On a frigid January night, Mr. Crawford was along for the ride
when one of his companions—fuelled by alcohol and jealous
suspicion, and armed with a completely ineffectual pellet
gun—decided to steal a vehicle. Mr. Crawford was convicted of
theft of an automobile and being a party to a robbery committed
with the use of a firearm. Mr. Crawford appealed his conviction,
arguing that the trial judge had made the trial unfair by
repeatedly intervening to question the witnesses. The Court of
While the facts are hardly relevant to professional regulators,
tribunal members can learn much from the Court of Appeal's
critique of the trial judge's interventions.
The Court of Appeal held that to determine whether judicial
interventions rendered a trial unfair, the ultimate question is not
whether the accused was actually prejudiced, but whether a
reasonably minded person who sat through the trial would consider
it unfair. The Court of Appeal enumerated several of the trial
judge's interventions by questioning witnesses, including
cross-examining the accused on an offence with which he had never
been charged and accusing him of lying. The Court of Appeal held
that the trial judge had entered into the fray, and the cumulative
effect of her interventions undermined the appearance of a fair
trial. The Court of Appeal directed a new trial.
Judicial impartiality (and the appearance of judicial
impartiality) is as fundamental to the proceedings of
administrative tribunals as to criminal trials. There are only a
few situations in which a tribunal member may question a witness
"without creating the impression that he or she is entering
the fray and leaving judicial impartiality behind." These
situations involve clarity, control and completeness. Moreover, the
cumulative effect of a tribunal member's interventions is
relevant to the question of whether the appearance of fairness has,
in fact, been undermined.
If a witness gives an answer that is unclear or inaudible, a
tribunal member may ask questions directed at clarifying a point or
repeating what was unheard. This does not give a tribunal member
license to cross-examine a witness on a fuzzy story.
A tribunal member may intervene in order to maintain control of
the proceedings, avoid irrelevant or repetitious evidence, and
ensure the witness is answering the question.
Rarely, a tribunal member may intervene to ask questions that
should have been asked by the parties. However, great caution is
needed here. Only the most benign questions should be asked in this
way. A tribunal member who questions witnesses on disputed issues
is likely to lose his or her appearance of neutrality.
No tribunal member is held to a standard of perfection. An
isolated intervention, even if inappropriate, may not actually lead
to a finding of unfairness. However, the cumulative effect of
several such interventions may "create an overall appearance
which is incompatible with our standards of fairness." When
this happens, a new hearing may be necessary.
In Camera and Independent Legal Advice
Whenever possible, tribunal members should go in camera and
discuss whether they have questions they need answered after each
witness finishes his or her testimony. Tribunal members should also
consider obtaining independent legal advice before questioning any
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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