Skip to main content

Impartiality in sexual assault trials

Impartiality is a  crucial element of any legal case, especially one involving serious offences such as sexual assault. A recent case from the Court of Appeal of Alberta put into perspective the important role judges have as an unbiased arbiter in court proceedings.

A sexual assault conviction was overturned and a new trial ordered after the Court found the judge tainted the trial. The defendant has appealed against the conviction on the grounds that the judge’s actions rendered the trial unfair.

Reasonably minded person

The test for whether a judge’s interventions rendered a trial unfair is whether a “reasonably minded person” attending the trial would consider that the accused had not had a fair trial. This is different from proving whether a trial was actually unfair. It is only necessary to show a “reasonable apprehension of bias”.

In this case, the Court of Appeal ruled that the judge would have been deemed to have unfairly intervened. The ruling stated: “The trial judge entered the fray and, unfortunately, and no doubt unintentionally appeared to be acting to undermine the defence with the resulting appearance of an unfair trial.”

The trial judge interrupted almost 50 times during the cross-examination of the complainant by the defendant’s counsel. The overall effect of these interventions undermined the defence counsel’s strategy and “made it impossible for the defence to test the complainant’s evidence”, the appeal court ruling stated.

Cross-examination is another important element in a fair trial. The defence must be allowed to properly scrutinize the Crown’s evidence because an accused person has the right to make a full answer and defence to the accusations. Anything that undermines this process runs counter to the correct course of justice. By repeatedly interrupting, the judge denied the defendant this right, the appeal court ruled.

When a person has been allegedly sexually assaulted, it is natural to want to protect that person. Protecting someone, however, implies bias. Judges have to appear to be impartial at all times. If they are seen to be overly protective, they may appear to be acting as an advocate for a particular side and this creates the appearance of an unfair trial. The appearance of an unfair trial, if it meets the “reasonably-minded person” test, is sufficient to overturn a judge’s decision.

Scope to intervene

Judges do have some scope, however, to intervene in the questioning of the defence counsel.

In this case, also from the Court of Appeal of Alberta, the circumstances were very similar – a conviction for sexual assault was appealed on the grounds that a trial judge’s interventions during cross-examination allegedly rendered the trial unfair. The appeal court did not find that the judge’s interjections were unfair, however, and the appeal was dismissed.

The Court’s ruling, stated: “A trial judge is obligated to manage the trial and control the procedure to ensure that the trial is effective, efficient and fair. He or she also has the discretion to ask counsel to focus their questioning on issues relevant to the trial.”

Judges are entitled to do such things as interrupt if they think a defence counsel’s line of questioning is going nowhere or a line of questioning is unfair. The judge’s interventions in this instance did not exceed the reasonable apprehension of bias test. Instead, the appeal court found the interventions were, “ largely for the purpose of clarifying the evidence or ensuring the witness was answering the question and directed at ensuring that he understood the evidence”.

Interventions in and of themselves are not sufficient to prove bias, there must be proof they would be perceived as favouring a particular side in order for them to render a trial unfair.

What to do if you have been charged with sexual assault

Sexual offences are among some of the most serious charges you can face in Canada and anyone found guilty of such a crime is liable to a long prison sentence. In Alberta, major sexual assaults attract a minimum sentence of three years.

It is highly recommended you hire a lawyer if you find yourself accused of a sexual offence. Our lawyers have extensive experience dealing with sexual assault trials,including aggravated sexual assault, sexual exploitation and voyeurism

If you have been charged for any of these related offences, contact us today to start your defence.


Call us now