The rules of evidence | Gary Joseph

The rules of evidence | Gary Joseph - Law360 Canada

By Gary Joseph

Law360 Canada (July 22, 2024, 12:39 PM EDT) -- The Ontario Court of Appeal recently overturned a criminal conviction and ordered a new trial for a man convicted of multiple counts of domestic assault. The ruling in R. v. Morin, 2024 ONCA 562, is widely reported in the media, given that it involves a trial decision of a justice (Michelle O’Bonsawin) recently elevated to the Supreme Court. The appeal court found that the trial judge had made improper use of prior consistent statements of the complainant.

I offer no comment on a criminal matter nor the commentary on the case by the criminal lawyer referred to above. I do write, though, to again weigh in on the importance of the rules of evidence and the need for family lawyers to have, at the very least, a basic understanding of those rules. Why?

There are multiple planks upon which legal advocacy is built. The rules of evidence provide what I call the legal perimeter of effective legal advocacy. They provide “no-go zones” and doors through which one may enter to present arguments in court. The “no-go zones” are rules, such as the inadmissibility of hearsay evidence to prove the truth of its contents. A door upon which one may enter is, for example, relevant evidence by a witness who was present when an event took place. In a parenting dispute, a witness who observed a parent urging a child to visit with the other parent, promising the child a good time, could testify to the same. Of course, these simple examples belie the often complex nature of compliance with the rules of evidence, but I think you get the idea. There are indeed the legal perimeters; like a fence, they keep out and they allow in.

What then does one say to the family lawyer who claims that they have no need for knowledge of these often arcane rules of evidence given that they have a practice restricted to matters other than court advocacy? As I have written before and say again, I fail to understand how family law counsel can fully assess the strength of a client’s case without assessing the evidence upon which it is built. Not all cases are settled, and not all mediations are successful. We family lawyers are still in the business of advising clients on the strengths and weaknesses of their cases. Not understanding the foundation upon which it is built can lead to a collapse of a client’s case, like a building built on defective materials falling. The family lawyer who does not understand this may indeed get “buried in the rubble.” Beware.

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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