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Restraint urged for summary conviction appeal judges

Focus on Criminal Law
|Written By Shannon Kari
Restraint urged for summary conviction appeal judges
Andrew Burgess says a recent Court of Appeal decision may actually lengthen trials in some cases.

The Ontario Court of Appeal has issued a reminder to summary conviction appeal judges that it should use restraint in any inquiry into how the lower court managed the trial process.

“The jurisdiction of a summary conviction appeal judge is limited,” wrote Justice Ian Nordheimer in R. v. Polanco.

“A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge is also not entitled to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence,” added Nordheimer, with justices Harry LaForme and David Watt concurring.

The Court of Appeal overturned the decision of Superior Court Justice Kelly Wright and restored convictions on five counts of assault and one of theft against Emark Polanco following a 12-day domestic assault trial in the Ontario Court of Justice.

Wright, the summary conviction appeal court judge, found that Hackett did not apply a fair vetting procedure that resulted in the trial judge ruling that 45 of 173 photographs of the complainant the defence wanted to use in cross-examination were inadmissible.

The issues in the case highlight the tension between an increased emphasis on trial efficiency following the Supreme Court’s decisions in R. v. Jordan and R. v. Cody and on not infringing the right to a fair trial.

Jordan and Cody were very clear that efficiency measures are not meant to undermine full answer and defence,” says Matthew Gourlay, who acted for Polanco on the summary conviction appeal and at the Court of Appeal but not at the original trial.

“Trial management has a function to play. But it needs to be exercised with caution and respect for the parties,” adds Gourlay, a partner at Henein Hutchison LLP in Toronto.

At the Polanco trial, the defence wanted to put the photos to the complainant to challenge her evidence about physical injuries and testimony about the nature of their relationship.

The Crown objected to any of the photos being admitted.

Hackett decided to vet each photo individually to determine admissibility.

“The vetting procedure lacked consistency and was often confusing. It appears that different standards and tests were being applied to different photographs,” Wright stated in her decision and added that the trial judge did not refer to the correct legal test for admissibility.

“It appears that the trial judge’s intervention was ostensibly intended to be a time saving measure, to keep the trial on track and moving forward. A laudable goal to be sure, the flaw, however, was in the execution. I know first-hand the pressure on trial judges to ensure that matters are advancing in a timely fashion. We, as trial judges, however, must be vigilant to ensure that efficiency does not undermine the integrity of the process,” Wright observed.

The Court of Appeal, however, accepted the Crown argument that Wright’s decision “improperly interfered” with the discretion of the trial judge to control the trial process. 

“Trial judges must be concerned with the orderly progression of any proceeding,” wrote Nordheimer.

“The trial judge made it perfectly clear the reason why she was reviewing all of the photographs. Further, she gave reasons, in many instances, regarding the photographs that she excluded. Given the nature of the exercise, it was neither necessary, nor was it to be expected, that the trial judge would give separate reasons for each individual photograph.”

The decision of the Court of Appeal pointed out that the defence lawyer at trial did not ask the judge to revisit the rulings on the excluded photos, during or near the end of the cross­examination.

As well, while it was unusual to rule on the photos before the cross-examination, this was not a legal error, the Court of Appeal concluded.

Andrew Burgess, a Toronto defence lawyer, suggests the Court of Appeal decision may actually lengthen trials in some cases.

“If I have one of these cases, I am going to have to make objections about each photo that does not go in and I might have to bring it up again in my closing,” he says.

The pre-cross-examination screening is also potentially unfair to the defence, he says.

“It is hard to determine the relevance or whether the questions are repetitive in the abstract,” says Burgess.

“The lesson for defence lawyers is that if a cross-examination will be deliberate and take some time to think through your justification in advance,” he adds.

Gourlay agrees that if a cross-examination is going to be lengthy, the purpose should be clear to the trial judge.

“You need to articulate it in a cogent manner,” he says.

Both lawyers stress that repetitive cross-examinations are not going to be effective for the client. At the same time, they say courts should be careful about having trial management concerns impact whether evidence is admissible.

“Most judges will be understanding if you explain what you are trying to accomplish. My concern is that Crowns will invoke this ruling to embolden trial judges to be more interventionist. Defence counsel need to be vigilant so that efficiency concerns don’t impact the entitlement of the accused to a fair trial,” says Gourlay.


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