R. v. Churchill

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation: R. v. Churchill, 2016 NLCA 29 Date: June 22, 2016 Docket: 201501H0082 BETWEEN: JASON CHURCHILL APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, White and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201501G0897 Appeal Heard: March 15, 2016 Judgment Rendered: June 22, 2016 Reasons for Judgment by White J.A. Concurred in by Harrington J.A. Concurring Reasons by Rowe J.A. Counsel for the Appellant: Stephen P. Orr Counsel for the Respondent: Lisa M. Stead Page: 2 White J.A.: [1] The appellant, Mr. Churchill appeals his conviction for aggravated assault of Joan Barry contrary to section 268(1) of the Criminal Code, entered by the Supreme Court of Newfoundland and Labrador on October 5, 2015. BACKGROUND [2] Mr. Churchill, the appellant, and Ms. Barry, the complainant, married in 2005. At the time of trial they were separated, but not divorced. The marriage was a rocky one, with many arguments. [3] On August 15, 2014, the two were living together in Paradise, Newfoundland and Labrador with Ms. Barry’s 13-year-old son. Mr. Churchill was doing renovations. He testified that Ms. Barry began drinking in the afternoon and, as a result, the two were not getting along. In the evening they went to their shed, where both of them were drinking. Mr. Churchill was also cooking fish stew. At some point, they decided to go a friend’s house, where they had a few more drinks. Then they returned to their shed. They continued drinking and started arguing. [4] Ms. Barry testified that while they were sitting next to each other and arguing, Mr. Churchill hit her in the right eye with a beer bottle which he was holding in his hand with enough force that the bottle broke and glass went everywhere. Mr. Churchill testified that he did throw a beer bottle, but into the corner of the room. He did not hit Ms. Barry in the eye. He suggested that Ms. Barry likely fell while intoxicated and hit her eye on one of the objects in the room, such as the handle of a skidoo. [5] After the argument, Mr. Churchill left the shed. He spent the night in his car and in the morning, he left the house. [6] Ms. Barry stayed in the shed. She called her friend, Jennifer Rose who came in the morning and tried to persuade Ms. Barry to go to the hospital. Eventually she convinced Ms. Barry to do so with the assistance of Ms. Barry’s brother. The doctors advised Ms. Barry that her cornea was split and needed 13 stitches to close. At the time of trial, Ms. Barry was still awaiting a corneal transplant and could not see out of her right eye. Page: 3 Proceedings in the Supreme Court of Newfoundland and Labrador [7] The case proceeded to trial in the fall of 2015. Several witnesses were called, although only Ms. Barry and Mr. Churchill were present at the time of the alleged offence. Both of them testified. Ms. Barry testified that Mr. Churchill caused the injury to her eye. He denied doing so. As noted by the trial judge, the case was a textbook example of the “he said, she said” credibility contest. [8] During the trial, the trial judge took what can only be described as an interventionist approach, frequently interrupting witnesses and both counsel, to ask questions and make comments. [9] At the end of the trial, the trial judge reviewed the evidence of the complainant and the appellant. He noted that there were several inconsistencies in the complainant’s testimony, but regarded most as minor in nature and to be expected given her traumatic injuries and the fact that she was inebriated, frightened and overly tired from lack of sleep on the day of the offence. Most of the inconsistencies did not undermine the credibility of the complainant. [10] The trial judge did note one significant inconsistency in the complainant’s testimony. Her brother testified that the complainant told him that Mr. Churchill threw a beer bottle in her face. Similarly, hospital records indicated that she told hospital staff that a beer bottle had been thrown in her eye. These statements were inconsistent with the complainant’s testimony at trial that Mr. Churchill had hit her in the face with the bottle while holding it. However, the trial judge accepted the complainant’s explanation for the inconsistency which was that she had always meant to communicate that Mr. Churchill “had the beer bottle in his hand and that he threw his hand with the beer bottle into her eye”. The trial judge found that this explanation was consistent with her testimony. Relying on the complainant’s demeanour and other evidence, in particular the testimony of Dr. Avis which the trial judge identified as corroborating, he stated he believed the complainant. [11] The trial judge explained that he did not believe Mr. Churchill, whose evidence about what happened was “convoluted and very unconvincing”. He commented that Mr. Churchill’s “blame the victim” defense had no evidentiary basis and was “just sheer speculation” and his demeanour was abrupt and argumentative. Considering all of the evidence, the trial judge