This week's top three summaries: R v John, 2023 SKCA 116: #excessive intervention, R v JA, 2023 SKCA 119: #re-examination, and R v Fashoranti, 2023 NSCA 78: #functional appeal. Our firm focuses on representation in complex criminal trials and...
This week’s top three summaries: R v John, 2023 SKCA 116: #excessive intervention, R v JA, 2023 SKCA 119: #re-examination, and R v Fashoranti, 2023 NSCA 78: #functional appeal.
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R v John, 2023 SKCA 116
[October 25, 2023] Excessive Judicial Intervention [Reasons by McCreary J.A. with Caldwell and Schwann JJ.A. concurring]
AUTHOR’S NOTE: In the adversarial justice system, the trial judge has an obligation to maintain the appearance of impartiality throughout the proceedings and refrain from interventions that could be seen to undermine that appearance. This decision documents various forms of interventions that violate that obligation including: interrupting cross-examination to elicit harmful evidence from witnesses or rehabilitate Crown witness credibility and interrupting direct examination to detract witnesses from giving their own evidence. In common parlance, trial judges must stay out of the fray while the trial is ongoing. Interventions of this sort undermine the appearance of a fair trial.
I. INTRODUCTION
[1] This appeal explores the circumstances in which a trial judge’s comments and interventions during a trial undermine trial fairness.
[2] A trial was held to determine whether Keith John was guilty of charges of aggravated assault. On June 7, 2013, a group fight involving several people occurred in Rosthern, Saskatchewan. Two brothers, Elliott and Steven Lafontaine, suffered multiple stab wounds in the fight. After a trial in the Provincial Court of Saskatchewan, Mr. John was convicted of two counts of aggravated assault and one count of carrying a weapon for a dangerous purpose: R v John, 2016 SKPC 11 [Trial Decision]. The key issue at trial was identity – i.e., whether it was Mr. John who had stabbed the two brothers during the fight.
[4] For the reasons that follow, it is my view that the trial judge’s multiple interventions in the trial rendered it unfair. I would therefore allow Mr. John’s appeal of his convictions, quash his convictions, and order a new trial.
II. ANALYSIS
A. The conviction appeal
[5] The central issue in this appeal is whether the trial judge’s commentary and interventions during the trial compromised its fairness. Trial fairness is a question of law: R v Schmaltz, 2015 ABCA 4 at para 13, 320 CCC (3d) 159, reviewable on a correctness standard: R v Shepherd, 2009 SCC 35 at para 20, [2009] 2 SCR 527.
[6] Mr. John contends, and I agree, that his trial was unfair because the trial judge’s conduct of it – which involved, inter alia, him frequently questioning the witnesses himself, interrupting counsel’s questioning and making extraneous comments throughout the trial – gave rise to a reasonable perception that the trial judge was aligned with the Crown and, in some instances, interfered with Mr. John’s defence strategy.
[7] I begin by considering, generally, the role of a judge in a criminal trial in Canada.
1. The law: trial fairness and roles of the participants
[8] …In an adversarial system, such as in Canada, the opposing parties present relevant evidence and argument while the trial judge (or a judge and jury) presides as “an objective decision-maker” (Kahsai at para 51).
[9] …The prosecution and defence compete against one another as adversaries before the impartial arbiter – the judge, or a judge and jury – who then makes factual findings and legal rulings, commensurate with their respective functions. The adversarial nature of court proceedings in Canada has been recognized as “[t]he bedrock of our jurisprudence”, “a fundamental tenet of our legal system”, and “a principle of fundamental justice” (respectively, R v R.D.S., 1997 CanLII 324 (SCC), [1997] 3 SCR 484 at para 15 [R.D.S.]; Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 358; R v Swain, 1991 CanLII 104 (SCC), [1991] 1 SCR 933 at 937 [Swain]; and R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113 at para 39).
[10] The Canadian adversarial system does not permit a judge to become an independent investigator who seeks out the facts: R.D.S. at para 15. On the contrary, it is essential to a fair trial that each of the justice-system participants – the Crown, the defence counsel and the trial judge – adhere to their respective roles and duties.
[11] …The defence lawyer’s duty is to protect the accused “as far as possible from being convicted, except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which [the accused] is charged”: Code, s. 5.1-1, Commentary 9. In an adversarial proceeding like a criminal trial, this means raising fearlessly every issue, advancing every argument, and asking every question that the lawyer thinks will help the accused’s case, and to endeavour to obtain for the accused the benefit of every defence authorized by law: Code, s. 5.1-1, Commentary 1. The defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the Crown: R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326 at 333; and Code, s. 5.1-1, Commentary 3.
[12] The Crown, however, is not entitled to assume a purely adversarial role toward the defence. The purpose of a criminal prosecution is not to obtain a conviction; it is to put before a judge or jury all available, relevant and admissible evidence necessary to determine the guilt or innocence of the accused: Proulx v Quebec (Attorney General), 2001 SCC 66 at para 41, [2001] 3 SCR 9, quoting R v Boucher, 1954 CanLII 3 (SCC), [1955] SCR 16 at 23–24; see also Code, s. 5.1-3, Commentary 1. While it is both permissible and desirable that the Crown vigorously pursue a legitimate result to the best of its ability, its primary duty is to see that justice is done through a fair trial on the merits.
