Carfra Lawton LLP | Victoria BC

Questions from a trial judge do not create a “reasonable apprehension of bias”

How much latitude does a judge have to question witnesses and debate with counsel during a trial? Quite a bit, says the Court of Appeal.

S.N. Carlson Trucking Ltd. v. 590580 B.C. Ltd., 2018 BCCA 211, involved a dispute over the ownership and use of certain trucks. The defendants lost at trial and appealed the judge’s decision, arguing that his many questions and comments during the trial had created “a reasonable apprehension of bias.”

The Court of Appeal disagreed, noting that many of the trial judge’s questions sought to clarify evidence given by witnesses. The judge was also confused about some of the defendants’ arguments and asked them to clarify their position. His interruptions about wasting trial time on irrelevant topics in the evidence were a proper part of the judge’s trial management function.

The Court of Appeal noted that if a judge does not understand a position taken by counsel, it is better for him or her to raise it at the trial so that counsel can explain themselves. This gives counsel the opportunity to address the judge’s concerns and also to try to convince the judge of their position.

A judge is allowed to be, and should be, engaged with the parties at a trial in order to understand the issues and evidence. It is not only appropriate for a judge to ask questions, but in fact, this is an important part of the trial process.

Case summary by Karen Orr