Judicial intervention at trial

R. v. Hamilton, 2011 ONCA 399 deals with when judge's intervention at trial is improper. It is a difficult question and when it happens deciding whether to object is an issue in itself. The Court held:

[29]         Appellate courts are reluctant to interfere on the basis that a trial judge improperly intervened during a trial.  There is a strong presumption that a trial judge has not unduly intervened in a trial, and that "there are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial": Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, at para. 231.   

[30]         When evaluating interventions by a trial judge, the fundamental question is whether the interventions led to an unfair trial: R v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 232, application for leave to appeal dismissed, [1986] S.C.C.A. No. 62. This assessment is made from the perspective of a reasonable observer present throughout the trial: R v. Stucky (2009), 240 C.C.C. (3d) 141 (Ont. C.A.), at para. 72.  Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not in themselves create unfairness. 

[31]         In Stucky, at para. 71, this court repeated three situations, referred to in Valley at pp. 231-32, where interventions by the trial judge have been found to lead to an unfair trial and have resulted in quashing criminal convictions. These situations are:

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 that have effectively made it impossible for defence counsel to perform his or her duty in advancing the defence; and

3.      Interventions that effectively preclude the accused from telling his or her story in his or her own way.

[32]         While these three situations appear to go some way toward categorizing different types of interventions, the analysis is nonetheless a contextual one.  That is, interventions should not be judged in isolation but in the broader context of the entire trial: "[T]he record must be assessed in its totality and the interventions complained of in a given case must be evaluated cumulatively, not as isolated occurrences": Stucky, at para. 72. 

[33]         Simply put, the rules limiting the ways in which a trial judge can intervene in proceedings are based on the oft-repeated adage that "justice should not only be done, but should manifestly and undoubtedly be seen to be done" (internal citations omitted): Stucky, at para. 61.