Judge showed ‘clear lack of impartiality’
Appeals court tosses verdict in sex assault case
Aprovincial court judge who teed off on a man accused of sexual assault, calling him “utterly incredible” and accusing him of staging a “dramatic and insincere” crying jag in the witness box, didn’t try the case fairly and has been overturned on appeal.
The decision came Wednesday from the Ontario Court of Appeal, which found that Ontario Court Judge Stephen Brown used “intemperate and insulting language” towards the accused man, one P.G., and “let his personal feelings” about him “overtake his objectivity.”
The three-member appeal court, in a decision written by Justice Jean MacFarland, set aside the conviction and ordered a new trial.
Alas for P.G., he has already served his sentence, six months in jail. He is identified only by initials in order to protect the teenaged complainant in the case. Now 42, P.G. was at the time of the alleged assaults the live-in boyfriend of the girl’s mother.
The appeal court was critical not just of the trial judge, but also of Superior Court Judge Bruce Durno, who heard the first, or summary conviction, appeal of the case, and dismissed it — failing, the high court said, to recognize that the trial judge had improperly cut off proper cross-examination of the complainant and that his decision disclosed a reasonable apprehension of bias that rendered P.G.’s trial unfair.
P.G. was convicted by Brown on April 2, 2014, of three counts of sexual assault — all involving alleged touching and fondling — on the girl, who was 15 at the time.
The appeal court was particularly harsh on Brown not only for his treatment of P.G., but also for how he characterized the conduct of the witness who testified in P.G.’s support (the girl’s mother) and even his lawyer, David Bayliss.
The case was complicated — as even Brown said once, “At first blush, it seems to be a very shaky case” — and the evidence of the girl problematic. After all, she had sworn an affidavit recanting her allegations 17 months after she made them, then recanted that recantation at trial.
She also has serious and troubling personal issues, a history of suicide attempts and cutting herself, and was distressed by her parents’ acrimonious separation.
Bayliss was asking her what she understood her psychiatric diagnoses to be — not what they actually are, but how she perceived them — when Brown ruled the question inadmissible.
The point of the question, the high court said, “related to certain evidence that the defence had obtained from the complainant’s social media account.
“This was not an overwhelming case; there were serious issues with the complainant’s evidence... The thrust of the defence position was that (she) fabricated the allegations. Her credibility was the key issue.
“To preclude proper crossexamination in a key area was a serious error on the trial judge’s part,” the court said, and prevented P.G. from making what’s called “a full answer and defence” to the charges.
It’s probably the most fundamental right of an accused person — the right to completely answer and respond to each and every allegation made against him. It’s also probably the most central duty of the defence lawyer, to see that this is done.
Yet for his efforts, Bayliss’s cross-examination was described by Brown as a “prolonged and brutal attack on her (the complainant’s) character.” Brown also said Bayliss had “mocked and belittled” the girl and launched “a full-scale attack on a disturbed and vulnerable teenager” that was “distasteful.”
Brown went even further in his characterization of the girl’s mother, who testified as a defence witness and whom he described as “such a biased and unbelievable and unpleasant witness that she ranks in my Top 10 of witnesses in my entire career both as a lawyer and as a judge that I can say that I do not believe a word that she says.”
He said she “relentlessly pressured her daughter to recant her allegations” (though the daughter did have an independent lawyer advising her at the time) and that “she would say anything to paint her boyfriend in a positive light and her daughter in a negative one.
“She was utterly despicable in my view and a totally unbelievable witness.”
The appeal court was clearly shocked, calling “the use of this intemperate and insulting language” inappropriate “and uncalled for and demonstrates a clear lack of impartiality."
“The trial judge’s task is to impartially assess the witness’s credibility.
“It is not part of his role to denigrate her character … Here it is apparent that this trial judge let his personal feelings about (P.G.) and his witness overtake his objectivity.”
The case is reminiscent of another high-profile sexual assault trial now under review.
When now-retired Ontario Court Judge Marvin Zuker convicted York University graduate student Mustafa Ururyar of sexually assaulting fellow grad student Mandi Gray last year, he too used florid language to describe Ururyar and was sneering and contemptuous of him.
The cases appear to illustrate a schism in the bar, between lawyers (they are the ones in the courts every day) who demand to be able to as vigorously defend their clients accused of sexual assault as those accused of any other crime, and those who write learned papers (they are the ones rarely in the courtroom) about the pervasiveness of stereotyping female sex assault complainants and who essentially urge lawyers to rein themselves in.