DATE: 2002-08-13
DOCKET: C33068 & C33067
COURT OF APPEAL FOR ONTARIO
CARTHY, ABELLA AND MACPHERSON JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Carol Ann Bauman, for the respondent
Respondent
- and -
EUGEN HOSSU and NICULINA STOICESCU
Nicholas A. Xynnis, for the appellant Eugen Hossu
Appellants
Jack Copelovici, for the appellant Niculina Stoicescu
Heard: June 19, 2002
On appeal from the convictions by Justice Marvin G. Morten dated September 8, 1999 and the sentences imposed on January 31, 2000.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The appellants Niculina Stoicescu (“Niculina”) and Eugen Hossu (“Eugen”) are mother and son. They were convicted following a trial before Justice M. Morten of assaulting Alina Stoicescu, the daughter of Niculina and the half-brother of Eugen. They received sentences of 30 and 45 days in jail respectively. Both appellants appeal their convictions and sentences. The principal issue on the appeal is whether the trial judge’s conduct and comments during the trial created a reasonable apprehension that he was biased in favour of the Crown witnesses, especially the complainant, and against the appellants.
B. B. FACTS
[2] The Stoicescu family was a blended family with its origins in Romania. Niculina had been married in Romania and there were two children of that marriage, a daughter Andreea who was 22 and living in Montreal at the time of the trial, and a son Eugen who was 20 at the time of the trial. After Niculina’s first marriage ended, she met and married Gabriel Stoicescu (“Gabriel”), who had also been previously married with two children. Gabriel and Niculina had two children together, a daughter Alina who was born in Romania and a son Valentine who was born in Germany. Eventually, the family emigrated to Canada and settled in Montreal. The family, except Andreea, then moved to Mississauga.
[3] In Mississauga, the marriage between Gabriel and Niculina soured. The police were called on several occasions. Generally, there was a good deal of hostility between, on the one side, Niculina and Eugen, and, on the other side, Gabriel and Alina, with Valentine being too young to play much of a role.
[4] Niculina and Eugen were charged with assaulting Alina during an 18-month period from June 1997 to December 1998. At the trial, which took place in the summer of 1999, the main issues were the conduct of the two accused and, if assaults had occurred, whether they constituted acts of discipline which could be justified as correction under s. 43 of the Criminal Code.
[5] Five witnesses testified at the trial. The Crown witnesses were the nine year old complainant, Alina, and her father, Gabriel. The defence witnesses were the two accused, Niculina and Eugen, and Niculina’s daughter from her first marriage, Andreea.
[6] At the conclusion of the Crown’s case, counsel for Eugen made a motion for a mistrial on the basis that the trial judge’s conduct established an apprehension of bias against the two accused. The trial judge called on Crown counsel who opposed the motion. The trial judge then ruled on the motion, stating inter alia: “There is absolutely no indicia of unfairness or apprehension of bias . . . Your motion is denied. It is baseless”. At that juncture, although he had not been called on for his position, counsel for Niculina indicated that, for the record, he was joining the motion brought by Eugen’s counsel. The trial judge stated again that the motion was denied.
[7] The trial continued. The defence called its three witnesses. The trial judge found both accused guilty. He sentenced Niculina to 30 days in jail and Eugen to 45 days in jail, to be served intermittently.
[8] Both appellants appeal their convictions and sentences. In the view I take of the appeal, the central issue is whether the trial judge’s conduct and comments gave rise to a reasonable apprehension of bias.
C. C. ANALYSIS
[9] It cannot be gainsaid that the single most crucial characteristic, or guarantor, of a fair trial is an impartial judge. As expressed by Cory J. in R. v. S. (R.D.) (1997), 118 C.C.C. (3d) 353 at 384-85 (S.C.C.):
For very good reason it has long been determined that the courts should be held to the highest standards of impartiality. Newfoundland Telephone . . .; Idziak v. Canada (Minister of Justice . . . This principle was recently confirmed and emphasized by the majority in R. v. Curragh Inc. . . . where it was said “[t]he right to a trial before an impartial judge is of fundamental importance to our system of justice”. The right to trial by an impartial tribunal has been expressly enshrined by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. [Citations omitted.]
