On January 17, 2012, Kimani Crawford was hanging out with a friend when they met up with Kevin Anderson. Anderson robbed a teenager of money which they used to buy liquor. They drank until four o’clock in the morning when Anderson decided to make a surprise visit to his girlfriend. He suspected her of infidelity. It was a balmy winter night with the temperature hovering around -30C. They came upon an empty car idling in a lane way. They took the car but it stalled. They set out on foot again and found another car occupied by the driver. Anderson drew an unloaded pellet gun and told the driver to get out. The three men then drove away.

They didn’t get far. The police quickly located the vehicle with the assistance of the “OnStar GPS” system. Crawford and Anderson were still in the car. Crawford tried to flee but was quickly caught. The pellet gun was found in the vehicle with Anderson. Crawford was charged as an accomplice to the armed robbery committed by Anderson under s. 344(1)(a.1) of the Criminal Code.

Crawford elected to be tried by a judge of the Provincial Court of Alberta without a jury. Two issues arose at the trial before Judge Cheryl L. Daniel. First, Crawford testified to advance a defence of duress. Judge Daniel rejected his evidence on that issue. Second, the pellet gun was not operable as it was missing pellets, a CO2 canister and a magazine with ammunition. A firearms expert testified that when those items were added to the gun, it could discharge a pellet of sufficient velocity to cause serious bodily harm and thus fulfill the definition of a firearm under s. 2 of the Criminal Code. Although the pellet gun could not function at the time of the robbery, Judge Daniel found that it was a firearm as defined in law. Crawford was convicted. He appealed.

On May 21, 2015, the Alberta Court of Appeal released its Memorandum of Judgment reported as R. v. Crawford, 2015 ABCA 175, [2015] A.J. No. 552 unanimously setting aside the conviction and ordering a new trial. Justice P.W.L. Martin allowed the appeal due to the number and nature of Judge Daniel’s interventions in the examination of witnesses which breached Crawford’s right to a fair trial. He also considered, without having to decide the point, the firearm definition issue and concluded as follows, at paras. 36-7:

“…[T]he absence of a magazine to hold the pellets, which the expert said was essential to load the gun, and a functioning CO2 canister rendered the weapon inoperable as a firearm, and without those items it could not be made operable during the commission of the offence or flight therefrom. I note that at the time of their arrest (a half hour after the offence, at 5:30 in the morning), the appellant and Anderson had already fled the scene and still did not have the missing pieces. Even if I am wrong in finding the missing magazine significant, the missing CO2 canister would lead me to the same conclusion: this pellet pistol did not qualify as a firearm.

Therefore, in my opinion, as the weapon was not capable of being loaded and fired during the commission of the offence or flight therefrom, the trial judge erred in finding that it was nonetheless a firearm as defined in s. 2 of the Criminal Code. My conclusion is consistent with the decision of the Ontario Court of Appeal in R v Smith, 2008 ONCA 151, 76 WCR (2d) 635, where the weapon, a rifle, used in three robberies was missing a breech bolt without which it could not be fired. There being no evidence that a breech bolt was available ‘on the scene’, the court overturned the trial judge’s finding that the weapon was a firearm: at para. 5.”

The judicial misconduct issue raised a question of fundamental law governing the conduct of trials at common law. Trials in Canada are based on the adversarial model. The role of the trial judge in the adversarial system is that of dispassionate arbiter. He or she acts as an umpire to decide questions of law, resolve issues about the admissibility of evidence and either charges the jury or functions as trier of fact in non-jury cases. The conduct of the trial, the presentation of evidence and the examination of witnesses are the function of the lawyers for the respective parties. In this case, the lawyers were Crown counsel (the prosecutor) and Crawford’s lawyer (defence counsel). It is not the function of the trial judge, in cases either with or without a jury, to conduct an inquiry on behalf of society at large. When judges abandon the role of arbiter and descend into the arena by examining witnesses, they compromise their independence, take on the appearance of favouring one side over the other and, in extreme cases, may undermine the integrity of the justice system.

