Case: R v Crawford, 2015 ABCA 175

Keywords: judicial intervention, questioning witnesses, fair trial

Synopsis: Crawford was convicted of theft of an automobile and being a party to a robbery committed with the use of a firearm. His friend Anderson had hijacked a car with a pellet gun. Crawford, Anderson and another friend then took the car to make a surprise 4 a.m. visit to Anderson’s girlfriend, whom he suspected of infidelity. Thanks to the car being equipped with OnStar GPS, the police located it quickly. Crawford fled but was caught, and Anderson  found in the car with the pellet gun.

Crawford appealed on two grounds: (1) the trial judge interfered too often in the examination and cross-examination of witnesses and in so doing compromised the fairness of the trial, and (2) the trial judge erred in finding that the pellet gun used by Anderson was a firearm for the purpose of s.344(1)(a.1) of the Criminal Code. The C.A. allowed the appeal and directed a new trial on the basis the judge’s intervention undermined the appearance of a fair trial. The majority also found the pellet gun did not qualify as a firearm.

Importance: The C.A. reviewed the law with respect to when a trial judge’s numerous interruptions render a trial unfair and noted the following:

  • Our adversarial system requires “adjudication by a judge who is, and must be seen to be, impartial”: Bizon v Bizon, 2014 ABCA 174.
  • The court may ask a witness to clarify a point or repeat part of an answer that was unheard: R v Schmaltz, 2015 ABCA 4.
  • Judicial intervention aimed at maintaining control of the court process, avoiding irrelevant or repetitious evidence, and ensuring that the witness is answering the question is appropriate: R v Hamilton, 2011 ONCA 399.
  • In exceptional circumstances, a judge may also intervene to ask questions that should have been asked by counsel.
  • “The prudent course will be for the court, in the absence of the jury and the witness, (where the witness is not the accused), to canvass the perceived omission with counsel. Most issues can be resolved either by counsel persuading the judge to leave the questions unasked, or by agreeing that counsel, who has forgotten to ask the question, may do so when the jury and the witness return.” (para. 14)

On reviewing when a judge’s intervention may prompt appellate intervention, the C.A. cited R v Valley (1986), 13 OAC 89, 26 CCC (3d) 207 (ONCA) for the standard to be applied:

…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: see R. v. Brouillard, supra; R. v. Racz, [1961] N.Z.L.R. 227 (C.A.).

The C.A. further noted that the cumulative effect of the trial judge’s interventions must be considered and that it is a question a degree. One incident may not be problematic, but multiple incidents of intervention may rise to the level of rendering a trial unfair. The Court put little weight on the fact that defence counsel did not object to the interventions given the “delicate” nature of that task. It also noted that a judge may have greater latitude to question witnesses where the accused is unrepresented.

In reviewing the judge’s interventions, the C.A. provided transcript excerpts and noted that the judge “asked questions which were helpful to the Crown, other questions which directly challenged the credibility of the appellant, and still others regarding an offence (another robbery) committed by Anderson while the appellant watched” (para. 22). Applying the law, the Court held that the cumulative effect of these interventions was held to undermine the appearance of a fair trial.

Also of interest in this case is the Court’s analysis as to what constitutes a firearm. After reviewing relevant case law, it held that the pellet gun did not qualify as a firearm as it was missing a magazine to hold the pellets and a functioning CO2 canister rendering it inoperable. The concurring justice chose not to comment on the issue regarding whether the pellet gun constituted a firearm.

Counsel for the Respondent: Jason Wuttunee (Crown Prosecutor’s Office, Calgary)

Counsel for the Appellant: Pawel Milczarek (Sitar & Milczarek, Calgary)

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