R. v Churchill, 2016 NLCA 29
[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).
[30] 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.
[31] 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.
[32] Furthermore, the trial judge also made suggestions to the complainant about how to explain the inconsistencies in her evidence. The complainant was cross-examined on her statement to the police that after the argument with the appellant she went to bed, which was inconsistent with her evidence at trial that she remained in the shed all night. The trial judge asked her whether she fell asleep in the chair in the shed, without the complainant independently offering this evidence. This was clearly inappropriate. Trial judges should not give indications to a witness as to what evidence she might give in an effort to explain inconsistencies in her evidence.
[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.
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