R v John, 2023 SKCA 116

Court of Appeal for Saskatchewan Docket: CACR3092 Citation: R v John , 2023 SKCA 116 Date: 2023-10-25 Between: Keith Michael John Appellant And His Majesty the King Respondent Before: Caldwell, Schwann and McCreary JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice McCreary In concurrence: The Honourable Mr. Justice Caldwell The Honourable Madam Justice Schwann On appeal from: 2016 SKPC 11 , Saskatoon Appeal heard: January 27, 2023 Counsel: Thomas Hynes for the Appellant Andrew Davis for the Respondent McCreary J.A. I.

INTRODUCTION [ 1 ] This appeal explores the circumstances in which a trial judge’s comments and interventions during a trial undermine trial fairness. [ 2 ] A trial was held to determine whether Keith John was guilty of charges of aggravated assault. On June 7, 2013, a group fight involving several people occurred in Rosthern, Saskatchewan. Two brothers, Elliott and Steven Lafontaine, suffered multiple stab wounds in the fight. After a trial in the Provincial Court of Saskatchewan, Mr.

John was convicted of two counts of aggravated assault and one count of carrying a weapon for a dangerous purpose: R v John , 2016 SKPC 11 [ Trial Decision ]. The key issue at trial was identity – i.e., whether it was Mr. John who had stabbed the two brothers during the fight. [ 3 ] Mr. John appeals from his convictions on the basis that his trial was unfair. He contends that the cumulative effect of the trial judge’s many interventions in the trial made it appear as though the trial judge was an advocate for the Crown and also interfered with defence counsel’s strategy and function in the trial. Mr.

John also appeals from his designation as a dangerous offender and the indefinite sentence imposed. [ 4 ] For the reasons that follow, it is my view that the trial judge’s multiple interventions in the trial rendered it unfair. I would therefore allow Mr. John’s appeal of his convictions, quash his convictions, and order a new trial. Given this result, I do not address Mr. John’s appeal against his designation and the sentence that was imposed pursuant to

Part XXIV of the Criminal Code . II. ANALYSIS A. The conviction appeal [ 5 ] The central issue in this appeal is whether the trial judge’s commentary and interventions during the trial compromised its fairness. Trial fairness is a question of law: R v Schmaltz , 2015 ABCA 4 at para 13 , 320 CCC (3d) 159, reviewable on a correctness standard: R v Shepherd , 2009 SCC 35 at para 20 , [2009] 2 SCR 527. [ 6 ] Mr.

John contends, and I agree, that his trial was unfair because the trial judge’s conduct of it – which involved, inter alia , him frequently questioning the witnesses himself, interrupting counsel’s questioning and making extraneous comments throughout the trial – gave rise to a reasonable perception that the trial judge was aligned with the Crown and, in some instances, interfered with Mr. John’s defence strategy. [ 7 ] I begin by considering, generally, the role of a judge in a criminal trial in Canada. 1.

The law: trial fairness and roles of the participants [ 8 ] There are two types of criminal justice systems that dominate the nature of investigation and adjudication around the world: inquisitorial and adversarial. Under these systems, a case is placed before a trier of fact in two distinct ways. In the inquisitorial model, as in continental Europe, a judge takes charge of gathering the evidence in an independent and impartial way and assumes an investigatory role: R v Kahsai , 2023 SCC 20 at para 51 , 428 CCC (3d) 135.

In an adversarial system, such as in Canada, the opposing parties present relevant evidence and argument while the trial judge (or a judge and jury) presides as “an objective decision-maker” ( Kahsai at para 51 ). [ 9 ] In a Canadian criminal trial, t he Crown bears the evidentiary burden of proving the guilt of the accused beyond a reasonable doubt. It does so by adducing relevant and admissible evidence. The accused is entitled to the presumption of innocence and is not

required to testify or present evidence – but may do so if they choose. The prosecution and defence compete against one another asadversaries before the impartial arbiter – the judge, or a judge and jury – who then makes factual findings and legal rulings, commensuratewith their respective functions.

The adversarial nature of court proceedings in Canada has been recognized as “[t]he bedrock of ourjurisprudence”, “a fundamental tenet of our legal system”, and “a principle of fundamental justice” (respectively, R v R.D.S., (SCC), [1997] 3 SCR 484 at para 15 [R.D.S.]; Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 at358; R v Swain, (SCC), [1991] 1 SCR 933 at 937 [Swain]; and R v Cook, (SCC), [1997] 1 SCR 1113 atpara 39). [10] The Canadian adversarial system does not permit a judge to become an independent investigator who seeks out the facts: R.D.S.at para 15.

