ONTARIO COURT OF JUSTICE

Between:

HER MAJESTY THE QUEEN

— AND —

JOHN MORRISON

Before: Justice C. KEHOE

Decision released on: June 13, 2014

Counsel:

• Mr. G. Cipriano for the Applicant
• Ms. L. Bramwell for the Respondent

KEHOE, J.:

John W. Morrison Ruling on Application for Mistrial

The Charges

[1] Mr. John W. Morrison is charged that on July 15, 2012, he did, in committing an assault on Taylor Lorrain Morrison, cause bodily harm to her contrary to section 267(b) of the Criminal Code of Canada. He is also charged that on July 15, 2012, that he did, in committing an assault on Taylor Lorrain Morrison, use a weapon; namely a cribbage board contrary to section 267(a) of the Criminal Code of Canada.

[2] Ms. Morrison was 13 years old at the time of the offences and 15 years old, as of October 8, 2013, at the time she testified at trial beginning October 21, 2013.

Procedural Matters and Witness Accommodations

[3] The Crown made an application that Ms. Morrison provide her evidence through the use of the closed circuit television system pursuant to section 486.2(1) which was unopposed.

[4] The application pursuant to section 486.1(1) that a support person be present with Ms. Lorrain-Morrison was also unopposed.

[5] The Crown also proceeded to tender the video-taped statement of Taylor Lorrain Morrison pursuant to section 715.1, and once adopted would rely on that statement as her evidence. Mr. Cipriano, counsel for Mr. Morrison took the position concerning the section 715.1 application: "…I advised Ms. Bramwell that it's my view that I don't have any issue with the statement going in, but there are parts of the statement which go beyond the allegations. And it's my view that that part – those parts should be edited out or are technically not admissible under section 715."

[6] Ms. Bramwell, counsel for the Crown, advised that Mr. Cipriano had advised the Crown on October 19, 2013, that he did not oppose the use of section 715.1 but on the morning of trial advised that he had some concerns about the entire statement going in.

[7] Ms. Bramwell proposed entering a voir dire and determining at a later time what, if anything, in the video statement should be edited out so as not to delay the trial as Ms. Lorrain-Morrison (Ms. LM) is a young person, present, and ready to testify. Ms. LM was missing school.

[8] Mr. Cipriano agreed to proceed on the basis of the admissibility voir dire.

[9] Date, jurisdiction and identification were admitted.

[10] It is also admitted, that photographs of Ms. LM's injuries were taken by police on July 15, 2012.

The Witness's Background and Needs

[11] Ms. LM is in a grade 10 "Leadership Program" at school. Ms. LM had been in a math and geography program, but was moved into the "Leadership Program" between September 2013 and October 23, 2013.

[12] Ms. LM testified that she has been diagnosed with a learning disability which means that "she can't really say hard words or she doesn't know what they mean…I have have to think sometimes longer than what probably some other people may have to. I can't really remember that long. So if it's, like, a little detail I may not remember it."

[13] Ms. LM testified that what she needed from the lawyers and the court, "That I would need you guys to say not really big words, and I may – actually, a lot of times, have to ask what does that mean. I would like you guys to give me an actually description, like, an easy one of what that word means."

[14] Ms. LM agreed that she meant for people to use simple words and that she might need to take her time to answer a question.

The Video Statement and Initial Cross-Examination

[15] Ms. LM proceeded to watch the section 715 video. The only change to the statement was, "My dad works at Drain All". She did not know how to spell Drain All. Ms. LM confirmed that she told the truth in her video.

[16] Mr. Cipriano began his cross-examination and introduced himself telling Ms. LM that she could call him by a nickname given to him by his friends of "Chippie" because his last name might be hard to pronounce. The Court intervened stating the it did not know whether that was appropriate and asked Ms. LM if she could say "Cipriano" and when she could it was suggested that it was better for her to refer to counsel as Mr. Cipriano which was done.

[17] In cross-examination Mr. Cipriano asked Ms. LM if she recalled sitting in the living room and her dad coming back with a board, and that this would have been after the incident. She was asked if she ever said anything about the new board, or whether she ever told anyone about the new board. Ms. LM said no. When asked if there was a reason that she had never mentioned the new board to anyone, Ms. LM stated, "I don't really like talking about what happened, I get too scared and nervous."

[18] Mr. Cipriano asked Ms. LM what the new board looked like, and she stated, "It looks exactly the same – like, the same one." Asked what the original one looked like, she stated, "I don't really remember what they look like, sorry." It was suggested that she did not remember what they looked like and she stated, "No." Asked if it was wooden, she stated, "Yes." Asked if she remembered the shape, she stated, "It's like a long oval." Asked if it was rectangular in shape, she stated "I don't really remember." Asked if it had colours, she stated, "It had two colours on it – oh, no, it had more than that. I just can't remember the colours."

[19] It was repeated that Ms. LM left out the part about her dad getting a new board, and she was asked if there was anything else that was left out from the statement; she stated, "No."

[20] Ms. LM confirmed that everything else in the video statement was accurate and 100% honest. Ms. LM confirmed that she had talked to her mother about the incident and that as far as she could remember, "it was actually a while after". She could not recall what she told her mother.

Objections to Cross-Examination Technique

[21] When Mr. Cipriano asked whether what she had told her mother was similar or different to what she said in the video, the Crown objected, as Ms. LM had already testified that she did not remember what she told her mother. Mr. Cipriano submitted that it was cross-examination and that he was entitled to try to probe some specifics, and if the witness does not recall he "would have to live with that".

[22] The Court explained to Ms. LM that Mr. Cipriano was asking the question a second time in a different way, and that she was free to say whatever her answer is including I don't remember. Mr. Cipriano was permitted to continue with the questions.

[23] Ms. LM responded that she did not remember. (See pages 27-29 Vol 1 transcript).

[24] Later in cross-examination, Mr. Cipriano asked Ms. LM if she had talked to her sisters, Caley and Alexis, about the incident and, later, if there were things that she kept secret from Caley and Alexis. Ms. LM testified that she had not told her sisters about the incident and agreed that "Yes, sometimes" she kept things from her sisters. She was then asked, "So, are there things that you keep from your dad as well?" and she stated, "Yes". The answer was followed with the question, "And what type of things would you keep from your dad?" Ms. Bramwell, counsel for the Crown, objected to the question, and a discussion outside the presence of the witness followed. (See pages 34 to 41 Vol. 1 transcript).

[25] During this discussion Mr. Cipriano was asked to clarify what things he was talking about. Mr. Cipriano indicated that he kept the question general because he wanted to know what her answer will be, and if she says yes then he could ask her. The Court indicated that Mr. Cipriano was entitled to explore it, but indicated that the area had to be more specific and not just general areas that had nothing to do with her credibility or what was before the court. Mr. Cipriano indicated that that was fine, but asked whether the Court wanted him to rephrase the question or wait for the answer. He indicated that he could rephrase the question. The Court indicated Mr. Cipriano ought to rephrase what had just been asked to indicate to the witness what type of things he intended: "I think you have to be specific. Are you talking about ideas that she's kept; about information that she's kept; objects that she's kept. And maybe you can suggest something so that she has an idea about what you're talking about." Mr. Cipriano agreed to do that. Ms. Bramwell added: "I also, if I could just add on as well, Your Honour, keeping in mind that this is a child talking about a parent now as opposed to talking about whether she's kept things from her sisters. I don't want the witness to start feeling intimidated or concerned that she's going to get in trouble. For example, if she discloses in this proceeding that she's lied to her father about something in the past, I don't want her to be fearful that she's going to get in trouble for something. So, I just ask, you know, I'm just, sort of, putting that out there now and we'll see how the questions go, but…"

[26] The Court suggested that over the break that counsel could draw some areas and identify them before resuming so that the Court and the Crown had some idea of what to expect with the questions to prevent having to break and having objections every five minutes etc. Mr. Cipriano was asked whether that would be okay. He stated, "Well, I was more interested in things – part of it is from Browne and Dunn, Your Honour, as well. But I was more interested in things in the sense of information that may have been kept."

[27] The Court asked, "But do you have a specific idea of what information she would have kept; what's the foundation for the question?"

[28] Mr. Cipriano indicated that it was based on statements made by other witnesses, and specifically that the two sisters would have provided; for instance, that there may be things that the witness had kept from her dad or lied to her dad about.

[29] The Court asked if the witnesses were being called. The Crown indicated that she was not calling the two sisters as witnesses. Mr. Cipriano then indicated that he was calling the two sisters as witnesses, but then stated that he had been advised that the Crown was not calling the two witnesses, but that they would be made available if he wanted to hear from them.

[30] The Court repeated that that was not the question, i.e. "Was he calling the witnesses" and he stated, "So, well, I'm not saying that they would be put up for cross-examination. I'm saying they would be made available if I wanted to call them." The Court again repeated, "I'm asking you, are you calling them?" and Mr. Cipriano responded, "Yes".

