Role of Trial Judge

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General Principles

An accused person is entitled to a Constitutional right to an impartial trier-of-fact.[1]

A trial judge has a duty to ensure that the trial is fair and there are no miscarriage of justice.[2]

The trial judge is more than just an umpire but "is not to enter the arena and appear to take on the role of an advocate".[3]

Our criminal justice system is on that is "essentially adversarial" where the Crown presents evidence of guilt and the accused points out weaknesses in the evidence and presents contrary evidence. The trier of fact is a neutral arbiter of the dispute.[4] For this reason it is improper for the judge to usurp the role of counsel in an inquisitorial manner.[5]

Trial judges are presumed to know the elementary principles of law.[6]

Duty of Restraint
A judge has a duty of restraint during their court work.[7]

  1. See s. 11(d) of the Charter which is the right "...to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;"
    See also R. v. Valente, 1985 CanLII 25 (SCC), [1985] 2 SCR 673, (1985), 23 CCC (3d) 193 (S.C.C.)
  2. see R v Harris, 2009 SKCA 96 (CanLII), 331 Sask. R. 283 at para 28
    R v Amell, 2013 SKCA 48 (CanLII) at para 25
  3. R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141 at paras 69-72
    R v Griffith, 2013 ONCA 510 (CanLII) at para 25
  4. R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595 at para 102 per McLachlin J. (in dissent)
  5. R v Corbett, 2009 ABQB 619 (CanLII), at para 46
  6. R v Burns, 1994 CanLII 127 (SCC), [1994] 1 SCR 656, 89 CCC (3d) 193
  7. Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267

Right of Parties to be Heard

There is a fundamental tenant that all parties affected by a decision shall be given an opportunity to be heard by the court before the court makes a ruling. This is the principle of audi alteram partem .[1] The right to be heard also provides a person "the right to know the case to be met".[2]

The judge has an obligation to allow each party who may be affected by a ruling to be permitted to respond to the case against them.[3]

A failure to afford each side to present argument before a judgment is a denial of that right will violate procedural fairness and is fatal.[4]

The right is not unqualified. A declaration of a party as a "vexatious litigant" has the effect of removing this right. Accordingly, it is only used sparingly.[5]

Related to this principle is the common law rule that "a person cannot be deprived of his liberty or property without notice."[6]

  1. R v Gustavson, 2005 BCCA 32 (CanLII) at 64
    See also Moreau‑Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), at para 75, Canadian Union of Public Employees, Local 301 v Montreal (City), 1997 CanLII 386 (SCC), [1997] 1 SCR 793 at para 73 - refereed to as the rule that “no man be condemned unheard"
  2. Devon Canada Corp. v Alberta (Energy and Utilities Board), 2003 ABCA 167 (CanLII) at para 19
  3. Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII) at para 53 ("a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case")
  4. R v Berry, 2014 ABQB 379 (CanLII), at para 7
    R v Graham, 2007 ABCA 153 (CanLII), at paras 11-12
    Fraser v Fraser, 1994 ABCA 275 (CanLII), (1994) 157 AR 98 (C.A.), at para 10
  5. Kallaba v Bylykbashi 2006 CanLII 3953 (ON CA), (2006), 207 O.A.C. 60 at para 31
  6. R v Marton, 2016 ONSC 2269 (CanLII), at para 25
    R v Buchholz, [1958] M.J. No.7; 121 CCC 293 (Man. C.A.)(*no link) at para 8

Rules of Court

See also: Case Management

Under s. 482(1) and (2), a superior court and provincial have the power to make rules governing criminal proceedings.

Under s. 482.1, the courts also have the power the makes rules with respect to case management.[1]

  1. See also Case Management

Hearing Evidence at Trial

A judge must consider all evidence relating to the issue of innocence or guilt.[1] Failure to do so is an error of law.[2]

However, there is no requirement that the judge "record all or any specific part of the process of deliberation on the facts".[3] A failure to record facts does not give rise to an error unless the judge's reasons demonstrate that not all the facts were considered.[4]

  1. R v Morin, 1992 CanLII 40 (SCC), [1992] 3 SCR 286 at 296 (SCR)
    R v DLW, 2013 BCSC 1327 (CanLII) at para 3
  2. Morin, supra at 296 (SCR)
  3. Mori at p.296
    R v Walle, 2012 SCC 41 (CanLII), [2012] 2 SCR 438 at para 46
  4. Mori at p.296
    Walle, supra at para 46