On the contrary, it is essential to a fair trial that each of the justice-system participants – the Crown, the defence counsel andthe trial judge – adhere to their respective roles and duties. [11] When acting as an advocate, a lawyer must represent their client resolutely and honourably within the limits of the law, whiletreating the court with candour, fairness, courtesy and respect: Code of Professional Conduct (Regina: Law Society of Saskatchewan,April 2023), s. 5.1-1 [Code].

The defence lawyer’s duty is to protect the accused “as far as possible from being convicted, except by atribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which [the accused] ischarged”: Code, s. 5.1-1, Commentary 9. In an adversarial proceeding like a criminal trial, this means raising fearlessly every issue,advancing every argument, and asking every question that the lawyer thinks will help the accused’s case, and to endeavour to obtain forthe accused the benefit of every defence authorized by law: Code, s. 5.1-1, Commentary 1.

The defence has no obligation to assist theprosecution and is entitled to assume a purely adversarial role toward the Crown: R v Stinchcombe, (SCC), [1991] 3 SCR326 at 333; and Code, s. 5.1-1, Commentary 3. [12] The Crown, however, is not entitled to assume a purely adversarial role toward the defence.

The purpose of a criminalprosecution is not to obtain a conviction; it is to put before a judge or jury all available, relevant and admissible evidence necessary todetermine the guilt or innocence of the accused: Proulx v Quebec (Attorney General), 2001 SCC 66 at para 41, [2001] 3 SCR 9, quoting Rv Boucher, (SCC), [1955] SCR 16 at 23–24; see also Code, s. 5.1-3, Commentary 1.

While it is both permissible anddesirable that the Crown vigorously pursue a legitimate result to the best of its ability, its primary duty is to see that justice is donethrough a fair trial on the merits. [13] Generally, a trial judge must not take on, or risk being perceived to have taken on, an adversarial or even quasi-adversarial role.A trial judge sits – and hears and determines the issues raised by the parties: R v Brouillard, (SCC), [1985] 1 SCR 39 at44 [Brouillard], quoting from Jones v National Coal Board, [1957] 2 QB 55 (CA) at 63.

In essence, the trial judge’s primary role is that ofa listener: R v Huang, 2013 ONCA 240 at para 33, 115 OR (3d) 596 [Huang]. [14] Nevertheless, trial judges are responsible for the conduct of the trial: Brouillard at 44–45; and R v Murray, 2017 ONCA 393 atpara 91, 347 CCC (3d) 529 [Murray].

A trial judge may, and sometimes must, intervene to clarify an unclear answer, to resolve amisunderstanding of the testimony, to correct inappropriate conduct by counsel or witnesses, or to otherwise ensure a fair trial: Brouillardat 45; R v Switzer, 2014 ABCA 129 at para 13, 310 CCC (3d) 301; R v Pompeo, 2014 BCCA 317 at para 80, 313 CCC (3d) 539[Pompeo]; and Murray at para 92. However, in doing so, a trial judge must exercise their trial management powers carefully: R vSamaniego, 2022 SCC 9 at para 22, 412 CCC (3d) 7. They must not undermine the functions of counsel or disrupt counsels’ trialstrategies.

The trial judge must not descend into the arena or enter the fray: R v Oracz, 2011 ABCA 341 at para 7 [Oracz]. Although a trialis a search for the truth, the Canadian judicial system does not permit a judge to become an independent investigator who seeks out thefacts: R.D.S. at para 15. That task should be left to the parties to tender the evidence, conduct the examinations and cross-examinations ofthe witnesses, and advance their legal and factual arguments: Oracz at para 7; and it is counsel’s job, not the trial judge’s, to exploreinconsistencies in a witness’s testimony: Huang at para 33.

In particular, a judge must be very cautious in interfering with the presentationof the defence case. The accused has a constitutional right to make full answer and defence, which involves choosing the defenceadvanced: see Swain at 972. [15] Where a trial judge has overstepped the limits of the judicial function by intervening to an unwarranted degree, the appearanceof trial fairness is undermined, and a new trial must be ordered: Pompeo at para 80.

