ONTARIO
SUPERIOR COURT OF JUSTICE
EAST REGION
COURT FILE NO.: CR-12-0038-AP
DATE: 2013/08/08
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Respondent
VERNON DOUGLAS CHRISTOPHER
RAMSEY
Gerrard McGeachy, for the Crown
Dianna Lumba, for the Appellant
Appellant
HEARD: August 7, 2013 (Belleville)
On Appeal from the Decision of the Honourable G. Griffin of the Ontario Court of Justice dated October 12, 2012.
ABRAMS j.
Overview
[1] This is an Appeal from conviction only of the Decision of the Honourable G. Griffin, dated October 12, 2012, in the Ontario Court of Justice at Belleville on charges of impaired operation of a motor vehicle and driving “over 80”.
[2] The sole issue at trial was who, as between the Appellant and his fiancé, Ms. Patti Sheerin, was driving a car that was involved in an accident on March 31, 2011, in Stirling-Rawdon.
[3] Griffin J. found the Appellant guilty on both counts. The Appellant contends that a new trial is warranted on either of the following two grounds:
(i) The verdict is unreasonable; and
(ii) The trial judge prejudged credibility.
[4] The focus of the Appeal during submissions centred on the second of the two grounds.
[5] In sum, before defence counsel had an opportunity to make his closing argument, the trial judge expressed the view that Ms. Sheerin was lying when she testified that she was driving at the time of the accident. Moreover, the trial judge said that he believed the Appellant was guilty. The following excerpts reflect the trial judge’s thoughts, prior to hearing closing arguments:
“You know, obviously, I think they’re lying. I think she’s lying. And they have got motive to lie because of the child, the money and all the issues.”
“How can I be satisfied that she-well, like obviously, look I believe they are lying and I believe this man is guilty. There is no question about that in my mind.”
Issue
[6] It is agreed that if the trial judge in fact prejudged the issue of credibility by coming to a finding, a fixed and firm conclusion, prior to hearing from counsel on the issues, this would constitute an error in law that would warrant a new trial.
Law
Declaration as to the Appellant’s guilt
[7] As the Alberta Court of Appeal articulated in R. v. Graham [2007] A.J. No. 497 at para 11:
It is trite law and common ground that at trial parties have the right to present argument before judgment is pronounced. That principle was stated by this court in R. v. Johns 1982 ABCA 97, [1982] A.J. No. 745, 35 A.R. 583, where Hadded, J.A., speaking for the court, stated at para 23:
The general rule I derive from the authorities I have read is that a court is not at liberty to pronounce judgment until counsel have been afforded the opportunity to present argument. This stems from the fundamental principle that a litigant ought not be deprived of his right to have his case fully heard.
Declaration as to Ms. Sheerin’s credibility
[8] As His Honour Justice MacPherson for our Court of Appeal said in R. v. Hossu 2002 45013 (ON CA), [2002] O.J. No. 3087 at para 19:
In my view, the emphasized passage would be a serious error in any trial. The credibility of a witness lies at the heart of most trials, probably especially criminal trials. A trial judge should not make declarations about the credibility of any witness during a trial; such conclusions should be saved for the judgment.
Positions of the Parties
[9] The Defence contends that by the time the trial judge invited counsel to make submissions, the trial judge had already made up his mind that Ms. Sheerin was lying and that the Appellant was guilty. In the circumstances, this is a clear example of a trial judge lacking an open mind, the sine qua non of judicial impartiality.
[10] The Crown contends that this court should read the overall trial proceedings and comments by the trial judge to consider the issue in context. Moreover, the Crown asserts that the trial judge, by the impugned statements, was attempting to focus argument, pointing to areas of concern, indicating areas he thought needed to be exposed in argument. Finally, the Crown points out that the trial judge’s reasons were delivered orally immediately following a short trial, a factor the Supreme Court has recognized as important, given the heavy workload of a judge presiding over criminal trials.
Analysis
[11] Regrettably, the timing and the unequivocal nature of the impugned statements, prior to counsel having an opportunity to present closing arguments, deprived the Appellant of the right to be fully heard. The impugned statements were not merely musings of the trial judge. It was “obvious” to the trial judge that the Appellant and Ms. Sheerin were lying and that the Appellant was guilty. If there was any doubt as to the trial judge’s view, he followed up by saying: “There is no question about that in my mind.” Accordingly, the trial judge had indeed reached a fixed and firm conclusion, prior to hearing from counsel on the issues.
Conclusion
[12] The Appeal is allowed and a new trial is ordered before a different judge of the Ontario Court of Justice.
The Honourable Justice B.W. Abrams
Released: August 8, 2013
COURT FILE NO.: CR-12-0038-AP
DATE: 2013/08/08
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
VERNON DOUGLAS CHRISTOPHER RAMSEY
Appellant
REASONS FOR DECISION
Abrams B.W.
Released: ** August 8, 2013**