Court File and Parties

Court File No.: 23-11401997-AP

Date: 2025-10-15

Ontario Superior Court of Justice

Between:

His Majesty the King – and – Xiaopeng Xin, Respondent

Counsel:

Shakiba Azimi and Lauren Hannough-Bergmans, for the Appellant (Crown)

Respondent, Self-Represented

Heard: June 18, 2025

Reasons for Decision on Summary Conviction Appeal

Anne London-Weinstein J.

Introduction

[1] Mr. Xin was acquitted after trial of a single count of threatening to burn the property of MinFang Xin, his spouse. The trial took place in the Ontario Court of Justice on August 22, 2024. There was one witness for the Crown. The Respondent was unrepresented. Mr. Dan Howard was appointed to cross-examine the complainant pursuant to s. 486 of the Criminal Code. However, the Respondent would not communicate with Mr. Howard about the case prior to trial. He spoke briefly to Mr. Howard just prior to cross-examination of the complainant. The Respondent required an interpreter. The cross-examination did not clarify certain issues for the trial judge, who asked the complainant questions at the conclusion of re-examination. Neither Mr. Howard, nor the trial Crown had any additional questions to ask or comments to register at the conclusion of the questions asked by the trial judge. The trial judge also wondered aloud at the conclusion of the sole witness' evidence, whether the case could be resolved.

Nature of the Alleged Legal Errors

[2] The Appellant submits that the trial judge misapprehended the totality of the body of evidence before him in his assessment of both the objective and subjective inquiries in relation to the charge of uttering a threat. The Appellant also argues that the conduct of the trial judge in questioning the complainant and suggesting resolution gave rise to a reasonable apprehension of bias.

[3] The Appellant argues that this purported error stems from placing undue emphasis on the complainant's evidence that she and the Respondent often "engaged in arguments in which they meant things they did not say." (sic).

[4] The Appellant concedes that this evidence formed part of the context but was not dispositive of the determination of (a) whether, objectively, a reasonable person would conclude that the utterances during that particular argument conveyed a threat; and (b) whether, subjectively, the Respondent intended to intimidate the complainant during that particular argument.

[5] The Appellant submits that the trial judge made the same error discussed in para. 35 of R. v. McRae, 2013 SCC 68 mistaking motive for intent.

[6] In summary, the Crown appeal from the acquittal is that the trial judge:

• erred in law by misapprehending the evidence as it concerned the offence of uttering threats and the objective and subjective component of the offence and the application of the legal tests in light of the body of evidence; and

• demonstrated a reasonable apprehension of bias by making inquiries about resolution at the conclusion of the complainant's evidence in a trial with a self-represented individual and by asking questions of the complainant.

Factual Background

[7] At the time of the alleged events, the Xins lived in a family home in Ottawa. They were separated but continuing to live in the same household. Mr. Xin was living in the basement and Ms. Xin on the top level of the home. They were co-parenting their three children, who were aged 15, 12, and 10.

[8] Ms. Xin testified as the only witness in the case. She testified that on the day of the incident Mr. Xin was downstairs on the main floor arguing with their daughter about her not doing her homework.

[9] Ms. Xin was resting upstairs in her bedroom when she heard the Respondent come upstairs yelling at her about how the children do not listen to him and how it is all Ms. Xin's fault.

[10] Ms. Xin told the Respondent that the situation was not going to be improved by yelling and followed the Respondent back downstairs where he continued arguing with their daughter about not doing her homework.

[11] In reviewing the evidence, the trial judge noted that the children were present at this time and the Respondent was very upset. The trial judge noted that Ms. Xin reported the Respondent to have said: "This family is torn apart. Everyone will die. I'll burn the house down." The trial judge related that later in her evidence Ms. Xin described the words a bit differently.

[12] She said that the words were: "The family's torn apart. Everyone's gonna die. I'm gonna set the house on fire." She described the Respondent's voice as being very loud. She said the words made her feel angry and unsafe. She said she thought that if the Respondent was not calmed down, he might do those things, and she testified that the Respondent was aware that the house was of great value to her.

Legal Analysis

Issue #1: Did the trial judge misapprehend the evidence in respect of the offence of uttering threats?

