{"id":23752,"date":"2019-10-28T11:13:13","date_gmt":"2019-10-28T11:13:13","guid":{"rendered":"https:\/\/filkowlaw.com\/?p=23752"},"modified":"2023-06-07T18:38:26","modified_gmt":"2023-06-07T18:38:26","slug":"the-impact-of-the-conduct-of-a-judge-on-a-trial","status":"publish","type":"post","link":"https:\/\/filkowlaw.com\/the-impact-of-the-conduct-of-a-judge-on-a-trial\/","title":{"rendered":"The Impact of the  Conduct of a Judge on a Trial"},"content":{"rendered":"<p>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\u2019s 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.<\/p>\n<p><strong>The Mistrial Application<\/strong><\/p>\n<p>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\u2019s conduct demonstrated a reasonable apprehension of bias against Mr. Ibrahim.<\/p>\n<p>The test in Canada for establishing a reasonable apprehension of bias is whether \u201ca reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly\u201d. In other words, would a reasonable person think the judge could decide fairly?<\/p>\n<p>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:<\/p>\n<ul>\n<li>The trial judge complained three times about the defence not having a disclosure obligation;<\/li>\n<li>The trial judge required defence counsel to vet his cross-examination of witnesses ahead of time with the Crown and the court;<\/li>\n<li>The trial judge accused defence counsel of \u201ctrial by ambush\u201d and expressed disappointment in the conduct of defence counsel;<\/li>\n<li>The trial judge interfered with the cross-examination of a Crown witness;<\/li>\n<li>The trial judge continually shook his head with disapproval in front of the jury while defence counsel questioned witnesses;<\/li>\n<li>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;<\/li>\n<li>The trial judge interfered with the examination of witnesses on a voir dire;<\/li>\n<li>The trial judge accused defence counsel of attempting to engender the sympathy of the jury through inadmissible evidence;<\/li>\n<li>The trial judge yelled at defence counsel on numerous occasions;<\/li>\n<li>The trial judge glared at defence counsel, both in front of and in the absence of the jury; and<\/li>\n<li>The trial judge constantly interrupted defence counsel during submissions.<\/li>\n<\/ul>\n<p>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\u2019s law firm.<\/p>\n<p><em>Related: <span style=\"text-decoration: underline;\"><a href=\"https:\/\/filkowlaw.com\/self-representation\/\">Why You Should Never Represent Yourself in Court<\/a><\/span><\/em><\/p>\n<p>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\u2019s points. The Court of Appeal noted that the trial judge frequently made lengthy comments during defence counsel\u2019s submissions, while Crown was permitted to make their submissions without interruption.<\/p>\n<p>Not only did the trial judge deny defence counsel\u2019s allegations, stating \u201cI categorically do not accept that I have yelled at you\u2026 [my] normal voice is a very loud and deep voice\u201d, but he also accused defence counsel of \u201can ethical breach\u201d and of professional misconduct and sharp practice contrary to the Canadian Bar Association\u2019s Code of Professional Conduct.<\/p>\n<p>In the end, the trial judge dismissed the application for a mistrial. The Court of Appeal noted that the trial judge\u2019s written reasons for refusing defence counsel\u2019s mistrial application were remarkably long: 64 single-spaced pages with 49 footnotes. The Court also noted that, throughout his reasons, the trial judge\u2019s displeasure towards defence counsel was \u201cpalpable\u201d and even insulting at times.<\/p>\n<p><strong>The Appeal<\/strong><\/p>\n<p>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<\/p>\n<p>The Court of Appeal noted the following:<\/p>\n<ul>\n<li>The mistrial application was conducted in an \u201cinjudicious manner\u201d;<\/li>\n<li>When a trial judge feels compelled to intervene they should consider courtesy and restraint;<\/li>\n<li>Allegations regarding a trial judge\u2019s verbal and non-verbal conduct during a trial are serious;<\/li>\n<li>The duty of the trial judge to maintain composure during the course of a trial is important;<\/li>\n<li>The trial judge\u2019s conduct was not a model of \u201cjudicial decorum\u201d;<\/li>\n<li>The trial judge is responsible for reducing the stress of conflict;<\/li>\n<li>The trial judge should not to exacerbate conflict through harsh words, a raised voice, or distracting and hostile non-verbal communications.<\/li>\n<\/ul>\n<p>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.<\/p>\n<p><strong>Conclusion<\/strong><\/p>\n<p>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.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>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\u2019s behaviour did not directly result in a [&hellip;]<\/p>\n","protected":false},"author":17,"featured_media":23994,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"inline_featured_image":false,"footnotes":""},"categories":[2,34,24],"tags":[130,211],"acf":[],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v22.0 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>The Impact of the Conduct of a Judge on a Trial | Filkow Law | Top BC Law<\/title>\n<meta name=\"description\" content=\"Can a judge&#039;s conduct, or misconduct affect the outcome of a criminal trial or appeal? Have a criminal case? 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