The ultimate question for an appeal court is notwhether the judge at trial was, in fact, not impartial or whether the accused was, in fact, prejudiced by the trial judge’s interventions;rather, it is whether a reasonably minded person who had been present for the trial throughout would consider that the accused had not hada fair trial: R v Stucky, 2009 ONCA 151 at para 68, 240 CCC (3d) 141, quoting R v Valley (1986), (ON CA), 26 CCC(3d) 207 (Ont CA) at 232; and Murray at para 96. The necessity of ensuring a fair trial is what governs the appellate inquiry.

The trialmust be perceived by all concerned to have been conducted fairly and impartially: Oracz at para 7; see also Brouillard at 48. [16] This Court recently summarized the role of the trial judge in a criminal proceeding, noting the importance of restraint inensuring trial fairness.

In R v Dirksen, 2021 SKCA 6 at para 51, 398 CCC (3d) 411, Tholl J.A. stated: [51] Trial judges may ask questions of witnesses, including an accused person, in order to clarify their responses, when it appears thewitness has misunderstood a question from counsel or to ask other necessary questions: R v Brouillard, (SCC), [1985] 1SCR 39. They must, however, be cautious in exercising this power so that they avoid creating an unfair trial or the appearance of one.

Thevolume and nature of a judge’s questions can lead to the perception that the trial judge has taken a side, interfere with the ability ofcounsel to present their case, impede accused persons in providing their testimony, and, in the case of a jury trial, invite a jury todisbelieve a witness: Brouillard, R v Schmaltz, 2015 ABCA 4, 320 CCC (3d) 159, and R v Murray, 2017 ONCA 393, 347 CCC (3d) 529.On the other hand, focused and restrained questions do not generally create any issues with trial fairness: R v Gahan, 2014 NBCA 18, 311CCC (3d) 83. [17] The Ontario Court of Appeal has also considered the general principles of fairness that govern a trial judge’s management of atrial, and any interventions made by them during the course of trial.

In Murray, Watt J.A. summarized the following principles: [91] It is well established that a trial judge is no longer a mere referee, an ear and eye witness who must sit passively while counselpresent the case as they see fit: R. v. Felderhof (2003), (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 40; Chippewas ofMnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, at para. 232, leave to appeal to S.C.C.

refused, 276 O.A.C. 398 (note); R. v. Brouillard, (SCC), [1985] 1 S.C.R. 39, at p. 44. We accept that not only may ajudge intervene in the adversarial process, but also that sometimes intervention becomes essential to ensure that justice is done insubstance and appearance: Brouillard, at p. 44. [92] A trial judge may intervene to focus the evidence on issues material to a determination of the case. To clarify evidence as it hasbeen given and is being given. To avoid admission of evidence that is irrelevant. To curtail the needless introduction of repetitiveevidence.

To dispense with proof of the obvious or uncontroversial. To ensure the way that a witness answers or fails to respond toquestions does not unduly hamper the progress of the trial. And to prevent undue protraction of trial proceedings: Chippewas, at paras.233-234. [93] Trial judges should be cautious in the exercise of these various incidents of what might be compendiously described as the trialmanagement power. For the most part, a trial judge should confine herself to her own responsibilities, leaving counsel and the jury to theirrespective functions: R. v. Valley (1986), (ON CA), 26 C.C.C. (3d) 207 (Ont.

C.A.), at p. 231, leave to appeal to S.C.C.refused, [1986] 1 S.C.R. xiii (note); R. v. Torbiak [(1974), (ON CA), 18 CCC (2d) 229] and Campbell (1974), 18C.C.C. (2d) 229 (Ont.

C.A.), at pp. 230-31. [94] The principal types of intervention that attract appellate disapprobation include, but are not limited to: i. questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for theCrown; ii. questioning witnesses in such a way as to make it impossible for counsel to present the defence case; iii. intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and iv. inviting the jury to disbelieve the accused or other defence witnesses.

See Valley, at pp. 231-232; R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 71. [95] Appellate courts are reluctant to interfere on the ground that a trial judge improperly interfered during the course of a trial. Astrong presumption exists that a trial judge has not intervened unduly at trial: R. v.

Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, atpara. 29, leave to appeal to S.C.C. refused, 304 O.A.C. 398 (note), 304 O.A.C. 397 (note), and 303 O.A.C. 395 (note); Chippewas, atparas. 231, 243. [96] When undue intervention is advanced as a ground of appeal, the fundamental question for the reviewing court to determine iswhether the interventions led to or resulted in an unfair trial. The issue is assessed from the perspective of a reasonable observer presentthroughout the trial: Hamilton, at para. 30; Stucky, at para. 72.

