One dealt with is the proper scope of judicial intervention during trial. Generally the judge's duty is to listen and stay above the fray -- but sometimes the judge can properly intervene. The danger is intervening and being seen as bias.
The Court writes:
[229] The often repeated test for a reasonable apprehension of bias is found in de Grandpré J.'s dissenting opinion in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at pp. 394-95. It is as follows:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."
…
The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
[230] A determination of whether a trial judge's interventions give rise to a reasonable apprehension of unfairness is a fact-specific inquiry and must be assessed in relation to the facts and circumstances of a particular trial. The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial: see R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.) at p. 232, leave to appeal to S.C.C. refused, [1986] 1 S.C.R. xiii; and R. v. Stucky (2009), 240 C.C.C. (3d) 141 (Ont. C.A.), at paras. 68, 70, 72.
[231] An examination of whether a trial judge has unduly intervened in a trial must begin with the recognition 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. A trial judge has an inherent authority to control the court's process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings.
[232] In R. v. Felderhof (2003), 68 O.R. (3d) 481 (C.A.), at para. 40, this Court said:
[40] Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please. Until relatively recently a long trial lasted for one week, possibly two. Now, it is not unusual for trials to last for many months, if not years. Early in the trial or in the course of a trial, counsel may make decisions that unduly lengthen the trial or lead to a proceeding that is almost unmanageable. It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. I do not see this power as a limited one resting solely on the court's power to intervene to prevent an abuse of its process. Rather, the power is founded on the court's inherent jurisdiction to control its own process.
[233] The reasons a trial judge may properly intervene include the need to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.
[234] In short, a trial judge has the authority to prevent a trial from being unnecessarily protracted and "is entitled to manage the trial and control the procedure to ensure the trial is effective, efficient and fair to both sides": see R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.), at para. 24.
[235] In its 2009 publication, "Principles of Civility for Advocates", available online at «http://www.advocates.ca», the Advocates' Society includes a section entitled, "What Advocates are Entitled to Expect of the Judiciary". Under that heading, principle 73 reads: "Advocates are entitled to expect judges to maintain firm control of court proceedings and ensure that they are conducted in an orderly, efficient and civil manner by counsel and others engaged in the process."
[236] We agree with that principle. We would add that the parties and the public are also entitled to have these same expectations of trial judges.
[237] For the most part, trial judges can manage the trial process by asking questions of counsel, making comments or giving directions about the course of the trial. ... Trial judges should be careful about trying to control a trial by examining witnesses. In the normal course, "the trial Judge should confine himself [or herself] as much as possible to his [or her] 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. 230-31; see also Valley, at p. 231.
[238] On occasion, trial judges may be required to play a more active role in asking witnesses questions. However, when they do, it is important that they use care and not create an impression through the questioning process of having adopted a position on the facts, issues or credibility.
[239] When a trial judge has questions for a witness being examined by counsel, it is generally best to leave the questions to a point during the evidence where counsel has completed a particular area or to the end of the witness's evidence. In that way, the judge avoids interfering with the organization and flow of the evidence. Excessive judicial intervention in the examination of a witness, whether in-chief or on cross-examination, may hamper counsel from following a well thought-out and organized line of inquiry.
[240] When trial judges do intervene, it is important that they do so in a judicious manner. They should avoid expressions of annoyance, impatience and sarcasm. Judges should provide leadership by example in promoting civil behaviour by those involved in the court processes. Judges cannot expect lawyers to behave civilly if they do not themselves.
[241] In the "Principles of Civility" referred to above, the Advocates' Society set out the two further principles that are worth repeating:
71. Advocates are entitled to expect judges to treat everyone before the courts with appropriate courtesy.
74. Advocates are entitled to expect that judges will not engage in unjustified reprimands of counsel, insulting or improper remarks about litigants and witnesses, statements evidencing prejudgment and intemperate or impatient behaviour.
[242] Again, we would add that everyone involved in a trial is entitled to these expectations.
[243] All of that said, appellate courts are reluctant to intervene on the basis that a trial judge "entered the arena" and improperly intervened in a trial. There is a strong presumption that judges have conducted themselves fairly and impartially. Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness: see Kelly v. Palazzo (2008), 89 O.R. (3d) 111 (C.A.), at paras. 20-21; R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at paras. 12-14; and Confectionately Yours, Inc. (Re) (2000), 219 D.L.R. (4th) 72 (Ont. C.A.), at para. 28. Similarly, a trial judge's willingness to debate with counsel openly over relevant factual and legal issues should not serve as a basis for a reasonable apprehension of bias. In the end, an appellate court should only intervene if satisfied that the trial judge's interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
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