Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
How A Judge’s Questions Crossed The Line And Triggered A New Trial
Ever wondered when a judge’s questions stop clarifying and start tilting the scales? We dive into a BC sexual assault case where the trial judge’s heavy-handed interventions—pages of pointed questioning, steering how evidence was led, and relying on answers personally elicited—pushed the process past what a reasonable observer would call fair. The conviction didn’t fall because of proven bias, but because the appearance of fairness matters just as much as the verdict, and the court ordered a new trial to reset the game.
From that courtroom moment, we zoom out to a piece of Canadian legal history that still shapes modern practice: private prosecutions. Yes, “anyone” can lay an information, but today the pathway runs through built-in safeguards—judicial screening, notice to Crown Counsel, and the power for Crown to take over and stay proceedings. We explain when that discretion is virtually unreviewable, and when it crosses into abuse of process due to bad faith, improper purpose, or actions that undermine the integrity of the justice system. Along the way, we examine a real-world attempt to weaponize private prosecutions against police, prosecutors, and politicians, why it failed on evidentiary grounds, and how courts use tools like summary dismissal and ad hoc Crown to keep the system credible.
If you care about fair trials, judicial neutrality, prosecutorial discretion, and the rare but critical safety valves that keep politics in check, this conversation offers a clear, grounded tour of the law in action. Subscribe, share with a friend who loves legal deep dives, and leave a review to tell us where you think the line should be drawn.
Follow this link for a transcript of the show and links to the cases discussed.
How does that work?
Michael Mulligan:Well, I I guess that that may be a surprise to some listeners, but uh it's uh the case that uh judges are uh permitted to ask some questions in the course of a trial. I mean, at its base, our justice system operates on an adversarial basis with the idea that, you know, in a criminal case, Crown Counsel would ask questions, defense counsel would cross-examine, and vice versa, with witnesses the other of them calls. Um and while that's the general proposition, uh, it is permissible uh for judges to ask some questions, for example, to clear up ambiguities or something is vague left vague. It's not clear to the judge, for example, what a witness said, or requires a bit more explanation. And you do see that from time to time, you know, after a witness testifies and was cross-examined, you might have a judge ask some question, you know, you know, you said the color, you know, the car was what color again? Blue. Okay, very good. Thank you very much. And then they might say to both lawyers anything arising from that question, right? So there can be interventions and and questions asked by a judge. But uh, as this case points out, there are real limits on what a judge is allowed to do uh in terms of asking questions. The judge is, after all, supposed to be the judge, right? Not a lawyer, right? You know, it's like your uh baseball umpire shouldn't start uh you know trying to field the uh field the a ball or something, right? Yeah um and this particular case, it was a sexual assault case, um, and the uh judge convicted uh and there was an appeal from the conviction, and the appeal was an appeal on the basis of there being a miscarriage of justice, which is one of the uh grounds upon which there can be a conviction appeal. Um and in terms of whether there was a miscarriage of justice as a result of how much the judge intervened in the trial, uh the issue on the appeal was whether it was so severe that either the rendered the trial in fact unfair or created the appearance of unfairness, because both of those are important, right? E even if you might conclude that, well, the right judge you know decision might have been reached if the whole thing just looked unfair, well that's really not acceptable. Um and so on this uh conviction appeal, uh the uh judge hearing the appeal was looking back at, well, what exactly did the judge do here? Um, and looked at examples of where in the past judicial overstepping um has resulted in there being a finding that there was a lack of uh an appearance of unf uh fairness, right? Uh and that can include that can occur in a number of ways. And as was pointed out on the appeal, that can happen where, for example, you know, a judge winds up questioning the accused or a witness in a way that suggests, you know, they are uh advocating for the crown or something, right? Um, or where they're such questioning that it made it impossible for counsel to properly conduct the case on their own, um, or intervening uh in a way that prevents somebody from telling their story or uh whatever it might be. But there are clearly limits on what can be done. And here, some of what the judge had done was in that category of sort of unobjectionable clarification of things, right? And that that wasn't what was complained about. But uh as was pointed out on the by the uh judge hearing the appeal, a Supreme Court uh judge, um the judicial interventions were very significant, going on in some cases for pages and pages of the judge effectively doing things like cross-examining witnesses, um uh and even doing things like uh the judge was interfering with the uh with crown counsel, how she was trying to uh lead evidence from the complainant