[13] Generally, a trial judge must not take on, or risk being perceived to have taken on, an adversarial or even quasi-adversarial role. A trial judge sits – and hears and determines the issues raised by the parties: R v Brouillard, 1985 CanLII 56 (SCC), [1985] 1 SCR 39 at 44 [Brouillard], quoting from Jones v National Coal Board, [1957] 2 QB 55 (CA) at 63. In essence, the trial judge’s primary role is that of a listener: R v Huang, 2013 ONCA 240 at para 33, 115 OR (3d) 596 [Huang].
[14] Nevertheless, trial judges are responsible for the conduct of the trial: Brouillard at 44–45; and R v Murray, 2017 ONCA 393 at para 91, 347 CCC (3d) 529 [Murray]. A trial judge may, and sometimes must, intervene to clarify an unclear answer, to resolve a misunderstanding of the testimony, to correct inappropriate conduct by counsel or witnesses, or to otherwise ensure a fair trial: Brouillard at 45; R v Switzer, 2014 ABCA 129 at para 13, 310 CCC (3d) 301; R v Pompeo, 2014 BCCA 317 at para 80, 313 CCC (3d) 539 [Pompeo]; and Murray at para 92. However, in doing so, a trial judge must exercise their trial management powers carefully: R v Samaniego, 2022 SCC 9 at para 22, 412 CCC (3d) 7. They must not undermine the functions of counsel or disrupt counsels’ trial strategies. The trial judge must not descend into the arena or enter the fray: R v Oracz, 2011 ABCA 341 at para 7 [Oracz]. Although a trial is a search for the truth, the Canadian judicial system does not permit a judge to become an independent investigator who seeks out the facts: R.D.S. at para 15. That task should be left to the parties to tender the evidence, conduct the examinations and cross-examinations of the witnesses, and advance their legal and factual arguments: Oracz at para 7; and it is counsel’s job, not the trial judge’s, to explore inconsistencies in a witness’s testimony: Huang at para 33. In particular, a judge must be very cautious in interfering with the presentation of the defence case. The accused has a constitutional right to make full answer and defence, which involves choosing the defence advanced: see Swain at 972.
[15] Where a trial judge has overstepped the limits of the judicial function by intervening to an unwarranted degree, the appearance of trial fairness is undermined, and a new trial must be ordered: Pompeo at para 80. The ultimate question for an appeal court is not whether the judge at trial was, in fact, not impartial or whether the accused was, in fact, prejudiced by the trial judge’s interventions; rather, it is whether a reasonably minded person who had been present for the trial throughout would consider that the accused had not had a fair trial: R v Stucky, 2009 ONCA 151 at para 68, 240 CCC (3d) 141, quoting R v Valley (1986), 1986 CanLII 4609 (ON CA), 26 CCC (3d) 207 (Ont CA) at 232; and Murray at para 96. The necessity of ensuring a fair trial is what governs the appellate inquiry. The trial must be perceived by all concerned to have been conducted fairly and impartially: Oracz at para 7; see also Brouillard at 48.
[17] The Ontario Court of Appeal has also considered the general principles of fairness that govern a trial judge’s management of a trial, and any interventions made by them during the course of trial. In Murray, Watt J.A. summarized the following principles:
[91] It is well established that a trial judge is no longer a mere referee, an ear and eye witness who must sit passively while counsel present the case as they see fit: R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 40; Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, at para. 232, leave to appeal to S.C.C. refused, 276 O.A.C. 398 (note); R. v. Brouillard, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39, at p. 44. We accept that not only may a judge intervene in the adversarial process, but also that sometimes intervention becomes essential to ensure that justice is done in substance and appearance: Brouillard, at p. 44.
[92] A trial judge may intervene to focus the evidence on issues material to a determination of the case. To clarify evidence as it has been given and is being given. To avoid admission of evidence that is irrelevant. To curtail the needless introduction of repetitive evidence. To dispense with proof of the obvious or uncontroversial. To ensure the way that a witness answers or fails to respond to questions does not unduly hamper the progress of the trial. And to prevent undue protraction of trial proceedings: Chippewas, at paras. 233-234.
[93] Trial judges should be cautious in the exercise of these various incidents of what might be compendiously described as the trial management power. For the most part, a trial judge should confine herself to her own responsibilities, leaving counsel and the jury to their respective functions: R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 231, leave to appeal to S.C.C. refused, [1986] 1 S.C.R. xiii (note); R. v. Torbiak [(1974), 1974 CanLII 1623 (ON CA), 18 CCC (2d) 229] and Campbell (1974), 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-31.
[94] The principal types of intervention that attract appellate disapprobation include, but are not limited to:
i. questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;
ii. questioning witnesses in such a way as to make it impossible for counsel to present the defence case;
iii. intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and
iv. inviting the jury to disbelieve the accused or other defence witnesses.
See Valley, at pp. 231-232; R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 71.
