ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 41/12
Date: 20130409

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

AMANDA LAHOURI

Jason Gorda, for the Crown, respondent

Heather Pringle, for the accused, appellant

HEARD: February 22, 2013

K.L. Campbell J.:

REASONS FOR JUDGMENT

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Amanda Lahouri, was tried by the Honourable Mr. Justice B. Cavion of the Ontario Court of Justice on charges that, on June 12, 2010, she was in care and control of a motor vehicle while: (1) her ability to operate a motor vehicle was impaired by alcohol or a drug; and (2) her blood-alcohol concentration exceeded 80 mgs. of alcohol in 100 mls. of blood. The trial unfolded as a blended proceeding, with the Crown leading its evidence to establish the commission of the alleged offences, and with the appellant seeking to establish an alleged violation of her constitutional rights so as to potentially exclude the results of the analysis of her breath samples under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

[2] At the conclusion of the trial proceedings, the appellant was acquitted of the “impaired” charge, but convicted of the “over 80” charge.

[3] The appellant now appeals against her conviction on two grounds. First, the appellant argues that the trial judge intervened to such an extent in the examination of witnesses that the appearance of fairness in the trial was fatally compromised. Second, the appellant argues that the trial judge failed to provide legally adequate Reasons for Judgment in dismissing the appellant’s Charter motion and in convicting the appellant on the “over 80” charge, by failing to reconcile the conflicting testimony of the two police officers who testified as to the appellant’s indicia of impairment.

B. The Interventions of the Trial Judge and the Appearance of Fairness in the Trial Proceedings

1. The Governing Legal Principles

[4] Trial judges are entitled to question witnesses. Indeed, sometimes they are duty-bound by the interests of justice to ask questions. They are not required to remain silent, passive observers of trials. There are, however, limits on their ability to intervene in the examination of witnesses. Their interventions must never compromise the overall appearance of fairness in the trial proceedings. See: R. v. Brouillard, 1985 56 (SCC), [1985] 1 S.C.R. 39, at p. 46; R. v. Darlyn (1946), 1946 248 (BC CA), 88 C.C.C. 269 (B.C.C.A.) at p. 277; R. v. Pavlukoff (1953), 1953 430 (BC CA), 106 C.C.C. 249 (B.C.C.A.); R. v. McKitka (1982), 1982 425 (BC CA), 66 C.C.C. (2d) 164 (B.C.C.A.).

[5] As there are many valid reasons that justify the judicial questioning of witnesses, there is a presumption that judicial interference in trial proceedings for such purposes has not been undue. In R. v. Hamilton, 2011 ONCA 399; 271 C.C.C. (3d) 208, the Court of Appeal for Ontario stated, at para. 29:

Appellate courts are reluctant to interfere on the basis that a trial judge improperly intervened during a trial. There is a strong presumption that a trial judge has not unduly intervened in a trial, and that “there are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial”: Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, at para. 231.

[emphasis added]

[6] The legal test for determining whether the interventions of a trial judge in any individual case, viewed cumulatively, have crossed the threshold from permissible questioning to undue interference in the trial is an objective one. As Martin J.A. stated in R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.) at p. 232; Leave denied: [1986] 1 S.C.R. xiii:

The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial.

[Emphasis added – citation omitted]

[7] As Oland J.A. observed in R. v. Dugas, 2012 NSCA 102, 322 N.S.R. (2d) 72, at para. 37, the important question is not whether the interventions by the trial judge were such that a reasonably minded person who had been present throughout the trial could conclude that the accused had not received a fair trial, but whether such a person would come to such a conclusion.

[8] In the application of this standard, the authorities have collectively articulated a number of helpful general principles to guide trial judges. See: R. v. Stucky, 2009 ONCA 151; 240 C.C.C. (3d) 141, at para. 61-72; R. v. Hamilton, at para. 29-33, 43; R. v. Dugas, at para. 34-45. Those principles can be summarized as follows:

(1) Refrain From Usurping the Role of Counsel: As a general rule, a trial judge should endeavour to confine him or herself as much as possible to his or her own responsibilities and leave counsel to perform their functions in the litigation. The criminal trial process is an adversarial one, and should not become an inquisitorial investigation by the trial judge. Accordingly, the examination of witnesses must remain, for the most part, the responsibility of counsel, and a trial judge must be careful not to effectively usurp that role. See: R. v. Valley, at pp. 230-231; R. v. Torbiak and Campbell (1974), 1974 1623 (ON CA), 18 C.C.C. (2d) 229 (Ont.C.A.) at pp. 230-231; R. v. Stucky, at para. 63; Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, at para. 237.

