R. v. Lahouri, 2013 ONSC 2085

CITATION : R. v. Lahouri, 2013 ONSC 2085 COURT FILE NO.: 41/12 DATE: 20130409 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN - and - AMANDA LAHOURI ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Jason Gorda , for the Crown, respondent Heather Pringle , for the accused, appellant ) ) HEARD: February 22, 2013 K.L. Campbell J.: REASONS FOR JUDGMENT [Summary Conviction Appeal] A. Overview [ 1 ] The appellant, Amanda Lahouri, was tried by the Honourable Mr. Justice B. Cavion of the Ontario Court of Justice on

charges that, on June 12, 2010, she was in care and control of a motor vehicle while: (1) her ability to operate a motor vehicle wasimpaired by alcohol or a drug; and (2) her blood-alcohol concentration exceeded 80 mgs. of alcohol in 100 mls. of blood.

The trialunfolded as a blended proceeding, with the Crown leading its evidence to establish the commission of the alleged offences, and with theappellant seeking to establish an alleged violation of her constitutional rights so as to potentially exclude the results of the analysis of herbreath samples under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms. [2] At the conclusion of the trial proceedings, the appellant was acquitted of the “impaired” charge, but convicted of the “over80” charge. [3] The appellant now appeals against her conviction on two grounds.

First, the appellant argues that the trial judge intervenedto such an extent in the examination of witnesses that the appearance of fairness in the trial was fatally compromised. Second, theappellant argues that the trial judge failed to provide legally adequate Reasons for Judgment in dismissing the appellant’s Chartermotion and in convicting the appellant on the “over 80” charge, by failing to reconcile the conflicting testimony of the two policeofficers who testified as to the appellant’s indicia of impairment. B. The Interventions of the Trial Judge and the Appearance of Fairness in the Trial Proceedings 1.

The Governing Legal Principles [4] Trial judges are entitled to question witnesses. Indeed, sometimes they are duty-bound by the interests of justice to askquestions. They are not required to remain silent, passive observers of trials. There are, however, limits on their ability to intervene inthe examination of witnesses. Their interventions must never compromise the overall appearance of fairness in the trial proceedings. See: R. v. Brouillard, (SCC), [1985] 1 S.C.R. 39, at p. 46; R. v. Darlyn (1946), (BC CA), 88 C.C.C.269 (B.C.C.A.) at p. 277; R. v. Pavlukoff (1953), (BC CA), 106 C.C.C. 249 (B.C.C.A.); R. v.

McKitka (1982), (BC CA), 66 C.C.C. (2d) 164 (B.C.C.A.). [5] As there are many valid reasons that justify the judicial questioning of witnesses, there is a presumption that judicialinterference in trial proceedings for such purposes has not been undue. In R. v. Hamilton, 2011 ONCA 399; 271 C.C.C. (3d) 208, theCourt of Appeal for Ontario stated, at para. 29: Appellate courts are reluctant to interfere on the basis that a trial judge improperly intervened during a trial.

There is a strongpresumption that a trial judge has not unduly intervened in a trial, and that “there are many proper reasons why a trial judge mayintervene by making comments, giving directions or asking questions during the course of a trial”: Chippewas of Mnjikaning FirstNation v. Chiefs of Ontario, 2010 ONCA 47, at para. 231. [emphasis added] [6] The legal test for determining whether the interventions of a trial judge in any individual case, viewed cumulatively, havecrossed the threshold from permissible questioning to undue interference in the trial is an objective one.

As Martin J.A. stated in R. v.Valley (1986), (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.) at p. 232; Leave denied: [1986] 1 S.C.R. xiii: The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he mightreasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trialwould consider that the accused had not had a fair trial. [Emphasis added – citation omitted] [7] As Oland J.A. observed in R. v.

Dugas, 2012 NSCA 102, 322 N.S.R. (2d) 72, at para. 37, the important question is notwhether the interventions by the trial judge were such that a reasonably minded person who had been present throughout the trial couldconclude that the accused had not received a fair trial, but whether such a person would come to such a conclusion. [8] In the application of this standard, the authorities have collectively articulated a number of helpful general principles toguide trial judges. See: R. v. Stucky, 2009 ONCA 151; 240 C.C.C. (3d) 141, at para. 61-72; R. v. Hamilton, at para. 29-33, 43; R. v.Dugas, at para. 34-45.