Control over Trial Process

A criminal trial court to "control its process" is a fundamental value of the criminal justice system".[1] A judge has "considerable" powers to intervene in a criminal trial to manage the proceedings.[2]

A judge is authorized to make orders "necessary to ensure an orderly trial, without which the administration of justice risks being ...thrown into disrepute".[3]

Superior Court
A Superior Court Justice has the inherent jurisdiction to eliminate any procedural unfairness that arises during a trial.[4]

The Superior court has inherent jurisdiction to control the disclosure process of a matter before the provincial court.[5]

Provincial Court
The "procedural directions contained in the Code are of necessity exhaustive". The powers of a provincial court judge are "entirely statutory."[6] However, "the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law. This Court has affirmed that courts can apply a ‘doctrine of jurisdiction by necessary implication’ when determining the powers of a statutory tribunal.” [7]

The inherent powers of a superior court judge to control the court process is said to be equally available to provincial court judges either expressly by statute or by necessary implication.[8]

Consequently, a provincial court judge has implied jurisdiction to "vary one of its own orders in order to correct clerical mistakes or errors arising from an accidental slip or omission or in order to properly reflect the intention of the court"[9]

Reconsidering Judgements
Generally, a "court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus.”[10]

Exclusion of Evidence
There is a limited power of a trial judge to exclude evidence in order to ensure trial fairness where other remedies are not sufficient. However, it is considered an "unusual exercise" of the trial management power. [11]

Prohibition Orders on Defence Conducting their Defence
A judge may limit the examination or cross-examination of witnesses or the right to call defence witness only where it is justified in "clear and compelling circumstances".[12]

  1. R v Romanowicz (1999), 1999 CanLII 1315 (ON CA), 45 O.R. (3d) 506 at para 56
  2. R v Auclair, 2013 QCCA 671 at para 55
  3. Auclair, ibid. at para 55
  4. R v Rose, [1998] 3 SCR 262, 1998 CanLII 768
  5. D.P. v Wagg 2004 CanLII 39048 (ON CA), (2004), 71 O.R. (3d) 229 (C.A.)
    see Disclosure
  6. R v Doyle 1976 CanLII 11 (SCC), [1977] 1 SCR 597
  7. R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331 at para 19
  8. R v Doyle, 1976 CanLII 11 (SCC), [1977] 1 SCR 597, per Ritchie, J. ("Whatever inherent powers may be possessed by a superior court judge in controlling the process of his own Court, it is my opinion that the powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication.")
  9. see R v Rhingo, [1997] O.J. No. 1110 (Ont. C.A.) and R v Robichaud, 2012 NBCA 87 (CanLII), [2012] NBJ No. 175 (C.A.)
  10. R v Adams, 1995 CanLII 56 (SCC), [1995] 4 SCR 707, at para 29
  11. R v Spackman, 2012 ONCA 905 (CanLII), per Watt JA
  12. R v Colpitts, 2017 NSSC 22 (CanLII), per Coady J, at para 18
    R v Schneider, 2004 NSCA 99 (CanLII), per Cromwell JA

Limiting Evidence

The judge is required to listen to evidence that "advances the work of the court". He or she cannot be required to listen to irrelevant or pointless evidence.[1] The judge may even disallow the submission of non-relevant evidence.[2]

The judge has an obligation to track the admission of evidence to ensure that the record is restricted to what is admissible, and also that it is only used for the purpose for which it was admitted.[3]

The judge has the jurisdiction to edit the evidence, including written statements and oral testimony, as it is given. The judge may edit out portions of the evidence that is prejudicial or otherwise irrelevant or immaterial only so long as it does not distort the probative evidence.[4]

  1. R v Malmo-Levin 2003 SCC 74 (CanLII), [2003] 3 SCR 571
  2. R v Schneider, 2004 NSCA 99 (CanLII)
  3. R v Morrisey 1995 CanLII 3498 (ON CA), (1995), 22 O.R. (3d) 514
    R v Smith, 2011 ONCA 564 (CanLII) at para 59
  4. R v Dubois (1986), 27 CCC (3d) 325 (Ont.C.A.)(*no link)
    R v Toten, 1993 CanLII 3427 (ON CA), (1993), 14 O.R. (3d) 225 (Ont.C.A.)

