R. v. Walton, 2025 ONCA 368
[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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