Those principles can be summarized as follows:

(1) Refrain From Usurping the Role of Counsel: As a general rule, a trial judge should endeavour to confine him or herself asmuch as possible to his or her own responsibilities and leave counsel to perform their functions in the litigation. The criminal trialprocess is an adversarial one, and should not become an inquisitorial investigation by the trial judge. Accordingly, the examination ofwitnesses must remain, for the most part, the responsibility of counsel, and a trial judge must be careful not to effectively usurp that role. See: R. v. Valley, at pp. 230-231; R. v.

Torbiak and Campbell (1974), (ON CA), 18 C.C.C. (2d) 229 (Ont.C.A.) at pp.230-231; R. v. Stucky, at para. 63; Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, at para. 237.

(2) The Right to Pose Questions: A trial judge is justified in: (

a) posing questions to a witness to clear up ambiguities in theirevidence; (

b) calling a witness to order and focusing him or her on the true matters in issue; (

c) exploring some issue on which thewitness’s evidence has been left vague and uncertain; or (

d) putting questions which should have been asked by counsel in order to elicitevidence on some relevant issue. See: R. v. Brouillard, at p. 47; R. v. Valley, at p. 230; R. v. Bateman (1946), 31 Cr.App.R. 106, at pp.110-112; R. v. Stucky, at para. 64; R. v. Watson (2004), (ON CA), 191 C.C.C. (3d) 144 (Ont.C.A.) at para. 10. Theright to pose questions that should have been asked by counsel is not, however, an open-ended invitation to the trial judge to usurp the

role of the counsel. See: R. v. Valley, at p. 230; R. v. Stucky, at para. 65.

(3) The Timing of Questions: Generally speaking, substantive questions going beyond the clarification of an answer should beposed by a trial judge only after counsel has completed his or her examination of the witness. Otherwise, the trial judge risks interferingwith the prepared organization and flow of the testimony. See: R. v. Valley, at p. 230; R. v. Stucky, at para. 64; R. v. Torbiak andCampbell, at p. 231; Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, at para. 239.

(4) No Cross-Examination: The right of a trial judge to question any witness does not entitle a trial judge to cross-examinewitnesses. Accordingly, a trial judge should not, even temporarily, abandon his or her position of neutrality and become the cross-examiner, especially in cases where he or she is the ultimate fact-finder. See: R. v. W.(A.) (1994), (ON CA), 94 C.C.C.(3d) 441 (Ont.C.A.) at para. 38-42; Reversed: (SCC), [1995] 4 S.C.R. 51; R. v. Valley, at p. 230.

(5) Permitting the Accused to Give His or Her Evidence: The duty on a trial judge to exercise restraint and remain neutral isespecially critical in cases where the accused takes the stand to give evidence. A trial judge must allow the accused to give his or herevidence freely and must not intervene in the examination of the accused so as to effectively preclude the accused from telling his or herstory in his or her own way. See: R. v. Brouillard, at p. 48; R. v. Valley, at pp. 231-232; R. v. Stucky, at para. 66, 71; R. v. Russell, 2011BCCA 113; 302 B.C.A.C. 208, at para. 16-19; R. v. Adano, [2008] O.J. No. 1995 (S.C.J.) at para. 21-24, 36.

(6) Remaining Neutral: A trial judge must not question an accused or a defence witness to such an extent or in such a manner thatconveys the impression that the trial judge has placed the authority of his or her judicial office on the side of one of the parties in thelitigation. See: R. v. Valley, at pp. 231-232; R. v. Stucky, at para. 71; R. v. Augello, (ON CA), [1963] 3 C.C.C. 191(Ont.C.A.).

(7) Refrain From Interfering With the Conduct of the Defence: A trial judge must not intervene in the trial to such an extent that iteffectively renders it impossible for defence counsel to perform his or her duty in advancing the defence on behalf of the accused. Forexample, the trial judge should not divert counsel from his or her chosen topic of examination, or interfere with the sequence anddynamic flow of cross-examination so as to prevent the proper testing of the testimony. See: R. v. Valley, at pp. 231-232; R. v. Stucky, atpara. 71; R. v. Matthews (1983), 78 Cr.App.R. 23, at p. 31; R. v.

Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14(Ont.C.A.) at para. 13; R. v. Watson, at para. 14. [9] Of course, the effect of interventions by the trial judge on the appearance of trial fairness in any given case must be assessedin relation to the unique facts and circumstances of the particular trial. See: R. v. Valley, at p. 231; R. v. Torbiak and Campbell, at p.231; R. v. Stucky, at para. 70. Where the appearance of fairness in the trial proceedings has not been maintained, the verdict reachedcannot stand and a new trial must be ordered.

