Judicial Intervention During Trial

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This page was last substantively updated or reviewed July 2021. (Rev. # 82162)

General Principles

See also: Role of Trial Judge and Reasonable Apprehension of Bias

It is well recognized that judicial intervention may compromise trial fairness.[1] This will become an issue where the judge has created an appearance that they have placed their authority on a side.[2]

Generally, a judge may intervene safely where it is for the purpose of preserving the appearance of trial fairness.[3]

It should be expected on the part of counsel and the judge that a "trial is not a tea party", especially in a criminal case where the stakes are so high.[4] This also means that the judge must be cautious when intervening to balance the risk of trial unfairness against the obligation to control the process, which may require rebuking or correcting counsel.[5]

Presumption of Propriety

There is a "strong presumption" that a judge has not unduly intervened in a trial.[6]

Standard of Review

The issue of whether intervention is inappropriate asks whether the intervention lead to an unfair trial and result in a miscarriage of justice.[7] Assessment must be from the perspective of a "reasonable observer" who was present throughout the whole trial.[8]

Mere excessive intervention, without more, is not enough.[9]

The absence of objections from counsel is a factor to consider.[10]

  1. ↑ R v Fagbola, 2019 ONSC 1119 (CanLII), per Schreck J, at para 10
    R v Hungwe, 2018 ONCA 456 (CanLII), 142 OR (3d) 22, per Nordheimer JA, at paras 39 to 46
    R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA, at paras 61 to 72
    R v Valley, 1986 CanLII 4609 (ON CA), 26 CCC (3d) 207, per Martin JA, at pp. 230-232
  2. ↑ Fagbola, supra, at para 10
    Hungwe, supra, at para 49
    Stucky, supra, at para 84
    Valley, supra, at p. 231
    R v Murray, 2017 ONCA 393 (CanLII), 138 OR (3d) 500, per Watt JA, at para 105
  3. ↑ R v Valley, 1986 CanLII 4609 (ON CA), 26 CCC (3d) 207, per Martin JA
  4. ↑ R v Groia v Law Society of Upper Canada, 2018 SCC 27 (CanLII), [2018] 1 SCR 772, per Moldaver J, at para 3
    R v Gager, 2020 ONCA 274 (CanLII), per Roberts JA, at para 152
  5. ↑ Gager, ibid., at para 152
  6. ↑ R v RB, 2017 ONCA 75 (CanLII), per curiam, at para 4
    R v Hamilton, 2011 ONCA 399 (CanLII), 271 CCC (3d) 208, at para 29
  7. ↑ RB, ibid., at para 4
  8. ↑ RB, ibid., at para 4
    Hamilton, supra, at paras 29 to 30
  9. ↑ RB, supra, at para 4
    R v Kitaitchik, 2002 CanLII 45000 (ON CA), 166 CCC (3d) 14
  10. ↑ RB, supra, at para 4
    R v Lahouri, 2013 ONSC 2085 (CanLII), 280 CRR (2d) 249, per KL CAmpbell J, at para 10

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), 68 OR (3d) 481, per Rosenberg JA, at para 40
    Chippewas of Mnjikaning First Nation v Ontario (Minister of Native Affairs), 2010 ONCA 47 (CanLII), 265 OAC 247, per O’Connor ACJ and Blair JA, at para 232
  2. ↑ Brouillard (Chatel) v The Queen, 1985 CanLII 56 (SCC), [1985] 1 SCR 39, per Lamer J, at p. 44 (SCR) ("...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

Right to Questioning

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] This includes intervention that prevents the accused from "telling his story in his own way."[3]

Crown counsel is permitted present its evidence and question its witnesses even where the relevancy is not immediately apparent to the judge.[4]

Both defence and crown must be permitted to present their case before a decision is made.[5]

Presumption of Non-Intervention

There is a presumption that a trial judge has intervened in a trial properly.[6] The judge may often make comments, give directions or ask questions. [7] There is also a strong presumption against [8]

Intervention Alone Not Improper

Merely intervening frequently, by itself, it not enough to amount to a miscarriage of justice.[9]

The judge should not usurp the role of counsel or interfere with the defence.[10]

Trial Fairness

The key issue is whether the intervention affected trial fairness. [11] This is from the perspective of a reasonable observer. [12]

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."[13]

Failure to Object

The presence or absence of objections by defence counsel is a factor but not determinative.[14]

Permissible Conduct

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.[15]

"Interlocutory remarks" of the judge during argument are not "judicial pronouncements"[16]

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 an explanation of why it should be disregarded, this can effectively correct any concern that a jury might misuse the information. [17]

There is a presumption that an accused not be restrained while in court. It is upon the Crown to establish grounds to order the restraint of the accused.[18]

The judge is entitled in:[19]

  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.
Impact on Examinations

Unnecessary and repeated interruptions that disrupt the flow and effectiveness of cross-examination may exceed permissible limits.[20] A judge should generally only ask questions after the examination is complete.[21]