[95] AAppellate courts are reluctant to interfere on the ground that a trial judge improperly interfered during the course of a trial. A strong presumption exists that a trial judge has not intervened unduly at trial: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal to S.C.C. refused, 304 O.A.C. 398 (note), 304 O.A.C. 397 (note), and 303 O.A.C. 395 (note); Chippewas, at paras. 231, 243.
[96] When undue intervention is advanced as a ground of appeal, the fundamental question for the reviewing court to determine is whether the interventions led to or resulted in an unfair trial. The issue is assessed from the perspective of a reasonable observer present throughout the trial: Hamilton, at para. 30; Stucky, at para. 72. The analysis is contextual and requires an evaluation of the interventions cumulatively, likewise their cumulative effect on the actual or apparent fairness of the trial: Hamilton, at para. 32; Stucky, at para. 72.
[18] Finally, in Schmaltz, the Alberta Court of Appeal provided specific guidance as to the scope and effect of judicial intervention in the accused’s cross-examination of Crown witnesses:
[19] In this case, where trial unfairness is said to arise in part from the trial judge’s interventions in defence counsel’s cross-examination of a witness, several principles ought to be borne in mind:
(1) The right of an accused to present full answer and defence by challenging the Crown’s witnesses on cross-examination flows from the presumption of innocence and the right of the innocent not to be convicted: R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577 at para 39, [1991] SC J No 62 (QL); [R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595] at para 25. This is particularly so when credibility is the central issue in the trial: Osolinat para 27, citing R v Giffin, 1986 ABCA 107, 69 AR 158 at 159.
[19] I adopt the statements of principles set out in these decisions.
2. The trial judge’s interventions
[20] I turn now to Mr. John’s trial. As noted, Mr. John argues that the cumulative effect of the. trial judge’s many interventions in the trial rendered it unfair. These interventions, he says, both conveyed the impression that the judge aligned himself with the case for the Crown and interfered with his counsel’s questioning of key Crown witnesses in a manner that undermined his defence strategy and made it more difficult to present his case.
[21] …when I consider the cumulative effect of the trial judge’s many interventions in this trial, I can only conclude that the trial was unfair to Mr. John.
[22] The trial judge’s conduct of the trial that ultimately led to it being unfair is illustrated by the following examples.
[23] First, although I have not set them out in any particular order, the record shows that the trial judge interjected during defence counsel’s cross-examination of the Crown’s police witness, Constable Desmond Jackson, to express his belief that misleading a witness during a police interrogation is not “against the law”. Constable Jackson had testified that he had interviewed Mr. John. The exchange between the trial judge and Cst. Jackson started with defence counsel asking Cst. Jackson the following question:
Q You agree that your comment was immediately after he asked you whether the victims had pointed him out, correct?
A Okay, yes.
Q And you could see how that might mislead somebody?
A Sure, yes.
[24] The trial judge then interrupted to engage with defence counsel as follows:
THE COURT: I didn’t think misleading was against the law.
LITTLE: Misleading --
THE COURT: And I have some problem. I’m not interrupting. I’m just thinking what? You know.
LITTLE: Well, it is. It’s clearly trickery to approach somebody with evidence that they don’t have and should Your Honour want case law in that regard I could certainly file it.
THE COURT: Well, I’d be interested in hearing about it. You know, the issue here is threats, promises or inducements and a police officer routinely uses trickery, I think, to gain statements from --
LITTLE: Trickery but not lies. The trickery we would see, Your Honour, oh, I have a buddy that molests kids, too, it’s no big deal. That’s the trickery that’s been found to be okay. I could certainly provide you case law to show you that indicating like essentially (INDISCERNIBLE) we have DNA evidence even and that has been found to be police oppression and should we need to go there I could provide Your Honour with case law.
THE COURT: No, go ahead then, yeah.
Q Constable Jackson, you’d also agree that it’s not appropriate for you to give any legal advice or tell anybody that if they provide a statement they won’t get as long in jail, right?
A Yes.
[25] The trial judge’s interruption, and then his expression of a questionable opinion about the legality of police conduct while the police witness was on the stand, came at a crucial point in the cross-examination, when defence counsel was seeking to elicit an admission from this witness that would be helpful to Mr. John’s defence. This interruption plainly interfered with the defence strategy.
[26] A second example arose, in the context of the trial judge’s decision on the voir dire respecting the admissibility of Mr. John’s statement to the police. The trial judge made comments that could be perceived as being critical of Mr. John and of his strategy of challenging the voluntariness of his statement. The trial judge commented: “I just don’t feel there’s any evidence before me that the defendant felt threatened or induced or promised. There just isn’t a scrap of that. He is a remarkably sophisticated individual on the video. He knows how to play the system. He played strategically which is what he’s in fact doing today as far as I’m concerned” (emphasis added). The trial judge’s expression of a negative opinion about what motivated Mr. John to challenge voluntariness eroded the trial judge’s appearance of neutrality. His statement implies that, before the Crown’s case was complete and the verdict was delivered, he had already formed an adverse view of Mr. John’s character and motivations. This obviously detracted from the trial judge’s obligation to be seen as an impartial arbiter.