[10] The opposite of an impartial judge is a biased judge, one with a predisposition in favour (or against) a particular person or result. The test for determining whether there is a reasonable apprehension of bias in a particular case was enunciated by de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board) (“Committee for Justice”), [1978] 1 S.C.R. 369 at 394-95:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information . . . [T]hat test is “what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”.
The grounds for this apprehension must, however, be substantial and I . . . [refuse] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.
[11] This test has been consistently followed in Canada for more than 20 years: see, for example, Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Ruffo v. Conseil de la Magistrature, [1995] 4 S.C.R. 267; and R. v. S. (R.D.), supra. It is the test I must apply in this appeal.
[12] The appellants submit that the trial judge’s conduct throughout the trial, including his rulings, interjections and comments, gave rise to a reasonable apprehension of bias. This is, and was at the trial where a motion for a mistrial was made, a serious allegation. The integrity of the justice system is anchored in the impartiality of the judiciary. Accordingly, an allegation of bias in a particular case is one which counsel should make only after careful and anxious reflection.
[13] I have read, and re-read, the transcript of the trial in this case. I recognize that presiding over criminal trials in a busy urban centre is a difficult task. The difficulty is increased in a trial like this one, where the criminal charges are based on allegations of family violence and where it is obvious from the testimony of the witnesses that there is a great deal of acrimony among the members of the family. In short, this was not an easy trial for a presiding judge.
[14] Nevertheless, I have reached the conclusion, with regret, that the trial judge’s comments and conduct in this trial do give rise to a reasonable apprehension of bias. In my view, in the language of Committee for Justice, a reasonable and right minded person who read the transcript of this trial would conclude that the trial judge might well not decide the case fairly.
[15] The essential basis for my conclusion is this: during the trial, the trial judge made open and improper favourable comments about both Crown witnesses and he made open and improper negative comments about all three defence witnesses.
[16] I will start with the trial judge’s treatment of the complainant. Alina was a nine year old complainant testifying in a criminal trial involving family members as accused persons. Obviously, that is a difficult scenario. The trial judge, appropriately, tried to make her feel comfortable. He complimented her on her nice voice. After a brief voir dire, the trial judge ruled that Alina could give sworn testimony at the trial. He said, again appropriately in my view: “I think the young lady is intelligent, she’s articulate and obviously aware of her surroundings. Her evidence will be taken under oath”.
[17] My concerns about the trial judge’s treatment of Alina centre on four areas.
[18] First, and most importantly, during her cross-examination, counsel asked Alina questions about her performance and behaviour at school. The trial judge interrupted and said:
For a child who has gone through this sort of emotional trauma with the police attending the home, it is surprising she was doing her homework at all. So where does this go? Her credibility is very high. . . . [Emphasis added.]
[19] In my view, the emphasized passage would be a serious error in any trial. The credibility of witnesses lies at the heart of most trials, probably especially criminal trials. A trial judge should not make declarations about the credibility of any witness during the trial; such conclusions should be saved for the judgment.
[20] The trial judge’s comment about Alina’s credibility served as the foundation for counsel for Niculina’s decision to join counsel for Eugen’s motion for a mistrial. Unfortunately, the trial judge did not ask Niculina’s counsel for his position on the motion (he did call on Crown counsel). However, after the trial judge made his ruling on the motion, this exchange occurred:
MR. O’BRIEN: Just for the record I was joining my friend, not necessarily from a gut feeling but, more importantly, my client has indicated her concerns about what she thought that Your Honour had decided with respect to, and I thought at one point, you actually said that this was a very credible young witness, indicating that there was a . . .
