Court of Appeal for Ontario

CITATION: R. v. Danial, 2016 ONCA 822

DATE: 20161103

DOCKET: C60720

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Louay Danial

Appellant

Counsel:

Gerald Chan, duty counsel

Scott Latimer, for the respondent

Heard and released orally: October 31, 2016

On appeal from the conviction entered on March 19, 2015 by Justice A.T. McKay of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of kidnapping and robbery. The only ground of appeal pursued before this court was that the trial judge’s questions to the defence witness created an apprehension of bias.

[2] The appellant and three others picked up the complainant in a car in order to question him about his perceived involvement with a young woman named Samira. The trial judge concluded that the appellant kidnapped the complainant and stole his phone in order to dissuade the complainant from harassing Samira.

[3] During the testimony of the defence witness, the trial judge perceived a lack of clarity as to the conversation that took place between the witness and Samira. At the conclusion of the witness’ testimony, the judge asked a short series of questions in an effort to clarify when those discussions took place. The appellant submits that these questions raised an apprehension of bias on the part of the trial judge.

[4] We do not accept this submission. There is a presumption of impartiality on the part of the trial judge and a high threshold on the part of an appellant to rebut it.

[5] A trial judge is entitled to ask questions for clarification. The trial judge here followed the long standing protocol articulated in R. v. Stuckey, 2009 ONCA 151 at para 64. He waited until the conclusion of the witness’ testimony, asked questions for clarification on a narrow issue, and allowed further re-examination. That some of the questions towards the end of the series of questions may have been leading would not lead a reasonable observer being apprised of all the facts to conclude that the trial judge was not impartial.

[6] The appeal is therefore dismissed.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“M.L. Benotto J.A.”