Court of Appeal for Ontario

Date: 2025-05-14
Docket: C67368
Coram: Lauwers, George and Copeland JJ.A.

Between:
His Majesty the King (Respondent)
and
Norma Walton (Appellant)

Appearances:
Michael Lacy and Joseph Wilkinson, for the appellant
Sunil S. Mathai, for the respondent

Heard: November 5, 2024

On appeal from the conviction entered by Justice Michael Code of the Superior Court of Justice, sitting with a jury, on June 8, 2019, and from the sentence imposed on September 19, 2019, with reasons reported at 2019 ONSC 5408.

Lauwers J.A.:

A. Overview

[1] This appeal poses the following question: when does a trial judge presiding over a criminal jury trial go too far in participating in the questioning of a witness?

[2] The appellant, Norma Walton, was the active partner in a real estate development business that she co-owned with her husband, Ronauld Walton. In 2008, Dr. Stanley Bernstein began investing as a mortgage lender in Ms. Walton’s early real estate projects. In 2010, Dr. Bernstein invested as an equity partner and, by 2013, he became a joint owner with the Waltons of about 30 real estate development projects in which he invested about $110 million.

[3] In 2012, the Waltons incorporated two corporations, Global Mills Inc. (“Global Mills”) and Donalda Developments Ltd. (“Donalda”), for the purpose of purchasing and developing 1450 and 1500 Don Mills Road in Toronto. They entered into two investment agreements with Dr. Bernstein in which the Waltons and Dr. Bernstein each owned 50% of the shares of both corporations. They each agreed to provide capital. The agreements stipulated that Dr. Bernstein’s approval was required to refinance the properties, sell the properties, increase the total amount of capital required, make any other significant decision that varies from the project plans, and transfer funds exceeding $50,000.

[4] In 2013, Dr. Bernstein grew worried about his investments. After raising concerns that the Waltons would not or could not satisfactorily address, Dr. Bernstein sued and got a $66 million judgment against them for civil fraud. [1]

[5] The facts in this criminal prosecution turn on mortgage refinancings for Global Mills and Donalda, both taken without Dr. Bernstein’s knowledge or authorization. I draw the details out of the trial judge’s sentencing decision, where he laid out what he considered to be the salient facts from the jury’s perspective. [2] I paraphrase and sometimes quote.

[6] The net proceeds from the new Global Mills mortgage, amounting to $2,661,369.61, were deposited into the account of the Waltons’ private company, Rose and Thistle Group Ltd. (“Rose and Thistle”) on August 1, 2013. This deposit was made alongside the net proceeds of the new Donalda mortgage, which totaled $2,888,250.79. These two large deposits totalled about $5.5 million.

[7] The funds were disbursed out of the Rose and Thistle account in the first two weeks of August 2013. The recipients were:

• 32 real estate development projects jointly owned by the Waltons and Dr. Bernstein, which received about $3.3 million (including $1,051,800 advanced to Donalda and $231,300 advanced to Global Mills);
• 27 other companies, persons, or entities in which only the Waltons had an interest, which received about $2.2 million, and included $460,000 transferred directly into the Waltons’ own personal bank account where it was used almost immediately to pay their income taxes owing to the Canada Revenue Agency, mortgage payments owing on their home, and various debts owing on personal lines of credit.

[8] Several emails were exchanged between Ms. Walton and Dr. Bernstein between August 2013, when the new mortgages were arranged, and October 2013, when Dr. Bernstein started his civil litigation. Ms. Walton did not initially reveal that she had obtained additional mortgage funds. While she disclosed the additional financing in an email on September 14, 2013, she did not mention that it had been advanced over a month earlier. Afterwards, she continued to falsely represent that she still had the money in her control, despite having already transferred most of those funds out of the Rose and Thistle account.

[9] At trial, Ms. Walton testified that Dr. Bernstein had given her permission to withdraw equity from the companies, and that in any event she was simply trying to make inter-company loans among the corporations which would be treated as “withdrawal of equity” if not repaid by the year end. She argued that only the $460,000 that was transferred to the Waltons’ personal bank account and spent on their personal debts and personal needs could constitute theft. But Ms. Walton argued that she honestly believed she had a colour of right to transfer the rest of the funds to all the other entities, regardless of whether Dr. Bernstein had any ownership of any such project or company.