There is no need to consider the reasonableness or legal propriety of the verdict. [10] In considering whether or not the appearance of fairness has been compromised in any given trial, two of the many factorsthat merit consideration are: (1) whether the trial judge gave counsel an opportunity to ask questions that may have arisen from the trialjudge’s questioning of a witness; and (2) whether counsel at any time objected to the trial judge’s interventions or his or her questioningof a witness.

In this latter regard, the absence of any objection by counsel is not in itself determinative of the issue of the appearance offairness in the proceedings. The trial record must be viewed and assessed in its totality and the impugned interventions must be assessedcumulatively from the perspective of a reasonable observer present throughout the course of the trial, appreciating the reality that no trialis perfect. See: R. v. Stewart (1991), (ON CA), 62 C.C.C. (3d) 289 (Ont.C.A. ) at p. 320; R. v. Kitaitchik, at par. 14. 2. The Interventions by the Trial Judge in the Present Case a.

Introduction [11] This was a relatively straight-forward case. There were four witnesses called by the Crown. The appellant was found in herparked car in the early morning hours of June 12, 2010, on the interior shoulder of the southbound lanes of Highway 404 in the City ofToronto. She was first discovered in this location by a passing tow truck driver, Bob Assenza. When the appellant was unresponsive tohis efforts to rouse her, Mr. Assenza called 911. Shortly thereafter, Cst. Humphries attended at the scene.

He testified as to the variousindicia of impairment he observed in the appellant and how he arrested her at the road-side and demanded samples of her breath suitablefor analysis. Shortly after his arrival on the scene, Cst. Humphries was joined by another officer, Cst. Su, who also gave evidence as towhat happened at the road-side. Eventually, the appellant was delivered to the detachment and turned over to Sgt. McCarthy, a qualifiedbreath technician, who took two breath samples from the appellant. The Certificate from Sgt.

McCarthy established that the appellanthad blood-alcohol concentrations of 180 and 160 mgs. of alcohol per 100 mls. of blood at 2:06 a.m. and 2:30 a.m., respectively, on June12, 2010. The appellant did not testify. b. The Examination-in-Chief of Cst. Humphries 1. Introduction [12] Cst. Humphries was the first witness called by the Crown. At the time of the alleged offence, he had been a police officer forfive years.

He was the police officer who, at approximately 1:00 a.m. on the night of June 12, 2010, was dispatched to the location onthe southbound lanes of Highway 404 to deal with the appellant who, at the time, was unresponsive and alone in her parked vehicle. Initially, Cst. Humphries thought he was attending to some type of medical emergency. However, when he arrived at the scene, afterobserving a variety of indicia of alcohol impairment in the appellant, he ultimately arrested her and demanded that she provide samplesof her breath suitable for analysis. The testimony of Cst.

Humphries was critically important to the outcome of this case. 2. The Background – The Examination by the Crown [13] At the outset of his testimony, the Crown questioned Cst. Humphries on the necessary background information, including theuse of his notes to refresh his memory, the shift he was working that night, and how and when he was dispatched to the location inquestion. These questions by the Crown spanned approximately three or four pages of transcript. However, once Cst. Humphries began

to give his testimony in relation to his observations at the scene, the trial judge took over the examination-in-chief himself. 3. The Examination by the Trial Judge - Generally [ 14 ] The trial judge began by instructing Cst. Humphries as to how he should deliver his evidence. He told the officer to “[p]retend that there was a big video camera filming what [he] was doing and what [he] saw … and what [he] heard” and to describe what he saw with his eyes and heard with his ears. [ 15 ] The trial judge then questioned Cst. Humphries, in a largely non-leading fashion, with questions about what he did, saw and heard.

The trial judge intervened frequently with questions of clarification. Sometimes, he would just tell the officer to “go on” or “move on” with his evidence. The trial judge sometimes commented on the answers given by Cst. Humphries, saying things like “perfect” or “good” or “fine.” Other times, he would direct the officer to speak in clearer terms. On one occasion, he told him to “talk in English.” The trial judge examined Cst. Humphries in this fashion for approximately the next 17 pages of transcript. 4.

The Evidence Adduced by the Trial Judge Through This Questioning [ 16 ] In this fashion, the trial judge led the officer through his evidence with respect to his observations of the appellant’s indicia of impairment, including her “glossy eyes,” her slow response to questions, her admission that she had consumed “a little bit” of alcohol that night, that she had an odour of alcohol on her breath, that she turned her head away from the officer when she spoke to him, that she did not seem happy to see the appearance of the officer on the scene, the fact that she was parked on the shoulder to the left of the highway, and that she had initially been “non-responsive” to Mr.

