November 13, 2025 • 21 mins
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.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:24):
How does that work?
Michael Mulligan (00:27):
Well, I I guess that that may be a
surprise to some listeners, butuh it's uh the case that uh
judges are uh permitted to asksome questions in the course of
a trial.
I mean, at its base, ourjustice system operates on an
adversarial basis with the ideathat, you know, in a criminal
case, Crown Counsel would askquestions, defense counsel would
(00:48):
cross-examine, and vice versa,with witnesses the other of them
calls.
Um and while that's the generalproposition, uh, it is
permissible uh for judges to asksome questions, for example, to
clear up ambiguities orsomething is vague left vague.
It's not clear to the judge,for example, what a witness
said, or requires a bit moreexplanation.
(01:10):
And you do see that from timeto time, you know, after a
witness testifies and wascross-examined, you might have a
judge ask some question, youknow, you know, you said the
color, you know, the car waswhat color again?
Blue.
Okay, very good.
Thank you very much.
And then they might say to bothlawyers anything arising from
that question, right?
So there can be interventionsand and questions asked by a
(01:31):
judge.
But uh, as this case pointsout, there are real limits on
what a judge is allowed to do uhin 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 uhbaseball umpire shouldn't start
uh you know trying to field theuh field the a ball or
(01:51):
something, right?
Yeah um and this particularcase, it was a sexual assault
case, um, and the uh judgeconvicted uh and there was an
appeal from the conviction, andthe appeal was an appeal on the
basis of there being amiscarriage of justice, which is
one of the uh grounds uponwhich there can be a conviction
(02:13):
appeal.
Um and in terms of whetherthere was a miscarriage of
justice as a result of how muchthe judge intervened in the
trial, uh the issue on theappeal was whether it was so
severe that either the renderedthe trial in fact unfair or
created the appearance ofunfairness, because both of
(02:33):
those are important, right?
E even if you might concludethat, well, the right judge you
know decision might have beenreached if the whole thing just
looked unfair, well that'sreally not acceptable.
Um and so on this uh convictionappeal, uh the uh judge hearing
the appeal was looking back at,well, what exactly did the
judge do here?
(02:54):
Um, and looked at examples ofwhere in the past judicial
overstepping um has resulted inthere being a finding that there
was a lack of uh an appearanceof unf uh fairness, right?
Uh and that can include thatcan occur in a number of ways.
And as was pointed out on theappeal, that can happen where,
for example, you know, a judgewinds up questioning the accused
(03:16):
or a witness in a way thatsuggests, you know, they are uh
advocating for the crown orsomething, right?
Um, or where they're suchquestioning that it made it
impossible for counsel toproperly conduct the case on
their own, um, or intervening uhin a way that prevents somebody
from telling their story or uhwhatever it might be.
But there are clearly limits onwhat can be done.
(03:36):
And here, some of what thejudge had done was in that
category of sort ofunobjectionable clarification of
things, right?
And that that wasn't what wascomplained about.
But uh as was pointed out onthe by the uh judge hearing the
appeal, a Supreme Court uhjudge, um the judicial
interventions were verysignificant, going on in some
(03:59):
cases for pages and pages of thejudge effectively doing things
like cross-examining witnesses,um uh and even doing things like
uh the judge was interferingwith the uh with crown counsel,
how she was trying to uh leadevidence from the complainant in
the case.
Like the uh the transcriptrevealed the judge was
(04:20):
intervening, directing crown tohave the person draw a sketch
during the court break and uhcoming back and asking uh
questions, prompting things likethe uh crown to you know ask to
be given a chance to finishasking asking their questions.
And the interventions by thejudge even extended to it was a
(04:40):
case where uh the accused choseto testify.
Um and uh for a while the judgesort of allowed the crown to
cross-examine the accused, butthen sort of just took over,
basically, um, and got into sortof you know questioning the
person and getting them toacknowledge things, and then
moreover used things the judgehad managed to himself get out
(05:02):
in the course ofcross-examination as being his
reasons for disbelieving theaccused.
You know, sort of all thebrilliant cross-examination I
conducted, of course, led tothings I found to be very
persuasive, although we didn't,of course, use terms like
brilliant.
