The repeated “interventions” by a judge during a suspected drug dealer’s trial led to a miscarriage of justice, the Alberta Court of Appeal ruled Friday.
And in a concurring opinion, one judge went as far as to suggest Justice Harry Van Harten “hijacked” the Crown evidence of two police witnesses.
Justice Thomas Wakeling said while Van Harten showed no bias in the case a “notional observer would conclude that the trial process was flawed.”
A three-member appeal panel ruled a new trial for suspected methamphetamine trafficker Clifford Clayton Favel was warranted.
Van Harten convicted Favel on Feb. 22, 2023, of possession of the drug for the purpose of trafficking.
In their majority opinion, Justice Jolaine Antonio and Justice Anne Kirker found Van Harten’s attempts to speed up the trial usurped the process.
“Throughout the trial, the trial judge appeared to assume he knew the evidence counsel intended to call and the arguments they intended to make,” they wrote.
“He appeared to assume portions of the evidence and argument would be of little or no worth. These assumptions went both ways, so we do not decide this case on the basis that the trial judge favoured one litigant over the other. Rather, we find there is a reasonable apprehension that on material issues the trial judge was not open to persuasion,” they said.
“Further, his repeated interventions disrupted the ability of both counsel to present their cases and may have impaired the ability of witnesses to tell their stories.”
Wakeling, in concurring with the conclusion a new trial was necessary, said the trial process was flawed for three principal reasons.
“First, Justice Van Harten hijacked, without justification, the Crown’s direct examination of Constables (Tom) Blake and (Jessica) Juha,” Wakeling said.
“Second, the trial judge expressly stated on one occasion that he was ‘just trying to help … (Crown counsel) out here’ and, on other occasions, told the Crown how to present the case,” the appeal judge said.
He said a lay observer would classify those statements as evidence of favouritism.
“Third, the trial judge cross-examined the accused at length. He should not have done this,” Wakeling said.
Despite those errors, Wakeling said there was nothing to suggest bias on Van Harten’s part.
“My review of the transcript strongly supports the view that the trial judge approached the case with an open mind and decided the case based on the evidence and the law.”
Van Harten handed Favel, 47, the equivalent of a 2 1/2-year sentence. Because Favel failed to show up for an earlier court appearance he remains detained unless he seeks bail prior to his retrial.
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