THE COURT: The Court did say she was a credible witness.
MR. O’BRIEN: I suppose the concern was that the decision has been made, whether or not already at this point . . .
THE COURT: The decision as to one witness as to another, you can look at W.D. itself, there is no decision and because of we’ve had an interpreter here, we’ve heard evidence that your client speaks English fluently, that there really is no need for an interpreter, I have my views of her also, but I am not going to firm them until when and if she takes the witness stand. She can have as many thoughts as she wants, but I will weigh . . .
THE INTERPRETER: I’m sorry, Your Honour, I cannot keep the pace up. I’m really sorry.
THE COURT: That’s all right. I will weigh the evidence as the evidence appears before me. Motion denied, thank you.
[Emphasis added.]
[21] In my view, the trial judge’s comments in the emphasized passage aggravate his earlier observation about Alina’s “very high” credibility. Not only does he confirm that Alina was a credible witness; importantly, he introduces his potentially negative impression of Niculina before the defence has called her to testify. Moreover, the trial judge’s potentially negative impression of Niculina is based on a thoroughly impermissible factor, Niculina’s decision in a criminal trial where her liberty is at stake to request the services of an interpreter.
[22] Second, the trial judge made other favourable comments about Alina during the trial that, in my view, were improper in the context in which they were made. Although he had described Alina as “intelligent” in his ruling about whether she could testify, where such a description was appropriate, he also interrupted cross-examination of Alina and engaged in an exchange with defence counsel and said: “Remember, this is a child and quite a bright one at that”. Moreover, in his ruling on the motion for a mistrial, he said “if counsel objects to the Court commenting that she is an intelligent child, I will say it again”.
[23] On another occasion, the trial judge refused defence counsel’s suggestion of a short break:
THE COURT: No, I think that we will terminate this. She’s been here two days and made her best efforts and she has been interrupted by just about everybody.
The problem with this comment is that, once again, the trial judge described Alina’s testimony in a favourable light (“best efforts”). Moreover, he appears to be signalling that he thought that the cross-examinations of the complainant were too long and improperly conducted. My review of the transcript indicates that neither criticism was warranted. The trial judge’s comment was made on the second day of the trial, but at about 10:00 a.m. I can see nothing in the cross-examination of Alina by counsel for two different accused persons to justify the trial judge’s impatience about the duration of the cross-examination. Moreover, counsel did not interrupt the complainant during her testimony; they in fact were scrupulously considerate and polite as they conducted their cross-examinations.
[24] At another point in the trial, as exhibits were being entered during the father’s testimony, the trial judge observed: “The rest of the material will be left with the father, who’s obviously very proud of his daughter, rightfully so”.
[25] Third, I am troubled by an unusual incident that took place on the first day of the trial. The first witness, Alina, was being cross-examined by counsel for Eugen. The trial judge ordered a 10 minute recess at 12:20 p.m. When court reconvened at 12:35 p.m., it appears that the interpreter had gone to another courtroom at the request of another lawyer, Luc LeClair. The trial judge was very unhappy that the interpreter was not present. He stated that the behaviour of the interpreter and Mr. LeClair “is contemptuous and insulting to this witness”. He ordered both of them to come to the courtroom. Court recessed for the lunch break. When it reconvened at 2:15 p.m., the trial judge compelled the interpreter and Mr. LeClair to apologize to nine year old Alina:
THE COURT: There are two gentlemen here that have an apology to make to you. Gentlemen?
THE INTERPRETER: Your Honour, I have already talked to Alina.
THE COURT: I want it on the record.
THE INTERPRETER: I want to apologize again that I wasn’t here on time and I’m sorry for that.
MR. LECLAIR: Alina, my name is Luc LeClair. I am a lawyer, I was in another court. I apologize to you for the interpreter not being here when your trial resumed. I hope you accept my apology.
THE COURT: Thank you, gentlemen. Now we can proceed.
