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Bias - Intervention by Decision-Maker. R. v. Walton
In R. v. Walton (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here where the main issue was bias due to the trial judge's "interruptions, interjections, and questioning":C. Analysis
[16] I would frame the first issue slightly differently: Did the trial judge improperly assume the role of counsel by his interruptions, interjections, and questioning of Ms. Walton?
[17] The law interposes several protective barriers between the immense power of the prosecuting state and a vulnerable accused person including the burden of proof on the Crown to prove the charge beyond a reasonable doubt, the elements of the charge the Crown must prove, other procedural protections offered by the Criminal Code, R.S.C. 1985, c. C-46, and by the common law, the rights protected by the Canadian Charter of Rights and Freedoms, and the adversarial system itself. That system’s elements include the right of each party to be represented by counsel, the right to examine witnesses in chief and to cross-examine witnesses, and the ability of defence counsel to object and require the judge to rule on the admissibility of evidence and other procedural issues. Certain duties are imposed on members of the jury, who are the fact finders. Finally, the judge who presides over the trial has a large role.
[18] I will set out the governing principles and then apply them. The relevant principles cover several different areas.
(1) The Governing Principles
[19] The overriding principle governing a trial judge’s intrusion into the questioning of a witness is cautious restraint, in light of the roles that our adversarial system accords to the judge, the jury, counsel, the parties, and to witnesses. The supporting principles are well known but sometimes require restatement.[5]
[20] In the context of a jury trial, the judge holds in tension two considerations, outlined by Kelly J.A. in R. v. Torbiak and Campbell,[6] at para. 5:On the one hand his position is one of great power and prestige which gives his every word an especial significance. The position of established neutrality requires that the trial judge should confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions. On the other hand his responsibility for the conduct of the trial may well require him to ask questions which ought to be asked and have not been asked on account of the failure of counsel, and so compel him to interject himself into the examination of witnesses to a degree which he might not otherwise choose. [21] Later cases have elaborated on this tension between preserving judicial neutrality and intervening by questioning a witness.
[22] The trial judge is duty-bound to exercise restraint and remain neutral to promote both the reality and the appearance of fairness.[7] However, a trial judge is permitted to intervene where doing so is essential to ensure justice is done in both substance and appearance.[8] A trial judge is entitled to and must “manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides”, and to witnesses.[9]
[23] However, trial judges should, consistent with the principle of cautious restraint, confine themselves to their own responsibilities, leaving counsel and the jury to perform their respective functions.[10]
[24] In this light, I point out that examination-in-chief and cross-examination are and must remain the responsibility of counsel; a trial judge should not become an investigator.[11] A trial judge must not cause a reasonable person to believe that he has “placed the authority of his office” on either side, particularly that of the prosecution, and must also be careful not to usurp the role of counsel because the overall impression created may be fatal to the appearance of trial fairness.[12]
[25] Although the trial judge may ask questions that should have been asked by counsel, the trial judge must not usurp counsel’s role. The judge must not “leave his or her position of neutrality as a fact-finder and become the cross-examiner.”[13] When the trial judge does intervene in questioning a witness, “it is important that they use care and not create an impression through the questioning process of having adopted a position on the facts, issues or credibility.”[14]
[26] As this court instructed in Chippewas, at para. 239, a trial judge should try to avoid interfering with the organization and flow of the evidence, because judicial intervention might impede counsel in following an organized line of inquiry. This is especially important during examination-in-chief.[15] Obviously, the trial judge should never cross-examine a witness. Rather, when the trial judge believes that it is necessary to question a witness, the judge’s questions should be asked after counsel has completed his examination, or at least after counsel has finished a particular line of questioning. An exception would be a fast clarification that does not become a digression.
[27] Stucky and Murray provide useful bookends on permissible and impermissible interventions. In Stucky, at para. 64, this court adopted and summarized the comments of Martin J.A. in Valley, at para. 53:Martin J.A. set out three situations in which questions put by a trial judge to a witness may be justified, namely: to clear up ambiguities and call a witness to order; to explore some matter which the witnesses’ answers have left vague; or, to put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted. [28] The other bookend, in Murray, provides the counterpoint, at para. 94, per Watt J.A.:The principal types of intervention that attract appellate disapprobation include, but are not limited to,
(i) questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;
(ii) questioning witnesses in such a way as to make it impossible for counsel to present the defence case;
(iii) intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and
(iv) inviting the jury to disbelieve the accused or other defence witnesses. [29] There are other relevant limits on the right to intervene. As Lamer J. emphasized in Brouillard, at para. 24, when an accused testifies, “prudence and the resulting judicial restraint must be all the greater”.[16]
[30] Lastly, a trial judge must be especially cautious in questioning an accused or a witness while sitting with a jury.[17] In particular, the judge should be careful to not ask questions that seem to favour one side or the other. In jury trials, trial judges “must always keep in mind that they are neither an advocate nor the trier of fact.”[18]
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[51] As Doherty J.A. stated in Stewart, at para. 46: “It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable but of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness.” Without going through the other excerpts that Ms. Walton says show objectionable interventions by the trial judge, taken in their totality, her complaints are tenable.
[52] In my view, the trial judge made each of the four errors listed by Watt J.A. in Murray: he questioned Ms. Walton in such a way as to convey an impression that he aligned himself with the case for the Crown; he questioned Ms. Walton in such a way as to make it impossible for counsel to present the defence case; he intervened to such an extent in Ms. Walton’s examination-in-chief that it prevented her from telling her story in an orderly way through the questioning of her own counsel; and the trial judge’s tone from time to time effectively invited the jury to disbelieve Ms. Walton.