[10] The jury convicted Ms. Walton of two counts of theft over $5,000 in relation to both Global Mills and Donalda respectively. Mr. Walton was acquitted of theft charges on the same facts. Lastly, the jury acquitted Ms. Walton of a charge of fraud over $5,000 in relation to a separate property, which I do not need to address in these reasons.

[11] The trial judge encapsulated the essential elements of the jury’s implicit reasoning and Ms. Walton’s defence: [3]

The jury must have been satisfied that the above facts made out the essential elements of the offences of theft from the Global Mills and Donalda corporate victims, namely, a taking or converting of money in excess of $5000, that belonged to the two corporate borrowers, fraudulently and without colour of right, and with intent to deprive the corporate victims of the money, at least temporarily. The only element of theft that was seriously challenged by the defence at trial was the primary mental element, namely, whether Ms. Walton took or converted some or all of the mortgage proceeds “fraudulently and without colour of right”. The jury was instructed as follows in relation to assessing Ms. Walton’s testimony concerning this element:

“If you accept Ms. Walton’s testimony, or if it leaves you in a state of reasonable doubt, to the effect that she honestly believed she had a right to take and spend the mortgage proceeds advanced to the two Don Mills projects as she saw fit, then this third element of theft would not have been proved and you must find Ms. Walton not guilty”.

[Italics indicating emphasis in original; underlining added.]

[12] The trial judge then interpreted the jury’s conviction: [4]

The jury must have rejected Ms. Walton’s evidence to the effect that she believed she had a legal right to take the mortgage proceeds and to use the money for other purposes (characterizing the various transfers as “inter-company loans” and “withdrawn equity”). The jury must have found that she took or converted some or all of the Donalda and Global Mills mortgage monies “fraudulently and without colour of right”, that is, knowing that she had no legal right to take certain amounts for certain purposes that were unrelated to Donalda and Global Mills.

[13] I agree with the trial judge’s interpretation of the jury’s verdict. Nonetheless, for the reasons that follow, I would allow the appeal.

B. Issues

[14] Ms. Walton raises four issues on appeal:

1. Did the trial judge’s interruptions, interjections, and questioning of Ms. Walton create a reasonable apprehension of bias?
2. Did the trial judge err in his W.(D.) charge in respect of Ms. Walton’s evidence?
3. Did the trial judge err in failing to adequately outline the defence position to the jury and relate the evidence in support of it to the legal issues?
4. Was the sentence harsh and excessive and based on errors in principle?

[15] Because the appeal turns on the first issue, I do not reach the other issues or the sentence appeal.

C. Analysis

[16] I would frame the first issue slightly differently: Did the trial judge improperly assume the role of counsel by his interruptions, interjections, and questioning of Ms. Walton?

[17] The law interposes several protective barriers between the immense power of the prosecuting state and a vulnerable accused person including the burden of proof on the Crown to prove the charge beyond a reasonable doubt, the elements of the charge the Crown must prove, other procedural protections offered by the Criminal Code, RSC 1985, c C-46, and by the common law, the rights protected by the Canadian Charter of Rights and Freedoms, and the adversarial system itself. That system’s elements include the right of each party to be represented by counsel, the right to examine witnesses in chief and to cross-examine witnesses, and the ability of defence counsel to object and require the judge to rule on the admissibility of evidence and other procedural issues. Certain duties are imposed on members of the jury, who are the fact finders. Finally, the judge who presides over the trial has a large role.

[18] I will set out the governing principles and then apply them. The relevant principles cover several different areas.

(1) The Governing Principles

[19] The overriding principle governing a trial judge’s intrusion into the questioning of a witness is cautious restraint, in light of the roles that our adversarial system accords to the judge, the jury, counsel, the parties, and to witnesses. The supporting principles are well known but sometimes require restatement. [5]

[20] In the context of a jury trial, the judge holds in tension two considerations, outlined by Kelly J.A. in R. v. Torbiak and Campbell, at para. 5:

On the one hand his position is one of great power and prestige which gives his every word an especial significance. The position of established neutrality requires that the trial judge should confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions. On the other hand his responsibility for the conduct of the trial may well require him to ask questions which ought to be asked and have not been asked on account of the failure of counsel, and so compel him to interject himself into the examination of witnesses to a degree which he might not otherwise choose.

