Before finding a Toronto woman guilty of failing to comply with a demand for a breath sample, Justice Bruno Cavion took over the cross-examination of police officers who testified at the trial, the court said, adding that Cavion’s interruptions weren’t acceptable for a judge.
“Trial judges have the right to pose questions to any witness. However, in taking over the examination-in-chief of Cst. Mota from the very outset of his evidence, the trial judge was not merely posing questions to clear up some ambiguity in his testimony, or focusing Cst. Mota on some important evidentiary issue, or even putting some question to the officer that should have been asked by counsel. Instead, the trial judge was usurping the role of Crown counsel,” Superior Court Justice Kenneth Campbell said this week.
“In an adversarial proceeding, where the Crown bears the burden of proving the essential elements of the alleged offence beyond a reasonable doubt, it is the Crown who is responsible for eliciting the evidence-in-chief of Crown witnesses. It is simply not the proper function of the trial judge to conduct that examination.”
Last year as well Campbell rebuked Cavion for similar actions.
“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,” Campbell said.
Still, Campbell upheld the conviction this week after finding Cavion’s actions did not affect the outcome of the proceedings. The trial judge asked open-ended questions, remained neutral, and allowed the defence to properly make its case, Code said.
In a remark defence counsel may want to note, Campbell said the fact the lawyer for the accused didn’t object to the trial judges’ interruptions at the time was also a factor in dismissing the appeal.
“At no point during the course of the trial did defence counsel for the appellant raise any objection with respect to the questions posed by the trial judge or his other interventions in the trial proceedings,” Campbell said.
He added: “While the absence of any objection by counsel is not, of course, determinative of the issue of the appearance of fairness in the proceedings, it is a factor to be taken into account.”
Counsel for the appellant could not be reached for comment.
Update March 20: Name of judge who wrote the decision corrected to Justice Kenneth Campbell.