[27] Third, the trial judge interjected during Elliott Lafontaine’s examination-in-chief. As I previously noted, Elliott Lafontaine was one of the victims of the alleged stabbing assaults, along with his brother, Steven Lafontaine. Elliott Lafontaine testified in his examination-in-chief about what happened to him during the group fight. However, the trial judge interjected in that examination to ask the witness additional questions about whether the weapon he was attacked with was metal or plastic, whether his wounds were “scratches” or “stabs”, and about the number of staples required to treat his wounds. While these were legitimate questions for the Crown to ask, coming from the trial judge, one could reasonably perceive that this line of questioning assisted the Crown to prove the wounding, maiming or disfiguring elements of the charge of aggravated assault.
[28] Fourth, the trial judge also interjected during Steven Lafontaine’s examination-in-chief to ask him to identify who had said “Stab him one more time” during the fight. Again, this question could reasonably be perceived as assisting the Crown. The trial judge further interrupted during Steven Lafontaine’s cross-examination to pursue the issue of whether he had been intimidated. The trial judge suggested to the witness that any attempts to intimidate him should be reported to the trial judge or the Crown, and that either of them would take action, stating “if anyone threatens you … or says anything or gives you the stink eye or anything I want you to report it to Mr. Bains [the Crown prosecutor] or myself and we’ll do something about that, okay?” In my view, these statements reasonably created a perception that the trial judge was aligned with the Crown because he had suggested to the witness that he and the Crown, together, would protect the witness.
[29] Fifth, at the conclusion of Steven Lafontaine’s testimony, Steven asked the trial judge about being reimbursed for lost wages and medical bills resulting from his injuries. The trial judge responded not just by referring Steven Lafontaine to the Saskatchewan Crimes Compensation Board but by suggesting that he could sue Mr. John. The obvious difficulty with these comments was that they implied that Mr. John was, in fact, responsible for Steven Lafontaine’s injuries, which was exactly what the criminal trial was to determine. Thus, again, the trial judge’s extemporaneous comments left the impression that he was not impartial and created a reasonable perception that he had already decided Mr. John’s guilt, without hearing all the evidence.
[30] The sixth example occurred when Gilbert Muskego testified. Gilbert Muskego was a Crown witness who had testified in examination-in-chief that he and four friends had engaged Elliott and Steven Lafontaine in the fight and that he had participated in the fight. When Gilbert Muskego was cross-examined, he agreed that he was unsure who had stabbed Elliott and Steven Lafontaine. Mr. Muskego answered: “Yeah, could have been any one of us”. Defence counsel responded: “Could have been any one of you’s [sic]? Was it you?”. The trial judge then interrupted at this crucial point in the cross-examination, putting the following direct question to this witness:
THE COURT: Did you stab him?
THE WITNESS: No.
THE COURT: That takes one person out of the list.
Although the trial judge asked roughly the same question as had defence counsel, an interruption at that point could be seen as frustrating defence counsel’s function and the defence’s strategy and could be taken as being disdainful of that strategy.
[31] Seventh, after the trial judge allowed the Crown to recall Gilbert Muskego, he proceeded to ask more questions of this witness, including whether it was Gilbert’s sister who had taken Mr. Muskego to the lake to discard the knife that was used to stab Elliott and Steven Lafontaine, and whether his sister saw him discard the knife. The trial judge also questioned Mr. Muskego about letters he indicated his sister had received from Mr. John. These questions concluded with the trial judge engaging with defence counsel as follows:
THE COURT: It might be hearsay but I want to hear about [it]. If there’s witness tampering on here, Mr. Little [defence counsel], I’m going to take a very dim view of it. Now this is something that’s likely going to have to be investigated I’m sure.
LITTLE: Yeah, but not in open court, Your Honour.
…
LITTLE: We don’t allow hearsay in open court for investigative purposes.
[33] Then, after defence counsel objected to the discussion of the letters on the basis that such evidence was hearsay, the trial judge determined that he would allow the hearsay evidence and he continued to pursue the matter with the witness, asking Gilbert Muskego if he had seen and read the letters. The exchange was as follows:
Q. And so this knife you’ve described with blood on it, you put it back behind the house and the next morning then how did you get out to Beardy’s to throw it out?
A Nikita took me.
THE COURT: Nikita took you to the [sic] Beardy’s?
THE WITNESS: To the [sic] Beardy’s, yeah.
THE COURT: Did she see you throw the knife away?
THE WITNESS: Yeah.
THE COURT: Nikita did?
THE WITNESS: Yeah. I’m just going to tell the truth of everything. I’m not going to lie. I’m not going to lie for nobody.
Q Now, did -- did -- in the last two years did [Mr. John] talk to you in any way?
A No, never talked to me or nothing.
Q So what was making you feel scared then the last couple years?
A Because he was sending my sister letters with his blood.
Q And that’s Nikita, the person –
A Yeah.
Q -- your not biological sister but you said you treat --
A Yeah.
THE COURT: He was sending letters to Nikita?