Page: 4 found that the appellant had not raised a reasonable doubt as to his guilt and convicted him. ISSUES [12] The issues on appeal are: (1) did the trial judge err in his credibility determinations of both the complainant and the appellant; (2) did the trial judge’s interventionist approach undermine procedural fairness by creating a reasonable apprehension of bias; and, (3) did the interventions prevent the appellant from making full answer and defense. Standard of Review [13] The Court will not interfere with credibility findings unless they are clearly unreasonable or not supported by the evidence (R. v. W. (R.), [1992] 2 S.C.R. 122 at pp. 131-32., R. v. S. (R.D.), [1997] 3 S.C.R. 484 at para. 101). However, if there is an extricable legal error, or those findings are tainted by bias, deference will not be warranted (R. v. S. (R.D.) at para. 101). ANALYSIS Did the conduct of the judge render the trial unfair? [14] I will address the second and third issues first. The appellant contends that the conduct of the trial judge in constantly interrupting and inserting himself between counsel and the witnesses, undermined his right to make full answer and defense and also gave rise to a reasonable apprehension of bias. [15] While the appellant’s submissions address these two points together, the right to an impartial tribunal and the right to make full answer and defense are two related but distinct aspects of trial fairness (R. v. Schmaltz, 2015 ABCA 4, 320 C.C.C. (3d) 159 at paras. 17-18). While the standard to evaluate both is whether or not a reasonable person would conclude that the trial is unfair because the opportunity to make full answer and defense has been denied or impartiality undermined (Brouillard v. The Queen, [1985] 1 S.C.R. 39, R. v. C.H., (1999), 182 Nfld & P.E.I.R. 32, 44 WCB (2d) 162 (Nfld. CA) at para. 18, R. v. S. (R.D.) at para. 111) there is a presumption that judges are impartial (R. v. S. (R.D.) at para. 32, Schmaltz at para. 50). On the other hand, there is no presumption that an accused was able to make full answer and defense. Thus the appellant has to meet a heavy burden to convince the Court that the trial judge was not impartial. I agree with the Page: 5 Alberta Court of Appeal in Schmaltz, at paragraph 24, that there is no presumption that a trial judge has not unduly intervened in the trial. [16] Not every case where the judge takes an interventionist approach will be overturned on appeal. As explained by Lamer J., as he then was, in Brouillard at page 44: …. Judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order. [17] The effect of the trial judge’s interventions on trial fairness depends on the unique circumstances of each case, as explained by the Ontario Court of Appeal in Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, 265 OAC 247: [230] A determination of whether a trial judge’s interventions give rise to a reasonable apprehension of unfairness is a fact-specific inquiry and must be assessed in relation to the facts and circumstances of a particular trial. The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial: see R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.) at p. 232, leave to appeal to S.C.C. refused, [1986] 1 S.C.R. xiii; and R. v. Stucky (2009), 2009 ONCA 151 (CanLII), 240 C.C.C. (3d) 141 (Ont. C.A.), at paras. 68, 70, 72. [231] An examination of whether a trial judge has unduly intervened in a trial must begin with the recognition that there are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court’s process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings. (Emphasis added.) Full answer and defense [18] This Court in C.H. outlined the considerations that are relevant when determining whether or not the accused’s right to make full answer and defense has been unjustifiably violated by the intervention of the trial judge: Page: 6 [18] From the foregoing a number of principles applicable to the case at bar can readily be identified. They are as follows: (1) A trial judge has both the right and the duty to intervene in examination or cross-examination to clear up ambiguities, provide further information on a matter left vague, provide information on something apparently relevant but left out, and to limit unnecessary repetition and protect witnesses from unnecessarily harassing cross-examination; (2) The right of intervention must be exercised with judicial discretion and is best left to a point in time when counsel has concluded or is passing to a new subject; (3) The intervention must not fetter the right of an accused, through his counsel, to subject any witness’s testimony to the test of cross- examination and in particular cross-examination relevant to the issue of credibility must not be improperly curtailed; (4) Where the interventions by the trial judge seriously limit or impair the ability of counsel to test credibility, particularly of a witness whose evidence is critical to the question of the guilt or innocence of an accused, the accused will have been so prejudiced as to be deprived of a fair