The analysis is contextual and requires an evaluation of the interventionscumulatively, likewise their cumulative effect on the actual or apparent fairness of the trial: Hamilton, at para. 32; Stucky, at para. 72. [18] Finally, in Schmaltz, the Alberta Court of Appeal provided specific guidance as to the scope and effect of judicial interventionin the accused’s cross-examination of Crown witnesses: [19] In this case, where trial unfairness is said to arise in part from the trial judge’s interventions in defence counsel’s cross-examination of a witness, several principles ought to be borne in mind:

(1) The right of an accused to present full answer and defence by challenging the Crown’s witnesses on cross-examination flows from thepresumption of innocence and the right of the innocent not to be convicted: R v Seaboyer, (SCC), [1991] 2 SCR 577 atpara 39, [1991] SC J No 62 (QL); [R v Osolin, (SCC), [1993] 4 SCR 595] at para 25. This is particularly so whencredibility is the central issue in the trial: Osolin at para 27, citing R v Giffin, 1986 ABCA 107, 69 AR 158 at 159.

(2) The trial judge may intervene in certain instances, including to clarify an unclear answer, to resolve misunderstanding of the evidence,or to correct inappropriate conduct by counsel or witnesses.

This would extend to protecting complainant witnesses – especiallycomplainants to a sexual assault – from questions tendered for an illegitimate and irrelevant purpose designed to demean, particularlywhere those questions are random shots at the complainant’s reputation or groundless questions directed to discredited “rape myths” to theeffect that the complainant’s unchaste or aroused state made it more likely that she would have consented to the sexual activity inquestion: [R v Lyttle, 2004 SCC 5, [2004] 1 SCR 193] at 208-09; R v Valley, (1986) (ON CA), 26 CCC (3d) 207 at para53, 13 OAC 89, leave to appeal refused [1986] SCCA No 298 (QL) [Valley]; R v Regan, 2002 SCC 12 at para 85, [2002] 1 SCR 297; R vShearing, 2002 SCC 58 at para 76), [2002] 3 SCR 33.

(3) When the trial judge does intervene, he or she must not do so in a manner which undermines the function of counsel, that frustratescounsel’s strategy, or that otherwise makes it impossible for defence to present the defence or test the evidence of Crown witnesses:Valley at para 55; R v Brouillard, [1985] 1 SCR 39 at 44-47, ; R v Konelsky, 1989 ABCA 201 , 98 AR 247 at 248,68 Alta L R (2d) 187 (CA).

(4) If a trial judge “enters the fray” and appears to be acting as an advocate for one side this may create the appearance of an unfair trial: Rv Switzer, 2014 ABCA 129 at para 7, 572 AR 311 [Switzer].

(5) In determining whether the trial judge’s interventions deprived the accused of a fair trial, those interventions should not be consideredseparately and in isolation from each other, but cumulatively: R v Khan, 2001 SCC 86 at para 77, [2001] 3 SCR 823 [Khan]; R v Stucky,2009 ONCA 151 at para 72, 303 DLR (4th) 1, R v Watson (2004), (ON CA), 191 CCC (3d) 144 at para 14, 192 OAC263.

The concern here is that incidents which, considered in isolation, might be viewed as insignificant might combine to lead areasonably minded person to consider that the accused had not had a fair trial: Khan at para 76; R v Stewart (1991), (ON CA), 62 CCC (3d) 289 at para 46, 1991 CarswellOnt 1317 (CA) [Stewart]. [19] I adopt the statements of principles set out in these decisions.

2. The trial judge’s interventions [ 20 ] I turn now to Mr. John’s trial. As noted, Mr. John argues that the cumulative effect of the trial judge’s many interventions in the trial rendered it unfair.

These interventions, he says, both conveyed the impression that the judge aligned himself with the case for the Crown and interfered with his counsel’s questioning of key Crown witnesses in a manner that undermined his defence strategy and made it more difficult to present his case. [ 21 ] As I have noted above, appellate courts should be reluctant to interfere on the ground that a trial judge improperly got involved in a trial because, when a judge intervenes, there is a strong presumption that they did not do so unfairly.

In other words, there is a high bar to clear to prove that a trial judge has interceded to such a degree that the trial is rendered unfair. Nevertheless, when I consider the cumulative effect of the trial judge’s many interventions in this trial, I can only conclude that the trial was unfair to Mr.