[31] The Court then suggested that Mr. Cipriano should make the suggestion to Ms. LM that Caley has said that you lied to your dad about this, or whatever his information was, and particularize it because that's the Browne and Dunn rule; especially if he was calling the witnesses. It was suggested that if he was not calling the witnesses, then there was no foundation for the question.

[32] When court resumed in the afternoon, it was explained to Ms. LM by the Court that there were some rules about her answers and the questions: i.e. that she was not in any trouble for any answer that she gives at all, at any time or with anyone; that if Mr. Cipriano made a suggestion, she was free to say I agree, I disagree, I don't remember or to give her full answer, whatever she liked. It was stated to Ms. LM by the Court, "Just because somebody suggests something to you, it doesn't mean it's true, so think about what they're suggesting okay?"

[33] Mr. Cipriano then asked Ms. LM if there is information that she would not have told her dad about that she would have done. Ms. LM asked "What do you mean?"

[34] Mr. Cipriano stated, "So, for instance, are there things that you would have done…" The Court intervened, "Such as?" and Mr. Cipriano continued, "Such as, go to the pool when you weren't supposed to, and you didn't tell you dad about that?" Ms. LM responded, "Yes I have."

[35] When the specific examples of the information were given to Ms. LM, she answered.

[36] Ms. LM testified that she "is just not really good with left and right". (See page 62 Vol.1 transcript).

[37] The Crown objected, at page 63 to 66, concerning to the complexity of the questions being asked. There was a discussion with the Court and areas of difficulty that Ms. LM had identified were indicated. It was agreed that simple questions were more effective, and Mr. Cipriano agreed to simplify the questions upon resuming in the afternoon.

[38] The difficulty with the use of certain common court terminology versus simple language is evident on page 78, 87 and 88 Vol.1 transcript.

The Cribbage Board Incident

[39] Ms. LM was questioned about the cribbage board that was, according to Ms. LM, used by her dad to hit her on pages 104-106. There was an objection concerning the nature of the questions, see pages 106 to 108. Specifically, the Crown objected to Mr. Cipriano suggesting to the witness that if he was to show her a cribbage board that was in one piece, it meant that she was lying as she had testified that the cribbage board used to hit her had broken into two pieces.

[40] The Court stated, at page 108, "I'll explain it to her, and then you can ask her some questions. But I may stop it because I just don't see really – it's almost like asking if – what's in somebody else's mind. But I'm trying to be fair so that you can have as broad a cross-examination as possible." To which Mr. Cipriano responded, "Okay."

[41] Upon resuming, the witness indicated that she was not feeling well, and it was suggested that the matter be adjourned to the morning. Ms. L-M offered that if there was only a little bit, she could probably just go through a little bit. Ms. L-M was asked if she would like to take a 15 minute break and come back and the witness responded, "I'm okay". Mr. Cipriano then suggested, "Your Honour, I don't want to inconvenience Taylor, but if she's not feeling well I would be concerned about how she answers as well. And I appreciate it's an inconvenience but I don't…"

[42] The Court then asked some questions of Ms. LM concerning how she was feeling, and it was decided that the best thing to do was to return in the morning.

[43] Ms. LM was feeling better the next morning and cross-examination continued.

[44] At page 12, Vol. 2 of the transcript, the questions concerning Ms. LM's evidence that a new cribbage board was brought into the house after the incident begin.

[45] Ms. LM testified that she saw her dad come in with a new cribbage board. She testified that she was alone, but was not aware if anyone else saw it; i.e. if they were coming upstairs from the basement. She was alone in the living room. She did not remember what the board looked like.

The Board is Presented to the Witness

[46] Mr. Cipriano then produced a cribbage board and said, "Okay. I just want to have you look at something, Taylor. Can you have a look at this for me; Taylor, this is a cribbage board. Can you see that board there?" Ms. LM. responded, "Yes". The next question, "Does that look familiar to you?" Answer, "Yes". Q. "How does that look familiar to you?" Answer, "I remember the holes for the pieces." Question: "Yeah. And what else do you remember?" Answer, "The colours." Question: "What else?" Answer, "The shape." Question: Yeah. And from when do you remember it?" Answer, "When we were at my dad's". Question: "Okay. And do you want to turn it around to see what the back looks like. Are you feeling okay, Taylor?" Answer, "Yeah". Question: "Okay. Do you want a break or…" Answer, "Yes, please." (See page 13, Vol.2 transcript)

[47] A break was taken.

[48] It was clear from Mr. Cipriano's immediate reaction to Ms. LM's reaction to him placing the cribbage board into her hand that it was extremely upsetting to Ms. LM. Mr. Cipriano immediately asked Ms. LM if she needed a break. It was obvious to all that Ms. LM's hands started to shake immediately.

[49] Upon resuming, Ms. LM indicated to the support worker and to the Crown that she could not handle it if she was going to have to do that again.

[50] The Crown objected to the board being put back in front of the witness given her reaction to it. The Crown said that it understood what Mr. Cipriano was attempting to do.

[51] The Court indicated that it did not understand what Mr. Cipriano was attempting to do and asked what it was that was placed in Ms. LM's hand, and what the relevance of the object was. Mr. Cipriano stated, "Well, that's the only board my client ever owned. And so, I want to show her the board that is the alleged weapon."

[52] The Court responded, "Okay, but that's not the way it was presented to her, it was…"

[53] Mr. Cipriano continued, "But I wasn't done with the board yet, Your Honour, I was just starting my questions about the board."

[54] Ms. Bramwell stated, "But I would argue, Your Honour, that doesn't make it relevant. The fact that – what I was going to say before, is I'm sure that Mr. Morrison is going to get up and testify that that's his cribbage board and that's the only cribbage board he's ever owned, and he's welcome to do that. Your Honour will make findings about whether or not he's telling the truth after he's cross-examined, etcetera. But to ask her questions about it when she's been clear in her evidence what she was hit with, and what happened to it and then to present her with this object, I don't think is helpful. The rule in Browne and Dunn will have been satisfied by the questions that Mr. Cipriano posed to her yesterday. Frankly, I think to now go through this process is abusive. If we had someone that was sexually assaulted and had been tied up with rope and sexually assaulted at knife point, would counsel then present her with a rope and knife and say, is this what you're describing. I mean, her evidence is, the weapon was broken over her back. Mr. Morrison will come and give different evidence. She is not required to comment on every single thing that Mr. Morrison is going to say in his evidence. Their evidence will diverge."

[55] The Court states, "I also can't see what you're presenting to her from in here. I could hear paper rattling and something being taken out, but I couldn't see the board itself. And so…"

[56] Mr. Cipriano states, "Well, if I could just respond to the Crown's objection. It's not only about the rule in Browne and Dunn, although that's part of it, but I'm also entitled to present contradictory evidence to a witness. I'm entitled to try to see if the witness is reliable, credible, will change evidence."

[57] The Court, "Right. Then nothing can be done for having – or any kind of negative comment being made toward you for making it, okay. What I'm saying to you is that I cannot see what's going on in that room. It's not being described for the record, so that's a concern to me, number one. You've presented it to her, we've had the reaction, there's no need to let her see it again."

[58] Mr. Cipriano states, "Well, I'm not done with the board, Your Honour, I think it's a big part of my case and…"

[59] The Court, "No, but she's seen it, she held it in her hand. You can refer to the board that you showed her, but you don't need to show it to her anymore."

[60] Mr. Cipriano: "But I plan to make it an exhibit, and I think…"

[61] The Court: "You can do that, but you don't need to show it to her anymore."

[62] Mr. Cipriano: "And I understand that Your Honour can't see the board, but we're in a different room, it's one of the limitations of the CCTV System, but I planned to have brought it into the courtroom once we're done. But it is a very important part of my case and…"

[63] The Court: "Right. You've already shown it to her, she's seen it, she's held it in her hand, you don't need to show it to her anymore. You can still ask her questions about it, but you don't need to show it to her anymore. So you can just bring it in and make it an exhibit."

Extended Discussion on the Board

[64] The following discussion took place:

Mr. Cipriano: "Okay. Is that Your Honour's ruling?"

The Court: "Well…"

Mr. Cipriano: "Because, as I've said, it's a big part of my case; to deal with the actual board itself. I have some more questions…"

The Court: "What else do you want to ask her about the board that she needs to have it in her hand while you're asking her?"

Mr. Cipriano: "Well, because the Crown's going to say one of the questions that was – I'm not done with the identification of the board itself, so I want to ask…"

The Court: "What else do you need to ask her that requires her to have it in her hand…"

Mr. Cipriano: "Well, she doesn't have to have it, she can have it in front of her and look at it."

The Court: "…given the reaction. What question do you need to have it in front of her for?"

