Brandon Harder
Regina Leader-Post
A judge’s questions to a man who was on trial in provincial court for sexual assault have led to a finding that the appearance of trial fairness was compromised.
As a result, the Saskatchewan Court of Appeal has quashed a conviction and ordered a new trial for the man, referred to only as D.L. in the Aug. 21 ruling.
The decision — written by Justice Jillyne Drennan, with Justices Jeffery Kalmakoff and Keith Kilback in agreement — explains that D.L. initially appealed his conviction, along with his 12-month jail sentence (with 12 months probation to follow), in the Court of King’s Bench.
He made several arguments in his appeal, including that the “trial judge compromised trial fairness through his questioning.” But his arguments were rejected and his appeal was dismissed in February of 2024 by a judge in Swift Current.
D.L. and his lawyers, Mervin Nidesh and Linh Pham, disagreed with that Court of King’s Bench decision and appealed it in Saskatchewan’s highest court.
“I agree with D.L. that the summary conviction appeal judge erred in concluding that the trial judge’s questioning of him did not undermine trial fairness,” Drennan wrote.
The alleged incident
The background of the case is laid out in the Court of Appeal decision in brief.
It indicates the complainant was D.L.’s adult niece and was 27 years old in November of 2020 when the sexual assault was alleged to have taken place. D.L. was 53.
D.L., who testified he had shoulder injuries, had essentially hired his niece to help him with home repairs. After some work was completed, the two got drunk, according to both their testimonies.
The complainant said she woke up to find D.L. over top of her naked, and further alleged that in the early morning hours D.L. was spooning with her, “rubbing his penis against her bare buttocks while stroking his penis and moaning,” the decision states. “She said she did not directly observe him doing so but felt that he was. She was naked and could not recall getting in the hide-a-bed or removing her clothes.”
According to the decision, D.L. said he did not know she was in the hide-a-bed, denied “being on top of her, spooning her, or touching her buttocks with his penis” and said “his shoulder injuries combined with his erectile dysfunction made the complainant’s assertions physically impossible.”
A judge’s role
Drennan wrote that trial judges “should only question witnesses where necessary for the purposes of clarification, resolution of misunderstandings, and correction of the conduct of counsel.”
After both Crown and defence had questioned D.L. at trial, the judge asked him 59 questions, according to the appeal decision.
Drennan wrote that while volume is not “determinative” in such a situation, “it can, coupled with the nature of the inquiries, create a perception of unfairness.”
The judge went beyond clarification, in the opinion of the appeal judges.
“The questions, cumulatively, gave rise to a strong appearance of the trial judge having entered the fray in an adversarial way, and having conducted an independent investigation into the facts,” Drennan wrote.
The questions led, “by way of the trial judge’s invitation,” to further questions from the Crown, the appeal decision states, noting the information gleaned through this became “key pillars” in the judge’s decision to convict.
Neither the trial judge nor the judge who dismissed D.L.’s initial appeal are named in the Court of Appeal decision, which is common practice.
bharder@postmedia.com
