Even Homer Nods

What ought counsel to do if it appears the judge cannot follow the evidence because of physical difficulty? – specifically, the judge appears to be dozing.

My own sense is that the appearance of dozing is not necessarily dispositive – sometimes a person closes their eyes when they are concentrating intently. But consider a situation where there really is a lack of attention through sleep.

Not surprisingly, there is little caselaw on point but today’s Court of Appeal decision in Leader Media Productions v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership, 2008 ONCA 463 considers the issue.

The rule is that counsel suspecting a judge is not awake must bring the issue to the attention of the Court immediately (presumably by some method more subtle than loudly yelling “wake up!”) and not holding back until appeal. The key passage of the decision provides:

Counsel was obliged to bring the trial judge’s inattention home to him at the time. Not having done so, and having decided to wait and see what happened, they cannot now raise that inattention for the first time as a ground of appeal on either a substantive or contextual basis.

Part of the Court’s reasoning follows:

3. Trial Judge’s Inability to Follow the Evidence (Fresh Evidence Application)

[40] The appellants have moved in this court to admit fresh affidavit evidence showing that the trial judge was unable to follow the evidence because he fell asleep repeatedly during the trial. The fresh evidence consists of five affidavits authored by appellants’ trial counsel and others. These affidavits suggest the trial judge fell asleep frequently but for only very brief periods of time.

[41] During oral argument counsel for the appellants said that the subject matter of the fresh evidence application did not constitute a separate independent ground of appeal. Rather, he said it should be considered contextually in relation to the other two substantive grounds raised.

[42] The respondent says that the fresh evidence does not meet the R. v. Palmer test. It says this evidence was available at the time of trial and that the appellants decided, as a matter of tactics, not to raise it at trial and preferred instead to “wait and see how things played out”.

[43] Despite the respondent’s argument, I would admit the fresh evidence because it relates to the validity of the trial process. As the majority of this court said in R. v. Rajaeefard (1996), 27 O.R. (3d) 323 at 325: “Where the new evidence sought to be admitted is relevant to the validity of the trial process itself, rather than directed at a finding made at trial, it is admissible.”

[44] In R. v. Widdifield (1995), 25 O.R. (3d) 161 at 169, this court explained that the criteria ordinarily applied to determine the admissibility of fresh evidence do not apply when the evidence challenges the validity of the trial process:

The Palmer criteria, do not, however, apply to all situations where fresh evidence is offered on appeal. Those criteria reflect the balancing of competing considerations relevant to the interests of justice when fresh evidence is offered to attack a determination made at trial. The same criteria cannot necessarily be applied where, as here, the fresh evidence is offered for a different purpose. The material sought to be admitted here is not directed at a finding made at trial, but instead challenges the very validity of the trial process.

[45] However, even where the fresh evidence is admissible, on the particular facts of this case, in my view, it does not assist the appellants.

[46] At trial, the appellants deliberately did not raise with the trial judge their concern that he might have been sleeping. Instead they made a deliberate tactical decision to in effect – as respondent’s counsel put it – “hedge their bets”. Instead of confronting the trial judge, after discussions among appellants’ counsel (including a senior litigator at the firm who remained at the office and was not directly involved in the trial per se), they made a deliberate decision not to raise the issue. As Mr. Bradley Sherman put it in his affidavit, they decided to “wait and see how things played out”. Presumably, if the trial result was in their favour they would do nothing; if not, they would have this additional evidence to use as a basis for appeal arguing that they were denied the right to a fair trial.

[47] Even after the reasons for judgment were released, the appellants did not base their motion for a mistrial on the drowsiness of the trial judge nor did they even raise the issue. The mistrial motion was based solely on the fact that the appellants had been denied the opportunity to make oral argument in addition to written argument. Only in this court, for the first time, is the issue raised that the trial judge was inattentive to the evidence.

[48] There appears to be little case law on point. In fact, the parties have only drawn the court’s attention to two similar cases. The first is a case decided by the Australian Queensland Court of Appeal. The second is a recent decision from the Alberta Court of Appeal which was only released several weeks after this appeal was argued.