John. [ 22 ] The trial judge’s conduct of the trial that ultimately led to it being unfair is illustrated by the following examples. [ 23 ] First, although I have not set them out in any particular order, the record shows that the trial judge interjected during defence counsel’s cross-examination of the Crown’s police witness, Constable Desmond Jackson, to express his belief that misleading a witness during a police interrogation is not “against the law”. Constable Jackson had testified that he had interviewed Mr. John. The exchange between the trial judge and Cst. Jackson started with defence counsel asking Cst.

Jackson the following question: Q You agree that your comment was immediately after he asked you whether the victims had pointed him out, correct? A Okay, yes. Q And you could see how that might mislead somebody? A Sure, yes. [ 24 ] The trial judge then interrupted to engage with defence counsel as follows: THE COURT: I didn’t think misleading was against the law. MR. LITTLE: Misleading -- THE COURT: And I have some problem. I’m not interrupting. I’m just thinking what? You know. MR. LITTLE: Well, it is.

It’s clearly trickery to approach somebody with evidence that they don’t have and should Your Honour want case law in that regard I could certainly file it. THE COURT: Well, I’d be interested in hearing about it. You know, the issue here is threats, promises or inducements and a police officer routinely uses trickery, I think, to gain statements from -- MR. LITTLE: Trickery but not lies. The trickery we would see, Your Honour, oh, I have a buddy that molests kids, too, it’s no big deal. That’s the trickery that’s been found to be okay.

I could certainly provide you case law to show you that indicating like essentially (INDISCERNIBLE) we have DNA evidence even and that has been found to be police oppression and should we need to go there I could provide Your Honour with case law. THE COURT: No, go ahead then, yeah. Q Constable Jackson, you’d also agree that it’s not appropriate for you to give any legal advice or tell anybody that if they provide a statement they won’t get as long in jail, right? A Yes. Q And it’s also an important part of your job not to unintentionally give an individual this oppression [ sic ], correct?

A Yes. [ 25 ] The trial judge’s interruption, and then his expression of a questionable opinion about the legality of police conduct while the police witness was on the stand, came at a crucial point in the cross-examination, when defence counsel was seeking to elicit an admission from this witness that would be helpful to Mr. John’s defence. This interruption plainly interfered with the defence strategy. [ 26 ] A second example arose, in the context of the trial judge’s decision on the voir dire respecting the admissibility of Mr. John’s statement to the police.

The trial judge made comments that could be perceived as being critical of Mr. John and of his strategy of challenging the voluntariness of his statement. The trial judge commented: “I just don’t feel there’s any evidence before me that the defendant felt threatened or induced or promised. There just isn’t a scrap of that. He is a remarkably sophisticated individual on the video. He knows how to play the system. He played strategically which is what he’s in fact doing today as far as I’m concerned ” (emphasis added). The trial judge’s expression of a negative opinion about what motivated Mr.

John to challenge voluntariness eroded the trial judge’s appearance of neutrality. His statement implies that, before the Crown’s case was complete and the verdict was delivered, he had already formed an adverse view of Mr. John’s character and motivations. This obviously detracted from the trial judge’s obligation to be seen as an impartial arbiter. [ 27 ] Third, the trial judge interjected during Elliott Lafontaine’s examination-in-chief. As I previously noted, Elliott Lafontaine was one of the victims of the alleged stabbing assaults, along with his brother, Steven Lafontaine.

Elliott Lafontaine testified in his examination-in-chief about what happened to him during the group fight. However, the trial judge interjected in that examination to ask the witness additional questions about whether the weapon he was attacked with was metal or plastic, whether his wounds were “scratches” or “stabs”, and about the number of staples required to treat his wounds.

While these were legitimate questions for the Crown to ask, coming from the trial judge, one could reasonably perceive that this line of questioning assisted the Crown to prove the wounding, maiming or disfiguring elements of the charge of aggravated assault.

[ 28 ] Fourth, the trial judge also interjected during Steven Lafontaine’s examination-in-chief to ask him to identify who had said “Stab him one more time” during the fight. Again, this question could reasonably be perceived as assisting the Crown. The trial judge further interrupted during Steven Lafontaine’s cross-examination to pursue the issue of whether he had been intimidated.

The trial judge suggested to the witness that any attempts to intimidate him should be reported to the trial judge or the Crown, and that either of them would take action, stating “if anyone threatens you … or says anything or gives you the stink eye or anything I want you to report it to Mr.

Bains [the Crown prosecutor] or myself and we’ll do something about that, okay?” In my view, these statements reasonably created a perception that the trial judge was aligned with the Crown because he had suggested to the witness that he and the Crown, together, would protect the witness. [ 29 ] Fifth, at the conclusion of Steven Lafontaine’s testimony, Steven asked the trial judge about being reimbursed for lost wages and medical bills resulting from his injuries.