Assenza when he had tried to wake her. [ 17 ] At one point, the trial judge reminded Cst. Humphies to “go back to the video camera” approach to his evidence in relating “what happened then.” [ 18 ] Crown counsel intervened at one point to ask whether anyone would mind if she told the people, who were apparently being noisy in the hallway of the courthouse, to “quiet down a little bit.” The trial judge replied affirmatively, suggesting that she “see what’s going on out there.” [ 19 ] When the Crown returned to the courtroom, the trial judge returned to his questioning of Cst.

Humphries, taking him back to what he had been saying prior to the interruption. In the same manner as before, the trial judge then elicited from the police officer that he had reasonable grounds to believe that the appellant was impaired by alcohol while having the care or control of her vehicle. In this same fashion, the trial judge also took the officer through his evidence about how he had arrested the appellant, handcuffed her and placed her in his police car. [ 20 ] When Cst.

Humphries began to testify about how he had advised the appellant of her “rights to counsel,” the Crown interrupted to inquire whether defence counsel intended to raise “any issue” in relation to s. 10(

b) of the Charter , and defence counsel confirmed that his Charter application was under s. 8 of the Charter . The trial judge commented “fair enough” and then resumed his examination of Cst.

Humphries, asking what happened after the appellant had been given her right to counsel. [ 21 ] In this same fashion, the officer then explained how he made the “demand” for breath samples from the appellant suitable for analysis in the Intoxilyzer, how he had questioned the appellant about any potential need for medical attention, how he had returned to the police detachment, and the various steps he took back at the detachment. The questions of the trial judge remained, in large measure, open-ended. He periodically told the officer to “just keep going” with his evidence. [ 22 ] At one point while Cst.

Humphries was giving evidence about the appellant’s photo-identification, the Crown interrupted again, saying “sorry,” at which point the trial judge asked defence counsel whether identity was in issue, and defence counsel confirmed that the appellant’s identity was not in issue at the trial. The trial judge then resumed his questioning of the officer. [ 23 ] Again, through questioning by the trial judge, Cst. Humphries testified as to how and when he got back to the police detachment, how he turned the appellant over to acting Sgt.

McCarthy, who was a qualified breath technician, and how he arranged for the appellant to be searched by a female police officer. The officer also explained that, after he had been advised that the appellant had provided two breath samples that were both over the legal limit, he provided some paperwork to the appellant charging her with “impaired” and “over 80” while having the “care or control” of a motor vehicle, and releasing the appellant on a promise to appear. 5. The Advice to the Crown [ 24 ] At that point, having concluded with the substantive testimony of Cst.

Humphries, the trial judge asked the Crown whether she had “[a]ny other questions.” The Crown then began to show the officer the documents that he had received from the qualified breath technician. When she did, however, the following exchange took place between the trial judge and the Crown: The Court: Is the breath tech here? Crown: Yes, he is. I saw him. The Court: So why do you want him … Crown: I … The Court: Well. Go ahead. Crown: I don’t know which technicalities counsel might bring up.

The Court: Well, why don’t you wait until he brings … Defence: Why don’t you … Crown: Then it would be too late. Defence: Why don’t you ask me? Crown: I’d be splitting … The Court: It’s never too late. Crown: I’d be splitting my case. The Court: No you wouldn’t. 6. More Questioning by the Trial Judge [ 25 ] The trial judge then asked defence counsel to review the documents, suggesting that they could be introduced as exhibits on the understanding that Sgt. McCarthy would be testifying. The trial judge then began to question Cst. Humphries about the origin of the documents, and elicited from Cst.

Humphries that he had received them from Sgt. McCarthy and then passed copies of them to the appellant. This further questioning by the trial judge spanned a couple of pages of transcript. 7. The Concluding Questions by the Crown [ 26 ] The Crown then asked two questions of Cst. Humphries, eliciting from him that he made no further observations about the appellant’s indicia of impairment at the police station, and that he had come to the belief that the appellant’s ability to have care or control of her motor vehicle was impaired by alcohol. That concluded the examination-in-chief of Cst. Humphries. 8.

Analysis and Conclusions [ 27 ] Based upon a full review of the transcript of the examination-in-chief of Cst. Humphries, it must be said that it was the trial judge, not the Crown, who conducted this examination. The Crown asked some preliminary background questions at the outset, and ultimately concluded with a couple questions of substance. But the remainder of the testimony of Cst. Humphries was elicited by the trial judge. Indeed, virtually every significant piece of evidence provided by the testimony of Cst. Humphries was elicited by the trial judge.

