Permitted interventions by a trial judge

Trial judges have a difficult task, especially in criminal or quasi-criminal matters. Where counsel do not do an effective job, or where parties are self represented, the trial judge's task is even more difficult.

A trial judge may intervene and ask questions but only in limited circumstances and only insofar as questions can be asked without the judge losing the appearance (and reality) of impartiality.

Today's decision in R. v. Stucky, 2009 ONCA 151 sets out where such questioning is permitted:

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), 18 C.C.C. (2d) 229 (Ont. C.A. ), at pp. 230-231.

[64]          In R. v. Valley (1986), 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), 94 C.C.C. (3d) 441 (Ont. C.A. ) Brooke J.A. in dissent, reversed for the reasons given by Brooke J.A., [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.
James Morton
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