in the case. Like the uh the transcript revealed the judge was intervening, directing crown to have the person draw a sketch during the court break and uh coming back and asking uh questions, prompting things like the uh crown to you know ask to be given a chance to finish asking asking their questions. And the interventions by the judge even extended to it was a case where uh the accused chose to testify. Um and uh for a while the judge sort of allowed the crown to cross-examine the accused, but then sort of just took over, basically, um, and got into sort of you know questioning the person and getting them to acknowledge things, and then moreover used things the judge had managed to himself get out in the course of cross-examination as being his reasons for disbelieving the accused. You know, sort of all the brilliant cross-examination I conducted, of course, led to things I found to be very persuasive, although we didn't, of course, use terms like brilliant. But the point was that this wasn't a minor um you know clarification. Uh the judge was repeatedly intervening uh and conducting his own cross-examinations uh and uh interfering with direct examinations and then relying upon um things that he managed to bring out or or uh extract in the course of those things. And you know, on the appeal, uh the judge hearing the appeal, um, and be uh the way that works interestingly is if it's a summary conviction case, or we have two ways you can be prosecuted uh criminally, either by summary conviction or by indictment. It's the rough equivalent of if you've heard about it from the U.S. or the movies, felonies and misdemeanors, right? With felonies being more serious in Canada, we've got by indictment being more serious, right? And so if there's a criminal appeal from a case that's uh preceded with by indictment, that goes first to the Court of Appeal, where you'd have multiple judges of that court, you know, three or five hearing the appeal. Where it's a summary conviction thing, which would be heard in provincial court initially, the first level of appeal would be to the BC Supreme Court, sort of one level of court up, and a single judge hearing the appeal. So that that's what was going on here. Uh and so the Supreme Court judge hearing the appeal, uh, you know, concluded that uh, you know, they they weren't persuaded uh that uh in fact the trial judge had acted unfairly, right? That's a pretty high bar, right, if you sort of find the trial judge was in fact biased and uh unfair. But that's not the end of the inquiry, because the uh the way it has to be analyzed is from the perspective of you know, if you had a reasonable person who just watched all of what went on here, would you conclude uh that that looked like a fair trial the person got? And on that test, uh the uh judge on the appeal answered no, right? It's just how many and how significant the interventions were uh of the judge effectively uh you know assuming the role of counsel in some cases was just over the line. Um and so when it gets uh that far, uh the result here uh is that it was a miscarriage of justice because a reasonable person watching what went on here would not have thought uh this looked fine. Um one of the things that did not work on the appeal is the uh crown on the appeal argued that, well, defense counsel should have been objecting to the judge more, right? So if you know, because for example, uh the judge did things like asking leading questions of the witness, which is not permitted in a direct examination, right? Then uh when a witness is testifying indirect, telling what happened, one of the rules is that uh you can't ask leading questions, like something that would suggest the answer to the person, right? Like you if let's say the color of the car was important, you couldn't, when you were first calling a witness in their testifying, you couldn't say, uh you saw a uh big blue car out front, didn't you? And have the person just say, Yeah, right? That would be cross-examination. And so the judge was doing things like that, even. Um, and Crown argued on the appeal, well, you know, defense counsel should have been objecting more to the judge. And I think they pointed out quite reasonably, it's difficult to be objecting to the question being asked by the person who would then decide whether the question is itself objectionable. And so that didn't get too far and did point out that, you know, yeah, defense counsel was trying to intervene in what the judge was doing, but just sort of got brushed off and the judge just carried on. Um and so, anyways, that that didn't do it. And that was an interesting approach. You should have objected more to what the uh judge was doing so that you know he himself could have uh ruled in your favor about how objectionable his questions were. Um so, anyways, the net result is given all of that, it just uh wasn't just some innocuous clearing something up. It did interfere with the appearance at least of a uh a fair trial. Uh and the uh result of that is in order that the uh there be a do-over, uh a new trial with a different judge. And uh presumably uh with the benefit of this decision, they might just uh sit back and allow uh you know, call some balls and strikes and don't try to actually catch the pitch or uh you know throw it back out to the uh throw it back out to the pitcher. Um that's the latest in the BC Supreme Court on that issue of just how far a judge is allowed to go in terms of uh uh intervening in a trial that they're hearing themselves.
Adam Stirling:Michael Moscow, I think.