The Applicable Law

[13] The Respondent is charged with the offence of uttering threats, provided for in s. 264.1(1)(a) of the Criminal Code:

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

[14] In R. v. McRae, 2013 SCC 68, at para. 9, the Supreme Court clarified the law relating to this offence, having previously addressed in R. v. McCraw, [1991] 3 S.C.R. 72, R. v. Clemente, [1994] 2 S.C.R. 758, and in R. v. O'Brien, 2013 SCC 2, [2013] 1 S.C.R. 7. The elements of the offence include: (1) the utterance or conveyance of a threat to cause death or bodily harm; and (2) an intent to threaten. The Court in McRae reviewed the law relating to each element:

(1) The Prohibited Act (Actus Reus)

The prohibited act of the offence is "the uttering of threats of death or serious bodily harm" (Clemente, at p. 763). The threats can be uttered, conveyed, or in any way caused to be received by any person. The question of whether words constitute a threat is a question of law to be decided on an objective standard. Justice Cory put it this way in McCraw:

The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. . . .

The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? McRae, at para 10.

[15] The Court in McRae noted that: "the starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete": at para. 11. However, the Court continued to note that:

[I]n some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s. 264.1(1)(a) (see, e.g., O'Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent (see, e.g., R. v. MacDonald (2002), 166 O.A.C. 121, where the words uttered were "You're next"). McRae, at para. 11.

For example, in R. v. Felteau, 2010 ONCA 821, the accused had told a mental health care worker that he was going to follow Ms. G, his former probation officer, and "assault" her (paras. 1-2). The trial judge concluded that the words did not constitute a threat because the threat must be of death or bodily harm and the accused's reference to "assault" did not necessarily include bodily harm (para. 3). The Court of Appeal for Ontario found that the trial judge had erred in looking at the word "assault" in isolation from the circumstances (para. 7). The court held that the factors relevant to the determination of the meaning of the words included the facts that: the accused was fixated upon Ms. G and had very recently been convicted of harassing her; he was angry with Ms. G when he uttered the words; he blamed her for his arrest and detention; and he was mentally unstable, had been consuming cocaine and had a known history of serious violence directed at women (para. 8). The Court of Appeal concluded that the accused's words, viewed in these circumstances, would convey a threat of bodily harm to a reasonable person. McRae, at para. 12.

[16] Therefore, the legal determination of whether the accused uttered a threat of death or bodily harm turns exclusively on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown is not required to prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously: Clemente, at p. 763; O'Brien, at para. 13; R. v. LeBlanc, [1989] 1 S.C.R. 1583 (confirming the trial judge's instruction that it was not necessary that "the person threatened be ever aware that the threat was made."). Further, the words do not have to be directed towards a specific person; a threat against an ascertained group of people is sufficient: R. v. Rémy (1993), 82 C.C.C. (3d) 176 (Que. C.A.), at p. 185, leave to appeal refused, [1993] 4 S.C.R. (threat against "police officers" generally); R. v. Upson, 2001 NSCA 89, 194 N.S.R. (2d) 87, at para. 31 (threat against "members of the black race" generally): McRae, at para 13.

[17] The reasonable person standard must be applied while considering the particular circumstances of a case. As the Court of Appeal for Ontario explained in R. v. Batista, 2008 ONCA 804, 238 C.C.C. (3d) 97:

An ordinary reasonable person considering an alleged threat objectively would be one informed of all the circumstances relevant to his or her determination. The characteristics of a reasonable person were considered by the Supreme Court of Canada in R. v. S. (R.D.), [1997] 3 S.C.R. 484 (S.C.C.), in the context of the test for bias. In that case, L'Heureux-Dubé and McLachlin JJ., at para. 36, described such a person as a:

reasonable, informed, practical and realistic person who considers the matter in some detail. . . . The person postulated is not a "very sensitive or scrupulous" person, but rather a right-minded person familiar with the circumstances of the case.

Similarly, in R. v. Collins, [1987] 1 S.C.R. 265 (S.C.C.), at p. 282, in the context of the test for bringing the administration of justice into disrepute, Lamer J. for the majority describes a reasonable person as "dispassionate and fully apprised of the circumstances of the case": see also R. v. Burlingham, [1995] 2 S.C.R. 206 (S.C.C.), at para. 71.

It follows that a reasonable person considering whether the impugned words amount to a threat at law is one who is objective, fully-informed, right-minded, dispassionate, practical and realistic. McRae, at para. 14.

