Defence appeal from conviction at trial of sexual assault. Issue on appeal of whether the trial judge’s numerous interjections during cross-examination of the complainant impeded the accused’s right to make full answer and defence.
Held: Appeal allowed; new trial ordered.
Schmaltz, 2015 ABCA 4 followed. “A review of the transcript of the cross-examination of the complainant reveals a significant number of situations in which the trial judge prevented defence counsel from asking certain questions without having first received an objection to them from Crown counsel, or rephrasing them so that her version of the question is answered, not that of the defence. Many of these situations would not, alone, be sufficient to establish that the trial had been unfair, or that counsel had not been able to advance the defence. However, taken cumulatively and in the context of the many additional interjections made by the trial judge limiting cross-examination of the complainant, we conclude that the defence was compromised.” Trial judge ‘entering the fray’ resulted in the appearance of an unfair trial.