It is the fifth time in the past two years that the courtroom conduct of Bruno Cavion or his rulings on basic criminal law principles, has been called into question on appeal by a Superior Court judge.
The most recent criticism stems from an appeal filed by Demetrios Vlachos, who was convicted of assault as a result of a confrontation with a cyclist on a street in downtown Toronto.
Superior Court Justice Robert Goldstein ordered a new trial and concluded Cavion’s conduct compromised the fairness of the proceedings. As well, he noted Cavion misapplied the R v. W.(D). test for applying the evidence of an accused, which was set out by the Supreme Court of Canada more than 20 years ago.
In explaining these principles, Cavion said it was his role “to try and see through the inconsistencies if a case is made out beyond a reasonable doubt,” which was a legal error, said Goldstein.
“That language implies that a trial judge is required to determine if the Crown has proven the offences despite inconsistencies. That is clearly different from the paramount task of a trial judge,” wrote Goldstein, in the ruling issued March 16.
The Superior Court judge also found fault with what he referred to an as “encouragement” to the accused to plead guilty.
Before hearing evidence, Cavion suggested it was a good time to try to reach a resolution.
“Now is the time to do it before we start because once we start, only God knows how it’s going to finish. You know what I mean,” said Cavion.
In suggesting that Cavion gave the impression he was not neutral, Goldstein cited two other Superior Court decisions finding fault with the judge’s conduct.
The interventions by Cavion in the Vlachos trial included what the Superior Court judge described as an “examination-in-chief” of the complainant, before the Crown attorney had asked a single question.
“A trial judge need not sit silently,” wrote Goldstein. “In our adversarial system however, counsel have their role and the Court has its role.”
Some of Cavion’s questions were arguably not permitted by the rules of evidence, said Goldstein.
“The Court should not usurp the role of counsel. There are good reasons for this: the trial judge, unlike the parties, does not have disclosure and does not know anything about the case.”
Jonathan Rosenthal, a vice president of the Ontario Criminal Lawyers’ Association who was not involved in the Vlachos case, said frequent interventions by a trial judge are not helpful to either side.
“It is equally unfair to the prosecutor. They don’t want the judge to take over,” he said.
While Cavion’s actions and rulings have been criticized frequently on appeal in recent years, Rosenthal said there are a number of issues to consider.
“You have to preserve judicial independence. The difficulty is when the conduct is repeated and it is of such a similar nature,” he said.
A spokesperson for Ontario Court Chief Justice Annemarie Bonkalo said it is the role of the appellate courts to review trial decisions of judges.
“Where there is concern regarding a judge’s judicial conduct, the Ontario Judicial Council is charged with the statutory responsibility to investigate complaints about provincially appointed judges,” said the spokesperson.
Other recent appellate decisions of trials presided over by Justice Bruno CavionR. v. Makacek — A new trial was ordered in an impaired driving trial because of the use of impermissible hearsay evidence by Cavion. “He did not resort to a traditional exception or a principled approach,” said Justice Brian O’Marra.
R. v. Tower — Cavion sentenced a person convicted of a minor assault to 12 months in jail in absentia, instead of a joint submission of 60 days, because the accused failed to appear in court on two occasions. The sentence was reduced on appeal and Cavion was found to have imposed punishment for the failure to appear, rather than the charges before the court.
R. v. Pletsas — Cavion was found to have improperly intervened in the testimony of two police officers in an impaired driving case. The appeal was dismissed, but Cavion was urged to remember the principles explained several months earlier in R. v. Lahouri.
R. v. Lahouri — The nature and frequency of the interventions by Cavion compromised the appearance of a fair trial. A new trial was ordered in an impaired driving case.