A fair trial is not a judicial inquest. In the Canadian adversarial system trial judges do not conduct inquiries on behalf of society at large. Although trial judges may assert trial management authority they must not descend into the arena and enter the fray. The Saskatchewan Court of Appeal has recently ordered a new trial in a case where an interventionist trial judge compromised the duty of judicial impartiality and deprived an indigenous man of a fair trial.

1. Introduction

On June 7, 2023, an alcohol-fueled street fight erupted near the hospital in sleepy Rosthern, Saskatchewan. The Lafontaine brothers, Steven and Elliott, were stabbed during the brawl. The police charged a One Arrow First Nation man, Keith Michael John, with two counts of aggravated assault and carrying a weapon for a dangerous purpose. On January 15, 2016, he was convicted by Judge Brenton Klause of the Provincial Court of Saskatchewan on all counts. (here) On March 14, 2018, Judge Klause designated Mr. John a dangerous offender and sentenced him to an indeterminate period of imprisonment. (here) On October 25, 2023, the Saskatchewan Court of Appeal quashed the convictions and ordered a new trial in a chilly rebuke of the conduct of the trial judge. (here) “The trial judge exceeded his role, interfered with the trial, and thus rendered it unfair,” said Justice Meghan McCreary for the unanimous panel. The case, then, presents an opportunity to discuss the fundamental principles governing the conduct of trials at common law and the overarching right of all Canadians to a fair trial under s. 11(d) of the Charter of Rights and Freedoms.

2. The Limits of the Judicial Function

It is not controversial that in an adversarial justice system the opposing parties present evidence and argument while the trial judge (or a judge and jury) presides as “an objective decision-maker.” (here) In a criminal trial, the defendant is entitled to the presumption of innocence and the prosecutor has the burden of proving guilt beyond a reasonable doubt. The adversarial nature of a trial at common law has been consistently affirmed by the Canadian judiciary as “[t]he bedrock of our jurisprudence”, “a fundamental tenet of our legal system” and “a principle of fundamental justice.” (here, here and here) Although a trial judge’s role is that of a “listener”, he or she may intervene to clarify a witness’ answer in direct or cross-examination, to resolve a misunderstanding of the testimony, to correct inappropriate conduct by counsel or witnesses and to otherwise ensure a fair trial. (here and here) However, the exercise of “trial management” powers must be done with restraint and not undermine the functions of counsel or disrupt counsel’s trial strategy. As the Alberta Court of Appeal said in R. v. Oracz, a trial judge must not “descend into the arena” or “enter the fray.” (here)

The appearance of trial fairness is undermined when a trial judge has overstepped the limits of the judicial function by intervening in the trial to an unwarranted degree. The question for an appellate court, then, is whether a “reasonably minded person” who had been present for the trial would consider that the defendant did not have a fair trial. In R. v. Schmaltz, the Alberta Court of Appeal specifically considered the principles governing judicial intervention in defence counsel’s cross-examination of Crown witnesses and emphasized that a trial judge must not intervene in a way that undermines the function of counsel, frustrates counsel’s strategy or makes it impossible to present the defence or test the evidence of Crown witnesses. (here) Justice McCreary not only concluded that “the cumulative effect of the trial judge’s commentary and interventions” violated the Schmaltz guardrails but “made him appear to be acting as an advocate for the Crown or to be protecting a Crown witness, thereby eroding the appearance of a fair trial.” In reaching that conclusion, Justice McCreary reviewed eleven instances where the trial judge breached the limits of the judicial function. I will address six of them.

3. The Trial Judge’s Interventions

On the following six occasions the trial judge’s conduct either compromised the duty of impartiality or assisted in the proof of the prosecution’s case, or both. It is important to emphasize that the test on appellate review is not whether the trial judge was not impartial, in fact, or whether the defendant was prejudiced by the trial judge’s interventions. The test is whether a “reasonably minded person” would consider that the trial was not a fair one. Justice McCreary’s consideration of the trial judge’s conduct is therefore couched in the language of the test – was there a reasonably created perception that the appearance of neutrality was compromised? “The necessity of ensuring a fair trial is what governs the appellate inquiry,” she said. “The trial must be perceived by all concerned to have been conducted fairly and impartially.”

