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Top Ontario court’s rebuke to trial judge called unprecedented

Ontario’s top court has severely admonished a trial judge for destroying two costly trials with improper interjections.

Deborah Baic/The Globe and Mail

Ontario's top court has severely admonished a trial judge for destroying two costly trials with improper interjections.

In a stinging rebuke to Ontario Superior Court Justice Robert Scott, the Ontario Court of Appeal said Tuesday that trial judges are meant to be seen and not heard.

"Trial judges are, at bottom, listeners," wrote Justices David Doherty, James MacPherson and Eleanore Cronk. "It bears mention that trial judges, like appellate judges, must preside in a judicious fashion."

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In ruling on one of the cases on Tuesday, the court cited another botched trial Justice Scott had presided over in 2012: "In both instances, public resources were wasted, great inconvenience to the parties resulted and the integrity of the administration of justice was tarnished."

The appellants in Tuesday's case were convicted of conspiring to produce and traffic marijuana. During their trial, Justice Scott had strongly implied that a key witness was committing perjury.

Defence counsel Frank Addario and Megan Savard argued successfully in the Court of Appeal that their trial amounted to a miscarriage of justice.

In the case that was overturned last year, Lloyd v Bush, Justice Scott heard a lawsuit involving an accident between an automobile and a loaded propane truck on a snowy road.

In ordering a retrial, the Court of Appeal upbraided him for being closed-minded and foisting his own "entirely erroneous" conclusions onto the proceeding.

The appeal judges admonished him for impugning the integrity of an expert witness and repeatedly insisting, inaccurately, that the plaintiff had accused the local township of proffering fraudulent evidence.

The rebukes were remarkable, coming from a court which until a decade ago had declined to even name the trial judges whose decisions were being appealed.

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"This court has rebuked trial judges before, but this was a schooling for which there is no precedent," Scott Cowan, a veteran Toronto defence lawyer, said in an interview.

Based in Belleville, Ont., Justice Scott is best known for presiding over former air-force colonel Russell Williams's 2010 trial for the murder of Jessica Lloyd and Marie-France Comeau.

Norman Boxall, president of the Criminal Lawyers' Association, said that many judges who cross lines of propriety are never caught out because defendants cannot afford an appeal.

"There is also a reluctance on the part of some lawyers in smaller jurisdictions to make allegations against judges since they are likely to appear in front of the same judge a week later," he said.

In yet another case last week, Ontario Court Justice Bruno Cavion was raked over the coals by Ontario Superior Court Justice Ken Campbell.

Sitting on an appeal of an impaired driving case, Justice Campbell condemned Judge Cavion for persistently taking over the cross-examination of witnesses.

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His interference was especially flagrant when a police officer testified, Judge Campbell said.

"It must be said that it was the trial judge, not the Crown, who conducted this cross-examination," he said. "There is no gainsaying the reality that the trial judge usurped the role of Crown counsel in the examination."

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About the Author
Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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