Exclusion from Hearing

Fact Finding

See also: Analyzing Testimony#Findings of Fact

Sitting Position of Accused

Independent Research of the Judge

A judge should not enter "into the fray" by doing self-directed research that puts them in a role of being "advocate, witness and judge".[1]

A judge can only rely on social studies, literature or scientific reports after they have been tested by the parties.[2]

  1. R v Bornyk, 2015 BCCA 28 (CanLII) - judge did separate research on finger print evidence and performed own analysis
    R v B.M.S., 2016 NSCA 35 (CanLII)
  2. BMS at para 17
    R v P(SD) (1995), 1995 CanLII 8923 (ON CA), 98 C.C.C. (3d) 83 (Ont.C.A.) at paras 33, 36
    Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 85 O.A.C. 54 at paras 47, 49-51
    R v Désaulniers (1994), 1994 CanLII 5909 (QC CA), 93 C.C.C. (3d) 371, (Que.C.A.) at paras 21, 23-24, 26-27

Loss of Judge During Proceedings

Doctrine of Functus Officio

Communications with Counsel Out of Court

Ex parte communications (i.e. communications in absence of one of the parties) concerning an ongoing proceedings should be avoided. It is a rule that relates to the "public perception of fairness within the administration of justice". [1] It also preserves "confidence of the public in the impartiality of the judiciary and thereby in the administration of justice".[2]

Ex parte communications between judge and counsel concerning a case will "almost invariably raise a reasonable apprehension of bias".[3]

  1. R v Deleary, 2007 CanLII 71720 (ON SC) at para 22
  2. R v Jones, 1996 CanLII 8006 (ON SC), (1996), 107 CCC (3d) 517 (Ont. G.D.)
  3. Jones and Deleary

Duty to Make a Record

Under Part XX of the Code, there is a duty upon the court to keep a record of every arraignment and all proceedings after the arraignment.

Record of Proceedings

How recorded
624. (1) It is sufficient, in making up the record of a conviction or acquittal on an indictment, to copy the indictment and the plea that was pleaded, without a formal caption or heading.
Record of proceedings
(2) The court shall keep a record of every arraignment and of proceedings subsequent to arraignment.
R.S., c. C-34, s. 552.


CCC


Endorsements on the Information

Where an election is made to supreme court, either judge alone or judge and jury, the court must endorse the information showing the "nature of the election" and whether anyone requested a preliminary inquiry.[1]

Where an election is made to provincial court before a provincial court judge, the court must endorse the information with that election.[2]

  1. 536(4.1)
  2. 536(3)

Intervention During Examinations

All counsel are entitled to question witnesses on direct and cross examination without undue intervention. [1] Undue intervention will exist where the intervention affect trial fairness.[2]

There is a presumption that a trial judge has intervened in a trial properly.[3] The judge may often make comments, give directions or ask questions. [4] There is also a strong presumption against [5]

Merely intervening frequently, by itself, it not enough to amount to a miscarriage of justice.[6]

The key issue is whether the intervention affected trial fairness. [7] This is from the perspective of a reasonable observer. [8]

A judge may disrupt questioning in order to clear evidentiary ambiguities, pursue subjects left vague by the witness, and ask questions counsel should have asked.[9]

"Interlocutory remarks" of the judge during argument are not "judicial pronouncements"[10]

The presence or absence of objections by defence counsel is a factor but not determinative.[11]

A judge is permitted to give the jury mid-trial instructions to disregard any erroneous comments made by counsel. If it is given promptly and with explanation of why it should be disregarded, this can effectively correct any concern that a jury might misuse the information. [12]

There is a presumption that an accused not be restrained while in court. It is upon the Crown to establish grounds to order the restaint of the accused.[13]

Unnecessary and repeated interruptions that disrupt the flow and effectiveness of cross-examination may exceed permissible limits.[14] A judge should generally only ask questions after the examination is complete.[15]

The judge is entitled in:[16]

  1. posing questions to a witness to clear up ambiguities in their evidence;
  2. calling a witness to order and focusing him or her on the true matters in issue;
  3. exploring some issue on which the witness’s evidence has been left vague and uncertain; or
  4. putting questions which should have been asked by counsel in order to elicit evidence on some relevant issue.