• In the context of the trial judge’s decision on a voir dire respecting the admissibility of a statement Mr. John made to the police, the trial judge said, “I just don’t feel there’s any evidence before me that the defendant felt threatened or induced or promised. There just isn’t a scrap of that. He is a remarkably sophisticated individual on the video. He knows how to play the system. He played strategically which is what he’s in fact doing today as far as I’m concerned.” Justice McCreary concluded that “[t]he trial judge’s expression of a negative opinion about what motivated Mr. John to challenge voluntariness eroded the appearance of neutrality. The trial judge’s statement implies that, before the Crown’s case was complete and the verdict was delivered, he had already formed an adverse view of Mr. John’s character and motivations. This obviously detracted from the trial judge’s obligation to be seen as an impartial arbiter. (para. 26)
• During direct examination of the complainant, Elliott Lafontaine, the trial judge interjected to ask questions about whether the weapon used to attack him was metal or plastic, whether his wounds were “scratches” or “stabs”, and about the number of staples required to treat his wounds. Justice McCreary concluded, “While these were legitimate questions for the Crown to ask, coming from the trial judge, one could reasonably perceive that this line of questioning assisted the Crown to prove the wounding, maiming or disfiguring elements of the charge of aggravated assault.” (para. 27)
• During direct examination of the complainant, Steven Lafontaine, the trial judge interjected and asked him to identify who said “Stab him one more time” during the fight. Then, during cross-examination, the trial judge asked Mr. Lafontaine whether he had been intimidated, “[I]f anyone threatens you […] or says anything or gives you the stink eye or anything I want you to report it to Mr. Bains [the Crown prosecutor] or myself and we’ll do something about that, okay?” Justice McCreary held that the first question “could reasonably be perceived as assisting the Crown” and the subsequent commentary, “reasonably created a perception that the trial judge was aligned with the Crown because he had suggested to the witness that he and the Crown, together, would protect the witness.” (para. 28)
• At the conclusion of his testimony, Steven Lafontaine asked the trial judge if he could be reimbursed for lost wages and medical bills. The trial judge responded by first referring the witness to the Saskatchewan Crimes Compensation Board and then suggesting he could sue Mr. John. Justice McCreary concluded that these comments, “implied that Mr. John was, in fact, responsible for Steven Lafontaine’s injuries, which was exactly what the criminal trial was to determine.” The extemporaneous comments, “left the impression that he was not impartial and created a reasonable perception that he had already decided Mr. John’s guilt”. (para. 29)
• A Crown witness, Gilbert Muskego, was recalled after his initial testimony was concluded. The trial judge interjected and asked Mr. Muskego about letters his sister received from Mr. John. Defence counsel raised a hearsay objection but the trial judge insisted, “It might be hearsay but I want to hear about [it]. If there’s witness tampering on here […]”. Mr. Muskego said he felt “scared” because Mr. John “was sending my sister letters with his blood.” The trial judge indicated he would direct the police to investigate whether Crown witnesses were tampered with. The trial judge said, “I will be directing or asking the RCMP to investigate the complaint outlined by Mr. Muskego in terms of witness tampering which I take an extremely dim view of.” Justice McCreary held the trial judge’s comments threatened the “perception” of his neutrality. “To the reasonable observer, it could be inferred that the trial judge had the authority to direct the RCMP to investigate criminal offences and that he believed an offence might have been committed by those connected to Mr. John,” she said. “This conduct made the trial judge appear to be aligned with the Crown.” (paras. 31-34)
• During the following cross-examination of Mr. Muskego, defence counsel established that he lied in his earlier testimony. The trial judge then interjected with a series of questions that “went well beyond seeking clarification” and were designed to rehabilitate Mr. Muskego’s “previously eroded credibility”. Justice McCreary found, “This intervention was particularly problematic because the Crown witnesses’ credibility and the reliability of their evidence were key to the issue of identification, which was the sole question at this trial.” (paras. 36-39)

Justice McCreary concluded that, taken cumulatively, the interventions of the trial judge negatively affected the fairness of the trial. Although the interventions may be less corrosive of trial fairness when taken in isolation, they would lead a reasonably minded person to conclude the defendant did not have a fair trial when assessed cumulatively. The cumulative impact also involved consideration of other interjections by the trial judge that I have not discussed which “plainly interfered with the defence strategy” and “could be taken as being disdainful of that strategy.” (paras. 25 and 30) Justice McCreary held that a significant portion of the trial judge’s interjections served no purpose other than to detract from witnesses giving their own evidence in direct examination and to rehabilitate a witness’ credibility after defence counsel had successfully eroded it. A new trial was thus ordered and it was not necessary to consider the dangerous offender designation raised by the sentence appeal.

4. Conclusion

The Canadian justice system does not condone the conduct of a trial judge who acts as an independent investigator conducting an inquiry on behalf of society at large. The task of choosing the evidence to present during a trial is that of the parties. The examination of witnesses, with very limited exceptions, is the job of the lawyers. It is counsel’s task, not the trial judge’s, to explore inconsistencies in a witness’ testimony. So too is the introduction of exhibits and the conduct of argument. Speaking broadly, a trial judge must be specifically cautious about interjecting in the presentation of the defence case. The defendant has a constitutional right under s. 7  of the Charter to make full answer and defence that necessarily implicates the choice of defence and the evidence called to support it.