trial; (5) The events of interference must be viewed cumulatively, not as isolated occurrences; (6) Every alleged departure during trial, from the accepted standards of judicial conduct, must be examined with respect to its effect on the fairness of the trial; (7) An appellate court is required by s. 686(1)(a)(iii) of the Criminal Code to intervene where the appearance of fairness is so lacking as to result in a miscarriage of justice; (8) 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; (9) Because the ability to effectively cross-examine prosecution witnesses is of fundamental importance to a criminal trial, going to the right to make full answer and defence, it is now protected by ss. 7 and 11(d) of the Charter and should be interpreted in the broad and generous manner befitting its constitutional status, and Page: 7 (10) An accused in a criminal trial has the right of cross-examination in the fullest and widest sense of the word, as long as he does not abuse that right, and improper interference with that right will result in the conviction being quashed. (See also Schmaltz at paras. 19-20.) [19] Sometimes, a number of unwarranted interruptions will undermine the right to make full answer and defense due to the disruption of counsel’s examination (Brouillard at p. 48). [20] The appellant submits that the judge interfered with counsel’s cross- examination more than 20 times and that some of these interventions curtailed effective cross-examination. [21] First, the appellant says that the trial judge inappropriately curtailed defense counsel’s cross-examination of the complainant regarding her previous inconsistent statements to the police. The trial judge commented that he was “not impressed” by defense counsel’s questions seeking to establish that the complainant had sought to mislead the Court by claiming that she had no contact with the appellant when this was, in fact, not true. [22] Reading the transcript, it does not appear that the trial judge curtailed defense counsel’s cross-examination on this point. While the judge indicated to defense counsel that he was not impressed by the evidence, he did not prevent defense counsel from continuing on the line of inquiry and counsel chose to move on of his own accord. Most importantly, the point the defense was seeking to get across was made. [23] The appellant also argues that the trial judge interfered with counsel’s cross-examination by inserting himself between counsel and the complainant, re-framing questions, anticipating questions and suggesting answers. [24] Having carefully reviewed the transcripts, I would conclude that this submission has merit. There are several instances when the trial judge interrupted counsel in an inappropriate manner, which had the effect of undermining counsel’s ability to effectively cross-examine the complainant on key points. [25] For example, the defense theory was that the complainant’s injury occurred because she fell while intoxicated. Thus her level of intoxication on Page: 8 the night in question was at issue. Her level of intoxication was also relevant to her reliability as a witness, in a case which turned largely on credibility. Yet, whenever defense counsel pursued any line of inquiry concerning the complainant’s state of intoxication, the trial judge interrupted. [26] The first interruption occurred after the very first question counsel asked of the complainant, regarding surgery. The trial judge immediately asked if this question had any relevance to the matter at trial, without waiting to see if counsel’s line of inquiry could prove fruitful. He then suggested counsel’s theory was inappropriate absent medical evidence. [27] This interruption was premature. It is well established the defense does not need to lead evidence in order to put a theory to the witness in good faith (R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193). The trial judge should have provided counsel with the opportunity to demonstrate the relevance of the inquiry before interrupting counsel’s very first question to the witness. It sent a message to counsel and the witness that counsel’s questioning was going to be perceived as irrelevant and need not be taken seriously. [28] The second interruption occurred when counsel was cross-examining the complaint about the medications that she was taking for her back. The judge guessed counsel’s ultimate question and offered it to the witness for a response. [29] This interruption was inappropriate. There was nothing confusing that needed clarification. The judge chose to guess what counsel’s next question would be and tell the witness. This kind of interruption disrupts the rhythm of cross-examination and counsel’s psychological control over the witness (Lyttle at para. 7, see also Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 at para 41). [30] The third interruption occurred when counsel was cross-examining the complainant about her statement to the police, ranking how intoxicated she was on the night in question, on a scale of 1 to 10. The trial judge interrupted