[21] Later cases have elaborated on this tension between preserving judicial neutrality and intervening by questioning a witness.

[22] The trial judge is duty-bound to exercise restraint and remain neutral to promote both the reality and the appearance of fairness. [7] However, a trial judge is permitted to intervene where doing so is essential to ensure justice is done in both substance and appearance. [8] A trial judge is entitled to and must “manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides”, and to witnesses. [9]

[23] However, trial judges should, consistent with the principle of cautious restraint, confine themselves to their own responsibilities, leaving counsel and the jury to perform their respective functions. [10]

[24] In this light, I point out that examination-in-chief and cross-examination are and must remain the responsibility of counsel; a trial judge should not become an investigator. [11] A trial judge must not cause a reasonable person to believe that he has “placed the authority of his office” on either side, particularly that of the prosecution, and must also be careful not to usurp the role of counsel because the overall impression created may be fatal to the appearance of trial fairness. [12]

[25] Although the trial judge may ask questions that should have been asked by counsel, the trial judge must not usurp counsel’s role. The judge must not “leave his or her position of neutrality as a fact-finder and become the cross-examiner.” [13] When the trial judge does intervene in questioning a witness, “it is important that they use care and not create an impression through the questioning process of having adopted a position on the facts, issues or credibility.” [14]

[26] As this court instructed in Chippewas, at para. 239, a trial judge should try to avoid interfering with the organization and flow of the evidence, because judicial intervention might impede counsel in following an organized line of inquiry. This is especially important during examination-in-chief. [15] Obviously, the trial judge should never cross-examine a witness. Rather, when the trial judge believes that it is necessary to question a witness, the judge’s questions should be asked after counsel has completed his examination, or at least after counsel has finished a particular line of questioning. An exception would be a fast clarification that does not become a digression.

[27] Stucky and Murray provide useful bookends on permissible and impermissible interventions. In Stucky, at para. 64, this court adopted and summarized the comments of Martin J.A. in Valley, at para. 53:

Martin J.A. set out three situations in which questions put by a trial judge to a witness may be justified, namely: to clear up ambiguities and call a witness to order; to explore some matter which the witnesses’ answers have left vague; or, to put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted.

[28] The other bookend, in Murray, provides the counterpoint, at para. 94, per Watt J.A.:

The principal types of intervention that attract appellate disapprobation include, but are not limited to,

(i) questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;

(ii) questioning witnesses in such a way as to make it impossible for counsel to present the defence case;

(iii) intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and

(iv) inviting the jury to disbelieve the accused or other defence witnesses.

[29] There are other relevant limits on the right to intervene. As Lamer J. emphasized in Brouillard, at para. 24, when an accused testifies, “prudence and the resulting judicial restraint must be all the greater”. [16]

[30] Lastly, a trial judge must be especially cautious in questioning an accused or a witness while sitting with a jury. [17] In particular, the judge should be careful to not ask questions that seem to favour one side or the other. In jury trials, trial judges “must always keep in mind that they are neither an advocate nor the trier of fact.” [18]

(2) The Principles Applied

[31] The principle of cautious judicial restraint should have guided the trial judge. This was a long four-week criminal jury trial in which the accused testified. Ms. Walton was well-represented by competent counsel.

[32] Some of the trial judge’s interventions could be justified as clearing up ambiguities, or in exploring a matter in which Ms. Walton’s answers were vague, as permitted in Valley. However, such clarifying questions, unless they permit a fast clarification, should be left until after counsel has finished.

[33] But in this trial, many interventions occurred during Ms. Walton’s examination-in-chief and were not held back by the trial judge until after defence counsel had completed a line of inquiry or had completed his examination-in-chief. The interventions fell into the faults outlined in Murray. That is, the trial judge’s questioning of Ms. Walton made it very difficult, if not impossible, for defence counsel to present the evidence in the orderly fashion that he, no doubt, had planned. In other words, the trial judge intervened to such an extent that it prevented Ms. Walton from telling her story. He left his position of judicial neutrality and became a second cross-examiner. On occasion, the trial judge hounded Ms. Walton in his manner of cross-examination. This could not but have created an impression with the jury that the judge had aligned himself with the Crown.