There is no gainsaying the reality that the trial judge usurped the role of Crown counsel in the examination of Cst. Humphries. [ 28 ] Moreover, the record provides no explanation as to why the trial judge decided to take over the examination-in-chief of Cst. Humphries. The Crown seemed prepared to conduct the examination and was duly questioning the officer, as was her responsibility, when the trial judge took over. Further, there was nothing in the initial answers of Cst.

Humphries or in the manner in which he was giving his evidence that required the intervention of the trial judge in the questioning process. [ 29 ] When a trial judge effectively usurps the role of the Crown in the examination of an important Crown witness, it seriously compromises the appearance of fairness in the trial from two different perspectives. [ 30 ] First, it is unfair to the accused.

When a trial judge assumes the role normally occupied by the Crown in the litigation and effectively leads important evidence that, according to the Crown, establishes the guilt of the accused, the accused might reasonably believe that the trial judge had ceased to be the neutral arbiter of the case and had taken the Crown’s side in the litigation. Indeed, it would be difficult for an accused to believe otherwise when witnessing the trial judge so obviously assisting the Crown in the presentation of its case. [ 31 ] Second, it is unfair to the Crown.

In the vast majority of criminal cases, it is, of course, the Crown that bears the heavy legal burden of proving the alleged guilt of the accused beyond a reasonable doubt. Accordingly, it is only fair that the agent of the Attorney General assigned to conduct the prosecution be given the full opportunity of attempting to overcome that burden by calling the evidence in support of its own case. The criminal justice system is an adversarial one, and the Attorney General is entitled to be represented by skilled counsel who are organized and prepared to conduct the litigation on behalf of the Crown.

It can only impair the ability of the Crown to establish the alleged guilt of the accused if the agents of the Attorney General who are prepared to adduce their evidence are supplanted by a trial judge who, by definition, has no prior knowledge of the case and is limited to conducting an inquisitorial “what happened next” type of examination-in-chief. [ 32 ] In the present case, the conduct of the examination-in-chief of Cst. Humphries by the trial judge revealed both types of unfairness.

It was unfair to the appellant because: (1) the trial judge personally adduced the important evidence that he later relied upon in convicting the appellant; (2) the trial judge provided helpful advice to Cst. Humphries as to how he should deliver his evidence so that it would be best understood; (3) the trial judge periodically provided helpful and encouraging feedback to Cst. Humphries as he gave his evidence; and (4) the trial judge gave helpful advice to Crown counsel about how to conduct her case. On the other hand, it was unfair to the Crown because:

(1) Crown counsel assigned to conduct the prosecution was consigned to the role of observer for most of the examination; (2) the Crown was left, at the end of the examination of Cst. Humphries, to try to fill-in any evidentiary gaps that may have been left by the questioning of the trial judge; and (3) the Crown was forced, in arguing its case at the end of the evidence, to rely upon an important body of evidence that the Crown had no significant role in adducing. [ 33 ] Accordingly, both parties can reasonably complain about the fairness of the trial proceedings in this case. The appellant can,

and does, complain that the trial judge, in dismissing the appellant’s application under the Charter of Rights , and convicting her of the offence of having the care or control of her motor vehicle with an illegal blood-alcohol concentration, expressly relied upon the evidence of Cst. Humphries that he adduced.

The Crown might reasonably have complained, that the trial judge acquitted the appellant in relation to the charge of having the care or control of her motor vehicle while she was impaired by alcohol on the basis of a “reasonable doubt,” because the Crown was deprived of the opportunity to lead the important evidence from Cst. Humphries in support of that charge. c. The Cross-Examination of Cst. Humphries 1. Introduction [ 34 ] The success of the appellant’s Charter application turned on defence counsel’s cross-examination of Cst. Humphries.

In order to establish that the appellant’s breath samples had been obtained in violation of s. 8 of the Charter , the appellant had to establish that Cst. Humphries lacked the necessary reasonable grounds to demand that she provide samples of her breath suitable for analysis. Accordingly, defence counsel sought to undermine the testimony of Cst. Humphries with respect to the various indicia of alcohol impairment that he said he observed in the appellant on the evening of June 12, 2010. 2. Directing the Witness How to Answer Questions [ 35 ] At a number of different points in the cross-examination of Cst.

Humphries, the trial judge intervened to direct the witness how to answer questions posed by defence counsel. Initially, these interventions amounted to the trial judge instructing the witness to “answer the question,” or “listen to the question.” But they soon became more directive as to the content of the answer. For example, during cross-examination about the significance of the fact that the appellant had parked her car on the left shoulder of the road, next to the fast lane of the highway, the following exchange took place: Q: … People can pull over because there is a medical emergency. Right?