THE WITNESS: Yeah.
THE COURT: About what?
[34] Eighth, between the Crown’s questioning of Mr. Muskego after he was recalled, and further cross-examination by defence counsel, the trial judge, in open court, indicated that he would be directing the police to investigate whether Crown witnesses were tampered with, stating:
THE COURT: Okay. I will be -- whatever happens, I will be directing or asking the RCMP to investigate the complaint outlined by Mr. Muskego in terms of witness tampering which I take an extremely dim view of. He’s also related some evidence to the Court that Ms. Nikita [sic] was involved in the knife throwing, at least she witnessed it so that may be something the RCMP also want to investigate but I’ll let Mr. Bains [Crown counsel] make that decision so Gilbert, you’re back on the stand. Mr. Little has some questions for you. Please answer him as truthfully as you can.
[35] The trial judge’s comments in this regard threatened the perception of his neutrality in the proceedings. To the reasonable observer, it could be inferred that the trial judge had the authority to direct the RCMP to investigate criminal offences and that he believed an offence might have been committed by those connected to Mr. John. This conduct made the trial judge appear to be aligned with the Crown.
[36] Ninth, when, after being recalled, Gilbert Muskego was cross-examined again, defence counsel was able to establish, through Mr. Muskego’s own admissions, that he had been lying in his earlier testimony at trial:
Q In your previous evidence you said you never seen [sic] a knife all night, correct?
A Yeah.
Q And in fact that was a blatant lie to His Honour, right?
A Yeah.
[37] Defence counsel then asked the witness whether he had been “kind of” lying throughout the whole of the matter, and Mr. Muskego confirmed that he had:
Q And in fact you didn’t just lie to His Honour, you also lied to the officer the night you provided the statement, right?
A Yeah.
Q So essentially you’ve kind of been a liar though this whole thing, haven’t you, Gilbert?
A Kind of, yeah.
Q Yeah, and in fact anger or embarrassment has more to do with you remembering disposal of the knife than anything, doesn’t it?
A I guess so, yeah.
[38] However, the trial judge then intervened to ask Gilbert Muskego more questions at the conclusion of his cross-examination. These questions appeared to be directed at rehabilitating Mr. Muskego’s credibility and at creating an opportunity for him to confirm that he was, in fact, telling the truth:
LITTLE: That’s everything, Your Honour, thank you.
THE COURT: Gilbert, what did [Mr. John] say at the house when he came back?
THE WITNESS: He just told me to throw away the knife so that we wouldn’t get caught for it.
THE COURT: Is that the truth?
THE WITNESS: Yeah.
THE COURT: Okay, and the knife you say you disposed of --
THE WITNESS: Yeah.
THE COURT: Is that the truth?
THE WITNESS: Yeah.
THE COURT: You actually threw the knife away?
THE WITNESS: Yeah.
THE COURT: And your sister saw that?
THE WITNESS: Yeah.
THE COURT: Okay. Thank you. Those are my questions. Any questions arising out of my questions? You’re excused, Gilbert. I realize you’re -- how old are you now? You’re 19 now?
THE WITNESS: Yeah.
THE COURT: You did very well. It’s a very difficult situation to find yourself in and don’t think anyone thought -- Mr. Little is just doing his job, as is Mr. Bains, okay?
THE WITNESS: Yeah. Yeah.
THE COURT: All right. Good luck. Thank you, sir. Are you prepared to call your next witness, Mr. Bains?
[39] This intervention was particularly problematic because the Crown witnesses’ credibility and the reliability of their evidence were key to the issue of identification, which was the sole question at this trial. In the Trial Decision, the trial judge felt the need to state that he had asked questions of Gilbert Muskego after he was recalled only to clarify the witness’s evidence (see para 23). With respect, the trial judge’s questions went well beyond seeking clarification. They were leading, and they bolstered the Crown’s case by assisting to prove elements of the offences with which Mr. John was charged. They also assisted to rehabilitate Gilbert Muskego’s previously eroded credibility, thus interfering with the defence strategy and with Mr. John’s right to test the evidence of that Crown witness.
[40] Finally, the trial judge also interjected during the cross-examination of Troy Muskego, a Crown witness who had also participated in the fight. Defence counsel put to Troy Muskego that he had only said that Mr. John was the person who stabbed Elliott and Steven Lafontaine “to get this over and done with”. Troy Muskego agreed with that proposition, which was a significant admission that undermined the credibility of his previous testimony. At that point, the trial judge interjected and objected to defence counsel’s question, apparently on the basis that the question was leading. I pause here to state the obvious – that leading questions are a permitted and standard technique in cross-examination. The exchange that took place was as follows:
Q You just want to get this over and done with?
A Yeah.
Q So you’re just going to say [Mr. John] did it to get it over and done with?
A Yeah. Yeah.
Q Yeah?
A Yeah.
THE COURT: Hold on. This whole line of cross-examination -- I want this witness to come up with his own answer so who -- what did [Mr. John] say to you?
THE WITNESS: He said, “Don’t rat me out.”