Michael Mulligan:That's true. And and I must say, part of this comes from sort of the history, uh sort of earlier times in Canada's criminal law history, uh, when it would not be uncommon for there to be private prosecutions. Um and you know, it wasn't that many years ago. You go back and you would have a circumstance where you could in fact hire a lawyer and go about charging somebody with a crime, you know, stealing your horse or something. Um and that history remains in the criminal code dealing with the issue of who may lay an information, which is sort of the process starting a criminal prosecution going, like the information's the charging document. And if you look at section 504 of the criminal code, it says that anyone may lay an information uh charging somebody with a criminal offense, and anyone means well, anyone, right? Uh uh usually in the in the ordinary course of things in the modern world, what's happening is that uh the police would make a report to Crown, Crown would decide whether there was a basis to approve uh charges, if so, Crown would draft that information, uh, and then another police officer would read over the police report uh and then attend before a uh uh judicial uh JP uh and swear that they've got reasonable grounds to believe that the person's committed a criminal offense, sign it, JP would sign it, and that's what starts the criminal process going. But section 504 remains, as it says, anyone can lay in information. However, that's been modernized to the extent that if it's some person, not a police officer, who's starting uh wanting to start a prosecution, uh they are required to appear before a provincial court judge or a designated justice to have a hearing about whether there's a basis for that happening. And indeed, there's a requirement that notice be given to Crown Counsel if you're planning to do that, so they could show up and uh under the Crown Council Act, that that act which deals with how crown prosecutions work in BC, it directs Crown Counsel that either they take over the prosecution, if they look at it and say, yeah, this appears to have merit, uh, they would take it over, or uh they would be permitted to take it over and stay in a prosecution, like stop it, right? But there is still that process of appearing in front of a provincial court judge, uh, and there could even be a process for judicially reviewing a decision for the crown to stay a proceeding. And you can think of when you think about it, you can think of why we need that safety valve there, you know, because what happens if, for example, the attorney general herself uh is uh apparently murdered somebody or engaged in some totally you know criminal conduct, right? You don't want to live in a world where the crown could just say stay a proceedings and nothing could ever be done, right? Yeah. Uh and so there is this process where a person can appear before a provincial court judge and maybe persuade the provincial court judge to issue a warrant, for example, or allow the prosecution to go ahead. And then if Crown took over the prosecution and stayed it, uh you could have a judicial review of that decision. And this case, which just came out, was a circumstance where this fellow who was uh clearly a very litigious person, he's been in another context declared a vexatious litigant, like so uh suing so many people without merit, he has to get approval to be able to do that. Uh and he himself had been involved in a criminal case a number of years ago, and he was trying to it looks like relitigate his unsuccessful, he was convicted, trying to relitigate some of the issues which were decided against him by trying to charge everyone involved. And so he had swear swore out thirteen private informations charging everyone from every crown council that had anything to do with anything, the police who investigated him, David Eby, uh, you know, uh the current A.G., everyone involved, right? So must he was doing something wrong. And the result of that was the Crown Council just took over the prosecution and regional crown just directed a state of proceedings. That led to the man, being a you know, litigious fellow and all, to seek a judicial review of that decision. Trying to say, well, that was improper, uh, and wanting it to proceed. And indeed there is a process to do that. Uh, but it's a fairly high standard. And the start of it is that you would need to establish that the uh decision to stay the proceedings, to discontinue it, uh amounted to an abusive process. Okay? Now, a state of proceedings is can just be it can be done in court orally, or it can be done like in this case by letters, literally a letter from the crown saying, hello, I'm Joe Blog's Crown Counsel. I hereby direct a state of proceedings of this matter. And that's the end of it, right? Uh and subject to a review, like on the basis of an abusive process, that's it. And there are there are some things which are viewed as sort of the core and elements of core prosecutorial discretion, like the decision about should a charge be approved or not, which are not reviewable except in the most extreme circumstances that would amount to an abusive process, right? And it's important to remember some of those decisions are really at their core political, right? Like there are you know policies that are put in place directing crown what's to be prosecuted and when to do things and what tests to be set out and so on, right? And indeed, there are even provisions like in the Crown Council Act, they try to insulate the process to some extent from political interference that's not uh clear. Uh, but you know, under the Crown Council Act, for example, the Attorney General can just direct in writing uh whatever they want in terms of how a