Speak up, defence advised

A recent case in which a trial judge “usurped the role of Crown counsel” highlights the need for defence counsel to speak up when they feel a judge is crossing the line, criminal lawyers say.

“More defence counsel need to be aggressively eloquent in raising their objections. The key is to create the best trial record possible,” says Toronto defence lawyer Liam O’Connor.

The comments follow a new Superior Court ruling in a matter involving a woman charged with failing to provide a suitable breath sample. On appeal, Superior Court Justice Kenneth Campbell found the trial judge had assumed the role of the Crown when he took over the cross-examination of police witnesses.
Campbell said Ontario Court Justice Bruno Cavion’s interjections were inappropriate.

“Trial judges have the right to pose questions to any witness. However, in taking over the examination-in-chief of Cst. Mota from the very outset of his evidence, the trial judge was not merely posing questions to clear up some ambiguity in his testimony, or focusing Cst. Mota on some important evidentiary issue, or even putting some question to the officer that should have been asked by counsel. Instead, the trial judge was usurping the role of Crown counsel,” he wrote in R. v. Pletsas.

“In an adversarial proceeding, where the Crown bears the burden of proving the essential elements of the alleged offence beyond a reasonable doubt, it is the Crown who is responsible for eliciting the evidence-in-chief of Crown witnesses. It is simply not the proper function of the trial judge to conduct that examination.”

Still, Campbell found Cavion’s actions didn’t impact the outcome of the proceedings and upheld the conviction in Pletsas. Although his actions were inappropriate, the trial judge asked open-ended questions, remained neutral, and allowed the defence to properly make its case, according to Campbell. In addition, defence counsel didn’t complain about Cavion’s actions during the trial, he noted.

“At no point during the course of the trial did defence counsel for the appellant raise any objection with respect to the questions posed by the trial judge or his other interventions in the trial proceedings.”

He continued: “While the absence of any objection by counsel is not, of course, determinative of the issue of the appearance of fairness in the proceedings, it is a factor to be taken into account.”

While speaking against a trial judge may be difficult, especially for junior counsel, “there is actually a thick line between standing up to a judge and being rude or getting cited for contempt,” says O’Connor.

Early in his career, O’Connor saw a judge tell high-profile defence lawyer James Lockyer to sit down during a trial. Lockyer told the judge, “with considerable arrogance and disgust,” that he wouldn’t sit down because he had a client to defend, says O’Connor. “I’ve tried to keep that in mind every time I defend an individual,” he notes.

Yet in the same vein, the idea that appeal courts could factor in a lawyer’s silence during a trial is problematic because, “if I have failed to object to something an appellate court might think is obvious, there was often a very good underlying reason for it,” he adds.

Cavion “can be a challenge” for junior counsel, O’Connor notes, but “he gives it to both sides and I think it will be a very dull legal world when the judge Cavions of the world are no longer with us.”

Although defence counsel want to maintain a good relationship with judges, criminal lawyer David Cohn says that in the hothouse of a trial, the primary duty is to the client.

“If you feel as counsel that a judge has abandoned a position of neutrality or there exists a reasonable apprehension of bias, then I think counsel has an obligation to raise that with the trial judge,” he says, noting that doing so protects the record that will be a factor on appeal.

“It is more important to protect your client’s interest than to worry about the potential of harming your relationship with the judge,” he adds.

Last year, Campbell criticized Cavion for a similar approach during a trial.

“Indeed, virtually every significant piece of evidence provided by the testimony of Cst. Humphries was elicited by the trial judge. There is no gainsaying the reality that the trial judge usurped the role of Crown counsel in the examination of Cst. Humphries,” wrote Campbell in R. v. Lahouri.

Even if a judge’s inappropriate interjections don’t affect the final outcome, they often give the appearance of bias, something that’s problematic in itself, says Ottawa criminal lawyer Norm Boxall.

“It’s a fairly trite statement that justice must not only be done, it must be seen to be done,” he says.

Cohn agrees that the appearance of bias erodes the public’s confidence in the fairness of the justice system.

“If a judge crosses the line to advocate or in some other way hijacks the trial, clearly this would erode the public’s confidence in the administration of justice,” he says.

“The judge’s role should always be that of the neutral arbiter.”

While O’Connor is all for speaking up when there’s an appearance of bias, he’s careful about the kinds of actions he feels are inappropriate. Recently in Wojdat v. Ventawood Management, a defence lawyer raised the issue of bias after the judge spoke to counsel in chambers prior to a motion hearing. The judge made comments about his “first impression” and asked hypothetical questions.

For O’Connor, there was no basis in Wojdat to accuse the trial judge of bias. “He took a preliminary position — so what?” he asks. “Judges are human. They’re going to do that. You’re an advocate; get over it. Win the judge over [through] your skilled advocacy. Move them away from their preliminary position.”

The Pletsas appeal finding comes amid other cases where judges’ conduct has come under scrutiny. In Ottawa, prosecutors are appealing a not-guilty verdict in a sexual assault case after discovering the trial judge created a fake online dating profile to investigate the victim.

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