(2) The Fault Element (Mens Rea)

[18] The court in McRae states that: "[t]he fault element is made out if it is shown that threatening words uttered or conveyed "were meant to intimidate or to be taken seriously": at para. 17.

[19] Cromwell and Karakatsanis JJ noted that:

It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient (Clemente, at p. 763) or that the accused intended to carry out the threat (McCraw, at p. 82). Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously (see, e.g., Clemente, at p. 763; O'Brien, at para. 7.)

The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, the decision about what the accused actually intended may depend on inferences drawn from all of the circumstances (see, e.g., McCraw, at p. 82). Drawing these inferences is not a departure from the subjective standard of fault. In R. v. Hundal, [1993] 1 S.C.R. 867, Justice Cory cites the following words from Professor Stuart which explain this point:

In trying to ascertain what was going on in the accused's mind, as the subjective approach demands, the trier of fact may draw reasonable inferences from the accused's actions or words at the time of his act or in the witness box. The accused may or may not be believed. To conclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused "must" have thought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur if the reasoning became that the accused "must have realized it if he had thought about it". McRae, at paras. 18, 19.

[20] The Court continued, citing O'Brien and Noble as examples:

The person targeted by the threat ― the accused's ex-girlfriend ― had testified that she had not been frightened by the accused's words. The trial judge strongly relied on this evidence to conclude that, despite the fact that the words on their own appeared threatening, she was left with a reasonable doubt as to whether the accused had the necessary intent to threaten (R. v. O'Brien 2012 MBCA 6, 275 Man. R. (2d) 144, at para. 34). The perception of the alleged victim was not directly in issue, but was relevant evidence of the accused's intent.

Similarly, in Noble, the court had to determine if the accused intended to be taken seriously when he uttered the words "I guess we know whose house is going to burn down", immediately followed by "just kidding" and laughter (trial decision, at para. 1). The accused had uttered the words to a sheriff's officer as he was returning to prison from court after having been sentenced for threatening to kill the Crown attorney who had successfully prosecuted him for robbery. The trial judge found that in spite of the remark's off-the-cuff nature and the absence of any indication that the accused was angry or upset when he uttered the words, when viewed in the larger context, the accused was aware that his words, which were very specific, would be taken seriously as a threat against that same Crown attorney (paras. 33-35). After the first time the accused had threatened the Crown attorney, she had been the victim of an attempted home invasion. Although it was not alleged that the accused was involved, he told the media that the Crown attorney had gotten what she deserved. After she was made aware of the accused's reference to a house burning, the Crown attorney took the comment seriously and was very frightened by it. As a result, she and her partner sold their house (trial decision, at paras. 2-19). In addition to the Crown attorney's reaction to the threats, the fact that the accused knew that criminal sanctions flowed from threatening language, as a result of having just been sentenced to two years' imprisonment for uttering threats, was also an important factor with regard to the fault element in this case (para. 34). The trial judge concluded that the words might "have been blurted out on the spur of the moment, or driven by bravado, but given all the circumstances . . . the evidence demonstrate[d] that the accused was aware that it would be taken seriously."

The Court of Appeal for Manitoba confirmed the factual findings of the trial judge, specifically the contextual analysis she undertook with regard to the fault element. McRae, at para. 20-23.

[21] As Doherty J.A pointed out in R v. Morrissey (1995), 22 OR (3d) 514 (ON CA), submissions premised on an alleged misapprehension of evidence are commonplace in cases tried by a judge sitting without a jury. A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. In this case, the Appellant argues that the trial judge failed to give proper effect to the evidence.

[22] In Morrissey, the court found that the errors alleged figured prominently in the reasoning process which led to crucial findings of credibility and reliability and then to crucial findings of fact.

[23] I am not convinced that the trial judge misapprehended the evidence in this case.

[24] The trial judge engaged in a careful review of the evidence of the complainant as follows:

In her testimony she provided some further clarification for what she meant by what was happening in these moments. She testified that you (the Respondent) appeared to have lost hope and expectation for the kids and you were worried that they would not have a good future because they were not working. And this was very upsetting to you. She testified that the kids' study habits and your parenting style and pressuring them to achieve in school was a frequent source of argument between the two of you. When asked why she called the police in this case she said she wanted to give you a warning and teach you a lesson.

[25] The trial judge said that it was pretty clear from her evidence near the end of her testimony that she looked to the involvement of the police as a way of having the Respondent alter his parenting style.