[34] Ms. Walton highlights many excerpts from the transcript, which she argues establish these complaints:

• The trial judge took on the role of cross-examiner and would have caused the jury to believe that Ms. Walton’s evidence was contradictory, unsupported, and less worthy of belief;
• The trial judge improperly caused her to modify her evidence;
• The trial judge made her appear as though she was giving inconsistent evidence;
• The trial judge’s intervention resulted in the judge requiring her to produce evidence; and
• The trial judge cross-examined her in tandem with the Crown.

[35] I will not discuss each of the excerpts but instead will focus on several that illustrate the problems with judicial intervention discussed in the cases mentioned above.

[36] It is helpful to recall the context. At trial, Ms. Walton testified that Dr. Bernstein had given her permission to withdraw equity from the companies. Whether she had the honest belief that she could take and spend the mortgage proceeds as she saw fit was central and turned on her credibility, which was the key issue to be resolved by the jury.

[37] I excerpt two lengthy passages from the transcript. The first, from defence counsel’s examination-in-chief of Ms. Walton, addresses whether Ms. Walton had Dr. Bernstein’s permission to take the mortgage proceeds. Ms. Walton argues the trial judge cross-examined her and directed the flow of information. The second, from the Crown’s cross-examination, addresses Ms. Walton’s decision to transfer the funds into the Waltons’ personal Rose and Thistle account, on which she argues that the trial judge cross-examined her in tandem with the Crown.

(a) Did the trial judge cross-examine Ms. Walton during her examination-in-chief on her understanding with Dr. Bernstein?

[38] In the excerpts that follow, which are continuous unless otherwise noted, Mr. Cohen and Ms. Parise were Ms. Walton’s defence counsel. I insert occasional comments.

MR. COHEN: Q. All right, so did you have any discussions with Dr. Bernstein or did you exchange any documents that indicated what your perception was of the value of Don Mills as of July 31st 2013?

A. I was always providing him with updates on all of our properties and I would sort of give my opinion of what I thought things were worth, so the September 14th 2013 email that I sent him when I advised him about the mortgages that had been placed, I believe I put a valuation in there.

THE COURT: Which email?

A. September 14th 2013.

[39] This was a factual question that would have helped the judge and jury find the document. But then the trial judge made an additional remark that sounds critical.

THE COURT: So that’s over a month after the new mortgages had been put on.

A. Yes.

THE COURT: Is that correct?

A. Yeah, that’s a month and a half. It’s six weeks.

THE COURT: So that’s when you told Dr. Bernstein about your perception of the value of the Don Mills properties.

A. I told him previously. I sort of updated him every month on all 31 projects that were on the go and I’d give ongoing updates at that time and I would often give valuations or I’d describe the work that was being done, but that was when I reported on the mortgages to him and I believe a valuation was included there. I’m flagging.

[40] At this point defence counsel asks for a break but the trial judge wants to pursue his questions:

MR. COHEN: Would this be a good time for a break, Your Honour?

THE COURT: So the September 14th email is when you reported to him about the valuations?

A. No. It was an ongoing reporting but that would have been the last time I suspect that I reported to him about the valuations.

THE COURT: So when were the previous ones then, if that’s the last one?

A. There’s emails that we can show where we reported on the properties and [it] would be contained in those emails, but there’s a number of them, so perhaps it will take some time to go through but it was an ongoing process, Your Honour. Every month I would report to him on what was going on with each property and often in those reports I would opine on what I felt the value was.

THE COURT: So this is the last of a series of emails.

A. Yes, Your Honour.

THE COURT: On that same subject.

A. Yes.

[41] Several pages later in the transcript, still in Ms. Walton’s examination-in-chief, this exchange takes place:

Mr. COHEN Q. All right, so can you tell His Honour and the ladies and gentlemen of the jury why you put money into your, into that Schedule C property? [19]

A. Yes. So when Dr. Bernstein told us on August 2nd that he did not need any more money once we paid him the 840,000, Ron and I withdrew part of our equity from the Don Mills properties to cover our personal obligations as opposed to providing that money to him. So he was going to withdraw it. When he didn’t need it, we withdrew it.