THE COURT: Okay. We’ve established that. Then what did he -- Mr. Little wants to know what he said about the stabbing. Do you recall him actually saying the word “stab?”
THE WITNESS: Yeah they -- he stabbed him.
THE COURT: Sorry?
THE WITNESS: He stabbed him.
THE COURT: Okay. You’re saying he said he stabbed him but did he say, “I stabbed him,” at the house?
THE WITNESS: Yeah.
THE COURT: Okay.
THE WITNESS: I’m just all confused here and --
THE COURT: See, we weren’t there, okay. We weren’t there. None of us were there --
THE WITNESS: Yeah.
THE COURT: -- and it’s very important for Mr. John’s sake and yours and everyone in the room that we get the -- your exact -- if you’re not sure about something it’s okay to say you know what, it’s two years ago, I’m not sure.
(Emphasis added)
[41] The trial judge’s interruption, which elicited further evidence from the witness at a critical point in his cross-examination, can once again be seen as interfering with Mr. John’s defence strategy. Defence counsel had just undermined Troy Muskego’s credibility quite effectively, but the trial judge’s objection and interjection gave the witness an opportunity to rehabilitate himself. This obstructed Mr. John’s opportunity to test the Crown’s evidence and frustrated defence counsel’s strategy.
[42] When assessing these interventions, the question to determine is whether, taken as a whole, they resulted in an unfair trial – i.e., did they, cumulatively, negatively affect the actual or apparent fairness of the trial? In my view, they did. The incidents that I have catalogued, when considered in isolation, might be viewed as less corrosive to trial fairness. However, when they are combined, they lead a reasonably minded person to conclude that Mr. John did not have a fair trial.
[43] After Troy Muskego finished testifying, counsel for Mr. John brought an application for a mistrial, arguing that the trial judge’s interventions were unfair and that the trial judge had interrupted at crucial points in his cross-examination of various Crown witnesses. The trial judge dismissed that application, insisting that his interjections were to clarify the evidence, and that the mistrial application was “presumptuous”. The trial judge expanded on his reasons for dismissing the mistrial application in the Trial Decision at paragraph 37, where he stated that he “did not put any words in the mouth of the witness” and that his questions were within the parameters of R v L.(D.O.), 1993 CanLII 46 (SCC), [1993] 4 SCR 419.
[44] Respectfully, I do not agree with the trial judge’s self-assessment of the fairness of this trial. In my view, significant portions of the trial judge’s interventions served to: (a) detract from witnesses giving their own evidence in direct examination; (b) rehabilitate a witness’s credibility after defence counsel had successfully eroded it; or (c) elicit a harmful admission in cross-examination. The effect of these interventions, taken in combination, was to interfere with defence counsel’s function.
[46] In conclusion, the cumulative effect of the trial judge’s commentary and interventions deprived Mr. John of a fair trial. The trial judge undermined the function of counsel, frustrated defence counsel’s strategy and otherwise made it very difficult for the defence to effectively test the Crown’s evidence. In many instances, the trial judge’s conduct also made him appear to be acting as an advocate for the Crown or to be protecting a Crown witness, thereby eroding the appearance of a fair trial. The trial judge exceeded his role, interfered with the trial, and thus rendered it unfair. As a result, the convictions must be quashed.
III. CONCLUSION
[48] In the result, the conviction appeal is allowed, the convictions are quashed, and a new trial ordered
R v J.A., 2023 SKCA 119
[October 30, 2023] Crown Re-Examination [Reasons by Brennan J.A. with Schwann and Barrington-Foote JJ.A. concurring]]
AUTHOR’S NOTE: Clarification as a purpose for re-examination has a significant limit. The Crown (and Defence) cannot re-examine a witness to clarify answers where that topic of examination was already the subject of direct examination. That is to say, where the cross-examiner scores some points by establishing inconsistencies or the like, the re-examiner cannot then dive back into the topic to re-ask the same line of questions already covered in direct examination to "clarify" the answer. This case is a good authority for this proposition with a clear demonstration of the principles.
… Second, it asserts that the trial judge erred in refusing to allow the Crown to re-examine the complainant.
[2] As I will explain, I disagree with the Crown’s submission that the trial judge erred in the ways alleged. As a result, the appeal must be dismissed.
II. THE TRIAL
[3] The incident giving rise to the charges against J.A. occurred at a graduation party that was attended by approximately 80 people on July 10, 2021. The Crown witnesses and J.A. were present at that party. They were youths at the time.
[4] The complainant’s evidence at trial consisted of her statement to police, which was entered into evidence pursuant to s. 715.1 of the Criminal Code, and her viva voce testimony. To summarize, the complainant testified to being intoxicated on the night in question. She could not recall whose house the party was at. She was “blacked out” at various times and described herself as being 10 out of 10 on an intoxication scale (being “black out drunk”). She had difficulties remembering many aspects of the evening.
[5] The complainant testified that, at one point in the evening, she left the house to get water for a friend. While walking past a vehicle in the yard, she was grabbed by an individual. Her account of what happened evolved throughout her testimony, her evidence was that this person groped her and made her touch his penis over his pants. She later stated that he touched her vagina overtop of her underwear and penetrated her vagina with his fingers.
