How Much Independent Judicial Research Is Appropriate?

It is generally accepted that judges can conduct research beyond the materials provided by counsel. One cannot argue, for instance, that we are limited to case precedents submitted by counsel or that we cannot conduct our own legal research.1 However, what if the research is not of a strictly legal nature? What if we are not satisfied with the evidence presented? How far can we go in examining exhibits and drawing conclusions from them?

These are different and more difficult questions that have caused debate in Canada and the United States because in “an accusatory and adversarial system, the delicate task of bringing the truth to light falls first and foremost to the parties.”2 As will be seen, in certain instances, independent research or examination of exhibits can both raise a reasonable apprehension of bias and prevent an accused person from making full answer and defence.