Mr. Cipriano: "Well, more questions about the identification of the board."

The Court: "Okay, so what question that she can't do without it being in front of her?"

Mr. Cipriano: "Well, because she may have to refer to it."

The Court: "If she needs to we'll come and get it – if she asked – but otherwise it's just something that has…"

Mr. Cipriano: "And there's marks on the board and so on, and I want to see if she can identify them; the way the board is shaped."

The Court: "She's already looked at the board."

Mr. Cipriano: "I don't mean the rectangular shape. The board is warped and I want her to identify that to see if that triggers memories and so on. So, it's very important to my case that I have the board present with me. She doesn't have to touch it, but it's very important to my case."

Ms. Bramwell: "Your Honour, I just want to state for the record that this witness has been clear that what she was hit with was broken and so, what she is now being presented with cannot be the same board. And frankly, I think it's trickery to present this to her and say that its part of my case. The fact that an intact cribbage board exists in the world, that's what we're suggesting to her."

Mr. Cipriano: "Well, I disagree. We're putting the cart before the horse. The witness has said that, but that doesn't mean that that's a fact yet."

The Court: "That's her evidence."

Ms. Bramwell: "Well, in Mr. Morrison's…"

Mr. Cipriano: "That's her evidence, but I'm allowed to put contradictory evidence to her. So the fact that she said so doesn't mean that that's a fact yet."

Ms. Bramwell: "And the contradictory evidence is in the form of an intact cribbage board; that's what I'm saying. That's unfair; it's not contradictory evidence, it's an object that could have been found any number of places in the world, so…"

The Court: "Can you get the board and bring it in; I want to look at it, please?"

The Court: "And can I see the bag, too, please? Are you referring to the board being twisted, in terms of what you're saying; warped?"

Mr. Cipriano: "Yes warped, yes."

The Court: "What relevance does that have to this witness; that it's warped?"

Mr. Cipriano: "Well, because it may be relevant to her – triggering her memory…"

The Court: "Of what?"

Mr. Cipriano: "…of that actual board, that that's the board that she saw all along. There is, like, a paint mark on the board, there's some scuff marks on it."

The Court: "Okay. I want you to keep it in the bag and ask the witness whether this is the board that hit her."

Mr. Cipriano: "I was going to lead up to that, that wasn't my next question though, Your Honour."

The Court: "Well, I'm not having this in front of her, like, upsetting her the way it has; that she could barely hold it or testify, to satisfy whatever – I want to get to the question. She said she recognized it from her dad's house. I don't know if that means she recognizes this exact board from her dad's house or whether she recognizes it as a board, a cribbage board, the kind of – the same one."

Mr. Cipriano: "Well, I wasn't done yet. That's when I asked if she was okay. So, I wasn't done yet."

The Court: "No she wasn't okay and it's obvious and it's my job to protect a witness, so…"

Mr. Cipriano: "No, I understand that and that's why I had asked her if she was okay. I saw her and she wasn't okay, and if she wanted a break; and that's why I had asked."

The Court: "I know, but to bring her back now knowing that she's not okay, knowing what she said in the interim about – she cannot handle this thing being presented in front of her. It was obvious to me immediately when you took the item out and said, 'I want to show you something' her hand started to shake. And then when you put the cribbage board in her hand, her whole hand with the board in it was shaking. So, am I going to make a witness go through that for the next 15 minutes while you ask questions, no. I can tell you, I'm not going to. So, ask her if this is the board that she was hit with and if she says no then ask her, is this the board that was brought into the house after. If she says yes or no, maybe there'll be a few more questions. But we're not going on for half an hour with this thing in front of her."

Mr. Cipriano: "Okay. I just want to know, is Your Honour directing me to ask those two specific questions next?"

The Court: "Yes".

Mr. Cipriano: "Because those weren't my next questions."

The Court: "What was your next question?"

Mr. Cipriano: "Well, I mean, I'm being put in a very difficult situation here, Your Honour, because I don't have any obligation to identify my cross-examination. I think I've indicated the areas."

The Court: "So your position is you're allowed to go on asking those questions, putting that item in front of her and perhaps putting it in her hand…"

Mr. Cipriano: "I'm not saying she has to touch it, no, no, I'm not saying…"

The Court: "…knowing that it's upsetting her and that she is having difficulty dealing with it, and I'm supposed to just say, no problem go ahead?"

Mr. Cipriano: "No, I'm not saying that she has to handle it, but I – for the answers to have relevance she would have to see it, at the very least."

The Court: "And I'm directing you to say – because if she says she doesn't recognize it then all of your other questions are irrelevant."

Mr. Cipriano: "I appreciate where Your Honour is coming from. My view is, and I'm taking instructions from Your Honour, but my view is, that it wouldn't be effective of me to conduct the cross-examination as Your Honour has instructed, but if Your Honour wishes me to I will do so."

The Court: "Well, you're just setting up an appeal, basically."

Mr. Cipriano: "No."

The Court: "Well, I can see what you're doing. I'm faced with a witness who's very upset by the physical presence of this board, and I'm trying to resolve it with counsel so that your cross-examination is not limited, but that I'm paying attention to and being fair to the witness. And I'm asking you to ask those next questions because if she says that's not the board that hit me, I don't know if that's the one he brought home after, then the rest of your questions about whether it's warped or bent or there are marks on it are irrelevant. But you're saying that you can't be – I can't direct you to the next area of your cross-examination and so that we're going to put that back in front of her for the next 20 minutes and make sure that her evidence – she's so upset by it that she can't answer the questions or will refuse to come back. That's what I'm faced with; that's what you're saying to me."

Mr. Cipriano: "No, Your Honour, I…"

The Court: "You're setting this up as an appeal if I make that ruling."

Mr. Cipriano: "No, Your Honour, and I have to say I'm a bit taken aback by that comment. I don't…"

The Court: "Well, what other reason?"

Mr. Cipriano: "I'm trying to defend my client to the best of my ability, Your Honour. We've developed a strategy; he's retained me to cross-examine the witnesses."

The Court: "Okay, go back in and we'll go question by question and I'll make my rulings as we go."

Mr. Cipriano: "If I could have five minutes to speak with my client, Your Honour. I was just taken a bit aback by the comments and I just want to have a chat with him?"

The Court: "Go ahead, yes, I'll just wait here."

[65] Mr. Cipriano enters the courtroom.

[66] The Court: "Are we ready to proceed?"

Mr. Cipriano: "Well, I was just speaking with other counsel. If I could have another five more minutes, Your Honour?"

The Court: "No, I'm not keeping this young lady waiting around. Let's go and you can continue with your cross-examination."

Mr. Cipriano: "Okay."

The Witness Addresses the Court

[67] Ms. Bramwell: "I'm also advised by Ms. Groulx (the support worker), in the interim, that Taylor would like to address the court when she comes back and if we could just give her the opportunity to do that."

[68] The Court: "Okay. Where is the cribbage board now?"

Mr. Cipriano: "It's here."

The Court: "Okay, well, let's just leave it here for the moment."

[69] The Court: "Okay, Taylor, did you want to say something to the court?"

[70] Ms. Bramwell: "Just one second Taylor. Your Honour, there's a water jug that's sort of blocking a good portion of the dias there. If you could just move that water jug right there. There, now we can see you."

[71] The Court: "Okay, sorry."

[72] Ms. Bramwell: "You wanted to speak to Her Honour, Taylor?"

[73] The Court: "Did I look like a water jug?"

The Witness: "I'm sorry, I wasn't really feeling well. I really didn't want to see that. I – I'm sorry that I started crying."

The Court: "You don't have to apologize for anything. Did you want to say anything else?"

The Witness: "If you guys could – I've – please, I wouldn't like to see the board again."

The Court: "Okay."

The Witness: "It upsets me too much."

[74] The Court: "I understand that. Mr. Cipriano just has a few more questions with the board that he wants you to look at it specifically. Do you think you can handle that?"

The Witness: "I don't think so."

The Court: "Are you willing to try?"

The Witness: "Um…"

The Court: "I know it's very upsetting, and we can go step by step and we'll see how it goes, and if you need a break, we'll give you a break. But it's important to the case that Mr. Cipriano be able to ask you the questions, and he feels that you need to look at the board in – or – to be able to answer the questions."

The Witness: "I could answer the questions, I'm just – can't see the board."

The Court: "Okay. We'll get back to you in a minute. I'm just going to have counsel come back into the courtroom and we're going to talk about it. So could you just wait outside the room, because we can't turn the volume off in that room?"

The Witness: "Okay."

The Court: "Thanks."

Counsel Discussion on Witness Testimony

[75] Inside the Courtroom:

The Court: "Okay, so I don't know how to proceed, I've never had this happen. Is anybody aware of any case law where a witness has to be forced to see an object, or does it just go to weight? To me, those are the issues."

