Judge's Duty To Intervene

As a general rule, the duty of a trial judge is to adjudicate on matters in dispute and otherwise to leave matters to counsel.

Where counsel choose not to raise issues a judge is not to raise the issue -- indeed, counsel may well have very good reasons to let something pass, reasons the judge cannot have any inkling of.

Thus, otherwise inadmissible evidence, if not objected to, will usually be admitted without discussion and will (seldom) be grounds for appeal.

The strictness of the limit on the judge intervening is greater in civil matters and less in criminal, where the judge has to ensure justice is properly served; the liberty and honour of the subject being far more important than mere financial disputes the judge in a criminal case has a broader duty than in other matters. Further, in any matter, where a party is self represented the judge properly should ensure that the party at least knows of the potential legal issues.

A nice question is the duty of a judge where counsel is manifestly inept -- probably the best view is that is such a case the judge might gently raise significant issues as in 'might the Rule in Browne v Dunn be relevant counsel?'

Regardless, the failure to raise an issue at trial makes an appeal on the point almost certain to fail. Yesterday's decision in R. v. Flader, 2008 ONCA 275 is a case in point.

The failure to object to certain physical evidence made the appeal based on the evidence's admission hopeless.

The Court ruled:

[1] In the circumstances, the two pairs of underwear found in the possession of the appellant when he was arrested, one a woman’s size underwear and the other a children’s size underwear, were relevant to the charge of possession of child pornography. No objection was made to the relevance of this evidence at trial.

[2] We have considered the submission, also made for the first time on appeal, that the prejudicial effect of this evidence outweighed its probative value and that the evidence should have been excluded on that basis. We are not satisfied that the prejudicial effect would necessarily have outweighed the probative value of the evidence in the circumstances of this case. It cannot be said that the trial judge erred in failing to take the initiative and exclude the evidence absent any request that she do so. Nor has the appellant demonstrated any miscarriage of justice.