Court File and Parties

Court File No.: 23-11402146 Date: 2025-08-11 Ontario Superior Court of Justice

Between: His Majesty the King – and – Joshua Hambleton, Appellant

Counsel:

• Shakiba Azimi, for the Crown
• Appellant, Self-Represented

Heard: June 23, 2025

Reasons for Decision on Summary Conviction Appeal

Justice I. Carter

Overview

[1] Joshua Hambleton was tried in the Ontario Court of Justice on a 14-count information for offences of uttering threats, assault, assault – choking, assault with a weapon, and mischief against his former spouse. At the conclusion of the trial, the Crown invited dismissal of three counts. Mr. Hambleton was subsequently convicted of nine counts and acquitted of a remaining two counts. The convictions have been appealed.

[2] Although represented at trial, the Appellant has acted on his own behalf on the appeal. He has raised a number of grounds of appeal, one of which is that there was a reasonable apprehension of bias on the part of the trial judge. At the time of the hearing of the appeal I had reviewed the factums and appeal book but had not yet reviewed the trial transcripts. After reading the transcripts, I asked the parties for additional written submissions on the issue of the trial judge's questioning of the Appellant during his cross-examination. Although Mr. Hambleton had raised reasonable apprehension of bias as a ground of appeal, this specific issue was not addressed.

[3] Having now reviewed those submissions, it is my view that the trial judge's questioning of the Appellant created a reasonable apprehension of bias. At various times, the trial judge assumed the role of counsel for the Crown and appeared to pre-judge the credibility of the accused. Accordingly, for the reasons that follow, I would set aside the trial judgment, and order a new trial.

The Governing Principles

[4] Several important principles at play on this appeal were recently summarized by the Ontario Court of Appeal in R. v. Walton, 2025 ONCA 368:

a. The trial judge is duty-bound to exercise restraint and remain neutral to promote both the reality and the appearance of fairness (para. 22).

b. Examination-in-chief and cross-examination are and must remain the responsibility of counsel; a trial judge should not become an investigator (para. 24).

c. A trial judge must not cause a reasonable person to believe that he or she has placed the authority of his or her office on either side, particularly that of the prosecution (para. 24).

d. When the trial judge does intervene in questioning a witness, it is important that they use care and not create an impression through the questioning process of having adopted a position on the facts, issues or credibility (para. 25).

e. The trial judge should never cross-examine a witness. Rather, when the trial judge believes that it is necessary to question a witness, the judge's questions should be asked after counsel has completed his examination, or at least after counsel has finished a particular line of questioning (para. 26).

[5] In addition, it has been held that judicial restraint must be all the greater where the accused is a witness: R. v. Brouillard, [1985] 1 S.C.R. 39 at para. 24.

[6] In R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), Martin J.A. set out three situations in which questions put by a trial judge to a witness may be justified, namely: to clear up ambiguities and call a witness to order; to explore some matter which the witnesses' answers have left vague; or, to put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted.

[7] In contrast to those scenarios, appellate intervention has been warranted where, for example, the questioning of an accused or witnesses is done in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown: R. v. Murray, 2017 ONCA 393 at para. 94.

The Principles Applied

[8] The Crown argues a number of questions were aimed at getting Mr. Hambleton to repeat his answers to ensure they were heard correctly or constituted questions of clarification and were aimed at clarifying ambiguities in Mr. Hambleton's evidence. I am prepared to accept that in some instances this is so. In others, however, the tone is one of incredulity. For example, the following exchange occurred:

THE COURT: And that's what you believe now, sir?

A. Yes.

THE COURT: That she set you up?

A. Yes, intentionally, yes.

THE COURT: She intentionally set all this up?

A. Yes, from the time my daughter was born, in the event that, that our relationship would end, and she always told me that, that she would take my daughter and, and have sole custody.

[9] This is not the only instance in which the tenor of the questions suggests a disbelief in the Appellant's version of events as opposed to seeking clarification.