Ms. Bramwell: "I'm not aware of any case law. I'd certainly be happy to look, to see if I can find any. I'm sure Mr. Cipriano would be as well. Interestingly, we do have the witness saying she can answer questions, she just doesn't want to look at the object. I don't know whether Mr. Cipriano might be able to go down that road. She has seen it now and she was looking at it."

The Court: "That was my suggestion before."

Ms. Bramwell: "And so, you know, maybe…"

The Court: "But Mr. Cipriano is saying that he needs to show it to her because of the two marks that are on it and also that it's warped."

Ms. Bramwell: "Right."

The Court: "And I don't think she can answer those questions, because it wasn't pointed out before when she did have it in her hands, so, I mean, for those questions, at least, I don't know if there are others. She would have to be able to look at it again and she doesn't want to, obviously. So, I'm in the position where I have to force her to, or those questions don't get put, and an inference or weight or – I don't know how to handle it. What is your position Mr. Cipriano?"

Mr. Cipriano: "Well, I mean, I suppose we can try. And I don't need her to handle the board it could just be – it doesn't need to be put right in front of her but…"

The Court: "No, but she doesn't want to see it, that's what my question is."

Mr. Cipriano: "I appear to be the most difficult in the room, and I apologize to everyone about that, but my job is difficult too, but I have to…"

The Court: "No, I understand that. But I just – I need to know now, in my position, do I force the witness to look at something she has said she cannot handle looking at in order to answer your questions?"

Mr. Cipriano: "I mean, my initial position is I think that's the route we have to go. And if she just utterly refuses I think we have to step back and see what the remedy for that is; is it similar to a witness who just doesn't come back for cross-examination. I don't know, I've – other than a witness not returning, I've never come across this issue. I've come across a witness…"

The Court: "Well, it would be like a witness refusing to answer, do you – and go to a contempt finding or tell her, you know, you could be held in jail until you look at this board again. Like, this is what we're bordering on and this is a 15 year-old with learning disabilities; serious ones."

Mr. Cipriano: "Well, that's what I was saying and I heard what Your Honour said earlier, but I didn't ask her any follow-up because I saw that she wanted a break. I wasn't done with my questions, right, so…"

The Court: "I know. I know that, but that's the situation that I'm in and the other problem that I'm having is this is the second day she's back, she's missing school. Now we're going to take a break to look up case law as to what I should do next, and do we let her go for the day, go back to school, and we'll just make argument on the issue when she comes back tomorrow?"

Ms. Bramwell: "I suppose one other option, but just under that heading, Your Honour, about her missing school. I'll also indicate, her two younger sisters are here today as well. So, we have - that's the case for all three of them. But I'm trying to think, as I think we all have been, perhaps about a practical approach. I don't know whether Mr. Cipriano – I agree, frankly, with Your Honour that if she says, that's not the board I was hit with because the board I was hit with was broken afterwards, and if she says I don't know if that's the board that was brought into the house; I agree that anything that comes after that would be irrelevant. However, Mr. Cipriano doesn't want to be hampered in his cross-examination, and in my view, that wouldn't be hampering him in his cross-examination. However, he wants to ask questions about marks on the board and about the board being warped. It may be that she noted that the board was warped when she had it in her hand before the break. So I don't know if that's of assistance for him to try to ask her questions without presenting it to her. And if it is to be presented to her, I don't think she should be asked to hold it and manipulate it. Maybe he can hold it, maybe he can show it to her and say, you know, this is how it looks from the side."

The Court: "Well, no, the issue of – long beyond her having it in her hand, I don't think anybody can require her to have it in her hand."

Ms. Bramwell: "Right."

The Court: "What she just told me…"

Ms. Bramwell: "She doesn't want to see it."

The Court: "…is she doesn't want to see it. So, Mr. Cipriano, can the questions be asked without her having to look at it anymore?"

Mr. Cipriano: "Well, yes, they can be asked but where do we get to when she says…"

The Court: "Well, let's see. I think that's where we go next."

Mr. Cipriano: "And what happens if I ask her about a mark on the board and she says I don't know or I don't remember?"

The Court: "I guess that goes to weight. Unless you want to force her to look at it again?"

Mr. Cipriano: "But, I mean, I think it would be fair to the witness and to my client to have her look at the marks on the board."

The Court: "And that's what I'm saying, it's going to be your choice at that point whether you want to force her to look at it, and then we're back to the issue of what I do. Do I hold her in contempt, because she won't look at it? Do I force her to look at it, even though she's reacted to it very strongly and said I just can't look at it anymore; I'll answer the questions, but I can't look at it anymore? Is there case law on that? What's my next step?"

Mr. Cipriano: "That I don't know, I haven't crossed this issue."

The Court: "I think we'll cross that bridge when we get there and…"

Ms. Bramwell: "I think that there also would have to be a foundation laid for – I think she would have to agree that she was in a position to see such marks on a board, either when she's hit from the back with it or when it's being brought in the house and she's sitting in the living room. I mean, did she ever examine either of the boards that she's talked about in her evidence?"

The Court: "I mean, her evidence is that this is not the board. Because her evidence is the board that hit her broke in half. So, this is your client's evidence that you're putting to her; that this is the only board that's ever been in the house. Ask her that question."

Mr. Cipriano: "Well, Your Honour, I have two responses to that. I haven't asked her whether this is the board that hit her or not, yet. I'm getting there, but I haven't asked her that, yet. And I will be asking her that but it wasn't my next question. And I think I was entitled to explore that."

The Court: "Okay, what is your position? Can we try it without the board being in the room or do you wish to force her to look at the board?"

Mr. Cipriano: "We can try without the board being in the room, but depending on the answer I may require the board to be in the room."

The Court: "Alright, let's go and try if we can get the answers without the board in the room."

Cross-Examination Continues Without the Board

[76] Counsel re-enter the CCTV room.

The Court: "Okay, Taylor, so we're going to continue."

The Witness: "Okay."

The Court: "The board's not in the room and Mr. Cipriano has some questions to ask you, okay?"

The Witness: "Okay."

[77] Mr. Cipriano: "Thank you.

Q.: "Taylor, just to continue; the board that you had earlier in your hand?"

A.: "Yes."

Q.: "There are some marks on it?"

A.: "Yes."

Q.: "Do you remember what those marks are?"

A.: "No."

Q.: "Okay, if you look at the marks, would that assist you?"

A.: "What do you mean?"

Q.: "If I show you the marks on the board, do you think that might assist you?"

A.: "No."

Q.: "Why not?"

A.: "I – I won't remember anything about the board."

Q.: "And why wouldn't you remember anything about the board?"

A.: "The newer one? Like, the one you showed me?"

Q.: "Well, I haven't asked anything about whether it's new or old yet, okay?"

[78] The Court: "Well, she can answer that question the way she sees fit. You said you won't remember anything about the board and then you said something, Mr. Cipriano, that I didn't catch. And then you said, Taylor, that the newer one? What do you mean by that?"

The Witness: "Like, the one that he came in with or…"

The Court: "Yes, we're talking about the board that was in the room with you."

The Witness: "Okay."

Ms. Bramwell: "Today, the one that was here."

The Witness: "Okay".

The Court: "And you think that's a newer one?"

The Witness: "I'm not actually sure. I'm not sure, maybe if he found one, if he got – he gave somebody the newer one because he found one. I'm not sure what happened to this board."

[79] Mr. Cipriano: "Okay.

Q.: "This board was a little bit bent, did you notice that?"

The Witness: "No."

Mr. Cipriano: "If I were to put it on the table, would you be able to see if it was bent or not?"

The Witness: "Yes, I think so."

Mr. Cipriano: "Your Honour, am I able to show her – the witness if the board is bent?"

The Court: "Taylor, do you think you could handle seeing the board for a moment to see whether it's bent or not? You don't have to have it in your hand, it will just be on the table?"

The Witness: "I…"

The Court: "We can take a break right aft if you look at it and answer the question."

The Witness: "I won't – I can't look at the board, I'm sorry."

The Court: "Okay, thank you. We'll be back to you in a minute, I just need to speak to counsel again. Sorry about all these interruptions."

The Witness: "It's okay."

Final Counsel Discussion

[80] Counsel back in the Courtroom

The Court: "So, we're at that point."

Mr. Cipriano: "I mean, Your Honour, I suppose we can try to see what her reaction is to looking at it."

The Court: "I'm not going to force her unless there's some kind of case that says I have to. You can see her reaction immediately, as soon as you suggest bringing it into the room, and I'm not going to do that."

Mr. Cipriano: "Would it be easier if we take her into the courtroom with Your Honour's presence?"

