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- Title
L'assistance du tribunal aux justiciables non représentés: une obligation à géométrie variable, un rôle judiciaire à repenser.
- Authors
BERNHEIM, EMMANUELLE; BAHARY-DIONNE, ALEXANDRA; JANNARD, LOUIS-PHILIPPE; LANIEL, RICHARD-ALEXANDRE
- Abstract
Under an adversarial justice system, tribunals play the paramount role of shepherding procedural fairness and the right to make full answer and defence. Their restraint and passivity enable the implementation of the parties' rights to delineate the judicial debate by presenting their proof and arguments while preserving their independence and impartiality. Yet, the presence of unrepresented litigants complexifies the balance between the rights of the parties, procedural fairness and principles of independence, impartiality and appearance of impartiality, including by introducing an obligation of reasonable assistance that compels tribunals to look past their duty to exercise judicial restraint. The study of the jurisprudence of the Court of Appeal of Quebec and the Supreme Court of Canada reveals that the intensity and nature of this obligation must be defined in the light of the circumstances of each case. However, the absence of clear guidelines creates uncertainty not only for the parties but also for the judges who don't always know how or to what extent the obligation of assistance should be implemented. In various jurisdictions, ongoing reflections are aiming to clarify the nature of the obligation of assistance, while sensitizing the judiciary to the socioeconomic realities of unrepresented litigants as well as the complexity of the law and procedure. Those reflections imply a reconceptualization of the judicial role, involving relationships between passivity and impartiality that would directly reinforce the unrepresented parties' disadvantage as they are sparsely at ease with law and the legal process.
- Publication
Revue Juridique Thémis, 2021, Vol 55, Issue 1, p1
- ISSN
0556-7963
- Publication type
Article