Judge dinged for ‘bias’ for second time in a year

A trial judge has had a decision overturned on appeal on the basis of “reasonable apprehension of bias” for the second time in a year.

Both cases involved “improper and unwarranted interventions” by Ontario Superior Court Justice Robert Scott, according to an Ontario Court of Appeal decision released yesterday.

The latest decision related to R v. Huang, in which defendants John Huang and Ying Huang were both accused of conspiracy to produce marijuana, producing marijuana, and possession of marijuana for the purposes of trafficking.

They were tried by judge alone on Aug. 26, 2011. Scott sentenced John Huang to four-and-a-half years’ imprisonment and Ying Huang, who had already spent 33 months in prison, to time served. Ying Huang was also convicted of several counts of utilities theft.

During the Superior Court hearing, John Huang claimed he was innocently duped into acting as a realtor for others who planned to turn properties into grow-ops.

His credibility was the central issue at trial.

As he was being cross-examined by the Crown about his and Ying’s involvement in the grow-op plans, Scott asked whether he understood the meaning of perjury and wanted to discuss it with his counsel.

After Huang and his counsel declined, according to the appeal ruling, Scott explained: “I just wanted to make sure that he didn’t get himself entrapped into something that might cause some other charges. That’s all I’m saying.”

But the appeal court found the comments “gave rise to a reasonable apprehension of bias and undermined the appearance of fairness in this case.”

The trial judge’s “unprompted insinuation” occurred at a “critical point” during the testimony. It showed “he had pre-judged the appellant’s credibility before the appellant had been given an opportunity to explain himself and before all the submissions of counsel had been heard,” adds the appeal decision.

This “infected the appearance of fairness and impartiality for both accused” and meant that a new trial before a different trial judge was required for both appellants.

The appeal court observed this was the second time in less than a year it had allowed appeals related to judgments made by Scott based on reasonable apprehension of bias.

The decision said: “In both instances, public resources were wasted, great inconvenience to the parties resulted and the integrity of justice was tarnished.

“It bears repetition that trial judges, like appellate judges, must preside in a judicious fashion. Trial judges are, at bottom, listeners.”

The earlier case was Lloyd v. Bush, in which Scott made an inappropriate comment about an appellant’s credibility that was “impossible to fathom,” according to the appeal court.

Last week, Legal Feeds reported on a retrial granted to a woman charged with impaired driving after an Ontario Court of Justice judge “usurped the role of the Crown.”

Superior Court Justice Kenneth Campbell wrote that, in R v. Lahouri,  “virtually every significant piece of evidence” provided by a police officer’s testimony was “elicited by” trial judge Justice Bruno Cavion.

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