The trial judge responded not just by referring Steven Lafontaine to the Saskatchewan Crimes Compensation Board but by suggesting that he could sue Mr. John. The obvious difficulty with these comments was that they implied that Mr. John was, in fact, responsible for Steven Lafontaine’s injuries, which was exactly what the criminal trial was to determine. Thus, again, the trial judge’s extemporaneous comments left the impression that he was not impartial and created a reasonable perception that he had already decided Mr.

John’s guilt, without hearing all the evidence. [ 30 ] The sixth example occurred when Gilbert Muskego testified. Gilbert Muskego was a Crown witness who had testified in examination-in-chief that he and four friends had engaged Elliott and Steven Lafontaine in the fight and that he had participated in the fight. When Gilbert Muskego was cross-examined, he agreed that he was unsure who had stabbed Elliott and Steven Lafontaine. Mr. Muskego answered: “Yeah, could have been any one of us”. Defence counsel responded: “Could have been any one of you’s [ sic ]? Was it you?”.

The trial judge then interrupted at this crucial point in the cross-examination, putting the following direct question to this witness: THE COURT: Did you stab him? THE WITNESS: No. THE COURT: That takes one person out of the list.

Although the trial judge asked roughly the same question as had defence counsel, an interruption at that point could be seen as frustrating defence counsel’s function and the defence’s strategy and could be taken as being disdainful of that strategy. [ 31 ] Seventh, after the trial judge allowed the Crown to recall Gilbert Muskego, he proceeded to ask more questions of this witness, including whether it was Gilbert’s sister who had taken Mr. Muskego to the lake to discard the knife that was used to stab Elliott and Steven Lafontaine, and whether his sister saw him discard the knife.

The trial judge also questioned Mr. Muskego about letters he indicated his sister had received from Mr. John. These questions concluded with the trial judge engaging with defence counsel as follows: THE COURT: It might be hearsay but I want to hear about [it] . If there’s witness tampering on here, Mr. Little [defence counsel], I’m going to take a very dim view of it. Now this is something that’s likely going to have to be investigated I’m sure. MR. LITTLE: Yeah, but not in open court, Your Honour. … MR.

LITTLE: We don’t allow hearsay in open court for investigative purposes. [ 32 ] The trial judge’s questions in this instance went far beyond clarifying Gilbert Muskego’s evidence. They can be seen as eliciting additional evidence from Mr.

Muskego, which interfered with defence counsel’s function and had the potential to thwart the defence strategy. [ 33 ] Then, after defence counsel objected to the discussion of the letters on the basis that such evidence was hearsay, the trial judge determined that he would allow the hearsay evidence and he continued to pursue the matter with the witness, asking Gilbert Muskego if he had seen and read the letters. The exchange was as follows: Q And so this knife you’ve described with blood on it, you put it back behind the house and the next morning then how did you get out to Beardy’s to throw it out?

A Nikita took me. THE COURT: Nikita took you to the [ sic ] Beardy’s? THE WITNESS: To the [ sic ] Beardy’s, yeah. THE COURT: Did she see you throw the knife away? THE WITNESS: Yeah. THE COURT: Nikita did? THE WITNESS: Yeah. I’m just going to tell the truth of everything. I’m not going to lie. I’m not going to lie for nobody. Q Now, did -- did -- in the last two years did [Mr. John] talk to you in any way? A No, never talked to me or nothing. Q So what was making you feel scared then the last couple years? A Because he was sending my sister letters with his blood. Q And that’s Nikita, the person -- A Yeah.

Q -- your not biological sister but you said you treat -- A Yeah. THE COURT: He was sending letters to Nikita?

THE WITNESS: Yeah. THE COURT: About what? [ 34 ] Eighth, between the Crown’s questioning of Mr. Muskego after he was recalled, and further cross-examination by defence counsel, the trial judge, in open court, indicated that he would be directing the police to investigate whether Crown witnesses were tampered with, stating: THE COURT: Okay. I will be -- whatever happens, I will be directing or asking the RCMP to investigate the complaint outlined by Mr. Muskego in terms of witness tampering which I take an extremely dim view of. He’s also related some evidence to the Court that Ms.

Nikita [ sic ] was involved in the knife throwing, at least she witnessed it so that may be something the RCMP also want to investigate but I’ll let Mr. Bains [Crown counsel] make that decision so Gilbert, you’re back on the stand. Mr. Little has some questions for you. Please answer him as truthfully as you can. [ 35 ] The trial judge’s comments in this regard threatened the perception of his neutrality in the proceedings.