A: Hypothetically speaking, people can pull over for any reason. Q: Right. Even on the left shoulder. A: Again, hypothetically, people can pull over anywhere, for any reason. Q: People can even pull over because they believe that [they] may have had too much [to] drink. Their belief may be right or wrong. Right? A: Again, hypothetically, people can pull over for any reason. The Court: Yes. The answer is “yes.” A: I can’t speculate. The Court: Okay. Say “yes.” Q: Right. A: I – yes . Q: All right. The Court: Thank you. Let’s move on . [emphasis added] [ 36 ] Similarly, during cross-examination about how Cst.

Humphries had subsequently prepared his notes from the earlier “dash board scratch pad” notes that he had later destroyed, the following exchange took place: Q: Okay. Where are these [scratch pad] papers? A: They’ve been discarded. Immediately after they were transcribed into the notebook, they were discarded. Q: Okay. Well, who taught you to do that? A: That was straight from my training. I’ve done that with every case. The Court: That’s not what he asked you . A: Sorry. That’s … The Court: Straight from training. Thank you . A: That’s just – my training. The Court: Next question.

Q: Well, there’s no way of my accessing that scratch pad, which effectively are you[r] original notes, right? A: What are you asking, there? There’s two questions in there. Q: All right. I’ll break it down. The Court: He wants to know … A: Are they original … The Court: … where the scratch pads are. A: Can you look at them? No. The Court: Thank you. … Q: They’re your original notes, right? The Court: Yes. Yes. Say “yes.” A: Yes. The Court: It’s the truth. A: Yes. The Court: Go on. Let’s move on . Q: Okay. It – are there any – is there any way of my accessing, right now, your original notes?

The Court: The answer is “no.” They’ve been discarded, right ? A: Yeah. The dash pad notes … The Court: Thank you . A: … have been discarded. [emphasis added] [ 37 ] In these and other similar exchanges, the trial judge, no doubt, thought that he was assisting defence counsel in his cross- examination of Cst. Humphries by directing the officer to provide only the apparent simple “yes or no” answer to the posed questions, in order to move the trial proceedings along more efficiently. [ 38 ] As the Court of Appeal observed in R. v.

Hamilton , at para. 48 , a trial judge may properly intervene “to focus the evidence on the matters in issue,” to “avoid irrelevant or repetitive evidence,” and “ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.” However, the risk inherent in the approach by the trial judge in the present case is that it interfered with the manner in which the evidence was adduced in cross-examination, and altered the substantive content of that evidence.

While directing a witness precisely how to briefly substantively answer particular questions may be efficient, it imposes a clarity on the evidence that would otherwise not have existed and changes the ability of defence counsel to later argue that the witness was evasive and deliberately unhelpful. 3. Interfering With the Content of the Questions in Cross-Examination [ 39 ] At a number of other points in the cross-examination of Cst.

Humphries, the trial judge intervened in the questioning in a way that altered the substantive content of the questions. [ 40 ] The most obvious example of this took place when defence counsel was questioning Cst. Humphries in relation to the significance of the appellant’s failure to respond to some of his inquiries about how much she had to drink on the evening of June 12, 2010. Cst. Humphries had testified that her failure to respond to his questions in this regard suggested to him that she was not responsive, one of the indicia of alcohol impairment.

Defence counsel suggested that, having regard to the point in their conversation at which this happened, the fact that the appellant turned her head away from the officer and remained silent was equally consistent with her desire not to again answer a question that she had already been asked and which she had already answered. After having Cst. Humphries admit that the appellant had a right to remain silent, the following exchange took place: Q: Okay. So I suggest to you that that’s equally consistent with her refusal to answer the question a second time, as opposed to trying to hide something.

The Court: It’s possible, isn’t it? A: Sorry. The Court: I mean, I’m asking … is it possible? I mean, anything is possible .

Q: Well, it’s not a question of possible … A: I believed it to … Q: it’s a question of plausible . A: be a suggestion. The Crown: I’m sorry I can’t hear the officer’s answer. Q: No, because His Honour, respectfully, hasn’t phrased the question in the way I’m trying to ask it . The Court: Look, ultimately … Q: It’s not a question of “anything’s possible.” The Court: But ultimately you’re making submissions, counsel.

