Oct 28, 2019
The Ontario Court of Appeal recently criticized a trial judge for his conduct throughout a trial involving the death and alleged murder of a longboarder, Ralph Bisonnette, by a taxi driver, Adib Ibrahim. This post will examine what the trial judge did that drew criticism. While the judge’s behaviour did not directly result in a new trial it opens up an interesting discussion on the proper conduct of a judge during the course of any trial at all, let alone a stressful murder trial. This post will also examine an appeal on the grounds of a reasonable apprehension of bias.
The Mistrial Application
On the 14th day of the trial, defence counsel made an application for a mistrial based on a number of different actions performed by the judge throughout the course of the trial. Defence counsel argued that the trial judge’s conduct demonstrated a reasonable apprehension of bias against Mr. Ibrahim.
The test in Canada for establishing a reasonable apprehension of bias is whether “a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly”. In other words, would a reasonable person think the judge could decide fairly?
In support of their application, defence had prepared a number of points illustrating the poor conduct of the trial judge that they argued thereby established a reasonable apprehension of bias:
- The trial judge complained three times about the defence not having a disclosure obligation;
- The trial judge required defence counsel to vet his cross-examination of witnesses ahead of time with the Crown and the court;
- The trial judge accused defence counsel of “trial by ambush” and expressed disappointment in the conduct of defence counsel;
- The trial judge interfered with the cross-examination of a Crown witness;
- The trial judge continually shook his head with disapproval in front of the jury while defence counsel questioned witnesses;
- The trial judge suggested, in the presence of the jury, that defence counsel was wasting time by cross-examining witnesses on videotaped statements, rather than from prepared transcripts;
- The trial judge interfered with the examination of witnesses on a voir dire;
- The trial judge accused defence counsel of attempting to engender the sympathy of the jury through inadmissible evidence;
- The trial judge yelled at defence counsel on numerous occasions;
- The trial judge glared at defence counsel, both in front of and in the absence of the jury; and
- The trial judge constantly interrupted defence counsel during submissions.
In sum, the trial judge was yelling, glaring, interrupting, and otherwise interfering with defence counsel. These allegations were supported by affidavits from defence counsel and employee of defence counsel’s law firm.
After hearing some of the oral submissions on his alleged misbehaviour, the trial judge interjected and stated that he disagreed with virtually all of defence counsel’s points. The Court of Appeal noted that the trial judge frequently made lengthy comments during defence counsel’s submissions, while Crown was permitted to make their submissions without interruption.
Not only did the trial judge deny defence counsel’s allegations, stating “I categorically do not accept that I have yelled at you… [my] normal voice is a very loud and deep voice”, but he also accused defence counsel of “an ethical breach” and of professional misconduct and sharp practice contrary to the Canadian Bar Association’s Code of Professional Conduct.
In the end, the trial judge dismissed the application for a mistrial. The Court of Appeal noted that the trial judge’s written reasons for refusing defence counsel’s mistrial application were remarkably long: 64 single-spaced pages with 49 footnotes. The Court also noted that, throughout his reasons, the trial judge’s displeasure towards defence counsel was “palpable” and even insulting at times.
While the Ontario Court of Appeal ultimately allowed a new appeal on the ground of improper instructions to the jury and dismissed the appeal on reasonable apprehension of bias, they provided substantial commentary on the issue of bias. In particular, they stated that they were concerned with how the mistrial application was handled
The Court of Appeal noted the following:
- The mistrial application was conducted in an “injudicious manner”;
- When a trial judge feels compelled to intervene they should consider courtesy and restraint;
- Allegations regarding a trial judge’s verbal and non-verbal conduct during a trial are serious;
- The duty of the trial judge to maintain composure during the course of a trial is important;
- The trial judge’s conduct was not a model of “judicial decorum”;
- The trial judge is responsible for reducing the stress of conflict;
- The trial judge should not to exacerbate conflict through harsh words, a raised voice, or distracting and hostile non-verbal communications.
However, despite these criticisms, the court did not believe that there was a significant impact to the overall fairness of the trial and that these issues, while improper, did not give rise to a reasonable apprehension of bias.
The decision in this case shows that some tensions and emotions can run high during a criminal trial and result in some conflict between defence counsel and the trial judge. While a trial judge has a duty to exercise courtesy and restraint, a substantial amount of discretion is given to the trial judge on how to conduct a trial. The Court of Appeal clearly sent a message to trial judges by criticizing the conduct of the trial judge in this case, but in the end they would not have concluded that his behaviour gave rise to a reasonable apprehension of bias. Although reasonable apprehension of bias is a possible ground of appeal, it is clear from this decision that the bar for establishing bias based on the conduct of a judge can be quite high.