R. v. Redden, 2021 BCCA 230
[96] In R. v. Russell, 2011 BCCA 113, this Court canvassed the principles that govern this ground of appeal. In that case, a Supreme Court judge convicted Mr. Russell of a drug offence. He appealed his conviction on the ground that questions posed to him by the judge after the Crown’s cross-examination raised a reasonable apprehension of bias. When he finished his questioning, the judge told counsel that he asked the questions for the specific purpose of assessing Mr. Russell’s credibility (at para. 11). Similar to the complaints on this appeal, Mr. Russell argued that the judge’s “questioning of him conveyed the impression that he was placing his authority on the side of the prosecution and conveyed the impression of disbelief” (at para. 20).
[97] The Court dismissed the appeal. It acknowledged that the questions of Mr. Russell were “relatively extensive” (at para. 22). It further acknowledged that they were “effective in probing the implausibility” of Mr. Russell’s testimony on a collateral point (at paras. 21–22). However, once considered in the context of the entire trial, neither the extent of the questions nor the manner in which the judge posed them conveyed the “impression that [he] placed his authority on the side of the prosecution” (at para. 23).
[98] In reaching this conclusion, the Court reviewed a number of authorities, holding that they “make plain” the discretionary allowance of a trial judge to ask questions (at para. 26).
[99] For example, R. v. Darlyn (1946), 1946 CanLII 248 (BC CA), 88 C.C.C. 269 (B.C.C.A.) held that a judge “not only [has] the right, but also the duty to put questions to a witness in order to clarify an obscure answer or to resolve possible misunderstanding of any question by a witness, even to remedy an omission of counsel” (at 277).
[100] In R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), it was noted that a judge “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” (at 230).
[101] However, the discretion to ask questions “must be exercised judicially which, in every case, means that care must be taken not to overstep the permissible bounds of intervention”: Russell at para. 26. Judicial overstepping that has led to the quashing of convictions includes, but is not limited to:
• questions that leave an impression of partiality towards the Crown;
• interventions that functionally make it impossible to present a defence in the manner strategized by counsel, such as diverting counsel from their line of questioning or preventing a proper testing of evidence;
• preventing an accused from telling their story because of interruptions; or,
• comments to or about defence counsel that imply they are conducting themselves unethically or unprofessionally, thereby undermining the integrity and good faith of counsel in the eyes of their client or the jury.
Valley at 230–232, as cited in R. v. C.S.M., 2008 BCCA 397 at paras. 8–9.
See also R. v. Murray, 2017 ONCA 393 at paras. 91–97; R. v. Pompeo, 2014 BCCA 317 at paras. 70–82.
[102] The assessment of whether one or more interventions undermined trial fairness is contextual and undertaken with reference to the trial as a whole. It is not an assessment completed on the bases of “isolated occurrences”: R. v. Stucky, 2009 ONCA 151 at para. 72. Ultimately, the question to ask is whether the appellant “might reasonably consider that [they] had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the [appellant] had not had a fair trial”: Valley at 232, citing Brouillard Also Known as Chatel v. The Queen, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39.
Aucun commentaire:
Publier un commentaire