WARNING

THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO s. 38 OF THE ACT WHICH PROVIDES:

38.(1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Every one who contravenes subsection (1), …

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

DATE: 20030114

DOCKET: C38005

COURT OF APPEAL FOR ONTARIO

WEILER, ABELLA and CHARRON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Erika Chozik,

for the respondent

Respondent

• and -

K.J. (a young person)

Joseph Di Luca,

for the appellant

Appellant

Heard: January 7, 2003

Released orally: January 7, 2003

The appellant, K.J., appeals against the conviction imposed by Justice John P. Kerr of the Ontario Court of Justice dated February 21, 2002.

CHARRON J.A.:

[1] The appellant appeals his conviction for robbery on the ground that the trial judge’s interventions created the appearance of an unfair trial. The Crown concedes the appeal and agrees that a new trial must be ordered.

[2] The charge related to an incident on April 4, 2001, when four masked individuals armed with knives entered a grocery store on Danforth Road in Toronto. A fifth individual remained outside the store, seemingly acting as a lookout. Although nothing was taken from the store, a cell phone belonging to a customer was taken. Following the robbery, the complainant chased three of the individuals and apprehended the appellant because he was one of the individuals running away from the store. The appellant testified and denied any involvement in the robbery. He testified that he was on his way home when he encountered two individuals wearing masks running towards him. Thinking they were going to rob him he ran and eventually crossed the road, at which point he saw that the two individuals were no longer following him. At this point he realized that he was not the target of the robbery. He was then apprehended by the complainant.

[3] On the morning of the trial, the investigating officer disclosed that, during his discussions with the complainant following the appellant’s arrest, the complainant allegedly commented in reference to the appellant and the others involved in the robbery, “If even not a part of it, he is the same age like them, he must know them”. This comment had not been transcribed in the officers notes nor disclosed prior to the trial date.

[4] During the cross-examination of the complainant on his alleged statement to the police, the trial judge intervened to inquire whether the statement was reduced to writing. During the course of this inquiry, and in the presence of the witness, the trial judge commented, “If it’s not in the officer’s notes, it would have little, if any weight.” The complainant testified that he did not recall making any such statement to the police. During the course of the investigating officer’s subsequent testimony, the trial judge again intervened and vigorously cross-examined the officer on his failure to transcribe this statement in his notes.

[5] The case against the appellant was purely circumstantial. Neither the complainant nor the owner of the store could identify the appellant. The case against the appellant rested on the complainant’s assertion at trial that he had had the culprits he chased in his view from the moment they left the store, and that the appellant must have been one of them. Hence, it is clear that the evidence about the complainant’s alleged statement to the police officer was important evidence going to the credibility of the witness and the reliability of his testimony.

[6] We agree that, regrettably, interventions of the trial judge in this case, when viewed in context, did result in the appearance of an unfair trial. The test is that set out by Martin J.A. in R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.) at p. 232:

Interventions by the Judge creating the appearance of an unfair trial may be of more than one type and the appearance of a fair trial may be destroyed by a combination of different types of intervention. The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present through the trial would consider that the accused had not had a fair trial.

[7] It is our view that the trial judge’s intervention during the course of the complainant’s cross-examination on his alleged statement impaired defence counsel’s full testing of the evidence. More importantly, the trial judge gave the appearance of having pre-judged the credibility of the police officer by saying, before the officer had testified and before any explanation for the omission of this statement from his notes had been given, that he would afford this statement little weight because it was not recorded in the officer’s notes. The appearance of unfairness was compounded by the trial judge’s vigorous cross-examination of the officer as to why the statement was not recorded in his notes despite the fact that Crown counsel at trial did not take issue with the officer’s evidence. We conclude that these interventions, coupled with the fact that the trial judge, in convicting the appellant, made no reference to the testimony of the investigating officer on this crucial issue, did create an appearance of unfairness.

[8] The appeal is allowed, the conviction is set aside and a new trial is ordered.

Released: JAN 14 2003 Signed: “Louise Charron J.A.”

“KMW” “I agree K.M. Weiler J.A.”

“I agree R.S. Abella J.A.”