R. v. Stucky, 2009 ONCA 151
1) The role of a trial judge
[61] The role of a trial judge is often very demanding, owing not only to the inherent nature of the case, but also to the particular conduct of the litigants: R. v. Brouillard, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39, at p. 42. In the case at bar, the trial lasted 69 days and involved the examination of multiple witnesses, including experts and the accused himself. Notwithstanding the length and complexity of a particular trial, a trial judge must exercise restraint and maintain impartiality so as to act within the scope of his or her neutral role. As cautioned by Lamer J. in Brouillard, at pp. 42-43:
Like anyone, a judge may occasionally lose patience. He may then step down from his judge’s bench and assume the role of counsel. When this happens, and, a fortiori, when this happens to the detriment of an accused, it is important that a new trial be ordered, even when the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not incorrectly assessed the facts.
The reason for this is well-known. It is one of the most fundamental principles of our case law [citation omitted]
… that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
[62] The principles that limit the permitted interventions by trial judges during the course of a trial and, specifically, during the examination-in-chief and cross-examination of witnesses, are well established. We review them below.
2) Permitted interventions by a trial judge
[63] In Brouillard, at p. 44, Lamer J. acknowledged that a trial judge may intervene to ask questions, and, where necessary, he or she has a duty to ask questions where justice requires it. However, at the same time, he expressly warned that there are definite limits on this right: Brouillard at p. 46. A trial judge “should confine himself as much as possible to his own responsibilities and leave to counsel…[his or her] function”: R. v. Torbiak and Campbell (1974), 1974 CanLII 1623 (ON CA), 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-231.
[64] In R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 230, leave to appeal refused, [1986] 1 S.C.R. xiii, Martin J.A. set out three situations in which questions put by a trial judge to a witness may be justified, namely: to clear up ambiguities and call a witness to order; to explore some matter which the witnesses’ answers have left vague; or, to put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted. He noted, however, that questions put by a trial judge to a witness should generally be put after counsel has completed his or her examination of the witness and, further, that the witness should not be cross-examined by the trial judge during examination-in-chief: Valley at p. 230. These comments provide guidance as to the timing and nature of interventions that a trial judge may make.
[65] The first two situations of permitted interventions by the trial judge set out in Valley are self-explanatory. The third situation in which a trial judge is permitted to intervene, namely, to ask questions that should have been asked by counsel, is not an open-ended invitation to the trial judge to usurp the role of Crown counsel. The judge cannot leave his or her position of neutrality as a fact-finder and become the cross-examiner: R. v. W.(A.) (1994), 1994 CanLII 218 (ON CA), 94 C.C.C. (3d) 441 (Ont. C.A.) Brooke J.A. in dissent, reversed for the reasons given by Brooke J.A., 1995 CanLII 83 (SCC), [1995] 4 S.C.R. 51.
[66] Where the appearance of fairness is not maintained at trial, the verdict reached cannot stand and a new trial must be ordered. In deciding whether or not the appearance of fairness has been compromised, one factor that warrants consideration is whether the trial judge gave counsel an opportunity to ask questions that arise out of the trial judge’s questioning of a witness, in particular, the accused. An additional factor is whether counsel objected to the trial judge’s questioning of a witness. The absence of an objection, however, is not in itself determinative.
[67] We turn now to the test for determining when this unfairness threshold is met.
3) The test for determining whether the trial judge’s interventions have compromised the appearance of trial fairness
[68] The test is an objective one. As stated by Martin J.A. in Valley, at p. 232:
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. [Emphasis added.]
[69] The appearance of fairness and the trial judge’s corresponding duty to exercise restraint and remain neutral is especially critical in the criminal context where the accused takes the stand: Brouillard at p. 48. Since a criminal trial is an adversarial process between the prosecution and defence, and not an investigation by the trial judge, the examination and cross-examination of witnesses is, for the most part, the responsibility of counsel: Valley at p. 231. Although the trial judge is justified in occasionally intervening for one of the legitimate purposes indicated above, the trial judge must be careful not to usurp the role of counsel because otherwise the overall impression created may be fatal to the appearance of trial fairness.
[70] The effect of interventions by the trial judge on the appearance of trial fairness in a given case must be assessed in relation to the unique facts and circumstances of the particular trial: Valley at p. 231, citing Torbiak at p. 231.
[71] In Valley at pp. 231-32, Martin J.A. listed types of interventions by trial judges which have resulted in the quashing of criminal convictions:
1. Questioning an accused or a defence witness to such an extent or in a manner which conveys the impression that the trial judge has placed the authority of his or her office on the side of the prosecution and conveys the impression that the trial judge disbelieves the accused or the witness;
2. Interventions which have effectively made it impossible for defence counsel to perform his or her duty in advancing the defence; and
3. Interventions which effectively preclude the accused from telling his or her story in his or her own way.
[72] Interventions by a trial judge which can reasonably be said to create the appearance of an unfair trial may be of more than one type, and trial fairness may be undermined by one or more types of interventions: Valley at p. 232. However, it is important to emphasize that no trial is perfect. Accordingly, the record must be assessed in its totality and the interventions complained of in a given case must be evaluated cumulatively, not as isolated occurrences, from the perspective of a reasonable observer present throughout the trial. As stated by Doherty J.A. in R. v. Stewart (1991), 1991 CanLII 11753 (ON CA), 62 C.C.C. (3d) 289 (Ont. C.A.), at p. 320:
It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable but of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness.
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