When Does the Active Judge become the Meddlesome Judge?

Trial judges are entitled to question witnesses.  Indeed, sometimes they are duty-bound by the interests of justice to ask questions.  They are not required to remain silent, passive observers of trials.  There are, however, limits on their ability to intervene in the examination of witnesses.  Their interventions must never compromise the overall appearance of fairness in the trial proceedings. 

 R. v. Brouillard, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39, at p. 46; R. v. Darlyn (1946), 1946 CanLII 248 (BC CA), 88 C.C.C. 269 (B.C.C.A.) at p. 277; R. v. Pavlukoff (1953), 106 C.C.C. 249 (B.C.C.A.); R. v. McKitka (1982), 1982 CanLII 425 425 (BC CA), 66 C.C.C. (2d) 164 (B.C.C.A.).

A judge may intervene in the proceedings for numerous reasons. For example, a need to control the court’s process, a need to focus the questions being asked so that the evidence is received in a clear and cohesive manner, a need to avoid repetitive or irrelevant questions. The trial judge has a role to play in ensuring that a complainant, like any other witness, is treated fairly.

See R. v. R.B., 2017 ONCA 75, at para 11.

As there are many valid reasons that justify the judicial questioning of witnesses, there is a strong presumption that a judge has not unduly intervened in a trial. The question of whether the interventions led to an unfair trial is undertaken from the perspective of a reasonable observer who was present throughout the trial:

R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at paras. 29-30.

  The legal test for determining whether the interventions of a trial judge in any individual case, viewed cumulatively, have crossed the threshold from permissible questioning to undue interference in the trial is an objective one.  As Martin J.A. stated in R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.) at p. 232; Leave denied: [1986] 1 S.C.R. xiii:

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.   

In the application of this standard, the authorities have collectively articulated a number of helpful general principles to guide trial judges.  Some of those principles were summarized in R. v. Lahouri, 2013 ONSC 2085, at para 8: 

(1)         Refrain From Usurping the Role of Counsel: As a general rule, a trial judge should endeavour to confine him or herself as much as possible to his or her own responsibilities and leave counsel to perform their functions in the litigation.  The criminal trial process is an adversarial one, and should not become an inquisitorial investigation by the trial judge.  Accordingly, the examination of witnesses must remain, for the most part, the responsibility of counsel, and a trial judge must be careful not to effectively usurp that role

 (2)         The Right to Pose Questions: A trial judge is justified in: (a) posing questions to a witness to clear up ambiguities in their evidence; (b) calling a witness to order and focusing him or her on the true matters in issue; (c) exploring some issue on which the witness’s evidence has been left vague and uncertain; or (d) putting questions which should have been asked by counsel in order to elicit evidence on some relevant issue. 

 The right to pose questions that should have been asked by counsel is not, however, an open-ended invitation to the trial judge to usurp the role of the counsel. 

(3)         The Timing of Questions: Generally speaking, substantive questions going beyond the clarification of an answer should be posed by a trial judge only after counsel has completed his or her examination of the witness.  Otherwise, the trial judge risks interfering with the prepared organization and flow of the testimony.

(4)         No Cross-Examination: The right of a trial judge to question any witness does not entitle a trial judge to cross-examine witnesses.  Accordingly, a trial judge should not, even temporarily, abandon his or her position of neutrality and become the cross-examiner, especially in cases where he or she is the ultimate fact-finder. 

(5)         Permitting the Accused to Give His or Her Evidence: The duty on a trial judge to exercise restraint and remain neutral is especially critical in cases where the accused takes the stand to give evidence.  A trial judge must allow the accused to give his or her evidence freely and must not intervene in the examination of the accused so as to effectively preclude the accused from telling his or her story in his or her own way. 

(6)         Remaining Neutral: A trial judge must not question an accused or a defence witness to such an extent or in such a manner that conveys the impression that the trial judge has placed the authority of his or her judicial office on the side of one of the parties in the litigation. 

(7)         Refrain From Interfering With the Conduct of the Defence: A trial judge must not intervene in the trial to such an extent that it effectively renders it impossible for defence counsel to perform his or her duty in advancing the defence on behalf of the accused.  For example, the trial judge should not divert counsel from his or her chosen topic of examination, or interfere with the sequence and dynamic flow of cross-examination so as to prevent the proper testing of the testimony.  

However, intervening frequently, without more, does not lead to a miscarriage of justice:

R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.).

The presence or absence of objections from defence counsel to the judge’s interventions is a relevant factor, although it is not determinative:

R. v. Lahouri, 2013 ONSC 2085, 280 C.R.R. (2d) 249 (S.C.), at para. 10.

Whether the trial judge gave counsel an opportunity to ask questions that may have arisen from the trial judge’s questioning of a witness is also a relevant factor.

R. v. Lahouri, at para. 10.

Where the appearance of fairness in the trial proceedings has not been maintained, the verdict reached cannot stand and a new trial must be ordered.  There is no need to consider the reasonableness or legal propriety of the verdict. 

R. v. Lahouri, at para. 9.