Court of Appeal for Ontario

Date: 2019-05-07 Docket: C66279

Judges: MacPherson, Juriansz and Rouleau JJ.A.

Between

Her Majesty the Queen Respondent

and

Abdirisaq Hussein Said Appellant

Counsel

Abdirisaq Hussein Said, acting in person Andrew Hotke, for the respondent Matthew Gourlay, duty counsel

Heard: May 6, 2019

On appeal from the convictions entered on September 11, 2018 by Justice Micheline A. Rawlins of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from his convictions on two counts of assault using a weapon and one count of assault causing bodily harm. The persons assaulted were the owner and an employee of a pizza store. After the appellant entered the store to purchase a slice of pizza an argument took place that led to an altercation outside the store. Videos of the incident showed the appellant left the store and began walking away and the owner followed him outside the door of the store. The appellant turned around and walked back towards the owner and a fight ensued. The employee then ran out of the store and got involved in the altercation. The owner and the employee chased the accused across the street and meted out "rough justice".

[2] The trial judge found that the appellant pulled out a screwdriver from his pocket at the very beginning of the altercation and used it to "punch" the owner in the abdomen and "stab" the employee on the left side of his face. The owner suffered no injury and the employee required ten stitches to close the gash on his face.

[3] The trial judge rejected the appellant's claim of self-defence, finding his use of the screwdriver against the unarmed owner and employee was not justifiable, proportionate or reasonable in the circumstances.

[4] Duty counsel, Matthew Gourlay, submitted on behalf of the appellant that the trial judge's continual interventions undermined the appearance the trial was fair, and also resulted in actual unfairness. He noted this court's statement in R. v. Stucky, 2009 ONCA 151, at para. 69 that "[t]he appearance of fairness and the trial judge's corresponding duty to exercise restraint and remain neutral is especially critical in the criminal context where the accused takes the stand."

[5] The court in Stucky, at para. 71, listed the types of intervention by trial judges that have resulted in the quashing of criminal convictions:

1. Questioning an accused or a defence witness to such an extent or in a manner which conveys the impression that the trial judge has placed the authority of his or her office on the side of the prosecution and conveys the impression that the trial judge disbelieves the accused or the witness;

2. Interventions which have effectively made it impossible for defence counsel to perform his or her duty in advancing the defence; and

3. Interventions which effectively preclude the accused from telling his or her story in his or her own way.

[6] Duty counsel submitted that all three types of interventions were present in this case.

[7] Crown counsel, citing para. 92 of this court's decision in R. v. Murray, 2017 ONCA 393, submitted that the trial judge intervened mainly for the permissible purposes of focusing the evidence on issues material to the determination of the case, to clarify evidence as it is being given, to ensure that the way a witness responds to questions does not unduly hamper the progress of the trial, and to prevent the undo protraction of the trial proceeding. He also cited para. 17 of R. v. McCullough, for the proposition that "[a] trial judge is entitled to make reasonable criticism respecting the conduct of counsel and witnesses who appear in court".

[8] Crown counsel submits the appellant's responses to questions were lengthy, imprecise, often strayed into irrelevance, and in some cases were contradicted by the videos in evidence. Moreover, defence counsel was prone to asking lengthy and compound questions and persisted in doing so even after being corrected by the trial judge. While acknowledging one could be critical of the manner and style of the trial judge's interventions, Crown counsel submits the substance of the bulk of her interventions served one of the above permissible purposes. Crown counsel was right to concede that some of the interventions fell outside these permissible categories.

[9] Nothing would be served by a lengthy itemization of the trial judge's many interventions. We are satisfied the trial judge's admonitions of counsel exceeded what was reasonably necessary and strayed into derision. For example, the trial judge said to counsel "English is not your forte. It is your first language, right?" She also rhetorically asked counsel "[You] did do criminal law at law school, right?… Now, if you need time to study up on these aspects I will give it to you, but I'm tired." The trial judge's belittling of the appellant's counsel would reasonably undermine his sense the trial was fair.

[10] Further, we are satisfied that the trial judge's comments to and queries of the appellant exceeded the bounds of what is permissible. The trial judge embarked on a pointed cross-examination of the appellant during his testimony in-chief very soon after he took the stand and continued it throughout his cross-examination. Before the appellant left the stand, the trial judge made it clear to him she had reached the view he was not to be believed, a view reached on a cross-examination in which she was heavily involved. The trial judge usurped the role of Crown counsel and created an overall impression that was fatal to the appearance of justice.

[11] Moreover, duty counsel has persuaded us that the trial judge's interventions resulted in actual unfairness. The trial judge's persistent challenging of the appellant with what the trial judge considered apparent inconsistencies with the videos prevented the appellant from getting his story out during his testimony in-chief by testifying about what his perceptions were as the event was unfolding. The reasonability of his perceptions at the time were relevant to self-defence. For example, that the employee had no weapon as he dashed out of the store may have been apparent on the video from the camera inside the store viewed repeatedly. There was no video from the perspective of the appellant who was outside on the sidewalk by the door as the employee ran out of the store at him. The trial judge's interventions impeded the appellant's attempt to testify that he stabbed the employee with the screwdriver when the owner and employee chased him and beat him across the street off camera. The trial judge found the appellant stabbed the employee in the initial encounter without allowing the appellant to testify otherwise.

[12] The trial judge's interventions undermined the appearance of fairness and rendered the trial unfair. The appeal is allowed, the convictions are set aside and a new trial ordered. We expect that the Crown will take into account that the appellant has served his sentence in deciding whether to proceed with the retrial.

J.C. MacPherson J.A. R.G. Juriansz J.A. Paul Rouleau J.A.