again, commenting that he had “no idea” what the scale meant. [31] This interruption did serve the purposes of clarification. However, it was also unnecessary and the judge’s tone was dismissive. The question asked the complainant to rank her level of intoxication in well-understood laypersons’ terms – a scale of 1 to 10. While the judge correctly noted this was not the most precise analysis, in the absence of scientific evidence, Page: 9 defense counsel was trying to paint a picture of the complainant’s state that night. There was no need for the judge to ask if a rank of 10 meant “absolutely cold junk” and signal to the witness this line of inquiry was not to be taken seriously. [32] Furthermore, the trial judge also made suggestions to the complainant about how to explain the inconsistencies in her evidence. The complainant was cross-examined on her statement to the police that after the argument with the appellant she went to bed, which was inconsistent with her evidence at trial that she remained in the shed all night. The trial judge asked her whether she fell asleep in the chair in the shed, without the complainant independently offering this evidence. This was clearly inappropriate. Trial judges should not give indications to a witness as to what evidence she might give in an effort to explain inconsistencies in her evidence. [33] If treated in isolation none of these incidents would rise to the level of curtailing cross-examination. However, when taken together, I would conclude they disrupted the flow of counsel’s cross-examination, undermined his authority in the eyes of the witness and thereby prevented the accused from effectively putting his theory to the complainant. Thus the right to make full answer and defense was undermined. The conclusion becomes even stronger since I also conclude the trial judge’s conduct raised a reasonable apprehension of bias. Reasonable apprehension of bias [34] R. v. S. (R.D.) at paragraph 111 sets out the test to be met to demonstrate that the conduct of the judge gives rise to a reasonable apprehension of bias: [T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . .” [35] The test for a reasonable apprehension of bias, requires a real likelihood or probability of bias (Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 at para. 25). “…[B]ias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues” (R. v. S. (R.D.) at para 105). Page: 10 [36] The decision of the Ontario Court of Appeal in R. v. Stucky, 2009 ONCA 151, 303 D.L.R. (4th) 1 provides helpful guidance as to when judicial intervention crosses a line and would cause a reasonable person to conclude that the trial judge is biased in favour of one party: In R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 230, leave to appeal refused, [1986] 1 S.C.R. xiii, Martin J.A. set out three situations in which questions put by a trial judge to a witness may be justified, namely: to clear up ambiguities and call a witness to order; to explore some matter which the witnesses’ answers have left vague; or, to put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted. He noted, however, that questions put by a trial judge to a witness should generally be put after counsel has completed his or her examination of the witness and, further, that the witness should not be cross- examined by the trial judge during examination-in-chief: Valley at p. 230. These comments provide guidance as to the timing and nature of interventions that a trial judge may make. The first two situations of permitted interventions by the trial judge set out in Valley are self-explanatory. The third situation in which a trial judge is permitted to intervene, namely, to ask questions that should have been asked by counsel, is not an open-ended invitation to the trial judge to usurp the role of Crown counsel. The judge cannot leave his or her position of neutrality as a fact-finder and become the cross-examiner: R. v. W.(A.) (1994), 1994 CanLII 218 (ON CA), 94 C.C.C. (3d) 441 (Ont. C.A.) Brooke J.A. in dissent, reversed for the reasons given by Brooke J.A., 1995 CanLII 83 (SCC), [1995] 4 S.C.R. 51. [37] A reasonable apprehension of bias may arise if the trial judge intervenes improperly during the examination of witnesses (Brouillard at p. 48, Chippewas at para. 238), during counsel’s closing submissions (R. v. Edmond, 2014 BCSC 1375), or treats the witnesses or counsel uncivilly by being impatient, sarcastic or taunting (Chippewas at para. 240, Yukon Francophone Schoolboard at para. 54). In Chippewas, the Ontario Court of Appeal discussed the procedure judges should generally follow for intervening when witnesses are examined: 237 For the most part, trial judges can manage the trial process by asking questions of counsel, making comments or giving directions about the course of the trial. … Trial judges should be careful about trying to control a trial by examining witnesses. In the normal course, "the trial Judge should confine himself [or herself] as much as possible to his [or her] own responsibilities and leave to