[7] The complainant identified J.A. in court as the person who had touched her. She testified that she did not know J.A. but had heard of him from friends. In cross-examination, the complainant conceded that she had no memory of what her assailant looked like but said she could “feel” him. She testified that she did not see his face or know what he was wearing.
[8] M.S. also testified to having attended the graduation party. According to M.S.’s testimony, while walking outside to get water for a friend, she saw the complainant and another individual up against a car. She said the individual was touching the complainant, grabbing her face, and kissing it. M.S. asked the complainant who she was with, and if the complainant would come with her. Both the complainant and the individual followed M.S. into the middle of a field. M.S. said it was dark and there were no lights. M.S. testified that she put the following question to the individual “You’re [J.A.]?” to which he said, “Yes”. She then asked him if his brother was R.A., and he responded affirmatively. After this brief exchange, M.S. said she saw the complainant push the individual off of her. M.S. asked the complainant to come with her and began walking away. However, when she looked back, the complainant and the other individual were gone. M.S. did not see the complainant again until morning.
[9] M.S. testified in cross-examination as follows:
Q. And you didn’t know who the person she was with, right?
A Yes.
Q You didn’t get -- you didn’t see his face.
A No.
[10] M.S. testified that she knew J.A. for years prior to the party, as she had played sports with his little sister. She identified J.A. in the courtroom as the person she saw touching the complainant.
III. THE TRIAL DECISION
[11] The trial judge gave an oral decision following a brief adjournment at the conclusion of the trial. He found both the complainant and M.S. were honest and credible witnesses. He noted that they both had been drinking on the night in question, with the complainant having consumed more alcohol than M.S. and having significant gaps in her memory.
[12] However, the trial judge was left with a reasonable doubt as to the identity of the assailant, which led him to acquit J.A….
IV. ANALYSIS
[13] The Crown’s burden on an appeal from an acquittal is a heavy one (R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345 at 374). For it to succeed, the Crown must demonstrate that (a) the trial judge erred in law, and (b) the legal error had a “material bearing on the acquittal” (R v Legresley, 2023 SKCA 71 at para 23; R v Graveline, 2006 SCC 16 at para 14, [2006] 1 SCR 609; see also R v Sutton, 2000 SCC 50, [2000] 2 SCR 595, citing R v Vezeau, 1976 CanLII 7 (SCC), [1977] 2 SCR 277; R v Cullen, 1949 CanLII 7 (SCC), [1949] SCR 658).
[14] While the Crown need not prove that the verdict “would necessarily have been different” (R v Graveline at para 14), it must show with a “reasonable degree of certainty that the outcome may well have been affected” by the error in law (R v Morin at 374). In assessing whether an error had a “material bearing” on the verdict, the Crown is required to point to something more than “an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law” (R v Graveline at para 14).
B. Refusal to permit the Crown to re-examine the complainant
[22] The Crown’s second submission is that the trial judge erred by denying the Crown leave to re-examine the complainant for purposes of clarifying what it describes on appeal as her ambiguous answer to the following question that was put to her by defence counsel at the close of her cross-examination:
Q So you just believed this was [J.] based on what this person was telling you?
A Well, he said it was him. Like, he said, “yeah, [J.]”.
Q But you don’t know for sure if it was [J.A.].
A No, I did not.
[23] The Crown applied to re-examine the complainant in connection with that exchange, but defence counsel objected to the Crown’s request. The following discussion ensued, in which the trial judge ruled that there was no need to clarify the complainant’s response as he found it was “not confusing”:
BREE: Your Honour, prior to the complainant coming back in, defence was objecting to my friend’s question in re-direct.
THE COURT: Okay. We might as well lay that out right now.
BREE: But Your Honour, we are submitting that the question has been put to the complainant a number of times in direct. So that question has been asked and answered. And that it would be very prejudicial to the accused to put that to the complainant yet again.
THE COURT: Thank you. Ms. Laing.
LAING: The purpose of re-examination is largely rehabilitative and explanatory as we all know. That is the state of the law. The answer or the question put to the complainant by defence was confusing. It should have been the basis for an objection, but I’m entitled to clarify that ambiguity in re-examination as well.
THE COURT: How was it confusing?
LAING: What was asked is that -- I believe, is that what you’re saying is that you don’t know it was [J.A.] who assaulted you.
THE COURT: Right.
LAING: Which is confusing. She does know it was [J.A.]. She’s identified him in court. She just didn’t know his last name.
THE COURT: That’s not confusing. In my view.
LAING: Yeah. It’s not a strong point. But if it’s not confusing, then I don’t see a need to even go there again.
THE COURT: And so re-examination is only if there is something new in -- that came up in cross that wasn’t covered in -- in examination in-chief. The question itself, in my view, is not confusing and there’s really nothing new has been brought up in cross-examination that’s in relation to any questions that you started to ask her. So I’m not going to allow that line of re-examination.
LAING: There’s really no need to. It’s just to clarify the confusing point that was left off on. But there’s really no need to. I think it’s fairly clear on the record, so …
THE COURT: Okay.