[26] In my view, although it might have been appropriate for the trial judge to ascertain why the interpreter was not present when the morning recess concluded, and even to make critical comments to the interpreter and the lawyer from the other courtroom, the way in which the trial judge actually handled the matter was thoroughly inappropriate. Forcing formal apologies by an interpreter and a lawyer to a nine year old complainant during her testimony created a spectre of serious favouritism towards the complainant on the part of the trial judge.
[27] Fourth, the trial judge made favourable comments during the testimony of the second Crown witness, Gabriel, Alina’s father. At a crucial point in the cross-examination of Gabriel on the issue of whether Eugen had been given parental authority to discipline Alina when he babysat for her, the trial judge interrupted defence counsel and engaged in this exchange with the witness:
THE COURT: I think we can shorten this up, Mr. Brown. Sir, you’re an intelligent man, you’re a mechanical draftsman. Did you ever give parental authority to Eugen over . . .
THE WITNESS: What do you mean exactly by parental authority?
THE COURT: Was he allowed to discipline her?
THE WITNESS: Never. Since we arrived in Mississauga.
THE COURT: Govern her eating habits?
THE WITNESS: No.
THE COURT: All right, Mr. Brown.
[Emphasis added.]
[28] During another intervention in the cross-examination of the father, the trial judge stopped a line of questioning. He noted that the father was “attempting to be forthright but is expansive” and observed that the father’s testimony corroborated the child’s testimony.
[29] Turning to the defence witnesses, I have already noted the trial judge’s highly improper comment about Niculina’s decision to use an interpreter during the trial. This was an exceptionally negative comment about an accused, made worse by the fact that it was made before she testified.
[30] During Niculina’s cross-examination, when defence counsel objected that Crown counsel had not waited for Niculina to answer a question before asking the next question, the trial judge interjected:
THE COURT: Ms. Basso has permitted your witness to sit there and dream or do whatever she has been doing while the question has been asked several times. Now we’re going over further ground and she’s being unresponsive, is what’s been happening here.
[31] The trial judge’s treatment of the other accused, the son Eugen, was also, at times, harsh. For example, Eugen had barely begun his testimony (about two minutes would be my estimate) and was describing his decision to leave the family home at one point, when this exchange took place:
Q. Okay, do you remember when it was that you moved out in September?
A. It could have been, I believe maybe the 4th of September. I do have notes about that because right afterwards, when I moved out, I took the decision within one day I was at work and when I came back I knew that there had been a dispute in my absence between my parents and the police had been called. I didn’t want to be involved. Therefore, that night I took off and I lived actually at a motel for a bit.
THE COURT: Where are these notes you’re talking about?
THE WITNESS: I do have the receipts from the motel I lived at.
THE COURT: One moment. You said notes, you said you had notes about it. Where are they?
THE WITNESS: That was incorrect to use that word, Your Honour.
THE COURT: Well, you’re a university student or a college student now, aren’t you?
THE WITNESS: Not as of yet.
THE COURT: But you’re eligible to go, aren’t you?
THE WITNESS: Well, yes.
THE COURT: You know the difference between a note and a receipt, don’t you?
THE WITNESS: Yes.
THE COURT: So why do you use the term notes?
THE WITNESS: It was a mistake. I apologize.
[32] My comment on this exchange is that, for some reason, the trial judge seized on a trivial matter and used it to berate a witness early in his testimony. The fact that the witness’ first language was not English only makes the trial judge’s comments worse.
[33] On another occasion, when Eugen was giving his version of one of the assaults he was alleged to have committed, he testified that he supported some of Alina’s body weight with his hand. This exchange occurred:
Q. Well, why would you say then that you were supporting some of her body weight with your hand? How could you be supporting her body weight if her feet are on the floor? Explain that to us.
A. It was not entirely supporting her. I said some of it.
THE COURT: No, you didn’t.
THE WITNESS: I was supporting some of her body weight.
