibility of evidence. Prof. John H. Wigmore’s treatise, Evidence in Trials at Common Law (1983), consists of 11 volumes. The Index alone takes up a volume of 713 pages. That gives you an idea of the breadth of evidentiary rules that govern a trial in the adversary system of justice.

There is the key phrase – the adversary system. Trials at common law are conducted by two opposing adversaries. In private law it may be the plaintiff against the defendant. In public law it may pit the individual against the state. The theory of what goes on in a courtroom is that if two parties advance their causes in adversarial opposition, in a trial conducted with strict adherence to rules of precedent, a verdict will emerge that is reliable and justice will be done. Due process creates confidence in the result. A trial is not a search for the truth conducted by a judge or jury on behalf of either the parties or society at large. The simple fact that the parties decide what evidence to present dictates that objective truth can never emerge. They want to win.

But an ill-defined concept of a trial as having a truth-seeking function has crept into modern Canadian law through various opinions of the Supreme Court of Canada. In R. v. Levogiannis, [1993] 4 S.C.R. 475 Justice Claire L’Heureux-Dube, a leading exponent of this doctrine, stated for a unanimous court, at paras. 18 and 22, that “the objective of the judicial process is the attainment of truth” and she identified a trend in the case law removing “barriers to the truth-seeking process”. In R. v. Nikolovski, [1996] 3 S.C.R. 1197 Justice Peter Cory wrote, at para. 13, that: “The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth.” And in R. v. Noel, [2002] 3 S.C.R. 433 Justice L.Heureux-Dube stated, in dissent at para. 86, that: “Ensuring that an accused receives a fair trial, deterring police misconduct, and preserving the integrity of the administration of justice are all laudable goals to which this Court must strive in its rules of evidence, at times to the detriment of full access to the truth. Where these goals are met, however, the search for the truth must, in my view, be the preponderant consideration.”

This continuing trend has expanded to cases involving both the common law rules of evidence and the law of Charter remedies. In R. v. Mapara, [2005] 1 S.C.R. 358 Chief Justice Beverly McLachlin expressed concern, at para. 14, about how the traditional approach to hearsay evidence “could impede the search for the truth”. And in R. v. Grant, [2009] 2 S.C.R. 353 she and Justice Louise Charron held, at paras. 79-82, that ” the truth-seeking goal of the criminal trial” is a relevant consideration on evidence exclusion motions under s. 24(2) of the Charter.

I have no idea where the concept of a truth-seeking function came from. It seems to have simply fallen from the Levogiannis tree. And, what is worse, it has taken hold in the Canadian justice system to the extent that no one questions it. In an article titled The Adversarial System: A Qualified Search for the Truth (2001), 80 Can. Bar. Rev. 456 Richard Peck, Q.C. begins with this sentence, at p. 457: “This paper addresses the necessity for the search for the truth in the trial process to be qualified in appropriate circumstances in order to preserve the fundamental values which make our justice system unique in the Western World for its fairness and for its dedication to preserving its integrity.” Highfalutin’ stuff indeed. Although Mr. Peck does a good job of analyzing three qualifications on the search for the truth: the core value of privacy, the exclusion of evidence and judicial stays of proceedings; nowhere does he question the premise on which his analysis is based – whether there ought to be a truth-seeking function at all.

There are two tensions at work in analyzing whether modern Canadian trials should embody a truth-seeking function. The first tension is the jury – what I call the wild card. There are two points here. First, a truth-seeking process is inconsistent with what we know about how juries function. Second, a truth-seeking element is inconsistent with the doctrine of jury nullification.

In Law & The Modern Mind (1930) Judge Jerome Frank of the United States Court of Appeals for the Second Circuit put the workings of the jury this way, at pp. 185-6:

“The truth is…that usually the jury are neither able to, nor do they attempt to, apply the instructions of the court. The jury are more brutally direct. They determine that they want Jones to collect $5000 from the railroad company or that they don’t want pretty Nellie Brown to go to jail for killing her husband, and they bring in their general verdict accordingly. Ordinarily, to all practical intents and purposes, the judge’s views of the law might never have been expressed.

