Question Everything… Except the Witness
Tips on Maintaining Impartiality From R. v. Crawford, 2015 ABCA 175
On a frigid January night, Mr. Crawford was along for the ride when one of his companions - fuelled by alcohol and jealous suspicion, and armed with a completely ineffectual pellet gun - decided to steal a vehicle. Mr. Crawford was convicted of theft of an automobile and being a party to a robbery committed with the use of a firearm. Mr. Crawford appealed his conviction, arguing that the trial judge had made the trial unfair by repeatedly intervening to question the witnesses. The Court of Appeal agreed.
While the facts are hardly relevant to professional regulators, tribunal members can learn much from the Court of Appeal’s critique of the trial judge’s interventions.
The Court of Appeal held that to determine whether judicial interventions rendered a trial unfair, the ultimate question is not whether the accused was actually prejudiced, but whether a reasonably minded person who sat through the trial would consider it unfair. The Court of Appeal enumerated several of the trial judge’s interventions by questioning witnesses, including cross-examining the accused on an offence with which he had never been charged and accusing him of lying. The Court of Appeal held that the trial judge had entered into the fray, and the cumulative effect of her interventions undermined the appearance of a fair trial. The Court of Appeal directed a new trial.
Judicial impartiality (and the appearance of judicial impartiality) is as fundamental to the proceedings of administrative tribunals as to criminal trials. There are only a few situations in which a tribunal member may question a witness “without creating the impression that he or she is entering the fray and leaving judicial impartiality behind.” These situations involve clarity, control and completeness. Moreover, the cumulative effect of a tribunal member’s interventions is relevant to the question of whether the appearance of fairness has, in fact, been undermined.
If a witness gives an answer that is unclear or inaudible, a tribunal member may ask questions directed at clarifying a point or repeating what was unheard. This does not give a tribunal member license to cross-examine a witness on a fuzzy story.
A tribunal member may intervene in order to maintain control of the proceedings, avoid irrelevant or repetitious evidence, and ensure the witness is answering the question.
Rarely, a tribunal member may intervene to ask questions that should have been asked by the parties. However, great caution is needed here. Only the most benign questions should be asked in this way. A tribunal member who questions witnesses on disputed issues is likely to lose his or her appearance of neutrality.
No tribunal member is held to a standard of perfection. An isolated intervention, even if inappropriate, may not actually lead to a finding of unfairness. However, the cumulative effect of several such interventions may “create an overall appearance which is incompatible with our standards of fairness.” When this happens, a new hearing may be necessary.
In Camera and Independent Legal Advice
Whenever possible, tribunal members should go in camera and discuss whether they have questions they need answered after each witness finishes his or her testimony. Tribunal members should also consider obtaining independent legal advice before questioning any witness.
Field Law’s Professional Regulatory lawyers advise regulators on all aspects of professional regulation and act as independent legal counsel to professional regulatory tribunals.