Appeal Court blasts trial judge over lack of ‘decorum’
Panel sets aside manslaughter conviction for taxi driver, citing confusing instructions to jury
Ontario’s highest court has issued a rare criticism of the behaviour of a trial judge after defence lawyers claimed he glared at them, yelled, interrupted and made angry facial expressions throughout a high-profile 2015 trial.
In a decision released Friday, the Ontario Court of Appeal set aside the conviction of Adib Ibrahim, who was found guilty of manslaughter in the death of longboarder Ralph Bissonnette. The panel of three judges ordered a new trial after concluding Superior Court Justice Robert Clark’s instructions to the jury were “deficient” and would have been confusing.
Though it was not the reason it ordered a new trial, the panel nonetheless said it felt “obligated to comment on the manner in which the trial was conducted” after defence lawyers complained Clark repeatedly yelled, “glared” at them in front of the jury, interrupted, and shook his head disapprovingly when they questioned witnesses.
“It is the trial judge’s responsibility to reduce the stress of conflict, not to exacerbate the situation through harsh words, a raised voice, or distracting and hostile non-verbal communications,” reads the unanimous ruling by justices Paul Rouleau, Gary Trotter and Benjamin Zarnett.
“We are led to conclude that the trial was not a model of ‘judicial decorum,’ ” the panel wrote.
Clark declined to comment Friday through his administrative assistant.
Aformer prosecutor who was appointed to the bench in 2003, Clark is no stranger to criticism about his courtroom demeanour. He has twice declared mistrials for his own conduct, including during a 2010 murder conspiracy case, after agreeing his facial expressions might give “a reasonable apprehension” of bias in favour of the prosecution.
In 2017, Clark again declared a mistrial in a drug case after being accused of swearing while the defence was giving his closing arguments to the jury, according to Citytv, though Clark did not admit to using the Fword in front of the jury.
“The unfortunate part is that it’s not the first time this judge has been criticized, either publicly through judgment, or through anecdotal experiences of counsel for behaving this way,” said Michael Lacy, president of the Criminal Lawyers’ Association, who was one of the defence lawyers on the 2010 murder conspiracy case.
The Court of Appeal’s ruling serves as “a reminder that civility starts at the top,” Lacy said.
“It’s extremely strong language that the court uses with regards to the trial judge,” said Chris Murphy, Ibrahim’s appeal lawyer. “I think it’s very important that the Court of Appeal sent this type of message to trial judges.”
Bisonnette, 28, was killed in May 2012 after he was struck and crushed by Ibrahim’s cab on King St. E. During the trial, the Crown alleged Ibrahim deliberately veered his cab sharply right into Bissonnette and ran him over.
Ibrahim testified he did not see Bissonnette and struck him accidentally while he was making a lane change, and only noticed something was wrong when he heard the cracking of the longboard, then froze and was unable to brake.
Near the end of the trial, defence lawyers Peter Thorning and Richard Diniz brought an application for a mistrial, alleging that throughout the proceeding Clark had shown a “reasonable apprehension of bias” in favour of the prosecution.
According to a summary of their mistrial allegations in Friday’s Court of Appeal ruling, that included that Clark “continually shook his head with disapproval” in front of the jury while defence lawyers questioned witnesses, interfered with their examination of witnesses, yelled at them “on numerous occasions” and “glared” at them both in front of and in the absence of the jury.
In an affidavit filed as part of the mistrial application, Amanda Goncalves, who worked at the defence counsel’s law firm, described Clark’s conduct on a day she was in court, noting the judge shook his head “aggressively” during the cross-examination of a Crown witness, and “stared at defence counsel in what looked like an angry manner as defence counsel was asking questions.”
While hearing submissions from defence lawyers on their mistrial application, Clark said he “categorically” did not accept that he yelled at them, claiming his “normal voice is a very loud and deep voice,” according to the Court of Appeal decision.
Clark dismissed the application for a mistrial. In his written reasons, he said he recognized that “when my face is in repose, I have what could fairly be described as a stern visage.”
“I may have, on one or more occasions, exhibited some facial expressions or moved my head or body in such a way as to suggest impatience or annoyance. This is inevitable in the dynamics of a criminal trial,” Clark wrote. He added that in normal speech he has a “stentorian voice” but denied that he ever raised it in the presence of the jury. If he raised his voice when the jury was absent, “it was certainly not to a level that would constitute yelling,” Clark wrote.
The Court of Appeal decision said that “even in the absence of the jury, other participants in the process — counsel, witnesses, court staff, and the public at large — should not expect to encounter this type of courtroom environment.”
Although they were unable to conclude that Clark’s conduct resulted in a “reasonable apprehension of bias” — which would be grounds for appeal — the Court of Appeal panel said the allegations about Clark’s “verbal and non-verbal conduct during a trial are serious.”
“The complaints raised in this case reflect the importance of the duty of the trial judge to maintain composure during the course of a trial, both in the presence and absence of the jury,” the panel wrote. Reached Friday night by email, defence lawyer Thorning said the “appeal was expertly argued and the client is just ecstatic with the order for a new trial.”
The Court of Appeal ordered a new trial for Ibrahim on the basis that Clark’s instructions to the jury were “deficient,” and that the way he presented the offence of dangerous driving in the context of the case “would have been confusing.”
Clark was the trial judge on the case of jailed Hamilton police officer Craig Ruthowsky, who was convicted on four corruption-related charges last year. He is appealing, and one of the grounds for his appeal is that Clark demonstrated a reasonable apprehension of bias during his corruption trial.
The trial was conducted in an atmosphere of “unabated oppression” towards the defence, said his 2018 trial lawyer, Greg Lafontaine.
He submitted to the Ontario Court of Appeal an affidavit from his law student who recorded observations about the judge during the case.
She described the judge as disparaging the defence case or betraying his disapproval of the defence by variously shaking his head and rolling his eyes, demonstrating impatience or disapproval through his body language, huffing and scoffing, scowling, sighing loudly, glaring and appearing visibly annoyed, angry, frustrated, or looking “disdainfully” or “with apparent disapproval.”
Last year, Clark elected to become a supernumerary judge, meaning instead of retiring he now sits part-time.
With files from Betsy Powell
JUDGE from A1