Ex Parte trial fairness

R. v. Irving, [2012] O.J. No. 1789:

14     The test for determining whether a trial justice's interventions have compromised the appearance of fairness is an objective one. It is whether a reasonably minded person, who had been present throughout the trial, would consider that the Appellant had not had a fair trial. The record must be assessed in its totality and the interventions evaluated cumulatively, not as isolated occurrences, from the perspective of a reasonable observer present throughout the trial. Questioning that conveys an impression that a trial justice has placed the authority of his or her office on the side of the prosecution undermines the appearance of trial fairness. But proper interventions are appropriate. A trial justice has an inherent authority to control the court's process and exercising this authority often requires intervening in proceedings, making comments, giving directions, and asking questions during a trial (see R. v. Stucky [2009] O.J. No. 600 (Ont. C.A.), R. v. Hamilton [2011] O.J. No. 2306 (Ont. C.A.), and R. v. Khan [2008] O.J. No. 1561 (Ont. C.J. per Libman, J.)).

15     There are two problems in this case with the manner in which the trial including sentencing unfolded, both of which created the appearance of placing the authority of the justice on the side of the prosecution. First, his unsolicited assistance to the prosecutor with questioning P.C. Cibulis and instructing both the Prosecutor and the Officer on the correct way to use the rules of evidence to ensure the admissibility of the evidence. Second, the collaborative way in which the Prosecutor and the Justice reached a decision on the sentence seemed like a conversation, where they were deciding together on an equal footing what the sentence would be. The final words of the Justice looked as if he was simply summarizing what the two of them had decided together. The complete absence of the Appellant or a licensed representative in this ex parte trial aggravated these appearances of impropriety.