Law Times

Page 10 July 9, 2018 • law Times www.lawtimesnews.com FOCUS Restraint urged for summary conviction appeal judges BY SHANNON KARI For Law Times T he Ontario Court of Appeal has issued a re- minder to summary conviction appeal judg- es that it should use restraint in any inquiry into how the lower court managed the trial process. "The jurisdiction of a sum- mary conviction appeal judge is limited," wrote Justice Ian Nord- heimer in R. v. Polanco. "A summary conviction ap- peal judge is not entitled to re- try the case or to substitute his or her own view of the evidence for that of the trial judge. A sum- mary conviction appeal judge is also not entitled to interfere with a trial judge's findings un- less they are unreasonable or unsupported by the evidence," added Nordheimer, with justices Harry LaForme and David Watt concurring. The Court of Appeal over- turned the decision of Supe- rior Court Justice Kelly Wright and restored convictions on five counts of assault and one of theft against Emark Polanco following a 12-day domestic as- sault trial in the Ontario Court of Justice. Wright, the summary con- viction appeal court judge, found that Hackett did not ap- ply a fair vetting procedure that resulted in the trial judge ruling that 45 of 173 photographs of the complainant the defence wanted to use in cross-examination were inadmissible. The issues in the case high- light the tension between an increased emphasis on trial ef- ficiency following the Supreme Court's decisions in R. v. Jor- dan and R. v. Cody and on not infringing the right to a fair trial. "Jordan and Cody were very clear that efficiency measures are not meant to undermine full an- swer and defence," says Matthew Gourlay, who acted for Polanco on the summary conviction ap- peal and at the Court of Appeal but not at the original trial. "Trial management has a function to play. But it needs to be exercised with caution and respect for the parties," adds Gourlay, a partner at Henein Hutchison LLP in Toronto. At the Polanco trial, the de- fence wanted to put the photos to the complainant to challenge her evidence about physical in- juries and testimony about the nature of their relationship. The Crown objected to any of the photos being admitted. Hackett decided to vet each photo individually to determine admissibility. "The vetting procedure lacked consistency and was often con- fusing. It appears that different standards and tests were being applied to different photographs," Wright stated in her decision and added that the trial judge did not refer to the correct legal test for admissibility. "It appears that the trial judge's intervention was osten- sibly intended to be a time sav- ing measure, to keep the trial on track and moving forward. A laudable goal to be sure, the f law, however, was in the execution. I know first-hand the pressure on trial judges to ensure that mat- ters are advancing in a timely fashion. We, as trial judges, how- ever, must be vigilant to ensure that efficiency does not under- mine the integrity of the pro- cess," Wright observed. The Court of Appeal, how- ever, accepted the Crown ar- gument that Wright's decision "improperly interfered" with the discretion of the trial judge to control the trial process. "Trial judges must be con- cerned with the orderly progres- sion of any proceeding," wrote Nordheimer. "The trial judge made it per- fectly clear the reason why she was reviewing all of the photo- graphs. Further, she gave rea- sons, in many instances, regard- ing the photographs that she excluded. Given the nature of the exercise, it was neither nec- essary, nor was it to be expected, that the trial judge would give separate reasons for each indi- vidual photograph." The decision of the Court of Appeal pointed out that the de- fence lawyer at trial did not ask the judge to revisit the rulings on the excluded photos, during or near the end of the cross- examination. As well, while it was unusual to rule on the photos before the cross-examination, this was not a legal error, the Court of Appeal concluded. Andrew Burgess, a Toronto defence lawyer, suggests the Court of Appeal decision may actually lengthen trials in some cases. "If I have one of these cases, I am going to have to make objec- tions about each photo that does not go in and I might have to bring it up again in my closing," he says. The pre-cross-examination screening is also potentially un- fair to the defence, he says. "It is hard to determine the relevance or whether the ques- tions are repetitive in the ab- stract," says Burgess. "The lesson for defence law- yers is that if a cross-examination will be deliberate and take some time to think through your justi- fication in advance," he adds. Gourlay agrees that if a cross-examination is going to be lengthy, the purpose should be clear to the trial judge. "You need to articulate it in a cogent manner," he says. Both lawyers stress that re- petitive cross-examinations are not going to be effective for the client. At the same time, they say courts should be careful about having trial management con- cerns impact whether evidence is admissible. "Most judges will be under- standing if you explain what you are trying to accomplish. My concern is that Crowns will invoke this ruling to embolden trial judges to be more interven- tionist. Defence counsel need to be vigilant so that efficiency concerns don't impact the en- titlement of the accused to a fair trial," says Gourlay. LT Andrew Burgess says a recent Court of Appeal deci- sion may actually lengthen trials in some cases. FOCUS ON Criminal Law MANAGING CYBERSECURITY RISK Course Leaders: Lisa R. Lifshitz & Peter V. Nguyen Toronto & Webinar | September 27 REGISTER BEFORE AUGUST 24 AND SAVE UP TO $300* *Discount applies to in-class only Register online at www.lexpert.ca/legal-programs For questions and group rates, please contact: • Direct: 416-609-5868 • Email: cpd.centre@thomsonreuters.com Untitled-6 1 2018-07-04 1:04 PM

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