R. v. Schmaltz (J.M.), 2015 ABCA 4

• Judge: Paperny, Wakeling and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 03, 2014
• Citations: 2015 ABCA 4;(2015), 599 A.R. 76

R. v. Schmaltz (J.M.) (2015), 599 A.R. 76; 643 W.A.C. 76 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.136

Her Majesty the Queen (respondent) v. Joshua Michael Schmaltz (appellant)

(1401-0039-A; 2015 ABCA 4)

Indexed As: R. v. Schmaltz (J.M.)

Alberta Court of Appeal

Paperny, Wakeling and Brown, JJ.A.

January 13, 2015.

Summary:

The accused was charged with sexual assault. At trial, the Crown called the complainant and her daughter as witnesses. The accused also testified. In the course of defence counsel's cross-examination of the complainant witness, the trial judge frequently intervened in her questions. After hearing all the evidence, the trial judge adjourned the matter to a later date for final submissions. On that date, the accused applied for a mistrial on the basis that the trial judge's interjections revealed a reasonable apprehension of bias. The trial judge dismissed the application for a mistrial. The accused appealed.

The Alberta Court of Appeal, Paperny, J.A., dissenting, allowed the appeal and ordered a new trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - At trial, the Crown called the complainant and her daughter as witnesses - The accused also testified - In the course of defence counsel's cross-examination of the complainant witness, the trial judge frequently intervened in her questions - After hearing all the evidence, the trial judge adjourned the matter to a later date for final submissions - On that date, the accused applied for a mistrial on the basis that the trial judge's interjections revealed a reasonable apprehension of bias - The trial judge dismissed the application for a mistrial and convicted the accused - The accused appealed, asserting that that the comments and interjections by the trial judge during cross-examination created the appearance of bias - The Alberta Court of Appeal rejected this assertion - These comments, while imprudent and unwise when made during the cross-examination of a witness, did not reveal that the trial judge had closed his mind on the subjects of the complainant's credibility or the proper outcome of the case - The comments were intended to convey disapproval of defence counsel's manner of questioning - Expressing such disapproval would not lead a reasonable person to conclude that the trial judge had prematurely judged the overall issue of credibility by reaching a firm and unalterable conclusion on that subject or any other subject pertinent to the accused's guilt - There was no merit to this ground of appeal - See paragraphs 49 to 59.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 686 ].

Criminal Law - Topic 137

General principles - Rights of accused - Right to cross-examine - The accused was charged with sexual assault - At trial, the Crown called the complainant and her daughter as witnesses - The accused also testified - In the course of defence counsel's cross-examination of the complainant witness, the trial judge frequently intervened in her questions - After hearing all the evidence, the trial judge adjourned the matter to a later date for final submissions - On that date, the accused applied for a mistrial on the basis that the trial judge's interjections revealed a reasonable apprehension of bias - The trial judge dismissed the application for a mistrial - The accused appealed, asserting that the comments and interjections by the trial judge created the appearance of an unfair trial - The accused sought to cross-examine the complainant with respect to her alleged (1) use of marijuana; (2) flirting with the accused; and (3) sobriety during the alleged offence and the contradictions respecting these issues in her testimony - The cross-examination was directed to the issue of credibility - The Alberta Court of Appeal allowed the appeal and ordered a new trial - The trial judge frustrated the defence strategy by interjecting and preventing defence counsel from forming questions to probe these potential inconsistencies - During defence counsel's questions about flirting, consumption of marijuana, and disclosing alcohol consumption in the police report, the trial judge appeared to enter the fray - In more than one instance, he interjected to ask leading questions or to suggest the most favourable interpretation to the complainant before she had a chance to answer the question - He also demonstrated that he was not listening to or understanding some of the inconsistencies presented by defence counsel - The cumulative effect of the trial judge's interventions was that he frustrated, to a significant and unwarranted degree, defence counsel's strategy to test the complainant's credibility - This would lead a reasonable, well-informed and right-minded observer to conclude that the accused was not able to make full answer and defence - The interventions therefore led to trial unfairness - See paragraphs 15 to 48.

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and functions of - Respecting examination or cross- examination of witnesses - [See Criminal Law - Topic 137 ].

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and functions of - Respecting examination or cross- examination of witnesses - The Alberta Court of Appeal stated that "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 the presumption of innocence and the right of the innocent not to be convicted ... (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 - especially complainants to a sexual assault - from questions tendered for an illegitimate and irrelevant purpose designed to demean, particularly where those questions are random shots at the complainant's reputation or groundless questions directed to discredited 'rape myths' to the effect that the complainant's unchaste or aroused state made it more likely that she would have consented to the sexual activity in question ... (3) When the trial judge does intervene, he or she must not do so in a manner which undermines the function of counsel, that frustrates counsel's strategy, or that otherwise makes it impossible for defence to present the defence or test the evidence of Crown witnesses ... (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 ... (5) In determining whether the trial judge's interventions deprived the accused of a fair trial, those interventions should not be considered separately and in isolation from each other, but cumulatively ...The concern here is that incidents which, considered in isolation, might be viewed as insignificant might combine to lead a reasonably minded person to consider that the accused had not had a fair trial ..." - See paragraph 19.

