When a Trial Judge Offers an Opinion on a Contested Fact: Jury Trial

In charging juries, trial judges are obliged to review the substantial parts of the evidence and relate that evidence to the issues the jurors must decide. 

Beyond summarizing the evidence, a trial judge is permitted to opine on the evidence adduced at trial subject to certain limits.[1]

The overarching principle is fairness. Within this principle of fairness is the recognition that the jury must remain the arbiter of the facts and that any comments made by the trial judge cannot amount to a rebuttal of the defence address to the jury or unfairly denigrate or undermine the position of the defence.[2]

In R. v. Walker, 2019 ONCA 806, the trial judge offended this rule by offering an opinion on a critical piece of evidence that was stronger than the one the Crown had been prepared to advance: the Crown had conceded that a gun was not clearly identifiable in security video footage, while the trial judge opined to the jury that a gun was identifiable in the video.  The Crown withdrew its concession and, in closing,  took a position with respect to the gun that aligned with the judge’s. The Court of Appeal for Ontario held that the trial judge’s comment rendered the trial unfair, as it had profoundly impacted the course of argument on a critical piece of evidence.

In this case it was clear that the Crown had felt emboldened or obligated to take a more aggressive position with respect to the gun evidence in light of the judicial comment. However, the Court of Appeal may still have found the trial unfair if the reason for the Crown’s shift in position had not been as clear, for as the well-known legal axiom states: “ justice should not only be done, but should manifestly and undoubtedly be seen to be done.”[3]  

Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

[1] See R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 108-10 (per Watt J.A.).
[2] R. v. Lawes (2006), 80 O.R. (3d) 192 (C.A.), at para. 23, leave to appeal refused, [2006] S.C.C.A. No. 175, (per Rouleau J.A.).
[3] R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259; see also Brouillard Also Known As Chatel v. The Queen, [1985] 1 S.C.R. 39, at p. 13.

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