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Judge found to have created apprehension of bias

New trial ordered
|Written By Shannon Kari

A senior provincial court judge in Milton, Ont. has been found to have created an apprehension of bias against a defendant in a sexual assault trial, in part because of “intemperate and insulting language” used against the accused and a supporting witness.

Daniel Rechtshaffen says a recent ruling highlights the need for judges to inform defence counsel during the trial if there are any issues about the lawyers’ style of cross-examination.

The Ontario Court of Appeal quashed a sexual assault conviction and ordered a new trial for the defendant who can be identified only as P.G.

In its ruling issued earlier this month, the three-judge panel concluded that Justice Stephen Brown had not been able to decide the trial fairly.

“We instruct jurors every day that they are to judge cases with neither sympathy nor prejudice.

“Here it is apparent that this trial judge let his personal feelings about the appellant [P.G.] and his witness overtake his objectivity,” wrote Justice Jean MacFarland, with justices Gladys Pardu and Gary Trotter concurring.

The Court of Appeal decision in R. v. P.G. comes as there are calls for increased scrutiny of how complainants in sexual assault trials are treated in court by judges and defence lawyers.

In this case, it was the accused and a defence witness who were not fairly treated, the Court of Appeal found.

Joseph Neuberger, a Toronto defence lawyer who has acted for clients in a number of sexual assault trials, says it is essential that the push for more protection for complainants does not impact the fair trial rights of accused persons.

“We have to be careful that we do not go too far to the other side,” says Neuberger, who heads Neuberger & Partners LLP in Toronto. He was not involved in the case.

The facts surrounding the P.G. case also highlight the need for judges to inform defence counsel during the trial if there are any issues about the style of cross-examination, says Toronto defence lawyer Daniel Rechtshaffen.

“It is about being fair to everyone involved in the process, including the accused,” he says.

P.G. was convicted by Brown in 2014 of three counts of sexual assault.

The accused, who is Australian, was alleged to have sexually assaulted his then-girlfriend’s daughter when she was 15 years old.

The complainant later signed an affidavit recanting her allegations.

But at trial, she stated that her mother pressured her to do this and maintained that she had been sexually assaulted. The complainant was the only Crown witness.

Her mother testified for the defence, as did P.G.

In his verdict ruling after the trial, Brown agreed that there were some problems with the testimony of the complainant, but he found her credible.

His written judgment was scathing in its comments about the complainant’s mother, the accused and David Bayliss, the lawyer for the accused.

P.G. testified like a video recorder “with a precision that was surreal and at the same time contrived,” wrote Brown, in finding that the defendant lied to the court.

A show of emotion at one point by P.G. was described as “crocodile tears” by the judge.

“They have large crocodiles in Australia,” wrote Brown.

The complainant’s mother, who testified for P.G., was described as unbelievable and unpleasant.

“She ranks in my top ten of witnesses in my entire career as a lawyer and as a judge that I can say that I do not believe a word that she says,” wrote Brown.

The record from the trial shows that the judge did not interject when Bayliss was cross-examining the complainant, but the defence lawyer was singled out for criticism in the verdict ruling.

Brown portrayed Bayliss’ cross-examination as “brutal” and “distasteful,” as well as a “full-scale attack” on a disturbed and vulnerable teenager.

Bayliss told Law Times it would not be appropriate to comment at this time, as the case is before the courts as a result of the order for a new trial.

Brown has an “excellent reputation” as a criminal court judge, says Neuberger. In this case, however, the judge’s comments were inappropriate.

“A judge has to be careful about the language that is used in addressing the testimony and credibility of an accused person,” says Neuberger.

P.G. initially filed a summary conviction appeal that was dismissed by Superior Court Justice Bruce Durno in the spring of 2016.

The judge concluded that in reading the verdict ruling as a whole, Brown did not create an apprehension of bias.

A legal error that curtailed part of the cross-examination involving social media postings by the complainant was not serious enough to order a new trial, said Durno, invoking the “curative proviso” under s. 686 of the Criminal Code.

The Court of Appeal, in its decision ordering a new trial, chided both lower court judges for the time their decisions were on reserve.

Brown issued his ruling three months after the end of the trial.

Durno released his decision seven months after hearing arguments in the summary conviction appeal.

The appellate court concluded that Durno erred in applying the curative proviso in part because the Crown did not advance the argument.

The fact that Brown was critical of the conduct of the defence lawyer at trial yet did not raise it until his verdict ruling was not found on its own to have created an apprehension of bias.

Rechtshaffen points out that in a 2013 decision in R. v. Duran, the Court of Appeal stated that a trial judge has a duty to step in and protect a witness being harassed on cross-examination.

“If a court thinks something is inappropriate, then the defence should be given an opportunity to change course so the client is not disadvantaged,” he suggests.

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