Accused gets new trial after judge usurps role of Crown

A woman charged with impaired driving has been granted a new trial after the judge “usurped the role of the Crown.”

Amanda Lahouri was tried before Ontario Court Justice Bruno Cavion on number of drunk driving charges from June 2010.

The provincial court trial was a blended proceeding, with the Crown leading its evidence to establish the commission of the alleged offences, and with the Lahouri seeking to establish an alleged violation of her constitutional rights so as to potentially exclude the results of the analysis of her breath samples under ss. 8 and 24(2) of the Charter of Rights and Freedoms.

At the conclusion of the trial, Lahouri was acquitted of the impaired driving charge, but convicted of an “over-80” charge.

Referred to in the Superior Court judgment a “straight-forward case,” the trial involved questioning of four witnesses including police officers.

On June 12, 2010, Lahouri was found in her parked car by a tow truck driver in the early morning hours on the shoulder of a highway north of Toronto. When the tow truck driver’s efforts to get Lahouri’s attentions failed, he called 911. A police officer who arrived at the scene testified to the various indications of impairment he observed and arrested Lahouri at the roadside and demanded samples of her breath for analysis. A qualified breath technician later took two breath samples from her. A certificate from police established she had blood-alcohol concentrations of 180 and 160 mg of alcohol per 100 ml of blood at 2:06 a.m. and 2:30 a.m. on that day.

The trial judge questioned one of the police officers regarding what he did, saw, and heard, intervening “. . . frequently with questions of clarification.” On one occasion, he told the officer to “talk in English.” The judge examined the officer this way for what amounted to 17 pages of transcript.

Lahouri appealed her conviction on two grounds — first arguing the trial judge intervened to such an extent in the examination of witnesses that the appearance of fairness in the trial was compromised. Secondly, she argued the trial judge failed to provide legally adequate reasons for judgment in dismissing her Charter motion and in convicting her on the over-80 charge, by failing to reconcile the conflicting testimony of two police officers who testified as to her indicia of impairment.

In his review of the summary conviction on April 9, in R. v. Lahouri, Superior Court Justice Kenneth L. Campbell wrote:

“Based upon a full review of the transcript of the examination-in-chief of Cst. Humphries, it must be said that it was the trial judge, not the Crown, who conducted this examination. . . . 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.”

At various points during the course of the trial, defence counsel for Lahouri raised objections with the trial judge as to how he was unfairly intervening in the proceedings to the overall detriment of the appellant

In addition, Campbell wrote: “In short, the nature and frequency of the interventions of the trial judge compromised the necessary appearance of fairness in these trial proceedings, such that the conviction of the accused cannot stand. There must be a new trial.”

By usurping the role of the Crown, the “appearance of fairness” was compromised from two perspectives — that of the accused and of the Crown.

Lahouri’s conviction was set aside, and a new trial was ordered on that charge.

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