Comment apprécier si les interventions d'un juge lors d'un contre-interrogatoire mine ou non le droit à une défense pleine et entière

R. v Churchill, 2016 NLCA 29

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[18]        This Court in C.H. outlined the considerations that are relevant when determining whether or not the accused’s right to make full answer and defense has been unjustifiably violated by the intervention of the trial judge:

[18]     From the foregoing a number of principles applicable to the case at bar can readily be identified. They are as follows:

(1) A trial judge has both the right and the duty to intervene in examination or cross-examination to clear up ambiguities, provide further information on a matter left vague, provide information on something apparently relevant but left out, and to limit unnecessary repetition and protect witnesses from unnecessarily harassing cross-examination;

(2) The right of intervention must be exercised with judicial discretion and is best left to a point in time when counsel has concluded or is passing to a new subject;

(3) The intervention must not fetter the right of an accused, through his counsel, to subject any witness’s testimony to the test of cross-examination and in particular cross-examination relevant to the issue of credibility must not be improperly curtailed;

(4) Where the interventions by the trial judge seriously limit or impair the ability of counsel to test credibility, particularly of a witness whose evidence is critical to the question of the guilt or innocence of an accused, the accused will have been so prejudiced as to be deprived of a fair trial;

(5) The events of interference must be viewed cumulatively, not as isolated occurrences;

(6) Every alleged departure during trial, from the accepted standards of judicial conduct, must be examined with respect to its effect on the fairness of the trial;

(7) An appellate court is required by s. 686(1)(a)(iii) of the Criminal Code to intervene where the appearance of fairness is so lacking as to result in a miscarriage of justice;

(8) The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial;

(9) Because the ability to effectively cross-examine prosecution witnesses is of fundamental importance to a criminal trial, going to the right to make full answer and defence, it is now protected by ss. 7 and 11(d) of the Charter and should be interpreted in the broad and generous manner befitting its constitutional status, and

(10) An accused in a criminal trial has the right of cross-examination in the fullest and widest sense of the word, as long as he does not abuse that right, and improper interference with that right will result in the conviction being quashed.

(See also Schmaltz at paras. 19-20.)

[19]        Sometimes, a number of unwarranted interruptions will undermine the right to make full answer and defense due to the disruption of counsel’s examination (Brouillard at p. 48).

[20]        The appellant submits that the judge interfered with counsel’s cross-examination more than 20 times and that some of these interventions curtailed effective cross-examination.

[27]        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, [2004] 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.

[28]        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.

[29]        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).

[33]        If treated in isolation none of these incidents would rise to the level of curtailing cross-examination. However, when taken together, I would conclude they 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. The conclusion becomes even stronger since I also conclude the trial judge’s conduct raised a reasonable apprehension of bias.