[24] …. The Crown submits that it was permitted as of right to re-examine its own witness to clarify an ambiguous response arising from the cross-examination. It cites R v Evans, 1993 CanLII 102 (SCC), [1993] 2 SCR 629 [Evans SCC], and R v Samaniego, 2022 SCC 9, 412 CCC (3d) 7, for the proposition that the trial judge’s refusal to permit re?examination raises a question of law. J.A. disagrees with the Crown’s position, citing R v Fanjoy, 1985 CanLII 53 (SCC), [1985] 2 SCR 233 at 238–239, in support of his argument that a trial judge’s determination on the question of whether to permit re-examination involves a question of mixed fact and law, from which the Crown has no right of appeal.
[25] The characterization of whether an error in the discretionary exercise of trial management powers, is one of pure law versus mixed fact and law, is, in my view, fact dependent. It will turn on the nature of the evidentiary principles engaged and the corresponding use of a trial judge’s management powers. For example, both the British Columbia Court of Appeal in R v Evans (1992), 1992 CanLII 741 (BC CA), 70 CCC (3d) 489 (WL) (BCCA) at para 46, and the Supreme Court in Evans SCC treated the trial judge’s determination of the admissibility of a line of questioning in re?examination as being a question of law….
[26] In this instance, I need not determine whether this ground of appeal raises a pure question of law, as suggested by the Crown. That is so because, in my view, the trial judge correctly exercised his trial management powers by determining that (a) the complainant’s answer was clear and unambiguous, and (b) nothing new had arisen in cross-examination that required re-examination. I reach this conclusion as the above quoted exchange between counsel and the trial judge is determinative of the issue in several ways.
[27] First, Crown trial counsel articulated the correct law with respect to re-examination (as per Evans SCC) and framed her request to re-examine the complainant as being for the purpose of clarification on a specific question and response only, as opposed to the broader purpose of witness rehabilitation. In response to that argument, defence counsel objected to the request to re-examine the complainant, saying there was no need for clarification and that the matter had already been addressed in examination-in-chief. This exchange framed the purpose and scope of the proposed re-examination for the trial judge’s consideration and ultimate ruling.
[28] Second, the trial judge exercised his trial management discretion, ruled on the objection, and applied the relevant legal principles in a manner that was responsive to how counsel had characterized the issue. The issue was confined to a request to clarify the complainant’s answer in light of the whole of her evidence, and the inquiries that had previously been put to her. The trial judge’s conclusion that the question and answer was clear, and that no new matters had arisen, properly recognized that parties do not have an unfettered and open-ended right to re-examination of a witness. “Questions permitted as of right on re-examination must relate to matters arising out of cross-examination which deal with new matters, or with matters raised in examination-in-chief which require explanation as to questions put and answers given in cross-examination” (Evans SCC at 644, emphasis added; see also R v A.J.D., 2022 ONCA 867 at para 64, citing R v Candir, 2009 ONCA 915 at para 148, 250 CCC (3d) 139).
[29] The central issue at trial was the identity of the assailant. This line of inquiry permeated the examinations of both Crown witnesses. The context for the complainant’s reply to this specific question could also not be viewed in isolation, notably her testimony that she (a) did not see the face of her assailant (despite having told police in her statement that he was wearing glasses), (b) could not describe what he was wearing, and (c) had been told by her friend, M.S., after the fact who the assailant was. By way of bottom line, I see no error by the trial judge in his application of the relevant legal principles that governed the exercise of his trial management discretion.
[30] Third, and finally, Crown trial counsel conceded that re-examination was not necessary. In her exchange with the trial judge, she stated, “Yeah. It’s not a strong point. But if it’s not confusing, then I don’t see a need to even go there again”, and later, “There’s really no need to [re-examine]. It’s just to clarify the confusing point that was left off on. But there’s really no need to. I think its fairly clear on the record” . These submissions can be taken as an acknowledgment by Crown trial counsel that the trial judge’s ruling accorded with the appropriate legal framework for re-examination.
[31] For these reasons, I am not persuaded that the trial judge erred in refusing to permit the Crown to re-examine the complainant.
V. CONCLUSION
[32] For the above reasons, I would dismiss the Crown’s appeal from J.A.’s acquittal.
R v Fashoranti, 2023 NSCA 78
[November 2, 2023] The Crown Functional Appeal [Reasons by Derrick J.A. with Farrar and Van den Eynden JJ.A. concurring]
AUTHOR’S NOTE: For the most part, a judicial stay of proceedings spells the end of a prosecution. However, Defence counsel have to be aware of a small category of appeals known as a functional appeal. In a nutshell, the this kind appeal can occur where the Crown invites the Court to stay the proceedings after an interlocutory ruling that it cannot comply with because it has no reasonable alternative (eg. orders of production in disclosure of solicitor-client privileged material or perhaps confidential informant material). Where the Crown invites the Court to stay the proceedings in such circumstances, it can then appeal the ruling leading to this stay. This case reviews the law applicable to this sort of appeal across the country. Defence counsel should be aware of this sort of option being available to t