[10] The Crown further argues that a number of interjections and/or questions were aimed at exploring some matters that were left vague by the Appellant's evidence. Again, there are some moments when this occurred. Yet there were also times where the questioning went well beyond clearing up ambiguities, as in this instance:

THE COURT: So, sir, her not listening to you is what you're saying doesn't make sense that she didn't listen to you the first time?

A. It didn't make sense that she didn't hear what I had said, and that she's, she's playing dumb in order to get me to repeat what I had said on tape.

THE COURT: Oh, and that's what you think she was feeling?

A. Well, that's obviously in, in that particular recording, that, that - I, I don't recognize it consciously, but it doesn't make sense why I'm having to repeat myself and....

THE COURT: You never have to repeat yourself in any conversation with anyone?

A. Of course, of course I do. No, but in this scenario, like, I'm being very crude...

THE COURT: Mm-hmm

[11] Finally, the Crown argues that there is a third category of questions that should have been asked by counsel in order to bring out some relevant matter – notably points that informed the credibility and credulity of the Appellant's version of events.

[12] In response, I would note that these questions did not occur at the end of Crown counsel's cross-examination or even at moments when it was evident that counsel had concluded a line of questioning. Under the circumstances, how could the trial judge know that a question on a relevant matter should have been but had not been asked? She could not.

[13] I do agree, however, with the Crown that the trial judge appears to have questioned the Appellant with respect to his credibility. Indeed, the trial judge used her questioning of the Appellant to assist in her finding that he was unbelievable. In her decision she stated as follows:

He kept changing his version and they made no sense. He would not admit that what he wanted in part was for Ms. Stewart to stop crying. Then when the questioning continued, the Cross-examination, and as indicated, it appeared that there were difficulties with his explanation that it wasn't plausible, then he completely changed the course of the questioning and the answers. And he asked for the date of this incident. The response was, why did he need to know the date? And he said, and this is a quote from the transcript, "because it was at this point that I recognized like this person is not dealing in reality. So when I had tapped her in the foot," I believe it should be 'with the foot,' "and then she said, you kicked me, I said, I didn't kick you. I tapped you with my foot. And I realized at that point, like, like that's not true." The Court then asked, "so how does the date help all this?" And the answer? "Because he had asked me earlier, at what point did I recognize that Caitlin was not being truthful? And I had referenced the Only Fans e-mail in that lie. In this occasion, that that was like a direct misrepresentation of what happened."

He was then asked, "how does that assist you in answering the Crown's question about what had happened?" Answer, "because, well, I'm just referencing this question from yesterday around when did I recognize that, that she wasn't being truthful." Court then said, "okay, so you wanted the date to answer a question from yesterday while the Crown's asking you questions about what happened in that washroom. Is that what you're saying?" "Yeah, we've been cycling around this topic quite a bit over the last Court." "So you decided to change the topic?" Answer, "I'm not changing the topic. I'm happy to go back to the topic." Court, "okay." "No, my clarification was this was another occasion where there was a direct misrepresentation of truth that was undeniable to me. Like the Only Fans email, this also was a direct lie because I did not kick her. I tapped her with my foot and she said to me you kicked her and I said, 'I didn't kick you. I tapped you with my foot.'"

This is one of many major inconsistencies in his evidence, and despite his denial, it was a clear attempt to change the topic.

[14] This point does not assist the Crown. It is not the trial judge's role to question an accused with the aim of addressing their credibility. That is the role of counsel.

[15] The trial judge intervened during the cross-examination of the Appellant on 20 separate occasions, asking approximately 70 questions. She did not wait until the conclusion of the cross-examination to do so. The trial judge, in effect, entered the arena and cross-examined the Appellant along with Crown counsel. To an objective observer, the appearance is that the trial judge aligned herself with the case for the Crown.

[16] In Brouillard, Lamer J. noted, at para. 12, that when a trial judge "step[s] down from his judge's bench and assume[s] the role of counsel... to the detriment of the accused, it is important that a new trial be ordered, even when the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not incorrectly assessed the facts."

[17] Although I can find no fault in the trial judge's review and analysis of the evidence, the convictions must be set aside and a new trial ordered.

Justice I. Carter

Released: August 11, 2025