[26] The trial judge also indicated that he listened very carefully to the evidence of the complainant. He indicated that he asked her a series of questions given that the Respondent was self-represented, to help ensure that he fully understood her testimony. He found her to be "an honest, thoughtful and compelling witness." He found she gave very careful answers in cross-examination and that it was clear to the court that she was doing her best to be fair to the Respondent in providing her evidence. In reviewing the evidence, the trial judge pointed out that the complainant agreed in her cross-examination and expanded upon this in re-examination that arguments between the Xins would be heated. They would both get angry during those arguments, both would raise their voices and both would say things they did not mean.

[27] He quoted the complainant: "I have to say, yeah, most of the time when we're angry we just want to vent the feeling and we don't really mean we're gonna do it. He will say he will kill me, I will say I will kill you but these were arguments which have been going on for years."

[28] The trial judge said he accepted the truth of what the complainant said about the words used by the Respondent and about the history of how those kinds of arguments would unfold and she was not meaningfully impeached in cross-examination on the words used by the Respondent or the gist of the words he used. The trial judge noted that it is not a question in this case as to what the Respondent said, but objectively how those words should be interpreted and subjectively whether the Respondent meant to intimidate his wife or had those words taken seriously.

[29] The trial judge also correctly articulated the test to determine whether the Crown had proven the elements of uttering a threat beyond a reasonable doubt as set out in R v. McRae. He said:

The first part is the act itself, I have to consider whether objectively in the context of all the words that you spoke and having regards to who you spoke the words to, would a reasonable person consider that you conveyed a threat. The Crown does not need to prove that your wife was intimidated by that threat, or took it seriously.

[30] The trial judge pointed out that the question is what a reasonable, informed, practical and realistic person who considers the matter in some detail would conclude from those words. He noted that the reasonable person is not an overly sensitive person, but rather a right-minded person who is familiar with all the circumstances of the case. Someone who is objective, informed, dispassionate practical and realistic. The court noted that he could consider the opinions of the people who were there at the time, namely the Respondent's wife, but that is not determinative.

[31] The Crown herself conceded that the complainant did not believe that the Respondent would carry out the threat. This was illustrated in the below exchange:

In her submissions to the trial judge, the trial Crown said: "It is a regrettable reality of this case that Ms. Xin testified that she did not believe Mr. Xin would carry out the threat."

The Court asked; What do you mean regrettable?

The trial Crown responded that it "is a reality of this case, I guess I should have said Your Honour.

[32] Ultimately, the Crown submits that this is a circumstance of the state of their relationship in 2023 as separated spouses living under the same roof and co-parenting their three children. By Ms. Xin's own testimony, she believed the threats to be commonplace, citing a situation where Mr. Xin would tell her that he would kill her and she would reply that she would kill him in kind. In this circumstance, with a threat to burn down a residence shared by Mr. Xin, Ms. Xin and their children.

[33] The Crown submits that a reasonable person would have taken that as a threat." The Crown pointed out that in its view, the words spoken by Mr. Xin were intended to spark action in Ms. Xin, as they were borne from the context of a disagreement between Mr. Xin and their daughter, for which he blames Ms. Xin's parenting style."

[34] The trial judge considered the matter overnight and rendered his decision the next day.

[35] The trial judge indicated that it was clear on the evidence before him that at least to some extent, Ms. Xin took the words as a real threat because she called police. However, he noted that this was not the full explanation for why she called the police. He concluded that the primary driver of her decision to call the police was to have the police give the Respondent a lesson that he needed to back off on the unrelenting pressure he applied to the children about their school work. The trial judge indicated that Ms. Xin was very fair in describing how the two of them vented their anger and frustration at times in circumstances where neither of them really mean the words that were said.

[36] He noted that in his view, most reasonable people furnished with the information that the complainant provided to the court about the manner in which the couple argued, their history over the years of saying words that were angry words but not seriously intended to intimidate or threaten harm, would, at the end of the day, wonder whether in the circumstances of this case, the Respondent was, actually uttering a threat to burn down the house as opposed to simply expressing frustration with the children.

[37] The trial judge said he was not particularly satisfied on the evidence that the Crown had proven beyond a reasonable doubt that a reasonable person would necessarily conclude that the Respondent was actually threatening to burn down the residence.

