Legal Ease, June 21

In Canada our justice system is mainly based on the adversary system.

Each side does their level best to put their best foot forward and to trip up the other side (of course always within ethical limits – falsifying evidence for example is never allowed).

The idea behind the adversary system is that if parties struggle between themselves, all the facts will be uncovered and the truth will emerge.

In reality the adversary system is not always ideal. In family law matters for instance, having the parties debate the nasty details of a failed relationship can be highly counterproductive.

That said, the adversary system is the system we have and it is worth learning what it entails.

In any court or regulatory tribunal there are a minimum of three participants.

First, the party seeking an order. This the prosecutor in a criminal or regulatory matters or the plaintiff or applicant in a civil or family case.

Second, the party seeking to avoid an order. This is the defendant or accused in a criminal or regulatory matter or the defendant or respondent in a civil or family matter.

Finally the party who decides whether to make an order. This is the judge, justice of the peace or tribunal.

The parties seeking an order or seeking to avoid an order are, with one big exception, frankly partisan. When I am acting for a client I am openly biased in my client’s favour.

I am trying to win for my client. The exception is a prosecutor in a criminal or regulatory matter. That prosecutor is not directed to win but rather to make sure justice is done.

Often that’s the same thing – prosecuting someone for murder when the prosecutor concludes the accused is guilty involves the prosecutor trying to win. But the distinction is not trivial – Crowns will often accept pleas to lesser charges or withdraw cases in full so as to do justice.

That said, it is important to remember the parties seeking an order or seeking to avoid an order are not impartial. They want to win.

Accordingly they will focus all their energy on digging up evidence that supports their position and trying to find ways to uncut evidence that hurts them. As a result, at least if the parties prepare properly, all conceivable evidence for both sides will come forward.

Often the parties are made up of more than one person. So the person making the decision is sometimes a judge with a jury and tribunals are usually made of more than one person.

The accused in a criminal case can be several people and the plaintiff in a civil case can be many different people. (I have a civil case now where the plaintiff is actually several hundred people.)

The party deciding, by contrast, is and must be totally impartial. The deciding party cannot be inclined to anyone and must consider the evidence in a dispassionate way. A biased judge is no judge at all.

We are lucky in Canada that, in general, parties are well prepared and cases are fully put forward. As for the judges and tribunals Canada has an admirable history — I have never seen, or even heard of, a corrupt judge or tribunal.

Many times I have disagreed with judges’ decisions but I have never seen them as biased or corrupt.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.