Can counsel refrain from calling evidence during argument?
Ontario, Canada
The following excerpt is from Stewart v. Canadian Broadcasting Corp., 1997 CanLII 12318 (ON SC):
Counsel are entitled to refrain from calling evidence and to refrain from addressing evidence during argument, if that is seen to be advantageous to the client. That is the nature of the adversarial process. The judicial process is different, however. In deciding cases, judges may not ignore evidence because justice does not. The court is required to consider the evidence as a whole and to base findings of fact and credibility on that whole, not just on the part of the evidence which counsel, in pursuit of adversarial advantage, urge on the court. As Carthy J.A. held in Hurd v. Hewitt (supra) at p. 648: If the facts established in evidence dictate a conclusion, the duty of the tribunal is to reach that conclusion if those facts are relevant to the decision.
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