THE COURT: You’re withdrawing equity from what project?

A. The two Don Mills projects. So of the six million that was arranged, just under four went to jointly owned properties that we had with Dr. Bernstein, and I withdrew on behalf of us 1.87 million which was an equity withdrawal from the Don Mills properties, of the Walton, part of the Walton equity.

THE COURT: 1.87 million is all these total payments to the Schedule C companies. Is that what you’re saying?

A. Yes. It’s the 2.2 minus that 353,5.

THE COURT: Which you say is about 1.9 approximately?

A. Yeah, it’s 1.87 million, thereabouts.

THE COURT: And you felt you were entitled to withdraw that money as equity from the Don Mills projects because Dr. Bernstein had told you he didn’t need any cash right now?

A. And because we had a precedent of withdrawing equity from the joint projects when money was available. That was a practice of ours. So you may remember....

[42] This is at the heart of Ms. Walton’s defence, and counsel now feels compelled to try to regain control:

MR. COHEN: Q. Does this have something to do with Wynford project?

A. Yes.

Q. Perhaps you could restate that?

A. Sure. You may remember that he was receiving equity repayments every month. He would get three equity repayments you may remember. One from 1500 Don Mills, one from our Highway 7 property, and one from Spadina – Spadina – it might have been Atlantic. Anyways there were three regular monthly equity withdrawals that we provided to him, and on the Wynford property, that property progressed to the point where there were a number of sales of condominium units in that property and what we asked Dr. Bernstein, ‘cause he had the first mortgage on the property, is whether he wanted to use the proceeds from sale to pay off his debt, or whether he wanted to split the equity between us, and he opted to split the equity between us ‘cause he wanted to continue to receive the interest payments, and so there’s three different transactions on the Wynford matter where the equity is paid out to us and to him.

[43] However, after this response the trial judge moves into a full cross-examination, asking Ms. Walton for the paper trail to establish her story:

THE COURT: So when you’re withdrawing what you say is 1.87 million in equity from the two Don Mills projects, with all these payments to yours and your husband’s companies, did you record that or communicate that in some way that that’s what you were doing?

A. Yes. So everything, Mr. Merryweather I remember gave some testimony, that everything we did was transparent. Meaning, we banked with Desjardin. They had all 85 of our companies. All the transactions were easy to follow as to where the money had gone, and all of those respective companies showed a loan back to the various entities, so it would be recorded on the books that we had withdrawn a certain amount of money from each of these companies. It would be all recorded on the books. There was never any....

THE COURT: You’re talking just about the banking records.

A. The banking records, the transactions, the....

[44] The trial judge wants more by way of substantiating evidence, which is the province of counsel in cross-examination, not a judge:

THE COURT: I guess what I’m asking about is some email or memorandum or communication with the company, with the Don Mills company and its owners that that’s what you were doing.

A. Yes, there’s – all of the loans show that the Don Mills properties provided this money, and so other than the million four the Don Mills properties needed themselves, the remainder of the money is due back to the Don Mills properties. Yes, Your Honour.

THE COURT: So where is that document that records what you’re doing here as being the taking of equity out of the Don Mills project? Where do I find that document that records in some kind of a transparent way that that’s what you’re doing?

A. So the financial statements for the Donalda and Global Mills properties show that.

[45] The trial judge voices some scepticism:

THE COURT: And where are those financial statements?

A. Mr. Shonfeld has those ‘cause he took over all the books from us, and....

THE COURT: You don’t have the financial statements that you say record your taking of equity?

A. No, because the receivership took them. But they’re clearly shown as monies due back to the two Don Mills properties. There was no issue with that. Because financial statements are prepared in arrears, they wouldn’t be finished until June of 2014, Your Honour, and that, and by that point the receiver had been appointed and was fully in.

THE COURT: You’re talking about a document that’s produced almost a year later in June of 2014. What’s I’m asking about I guess is any contemporaneous record to memorialize that that’s what you were doing here, that’s what you believed you were doing.

A. So the Quickbooks shows all of it at the time it happens. So Quickbooks records all of the transactions at the time they happen through the various entities.