[38] However, as the trial judge pointed out, even if he was wrong in that regard, the Crown had not satisfied him of the subjective element of the offence, that is, whether the words that the Respondent uttered to his wife were meant to intimidate or be taken seriously.

[39] The trial judge pointed out that in considering that element of the offence he had to consider the circumstances as a whole, including the words that the Respondent used, the context in which they were uttered and the Respondent's state of mind at the time that he uttered those words. The trial judge noted that what was actually intended depends on the inferences drawn from all the circumstances.

[40] The trial judge carefully set out the relevant circumstances as he found them:

• The Respondent made the comments in circumstances where he was clearly frustrated with his children, specifically his daughter for not doing her school work as directed by him.

• Commonly, the Respondent and his wife when angry or frustrated would say things they did not actually mean. They would say things not because they meant them, but to vent their feelings.

• It was commonplace in the relationship to vent in a fashion like this where the comments were not meant to be taken seriously or intimidate the other, but rather express frustrations.

• It may well have been that in saying these words the Respondent intended to prey upon his wife's fears about the home and being aware of its value to her, however the court was not convinced that was actually the case at the moment.

[41] The circumstances as a whole left the trial judge with a reasonable doubt as to whether the Respondent's threats were meant to intimidate or be taken seriously by his family. The trial judge found it was far more likely that these were poorly chosen words in a brief moment of time where the Respondent was only seeking to express his frustration and lacked the tools to do any better with his word selection. The trial judge was not satisfied beyond a reasonable doubt that he intended to intimidate or convey a serious threat, but rather wished to express his exasperation with the circumstances.

[42] In my view, it was open to the trial judge to find that, objectively, a reasonable person fully aware of the words spoken and the context in which they were spoken would not find that the threat was intended to be taken seriously. Further, it was also open to him to conclude that he was not satisfied beyond a reasonable doubt that Respondent intended to threaten the complainant within the context of the findings of fact that he made, which were open to him.

Reasonable Apprehension of Bias

[43] The Appellant also submits that the trial judge's conduct in this trial, by questioning the complainant and querying whether the matter could be resolved, gave rise to a reasonable apprehension of bias in this case.

[44] The principles relating to analysis as to whether a reasonable apprehension of bias exists begin from the presumption of the integrity of judicial decision makers, a presumption that can only be overcome by cogent evidence. R. v. Richards, 2017 ONCA 43, at para. 43, citing R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 117. The presumption is one of the primary rationales for the threshold to establish a successful allegation of actual or apprehended bias is a high bar.

[45] The presumption of judicial integrity does not relieve a judge from their sworn duty to be impartial: S. (R.D.); at para. 117.

[46] Although the threshold for a successful claim of actual or apprehended bias is high, it is not insurmountable. The presumption of judicial integrity can be displaced by cogent evidence that demonstrates that something that the judge said or did gives rise to a reasonable apprehension of bias: Richards, at para. 45, citing S. (R.D.); at para. 117.

[47] Allegations of reasonable apprehension of bias are entirely fact-specific: Richards, at para. 47, S. (R.D.); at para. 136.

[48] The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining the required information about it. The test is: "What would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude": Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at p. 394; Richards, at para 48.

[49] The test to determine whether there is a reasonable apprehension of bias has a two-fold objective element:

The person considering the alleged bias must be reasonable. And the apprehension of bias must also be reasonable in all the circumstances of the case. The reasonable person must be informed, impressed with the knowledge of all the circumstances, including the traditions of integrity and impartiality that form a part of the background and cognizant of the fact that impartiality is one of the duties judges swear to uphold: Richards, at para. 49; S. (R.D.), at para. 111.

[50] Bias represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction: Richards, at para. 53.

Questioning by the Trial Judge

[51] In considering whether a reasonable apprehension of bias existed or not, the context of the case and the conduct of the judge throughout the case must be looked at. In this case, the Respondent was self-represented. While s. 486 counsel was appointed to conduct the cross-examination of Ms. Xin, counsel informed the court that Mr. Xin's position had been that he did not wish to discuss the allegations with s. 486 counsel. Counsel indicated that he explained to him the role of s. 486 counsel and the role that it would serve in advancing his defence. The Respondent maintained that he did not wish to share his version of events with counsel. Counsel indicated that he was limited in the assistance that he could provide to the Respondent in terms of fulfilling his mandate to the court.