The Court: "No. The reason she's in that room is so that she doesn't see Mr. – her father. So, I'm not going to force her to come into the room and look at – the courtroom, see him and see the board. I just – I think we should adjourn, let the kids go home and come back tomorrow morning and argue the point and see where we're at; of whether or not I should force her to look at this board or how to deal with this situation. I mean, if you show me a case where I have to force her – I just think that it's going to traumatize her and I don't want to be the person causing that. I don't know what the relevance of whether she knows or saw that the board is warped has to any of the issues in this case. I'm not making any comment on that, but I just – for the degree of trouble that it's causing her and the relevance of the question, I just have some trouble forcing her to look at it, given what she said and given the reaction that we've already seen. Unless you can show me a case that that's what I have to do, I'm very hesitant to do it."

Mr. Cipriano: "As indicated, Your Honour, I've never come across – I've come across witnesses who refuse to answer or don't come back but…"

The Court: "Right."

Mr. Cipriano: "…on this particular point, I would have to do some research on that."

The Court: "yes, that's what I'm saying. I don't think we should keep the children waiting around all day, when we can't get past this issue. We've tried a couple of times."

Ms. Bramwell: "Alright, so Mr. Cipriano and I will work on that today; we will each do research on that topic and see that what we can find."

The Court: "Come back at ten o'clock tomorrow morning, please."

Ms. Bramwell: "Thank you."

The Court: "I don't think the children need to be here at nine-thirty in the morning also, because I think it will take an hour or two to resolve this issue."

Application for Adjournment and Mistrial

[81] On the third day of the what was set for a three day trial, the day to hear argument on whether the Court was going to be asked to the force the witness to have the cribbage board in front of her while questions about the board continued, Mr. Cipriano made an application to adjourn the trial because he and his client were considering a possible application for a mistrial on the basis of bias, given the comments that were made on day one and two of the trial, and had to order transcripts as Mr. Edelson would like to review the transcripts as he would be the lawyer who would making the application.

[82] When asked to identify the comments at issue, Mr. Cipriano stated, "Well, Your Honour, I don't want to misquote it. I want to order the transcripts, and Mr. Edelson asked me to order the transcripts, and that's why. I've ordered yesterday's transcript, but I was asked to order everything…I think it would be fair to all parties to have transcripts rather than being misquoting."

[83] The Court: "Right, but you're alluding to comments that I made yesterday as well as the day before, and I – you must obviously be thinking about something and I'm wondering about what comments you're talking about."

[84] Mr. Cipriano: "Well, certainly the comment that caused concern to me yesterday, and my client great concern, was about the possible ground of appeal. And I was – I sought out counsel for that, and that's why I was asked to order a complete record of the proceedings."

[85] The Court: "Okay."

Mr. Cipriano: "And I think it would be only fair to proceed in that manner as opposed to without a transcript."

The Court: "What is the Crown's position?"

Ms. Bramwell: "The Crown's position, Your Honour, is that it seems to me that if counsel is going to be suggesting or perhaps arguing that there is a suggestion of bias in this case, that I think Your Honour should have, at a minimum, Your Honour should have the transcript in order to be able to see exactly what was said. I think that an application like that has to be argued on a proper record. I do think it's unfortunate that the matter can't proceed and just for the purposes of 11(b), I want to state the Crown's position for the record that the Crown's position is that we should not be held responsible for any delay incurred by this adjournment. We're ready to proceed today and I should also indicate to the court that I received Mr. Cipriano's message when I arrived at work this morning and spoke to him. And on that basis I had Tracy Lorrain, who is the mother of Taylor, I asked Ms. Groulx to contact her and ask her to remain on standby, because she has missed work every day this week as has Taylor missed school. So they are not here right now. The arrangement had been that they would come at eleven o'clock today. They have to travel by bus and she's not able to go to the children's school and collect them later on in the day, because she doesn't have a car."

The Court: "Right. But I'm being asked to adjourn this matter because there might be an application for bias, and I'm having some trouble with that request."

Ms. Bramwell: "Well, all I will say Your Honour is…"

The Court: "This morning we were to be having discussions about the cross-examination and whether there was any case law or any possible resolution to counsel, Mr. Cipriano, insisting on being able to put the cribbage board back in front of – physically back in front of the witness, who was obviously very upset by it yesterday. And now there's a request for an adjournment based on – that there might be an application for me to recuse myself because of bias. But I don't know what the comments are other than when we were discussing that and how we would proceed with the cross-examination. Mr. Cipriano was asked, or it was put to him basically because of what he was saying to the court when I made the request that; could we not proceed without the board being physically in front of the witness and that I was – if that was my directive to him then he would proceed like that. And at that point I said to him then that he was trying to set this up for an appeal, because it would obviously be an appealable issue if the court was directing him on how to proceed with his cross-examination. So, I don't know know what other comments Mr. Cipriano is referring to as a possibility of raising bias on my part, but I'm going to take ten minutes and speak to some of my colleagues. Because I don't think at this point, without an application in front of me, that it's appropriate to adjourn a trial, given that it was set for three days. We've adjourned twice now for issues relating to this witness and we've been bringing them back and forth on the potential that there may be an application coming. I'll come back with my decision in 15 minutes."

[86] The request for the adjournment was denied.

[87] The Court then heard argument concerning the issue of forcing the witness to testify in the presence of the cribbage board notwithstanding how much it upset her, and her indication to the court on several occasions that she could not continue with the board in front of her, but could and would answer any questions otherwise.

[88] After hearing argument on the issue, the Court made a ruling at page 59 to 61, Vol. 3 transcript.

The ruling states:

"Mr. Cipriano has placed a cribbage board before the 15 year-old witness who reacted immediately to its presence. Her right hand began to shake quite noticeably. The board was then placed into her hand, which was also shaking very strongly. I do not want to say 'violently' but the involuntary shaking was heavy and very obvious, so much so that Mr. Cipriano, who was cross-examining the witness at the time, asked her if she needed a break, which she did.

Apparently, there was an emotional reaction after the witness was off camera. Her support person informed the court through counsel that the witness was very upset, and would also answer further questions, but, that she could not continue if the cribbage board was present. This was investigated and confirmed by the court by asking the witness if she could continue without the board being present.

Mr. Cipriano submits that he is entitled to cross-examine the witness and entitled to wide latitude. Mr. Cipriano submits that the fact that the cross-examination is difficult and distressing is not sufficient to remove the cribbage board, and that the court should require further evidence concerning the witness's distress to make such a ruling.

Mr. Cipriano has been asked several times how the physical presence of the board, given the obvious impact on the witness, is relevant. Mr. Cipriano submits that he has other questions that requires the presence of the board, but refuses to identify either the subject area or how the presence of the board is necessary in order to ask the questions, other than the two questions already asked; for example, about the marks being on the board and the fact that the board is warped.

I have considered counsel's submissions and the cases referred to, although I have not read them completely, and I reserve the right to do that and expand on my reasons. I do find that the witness had a very strong physical and emotional reaction to the presence of the cribbage board; that she has expressed an inability to continue in its physical presence. There is a risk that if the court forces the witness to be in the presence of the cribbage board, that she will or could be traumatized. No meaningful reason has been given why such a risk is necessary, and the questions can be put to the witnesses without the board being present.

Therefore, the cross-examination will continue without the presence of the cribbage board."

[89] Ms. LM's evidence was completed on day three of the trial. The matter was adjourned to obtain a continuation or continuation dates.

Application for Mistrial

[90] An application for mistrial was filed and the application was heard on March 17, 2013. The grounds of the application are stated as follows:

8) That while the complainant was taking a break, the Crown objected to the use of the board. During this objection an exchange took place between the trial judge and defence counsel (as set out above in the extended discussion section).

9) That the exchange between the Court and counsel for the Applicant has the effect of realistically and practically creating a perception that the trier of fact would not decide the matter fairly.

10) That the test for a reasonable apprehension of bias is not to demonstrate actual bias, but a perception of bias and has been held to be whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide the matter fairly.

11) That the exchange between the Court and Counsel for the Applicant raises the following concerns:

a. That in directing counsel to ask a specific question, the Court has left the impression that it has prejudged the issue of the cribbage board tendered into evidence by counsel for the Applicant prior to hearing all of the evidence;

b. That in so doing, the Court has left the impression that it prejudged the credibility and reliability of the complainant as credible and reliable prior to hearing all of the evidence;

c. That the Court has created the impression that the Applicant's case is not credible and that his guilt or innocence has been pre-determined by suggesting counsel was attempting to create a ground of appeal (otherwise, why would counsel be considering an appeal at such an early stage of the proceedings?);

d. That the exchange between the Court and counsel for the Applicant creates a reasonable impression that the trier of fact has not remained neutral and kept an open mind in hearing the evidence.

12) That at the time of the exchange between the Court and counsel for the Applicant, the trial had only heard one full day of evidence, and it was still hearing from the very first Crown witness; the complainant. The Crown was still to call its second witness and the Applicant had not yet been put to his election to call evidence, although acknowledged that there would be defence evidence.

