Judges’ grilling of accused men leads to sex assault and dangerous driving cases being overturned - Toronto Star

In Brampton and Toronto judges were found to have extensively cross-examined the accused when they took the stand in their own defence.

The Ontario Court of Appeal in Toronto. 

In overturning two criminal cases, higher courts have issued a reminder to judges: Leave the cross-examination to the lawyers. 

In both cases, in Brampton and Toronto, the judges were found to have extensively cross-examined the accused when they took the stand in their own defence. While judges can ask clarification questions, they can never take on the role of cross-examiner, as it would risk undermining their job as a neutral decision-maker.  

In the Brampton case, Ontario Court Justice Sandra Caponecchia asked numerous questions of a man accused of sexually assaulting a woman he met on Tinder, after the Crown had finished cross-examining him.

The transcript of her questions went on for seven pages, nearly a quarter of the length of the Crown’s cross-examination. Among other things, she questioned how the accused could remember “all the intricate details of the sex” and what the pair were doing and where prior to the alleged incident. 

She convicted him and sentenced him to four years in prison. He remained on bail pending his appeal, which was successful last month: the Ontario Court of Appeal ordered a new trial. The three-judge panel found that Caponecchia’s questioning could raise the concern that she was biased.

“Her prolonged, sometimes confrontational, questioning of the appellant plainly amounted to cross-examination,” said the panel’s brief decision. “Doing so usurps counsel’s role and gives a reasonable person the impression that the judge is not neutral.” 

The “impression of unfairness is heightened here,” the top court said, because in deciding to reject the accused man’s evidence, Caponecchia relied on some of his testimony that she herself had elicited. 

The Court of Appeal has made clear “that this type of judicial intervention is not permitted,” said the accused man’s appeal lawyer, Mark Halfyard, who acted with co-counsel Ema Ibrakovic.

“This is not to say that judges cannot ask clarification questions to clear up ambiguities, or to explore matters left vague by a witness’ evidence,” Halfyard said, “but they must exercise care to not usurp the role of counsel or to create an appearance that they have prejudged the case.” 

In the Toronto matter, Ontario Court Justice Feroza Bhabha peppered a man with questions as he testified at his dangerous driving and impaired driving trial.

The man, who represented himself at trial and on appeal, was arrested after being involved in a single-car collision on the Don Valley Parkway. He testified a friend had been driving — a police officer on scene within minutes testified he saw no one else — and that he smelled of alcohol because he was trying to deal with ticks in his ears and a friend had recommended pouring alcohol into them. 

Bhabha’s questioning of the man, after the Crown’s cross-examination, went on for six pages of transcript. She asked when he had last contacted his friend, why he hadn’t gone to the hospital that day to deal with the ticks, and where he was going on the DVP. 

The Crown relied in closing submissions on some of the man’s answers to Bhabha’s questions, and the judge then relied on them in her decision. She convicted him and imposed a $3,000 fine and 15-month driving prohibition. 

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Last month, Superior Court Justice Michael Dineen “regretfully” concluded that Bhabha had cross-examined the accused, as she appeared to be “probing for holes in his story.” While finding that much of the man’s testimony “appears preposterous,” Dineen said he had no choice but to overturn the conviction and order a new trial due to the appearance of unfairness. 

“The tone of the questioning is skeptical and the trial judge pressed the appellant for answers and expressed frustration with him,” Dineen said.

“Whether or not that was actually the trial judge’s intention, the questions created an appearance that she was effectively continuing the cross-examination conducted by the Crown.”

Jacques Gallant is a Toronto-based reporter covering courts, justice and legal affairs for the Star. Reach him by email at jgallant@thestar.ca or follow him on Twitter: @JacquesGallant