The general-verdict jury trial, in practice, negates that which the dogma of precise legal predictability maintains to be the nature of law. A better instrument could scarcely be imagined for achieving uncertainty, capriciousness, lack of uniformity, disregard of former decisions – utter unpredictability. A wise lawyer will hesitate to guarantee, although he may venture to surmise, what decision will be rendered in a case heard and decided by a judge alone. Only a very foolish lawyer will dare guess the outcome of a jury trial.”

It is accepted practice in Canada for a trial judge to caution a jury in the charge that they are not to judge the case on what they may have heard outside the courtroom in the media or by way of rumour and speculation. A jury is to decide a case only on the basis of the evidence presented by the parties during the trial. Juries are witnesses of the witnesses. They do not conduct an independent search for the truth. They are not detectives.

The second point – the inconsistency between truth-seeking and the doctrine of jury nullification – is best exemplified in Canada by the trials of Dr. Henry Morgentaler who was tried three times on charges of performing illegal abortions in his Montreal clinic. Each time he was acquitted and, at each trial, a jury took less time to reach a verdict. At the third trial, the jury took one hour. This is called jury nullification. The complexities of the doctrine were described in R. v. Morgentaler, [1988] 1 S.C.R. 30 where Chief Justice Brian Dickson stated the following, at para. 63:

“It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, ‘the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law’ (Law Reform Commission of Canada, Working Paper 27, The Jury in Criminal Trials (1980)). But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so. The difference between accepting the reality of de facto discretion in applying the law and elevating such discretion to the level of a right was stated clearly by the United States Court of Appeals, District of Columbia Circuit, in United States v. Dougherty, 473 F.2d 1113 (1972), per Leventhal J., at p. 1134: ‘The jury system has worked out reasonably well overall, providing ‘play in the joints’ that imparts flexibility and avoids undue rigidity. An equilibrium has evolved – an often marvellous balance – with the jury acting as a ‘safety valve’ for exceptional cases, without being a wildcat or runaway institution. There is reason to believe that the simultaneous achievement of modest jury equity and avoidance of intolerable caprice depends on formal instructions that do not expressly delineate a jury charter to carve out its own rules of law’.”

The second tension at work is what I call the discipline of the common law. The common law embodies the law of rights, obligations and remedies. Its discipline lies in the strict application of judge made precedent to resolving present disputes called ratiocination. In R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387 Justice Gerald La Forest, writing for a unanimous court, described the common law, at para. 39, as “one of the major repositories of the basic tenets of our legal system” falling within the principles of fundamental justice under s. 7 of the Charter. It defines the boundaries for our conduct in every day life. A good example of the protection of the common law is found in Robert Bolt’s play A Man For All Seasons (1960) where this exchange takes place between Thomas More and William Roper in Act One:

ROPER: So now you’d give the Devil benefit of law!

MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?

ROPER: I’d cut down every law in England to do that!

MORE: Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

The common law contains not only the vast expanse of judge made law but the wealth of human experience. The genius of its discipline lies in its simplicity – what a judge did before, a judge is likely to do again. That is not truth-seeking. It is the application of “benefit of law” for our “own safety’s sake”. It is folly to recast that experience as an inquiry into the truth, wax it with a dose of judicial discretion and call it a day. Inquiries into the truth are better left to the Roman Inquisition. And it is folly for the Supreme Court to say that, after the goal of ensuring that a defendant receives a fair trial is met, the search for the truth is the preponderant consideration. The two are incompatible in theory and in practice. In Walden or, Life in the Woods (1854), Henry David Thoreau said: “Rather than love, than money, than fame, give me truth.” In answer to Thoreau, I say: “Rather than truth, give me justice.”