Law Times

Page 12 NOVeMBeR 9, 2015 • LaW TIMeS www.lawtimesnews.com Court endorses proactive judicial role But did judge go too far in touting inquisitive approach at trial? BY JUDY VAN RHIJN For Law Times alling the traditional judicial role as the passive receiver of evi- dence "antiquated," a recent Superior Court of Justice decision has endorsed judges' role as an inquisitor in family law cases. The comments arose in the controversial decision of Justice Grant Campbell in Van Wieren v. Bush on June 25. It involved an appeal from a custody case that ran over eight days in the Ontario Court of Justice dur- ing which the judge made 3,578 interruptions, clarifications, and directions and engaged in 17 instances of aggressive ques- tioning. The appellant argued those examples amounted to cross-examination and that other comments gave rise to a reasonable apprehension of bias. The case prompted a con- sideration by Campbell of the proactive role family law judges adopt in their role as seekers of the evidence. In consider- ing the issue, he referred to the traditional role of judges as pas- sive receivers of evidence as op- posed to those who are more active. "These second type of trial judges are very engaged gatekeepers of the fact-finding process, wherein they perceive themselves as responsible for husbanding scarce judicial re- sources and a full participant in Rule 2 (5) 'Duty to Manage Cas- es' responsibility not only at the pre-trial stage of proceedings but at the trial-hearing stage of a case as well." Campbell suggested the traditional approach appears to be shifting. "It would ap- pear that more and more family law judges have be- come impatient with the glacial speed of some coun- sel (and especially with self- represented litigants) who decided that the trial is the venue within which to exam- ine each and every aspect of their own/their client's pre- trial life. . . . I suggest that over the last fifty years the 'precise line of demarcation' of the 'right to intervene' has shift- ed significantly away from non-intervention to one of much more intervention." Campbell found that ap- proach doesn't establish bias or partiality and reframed the interventions in the case as per- sistent and focused rather than aggressive. "It is but a bi-product [sic] of an overwhelmed system that is under-resourced and buried under a never-ending volume of cases awaiting attention." Brian Ludmer, the princi- pal of Ludmer Law in Toronto, lauds the decision. "It's an ex- tremely well-written decision where all the leading cases have been canvassed and all the prin- ciples laid out," he says. Despite the thoroughness of the judgment, Gary Joseph of MacDonald & Partners LLP strenuously disagrees with it. "The decision strikes me as a radical departure from the traditional role of judges. It is contrary to the Supreme Court's decisions which talk about this very issue. The Court of Appeal has made similar comments about when and when not to intervene and cautioned about intervention and usurping the role of counsel." It's this last aspect that causes Ludmer to pause in his praise of the decision. "Even if interven- tions are well-intentioned, it can be a bad experience for coun- sel. You may have a certain line of questions designed to posi- tion the witness. Counsel may wish to build the groundwork in a strategic, tactical plan of approach. If the judge inter- venes at the wrong moment, it can inadvertently affect the way you wanted to approach it." He also sees a concern from the parties' perspective. "Parties have a certain image of what the judge should do. Even if it's not bias, litigants need to have the appearance of fairness." Timothy Sullivan of Sul- livanLaw in Ottawa wonders about the application of case management practices to the trial. "It seems that a new in- terpretation of case manage- ment is applied during the course of the trial. The cul- ture shift, which encourages judges to manage the trial under Rule 2(5), gives trial judges licence to intervene. Rule 2(5) says pretrial manage- ment is important to resolve matters at an early stage and to proceed to trial and appeal, but it's not clear that the rule is to be applied during trial. If you are going to apply Rule 2(5) to the conduct of the trial, it should be more explicitly stated in the rule or by a higher court." Lawyers also wonder about the effect of Van Wieren in practice. The judgment, in fact, suggests more tradition- ally trained lawyers may not be willing to accept such an active bench. For his part, Sullivan be- lieves a change is unnecessary. "The court always has an entit- lement to step outside its tradi- tional role and act in a child's best interest with its parens pa- triae power. I'm not certain that an inquisitorial approach, such as the European model, neces- sarily has to be that explicit. I think they have the tools to do what they have to do to render justice to the parties. If the rules are followed from the begin- ning, they should not need to be enhanced by judicial interven- tion at the trial." Ludmer also believes there are alternatives to constant in- terventions. "If there are certain things that the judge doesn't un- derstand or is struggling with, there is a right way and a wrong way to respond. Instead of direct intervention, the judge directs comments to counsel. If that might tip the witness off, he can excuse the witness." In cases where the witnesses are obfuscating, Ludmer sug- gests it's appropriate for the judge to reframe a question and direct them to answer it. "I've seen it done very effectively by experienced judges. That would not be usurping the role of counsel and can be very helpful, but if they are taking over a line of questioning rather than let- ting counsel do it, there is a very fine line." Joseph rejects the idea that more intervention is an appro- priate response to the problem. "I don't think judges should change their traditional role as adjudicators whether the par- ties are self-represented or not. It's one more step down this slippery slope of dumbing the system down. We don't want to see judges in matrimonial mat- ters descending into the fray. There'll be accusations of bias and a host of other problems." Ludmer is mindful of the cost of family law trials, both fi- nancially and emotionally, and refers to the number of litigants who represent themselves. "The pace of the trial needs to move ahead efficiently and the complex issues in many cases are beyond them. "There is a trend toward more direction. With self-rep- resented parties, it's more visible but it should not raise any issues of intervention or bias. Judges are not supposed to argue the case on behalf of the self-repre- sented litigant. . . . This case is a great guide for working toward efficiency while still maintain- ing fairness." LT FOCUS REGISTER ONLINE www.lexpert.ca/cpdcentre EXECUTIVE PROFESSIONAL DEVELOPMENT FULL DAY IN-CLASS PROGRAMS & LIVE WEBINARS E V E N T S For more information, please contact Lexpert® Events at 1-877-298-5868 or e-mail: register@lexpert.ca 3RD ANNUAL CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS: JUST THE FACTS Toronto | November 10 7TH ANNUAL DEALING WITH THE LEASE: WHAT'S NEXT? 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Presented by Carswell Media,a Thomson Reuters business Untitled-1 1 2015-10-15 12:47 PM C 'It's an extremely well-written decision where all the leading cases have been canvassed and all the principles laid out,' says Brian Ludmer. Check out lawtimesnews.com for insight from our regular online columnists From trade deals to foreign investment, Patrick Gervais keeps you up to date on business issues in Trade Matters

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