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APPEALS - Grounds - Bias

Monday, January 08, 2018 @ 11:34 AM  

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Appeal by the accused from conviction for sexual assault. At the time of the incident, the appellant was 20 years of age and the complainant was 18 years old. The appellant and complainant initially met at a bar. After some flirtatious texting back and forth, they met in person again, this time at the appellant’s apartment. They engaged in intimate relations and ultimately had sexual intercourse. The only issue at trial was whether the sexual intercourse between the appellant and the complainant was consensual. The complainant stated the sexual intercourse was not consensual. The trial judge considered the evidence and rejected the appellant’s explanation for what the judge said appeared to be a “clear confession to sexual assault” in a recorded conversation between the complainant and the appellant that occurred one month after the incident at the instance of a police detective. The trial judge found that the complainant communicated to the appellant on several occasions that she did not consent beforehand to sexual intercourse. He was also satisfied that the accused heard the word “no” but pushed ahead anyway. At issue on appeal was whether the trial judge’s interventions led to an unfair trial or an apprehension of bias such that the appellant’s conviction ought to have been quashed and a new trial ordered. Specifically, the appellant submitted the trial judge made reviewable errors by improperly interfering with cross-examination of the complainant, entering the fray and creating a reasonable apprehension of bias and an unfair trial and preventing closing argument on the defence of mistaken belief in consent.

HELD: Appeal dismissed. The test for whether the trial judge’s intervention rendered the trial unfair was whether a reasonably minded person present throughout the trial would have considered the accused had not had a fair trial. The judge had the discretion to ask counsel to focus their questioning on issues relevant to the trial. The trial judge asked counsel to move along because the judge thought the impugned questions were irrelevant to the issues and used his discretion to limit questioning on irrelevant matters. The trial judge otherwise allowed the complainant’s cross-examination without significant constraint. Further, the trial judge’s interventions in the evidentiary portion of the trial were largely for the purpose of clarifying the evidence or ensuring the witness was answering the question and directed at ensuring that he understood the evidence. The interventions did not suggest that he had prejudged the evidence or had treated the appellant unfairly. Viewed from the perspective of an informed individual present throughout the trial, familiar with the context of these interventions and having thought the matter through, the interventions did not rise to the level required for a finding of a reasonable apprehension of bias. If the appellant had been intending to advance the argument of mistaken belief in consent, his counsel should have raised the matter with the trial judge. His failure to do so precluded the appellant from arguing on appeal that he was prevented from advancing that argument. Also, the trial judge had already found as a fact that the complainant had orally communicated that she did not consent to sexual intercourse and was satisfied that the appellant heard the word “no” but proceeded nevertheless. In light of such findings, there could have been no basis for the defence.

R. v. Colling, [2017] A.J. No. 1370, Alberta Court of Appeal, R.L. Berger, S.L. Martin and J. Strekaf JJ.A., December 13, 2017. Digest No. TLD-January82018002