Cases Noticed:

Schmidt v. R., [1945] S.C.R. 438; [1945] 2 D.L.R. 598, refd to. [para. 13].

Kretschmer v. Terrigno (2012), 539 A.R. 212; 561 W.A.C. 212; 2012 ABCA 345, refd to. [para. 14].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 151 D.L.R.(4th) 193, refd to. [para. 17].

R. v. Teskey (L.M.), [2007] 2 S.C.R. 267; 364 N.R. 164; 412 A.R. 361; 404 W.A.C. 361; 2007 SCC 25, refd to. [para. 17].

Cojocaru v. British Columbia Women's Hospital and Health Center et al., [2013] 2 S.C.R. 357; 445 N.R. 138; 336 B.C.A.C. 1; 574 W.A.C. 1; 2013 SCC 30, refd to. [para. 17].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [paras. 18, 63].

R. v. White (1976), 1 Alta. L.R.(2d) 292; 73 D.L.R.(3d) 275 (T.D.), refd to. [para. 18].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 109 D.L.R.(4th) 478, refd to. [para. 18].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 19].

R. v. Giffin (1986), 69 A.R. 158; 1986 ABCA 107, refd to. [para. 19].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207 (C.A.), leave to appeal refused (1986), 67 N.R. 159; 15 O.A.C. 240 (S.C.C.), refd to. [paras. 19, 65].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 19].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 19].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168, refd to. [paras. 19, 75].

R. v. Konelsky (1989), 98 A.R. 247; 68 Alta. L.R.(2d) 187 (C.A.), refd to. [para. 19].

R. v. Switzer (R.S.) (2014), 572 A.R. 311; 609 W.A.C. 311; 2014 ABCA 129, refd to. [para. 19].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 19].

R. v. Stucky (D.) (2009), 256 O.A.C. 4; 303 D.L.R.(4th) 1; 240 C.C.C.(3d) 141; 2009 ONCA 151, refd to. [paras. 19, 65].

R. v. Watson (M.) (2004), 192 O.A.C. 263; 191 C.C.C.(3d) 144 (C.A.), refd to. [para. 19].

R. v. Stewart (1991), 43 O.A.C. 109; 62 C.C.C.(3d) 289; 1991 CarswellOnt 1317 (C.A.), refd to. [para. 19].

R. v. Hodson (B.S.) (2001), 281 A.R. 76; 248 W.A.C. 76; 92 Alta. L.R.(3d) 262; 2001 ABCA 111, refd to. [paras. 21, 66].

R. v. Hamilton (A.) et al. (2011), 279 O.A.C. 199; 2011 ONCA 399, refd to. [paras. 24, 65].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 49].

Bizon v. Bizon et al. (2014), 572 A.R. 49; 609 W.A.C. 49; 2014 ABCA 174, refd to. [para. 49].

R. v. J.L.M.A. (2009), 464 A.R. 289; 467 W.A.C. 289; 2009 ABCA 344, refd to. [para. 50].

Scheidt v. Scheidt (2014), 566 A.R. 303; 597 W.A.C. 303; 2014 ABCA 24, refd to. [para. 52].

R. v. Parmar (D.S.) (2005), 211 B.C.A.C. 94; 349 W.A.C. 94; 195 C.C.C.(3d) 112; 2005 BCCA 187, refd to. [para. 54].

R. v. Karas (L.F.) (2007), 422 A.R. 344; 415 W.A.C. 344; 2007 ABCA 362, refd to. [para. 60].

R. v. Pompeo (D.A.) (2014), 359 B.C.A.C. 278; 615 W.A.C. 278; 13 C.R.(7th) 420; 2014 BCCA 317, refd to. [para. 60].

R. v. Meddoui, [1991] 3 S.C.R. 320, refd to. [para. 63].

R. v. McLaughlin (1974), 2 O.R.(2d) 514; 15 C.C.C.(2d) 562 (C.A.), refd to. [para. 63].

R. v. Fanjoy, [1985] 2 S.C.R. 233; 62 N.R. 253; 11 O.A.C. 381, refd to. [para. 64].

Authors and Works Noticed:

Stewart, Hamish, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), p. 236 [para. 17].

Counsel:

M. Dalidowicz, for the respondent;

K.B. Molle and K. Arial, for the appellant.

This appeal was heard on December 3, 2014, by Paperny, Wakeling and Brown, JJ.A., of the Alberta Court of Appeal. The memorandum of judgment of the Court of Appeal was delivered on January 13, 2015, and included the following opinions:

Brown, J.A. (Wakeling, J.A., concurring) - see paragraphs 1 to 60;

Paperny, J.A., dissenting - see paragraphs 61 to 87.