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Appeal Court slams Ontario judge for two cases of trial misconduct

TORONTO - Ontario's top court took the unusual step Tuesday of publicly berating a judge for inappropriate conduct during different cases that led to overturned convictions and costly retrials.

In their judgment allowing an appeal of two convicted drug dealers, the Appeal Court justices made it clear they were fed up with Superior Court Justice Robert Scott.

"This is the second time in less than one year that this court has allowed appeals relating to judgments of this trial judge on the basis of reasonable apprehension of bias," the Appeal Court wrote.

"In both instances, public resources were wasted, great inconvenience to the parties resulted, and the integrity of the administration of justice was tarnished," the Appeal Court ruled.

In its decision, the Appeal Court quashed Scott's convictions in August 2011 of John Huang and co-conspirator Ying Huang in Belleville, Ont., for various marijuana-related offences.

Trial transcripts from the joint trial show the Crown was cross-examining John Huang when Scott jumped in, asking the accused if he understood "what perjury is."

Huang's lawyer objected, saying, "I don't think that it is proper for your honour to interject and caution him about perjury at a point when he is trying to explain an answer."

Scott then admitted he had concerns about the truth of Huang's evidence.

On appeal, both Huangs argued Scott's comments gave the appearance he had decided the case prematurely thereby undermining their right to a fair trial.

"We agree that the trial judge's impugned comments gave rise to a reasonable apprehension of bias that fatally compromised trial fairness," the Appeal Court wrote.

"It follows that there was a miscarriage of justice and a new trial is required."

Similarly, in May last year, the Appeal Court ruled Scott had impugned the integrity of the plaintiff in a civil case before the trial had concluded.

Scott had also insisted the plaintiffs were making a fraud allegation, even though their lawyer insisted that was not the case.

In the earlier ruling, the Appeal Court called Scott's pointed interjections "troubling," saying they gave rise to suspicion he had "closed his mind" to the central issue in play.

The justices seemed incredulous that Scott would make the statements he did, saying it was "impossible to fathom" why he thought them appropriate.

In the Huang case, the Appeal Court noted trial judges are supposed to listen and leave it to lawyers to explore any inconsistencies in witness testimony.

"In both instances, the perception of bias arose because of improper and unwarranted interventions by the trial judge during the examination of witnesses."



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