The judge should not usurp the role of counsel or interfere with the defence.[17]

The judge should not cross examine the witness.[18] The judge should remain neutral.[19]

Judges may pose any questions to the witness where it is in the interest of justice.[20]

Judges should not interfere in a manner that undermines the function of counesl and disrupts or destroys counsel's strategy.[21]

Crown counsel is permitted present its evidence and question its witnesses even where the relevancy is not immediately apparent to the judge.[22]

Both defence and crown must be permitted to present their case before a decision is made.[23]

The main issue is not whether the intervention was such that a "reasonably minded person who had been present throughout the trial could conclude that the accused had not received a fair trial, but whether such a person would come to such a conclusion."[24]

  1. R v Farmer, 1985 ABCA 244 (CanLII) - new trial ordered due to intervention
    R v Valley, 1986 CanLII 110 (ON CA), (1986), 26 CCC (3d) 207 at p. 230
    R c Scianna, (1989) 47 CCC (3d) 81(*no link)
    Brouillard Also Known As Chatel v The Queen, 1985 CanLII 56 (SCC), [1985] 1 SCR 39, 1985 CanLII 56 (SCC), at p.42
  2. R v Stucky, 2009 ONCA 151 (CanLII) at para 68 to 73
    Valley, supra, at p. 232
  3. R v Lahouri, 2013 ONSC 2085 (CanLII) at para 4, 5
  4. Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 (CanLII), at para 231
  5. R v RB, 2017 ONCA 75 (CanLII) at para 4
  6. RB at para 4
    R v Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.)
  7. Valley, supra
    Lahouri, supra at para 4
  8. R v Stucky 2009 ONCA 151 (CanLII)
  9. R v Watson, 2004 CanLII 45443 (ON CA) at para 10
  10. R v Visscher, 2012 BCCA 290 (CanLII) at para 25
  11. RB, supra at para 4
    R v Lahouri, 2013 ONSC 2085 (CanLII), 280 C.R.R. (2d) 249 (S.C.), at para 10
  12. see R v Normand (D.G.), 2002 MBCA 95 (CanLII) at para 20, 166 Man.R. (2d) 179)
  13. R v W.H.A., 2011 NSSC 166 (CanLII)
  14. R v Watson
  15. Lahouri, supra at para 8
  16. Lahouri, supra at para 8
  17. Lahouri, supra at para 8
  18. Lahouri, supra at para 8
  19. Lahouri, supra at para 8
  20. R v Lahouri, 2013 ONSC 2085 (CanLII)
    R v Darlyn (1946), 88 CCC 269 (*no link)
  21. R v Switzer, 2014 ABCA 129 (CanLII), at para 13
  22. R v Darlyn (1946), 29 CR 302(*no link)
  23. R v Wong, 1985 ABCA 54 (CanLII)
    Viger
    R v Jahn, 1982 ABCA 97 (CanLII)
    R v Atkinson (1976), 36 C.R.N.S. 255 (Man. C.A.)(*no link)
  24. R v Dugas, 2012 NSCA 102 (CanLII) at para 37

Maintaining Order

Preserving order in court
484. Every judge or provincial court judge has the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction of the province during the sittings thereof.

R.S., 1985, c. C-46, s. 484; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

This section permits a judge to make an order of contempt for:

  • persistent refusal of accused to stand on entry of the presiding judge.[1]
  • the use of recording devices in the court against the order of the judge.[2]
  • the high degree of intoxication of the accused appearing at trial[3]

This section cannot be used to order the mode of dress of counsel.[4]

  1. R v Heer, 1982 CanLII 786 (BC SC), at para 17
    Re Hawkins, 53 W.W.R. 406, 53 D.L.R. (2d) 453, [1966] 3 CCC 43 (sub nom. R v Hume; Ex parte Hawkins) (B.C.)(*no link)
  2. R v Barker (Burke), 1980 ABCA 75 (CanLII), [1980] 4 W.W.R. 202, 53 CCC (2d) 322, 20 A.R. 611 (C.A.)
  3. Heer
  4. Heer at para 17
    R v Samson; Bardon v Carver Prov. J. (1974), 14 N.S.R. (2d) 592, 29 C.R.N.S. 129, (sub nom. Re Samson and R.) 18 CCC (2d) 552, 50 D.L.R. (3d) 365 (T.D.)(*no link)

Misc Powers

The judge does not have the power to order that counsel not communicate with a witness who is not in the middle of testimony. The rules of contempt of court and Professional Conduct are the only limitations on counsel's right to speak with witnesses and clients in court.[1]

Execution of Orders
Under s. 3.1 of the Code, any order made by any type of judge will be effective immediately unless otherwise stated:

Effect of judicial acts
3.1 Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing.
2002, c. 13, s. 2.