counsel ... [his or her] ... function:" R. v. Torbiak and Campbell (1974), 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-31; see also Valley, at p. 231. Page: 11 [38] The appellant complains that the judge’s conduct of the trial raised the reasonable apprehension that he favoured the prosecution’s case over that of the appellant. After reviewing the record, I am inclined to agree. [39] While I do not conclude that the trial judge was actually biased, a number of comments from the judge would leave the reasonable observer with the impression that he was predisposed to decide in favour of the Crown and approached the defense’s case with a closed mind. [40] For example, when defense counsel was cross-examining the complainant about how much she had had to drink on the night in question the following exchange occurred: Q. Okay. And do you remember how much you had to drink? A. You’re asking me how much I had to drink a year ago? Q. Yes. A. I don’t know. … THE COURT: Well, can you describe it by fingers? Is it - A. Okay. Q. - two fingers? Three fingers? Four fingers? What? A. About ten fingers. Q. Ten fingers? A. Glass about this high. Q. Oh, no—I know that. No, no. When you - A. I don’t know how to answer that. Q. - no, when you pour the Lamb’s into the glass - A. Oh, okay. Q. - sometimes people describe it as two fingers, three fingers, four fingers. A. Okay. So – Q. Are you, are you able to do that? A. Three fingers, then, I guess. Q. Three fingers. Okay, she did three fingers. MR. ORR: Thank – THE COURT: That - A. That’s with – Q. - that would be - A. – that’s with – full of ice. The ice goes in first. Page: 12 Q. Well - Oh, my—anyway, good luck, Mr. Orr, with this one. (Emphasis added) [41] During cross-examination the trial judge also indicated to counsel that he was “not impressed” by defense counsel’s suggestion that the complainant had misled the court when she did not tell the truth about having no contact with the appellant while subject to a no-contact order. These types of comments from the trial judge indicate to a reasonable person that the judge is not open to hearing challenges to the complainant’s credibility and has decided the issue before the examination of the complainant has concluded. [42] Subsequently, during the Crown’s cross-examination of the appellant the trial judge gave the Crown “tips” about how to conduct it, offering advice such as “[e]xplore it, Ms. Holmes, find out where he was when he threw the bottle” and “[m]aybe ask him, was she facing the dart board or was she facing away from the dart board?”. While all judges have had an experience where they wish counsel would ask certain questions or make certain arguments, generally Crown counsel should be permitted to make their case against the accused as they see fit, without undue interference from the trial judge. The judge’s unnecessary comments in this case, when considered with the fact that the judge had also persistently questioned the appellant during his direct testimony, would lead a reasonable person to conclude that the judge was assisting Crown counsel in prosecuting the appellant. [43] Moreover, reviewing defense counsel’s final submission, one unfortunately gets the impression that the trial judge had reached his conclusion before hearing it in full. While judges are permitted to debate the relevance of certain facts and legal authorities with counsel (Chippewas at para. 243), the judge’s approach here was unnecessarily dismissive, disruptive and argumentative (Edmond at para 76). For example: MR. ORR: It’s not a circumstantial case but it is part of it and the reason I put Vandermark in, my lord, was because you know, like I said, the complainant alleged she was stabbed with a knife. The accused was also stabbed. There was credibility evidence with the complainant’s evidence and I guess, like the complainant in this case, she never sought medical treatment and even went further and cleaned up the scene before the police arrived. Page: 13 THE COURT: Well, her explanation was she didn’t want to get your client in trouble. MR. ORR: And again, in this case – THE COURT: That’s her explanation. MR. ORR: And I understand that, my lord, and in that case it was the exact same and that’s why I put that case in. The complainant gave evidence she didn’t want to get him in trouble at that point, so we have a very, very similar case and especially there were a lot of credibility issues and in that case, Justice Goodridge found there was a possibility that other things could have happened with respect to the knife and I would just point to the Court that it is very similar, that was – THE COURT: Well, you’re suggesting she did it to herself, right? MR. ORR: In Vandermark that was the case and in this situation I think the obvious other conclusion – THE COURT: Well, you don’t have to give an explanation but I think that’s your suggestion. Well, somebody did, something happened to her eye. MR. ORR: Yes. THE COURT: Right, and you’re saying she did it to herself? MR. ORR: I’m saying, my lord, I don’t say she did