To the reasonable observer, it could be inferred that the trial judge had the authority to direct the RCMP to investigate criminal offences and that he believed an offence might have been committed by those connected to Mr. John. This conduct made the trial judge appear to be aligned with the Crown. [ 36 ] Ninth, when, after being recalled, Gilbert Muskego was cross-examined again, defence counsel was able to establish, through Mr. Muskego’s own admissions, that he had been lying in his earlier testimony at trial: Q In your previous evidence you said you never seen [ sic ] a knife all night, correct? A Yeah.

Q And in fact that was a blatant lie to His Honour, right? A Yeah. [ 37 ] Defence counsel then asked the witness whether he had been “kind of” lying throughout the whole of the matter, and Mr. Muskego confirmed that he had: Q And in fact you didn’t just lie to His Honour, you also lied to the officer the night you provided the statement, right? A Yeah. Q So essentially you’ve kind of been a liar though this whole thing, haven’t you, Gilbert? A Kind of, yeah. Q Yeah, and in fact anger or embarrassment has more to do with you remembering disposal of the knife than anything, doesn’t it?

A I guess so, yeah. [ 38 ] However, the trial judge then intervened to ask Gilbert Muskego more questions at the conclusion of his cross-examination. These questions appeared to be directed at rehabilitating Mr. Muskego’s credibility and at creating an opportunity for him to confirm that he was, in fact, telling the truth: MR. LITTLE: That’s everything, Your Honour, thank you. THE COURT: Gilbert, what did [Mr. John] say at the house when he came back? THE WITNESS: He just told me to throw away the knife so that we wouldn’t get caught for it. THE COURT: Is that the truth? THE WITNESS: Yeah.

THE COURT: Okay, and the knife you say you disposed of -- THE WITNESS: Yeah. THE COURT: Is that the truth? THE WITNESS: Yeah. THE COURT: You actually threw the knife away? THE WITNESS: Yeah. THE COURT: And your sister saw that? THE WITNESS: Yeah. THE COURT: Okay. Thank you. Those are my questions. Any questions arising out of my questions? You’re excused, Gilbert. I realize you’re - - how old are you now? You’re 19 now? THE WITNESS: Yeah. THE COURT: You did very well. It’s a very difficult situation to find yourself in and don’t think anyone thought -- Mr. Little is just doing his job, as is Mr. Bains, okay?

THE WITNESS: Yeah. Yeah. THE COURT: All right. Good luck. Thank you, sir. Are you prepared to call your next witness, Mr. Bains? [ 39 ] This intervention was particularly problematic because the Crown witnesses’ credibility and the reliability of their evidence

were key to the issue of identification, which was the sole question at this trial. In the Trial Decision, the trial judge felt the need to statethat he had asked questions of Gilbert Muskego after he was recalled only to clarify the witness’s evidence (see para 23). With respect, thetrial judge’s questions went well beyond seeking clarification. They were leading, and they bolstered the Crown’s case by assisting toprove elements of the offences with which Mr. John was charged.

They also assisted to rehabilitate Gilbert Muskego’s previously erodedcredibility, thus interfering with the defence strategy and with Mr. John’s right to test the evidence of that Crown witness. [40] Finally, the trial judge also interjected during the cross-examination of Troy Muskego, a Crown witness who had alsoparticipated in the fight. Defence counsel put to Troy Muskego that he had only said that Mr. John was the person who stabbed Elliott andSteven Lafontaine “to get this over and done with”.

Troy Muskego agreed with that proposition, which was a significant admission thatundermined the credibility of his previous testimony. At that point, the trial judge interjected and objected to defence counsel’s question,apparently on the basis that the question was leading. I pause here to state the obvious – that leading questions are a permitted andstandard technique in cross-examination. The exchange that took place was as follows: Q Okay. We know [Mr. John] said to you, “Don’t rat me out.” you agree thathe said that, correct?A Yeah.Q I’m putting it to you that [Mr.

John] never said to you that he stabbedanybody, he just said to you, “Don’t rat me out,” is that possible?A No.Q Sorry, was that a yes?A No.MR BAINS: It’s a No. He said no.MR. LITTLE: It’s a no, okay.THE COURT: So it’s not possible.Q Why is that not possible?A I don’t know, because I knew he did it. I just want to get this over and donewith, man.Q You just want to get this over and done with?A Yeah.Q So you’re just going to say [Mr. John] did it to get it over and done with?A Yeah. Yeah.Q Yeah?A Yeah.THE COURT: Hold on.

