Judicial Intervention During Trial

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General Principles

See also: Role of Trial Judge


Generally, a judge may intervene safely where it is for the purpose of preserving the appearance of trial fairness.[1]

  1. ↑ R v Valley (1986), 26 CCC (3d) 207 (ONCA), 1986 CanLII 4609 (ON CA), per Martin JA

Duty to Intervene

A judge is not permitted to act as a "referee who must sit passively while counsel call the case in any fashion they please".[1]

However, the traditional role of judges as "sphinx" who simply observe the proceedings is no longer acceptable. It should be accepted that judges will intervene "so for justice in fact be done".[2] Where necessary judge should ask questions of witnesses, interrupt testimony and call them to order.[3]

Judges should intervene when counsel make decisions that would "unduly lengthen the trial or lead to a proceedings that is almost unmanageable."[4] Judges are empowered by inherent jurisdiction to "make directions necessary to ensure that the trial proceeds in an orderly manner".[5]

  1. ↑ R v Felderhof, 2003 CanLII 37346 (ON CA), (2003), 68 O.R. (3d) 481 (C.A.), per Rosenberg JA, at para. 40
    Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47 (CanLII), per O’Connor ACJ and Blair JA at para 232
  2. ↑ R v Brouillard, at p. 44 ("...it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order.")
  3. ↑ Borouillard, ibid.
  4. ↑ Felderhof, supra
  5. ↑ Felderhof, supra

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), per Belzil JA - new trial ordered due to intervention
    R v Valley, 1986 CanLII 110 (ON CA), (1986), 26 CCC (3d) 207, per Martin JA at p. 230 leave refused [1986] 1 SCR xiii
    R c Scianna, (1989) 47 CCC (3d) 81, 1989 CanLII 7233 (ON CA), per Krever JA
    Brouillard Also Known As Chatel v The Queen, 1985 CanLII 56 (SCC), [1985] 1 SCR 39, 1985 CanLII 56 (SCC), per Lamer J, at p.42
  2. ↑ R v Stucky, 2009 ONCA 151 (CanLII), per Weiler and Gillese JJA at para 68 to 73
    Valley, supra, at p. 232
  3. ↑ R v Lahouri, 2013 ONSC 2085 (CanLII), per Campbell J at para 4, 5
  4. ↑ Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 (CanLII), per O’Connor ACJ and Blair JA, at para 231
  5. ↑ R v RB, 2017 ONCA 75 (CanLII), per curiam, at para 4
  6. ↑ RB at para 4
    R v Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 CCC (3d) 14 (Ont. C.A.), per Doherty JA
  7. ↑ Valley, supra
    Lahouri, supra, at para 4
  8. ↑ R v Stucky 2009 ONCA 151 (CanLII), per Weiler and Gillese JJA
  9. ↑ R v Watson, 2004 CanLII 45443 (ON CA), per curiam at para 10
  10. ↑ R v Visscher, 2012 BCCA 290 (CanLII), per Smith J at para 25
  11. ↑ RB, supra, at para 4
    Lahouri, supra at para 10
  12. ↑ see R v Normand (D.G.), 2002 MBCA 95 (CanLII), per Twaddle JA at para 20
  13. ↑ R v WHA, 2011 NSSC 166 (CanLII), per curiam
  14. ↑ Watson, supra
  15. ↑ Lahouri, supra, at para 8
  16. ↑ Lahouri, supra, at para 8
    R v Giovannini, 2018 NLCA 19 (CanLII), per Hoegg JA, at para 15
    Valley, supra
  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), per Campbell J
    R v Darlyn (1946), 88 CCC 269, 1946 CanLII 248 (BC CA), per O'Halloran JA
  21. ↑ R v Switzer, 2014 ABCA 129 (CanLII), per curiam, at para 13
  22. ↑ Darlyn, supra
  23. ↑ R v Wong, 1985 ABCA 54 (CanLII), per Stevenson JA
    Viger
    R v Jahn, 1982 ABCA 97 (CanLII), per Haddad JA
    R v Atkinson (1976), 36 C.R.N.S. 255 (Man. C.A.), 1976 CanLII 1389 (MB CA), per Freedman CJ
  24. ↑ R v Dugas, 2012 NSCA 102 (CanLII), per Oland JA at para 37
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