13) That it is submitted, in these circumstances, that a reasonable person that the Court considered the Applicant's position at such an early stage of the proceedings weak at best and that the credibility and reliability of the complainant had already been accepted.

14) That in such circumstance, there is a Reasonable apprehension of bias such that a mistrial should be declared.

[91] The Application Record Book contained Vol.1 and Vol. 2 of the trial record. The Vol. 3 transcript was not included in the Applicant's materials.

[92] Both the Applicant and the Respondent filed and referred to several authorities in submissions.

[93] I have considered counsels' submissions, and the case law referred to, and submitted.

Analysis

The Witness and Trial Context

[94] This application resulted as the first witness in a three day trial was testifying. The witness, Ms. LM, is 15 years old and has testified that she has certain cognitive development issues. Ms. LM testified that she is in Grade 10, and was recently switched from what seemed to be a regular academic program into a "Leadership" or special Grade 10 program at school. Ms. LM explained that she has difficulty understanding "big words" and remembering certain things such as time and date.

[95] The first day of trial was stopped early as Ms. LM informed the court that she was not feeling well in the afternoon. Counsel returned to complete cross-examination of the witness on day 2. As the cross-examination progressed, counsel for the Applicant produced a cribbage board taken from a plastic bag and placed the cribbage board into the witness's hand without seeking leave from the Court, or identifying the item before placing it into Ms. LM's hand.

[96] Ms. LM had an immediate, and very obvious reaction to the board. Her hands began to shake uncontrollably, so much so, that Mr. Cipriano immediately asked the witness if she was okay, and did she want to take a break; which she did.

[97] Counsel for the respondent objected to the board being put back before the witness given the reaction to it. During the break, Ms. LM's support person conveyed to counsel for the respondent that Ms. LM had an emotional reaction to the cribbage board that had been placed into her hand and wanted the Court to know that she could not continue if the board was in the room.

[98] As described above, there were several discussions between the court and counsel concerning the issue of whether it was necessary to put the cribbage board back in front of the witness. Counsel for the Applicant was asked several times to identify the reason that the board had to be put back before the witness, and Mr. Cipriano would not identify either the question(s) other than two concerning whether the board was warped, and a question about certain marks on the board, and maintained that he was not required to identify his cross-examination.

[99] When the Court tried to assess how putting the cribbage board back in front of the witness was necessary, and suggested two questions that, depending on the answers, would make placing the cribbage board back in front of the witness unnecessary. At no time did the witness indicate any intention that she would not or could not continue to answer questions about the cribbage board, but simply that she could not continue with the board present in front of her.

[100] When the Court directed counsel for the Applicant to ask the witness if the cribbage board he presented to her was the cribbage board she was hit with, or whether it was the cribbage board that she had testified that her father brought into the house after she had been hit, and depending on her responses, there might be no further need for the presence of the board, Mr. Cipriano asked the Court if he was being directed to ask those questions as they were not his next questions in cross-examination. At that point, the Court stated that Mr. Cipriano was attempting to set up a ground of appeal because he would not co-operate in finding a solution to the very serious problem that had been created by putting the cribbage board into the witness's hand, seemed to be asking the Court to direct his cross-examination while at the same time objecting to any suggestion or direction from the Court.

[101] Within the context of the discussions the Court was open to any suggestion, and at different times spoke with the witness asking if the witness could endure seeing the particular cribbage board again for a few moments. Ms. LM indicated directly to the Court that she could not continue if the cribbage board was placed in the (CCTV) room with her. However, she could continue to answer any question counsel might have about the board. In addition, by day three of the trial when counsel was asked to present argument to support his submission that the board had to be placed back before the witness, the witness, the two younger sisters and the mother had missed school and work for three days with much of the time spent waiting while the objection, argument and ruling over the issue was made.

[102] Counsel for the Applicant submits that the Court has pre-determined the credibility and the reliability of Ms. LM's evidence prior to hearing all of the evidence. However, nothing in the Application Record or in the submissions of counsel has identified how the issue of credibility or reliability has been pre-determined. There were no findings of credibility or reliability. There was nothing in what the Court said that would indicate any pre-judgment of the issues in the case. The Court was simply trying to find a solution to the impasse of counsel for the Applicant, requiring the Court to direct that the witness was required to continue the cross-examination with the cribbage board being placed back in front of the witness.

[103] If the Court had pre-determined the issues of credibility and reliability or the case as a whole, the Court would not have continued to attempt to find a resolution as to whether or not it was required to put the cribbage board back in front of the witness, heard argument on the issue, made the ruling and then continued to hear the cross-examination of the witness, including questions concerning the cribbage board, without it being present in front of the witness, or all of the witnesses who followed.

The Law on Bias

[104] The test for bias is set out in R. v. R.D.S., [1997] S.C.J. No. 84, at para. 111:

"The manner in which the test for bias should be applied was set out with great clarity by de Grandpre J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…[The] test is 'what would an informed person, viewing the matter realistically and practically – and having thought the matter through –conclude…

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, [1989] O.J. No. 2123 at pp 54-55; R. v. Gushman, [1994] O.J. No. 813, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including 'the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold': R. v. Elrick, [1983] O.J. No. 515, at para. 14. See also R. v. Stark, [1994] O.J. No. 406 at para. 74; R. v. Lin, [1995] B.C.J. No. 982, at para. 34. To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community."

At paragraph 113, the Court states:

"Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly."

At para. 114:

"The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30. Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case."

At para. 115:

"Finally, in the context of the current appeal, it is vital to bear in mind that the test for reasonable apprehension of bias applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic. A judge who happens to be black is no more likely to be biased in dealing with black litigants, than a white judge is likely to be biased in favor of white litigants. All judges of every race, colour, religion, or national background are entitled to the same presumption of judicial integrity and the same high threshold for a finding of bias. Similarly, all judges are subject to the same fundamental duties to be and to appear to be impaired."

At para. 116:

"Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joy coupled with a realization of the onerous responsibility that goes with the office. The taking of the oath is solemn and a defining moment etched forever in the memory of the judge. The oath requires a judge to render justice impartially. To take that oath is the fulfillment of a life's dream. It is never taken lightly. Throughout their careers, Canadian judges strive to overcome the personal biases that are common to all humanity in order to provide and clearly appear to provide a fair trial for all who come before them. Their rate of success in this difficult endeavour is high."

At para. 117:

"Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. See R. v. Smith & Whiteway Fisheries Ltd., 1994 NSCA 130, 133 N.S.R. (2d) 50, and Lin, supra. This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with 'cogent evidence' that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias. See Smith & Whiteway, supra, at para. 64; Lin, supra, at para. 37. The presumption of judicial integrity can never relieve a judge from the sworn duty to be impartial."

Application of the Law to the Facts

[105] Mr. Cipriano has referred the Court to several cases dealing with bias or an apprehension of bias. While all of the cases have been considered for the principles set out, many are distinguishable on the facts:

1) R. v. N.S., [2012] 3 S.C.R. 276

The case dealt with the issue of trial fairness and whether a witness appearing at a preliminary hearing would be permitted to wear a niqab while testifying. It was found that allowing the witness to do so would create a serious risk to trial fairness. The case is said to be somewhat analogous to the situation before the Court because the issue is whether or not trial fairness requires the cribbage board to be placed back before the witness.

I do not see the case as analogous to the case before the Court, as there is no issue as to the ability of counsel and the Court to observe the witness in cross-examination; the witness has already observed the cribbage board when it was placed into her hand, and the cross-examination of the witness concerning the cribbage board can continue without the board being placed before the witness. The absence of the board and any inability by the witness to recall specific elements of this cribbage board or any other that may have been involved will be considered in the assessment of the credibility and reliability of her evidence.

2) R. v. Brown, [2003] O.J. No. 1251

This case deals with the issue of racial profiling and whether the appeal judge set a lower standard for the test of reasonable apprehension of bias among other issues.

The Court of Appeal upheld the appeal judge's decision that there was an apprehension of bias created by the conduct of the trial judge throughout the trial: a) during the giving of evidence, specifically, the cross-examination of the officer; b) during defence counsel's submissions on the s. 9 application; and c) during the sentencing proceedings.

[106] At issue were statements made by the appeal judge under the headings i) a failure to understand the importance of the evidence, ii) a tendency to prejudge the merits of the application or assist the officer, iii) references to the amount of time being taken, and iv) other references to the trial judge's conduct.

[107] Mr. Cipriano emphasized paragraphs 37, 57 and specifically paragraph 60 as the important paragraphs. He submits that the cribbage board in this case is the key element concerning the credibility and reliability issues.

[108] Mr. Cipriano refers to paragraphs 63 and 65, and submits that the paragraphs are relevant because if there is a misunderstanding of the importance of the evidence, it shows an apprehension of bias. He submits that it is not the volume of interventions that is important as much as the type of intervention.