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[56] In Brouillard, Lamer J. noted, at para. 12, that when a trial judge “step[s] down from his judge’s bench and assume[s] the role of counsel… to the detriment of the accused, it is important that a new trial be ordered, even when the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not incorrectly assessed the facts.” I would add that this must be even more true in a jury trial. . R. v. Owusu-Ansah
In R. v. Owusu-Ansah (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from a conviction for 2nd degree murder.
Here the court considers an all-too-common bias ground of appeal, here grounded in excess intervention by the judge:(1) The reasonable apprehension of bias issue
[13] The appellant contends that the trial judge made many comments during the testimony of several witnesses – especially the accused – and that these comments raised a reasonable apprehension of bias and undermined trial fairness.
[14] The core of the appellant’s factual submission on this issue is set out in this paragraph from his factum:Throughout the proceedings, the trial judge interrupted and denigrated both the accused and his counsel in front of the jury. The trial transcripts demonstrate the unrelenting nature of these interventions. During cross-examination of Ms. Kyei-Bofah, the judge interjected 21 times; during cross-examination of Mr. Collin[s] Takyi, the judge interjected 11 times; during cross-examination of Mr. Prempeh, the judge interjected 11 times; and during cross examination of Dr. Pollanen, the judge interjected approximately 70 times. The interjections only increased when Mr. Owusu-Ansah testified. On a conservative estimate, the trial judge interjected 71 times. [15] The test for assessing whether the interventions of a trial judge during a trial amount to a reasonable apprehension of bias was stated by Watt J.A. in R. v. Murray, 2017 ONCA 393, at paras. 95-97:Appellate courts are reluctant to interfere on the ground that a trial judge improperly interfered during the course of a trial. A strong presumption exists that a trial judge has not intervened unduly at trial: R. v. Hamilton, [2011] O.J. No. 2306, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 547, [2012] S.C.C.A. No. 166, [2012] S.C.C.A. No. 151, [2012] S.C.C.A. No. 46, 304 O.A.C. 398n, 304 O.A.C. 397n and 303 O.A.C. 395n; Chippewas, at paras. 231, 243.
When undue intervention is advanced as a ground of appeal, the fundamental question for the reviewing court to determine is whether the interventions led to or resulted in an unfair trial. The issue is assessed from the perspective of a reasonable observer present throughout the trial: Hamilton, at para. 30; Stucky, at para. 72. The analysis is contextual and requires an evaluation of the interventions cumulatively, likewise their cumulative effect on the actual or apparent fairness of the trial: Hamilton, at para. 32; Stucky, at para. 72.
The question ultimately to be decided is whether the comments and interventions would create the appearance of an unfair trial to a reasonable person present throughout the trial proceedings. The analysis is not mathematical. And what is critical is what occurred in the presence of the jury. Events that took place in their absence, at least in most cases, cannot affect them or their decision: Valley, at p. 235 C.C.C. . Manafa v. Tannous
In Manafa v. Tannous (Div Court, 2023) the Divisional Court considers questioning by a small claims court deputy-judge as potential bias:[74] Judges, as triers of fact, are entitled to ask questions to, inter alia, clarify evidence. These questions are posed by judges in order to ensure that the judge assesses the evidence correctly. A rule that would prohibit these types of questions would be contrary to the interests of justice. Having reviewed the transcript, I do not view the Deputy Judge as having lost his impartiality by asking these questions. . R. v. Chambers
In R. v. Chambers (Ont CA, 2023) the Court of Appeal considered possible 'bias' (though that terms wasn't used) of a criminal trial judge:[44] This is not a case involving the sort of actions by a trial judge during the course of a trial that typically attract appellate intervention on the basis of trial fairness. For example, the trial judge did not align himself with the case for the Crown, preclude the appellant from presenting his case, or invite the jury to disbelieve the appellant or his defence: see R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 91-97. The trial judge’s actions occurred in the absence of the jury, permitting the expert to base his evidence on the actual baseboard rather than pictures of it. The trial judge’s actions occurred without objection from trial counsel. The circumstances were unusual, but in our view the strong presumption that a trial judge has not improperly intervened during a trial has not been displaced: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal refused, [2011] S.C.C.A. No. 547; Murray, at para. 95. We are not satisfied that the trial was rendered unfair by the manner in which the expert evidence was handled. . Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario
In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court considered whether the tribunal member was biased by their active involvement in the evidence phase of the hearing:[68] Second, Ms. Yan suggests that the Panel Chair inappropriately took a more active role in the proceedings. Ms. Yan argues, for example, that the Panel Chair allowed independent legal counsel and College’s counsel to take “lots of time” during cross-examination and to “constantly interrupt the Appellant’s legal representative” during cross-examination.
[69] The Court of Appeal in Chippewas of Mnjikaning First Nation v Chiefs of Ontario, 2010 ONCA 47 at paras 230-231, 233, 24 set out for trial judges the following regarding interventions during a trial:A determination of whether a trial judge’s interventions give rise to a reasonable apprehension of unfairness is a fact-specific inquiry and must be assessed in relation to the facts and circumstances of a particular trial. The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial …
An examination of whether a trial judge has unduly intervened in a trial must begin with the recognition that there are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court’s process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings. …
The reasons a trial judge may properly intervene include the need to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial. ... [70] Pursuant to the Statutory Powers Procedure Act, RSO 1990, c S.22, s 25.0.1, Discipline Committees have the power to control their processes during a proceeding. And there is no evidence before this Court to suggest that the Panel Chair acted inappropriately in her role during the proceedings.
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