But the point was that thiswasn't a minor um you know
clarification.
Uh the judge was repeatedlyintervening uh and conducting
(05:25):
his own cross-examinations uhand uh interfering with direct
examinations and then relyingupon um things that he managed
to bring out or or uh extract inthe course of those things.
And you know, on the appeal, uhthe judge hearing the appeal,
um, and be uh the way that worksinterestingly is if it's a
(05:47):
summary conviction case, or wehave two ways you can be
prosecuted uh criminally, eitherby summary conviction or by
indictment.
It's the rough equivalent of ifyou've heard about it from the
U.S.
or the movies, felonies andmisdemeanors, right?
With felonies being moreserious in Canada, we've got by
indictment being more serious,right?
And so if there's a criminalappeal from a case that's uh
(06:08):
preceded with by indictment,that goes first to the Court of
Appeal, where you'd havemultiple judges of that court,
you know, three or five hearingthe appeal.
Where it's a summary convictionthing, which would be heard in
provincial court initially, thefirst level of appeal would be
to the BC Supreme Court, sort ofone level of court up, and a
single judge hearing the appeal.
So that that's what was goingon here.
(06:28):
Uh and so the Supreme Courtjudge hearing the appeal, uh,
you know, concluded that uh, youknow, they they weren't
persuaded uh that uh in fact thetrial judge had acted unfairly,
right?
That's a pretty high bar,right, if you sort of find the
trial judge was in fact biasedand uh unfair.
But that's not the end of theinquiry, because the uh the way
(06:51):
it has to be analyzed is fromthe perspective of you know, if
you had a reasonable person whojust watched all of what went on
here, would you conclude uhthat that looked like a fair
trial the person got?
And on that test, uh the uhjudge on the appeal answered no,
right?
It's just how many and howsignificant the interventions
(07:14):
were uh of the judge effectivelyuh you know assuming the role
of counsel in some cases wasjust over the line.
Um and so when it gets uh thatfar, uh the result here uh is
that it was a miscarriage ofjustice because a reasonable
person watching what went onhere would not have thought uh
(07:34):
this looked fine.
Um one of the things that didnot work on the appeal is the uh
crown on the appeal arguedthat, well, defense counsel
should have been objecting tothe judge more, right?
So if you know, because forexample, uh the judge did things
like asking leading questionsof the witness, which is not
permitted in a directexamination, right?
Then uh when a witness istestifying indirect, telling
(07:55):
what happened, one of the rulesis that uh you can't ask leading
questions, like something thatwould suggest the answer to the
person, right?
Like you if let's say the colorof the car was important, you
couldn't, when you were firstcalling a witness in their
testifying, you couldn't say, uhyou saw a uh big blue car out
front, didn't you?
And have the person just say,Yeah, right?
That would becross-examination.
(08:17):
And so the judge was doingthings like that, even.
Um, and Crown argued on theappeal, well, you know, defense
counsel should have beenobjecting more to the judge.
And I think they pointed outquite reasonably, it's difficult
to be objecting to the questionbeing asked by the person who
would then decide whether thequestion is itself
objectionable.
(08:37):
And so that didn't get too farand did point out that, you
know, yeah, defense counsel wastrying to intervene in what the
judge was doing, but just sortof got brushed off and the judge
just carried on.
Um and so, anyways, that thatdidn't do it.
And that was an interestingapproach.
You should have objected moreto what the uh judge was doing
so that you know he himselfcould have uh ruled in your
(08:57):
favor about how objectionablehis questions were.
Um so, anyways, the net resultis given all of that, it just uh
wasn't just some innocuousclearing something up.
It did interfere with theappearance at least of a uh a
fair trial.
Uh and the uh result of that isin order that the uh there be a
do-over, uh a new trial with adifferent judge.
And uh presumably uh with thebenefit of this decision, they
(09:20):
might just uh sit back and allowuh you know, call some balls
and strikes and don't try toactually catch the pitch or uh
you know throw it back out tothe uh throw it back out to the
pitcher.
Um that's the latest in the BCSupreme Court on that issue of
just how far a judge is allowedto go in terms of uh uh
intervening in a trial thatthey're hearing themselves.