(2) The Right to Pose Questions: A trial judge is justified in: (a) posing questions to a witness to clear up ambiguities in their evidence; (b) calling a witness to order and focusing him or her on the true matters in issue; (c) exploring some issue on which the witness’s evidence has been left vague and uncertain; or (d) putting questions which should have been asked by counsel in order to elicit evidence on some relevant issue. See: R. v. Brouillard, at p. 47; R. v. Valley, at p. 230; R. v. Bateman (1946), 31 Cr.App.R. 106, at pp. 110-112; R. v. Stucky, at para. 64; R. v. Watson (2004), 2004 45443 (ON CA), 191 C.C.C. (3d) 144 (Ont.C.A.) at para. 10. The right to pose questions that should have been asked by counsel is not, however, an open-ended invitation to the trial judge to usurp the role of the counsel. See: R. v. Valley, at p. 230; R. v. Stucky, at para. 65.

(3) The Timing of Questions: Generally speaking, substantive questions going beyond the clarification of an answer should be posed by a trial judge only after counsel has completed his or her examination of the witness. Otherwise, the trial judge risks interfering with the prepared organization and flow of the testimony. See: R. v. Valley, at p. 230; R. v. Stucky, at para. 64; R. v. Torbiak and Campbell, at p. 231; Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, at para. 239.

(4) No Cross-Examination: The right of a trial judge to question any witness does not entitle a trial judge to cross-examine witnesses. Accordingly, a trial judge should not, even temporarily, abandon his or her position of neutrality and become the cross-examiner, especially in cases where he or she is the ultimate fact-finder. See: R. v. W.(A.) (1994), 1994 218 (ON CA), 94 C.C.C. (3d) 441 (Ont.C.A.) at para. 38-42; Reversed: 1995 83 (SCC), [1995] 4 S.C.R. 51; R. v. Valley, at p. 230.

(5) Permitting the Accused to Give His or Her Evidence: The duty on a trial judge to exercise restraint and remain neutral is especially critical in cases where the accused takes the stand to give evidence. A trial judge must allow the accused to give his or her evidence freely and must not intervene in the examination of the accused so as to effectively preclude the accused from telling his or her story in his or her own way. See: R. v. Brouillard, at p. 48; R. v. Valley, at pp. 231-232; R. v. Stucky, at para. 66, 71; R. v. Russell, 2011 BCCA 113; 302 B.C.A.C. 208, at para. 16-19; R. v. Adano, [2008] O.J. No. 1995 (S.C.J.) at para. 21-24, 36.

(6) Remaining Neutral: A trial judge must not question an accused or a defence witness to such an extent or in such a manner that conveys the impression that the trial judge has placed the authority of his or her judicial office on the side of one of the parties in the litigation. See: R. v. Valley, at pp. 231-232; R. v. Stucky, at para. 71; R. v. Augello, 1963 745 (ON CA), [1963] 3 C.C.C. 191 (Ont.C.A.).

(7) Refrain From Interfering With the Conduct of the Defence: A trial judge must not intervene in the trial to such an extent that it effectively renders it impossible for defence counsel to perform his or her duty in advancing the defence on behalf of the accused. For example, the trial judge should not divert counsel from his or her chosen topic of examination, or interfere with the sequence and dynamic flow of cross-examination so as to prevent the proper testing of the testimony. See: R. v. Valley, at pp. 231-232; R. v. Stucky, at para. 71; R. v. Matthews (1983), 78 Cr.App.R. 23, at p. 31; R. v. Kitaitchik (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont.C.A.) at para. 13; R. v. Watson, at para. 14.

[9] Of course, the effect of interventions by the trial judge on the appearance of trial fairness in any given case must be assessed in relation to the unique facts and circumstances of the particular trial. See: R. v. Valley, at p. 231; R. v. Torbiak and Campbell, at p. 231; R. v. Stucky, at para. 70. Where the appearance of fairness in the trial proceedings has not been maintained, the verdict reached cannot stand and a new trial must be ordered. There is no need to consider the reasonableness or legal propriety of the verdict.

[10] In considering whether or not the appearance of fairness has been compromised in any given trial, two of the many factors that merit consideration are: (1) whether the trial judge gave counsel an opportunity to ask questions that may have arisen from the trial judge’s questioning of a witness; and (2) whether counsel at any time objected to the trial judge’s interventions or his or her questioning of a witness. In this latter regard, the absence of any objection by counsel is not in itself determinative of the issue of the appearance of fairness in the proceedings. The trial record must be viewed and assessed in its totality and the impugned interventions must be assessed cumulatively from the perspective of a reasonable observer present throughout the course of the trial, appreciating the reality that no trial is perfect. See: R. v. Stewart (1991), 1991 11753 (ON CA), 62 C.C.C. (3d) 289 (Ont.C.A.) at p. 320; R. v. Kitaitchik, at par. 14.

C. The Sufficiency of the Reasons for Judgment

[49] In light of the conclusion that I have reached in relation to the interventions of the trial judge, and their collective impact upon the appearance of fairness in the trial proceedings, there is no need to consider the appellant’s alternative argument that the Reasons for Judgment of the trial judge are legally inadequate. Accordingly, I express no conclusion on that issue.

D. Conclusion

[50] In the result, the appellant’s appeal is allowed, her conviction for having care or control of her motor vehicle while having a blood-alcohol concentration in excess of 80 mgs. of alcohol in 100 mls of blood is set aside, and a new trial is ordered on that charge. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: April 9, 2013