R. v. Ertmoed, 2006 BCCA 365
[74] The important difference between the test for ineffective assistance of counsel and the test for improper interventions by a trial judge is that in the case of counsel’s conduct, an appellant must show a reasonable probability that counsel’s errors have caused prejudice leading to a miscarriage of justice; whereas in the case of a trial judge’s conduct, the appellant need only show that he, or a reasonably minded person, might reasonably consider that the appellant had not had a fair trial.
[75] The thrust of this ground of appeal is that many of the trial judge’s comments to defence counsel disparaged him and his conduct of the defence, to such an extent that the fairness of the trial, or its appearance, was affected.
[76] A helpful general statement of the law was made by Mr. Justice Martin in R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.) at pp. 230-31:
Whether the judge’s interventions and comments resulted in the appearance of an unfair trial.
The judge’s role in a criminal trial is a very demanding one, sometimes requiring a delicate balancing of the interests that he is required to protect. The judge presides over the trial and is responsible for ensuring that it is conducted in a seemly and orderly manner according to the rules of procedure governing the conduct of criminal trials and that only admissible evidence is introduced. A criminal trial is, in the main, an adversarial process, not an investigation by the judge of the charge against the accused, and, accordingly, the examination and cross-examination of witnesses are primarily the responsibility of counsel. The judge, however, is not required to remain silent. He may question witnesses to clear up ambiguities, explore some matter which the answers of a witness have left vague or, indeed, he may put questions which should have been put to bring out some relevant matter, but which have been omitted. Generally speaking, the authorities recommend that questions by the judge should be put after counsel has completed his examination, and the witnesses should not be cross-examined by the judge during their examination-in-chief. Further, I do not doubt that the judge has a duty to intervene to clear the innocent. The judge has the duty to ensure that the accused is afforded the right to make full answer and defence, but he has the right and the duty to prevent the trial from being unnecessarily protracted by questions directed to irrelevant matters. This power must be exercised with caution so as to leave unfettered the right of an accused through his counsel to subject any witness’s testimony to the test of cross-examination. The judge must not improperly curtail cross-examination that is relevant to the issues or the credibility of witnesses, but he has power to protect a witness from harassment by questions that are repetitious or are irrelevant to the issues in the case or to the credibility of the witness: see R. v. Bradbury (1973), 1973 CanLII 1442 (ON CA), 14 C.C.C. (2d) 139 at pp. 140-1, 23 C.R.N.S. 293 (Ont. C.A.); R. v. Kalia (1974), 60 Cr. App. R. 200 at pp. 209-11.
and further at pp. 231-32:
An examination of the authorities reveals that the principal types of interventions by trial judges which have resulted in the quashing of convictions are these:
I Questioning of an accused or his witnesses to an extent or in a manner which conveys the impression that the judge is placing his authority on the side of the prosecution and which conveys the impression of disbelief of the accused or defence witnesses: see Brouillard (a.k.a. Chatel) v. The Queen (1985), 1985 CanLII 56 (SCC), 17 C.C.C. (3d) 193, 16 D.L.R. (4th) 447, [1985] 1 S.C.R. 39; R. v. Denis, 1966 CanLII 561 (QC CA), [1967] 1 C.C.C. 196, [1966] Que. Q.B. 404n (Que. C.A.).
In Brouillard v. The Queen, supra, during the accused’s testimony the judge asked more questions than both counsel, interrupted the accused’s examination-in-chief and cross-examined him. The judge posed about 60 questions to a defence witness and interrupted her 10 times. Both the accused and his witness were subjected to sarcastic remarks by the trial judge.
II Where the interventions have made it really impossible for counsel for the defence to do his or her duty in presenting the defence, for example, where the interruptions of the trial judge during cross-examination divert counsel from the line of topic of his questions or break the sequence of questions and answers and thereby prevent counsel from properly testing the evidence of the witness: see R. v. Matthews (1983), 78 Cr. App. R. 23 at p. 31; Jones v. National Coal Board, [1957] 2 Q.B. 55 at p. 65.
III Where the interventions prevent the accused from doing himself justice or telling his story in his own way: see R. v. Matthews, supra, at p. 31; R. v. Perks, [1973] Crim. L.R. 388; R. v. Cain (1936) 25 Cr. App. R. 204; R. v. Hulusi (1973), 58 Cr. App. R. 378.
IV The courts have drawn a distinction between conduct on the part of the presiding judge, which is discourteous to counsel and indicates impatience but which does not invite the jury to disbelieve defence witness, and conduct which actively obstructs counsel in his work: R v. Hircock, [1970] 1 Q.B. 67 (C.A.); R. v. Ptohopoulos (1967), 52 Cr. App. R. 47. The authorities have consistently held that mere discourtesy, even gross discourtesy, to counsel cannot by itself be a ground for quashing a conviction. Where, however, the trial judge’s comments suggest that counsel is acting in a professionally unethical manner for the purpose of misleading the jury, the integrity and good faith of the defence may be denigrated and the appearance of an unfair trial created: R. v. Turkiewicz, Barrow and MacNamara (1979), 1979 CanLII 1804 (ON CA), 50 C.C.C. (2d) 406, 103 D.L.R. (3d) 332, 26 O.R. (2d) 570 (Ont. C.A.); R. v. Hulusi, supra.
Interventions by the judge creating the appearance of an unfair trial may be of more than one type and the appearance of a fair trial may be destroyed by a combination of different types of intervention. 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: see Brouillard v. The Queen, supra; R. v. Racz, [1961] N.Z.L.R. 227 (C.A.).
[77] In the submission of counsel on appeal, the trial judge intervened “on almost 80 occasions”, “to criticize, rebuke or admonish defence counsel”, and on 20 other separate occasions he told defence counsel he was questioning the witness unfairly, misstating the evidence, treating the witness improperly or commenting on the evidence in an unfair or improper manner. Counsel contends that overall the trial judge’s interventions must have compromised the credibility of defence counsel, and therefore the defence, in the eyes of the jury.
[78] Given the protracted voir dire that preceded the trial and the prolix, time-consuming and often unproductive nature of defence counsel’s cross-examinations, it is not surprising that the trial judge was moved to frequent interventions. As described in R. v. Valley, the judge had a duty to control the trial process and to protect witnesses from repetitious and irrelevant questioning. Here the judge’s interventions did not, in my opinion, impair counsel’s ability to cross-examine the witnesses, or prevent the appellant from making a full answer and defence. The trial judge’s words did not invite the jury to disbelieve the appellant, and did not impugn counsel’s honesty or integrity.
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