DATE: 20041203

DOCKET: C40656

COURT OF APPEAL FOR ONTARIO

CRONK, ARMSTRONG and BLAIR JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Dirk Derstine, for the appellant

Respondent

• and -

MICHAEL WATSON

Carol A. Brewer, for the respondent

Appellant

Heard: November 29, 2004

On appeal from the convictions entered by Justice E. C. Ewaschuk of the Superior Court of Justice dated August 14, 2003.

BY THE COURT:

[1] On August 14, 2003, following a trial before Ewaschuk J. of the Superior Court of Justice, sitting without a jury, the appellant was convicted of unlawful possession of a prohibited firearm, carrying a concealed weapon and possession of a prohibited device following a police stop of a vehicle in which the appellant was a passenger. His additional conviction for possession of a prohibited weapon without a certificate was stayed by the trial judge on the basis of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. The appellant appeals against his convictions.

I. Background

[2] The vehicle in which the appellant was travelling was stopped by two emergency task force police officers for suspected minor infractions of the Highway Traffic Act, R.S.O. 1990, c. H. 8. After the vehicle was stopped and the police conducted a CPIC and licence check concerning the driver, the police asked the driver to exit the vehicle. As the driver did so, one of the police officers observed what he believed to be a bag of marijuana on the driver’s seat. The police officer arrested the driver for possession of marijuana. He then returned to the vehicle and arrested the appellant for possession of marijuana on the basis of his belief that the appellant and the driver were in joint possession of the marijuana. Thereafter, while performing a pat down search of the appellant’s person, the police officer discovered a loaded handgun tucked into the waistband of the appellant’s pants. The appellant was then charged with the weapons-related offences at issue in this proceeding. No charges were laid either against the driver or the appellant under the Highway Traffic Act.

[3] At trial, the appellant argued that the police stop of the vehicle was racially motivated and constituted an arbitrary detention contrary to his rights under s. 9 of the Charter of Rights and Freedoms. He also asserted that the subsequent search of his person and the seizure of his firearm were unreasonable and infringed his rights under s. 8 of the Charter, with the result that the evidence from the search and seizure should be excluded under s. 24(2) of the Charter.

[4] The trial judge found that the stop of the vehicle was not racially motivated and the police officers did not know that the occupants of the vehicle were black until after they stopped the vehicle. He offered the opinion that the driver of the vehicle had breached the Highway Traffic Act, and held that the police officers acted lawfully in stopping the vehicle on the basis of their reasonable belief that the driver of the vehicle had breached the Highway Traffic Act. He concluded that the vehicle stop did not constitute an arbitrary detention under s. 9 of the Charter.

[5] However, the trial judge reached a different conclusion concerning the appellant’s s. 8 Charter challenge. He held that the appellant’s arrest for possession of marijuana was unlawful and the subsequent search and seizure were unreasonable. Consequently, the appellant had demonstrated a breach of his rights under s. 8 of the Charter.

[6] The trial judge next considered, and rejected, the appellant’s argument that the evidence of the handgun should be excluded under s. 24(2) of the Charter on the basis of the breach of s. 8. He held that the pat down search of the appellant was minimally intrusive (the handgun was sticking out of the waistband of the appellant’s pants), the s. 8 breach was not flagrant and was of medium seriousness (“neither extreme nor trivial”), and the exclusion of the physical evidence (the loaded handgun) would likely bring the administration of justice into disrepute.

II. Issues

[7] The appellant makes three arguments on appeal. He submits that the trial judge erred: (1) in improperly interjecting at trial in the conduct of defence counsel’s cross-examinations of the police witnesses and during his final submissions, thereby com-promising trial fairness; (2) in rejecting the appellant’s s. 9 Charter challenge, by failing to find that the stop of the vehicle was unlawful and motivated by racial profiling; and (3) in finding that the breach of the appellant’s rights under s. 8 of the Charter was not serious and the evidence of the loaded handgun should not be excluded under s. 24(2).

[8] During oral argument before this court, counsel for the appellant focused his submissions on the first of these arguments. He acknowledged that, in light of the trial judge’s express factual finding that the police officers did not know that the occupants of the vehicle were black until after they stopped the vehicle, the appellant’s remaining arguments would fail unless this court is persuaded that the fairness of the trial was compromised or that the appearance of unfairness arose during the conduct of the trial.

III. Discussion

(i) Interjections by the Trial Judge

[9] We have carefully considered the appellant’s claim that the trial judge’s interjections at trial compromised trial fairness by impeding the defence’s ability to effectively cross-examine the police witnesses on critical areas of their testimony including, in particular, on the defence assertion that the activities of the police were motivated by racial profiling. We are satisfied, on a review of the transcripts as a whole, that the combined effect of the frequency and nature of the trial judge’s interjections during the conduct of the trial created the appearance of an unfair trial. Accordingly, the convictions cannot stand.

