Inappropriate Trial Judge Interventions

R v Crawford, 2015 ABCA 175:

The Trial Judge's Interventions

[6]               The appellant alleges that the trial judge's numerous interruptions rendered the trial unfair. He has provided a catalogue of illustrations that he says supports this complaint. I have reviewed the transcript and I am concerned both with the number and nature of the interventions throughout the trial.

[7]               All understand that ours is an adversarial system requiring adjudication by a judge who is, and must be seen to be, impartial: Bizon v Bizon, 2014 ABCA 174 (CanLII) at para 33, [2014] 7 WWR 713.  That fundamental requirement is not compromised by questions from the court to any witness directed at clarifying a point or repeating part of an answer that was unheard: R v Schmaltz, 2015 ABCA 4 (CanLII) at para 19,[2015] AWLD 573. It is also not compromised by judicial intervention aimed at maintaining control of the court process, avoiding irrelevant or repetitious evidence, and ensuring that the witness is answering the question: R v Hamilton,2011 ONCA 399 (CanLII) at paras 47-48, 271 CCC (3d) 208. Such interventions, where warranted, are appropriate. But there will be few other occasions during a trial where the accused is represented by counsel that a judge may question a witness without creating the impression that he or she is entering the fray and leaving judicial impartiality behind.

[8]               It has been said that a judge may also intervene to ask questions that should have been asked by counsel. That suggestion was made in R v Torbiak (1974), 18 CCC (2d) 229 at 230-31, 26 CRNS 108 (ONCA):

The proper conduct of a trial judge is circumscribed by two considerations. On the one hand his position is one of great power and prestige which gives his every word an especial significance. The position of established neutrality requires that the trial judge should confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions. On the other hand his responsibility for the conduct of the trial may well require him to ask questions which ought to be asked and have not been asked on account of the failure of counsel, and so compel him to interject himself into the examination of witnesses to a degree which he might not otherwise choose [emphasis added].

[9]               The jurisprudence that has considered the highlighted passage counsels restraint. Even the court in Torbiak, noted:

The position of established neutrality requires that the trial judge should confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions. (at 230-231)

[10]           Likewise in R v Lynxleg, 2002 MBCA 101 (CanLII) at para 19, [2003] 1 WWR 425, the court cautioned:

However there are certain limits on this right and duty. Judges must not descend into the arena and interfere with the adversarial process to the extent that they lose their neutrality.

[11]           See also R v. Stucky, 2009 ONCA 151 (CanLII), [2009] ONCA 151, 240 CCC (3d) 141at para 65.

[12]           A misstep may be fatal. Lamer J., (as he then was),  in R v Brouillard, 1985 CanLII 56 (SCC), [1985] 1 SCR 39 at 42-43, 16 DLR (4th) 447 concluded:

When this happens, [that a judge steps down from the bench and assumes the role of counsel] 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. 

[13]           The highlighted portion from Trobiakwas clearly not intended to encourage judicial advocacy. It was only to acknowledge that there may be exceptional circumstances which require a judge to ask questions of a witness that counsel should have asked. But those situations will be rare and the task must be approached with care. I am not here referring to a judge asking a question of a witness to establish jurisdiction where counsel has forgotten to do so and the matter is not an issue. Few questions could be more benign.

[14]           But where the judge thinks more questions should have been asked touching on a matter of controversy or dispute, caution is strongly advised. The prudent course will be for the court, in the absence of the jury and the witness, (where the witness is not the accused), to canvass the perceived omission with counsel. Most issues can be resolved either by counsel persuading the judge to leave the questions unasked, or by agreeing that counsel, who has forgotten to ask the question, may do so when the jury and the witness return.

[15]           When consent to that approach is not forthcoming, the judge will be wise to reflect whether the questions in fact need to be asked and whether the questioning can be achieved in a manner that does not undermine judicial impartiality; and only then proceed.

[16]           Returning to the case at bar, in R v Valley (1986), 13 OAC 89, 26 CCC (3d) 207 (ONCA), Martin J.A., speaking for the court, identified four categories of judicial intervention which may prompt appellate intervention. He then observed:

Interventions by the judge creating the appearance of an unfair trial may be of more than one type and the appearance of a fair trial may be destroyed by a combination of different types of intervention. 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: see R. v. Brouillard, supra; R. v. Racz, [1961] N.Z.L.R. 227 (C.A.) [emphasis in original].

[17]           That standard is now well recognized and universally applied. With it in mind, I turn to consider the interventions of the trial judge in the case at bar. There are many; some are entirely appropriate such as asking a witness to repeat what he had said or clarifying an answer. Others, because of their timing and nature, were in my opinion inappropriate. I will refer to only a few, including those that cause me the greatest concern. The following interventions occurred