THE COURT: And is it recorded in Quickbooks as an extraction of capital?

A. Yes.

THE COURT: A payout of capital?

A. Yes.

THE COURT: So where is that record? Where is that document?

A. Well, that’s....

THE COURT: Have you got that?

A. It’s in the Quickbooks system, yes. That’s the – the Quickbooks system is what Mr. Merryweather used to create these charts.

THE COURT: And there’ll be a memo line on some document that says, Re. extraction of capital, or repayment of capital?

A. That’s right, or what it will say is it’ll say, 1.4 million was for expenses, and then 4.6 million would show as being owed back to the Donalda and Global Mills properties from all these other entities. And it would indicate on each of them that it was a loan out, repayable back.

[46] The trial judge again voices his scepticism and asks for proof, which is often an important element of cross-examination. Ms. Walton’s co-counsel with Mr. Cohen, Ms. Parise, steps in to try to make sure the correct information is on the record:

THE COURT: Are these documents to be produced in due course or do we have them?

MS. PARISE: Your Honour, the Quickbooks records are only accessible on Quickbooks unless they are extracted. We don’t have it with us, but we can extract them. We do have them in our possession, just not here.

THE COURT: You’ve got the Quickbooks records?

MS. PARISE: We do, but you can only view them – my understanding anyhow is that you can only view them through Quickbooks unless you extract them, which we don’t have those extractions here.

THE COURT: All right.

THE COURT: So the emails, the September emails don’t get into that kind of detail?

A. That’s right. They’re very detailed but they focus on the item that were of interest to him, and I guess the frustration for me in dealing with all of this is....

[47] I observe that the trial judge’s questions occupy several pages of transcript during Ms. Walton’s examination-in-chief. In my view, whatever defence counsel’s plan for the orderly development of Ms. Walton’s evidence might have been, the trial judge’s relentless cross-examination doubtless left those plans in tatters.

(b) Did the trial judge continue to cross-examine Ms. Walton in tandem with the Crown?

[48] In this excerpt, Ms. Walton is being cross-examined by the Crown, Mr. Power, about the transfer of the proceeds of the mortgage that Dr. Bernstein did not authorize into the Rose and Thistle account.

MR. POWER: Q. So you gave your lawyer instructions to deposit it into Rose and Thistle?

A. I did.

Q. Why didn’t you put it into the Donalda account?

A. We used Rose and Thistle for all of our payments. I didn’t, I didn’t really think it mattered.

Q. You specifically contemplated enough to write down, “or as the mortgagor may direct.”

A. I think I’ve done that on most of the mortgages that we had arranged. We’d arranged about 45 by that point and time.

Q. It’s not on the TREZ one.

A. The TREZ Capital one, but the TREZ Capital one is also deposited into Rose and Thistle.

Q. Yes, and I’m saying to you that you made an extra effort with the Donalda mortgage to make sure that it did not go into the Donalda account.

A. You’re – no, I disagree with that assertion.

[49] The trial judge then immediately stepped in to challenge Ms. Walton’s answer:

THE COURT: But the purpose for adding that amendment was because you knew you were going to direct the money into R and T, into Rose and Thistle.

A. Yes.

THE COURT: That’s where the money was needed?

A. Well, that – yeah, that was the account out of which the transfers would be made, Your Honour. Yes.

MR. POWER: Q. To your knowledge, and the mortgagee here is Windsor Capital.

A. Yes.

Q. To your knowledge did they know that the mortgage was going to be deposited into the bank account of a different company?

A. I don’t know if they knew. It would have been immaterial to them.

Q. You signed this on July 31st.

A. I did.

[50] It can be seen that the trial judge continued to cross-examine Ms. Walton during the Crown’s cross-examination.

[51] As Doherty J.A. stated in Stewart, at para. 46: “It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable but of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness.” Without going through the other excerpts that Ms. Walton says show objectionable interventions by the trial judge, taken in their totality, her complaints are tenable.