[49] In the Queensland Court of Appeal case, Stathooles v. Mount Isa Mines Limited, [1997] 2 Qd. R. 106 the allegations were that the trial judge had dozed off or slept during part of the evidence. In making its decision, the court stressed the fact that the alleged drowsiness was not raised with the trial judge at any time during the trial, and dismissed the appeal. Macrossan C.J. noted at p. 111:[2]

A broad discretion does exist for an appellate court to order a new trial in civil cases where a first trial has been unfair … In civil, as in criminal cases, the discretion can be exercised when the first trial has resulted in a miscarriage of justice.

…

The exercise of the discretion to order a new trial on the basis that a miscarriage of justice has occurred may require a wide view to be taken of the circumstances but it is necessary to remember that our adversarial system requires parties to proceedings to accept responsibility for their own actions deliberately and consciously taken. Decisions taken by parties with a full awareness of relevant matters can strongly influence the way in which the discretion in cases of an alleged miscarriage of justice will be exercised.

[50] Macrossan C.J. then went on to quote from a joint judgment of the High Court of Australia in the case of Vakauta v. Kelly (1989), 167 C.L.R. 568 at 572:

[A] party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

[51] The appellant’s argument in Stathooles was that the determination of the case turned on the credibility of witnesses and that the judge had been especially inattentive during the cross-examination of Stathooles, yet made a finding adverse to him. It was argued that the conclusion reached may have been different had there been no failure on the part of the trial judge to observe and listen to that witness throughout his testimony. In reaching a conclusion Macrossan C.J. noted at pp. 112-113:

The lack of reaction here by counsel fully aware of the situation is of importance from a different point of view. It cannot be accepted that there is an entitlement to do nothing at the time, hold the point in reserve until the decision is given and then, since it has proved to be adverse to the appellants, seek to set it aside.

…

In the present case, if what is alleged to have occurred is sufficient to constitute a significant defect in the proceedings, it should have been drawn to the attention of the trial judge at the time it occurred. To experienced counsel there should have been no difficulty other than perhaps some slight embarrassment in being required to draw the judge’s attention to the concern that was felt that he may be missing an important feature of the evidence. Experienced professional advocates may be called on to display conduct which will need to be more robust than that in their day to day practice in the courts. There should have been no fear that what needed to be done could not have been handled with the customary courtesy that should, and usually does, prevail between judge and counsel in the hearing of cases.

[52] The second case, R. v. Chan, [2007] A.J. No. 1522, was only released by the Alberta Court of Appeal after this appeal was heard. In this case, during the sentencing hearing, court staff noticed that the trial judge appeared to be sleeping during the appellant’s testimony. The judge was awakened and adjourned the proceedings. The appellant then applied for a mistrial.

[53] During argument on the mistrial, the trial judge advised that he had fallen asleep because of a medical condition. The appellant then filed an affidavit alleging that the trial judge’s posture while sleeping was the same as it had been during critical points of the trial. The trial judge refused to grant a mistrial, stating that lawyers are obligated to raise inattentiveness in a judge when they notice it. He directed another judge to deal with sentencing. The appellant appealed.

[54] Although the Court of Appeal ultimately allowed the appeal on other grounds, it rejected the appellant’s inattentiveness argument for the same reasons discussed above. Speaking for the court, Ritter J.A. stated:

[19] We conclude that Nicholas has failed to demonstrate that he suffered prejudice at the trial stage of these proceedings. The trial judge fell asleep during the testimony at the sentencing stage of the trial, several months after all evidence relating to Nicholas' guilt had been adduced. An accused person must, at a minimum, show a real danger of prejudice before judicial inattentiveness, that is sleeping, will call for the results of his trial to be set aside. [for authority, see Cesan v. Director of Public Prosecutions (CTH), [2007] NSWCCA 273 at paras. 190ff] In this case, Nicholas' affidavit accomplishes, at most, speculation that the trial judge's similar posture during the trial must mean he was asleep.

[20] Nicholas' affidavit does not identify exactly when he noticed this posture, so it is impossible to determine whether any crucial issues were being dealt with at the time. Moreover, it is incumbent upon counsel to immediately draw a trial judge's inattentiveness to his attention, so as to permit replacement testimony or other corrective procedures during the course of the trial. It is not enough, nor is it appropriate, to note the inattentive episode and then hold it on reserve in the event the result at trial was less than what is hoped for. We do not suggest that is what occurred here, but the effect is the same.