[52] The Court explained to the Respondent that the purpose of s. 486 counsel was to ensure that the Respondent had a fair trial and that it was "absolutely and unequivocally" in his best interests to instruct s. 486 counsel.

[53] The court asked him if he wished to reconsider his position and he said that there was no need and he could defend himself. He was aware he would not be able to ask the complainant any questions. He later asked if it would be possible for him to make a declaration about the situation and the court advised him he would not, but would be given an opportunity later in the trial to lead evidence if he chose to do so. Later in the trial, the Respondent relented and was briefly met with s. 486 counsel prior to the cross-examination of the complainant. Mr. Howard conducted a brief cross-examination, however, there were areas which were not covered in Mr. Howard's cross-examination, which the court later clarified with the complainant.

[54] A trial judge dealing with a self-represented litigant faces a most unenviable task. It has been described by one court as walking a tightrope without a safety net. The trial judge has a duty to ensure that the self-represented litigant has a fair trial. On the other hand, the trial judge must not go so far as to favour, or appear to favour, one party over another in the litigation.

[55] The Ontario Court of Appeal has recently dealt with the issue of when a trial judge has gone too far in questioning a witness. See: R. v. Walton, 2025 ONCA 368.

[56] The court in R. v. Stucky, 2009 ONCA 151, pointed out that the trial judge may ask questions that should have been asked by counsel, but must not usurp counsel's role. The judge must not leave his or her position of neutrality as a fact-finder and become the cross examiner: at para. 65.

[57] In Walton, the Court stated that:

• The trial judge is duty-bound to exercise restraint and remain neutral to promote both the fairness of the trial and the appearance of fairness: at para. 22;

• A trial judge is permitted to intervene where doing so is essential to ensure justice is done in both substance and appearance: at para. 22;

• A trial judge is entitled to and must manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides, and to witnesses: at para. 22;

• Although the trial judge may ask questions which should have been asked by counsel, the trial judge must not usurp counsel's role. The judge must not "leave his or her position of neutrality as a fact-finder and become the cross-examiner": at para. 25;

• When a 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: at para. 25.

[58] A trial judge may ask questions of a witness where it is necessary to clear up ambiguities and call a witness to order; to explore some matter which the witnesses' answer 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: R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at para. 53.

Questions Actually Asked by the Trial Judge

[59] At the conclusion of the cross-examination and re-examination of the complainant, the trial judge asked questions of her regarding her relationship with the Respondent and their different parenting styles. The trial judge indicated he wished to get a real picture of what was going on in the household. The trial judge asked whether the complainant felt the Respondent was blowing off steam, or whether she felt he meant to be taken seriously. The complainant said she knew the Respondent would not kill the kids, but she knew that if she called police the society would become involved, a social worker would become involved and so that the Respondent would not continue to push the kids so hard.

[60] The trial judge clarified by saying, your fear is the pressure he's putting on the kids to succeed. The complainant responded that her son was in Grade 3 and doing Grade 7 work.

[61] The other question the trial judge had related to co-parenting, and the complainant's willingness to co-parent with the Respondent. He asked if that is why she continued to live in the home with the Respondent.

[62] She responded that the Respondent was a good father and that he teaches the children and takes good care of the house and the children's lives. She said she had no argument about that.

[63] The trial judge pointed out that this was a lot more questions than he usually asked, and it was because Mr. Xin was representing himself.

Analysis

[64] In my view, the questions asked by the trial judge were of the type contemplated as being permissible in Valley. The trial judge asked questions which should have been asked by counsel, but which were not, perhaps due to the fact that the Respondent did not communicate his defence to s. 486 counsel until mid-trial, and then for only a brief period of time before the trial resumed. The questions were also asked to clear up ambiguities in the evidence relating to co-parenting, the complainant's willingness to co-parent, and the fact that she called police hoping that the society, which I am inferring she means the Childrens Aid Society, would assign a social worker so that the Respondent would have to stop pressuring the children to excel academically. Neither counsel wished to ask additional questions at the conclusion of the trial judge's questioning of the complainant.

The Trial Judge Wonders Aloud if the Matter Can Be Resolved

[65] At the conclusion of the complainant's evidence, the trial judge remarked that he could not help but wonder if there was some other way of dealing with the case. He indicated that he did not know if the Respondent would be willing to enter into a s. 810 peace bond if the Crown were to see fit to offer it. He encouraged the parties to give some thought to this potential resolution to the trial.

