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Simon Shields, Lawyer

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Bias - Questions to Witnesses by Judge

Judges - Questions to Witnesses by Judge

R. v. Danial (Ont CA, 2016)

Here the Court of Appeal set out principles that apply to questions to witnesses from the bench:
[3] During the testimony of the defence witness, the trial judge perceived a lack of clarity as to the conversation that took place between the witness and Samira. At the conclusion of the witness’ testimony, the judge asked a short series of questions in an effort to clarify when those discussions took place. The appellant submits that these questions raised an apprehension of bias on the part of the trial judge.

[4] We do not accept this submission. There is a presumption of impartiality on the part of the trial judge and a high threshold on the part of an appellant to rebut it.

[5] A trial judge is entitled to ask questions for clarification. The trial judge here followed the long standing protocol articulated in R. v. Stuckey, 2009 ONCA 151 (CanLII) at para 64. He waited until the conclusion of the witness’ testimony, asked questions for clarification on a narrow issue, and allowed further re-examination. That some of the questions towards the end of the series of questions may have been leading would not lead a reasonable observer being apprised of all the facts to conclude that the trial judge was not impartial.

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