CCC

  1. R v Arsenault, (1956) 115 CCC 400 (NBCA)(*no link)

View

Superior Court Inherent Jurisdiction

All Courts that are created by s. 96 of the Constitution Act, 1867 are vested with "inherent jurisdiction" to make orders on matters that are not necessarily authorized by statute.[1]

The doctrine is available as a "residual source of powers" that is available to a judge "whenever it is just or equitable to do so", which includes:[2]

  • ensuring "the observance of due process of law";
  • preventing "improper vexation or oppression";
  • "do justice between the parties" and
  • securing "a fair trial" between the parties.

It can be used to "supplement under-inclusive legislation or to otherwise fill gaps in appropriate circumstances".[3]

The doctrine is of an "amorphous nature".[4] And can be used in "an apparently inexhaustible variety of circumstances and may be exercised in different ways".[5]

Limitations
The doctrine may be limited by statute. It cannot be used in such a way that it contravenes any statutory provision.[6]

It is also limited by "institutional roles and capacities that emerge out of our constitutional framework and values".[7]

It generally should be exercised "sparingly and with caution", such as where "inferior tribunals are powerless to act act and it is essential to avoid an injustice that action be taken."[8]

Examples of Application
A publication ban was ordered by inherent jurisdiction.[9] A publication ban can also be removed by inherent jurisdiction.[10]

  1. R v Caron, 2011 SCC 5, [2011] 1 SCR 78 at para 21 (These powers are derived "not from any statute or rule of law, but from the very nature of the court as a superior court of law" to enable "the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner".)
    Ontario v Criminal Lawyers’ Association of Ontario, [2013] 3 SCR 3, 2013 SCC 43 (CanLII) at para 18
  2. Ontario v CLAO, supra at para 20
    Parsons v Ontario, 2015 ONCA 158 (CanLII)
  3. CR v Children's Aid Society of Hamilton, 2004 CanLII 34407 (ON SC) at para 29
  4. Ontario v CLAO, supra at para 22
  5. Caron, supra at para 29
  6. Parsons, supra at para 71
    Ontario v CLAO, supra. at para 23
  7. Parsons at para 72 to 73
    Ontario v CLAO, supra at para 24
  8. Caron, supra at para 30
  9. R v Church of Scientology of Toronto, 1986 CarswellOnt 925 (S.C.)(*no link)
  10. R v Ireland, 2005 CanLII 45583 (ON SC), per Del Frate SCJ

Doctrine of Mootness

Under the doctrine of "mootness" suggests that a court may decline to decide a case that "raises merely a hypothetical or abstract question" that "will not have the effect of resolving some controversy which affects or may affect the rights of the parties".[1]

  1. Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at para 15 per Sopinka J
    R v Smith, [2004] 1 SCR 385, 2004 SCC 14 (CanLII)

Civility and Professionalism

Tone of Reasons
The reasons for judgement should be "restrained and appropriate, clinical in tone and minimalist in approach".[1]

Sleeping
A judge found to be sleeping during trial will affect trial fairness and warrant a retrial.[2]

  1. Canada v Olumide, 2017 FCA 42 (CanLII) at para 39
  2. Cesan v The Queen, (2008) 83 ALJR 43 (Australia High Court)

Validity of Orders

Validity of Forms (Part XXVIII)

Forms
849. (1) The forms set out in this Part, varied to suit the case, or forms to the like effect are deemed to be good, valid and sufficient in the circumstances for which they are provided.
Seal not required
(2) No justice is required to attach or affix a seal to any writing or process that he or she is authorized to issue and in respect of which a form is provided by this Part.
Official languages
(3) Any pre-printed portions of a form set out in this Part, varied to suit the case, or of a form to the like effect shall be printed in both official languages.
2002, c. 13, s. 84.


CCC

Judicial Neutrality and Bias

See Also

Other Parties