It is rare to find appellate court decisions that address what are the limits to judicial intervention in a trial. Thanks to Judge Wayne Gorman, there is a Canadian court of Appeals decision on judicial intervention. Before judges stop reading: pause. This is an issue all of us can reflect on.
There is an old trial lawyer’s adage of a lawyer approaching the bench and saying, “Judge, I do not mind your trying my case but please do not lose it for me.” These decisions are not easy. They come up more frequently when dealing with self-represented litigants. But they are important issues each of us need to reflect on.
In R. v. Churchill, 2016 NLCA 29, June, 2016, the accused was convicted of the offence of aggravated assault. He appealed from conviction, arguing that the trial judge’s conduct created a reasonable apprehension of bias. The Court of Appeal described the issues as being: “did the trial judge’s interventionist approach undermine procedural fairness by creating a reasonable apprehension of bias; and, did the interventions prevent the appellant from making full answer and defense.”
The appeal was allowed. The Court of Appeal noted that “the trial judge took what can only be described as an interventionist approach, frequently interrupting witnesses and both counsel, to ask questions and make comments.”
Full Answer and Defense:
The Court of Appeal held that there were “several instances when the trial judge interrupted counsel in an inappropriate manner, which had the effect of undermining counsel’s ability to effectively cross-examine the complainant on key points.” The Court of Appeal offered three examples:
The first interruption occurred after the very first question counsel asked of the complainant, regarding surgery. The trial judge immediately asked if this question had any relevance to the matter at trial, without waiting to see if counsel’s line of inquiry could prove fruitful. He then suggested counsel’s theory was inappropriate absent medical evidence.
This interruption was premature. It is well established the defense does not need to lead evidence in order to put a theory to the witness in good faith (R. v. Lyttle, 2004 SCC 5,  1 S.C.R. 193). The trial judge should have provided counsel with the opportunity to demonstrate the relevance of the inquiry before interrupting counsel’s very first question to the witness. It sent a message to counsel and the witness that counsel’s questioning was going to be perceived as irrelevant and need not be taken seriously.
The second interruption occurred when counsel was cross-examining the complaint about the medications that she was taking for her back. The judge guessed counsel’s ultimate question and offered it to the witness for a response.
This interruption was inappropriate. There was nothing confusing that needed clarification. The judge chose to guess what counsel’s next question would be and tell the witness. This kind of interruption disrupts the rhythm of cross-examination and counsel’s psychological control over the witness (Lyttle at para. 7, see also Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 at para 41).
The third interruption occurred when counsel was cross-examining the complainant about her statement to the police, ranking how intoxicated she was on the night in question, on a scale of 1 to 10. The trial judge interrupted again, commenting that he had “no idea” what the scale meant.
This interruption did serve the purposes of clarification. However, it was also unnecessary and the judge’s tone was dismissive. The question asked the complainant to rank her level of intoxication in well-understood laypersons’ terms – a scale of 1 to 10. While the judge correctly noted this was not the most precise analysis, in the absence of scientific evidence, defense counsel was trying to paint a picture of the complainant’s state that night. There was no need for the judge to ask if a rank of 10 meant “absolutely cold junk” and signal to the witness this line of inquiry was not to be taken seriously.
The Court of Appeal concluded that “when taken together”, these interruptions “disrupted the flow of counsel’s cross-examination, undermined his authority in the eyes of the witness and thereby prevented the accused from effectively putting his theory to the complainant. Thus the right to make full answer and defense was undermined.”
Reasonable Apprehension of Bias:
The Court of Appeal indicated that a “reasonable apprehension of bias may arise if the trial judge intervenes improperly during the examination of witnesses (Brouillard at p. 48, Chippewas at para. 238), during counsel’s closing submissions (R. v. Edmond, 2014 BCSC 1375), or treats the witnesses or counsel uncivilly by being impatient, sarcastic or taunting.”
The Court of Appeal concluded that a “number of comments from the judge would leave the reasonable observer with the impression that he was predisposed to decide in favour of the Crown and approached the defense’s case with a closed mind.” The Court of Appeal referred to the following examples:
During cross-examination the trial judge also indicated to counsel that he was “not impressed” by defense counsel’s suggestion that the complainant had misled the court when she did not tell the truth about having no contact with the appellant while subject to a no-contact order. These types of comments from the trial judge indicate to a reasonable person that the judge is not open to hearing challenges to the complainant’s credibility and has decided the issue before the examination of the complainant has concluded.
Subsequently, during the Crown’s cross-examination of the appellant the trial judge gave the Crown “tips” about how to conduct it, offering advice such as “[e]xplore it, Ms. Holmes, find out where he was when he threw the bottle” and “[m]aybe ask him, was she facing the dart board or was she facing away from the dart board?”. While all judges have had an experience where they wish counsel would ask certain questions or make certain arguments, generally Crown counsel should be permitted to make their case against the accused as they see fit, without undue interference from the trial judge. The judge’s unnecessary comments in this case, when considered with the fact that the judge had also persistently questioned the appellant during his direct testimony, would lead a reasonable person to conclude that the judge was assisting Crown counsel in prosecuting the appellant.
Moreover, reviewing defense counsel’s final submission, one unfortunately gets the impression that the trial judge had reached his conclusion before hearing it in full. While judges are permitted to debate the relevance of certain facts and legal authorities with counsel (Chippewas at para. 243), the judge’s approach here was unnecessarily dismissive, disruptive and argumentative (Edmond at para 76).
The Court of Appeal concluded that the trial judge’s conduct “crossed the line”:
Overall, the conduct of the judge crossed the line. This is not simply a case of active intervention by a judge to achieve proper trial management. In this case the interventions cannot be justified on these grounds. A reasonable person sitting in the courtroom would, in my view, assume that the judge held a negative view of the defence being put forward and was improperly trying to assist the Crown in the presentation of its case to the prejudice of the accused. While the desire to participate actively in a case is understandable, judges must be careful to ensure there is a demonstrably fair trial and not give the impression (unintended as it may be) that the presence of the witnesses in the courtroom is just a formality and conviction is a foregone conclusion. Unfortunately, this did not happen here.