it to herself, intentionally. THE COURT: No, no, you say she fell down on something and did it to herself. MR. ORR: I think our suggestion, I think our suggestion would be that she fell down on something in the garage. THE COURT: Yeah, well, I just, she had a very serious eye injury. MR. ORR: She did. THE COURT: She needs a transplant, so something happened to her eye – MR. ORR: Something happened to her eye. THE COURT: - and she says your client did it to her. MR. ORR: That’s correct, my lord. THE COURT: Okay. Page: 14 MR. ORR: My client says [he] didn’t. THE COURT: And you say she stumbled around and did it herself? MR. ORR: And our submission is she probably fell and Dr. Avis did support that. THE COURT: Yeah, now, is there any evidence to that effect? MR. ORR: Well, my lord, with respect there isn’t evidence that it was a beer bottle either. There’s no, we don’t have the glass bottle, we didn’t have any evidence that there even was a glass bottle other than what the complainant said. THE COURT: We have the evidence of Dr. Avis, Mr. Orr. MR. ORR: We do, Dr. Avis did say, though, my lord, that there was no evidence that it was glass. He said that all it would require would be a blunt object with a non-cutting edge, of which there were several in Mr. Churchill’s garage and we also have evidence that she’d fallen down in the past, before, while drinking. So, it is our suggestion that, you know, there is a – THE COURT: She’s the author of her own drinking. MR. ORR: My lord, it’s a possibility. THE COURT: Sure. Well, I mean, that’s what you’re putting to me. MR. ORR: Yeah. THE COURT: Somebody, something happened to her eye – MR. ORR: Something definitely happened to her eye. THE COURT: - and you’re saying she did it. MR. ORR: We’re saying that she fell, that’s our position. THE COURT: Yeah, okay. [44] While this very vigorous conduct by the trial judge during final submissions by the defence would not, taken in isolation, give rise to a reasonable apprehension of bias, it nevertheless adds significantly to the culmative effect of his negative approach to the defence case exhibited throughout the trial. Page: 15 [45] While the trial judge also intervened frequently during the Crown’s submission, in contrast to his exchanges with defence counsel, it again seemed that he was providing the Crown with advice about how to present the case. For example, when Crown counsel submitted that the complainant “stuck to her story”, he suggested that the word “story” was “unfortunate” because stories are “usually made up” whereas this was “not good context” in this case. In response to the Crown’s submission that the appellant’s version of events about the complainant’s injury lacked credibility, the judge commented that the appellant was speculating about what happened, reinforcing the Crown’s submission rather than posing a question. CONCLUSION [46] Overall, the conduct of the judge crossed the line. This is not simply a case of active intervention by a judge to achieve proper trial management. In this case the interventions cannot be justified on these grounds. A reasonable person sitting in the courtroom would, in my view, assume that the judge held a negative view of the defence being put forward and was improperly trying to assist the Crown in the presentation of its case to the prejudice of the accused. While the desire to participate actively in a case is understandable, judges must be careful to ensure there is a demonstrably fair trial and not give the impression (unintended as it may be) that the presence of the witnesses in the courtroom is just a formality and conviction is a foregone conclusion. Unfortunately, this did not happen here. [47] Trial unfairness is a miscarriage of justice, which the curative proviso under section 686(1)(iii) of the Criminal Code cannot remedy. Therefore, I would allow the appeal, set aside the conviction and order a new trial. [48] Given my conclusion on this issue, it is not necessary to address the remaining issues concerning the judge’s credibility findings. ____________________________________ C. W. White J.A. I Concur: ___________________________________ M. F. Harrington J.A. Page: 16 Concurring Reasons by Rowe J.A.: [49] I concur. I would add only a few comments. From reading the transcript, it is clear that the trial judge sought to limit the impact on the complainant, who was physically injured and emotionally vulnerable, of a vigorous cross-examination. That is an understandable human response, but one that a judge must check. While it can be hard on a complainant, defence counsel must be given considerable leeway in cross-examination in order to give effect to the accused’s right to make full answer and defence. As to the reasonable apprehension of bias, the situation of a judge’s comments to defence counsel in closing submissions is quite different from the hearing of evidence. Judges have a right to probe and test the submissions of counsel; that is what the judge did here, albeit somewhat vigorously. ______________________________________ M. H. Rowe J.A.