[52] In my view, the trial judge made each of the four errors listed by Watt J.A. in Murray: he questioned Ms. Walton in such a way as to convey an impression that he aligned himself with the case for the Crown; he questioned Ms. Walton in such a way as to make it impossible for counsel to present the defence case; he intervened to such an extent in Ms. Walton’s examination-in-chief that it prevented her from telling her story in an orderly way through the questioning of her own counsel; and the trial judge’s tone from time to time effectively invited the jury to disbelieve Ms. Walton.

(3) Ancillary Issues

[53] I will briefly address the standard of review. Flowing from the presumption of impartiality, an appellant bears a heavy burden in trying to establish that a trial judge has intervened unduly at trial. [20] The examples of the trial judge’s interference set out above overcome the customary appellate reluctance to intervene on this ground in this case.

[54] The Crown points out that the defence failed to object to the trial judge’s interventions. Objections should be made as soon as possible. [21] While the defence’s failure to object is a factor, it is not determinative, and should not be in this case because the interventions were so extensive. [22]

[55] The trial judge’s final instructions did not caution the jury about the questions he asked Ms. Walton. None was sought by the defence. However, this is not a case where a correcting instruction could have undone what the trial judge did in his persistent and unnecessary interventions, particularly during Ms. Walton’s examination-in-chief, and during her cross-examination by the Crown. In any event, such cautions by a trial judge to his or her own conduct can be problematic. [23]

D. Disposition

[56] In Brouillard, Lamer J. noted, at para. 12, that when a trial judge “step[s] down from his judge’s bench and assume[s] the role of counsel… to the detriment of the accused, it is important that a new trial be ordered, even when the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not incorrectly assessed the facts.” I would add that this must be even more true in a jury trial.

[57] For these reasons, the appeal is allowed, the convictions are set aside, and a new trial is ordered.

Released: May 14, 2025

“P.D.L.”
“P. Lauwers J.A.”
“I agree. J. George J.A.”
“I agree. J. Copeland J.A.”

[1] See DBDC Spadina Ltd. et al. v. Norma Walton et al., 2016 ONSC 6018, 40 C.B.R. (6th) 230. A pre-trial abuse of process motion was brought in relation to the civil proceedings but dismissed by the trial judge: see R. v. Walton, 2019 ONSC 928.

[2] See paras. 10-13 of the reasons for sentence.

[3] See para. 12 of the reasons for sentence.

[4] See para. 13 of the reasons for sentence.

[5] This court’s classic statements of the law on proper interventions by judges are found in R. v. Valley, 26 C.C.C. (3d) 207 (Ont. C.A.), at paras. 53-56, leave to appeal to S.C.C. refused, [1986] S.C.C.A. No. 298; R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at paras. 69-72, leave to appeal to S.C.C. refused, 33127 (June 25, 2009); Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, 265 O.A.C. 247, at paras. 232-243, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 91; and R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 91-97.

[6] R. v. Torbiak and Campbell, 18 C.C.C. (2d) 229 (Ont. C.A.).

[7] Stucky, at para. 69.

[8] Murray, at para. 91; Brouillard Also Known as Chatel v. The Queen, [1985] 1 S.C.R. 39, at para. 17.

[9] R. v. Snow, 73 O.R. (3d) 40 (C.A.), at para. 24; Chippewas, at para. 234; R. v. Felderhof, 68 O.R. (3d) 481 (C.A.), at paras. 36-40; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47.

[10] Murray, at para. 93; Valley, at para. 54.

[11] Stucky, at para. 69; Valley, at para. 53.

[12] Stucky, at para. 69; R. v. Stewart, 62 C.C.C. (3d) 289 (Ont. C.A.), at para. 22.

[13] Stucky, at para. 65.

[14] Chippewas, at para. 238.

[15] Valley, at para. 53; Stucky, at para. 64.

[16] See also Stucky, at paras. 69 and 98.

[17] R. v. Hungwe, 2018 ONCA 456, 142 O.R. (3d) 22, at para. 40.

[18] Murray, at para. 103.

[19] A Schedule C company is a company that the Waltons owned, sometimes with other investors, that owned property, but that Dr. Bernstein had no interest in.

[20] Murray, at para. 95; Chippewas, at para. 243.

[21] R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 227, leave to appeal to S.C.C. refused, [2021] S.C.C.A. No. 263.

[22] Stucky, at para. 66.

[23] R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 110-111.