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The Adversary System as described by the Alberta Court of Appeal

In the case of Jonsson v Lymer, 2020 ABCA 167, the Alberta Court of Appeal had a good discussion about the nature of our adversary system. The Court said at 44:

[44] It is important that the judges and the court remain neutral and impartial. Judges should not routinely become protagonists in the litigation. As it was put in R. v Mian, 2014 SCC 54, [2014] 2 SCR 689:

38 Our adversarial system of determining legal disputes is a procedural system “involving active and unhindered parties contesting with each other to put forth a case before an independent decision-maker” (Black's Law Dictionary (9th ed. 2009), sub verbo “adversary system”). An important component of this system is the principle of party presentation, under which courts “rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present” (Greenlaw v. United States, 554 U.S. 237 (2008), at p. 243, per Ginsburg J.).

This point has been made many times, for example in Imperial Oil v Jacques, 2014 SCC 66 at para. 25, [2014] 3 SCR 287:

25 Although the power of judges to intervene in the conduct of civil proceedings has become increasingly broad, judges generally do not play an active part in the search for truth . . . . In an accusatory and adversarial system, the delicate task of bringing the truth to light falls first and foremost to the parties . . .

Another expression of the principle is found in R. v Oracz, 2011 ABCA 341 at para. 7:

A cautionary note is in order. It is essential that trial judges not descend into the arena. It is always preferable for the trier of fact and the adjudicator of law to leave to the parties or their counsel the initiative to advance legal and factual arguments. Our system of criminal justice is premised on an adversarial model. Judicial inquests are not part of the process. While judges, in keeping with their sworn duties, may seek clarification of points in issue, the extent to which a judge may properly go beyond that is circumscribed. The judge must not enter the fray. That which governs is the necessity of ensuring a fair trial and one that is perceived by all concerned to have been conducted fairly and impartially.

If you have questions on how our adversary system works in Alberta, please feel free to contact us.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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