This whole line of cross-examination -- I wantthis witness to come up with his own answer so who -- what did [Mr. John] sayto you?THE WITNESS: He said, “Don’t rat me out.”THE COURT: Okay. We’ve established that. Then what did he -- Mr.Little wants to know what he said about the stabbing. Do you recall him actuallysaying the word “stab?”THE WITNESS: Yeah they -- he stabbed him.THE COURT: Sorry?THE WITNESS: He stabbed him.THE COURT: Okay.

You’re saying he said he stabbed him but did hesay, “I stabbed him,” at the house?THE WITNESS: Yeah.THE COURT: Okay.THE WITNESS: I’m just all confused here and --THE COURT: See, we weren’t there, okay. We weren’t there. None ofus were there --THE WITNESS: Yeah.THE COURT: -- and it’s very important for Mr.

John’s sake and yoursand everyone in the room that we get the -- your exact -- if you’re not sure aboutsomething it’s okay to say you know what, it’s two years ago, I’m not sure. (Emphasis added) [41] The trial judge’s interruption, which elicited further evidence from the witness at a critical point in his cross-examination, canonce again be seen as interfering with Mr. John’s defence strategy. Defence counsel had just undermined Troy Muskego’s credibility quiteeffectively, but the trial judge’s objection and interjection gave the witness an opportunity to rehabilitate himself.

This obstructed Mr.John’s opportunity to test the Crown’s evidence and frustrated defence counsel’s strategy. [42] When assessing these interventions, the question to determine is whether, taken as a whole, they resulted in an unfair trial – i.e.,did they, cumulatively, negatively affect the actual or apparent fairness of the trial? In my view, they did. The incidents that I havecatalogued, when considered in isolation, might be viewed as less corrosive to trial fairness. However, when they are combined, they leada reasonably minded person to conclude that Mr.

John did not have a fair trial. [43] After Troy Muskego finished testifying, counsel for Mr. John brought an application for a mistrial, arguing that the trialjudge’s interventions were unfair and that the trial judge had interrupted at crucial points in his cross-examination of various Crownwitnesses. The trial judge dismissed that application, insisting that his interjections were to clarify the evidence, and that the mistrialapplication was “presumptuous”.

The trial judge expanded on his reasons for dismissing the mistrial application in the Trial Decision atparagraph 37, where he stated that he “did not put any words in the mouth of the witness” and that his questions were within theparameters of R v L.(D.O.), (SCC), [1993] 4 SCR 419.

[ 44 ] Respectfully, I do not agree with the trial judge’s self-assessment of the fairness of this trial. In my view, significant portions of the trial judge’s interventions served to: (

a) detract from witnesses giving their own evidence in direct examination; (

b) rehabilitate a witness’s credibility after defence counsel had successfully eroded it; or (

c) elicit a harmful admission in cross-examination. The effect of these interventions, taken in combination, was to interfere with defence counsel’s function. [ 45 ] A trial judge is entitled to clarify evidence. However, their attempts to achieve clarification should not materially affect the evidence that is given. In the examples I have reviewed above, the trial judge’s interventions had the effect of influencing the evidence, including creating opportunities for witnesses to rehabilitate their credibility after it was undermined during cross-examination. This prejudicially affected Mr.

John’s defence strategy. [ 46 ] In conclusion, the cumulative effect of the trial judge’s commentary and interventions deprived Mr. John of a fair trial. The trial judge undermined the function of counsel, frustrated defence counsel’s strategy and otherwise made it very difficult for the defence to effectively test the Crown’s evidence. In many instances, the trial judge’s conduct also made him appear to be acting as an advocate for the Crown or to be protecting a Crown witness, thereby eroding the appearance of a fair trial.

The trial judge exceeded his role, interfered with the trial, and thus rendered it unfair. As a result, the convictions must be quashed. B. The sentence appeal [ 47 ] Given my conclusion that the convictions should be quashed, it is not necessary for me to consider Mr. John’s sentence appeal. III. CONCLUSION [ 48 ] In the result, the conviction appeal is allowed, the convictions are quashed, and a new trial ordered. [ 49 ] Mr. John shall be detained in custody until he may appear before the Provincial Court to be dealt with according to law.

A warrant remanding him may be issued by the registrar of this Court to that effect. McCreary J.A.” McCreary J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A.