Court of Appeal of Quebec

M.R. c. R.

November 23, 2018


Vauclair, Marcotte, Roy

Appeal from a conviction. Allowed.

The appellant, who was not represented by counsel at trial, was convicted of failing or refusing to comply with a probation order prohibiting him from communicating with his former spouse, except to agree on the best time to call the parties’ minor daughter. The trial judge determined that the appellant had breached this condition by leaving three (3) messages on his former spouse’s voicemail.

The adversarial nature of a criminal trial requires the presence of a judge who not only is impartial, but also appears to be so. The complexity of the rules of criminal evidence and procedure generally requires that an accused be assisted by competent counsel. If that is not the case, the judge has a duty to assist. This does not mean that the judge should take the proceedings in hand, however, since doing so would multiply the risk of calling his or her appearance of impartiality into question. Moreover, the Crown must preserve the fairness of the trial and facilitate the judge’s work by taking steps to avoid illegal evidence and unnecessary legal complications. 

In this case, the judge failed in his duty to assist and upset the balance of the trial by acting in a manner that raised a reasonable apprehension of bias. He took over the conduct of the trial and provided no assistance to the appellant, in particular by failing to intervene when presented with potentially illegal evidence, by questioning him to elicit admissions on important evidence, by quickly and unnecessarily stepping in during the cross-examination of witnesses, by objecting to questions,  and by personally leading the examination of the witness for the defence. Furthermore, to reach his verdict, the judge used excerpts from family law judgments that depict the appellant unfavourably, when  these excerpts constitute character or propensity evidence , which is in principle inadmissible. Furthermore, Crown counsel did not adequately play his part, which was complicated by the judge’s initiatives and haste, and he unduly stepped back. 

A new trial should be ordered, even if the evidence may justify the conviction. The fairness of the trial was tainted because the appellant was unable to present the defence he wanted to present, even if it seemed destined to fail. Miscarriage of justice does not arise strictly from the harm done to the appellant, but from the finding that it undermines public confidence in the administration of justice. 

*Summary by SOQUIJ
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