[109] In R. v. Brown, the Court of Appeal states at paragraph 56:

"The trial judge's comments that are relevant to this subject are not specified in the appeal judge's reasons. As a general matter, I do not think that a failure to understand the importance of evidence at the time it is given, by itself, affords a foundation for a finding of reasonable apprehension of bias. It is, merely, a failure to understand. A question by the trial judge designed to clarify his or her understanding of the evidence, while it necessarily indicates a lack of understanding is, of course, proper.

If however, there is a reasonable basis for concluding that the trial judge's failure to understand the evidence is the result of the judge having a closed mind on the issue to which the evidence is addressed, then the misunderstanding is a factor that should be taken into account. Having said this, I think I should add that the crucial time to assess the effect of a failure to understand the importance of the evidence is at the end of a case, after the judge has heard all of the evidence and counsel's submission on it.

There are passages in the transcript, which indicate a failure on the part of the trial judge to understand the import of evidence sought on cross-examination of the officer. I will not set forth the instances of this because they are, for the most part, followed by defence counsel taking advantage of the opportunity to explain the significance of his question. Further, this particular point is also covered by parts of the transcript related to the appeal judge's conclusion that the trial judge showed a tendency to prejudge the merit of the application and an inclination to assist the officer at critical stages of the cross-examination."

[110] In this case, the Court was attempting to resolve the issue of whether, given the witness's reaction to placing the cribbage board into her hand and her comments that she could not continue if the cribbage board was placed back before her, with counsel. There was no intervention by the Court in the questioning of the witness. The Court intervened with the witness to see whether there was any way to accommodate defence counsel's position that he could not properly cross-examine the witness without the presence of the cribbage board. When there was what the Court felt to be an unwillingness by counsel to indicate the relevance or necessity of placing the board back before the witness, and after directing counsel to ask two questions to determine whether placing the board back before the witness was relevant and/or necessary, counsel asked the Court whether the Court was directing counsel to do so, as the questions were not his next questions. The Court felt that if it insisted on the direction given, it would therefore become a potential almost automatic ground of appeal as the Court would be seen to be limiting or directing the cross-examination.

[111] Further discussion ensued between counsel for the applicant and counsel for the respondent to try to address the concern in order to ensure there were no limits set on the cross-examination. There was no resolution of the issue, and the matter was adjourned to the next day to hear argument on whether or not the Court should force the witness to testify in the presence of the cribbage board, and, if she refused, what the potential consequences could be. There was no misunderstanding of the evidence concerning the importance of the cribbage board; what was being questioned was why, given the witness' reaction to the presence of the board only, it had to be put back in front of the witness and how the presence of the board was relevant and essential.

[112] Argument was heard and a ruling made based on the submissions of counsel and the case law provided.

[113] I do not understand or accept that throughout there was any pre-determination or findings of credibility or reliability concerning either the witness or Mr. Morrison, should he testify. Ms. LM had testified that the cribbage board that she was hit with broke in two and was thrown out. Ms. LM testified that Mr. Morrison subsequently brought another cribbage board into the house after the incident. She was fully cross-examined on that evidence. However, the Court made no findings concerning any of her evidence and made no statements concerning the witness or Mr. Morrison's credibility, or the reliability of any of the evidence.

[114] The comment that counsel "was setting up an appeal" was not referring to the acceptance of any evidence, but simply a reflection of the fact that although counsel for the applicant was insisting that the cribbage board be placed back before the witness, he refused to indicate why or how it was relevant or necessary. When counsel was directed to ask certain questions to determine if placing the board back in front of the witness was relevant or necessary, Mr. Cipriano indicated that he would follow the Court's directive but felt that the Court was at the same time directing his cross-examination of the witness. The Court interpreted this statement by Mr. Cipriano as an indication that should the applicant be convicted, the direction by the Court to ask certain questions on cross-examination would be an automatic ground of appeal. There was no pre-determination of any issue. The Court continued to attempt to resolve the issue in a way that would ensure fairness to Mr. Morrison and to the witness, to no avail. Argument on the issue was heard the next morning, and a ruling given after hearing counsels' submissions.

Distinguishing Cases

[115] In R. v. Huang, [2013] O.J. No. 1695, the trial judge intervened when JH, one of the co-accused, was being cross-examined, and asked if he was aware of the offence of perjury and its penalties, and if he required advice from counsel. The Court of Appeal held that the remarks gave rise to a reasonable apprehension of bias that fatally compromised trial fairness for both accused.

[116] The facts concerning the trial judge's comments are distinguishable from the case before the Court. Counsel for the applicant submits that the Court, in this case has, as a result of the comments, pre-judged the applicant's credibility before the applicant had been given an opportunity to explain himself and before all the evidence and the submissions of counsel had been heard. However, there have been no findings with respect to the credibility of the witness or Mr. Morrison in this case. The comment that counsel for the applicant was setting up an appeal was based solely on counsel's refusal to indicate how the cribbage board being placed back in front of the witness was relevant and/or necessary or to indicate what areas or questions in the cross-examination required the physical presence of the cribbage board. Further it was based on counsel for the applicant's question to the Court as to whether the Court was directing/limiting his cross-examination when the two questions he was directed to ask to determine the relevance and/or necessity of placing the cribbage board back in front of the witness when the questions directed were not "his next questions".

[117] In Truckair v. Canada (Attorney General), [2011] N.S.J. No. 577, Truckair brought an application for judicial review of a provincial court judge's decision not to recuse himself and that his trial be held before another judge. At trial before the first judge, Truckair brought a Charter application to exclude seized evidence. Before hearing argument from Truckair's counsel, the judge stated that he was convinced the Crown was right that the court did not have jurisdiction to hear the application. The Appeal Court held that a reasonable person would conclude that the judge was predisposed to decide the issue or the entire matter in the Crown's favour as the judge's comments went to the heart of the matter he was being asked to adjudicate.

[118] One of the comments made by the trial judge was that counsel was "judge shopping". While the Appeal Court agreed with the respondent that "…individually such comments would in most circumstances not give rise to a reasonable apprehension of bias, the analysis must be a contextual one, and the comments must be considered in light of those which preceded them. Although these additional comments may not individually give rise to a reasonable apprehension of bias, in my view, there is a cumulative effect. Along with the previous comments considered, and when viewed in the entire context in which they were made, the comments would certainly contribute to a reasonable person concluding there was a reasonable apprehension of bias, and that the provincial court judge's mind was not "perfectly open" to the positions of both parties." (see paragraphs 39 to 40).

[119] The comment "you are setting up an appeal" has been explained, and when put into the context of trying to resolve the issue of whether it was relevant and/or necessary to place the cribbage board back in front of the witness, there were no other comments or interjections that would give rise to a reasonable apprehension that the Court's mind was not perfectly open to the positions of both parties.

[120] R. v. Stucky, 2009 ONCA 151, [2009] O.J. No. 600 is distinguishable based on the facts.

[121] Similarly, counsel for the respondent submitted several cases for the Court's consideration. While all of the principles apply, some of the cases are distinguishable on the facts.

[122] In R. v. D'Souza, [2004] O.J. No. 3093, the trial judge made comments during the trial which impugned the credibility of Crown witnesses. There were no comments made in the case before the Court concerning the credibility of Crown and/or Defence witnesses.

[123] In Kelly v. Palazzo, 2008 ONCA 82, 89 O.R. (3d) 111, no merit was found in the plaintiff's argument that the trial judge's conduct demonstrated a reasonable apprehension of bias.

[124] At paragraph 20 the Court of Appeal states:

"[20] I do not propose to repeat the bias analysis found in Peart v. Peel Regional Police Services Board, [2006] O.J. No. 4457. It does bear repeating, however, that there is a strong presumption in this country that judges are impartial. That presumption is not an artificial construct designed to shield judges from allegations of bias. The presumption reflects the historical and current reality. Judges in Canada are, as a rule, strongly independent and impartial: R. v. S. (R.D.), [1997] 3 S.C.R. 484; Peart v. Peel Regional Police Services Board, supra, at para. 39.

[21] It takes much more than a demonstration of judicial impatience with counsel or even downright rudeness to dispel the strong presumption of impartiality. While litigants may not appreciate that presumption and thus may misread judicial conduct, lawyers are expected to appreciate that presumption and, where necessary, explain it to their clients. Baseless allegations of bias or of a reasonable apprehension of bias founded on a perceived slight or discourtesy that occurred during a trial, will not assist the client's cause and do a disservice to the administration of justice."

[125] In R. v. Windibank, 2012 ONCA 237, [2012] O.J. No. 1604, the Court of Appeal found that the trial judge had the authority to control proceedings and his interruptions of defence counsel's questioning did not extend beyond the permissible limits, impede the accused's right to make full answer and defence, or create a reasonable apprehension of bias. At paragraphs 14 to 16, the Court of Appeal states:

"14 The final ground of appeal, not pressed in oral argument, alleges that the trial judge intervened so frequently during the cross-examination of prosecution witnesses by defence counsel at trial that the appearance of trial fairness was compromised.

