Ex-judge wrong to call lawyer’s query ‘stupid,’ court says
But appeals panel rules that doesn’t warrant overturning murder conviction
A retired Toronto judge was “dead wrong” to call a defence lawyer’s question “stupid” in front of the jury at his client’s murder trial, Ontario’s top court said Friday, but the comment does not warrant overturning the man’s conviction.
Appeal lawyers for Emmanuel Owusu-Ansah had argued in January that retired Superior Court Justice Eugene Ewaschuk showed a “reasonable apprehension of bias” by repeatedly interrupting the defence’s questioning of witnesses, including Owusu-Ansah, which tainted the fairness of the trial.
The man was ultimately convicted by a jury in 2015 of second-degree murder for fatally stabbing his ex-partner and mother of his children, Bridget Takyi, and burning her body beyond recognition. Ewaschuk sentenced him to life in prison with no chance at parole for 22 years.
Lawyers Nathan Gorham and Breana Vandebeek had also argued that Ewaschuk was wrong to admit what they called “prejudicial and unreliable” evidence after the judge openly wondered in court what Toronto Star columnist Rosie DiManno and the late Postmedia columnist Christie Blatchford would think if he ruled otherwise.
The Ontario Court of Appeal upheld Owusu-Ansah’s conviction and sentence in a decision released Friday. Writing for a unanimous three-judge panel, Justice James MacPherson said that most of Ewaschuk’s numerous interruptions during Owusu-Ansah’s testimony were “entirely professional and benign,” and typically for clarification purposes.
However, in some instances, Ewaschuk “should have been a listener, not a talker.” The top court was critical of a particularly tense moment during the trial. OwusuAnsah had testified about receiving anonymous text messages in the months prior to Takyi’s killing, threatening to have him arrested and deported, and he believed Takyi had been sending them. When defence lawyer Scott Reid asked Owusu-Ansah whether he believed the sender would carry out those threats, Ewaschuk interrupted and twice told Reid the question was “stupid” in front of the jury.
“The trial judge was dead wrong in referring to defence counsel’s questions as ‘stupid,’ ” MacPherson said.
Ewaschuk apologized the next day, telling jurors he was wrong to call the question “stupid,” and should have instead said “improper.” But the Court of Appeal was having none of that either.
“Defence counsel’s questions to the accused about his belief that he could be deported were proper questions,” MacPherson said.
“The trial judge’s harsh criticism of this category of questions was entirely misconceived. The impact of this kind of comment by the trial judge could well have been to belittle defence counsel in the eyes of the jury.”
But MacPherson said it was a “solitary comment” during a four-week trial in which Ewaschuk otherwise treated both Crown and defence “equally and respectfully.”
The top court did previously overturn a murder conviction in a different case in 2017 after finding that Ewaschuk’s repeated interruptions during a witness’s testimony to the jury went over the line and that a reasonable person would have concluded the judge “had cast his lot with the prosecution.”
Ewaschuk was also not wrong in admitting a videotaped statement by Takyi to police reporting an alleged assault by Owusu-Ansah, MacPherson found. During a pretrial hearing discussing its possible admission, Ewaschuk had said “Rosie DiManno and Christie Blatchford would (skewer) me on high if I were to exclude that evidence.”
MacPherson doesn’t mention DiManno or Blatchford in Friday’s ruling, but found that the evidence could be used by the jury “to support an inference that (Owusu-Ansah) possessed the state of mind necessary to commit murder.”