[10] The trial judge in this case was actively engaged during the examinations of the witnesses by both counsel and in the course of final submissions. Trial judges are not mere passive observers at a trial. They are entitled and, in some circumstances, obliged to clear up ambiguities in the evidence, to pursue matters which witnesses’ testimony has left vague and to put questions which should have been posed to clarify relevant matters. They also enjoy trial management powers that are designed to permit the effective control of a trial, to ensure fairness to witnesses and to foster clarity in the evidence: R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.) and R. v. Felderhoff (2003), 2003 37346 (ON CA), 180 C.C.C. (3d) 498 (Ont. C.A.).

[11] However, as this court stated in Valley, supra, 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 interventions. 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 throughout the trial would consider that the accused had not had a fair trial [emphasis in original; citations omitted].

[12] In this case, the trial judge’s interjections during counsels’ examinations of the witnesses were numerous and persistent, occurring during examinations by both Crown and defence counsel. The Crown argues that, in this sense, the conduct of the trial judge was even-handed. As well, the Crown properly asserts that the number of interjections by a trial judge, by itself, is not an indicator of trial unfairness. We agree.

[13] We also agree with the Crown’s additional submission that some of the trial judge’s interjections were designed to clarify the evidence or to direct the witness to respond to the questions posed. These interjections were appropriate or innocuous.

[14] In other instances, however, the trial judge’s interjections were unnecessary, particularly during the cross-examinations by defence counsel of the police witnesses. The mere fact that an interjection is unnecessary does not suggest that it is improper or that it occasioned a miscarriage of justice: R. v. Kitaitchik (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.) at para. 11. Nevertheless, where unnecessary multiple interjections by a trial judge repeatedly disrupt the flow and undermine the dynamic of the cross-examination of key Crown witnesses on critical matters, the interjections are more likely to exceed permissible limits. This occurred here.

[15] One telling example will illustrate the appearance of unfairness that developed at this trial. During the defence cross-examination of the key Crown witness, the arresting police officer, defence counsel attempted to lay a foundation with the witness to support the appellant’s argument that the police stop of the vehicle and the subsequent arrest of the appellant were motivated by racial profiling. While defence counsel was questioning the witness on his observations of the vehicle, the following exchange occurred:

Q. I’m going to suggest to you, Officer, that you’re sus-picious of this vehicle almost from the very beginning when you first see it. Is that fair to say?

A. Sorry, is that a question?

Q. Yes. You’re suspicious of this vehicle.

THE COURT: Well, the question is suspicious of what? Are you just suspicious at large?

MR. COWAN: Yes. That’s fair.

THE COURT: Well, you put the question, but I’m just trying to be more specific. Go ahead. It’s you’re [sic] questioning.

MR. COWAN:

Q. Yes. The question is that you were suspicious that this vehicle was somehow involved in something more than just highway traffic violations.

A. No, that would be wrong.

Q. I’m going to suggest that what you did was you pulled up beside the vehicle and made observations of the occupants before deciding to pull it over.

A. Sorry. Are you asking a question or suggesting, counsel?

THE COURT: Well, a suggestion is a question so he’s asking - - he’s suggesting that you pulled up to the car, you looked at the occupants and saw there were two black males and you became suspicious. That’s what he’s suggesting.

MR. COWAN: Yes.

THE COURT: And you will have to say yes or no.

THE WITNESS: That would be no.

[16] This interjection by the trial judge had the effect of prematurely and bluntly moving the witness directly to the critical question that went to the heart of the appel-lant’s claim of racial profiling. It also removed from examining counsel the right to frame the critical question or questions as he saw fit and at a time he gauged to be appropriate having regard to the cadence of the cross-examination.

[17] The success or failure of the appellant’s racial profiling argument depended on his counsel’s skilful and successful cross-examination of the police witnesses. As this court observed in R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 at para. 44, a racial profiling claim can rarely be proven by direct evidence: “Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.” Thus, this interjection by the trial judge disrupted the cross-examination on the central defence claim in a way that reasonably could be viewed as preventing defence counsel from attempting to establish the claim through cross-examination, or from properly testing the evidence of the key Crown witness in connection with the claim.

[18] At various other times during the cross-examinations of the police witnesses by defence counsel, the trial judge interjected in a way that provided the witness with an answer to the question posed by counsel, or suggested an explanation to the witness for the police conduct that defence counsel was attempting to probe. These interjections, made during the cross-examinations of witnesses who required neither the assistance nor the protection of the court, effectively precluded any reasonable possibility of effective cross-examination on the matters at issue.

[19] As we have said, the challenged interjections in this case were not isolated or limited in number. While few, if any, of these would be sufficient to create the appearance of an unfair trial when viewed in isolation, the combined effect of the frequency of their occurrence and their nature gave rise to the appearance of a tainted trial.

(ii) Other Grounds of Appeal

[20] As we have concluded that a new trial must be ordered on the basis of the appear-ance of trial unfairness, it is unnecessary to consider the other grounds of appeal advanced by the appellant.

IV. Disposition

[21] Accordingly, for the reasons given, the appeal against conviction is allowed and a new trial is ordered.

RELEASED:

“DEC –3 2004” “E.A. Cronk J.A.”

“EAC” “Robert P. Armstrong J.A.”

“R.S. Blair J.A.”