R v John, 2023 SKCA 116
[8] There are two types of criminal justice systems that dominate the nature of investigation and adjudication around the world: inquisitorial and adversarial. Under these systems, a case is placed before a trier of fact in two distinct ways. In the inquisitorial model, as in continental Europe, a judge takes charge of gathering the evidence in an independent and impartial way and assumes an investigatory role: R v Kahsai, 2023 SCC 20 at para 51, 428 CCC (3d) 135. In an adversarial system, such as in Canada, the opposing parties present relevant evidence and argument while the trial judge (or a judge and jury) presides as “an objective decision‑maker” (Kahsai at para 51).
[9] In a Canadian criminal trial, the Crown bears the evidentiary burden of proving the guilt of the accused beyond a reasonable doubt. It does so by adducing relevant and admissible evidence. The accused is entitled to the presumption of innocence and is not required to testify or present evidence – but may do so if they choose. The prosecution and defence compete against one another as adversaries before the impartial arbiter – the judge, or a judge and jury – who then makes factual findings and legal rulings, commensurate with their respective functions. The adversarial nature of court proceedings in Canada has been recognized as “[t]he bedrock of our jurisprudence”, “a fundamental tenet of our legal system”, and “a principle of fundamental justice” (respectively, R v R.D.S., 1997 CanLII 324 (SCC), [1997] 3 SCR 484 at para 15 [R.D.S.]; Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 358; R v Swain, 1991 CanLII 104 (SCC), [1991] 1 SCR 933 at 937 [Swain]; and R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113 at para 39).
[10] The Canadian adversarial system does not permit a judge to become an independent investigator who seeks out the facts: R.D.S. at para 15. On the contrary, it is essential to a fair trial that each of the justice-system participants – the Crown, the defence counsel and the trial judge – adhere to their respective roles and duties.
[11] When acting as an advocate, a lawyer must represent their client resolutely and honourably within the limits of the law, while treating the court with candour, fairness, courtesy and respect: Code of Professional Conduct (Regina: Law Society of Saskatchewan, April 2023), s. 5.1-1 [Code]. The defence lawyer’s duty is to protect the accused “as far as possible from being convicted, except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which [the accused] is charged”: Code, s. 5.1-1, Commentary 9. In an adversarial proceeding like a criminal trial, this means raising fearlessly every issue, advancing every argument, and asking every question that the lawyer thinks will help the accused’s case, and to endeavour to obtain for the accused the benefit of every defence authorized by law: Code, s. 5.1-1, Commentary 1. The defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the Crown: R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326 at 333; and Code, s. 5.1-1, Commentary 3.
[12] The Crown, however, is not entitled to assume a purely adversarial role toward the defence. The purpose of a criminal prosecution is not to obtain a conviction; it is to put before a judge or jury all available, relevant and admissible evidence necessary to determine the guilt or innocence of the accused: Proulx v Quebec (Attorney General), 2001 SCC 66 at para 41, [2001] 3 SCR 9, quoting R v Boucher, 1954 CanLII 3 (SCC), [1955] SCR 16 at 23–24; see also Code, s. 5.1-3, Commentary 1. While it is both permissible and desirable that the Crown vigorously pursue a legitimate result to the best of its ability, its primary duty is to see that justice is done through a fair trial on the merits.
[13] Generally, a trial judge must not take on, or risk being perceived to have taken on, an adversarial or even quasi-adversarial role. A trial judge sits – and hears and determines the issues raised by the parties: R v Brouillard, 1985 CanLII 56 (SCC), [1985] 1 SCR 39 at 44 [Brouillard], quoting from Jones v National Coal Board, [1957] 2 QB 55 (CA) at 63. In essence, the trial judge’s primary role is that of a listener: R v Huang, 2013 ONCA 240 at para 33, 115 OR (3d) 596 [Huang].