I mean, ultimately what you’re saying is, “Your Honour, this consists of that.” I don’t care what he thinks about that. … My concern is that – whether or not the question is put in a way that can be answered by the officer. Q: Well … The Court: Sometimes I think you’re awfully … Q: …with the greatest of respect, Your Honour, respectfully … The Court: Ask again. Ask again . Q: May I make submissions? The Court: Ask again. Q: May I make submissions? The Court: No. Ask the question again and lets just … Q: All right. The Court: … go back to the basics.

Q: It, respectfully, matters what he thinks, because there is a subjective component , as well … The Court: Okay. So ask the question . Q: My question to you is … not whether anything is possible, Your Honour … but whether it isn’t equally consistent that she’s turning away because she already answered the question once and doesn’t want to answer it a second time . A: In my belief, I disagree. [emphasis added] [ 41 ] This exchange illustrates the difficulties that can be caused when a trial judge interferes with the manner in which counsel has structured his or her questions in cross-examination.

With respect to Cst. Humphries’s view that the appellant’s silence in response to questions about her consumption of alcohol, defence counsel wanted to suggest to Cst. Humphries that the appellant’s silence was “equally consistent” with a desire not to repeatedly answer questions she has already answered. This was a relevant and legally proper question. Cst. Humphries should have been permitted to simply answer it when it was first asked.

There was no need for the trial judge to intervene at all. [ 42 ] Moreover, the question was not whether the alternative explanation suggested by defence counsel was theoretically “possible” in the sense that “anything is possible.” An affirmative response from Cst. Humphries that this alternative explanation for the appellant’s behaviour was “possible” would have been of little, if any, assistance to the appellant, who was obliged to establish the alleged violation of her Charter rights on a balance of probabilities. However, if Cst.

Humphries had responded affirmatively to the suggestion that this alternative explanation was “equally consistent” with the adverse inference drawn by Cst. Humphries, this answer would have helped to explain, more neutrally, one of the indicia of impairment relied upon by the officer in reaching his conclusion that he had the necessary reasonable grounds for his demand for breath samples from the appellant.

This would have been an important step towards establishing the absence of reasonable grounds and, thus, a violation of s. 8 of the Charter of Rights . [ 43 ] However, instead of simply permitting defence counsel to question Cst. Humphries on this relevant topic, as he was entitled, the trial judge intervened to change the substance of the question. This led to defence counsel effectively having to explain the nuance of his question and resulted in the unfortunate exchange between the trial judge and defence counsel in the presence of Cst.

Humphries, at the end of which, the trial judge prevented defence counsel from making submissions and insisted that he ask the question that he had asked in the first place.

4. The Cross-Examination of Cst. Humphries by the Trial Judge [ 44 ] At one point during his cross-examination of Cst. Humphries, defence counsel began to question the officer on his evidence in-chief as to how he believed the appellant was in care or control of a motor vehicle and how the appellant was impaired by alcohol. Cst. Humphries agreed that he had not testified that the appellant’s ability to operate a motor vehicle was impaired by alcohol. Cst.

Humphries disagreed, however, with the suggestion that there was any difference between: (1) “somebody being impaired;” and (2) “somebody’s ability to operate a motor vehicle being impaired.” When defence counsel began to question Cst. Humphries about how the appellant’s ability to operate a motor vehicle was impaired, the trial judge expressed his confusion on the issue and sought the assistance of counsel. After defence counsel explained the distinction he was seeking to pursue, the trial judge then directly questioned Cst. Humphries as follows: Q: ... You saw those various things that you indicated.

Those five things [the indicia of impairment]. Right? A: Correct. Q: And you concluded that this lady was impaired? A: Correct. Q: And you at least had reasonable and probable grounds to think she was impaired. In your mind. A: Correct. Q: Right. And because she was basically sitting there, she had care – you thought she had care and control of the vehicle? A: Correct. Q: She wasn’t driving it. A: Correct. Q: Right. So you couldn’t charge her with … A: I couldn’t charge her with impaired driving. Q: That’s right. All right. Okay. I get it. And you wouldn’t have let her drive away, of course? A: Not at all.

Q: Because her ability to drive would be impaired. A: Correct. [ 45 ] After eliciting this evidence from Cst. Humphries, the trial judge turned back to defence counsel and again expressed his confusion on the issue. After a brief exchange, the trial judge suggested that they could further argue the issue “down the road” but that, at the moment, he thought that it was “clear why the officer felt he arrested” the appellant for the offence of impaired care or control.

