In Canadian courtrooms, about half of civil law litigants now represent themselves — and up to 80 per cent are without counsel in family law matters.
But without formal legal training, self-represented litigants are much less likely to win their cases than those who hire a lawyer.
To help bridge the access-to-justice gap, Allard Law professor Nikos Harris, KC, has launched a new open-access educational guide to the rules of evidence: The Fundamentals of the Law of Evidence: Cases and Commentaries. The guide is published by the Canadian Legal Information Institute (CanLII), a non-profit organization that provides free legal resources for members of the legal community and the public.
“As a professor in a law school that’s funded by the public and future members of the legal profession, there’s a responsibility to help improve access to justice,” says Harris. “I want this to be a starting place for the public to become educated about the rules of evidence.”
The justice system is complex enough that going to court “really requires representation,” Harris notes. The reality, however, is that many people aren’t hiring counsel simply because they can’t afford it. Freely accessible legal education materials are one source that can help the public better understand the justice system and their legal rights.
Unrepresented litigants “really struggle with the rules of evidence” in particular, Harris says, “and these rules have an important impact on the verdict.” But while there are numerous tools to help walk people through the trial process, there are few free resources for those who need to understand evidence.
The rules that determine whether certain evidence is admissible in court can be complex, as are the rules on how and whether that evidence can be challenged by an opposing party. “Certain tactical decisions can have significant consequences,” says Harris. For example, a decision to submit a particular piece of evidence could open the door to new, damaging evidence becoming admissible.
The Fundamentals of the Law of Evidence walks you through these complexities by providing summaries of many of the rules of evidence and examples of how they have been applied in real cases. The examples focuses on rules of evidence in used in criminal trials, which have traditionally applied the rules of evidence more strictly.
Although the rules of evidence can seem complicated, they’re there to facilitate the search for truth. I hope this guide helps people better understand why these rules are so important for our legal system and our society.
For those without a legal background, some of the rules of evidence may sound familiar, but how courts actually interpret these rules could be surprising. “Most people have some sense of what ‘hearsay’ means, though they might think that repeating in court what someone told you is always inadmissible,” Harris explains. “That’s not the case. Sometimes a statement made out of court is not ‘hearsay,’ and sometimes hearsay statements can be admissible.”
There is also the common assumption that testimony of “experts” is the most reliable form of evidence. As the guide explains, expert testimony can be misleading due to issues such as a lack of independent testing or bias. The guide also explains how other forms of evidence, including from eyewitnesses and witnesses who have made deals with the state, are “notoriously unreliable” — and how courts grapple with these challenges.
While Harris says The Fundamentals of the Law of Evidence will be of use to the general public, he cautions that appearing in court without legal counsel is still “incredibly difficult,” adding that the guide is meant to serve as an educational resource, rather than providing legal advice. For junior counsel, he says the guide can also be of use as a quick reference tool for counsel who need a refresher.
“Although the rules of evidence can seem complicated, they’re there to facilitate the search for truth,” reflects Harris. “I hope this guide helps people better understand why these rules are so important for our legal system and our society.”
The Fundamentals of the Law of Evidence: Cases and Commentaries offers a practical primers on the law of evidence. It's now available on CanLII and is free to use, download and share.