The core of the issue in this case involved the examination of Crown and defence witnesses by the trial judge. As part of the Factum of the Appellant (written brief of argument), the Court of Appeal was provided with a catalogue of illustrations in support of the complaint that Judge Daniel’s interruptions rendered the trial unfair. Before reviewing four egregious examples, Justice Martin began his analysis with this summary of the role of the trial judge, at para. 7:

“All understand that ours is an adversarial system requiring adjudication by a judge who is, and must be seen to be, impartial: Bizon v Bizon, 2014 ABCA 174 at para 33, [2014] 7 WWR 713. That fundamental requirement is not compromised by questions from the court to any witness directed at clarifying a point or repeating part of an answer that was unheard: R v Schmaltz, 2015 ABCA 4 at para 19, [2015] AWLD 573. It is also not compromised by judicial intervention aimed at maintaining control of the court process, avoiding irrelevant or repetitious evidence, and ensuring that the witness is answering the question: R v Hamilton, 2011 ONCA 399 at paras 47-48, 271 CCC (3d) 208. Such interventions, where warranted, are appropriate. But there will be few other occasions during a trial where the accused is represented by counsel that a judge may question a witness without creating the impression that he or she is entering the fray and leaving judicial impartiality behind.”

Justice Martin then affirmed the “well recognized and universally applied” test set out in R. v. Valley (1986), 13 O.A.C. 89, 26 C.C.C. (3d) 207 (Ont. C.A.) where Martin J.A. stated, at para. 5:

“Interventions by the judge creating the appearance of an unfair trial may be of more than one type and the appearance of a fair trial may be destroyed by a combination of different types of intervention. 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: see R. v. Brouillard, supra; R. v. Racz, [1961] N.Z.L.R. 227 (C.A.).”

After noting the “many” interventions by Judge Daniel, four in particular were emphasized, at para. 17, which may be summarized as follows:

• During defence counsel’s cross-examination of a police officer, Judge Daniel tipped off the prosecutor that the Crown’s case had “a chain of evidence problem”.
• During cross-examination of one of the arresting police officers, it became apparent that the defendants jackets’ were “mixed up”. The officer had written in his notes that one jacket was orange. After Judge Daniel suggested that “you’re colour-blind” or “getting the jackets confused”, the officer said the jacket was black.
• Judge Daniel joined in Crown counsel’s cross-examination of Crawford on the defence of duress with this question geared to undermine his credibility: “You never tried to run out of the vehicle into the gas station and tell anyone of your fears at this point?”
• At the close of Crown counsel’s cross-examination of Crawford, Judge Daniel embarked on a lengthy cross-examination that brought up details of a robbery that was not the subject of the charge before the court.

After reviewing these passages of the trial record, Justice Martin reached the following conclusions, at paras. 18 and 22:

“Some of the interjections referred to by the appellant, while perhaps unfortunate, would not, standing alone, merit appellate intervention. Others, such as the trial judge’s cross-examination of the appellant on an unrelated matter, on which the Crown and defence counsel declined to examine the appellant, even when invited to do so, are of particular concern. That examination introduced details of a crime that was not the subject of the charge and which, in the opinion of Crown and defence, was irrelevant to the issues to be decided. I am similarly concerned about the trial judge’s cross-examination of the appellant during the re-direct examination of defence counsel. Finally, there is the cumulative effect of the trial judge’s interventions.

In conclusion, I find the trial judge did enter into the fray and, in the process, asked questions which were helpful to the Crown, other questions which directly challenged the credibility of the appellant, and still others regarding an offence (another robbery) committed by Anderson while the appellant watched. The cumulative effect of this judicial examination undermined the appearance of a fair trial, and for that reason I would allow the appeal and direct a new trial.”

So, what is the takeaway here? It is obvious from the record that Judge Daniel entered the arena as prosecutor in violation of one of the most basic rules of trial fairness – that a trial judge must never be seen to favour one side over the other. But how does one handle that as a criminal defence lawyer? Justice Martin was sensitive to the reality of the court room when he observed, at para. 20, that objecting to questions put by a trial judge, whose responsibility it is to decide the defendant’s fate, is a delicate task at best. But, delicate as it is, defence counsel must object – early and often – to avoid an adverse inference being drawn on appeal. And certainly Crawford’s counsel objected at trial. Maybe an objection can best focus the tension when phrased as Calgary defence lawyer Sandy Park (now a retired Court of Queen’s Bench justice) may have said it: “Your Honour. If you’re asking the question on behalf of the prosecutor, I object. If you’re asking the question on behalf of the defence, I withdraw the question.”