Law Times

Law Times • June 22, 2015 Page 11 www.lawtimesnews.com Have family lawyers lost touch with rules of evidence? By Michael Mckiernan For Law Times astery of the rules of evidence is a dy- ing art in the fam- ily law bar, accord- ing to some of Ontario's senior trial lawyers in the family law sphere. Gary Joseph, managing part- ner at MacDonald & Partners LLP in Toronto, says the dimin- ishing number of trials in fam- ily cases means that practically speaking, fewer family lawyers need to know the rules as part of their everyday work. In addition, he says the popularity of alterna- tive dispute resolution mecha- nisms in family law, including ar- bitration, has also helped reduce the emphasis on the rules. "In my experience, fam- ily law lawyers are not at all well informed when it comes to the rules of evidence and their pur- pose," says Joseph. "It is less an essential tool nowadays for family law law- yers, and I regret that. It's some- times viewed as something of an archaic set of procedures and rules, but I think we've lost something in letting it go." And while more experienced family lawyers tend to have a firmer grasp on the rules, Joseph says ignorance isn't the domain of younger lawyers. "I recently completed a trial where a fairly experienced fam- ily law lawyer was completely dumbfounded trying to under- stand a particular rule much to the frustration of the trial judge. Also, I hesitate to say this, but there are sometimes judges who might have been appointed without much experience in the courtroom for whom the rules of evidence can become a strug- gle at times." Erin Chaiton-Murray, who practises family law at Basman Smith LLP in Toronto, says a re- fresher on the rules of evidence should form part of any family lawyer's preparation on those rare occasions when a matter does go to trial. "Just because they're not on your radar the whole time doesn't mean you shouldn't be up to date with them. They're really essential for doing your job," she says. Harold Niman, co-founder of family law boutique Niman Gelgoot and Associates LLP, says family lawyers are "chroni- cally unaware" of the rules of evidence, which means those who are up to speed can gain a big advantage at trial. "It can make a big differ- ence when you know your way around the rules, how they're applied, and when to strategical- ly object. It can be quite instru- mental in decisions," he says. "It is also particularly notable to judges when someone doesn't understand the rules of evi- dence whether it's basic stuff like hearsay all the way to the rule in Browne v. Dunn. . . . I think it's about a 50-50 chance whether a family law lawyer knows of the existence of the rule in Browne v. Dunn let alone its meaning and application." A recent Ontario Court of Appeal decision, R v. Quansah, shed light on the rule in Browne v. Dunn aimed at ensuring fair- ness to all parties when a wit- ness' credibility comes under attack. According to Joseph, the criminal law offers a great source of case law on the rules of evidence thanks to its much higher volume of trials. "I've never seen a clearer or more easily understood expla- nation of the rule in Browne v. Dunn than the one I read in that case," says Joseph of the April 10 decision written by Ontario Court of Appeal Justice David Watt in Quansah. Browne refers to a 19th- century decision by the English House of Lords that held that a party intending to impeach an opposing witness must give that person a chance in cross-exam- ination to offer an explanation for any contradictory evidence led later in the trial. Watt explained that the rule is about fairness not only to witnesses and the party calling them but also to triers of fact. "Without the rule, the trier of fact would be deprived of in- formation that might show the credibility impeachment to be unfounded and thus compro- mise the accuracy of the ver- dict," he wrote. But the rule isn't a fixed one, Watt added. "The extent of its application lies within the sound discretion of the trial judge and depends on the cir- cumstances of each case," he wrote. "Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the wit- ness for the opposite party be put to that witness in cross- examination." In Quansah, which dealt with the appeal of a man con- victed of murdering a fellow prisoner during a cellblock fight, the trial judge found Richard Quansah and his counsel had breached the rule by failing to cross-exam- ine several Crown witnesses on parts of his testimony that suggested he was acting in self defence. As a result, the trial judge included an instruction in his charge to the jury that it could consider the failure to cross-examine when as- signing weight to Quansah's evidence. Quansah's appeal claimed the judge was wrong on both ac- counts, but Watt and two con- curring appeal court judges dis- agreed: "A trial judge should be accorded considerable deference on a decision about its applica- tion. A trial judge has a reserved seat at trial. We have a printed record. Another trial judge may not have considered what oc- curred here as offensive to the f lexible rule in Browne v. Dunn. But that is beside the point. This trial judge did. I am unable to conclude that he abused his dis- cretion in reaching that conclu- sion," wrote Watt. Niman says the application of the rule may differ slightly in family law cases compared with criminal ones but notes it can still be vital thanks to the importance of witness credibility in determining family law issues. "Often, courts in fam- ily law are more inclined to make sure all the evidence is in, and a breach can be more easily cured by calling re- ply evidence," he says. "But if something isn't objected to at trial, that could be fatal to an appeal." Niman says family lawyers shouldn't be afraid to expose their own unfamiliarity with the rules of evidence during a trial as long as they show they're making an effort to get them right. "I tell everyone: Bring your rule books to trial and tell the judge that you might just need a moment or two to check your books to figure out what your position is going to be on a par- ticular issue," he says. "Judges appreciate that. They may already have an idea on which way they will rule, but it never hurts to be able to tell them which way you think they should go." LT FOCUS LEONARD KUNKA | ALAN FARRER | CARR HATCH TF: 1.888.223.0448 T: 416.868.3100 Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom. (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP\RXDUHSXWWLQJ \RXUUHSXWDWLRQRQWKHOLQH,WLVDOODERXWWUXVWZHOOSODFHG TRUST Untitled-1 1 2015-06-17 9:54 AM M 'In my experience, family law lawyers are not at all well informed when it comes to the rules of evi- dence and their purpose,' says Gary Joseph. encourages readers to send us letters, but will edit them for space, taste, and libel consideration. Please provide your name, address and contact number and send all letters to: L Law Times, 2075 Kennedy Rd. Toronto, ON • M1T 3V4 E-mail: glenn.kauth@thomsonreuters.com

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