[14] Nevertheless, trial judges are responsible for the conduct of the trial: Brouillard at 44–45; and R v Murray, 2017 ONCA 393 at para 91, 347 CCC (3d) 529 [Murray]. A trial judge may, and sometimes must, intervene to clarify an unclear answer, to resolve a misunderstanding of the testimony, to correct inappropriate conduct by counsel or witnesses, or to otherwise ensure a fair trial: Brouillard at 45; R v Switzer, 2014 ABCA 129 at para 13, 310 CCC (3d) 301; R v Pompeo, 2014 BCCA 317 at para 80, 313 CCC (3d) 539 [Pompeo]; and Murray at para 92. However, in doing so, a trial judge must exercise their trial management powers carefully: R v Samaniego, 2022 SCC 9 at para 22, 412 CCC (3d) 7. They must not undermine the functions of counsel or disrupt counsels’ trial strategies. The trial judge must not descend into the arena or enter the fray: R v Oracz, 2011 ABCA 341 at para 7 [Oracz]. Although a trial is a search for the truth, the Canadian judicial system does not permit a judge to become an independent investigator who seeks out the facts: R.D.S. at para 15. That task should be left to the parties to tender the evidence, conduct the examinations and cross-examinations of the witnesses, and advance their legal and factual arguments: Oracz at para 7; and it is counsel’s job, not the trial judge’s, to explore inconsistencies in a witness’s testimony: Huang at para 33. In particular, a judge must be very cautious in interfering with the presentation of the defence case. The accused has a constitutional right to make full answer and defence, which involves choosing the defence advanced: see Swain at 972.
[15] Where a trial judge has overstepped the limits of the judicial function by intervening to an unwarranted degree, the appearance of trial fairness is undermined, and a new trial must be ordered: Pompeo at para 80. The ultimate question for an appeal court is not whether the judge at trial was, in fact, not impartial or whether the accused was, in fact, prejudiced by the trial judge’s interventions; rather, it is whether a reasonably minded person who had been present for the trial throughout would consider that the accused had not had a fair trial: R v Stucky, 2009 ONCA 151 at para 68, 240 CCC (3d) 141, quoting R v Valley (1986), 1986 CanLII 4609 (ON CA), 26 CCC (3d) 207 (Ont CA) at 232; and Murray at para 96. The necessity of ensuring a fair trial is what governs the appellate inquiry. The trial must be perceived by all concerned to have been conducted fairly and impartially: Oracz at para 7; see also Brouillard at 48.
[16] This Court recently summarized the role of the trial judge in a criminal proceeding, noting the importance of restraint in ensuring trial fairness. In R v Dirksen, 2021 SKCA 6 at para 51, 398 CCC (3d) 411, Tholl J.A. stated:
[51] Trial judges may ask questions of witnesses, including an accused person, in order to clarify their responses, when it appears the witness has misunderstood a question from counsel or to ask other necessary questions: R v Brouillard, 1985 CanLII 56 (SCC), [1985] 1 SCR 39. They must, however, be cautious in exercising this power so that they avoid creating an unfair trial or the appearance of one. The volume and nature of a judge’s questions can lead to the perception that the trial judge has taken a side, interfere with the ability of counsel to present their case, impede accused persons in providing their testimony, and, in the case of a jury trial, invite a jury to disbelieve a witness: Brouillard, R v Schmaltz, 2015 ABCA 4, 320 CCC (3d) 159, and R v Murray, 2017 ONCA 393, 347 CCC (3d) 529. On the other hand, focused and restrained questions do not generally create any issues with trial fairness: R v Gahan, 2014 NBCA 18, 311 CCC (3d) 83.
[17] The Ontario Court of Appeal has also considered the general principles of fairness that govern a trial judge’s management of a trial, and any interventions made by them during the course of trial. In Murray, Watt J.A. summarized the following principles:
[91] It is well established that a trial judge is no longer a mere referee, an ear and eye witness who must sit passively while counsel present the case as they see fit: R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 40; Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, at para. 232, leave to appeal to S.C.C. refused, 276 O.A.C. 398 (note); R. v. Brouillard, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39, at p. 44. We accept that not only may a judge intervene in the adversarial process, but also that sometimes intervention becomes essential to ensure that justice is done in substance and appearance: Brouillard, at p. 44.
[92] A trial judge may intervene to focus the evidence on issues material to a determination of the case. To clarify evidence as it has been given and is being given. To avoid admission of evidence that is irrelevant. To curtail the needless introduction of repetitive evidence. To dispense with proof of the obvious or uncontroversial. To ensure the way that a witness answers or fails to respond to questions does not unduly hamper the progress of the trial. And to prevent undue protraction of trial proceedings: Chippewas, at paras. 233-234.