At that point, the following exchange took place between the trial judge and defence counsel, in the presence of the witness: Defence: Well, Your Honour has put to the officer in a very nice way, respectfully, that … The Court: I try to be nice to everybody, counsel. Defence: Well, I don’t mean nice in the sense of – you were kind, but in a very exact and helpful way for the Crown quite frankly … The Court: The Crown? Defence: … that he wouldn’t have let her drive away, therefore her ability was impaired. The Court: Well, I would’ve thought that was obvious to anybody. Defence: Well, it’s not obvious.

I wasn’t – I was going to ask him questions about that. I’m not able to now . The Court: Well, go ahead. Ask. Defence: Well, Your Honour has already … The Court: I don’t see the difficulty. Defence: … given him the answers . The Court: What answers? I don’t even know what the question is. Defence: … I can’t cross-examine this officer now, respectfully, as to whether he felt that [the appellant’s ability to] operate a motor vehicle … was impaired. How can I do that?

[emphasis added] [46] Defence counsel was entitled to question Cst. Humphries on the issue of whether and how he came to any potential conclusionthat the appellant’s ability of operate a motor vehicle was impaired by alcohol. See, for example: R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta.C.A.). Moreover, defence counsel was entitled to pursue this line of cross-examination withouthaving the trial judge first cross-examining Cst.

Humphries, by means of a series of leading questions, to clearly establish that, havingobserved the various indicia of impairment in the appellant, the officer had formed reasonable grounds to believe that the appellant’sability to operate a motor vehicle was impaired by alcohol. The trial judge may simply have been trying to understand the issue thatdefence counsel was pursuing with Cst. Humphries, but such clarification should have stopped far short of cross-examining Cst.Humphries in a way that hampered, if not prevented, defence counsel from effectively pursuing this line of cross-examination himself.

In short, the trial judge should have let defence counsel pursue this proper line of cross-examination as he saw fit. He should not haveintervened to conduct the cross-examination himself, especially in a way that was predictably unhelpful to the appellant’s position. 3. Conclusions [47] The ultimate question on this appeal is whether the various interventions by the trial judge were such that the appellant mightreasonably conclude that she did not have a fair trial, or whether a reasonably minded person, present throughout all of the trialproceedings, would consider that the appellant had not had a fair trial.

While none of the individual interventions by the trial judge, inand of themselves, would likely have supported the conclusion that the appellant had not received a fair trial, in my view, when the trialproceedings in this case are viewed in their entirety, the interventions of the trial judge, viewed cumulatively and against the entirebackdrop of the trial, lead one to the conclusion that a reasonable person would conclude that the appellant had been denied a fair trial.

Most significantly: • The trial judge did not confine himself to his own responsibilities and did not leave it to counsel to perform their ownfunctions in the litigation. Instead, the trial judge usurped the role of the Crown in the examination-in-chief of Cst. Humphries,personally leading him through almost the entirety of his important evidence. In so doing, the trial judge appeared to place the authorityof his office on the side of the prosecution. • The trial judge intervened to advise and direct witnesses how to answer questions posed by defence counsel in cross-examination.

The trial judge also interfered with the manner in which defence counsel sought to put questions to Crown witnesses. • In the midst of defence counsel’s cross-examination of Cst. Humphries, the trial judge intervened to personally cross-examineCst.

Humphries in a way that undermined the position sought to be advanced by the appellant, and which prevented defence counselfrom effectively cross-examining the witness on that issue. • At various points during the course of the trial, defence counsel for the appellant raised clear objections with the trial judge asto how he was unfairly intervening in the proceedings to the overall detriment of the appellant. [48] In short, the nature and frequency of the interventions of the trial judge compromised the necessary appearance of fairness inthese trial proceedings, such that the conviction of the accused cannot stand.

There must be a new trial. C. The Sufficiency of the Reasons for Judgment [49] In light of the conclusion that I have reached in relation to the interventions of the trial judge, and their collective impact uponthe appearance of fairness in the trial proceedings, there is no need to consider the appellant’s alternative argument that the Reasons forJudgment of the trial judge are legally inadequate. Accordingly, I express no conclusion on that issue. D.

Conclusion [50] In the result, the appellant’s appeal is allowed, her conviction for having care or control of her motor vehicle while having ablood-alcohol concentration in excess of 80 mgs. of alcohol in 100 mls of blood is set aside, and a new trial is ordered on that charge. An order shall issue accordingly. ___________________________ Kenneth L. Campbell J. Released: April 9, 2013 CITATION: R. v. Lahouri, 2013 ONSC 2085

COURT FILE NO.: 41/12 DATE: 20130409 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - AMANDA LAHOURI REASONS FOR JUDGMENT [Summary Conviction Appeal] K.L. Campbell J. Released: April 9, 2013