THE COURT: Don’t argue with me, I wrote it down twice. You supported her body weight, you said and the next question by Mr. Brown was, following that, “Was she on her toes”, and you said, “No”. I wrote it down twice because it doesn’t make sense.
[Emphasis added.]
[34] Crown counsel then intervened:
MS. BASSO: Your Honour, I do note in my notes, I did put, “support some of body weight”.
THE COURT: That’s not what I have, not twice. I put it there twice.
[35] In my view, there are three problems with this intervention by the trial judge. First, there was no reason for him to say anything at this juncture. It is counsel’s job, not the trial judge’s, to explore inconsistencies in a witness’ testimony. Second, the trial judge’s comments ‑ “No, you didn’t”, “Don’t argue with me”, “it doesn’t make sense” ‑ were unduly harsh. The witness was not arguing with the trial judge and any judicial comments about whether the witness’ testimony makes sense should be saved for the judgment. Third, the trial judge was wrong; the witness and Crown counsel were right. Eugen had in fact testified earlier: “It is true that I did support some of her body weight with my hand, but it is incorrect that she was above ground”.
[36] Turning to the final Crown witness, Andreea Stoicescu, there is no question that her testimony was the least significant of the five witnesses since she was living in Montreal at the time of the alleged assaults. However, her testimony was not irrelevant; she testified about the pattern of parental discipline in the family when she was living at home which was relevant for a potential defence under s. 43 of the Criminal Code. In spite of this, at one point in the examination in chief of Andreea, when Crown counsel started to make an objection about a line of questions which she perceived to be irrelevant, the trial judge interrupted and said:
THE COURT: Ms. Basso, I don’t think you’re going to have to object any more because I will make my assessment of the testimony of this but, you know, it is apparent from all three parties who testified for the defence that they are interested in innuendo, unconfirmed allegations. This young lady wasn’t even home for when the allegations arose in this matter and for her to even venture to comment on it is absolutely absurd. [Emphasis added.]
[37] Defence counsel started to explain why he was asking these questions, but the trial judge cut him off with “And I don’t want to hear any more of it. Thank you.”. Counsel sat down and asked no further questions of his witness.
[38] In summary, I acknowledge that it is important for trial judges to be sensitive to the stress imposed on young witnesses by the need to testify, especially in a criminal trial. However, a trial judge must guard against being perceived, by the reasonable person, as crossing the line from sensitivity and sympathy to bias. In the present case, the number and quality of the trial judge’s comments about all of the witnesses leave me with a real concern about whether the two appellants received a fair trial from an impartial judge. Some of the individual comments are quite troubling, for example, the trial judge’s comment during the complainant’s testimony that her credibility was “very high”, and the completely inappropriate comment about Niculina’s decision to use the services of an interpreter. Comments like the latter should never be made by a judge. Comments like the former can be made by a judge – but in the judgment, not during the trial.
[39] In R.. v. S. (R.D.), supra, L’Heureux-Dubé and McLachlin JJ. said, at p. 373:
Before concluding that there exists a reasonable apprehension of bias in the conduct of a judge, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision - making process; this flows from the presumption of impartiality of the judiciary. There must be some indication that the judge was not approaching the case with an open mind fair to all parties. [Emphasis added.]
[40] Regrettably, I have reached the conclusion that the comments and conduct of the trial judge in this criminal case strongly suggest that he did not approach the case “with an open mind fair to all parties”. Accordingly, from the perspective of the reasonable and right minded person described in Committee for Justice, supra, I conclude that there was a reasonable apprehension of bias on the part of the trial judge in this case.
[41] In light of this conclusion, it is not necessary to consider the merits of the conviction and sentence appeals.
D. D. DISPOSITION
[42] I would allow both appeals and order a new trial.
RELEASED: August 13, 2002
“J. C. MacPherson J.A.”
“I agree J. J. Carthy J.A.”
“I agree R. S. Abella J.A.”