Court of Appeal Criticizes Trial Judge's Conduct

In R. v. Ibrahim, 2019 ONCA 631, the Ontario Court of Appeal (Rouleau, Trotter and Zarnett JJ.A.) criticized the deportment of the trial judge in a criminal jury trial. While the issues about the trial judge's demeanour in this case arose in the context of a criminal trial, the comments of the Court of Appeal have broader application, and are relevant to almost all areas of litigation, including commercial litigation.

The appellant in R. v. Ibrahim appealed his conviction of manslaughter and sentence of four years' imprisonment. The Court of Appeal allowed the appeal based on the trial judge's instructions to the jury.

The appellant had also argued that the trial judge demonstrated bias against him by the manner in which he conducted the trial. The Court of Appeal rejected this argument, but went on to comment on the manner in which the trial was conducted.

The appellant applied for a mistrial toward the end of the trial. He alleged, among other grounds, that the trial judge continually shook his head with disapproval in front of the jury while defense counsel questioned witnesses, yelled at defense counsel on numerous occasions and glared at defense counsel, both in front of and in the absence of the jury.

When the motion was first brought, after briefly listening to oral submissions, the judge said that he would give counsel an opportunity to make full submissions at a later juncture. As to the complaints raised by defense counsel, the judge said "I disagree with virtually all of them, I think", and went on to make more disparaging remarks about defense counsel. He denied making facial expressions or physical gestures, but he said: "If I have, I am a human being." He said that it did not matter in any event as in his experience, jurors generally do not look at him, but look at witnesses and counsel. He disagreed that he yelled at anybody, or demonstrated any particular bias. He said all this before full submissions were heard.

In advance of these full submissions, two affidavits were submitted on behalf of defense co-counsel and an employee of defense counsel who attended one day of the trial. Co-counsel enlarged on the allegations earlier made and swore that the trial judge had undermined the appellant's relationship with his counsel, undermined his confidence in the fairness of the trial, and influenced the appellant's decision as to whether or not to testify on his own behalf. The employee described the judge's conduct during defense...