Intrudes on Function and Strategy

Judges should not interfere in a manner that undermines the function of counsel and disrupts or destroys counsel's strategy.[22]

  1. ↑ R v Farmer, 1985 ABCA 244 (CanLII), 64 AR 340, per Belzil JA - new trial ordered due to intervention
    R v Valley, 1986 CanLII 110 (ON CA), 26 CCC (3d) 207, per Martin JA, at p. 230 leave refused [1986] 1 SCR xiii
    R c Scianna, 1989 CanLII 7233 (ON CA), 47 CCC (3d) 81, per Krever JA
    Brouillard (Chatel) v The Queen, 1985 CanLII 56 (SCC), [1985] 1 SCR 39, per Lamer J, at p. 42
  2. ↑ R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA, at paras 68 to 73
    Valley, supra, at p. 232
  3. ↑ R v Fagbola, 2019 ONSC 1119 (CanLII), per Schreck J, at para 12
    R v Lahouri, 2013 ONSC 2085 (CanLII), 280 CRR (2d) 249, per K.L. Campbell J, at para 9
    Valley, supra, at p. 231
  4. ↑ Darlyn, supra
  5. ↑ R v Wong, 1985 ABCA 54 (CanLII), 60 AR 301, per Stevenson JA
    Viger
    R v Jahn, 1982 ABCA 97 (CanLII), 66 CCC (2d) 307, per Haddad JA
    R v Atkinson, 1976 CanLII 1389 (MB CA), (1976), 36 CRNS 255, per Freedman CJ
  6. ↑ R v Lahouri, 2013 ONSC 2085 (CanLII), 280 CRR (2d) 249, per Campbell J, at paras 4, 5
  7. ↑ Chippewas of Mnjikaning First Nation v Chiefs of Ontario, 2010 ONCA 47 (CanLII), 265 OAC 247, per O’Connor ACJ and Blair JA, at para 231
  8. ↑ R v RB, 2017 ONCA 75 (CanLII), per curiam, at para 4
  9. ↑ RB, ibid., at para 4
    R v Kitaitchik, 2002 CanLII 45000 (ON CA), 166 CCC (3d) 14, per Doherty JA
  10. ↑ Lahouri, supra, at para 8
  11. ↑ Valley, supra
    Lahouri, supra, at para 4
  12. ↑ R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA
  13. ↑ R v Dugas, 2012 NSCA 102 (CanLII), 322 NSR (2d) 72, per Oland JA, at para 37
  14. ↑ RB, supra, at para 4
    Lahouri, supra, at para 10
  15. ↑ R v Watson, 2004 CanLII 45443 (ON CA), 191 CCC (3d) 144, per curiam, at para 10
  16. ↑ R v Visscher, 2012 BCCA 290 (CanLII), 323 BCAC 285, per Smith J, at para 25
  17. ↑ see R v Normand (D.G.), 2002 MBCA 95 (CanLII), 166 Man R (2d) 179, per Twaddle JA, at para 20
  18. ↑ R v WHA, 2011 NSSC 166 (CanLII), 960 APR 155, per Rosinski J
  19. ↑ Lahouri, supra, at para 8
    R v Giovannini, 2018 NLCA 19 (CanLII), per Hoegg JA, at para 15
    Valley, supra
  20. ↑ Watson, supra
  21. ↑ Lahouri, supra, at para 8
  22. ↑ R v Switzer, 2014 ABCA 129 (CanLII), 572 AR 311, per curiam, at para 13

Questioning a Witness

Judges may pose any questions to the witness where it is in the interest of justice.[1]

The judge may ask questions to clarify evidence or have the witness repeat part of an unheard answer.[2]

Leading Questions

The judge should not cross examine the witness.[3] The judge should remain neutral.[4] However, this is not a strict rule and that the mere presence of some leading questions does not amount to the creation of partiality.[5]

Procedure

It is most proper if the judge wait until the end of the witnesses testimony before asking questions and once the questions are complete, invite counsel for further re-examination on the topics raised.[6]

  1. ↑ Lahouri, supra
    R v Darlyn, 1946 CanLII 248 (BCCA), 88 CCC 269, per O'Halloran JA
  2. ↑ R v Schmaltz, 2015 ABCA 4 (CanLII), 320 CCC (3d) 159, per Brown JA (2:1), at para 19
    R v Danial, 2016 ONCA 822 (CanLII), per curiam, at para 3
  3. ↑ Lahouri, supra, at para 8
  4. ↑ Lahouri, supra, at para 8
  5. ↑ Danial, supra, at para 5
  6. ↑ Danial, supra, at para 5
    R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA, at para 64

Intervening Outside of Examinations

A judge is well within their authority to ask questions of counsel after closing submissions to clarify submissions. It is commonplace, proper and lawful.[1]

  1. ↑ R v Kennedy, 2021 NSSC 211 (CanLII), per Arnold J, at para 59
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