[93] Trial judges should be cautious in the exercise of these various incidents of what might be compendiously described as the trial management power. For the most part, a trial judge should confine herself to her own responsibilities, leaving counsel and the jury to their respective functions: R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 231, leave to appeal to S.C.C. refused, [1986] 1 S.C.R. xiii (note); R. v. Torbiak [(1974), 1974 CanLII 1623 (ON CA), 18 CCC (2d) 229] and Campbell (1974), 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-31.
[94] 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.
See Valley, at pp. 231-232; R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 71.
[95] Appellate courts are reluctant to interfere on the ground that a trial judge improperly interfered during the course of a trial. A strong presumption exists that a trial judge has not intervened unduly at trial: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal to S.C.C. refused, 304 O.A.C. 398 (note), 304 O.A.C. 397 (note), and 303 O.A.C. 395 (note); Chippewas, at paras. 231, 243.
[96] When undue intervention is advanced as a ground of appeal, the fundamental question for the reviewing court to determine is whether the interventions led to or resulted in an unfair trial. The issue is assessed from the perspective of a reasonable observer present throughout the trial: Hamilton, at para. 30; Stucky, at para. 72. The analysis is contextual and requires an evaluation of the interventions cumulatively, likewise their cumulative effect on the actual or apparent fairness of the trial: Hamilton, at para. 32; Stucky, at para. 72.
[18] Finally, in Schmaltz, the Alberta Court of Appeal provided specific guidance as to the scope and effect of judicial intervention in the accused’s cross-examination of Crown witnesses:
[19] In this case, where trial unfairness is said to arise in part from the trial judge’s interventions in defence counsel’s cross-examination of a witness, several principles ought to be borne in mind:
(1) The right of an accused to present full answer and defence by challenging the Crown’s witnesses on cross-examination flows from the presumption of innocence and the right of the innocent not to be convicted: R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577 at para 39, [1991] SC J No 62 (QL); [R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595] at para 25. This is particularly so when credibility is the central issue in the trial: Osolin at para 27, citing R v Giffin, 1986 ABCA 107, 69 AR 158 at 159.
(2) The trial judge may intervene in certain instances, including to clarify an unclear answer, to resolve misunderstanding of the evidence, or to correct inappropriate conduct by counsel or witnesses. This would extend to protecting complainant witnesses – especially complainants to a sexual assault – from questions tendered for an illegitimate and irrelevant purpose designed to demean, particularly where those questions are random shots at the complainant’s reputation or groundless questions directed to discredited “rape myths” to the effect that the complainant’s unchaste or aroused state made it more likely that she would have consented to the sexual activity in question: [R v Lyttle, 2004 SCC 5, [2004] 1 SCR 193] at 208-09; R v Valley, (1986) 1986 CanLII 4609 (ON CA), 26 CCC (3d) 207 at para 53, 13 OAC 89, leave to appeal refused [1986] SCCA No 298 (QL) [Valley]; R v Regan, 2002 SCC 12 at para 85, [2002] 1 SCR 297; R v Shearing, 2002 SCC 58 at para 76), [2002] 3 SCR 33.
(3) When the trial judge does intervene, he or she must not do so in a manner which undermines the function of counsel, that frustrates counsel’s strategy, or that otherwise makes it impossible for defence to present the defence or test the evidence of Crown witnesses: Valley at para 55; R v Brouillard, [1985] 1 SCR 39 at 44-47, 1985 CanLII 56; R v Konelsky, 1989 ABCA 201 (CanLII), 98 AR 247 at 248, 68 Alta L R (2d) 187 (CA).
(4) If a trial judge “enters the fray” and appears to be acting as an advocate for one side this may create the appearance of an unfair trial: R v Switzer, 2014 ABCA 129 at para 7, 572 AR 311 [Switzer].
(5) In determining whether the trial judge’s interventions deprived the accused of a fair trial, those interventions should not be considered separately and in isolation from each other, but cumulatively: R v Khan, 2001 SCC 86 at para 77, [2001] 3 SCR 823 [Khan]; R v Stucky, 2009 ONCA 151 at para 72, 303 DLR (4th) 1, R v Watson (2004), 2004 CanLII 45443 (ON CA), 191 CCC (3d) 144 at para 14, 192 OAC 263. The concern here is that incidents which, considered in isolation, might be viewed as insignificant might combine to lead a reasonably minded person to consider that the accused had not had a fair trial: Khan at para 76; R v Stewart (1991), 1991 CanLII 11753 (ON CA), 62 CCC (3d) 289 at para 46, 1991 CarswellOnt 1317 (CA) [Stewart].
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