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. ...