[66] Mr. Howard pointed out that a peace bond may be problematic, given the nature of Mr. Xin's employment.

[67] The trial judge indicated that it always remains an option even if the Crown were to invite him to dismiss the charges, to consider a shorter common-law peace bond which does not show up on CPIC.

[68] The trial judge said he recognized that there had been 18 months since the charges and he was only trying to encourage some sort of resolution.

[69] After the break the Crown brought an application seeking that the trial judge recuse himself. The Crown asked the trial judge to recuse himself, by stating that the court had issued an invitation for the Crown to ask that the charges be dismissed, and then making a further suggestion of a common-law peace bond. The Crown pointed out that it had yet to make submissions on the merits of the case and had in fact intended to call a further witness in the case (the officer in charge). The Crown did not ask the trial judge to recuse himself on the basis of the questions he had asked the complainant.

[70] The trial judge responded that the Crown was welcome to call a further witness. The court said that it asked the Crown to consider over the lunch break the evidence that they had just heard from the Crown's first witness, who is the principal witness in the case, as he understood from the Crown's brief opening. The judge said that he doubted very much that the detective in this case was there for the events that the witness testified to. He pointed out that pragmatism remained an important principle, and by that he meant that the Crown must always assess their case as the case continues.

[71] One of these responsibilities, he said, was to continually assess all options under the Criminal Code and the common law when looking at their case, including the availability of other dispositions. The trial judge said he certainly did not invite the Crown to dismiss their case, but was simply ensuring that all parties were aware of the available dispositions under both the criminal law and the common law when considering potential resolution of the matter. He said:

"[I]f it is the Crown's view that this is a matter that's not appropriate for resolution, are they still---because they know their case better than I do, maintain a reasonable prospect of conviction and consider that it is in the public interest to continue in this case, then I most certainly invite the Crown to continue calling its evidence. And at the conclusion of the all the evidence in the case, I'll hear submissions."

[72] The Crown then requested that the date on the information be amended to conform with the date that the events are alleged to have taken place according to the evidence of the complainant. This was done.

[73] The Crown then closed its case. The trial judge asked the Crown whether she had not just submitted to the court that she had further evidence to call.

[74] The Crown responded by saying that she had initially intended to call another witness, but she no longer had that intention.

[75] The trial judge said: "So in the last two minutes since you made the representation to me that you have further evidence to call, you are no longer in a position where you are calling that evidence." The Crown responded that she was not seeking to call any further evidence.

[76] The trial judge asked her whether it was by virtue of the amendment that she did not need to call further evidence, to which she responded, "substantially yes."

Did the Trial Judge's Comments Give Rise to a Reasonable Apprehension of Bias?

Guiding Principles

[77] A trial judge has a duty to ensure that the self-represented litigant has a fair trial.

[78] As a self-represented litigant, the Respondent would not have had the legal knowledge required to ask the Crown about a possible resolution of the matter for a s. 810 peace bond, or a common law peace bond.

[79] While a trial judge cannot act as a lawyer would, the trial judge was obligated to provide guidance to the Respondent to the extent the circumstances of the case and accused may require. Within reason, the trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect.

[80] The onus on the trial judge to assist the self-represented accused is a heavy one. The characterization means that it is not enough that the verdict at the end of the trial is or appears correct. What matters is whether the trial has been fair to the self-represented accused. R v. Dimmock (1996), 47 C.R. (4th) 120 (B.C.C.A.), at para. 20; Richards, at para. 112.

[81] The trial judge in this case was put in a very difficult position. He carried a heavy onus to assist the self-represented accused in terms of the procedures to be followed in the court room, including whether a possible resolution may be possible. On the other hand, he also had to maintain a duty of impartiality.

[82] I am not satisfied that a reasonable person, fully aware of the circumstances of this case, involving a self-represented litigant would find that the comments by the trial judge gave rise to a reasonable apprehension of bias. The comment about a potential resolution was made as the trial judge navigated a difficult course involving his role as a gatekeeper, and his duty to provide assistance to a self-represented litigant, while remaining impartial. In my view, a reasonable person fully apprised of all the facts in this case would not find that the questioning of the complainant, nor the comment made by the trial judge gave rise to a reasonable apprehension of bias.

[83] For these reasons the appeal is dismissed.

Released: October 15, 2025

Anne London-Weinstein J.