15 We disagree.

16 The appellant acknowledges the undoubted authority of a trial judge to control the proceedings, including the authority to require that witnesses are fairly questioned, and not subjected to unfocused, repetitive, ambiguous or irrelevant questions. In our view, the interventions in this case did not extend beyond the permissible, impede the appellant's right to make full answer and defence, or give rise to a reasonable apprehension of bias."

[126] In the case before the Court, it is evident when all three transcripts are considered, that the Court was attempting to control the proceedings given the reaction of the witness, the evidence that she could not continue with the cribbage board placed in front of her, but would continue to answer any questions if it was not present, in order to be fair to both the witness and the accused. The Court's attempts to find a resolution, to obtain the relevance and/or necessity of placing the cribbage board back in front of the witness, to hear any suggestions and finally argument on whether or not the Court would be required to force the witness to testify in the presence of the cribbage board demonstrates that the Court remained open and did not pre-determine credibility, reliability or even whether the cribbage board should be placed back in front of the witness until all submissions were heard.

[127] In R. v. Snow, [2004] O.J. No. 4309, the appellant argued that the trial judge was biased, unduly interfered in the presentation of the case, and unfairly curtailed defence cross-examinations. It was alleged that the judge had out-of-court contact with the jury that breached his right to a fair trial, and argued that the judge erred in dismissing his application for a mistrial among other errors.

[128] The appeal was dismissed. The Court of Appeal found that the judge's interventions did not result in the denial of a fair trial and his actions did not give rise to a reasonable apprehension of bias. The judge was entitled to curtail irrelevant questions by defence counsel and to intervene when defence counsel attempted to inappropriately adduce fresh evidence and refused to abide by rulings. The judge's failure to conduct an inquiry into the allegations contained in Snow's affidavit in support of the mistrial constituted an error of law, but did not amount to a miscarriage of justice, because the judge's contact with the jury did not undermine the fairness of the trial. No prejudice to Snow occurred because it was apparent to the jury that the judge and defence counsel had developed an acrimonious relationship. The judge gave a strong caution to the jury not to be influenced by the difficulties he had with defence counsel. The judge did not err in his refusal to admit the informant's prison records because their relevance was based on speculation. The judge did not err in ruling the statement from the deceased witness inadmissible, or in his admission of similar fact evidence.

[129] At paragraphs 22 to 25 the Court of Appeal states:

"22 Many of the interventions complained of by the appellant were entirely innocuous and appropriate. The trial judge frequently interjected during examination-in-chief and cross-examination of witnesses to clarify ambiguous questions and ensure that he and the jury understood the evidence. Many of his interventions were to ascertain the relevance of evidence and to ensure that inadmissible evidence was not adduced.

23 It is apparent from the transcript that the trial judge at times became very frustrated with what he regarded as the truculent and obstreperous conduct of defence counsel, an assessment that certainly could not be described as ill-founded. Some of the trial judge's comments could only be described as insulting and demeaning. While one can appreciate the trial judge's annoyance with defence counsel's conduct, it would have been preferable had he not risen to the bait. However annoying or irritating counsel may become, the trial judge at all times should control proceedings with judicious demeanour.

24 On the other hand, a trial judge is certainly entitled to control the proceedings and to intervene when counsel fail to follow the rules or abide by rulings. A trial judge is not a mere observer who must sit by passively allowing counsel to conduct the proceedings in any manner they choose. It is well recognized that a trial judge is entitled to manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides: see Regina v. Felderhoff, 180 C.C.C. (3d) 498; Regina v. Valley, 26 C.C.C. (3d) 207; Regina v. G. (A.), 130 C.C.C. (3d) 30. We agree with the submission of the Crown that when viewed in the context of the proceedings as a whole, the trial judge did not cross 'the difficult line between unnecessary, discourteous or erroneous interventions, and interventions that destroy the appearance of fairness': See Regina v. Lyttle, 2004 SCC 5, 180 C.C.C. (3d) 476.

25 We do not agree that the trial judge's numerous interventions during defence counsel's cross-examination of defence witnesses curtailed the appellant's right to a fair trial or revealed a reasonable apprehension of bias. The trial judge was entitled to curtail questions by defence counsel that were irrelevant, prolix and repetitive. The trial judge was also entitled to intervene to cut off editorializing and argumentative questions and to ensure that there was a good faith basis for putting certain questions. Defence counsel frequently refused to abide by rulings and this understandably provoked further interventions from the trial judge."

[130] In R. v. Hamilton, 2011 ONCA 399, [2011] O.J. No. 2306, the Court of Appeal sets out certain principles concerning interventions by trial judges at paragraphs 43 to 55:

"43 It should be emphasized that interventions by trial judges are not about numbers, but rather about their effect and impact on the trial. As we stated at the outset, the ultimate question is whether the appellants received a fair trial from the perspective of a reasonable observer present throughout the trial. This assessment is, by necessity, a contextual one.

44 This was a complex and difficult homicide case. The Crown's case was strong, but far from simple. The jury was compelled to examine a culture of violence that fosters fear.

45 Leading up to and throughout the proceedings before the jury, the trial judge was required to make numerous evidentiary rulings and manage a complicated set of players. The following list helps to illustrate the demanding nature of the trial by showing the sheer magnitude of players, steps and decisions involved: …

46 Indeed, managing this trial was a very difficult task and a trial judge with expertise in criminal matters was essential to running a smooth trial.

47 An examination of whether a trial judge has unduly intervened in a trial begins with the recognition that there are many proper reasons why a trial judge may intervene through comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court's process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings: R. v. Felderhoff, 68 O.R.(3d)481.

48 A trial judge may properly intervene to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters, and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.

49 At a time when we are concerned about the increasing cost and length of criminal trials as well as their drain on resources and the pressures they bring to bear on the administration of justice, appropriate trial management is to be encouraged, not muted. In a case of this complexity and size, a good deal of deference is owed to an experienced trial judge who lived those dynamics for many months; dynamics that must have impacted on his decision to intervene from time to time. A microscopic analysis of interventions by a trial judge in large cases such as this should be avoided.

50 Aside from the trial judge's comment about 'civic duty' in relation to Clarence Coward, the appellants have not rebutted the strong presumption that the trial judge conducted himself fairly and impartially. The interventions by the trial judge, when evaluated cumulatively and after an assessment of the entire record, cannot be said to have resulted in an unfair trial for any of the appellants.

51 Although it is true that the trial judge intervened on multiple occasions, he did so in the context of a case that was very large, long and complex. On the whole, when he intervened – and he did in both the case for the Crown and defence – he did so for good reasons. On our review, his interventions were for proper purposes such as clarification, avoiding irrelevant and repetitive evidence, and generally to move the trial expeditiously to a conclusion. We do not accept the argument that his interventions impeded counsel's ability to probe the Crown's case, or reflect the trial judge's attempts to provide the witnesses with answers favourable to the Crown's case. Rather, the trial judge had a noteworthy grasp of the evidence and demanded accuracy and fairness on the part of all counsel.

52 After examining the appellant's complaints, any concern for unfairness or perceived unfairness is misplaced. The trial judge determined when it was appropriate to interject to move along the process. His discretion should be given deference. Indeed, this case required an experienced judge with a firm hand.

53 The 'civic duty' comment, nevertheless, is problematic. It arose during the examination-in-chief of Det. Carter in a discussion of the police efforts to protect Coward's identity as a witness in this investigation. The trial judge suggested to Det. Carter that what he meant by the phrase, 'the cat was out of the bag', was 'that Mr. Coward had done his civic duty and cooperated with you'.

54 It is of some significance that this comment was not made in the context of a discussion of Coward's credibility. The trial judge was giving his own interpretation of the meaning of the witness' comment that 'the cat was out of the bag'. Even so, the comment appears to somewhat facetiously attribute certain civic virtues to Coward. This comment is not, however, fatal.

55 Importantly, shortly after the comment was made, the jury was excused and counsel brought a mistrial application based on the prejudicial effect of this comment. The trial judge dismissed the application. When the jury returned, the trial judge gave them a clear instruction to disregard the opinion of counsel or himself in assessing a witness' credibility…"

The Court of Appeal found the instruction would have eliminated any prejudice that may have been caused by the trial judge's comment.

Conclusion

[131] I find that in the case before the Court, the Court made the comment at issue in the context of trying to control the proceedings and find a resolution to a problem that was fair to both the witness and the accused. The Court was also conscious of the efficient use of trial time. There was no pre-determination of the credibility and/or reliability of any witness, potential witness or evidence. I am, therefore, dismissing the application for a mistrial.

Released: June 13, 2014

_______________________________

The Honourable Justice C. Kehoe