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Judge's gatekeeper role complex when trial involves self-reps

Judges play an important role as “gatekeepers” who consider the admissibility of evidence based upon a complex and sometimes confusing set of evidentiary rules that even many lawyers do not understand — a situation that can become more problematic when a trial involves self-represented litigants, Toronto family lawyer Gary Joseph writes in The Lawyer’s Daily.

As Joseph, managing partner of MacDonald & Partners LLP, explains, the role of judges is predominately reflexive as they hear evidence, weigh it and determine disputes based upon what has been presented to them by the parties. 

“Not everything said or every document presented in court is received by the judge and/or relied upon in the decision-making process. A set of rules have evolved over the centuries designed to filter out information or documents that may not be reliable or worthy of consideration. The rules of evidence are multiple, at times complex but absolutely necessary to the adjudicative process. Decisions must be based upon reliable evidence,” writes Joseph.

Judges, he explains, are the gatekeepers, whose role, the Supreme Court of Canada notes, is to “screen out proposed evidence whose value does not justify the risk of confusion, time and expense that may result from its admission.”

Judges are also usually reliant on the litigants before them to raise objections to evidence when necessary, writes Joseph.

“In the absence of objection and/or cogent legal argument on admissibility there is the danger of reliance upon evidence that is unworthy of consideration,” he explains.

As a result, he explains, a self-represented litigant acting as his/her own lawyer must be expected to respect the rules of procedure and know the rules of evidence, as the integrity of our system demands as much. However, this is often not the case.

“The rules of evidence, especially, take years to master. No self-help handbook or YouTube video will do. Increasingly thus, cases are decided on flawed evidence. Legal precedent is at risk. A decision based upon flawed evidence should not be relied upon by other courts,” writes Joseph.

So what are the gatekeepers to do?

A trial involving two self-reps will almost inevitably pose evidentiary problems for the presiding judge, says Joseph.

“I have witnessed many times over judges patiently explaining to otherwise highly intelligent self reps or witnesses the rules against hearsay evidence only to see the error repeated over and over again. A recent attempt by an exceedingly wise and patient judge to explain an objection by counsel opposite to a breach of the rule in Brown v. Dunn to a self rep led to anger and accusations of bias (in favour of the lawyer). The discourse led to an entirely unsatisfactory conclusion, no fault of the judge.”

Ultimately, the gatekeeper system, writes Joseph, “works and should not be sacrificed to the less noble goal of expediency and a general dumbing down of the rules.”

“Our judges must remain gatekeepers and our cases, when not subject to alternative methods of resolution, must be presented by those with knowledge to assist the judge in reaching a fair, reasoned and reliable decision. Anything less will result in the long-term destruction of our system.”

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