DATE: 20040312

DOCKET: C35080

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. VICTOR POZO (Appellant)

BEFORE: CATZMAN, DOHERTY and ARMSTRONG JJ.A.

COUNSEL: Dirk Derstine for the appellant Susan Magotiaux for the respondent

HEARD: March 8, 2004

ORALLY

RELEASED: March 8, 2004

On appeal from the conviction entered by Justice J. Hamilton of the Superior Court of Justice, sitting with a jury, dated June 20, 2000 and the sentence imposed dated September 12, 2000.

E N D O R S E M E N T

[1] We need to address only one of the grounds of appeal raised by the appellant. That is the ground relating to the interventions made by the trial judge during the course of the trial. Crown counsel acknowledges, and we entirely agree, that the interventions by the trial judge were numerous and on many occasions, discourteous. We are satisfied that they go further than that and are such that a reasonably minded person who was present throughout the trial could conclude that the appellant did not receive a fair trial: R. v. Valley (1986), 26 C.C.C. (3d) 297 (Ont. C.A.).

[2] The interventions by the trial judge during cross-examination of the police officers by counsel for the appellant considered in their entirety undermined the integrity of counsel and suggested that he was less than competent. The interventions also interfered with counsel’s ability to fully and effectively pursue legitimate lines of cross-examination. The effect of these interventions on the appearance of the fairness of the trial was particularly significant given the nature of the defence advanced and the nature of the cross-examination necessitated by that defence. Counsel conceded before the jury that his client was involved in criminal activity, but not the criminal activity charged in the indictment, and at the same time directly challenged the honesty of the police officers. This was a difficult, but proper position to advance before the jury. In these circumstances, it was particularly important that the trial judge not denigrate the integrity of counsel or the good faith with which the defence was being advanced by counsel.

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

“M.A. Catzman J.A.”

“Doherty J.A.”

“Robert P. Armstrong J.A.”