prosecution's to occur. Like the Attorney General can just put in writing, it's gonna be published in the Gazette. Uh they could just uh publish, you know, uh a direction that you know Adam Sterling should be charged with something, right? Or the charge against somebody should be stayed. That's totally political, right? They can do that. Uh the idea under that act is that it should be transparent so we can know that this is just a naked political act to do something or other, but there it is, that's how that works. And when you have a decision whether it's that kind of thing directed by the Attorney General in writing or just the uh you know lying crown making some decision, are we approving the shoplifting charge or are we staying the shoplifting charge, right? If the decision can amount to, if you can show that that decision amounts to an abusive process, which are things like flagrant impropriety or undermining the integrity of the justice system or made for an improper purpose or in bad faith, like you know, let I don't know, let's say in some small town, Crown had a dispute with their neighbor and decided to charge him with murder to get back at him for something, right? Well, hold on. That's just flagrantly improper. And so you could have a judicial review of that decision. Or, you know, conversely, if you had the attorney general directing stays or proceedings for, you know, uh other members of their political party, uh, you might be that might amount to flagrant impropriety or an improper motive and could be judicially reviewed and overturned. Um but in this case, uh and in any of those cases, if you're applying for uh that kind of an application saying this is an abusive process, the person doing that bears uh an evidentiary basis. They have an evidentiary burden to try to show, well, why do you say this was somehow improper, right? How could this be an abusive process? Um, you know, while you're saying that Crown did this because it was a neighbor dispute. Well, what's the basis for that, right? And here, not surprisingly, uh this man had no evidence that, you know, the attorney general or the judge involved or every crown who dealt with a file or something uh was engaged in some kind of criminal conduct. There was just no evidentiary basis for it. And so the judge hearing this app this was an application by the crown to summarily dismiss uh that uh application for the judicial review on the theory of an abusive process uh was successful on that uh basis. It was also successful on the basis there's another test where you can have a uh thing like this struck out if you could demonstrate that it's manifestly frivolous, right? Yeah. And that also it got across that bar too. I I must say, reading this whole thing, it it actually reminded me of a uh uh Victoria case now a number of years ago where the Crown Council was prosecuting a fellow for some weapons offenses, and it was a jury trial. Um and one of the offenses I think was pointing a firearm, and it might have been an unsafe use of a firearm, something like that. But there was an offense of pointing a firearm. And in the course of the jury trial, Crown Council picked up the gun, which was, you know, all wired up and so on, you could never actually go off, and was showing it to the jury, I guess, bringing it over and bringing it to the jury box and showing it to them, making some submission about it. Yeah. And on a break in the case, the accused went down and swore a private information, charging that crown counsel with pointing a firearm on the basis of how he was moving it around the courtroom. Well, he pointed it at me. He pointed it at the jury, right?
Adam Stirling:Everybody's guilty.
Michael Mulligan:Pointed a firearm. You're you're charged, right? And process actually got issued in that case. Uh, and the crown didn't want wanted to avoid uh the idea of uh having just some other person in the same office just stay the proceedings for fear that it'd be viewed as, well, hold on, that's just sort of your buddy from the next office. You can't be staying those proceedings, right? And you know, maybe the concern there was it wasn't so obviously manifestly frivolous, like the you know, the attorney general must have been interfering in this guy's breach trial or something, right? You know, yeah, in fact, he had a gun, yeah, yeah, it might have been pointed at somebody. The issue would be in that case whether it was without lawful excuse or whether that's meant by pointing an unloaded firearm. And so in that case, I guess to avoid some of these questions, what happened is they appointed ad hoc crown uh to review the thing, so it's not just somebody from the next office making the decision. And the ad hoc crown in the Victoria case just decided, look, this just has no merit uh and stayed the proceedings. So, anyways, these things do come up from time to time. It's important we have this there in the most extreme cases where you had political interference or some misconduct or something. You know, you you see flavors of that right now in the U.S. in the federal context, right? You see, you know, circumstances where you've got former political opponents being charged with crimes. Um, and so, you know, it's a good thing we have these uh possible review for abuse of process here and mechanisms where somebody could do it privately, but uh it's a fairly high bar. So that's the latest from the BC Supreme Court on when you can and cannot uh review a decision by Crown not to continue with a uh private criminal prosecution.
Adam Stirling:Michael Mulligan and Small Good Defense Lawyers, legally speaking, during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thanks so much. Always great to be here. All right, quick break back after this.