Adam Stirling (09:39):
Michael Moscow, I think.
Michael Mulligan (10:09):
That's true.
And and I must say, part ofthis comes from sort of the
history, uh sort of earliertimes in Canada's criminal law
history, uh, when it would notbe uncommon for there to be
private prosecutions.
Um and you know, it wasn't thatmany years ago.
You go back and you would havea circumstance where you could
in fact hire a lawyer and goabout charging somebody with a
(10:31):
crime, you know, stealing yourhorse or something.
Um and that history remains inthe criminal code dealing with
the issue of who may lay aninformation, which is sort of
the process starting a criminalprosecution going, like the
information's the chargingdocument.
And if you look at section 504of the criminal code, it says
(10:53):
that anyone may lay aninformation uh charging somebody
with a criminal offense, andanyone means well, anyone,
right?
Uh uh usually in the in theordinary course of things in the
modern world, what's happeningis that uh the police would make
a report to Crown, Crown woulddecide whether there was a basis
to approve uh charges, if so,Crown would draft that
(11:15):
information, uh, and thenanother police officer would
read over the police report uhand then attend before a uh uh
judicial uh JP uh and swear thatthey've got reasonable grounds
to believe that the person'scommitted a criminal offense,
sign it, JP would sign it, andthat's what starts the criminal
process going.
But section 504 remains, as itsays, anyone can lay in
(11:39):
information.
However, that's been modernizedto the extent that if it's some
person, not a police officer,who's starting uh wanting to
start a prosecution, uh they arerequired to appear before a
provincial court judge or adesignated justice to have a
hearing about whether there's abasis for that happening.
And indeed, there's arequirement that notice be given
(12:02):
to Crown Counsel if you'replanning to do that, so they
could show up and uh under theCrown Council Act, that that act
which deals with how crownprosecutions work in BC, it
directs Crown Counsel thateither they take over the
prosecution, if they look at itand say, yeah, this appears to
have merit, uh, they would takeit over, or uh they would be
(12:22):
permitted to take it over andstay in a prosecution, like stop
it, right?
But there is still that processof appearing in front of a
provincial court judge, uh, andthere could even be a process
for judicially reviewing adecision for the crown to stay a
proceeding.
And you can think of when youthink about it, you can think of
(12:42):
why we need that safety valvethere, you know, because what
happens if, for example, theattorney general herself uh is
uh apparently murdered somebodyor engaged in some totally you
know criminal conduct, right?
You don't want to live in aworld where the crown could just
say stay a proceedings andnothing could ever be done,
right?
Yeah.
Uh and so there is this processwhere a person can appear
(13:06):
before a provincial court judgeand maybe persuade the
provincial court judge to issuea warrant, for example, or allow
the prosecution to go ahead.
And then if Crown took over theprosecution and stayed it, uh
you could have a judicial reviewof that decision.
And this case, which just cameout, was a circumstance where
this fellow who was uh clearly avery litigious person, he's
(13:29):
been in another context declareda vexatious litigant, like so
uh suing so many people withoutmerit, he has to get approval to
be able to do that.
Uh and he himself had beeninvolved in a criminal case a
number of years ago, and he wastrying to it looks like
relitigate his unsuccessful, hewas convicted, trying to
relitigate some of the issueswhich were decided against him
(13:51):
by trying to charge everyoneinvolved.
And so he had swear swore outthirteen private informations
charging everyone from everycrown council that had anything
to do with anything, the policewho investigated him, David Eby,
uh, you know, uh the currentA.G., everyone involved, right?
So must he was doing somethingwrong.
And the result of that was theCrown Council just took over the
(14:14):
prosecution and regional crownjust directed a state of
proceedings.
That led to the man, being ayou know, litigious fellow and
all, to seek a judicial reviewof that decision.
Trying to say, well, that wasimproper, uh, and wanting it to
proceed.
And indeed there is a processto do that.
Uh, but it's a fairly highstandard.
And the start of it is that youwould need to establish that
(14:38):
the uh decision to stay theproceedings, to discontinue it,
uh amounted to an abusiveprocess.
Okay?
Now, a state of proceedings iscan just be it can be done in
court orally, or it can be donelike in this case by letters,
literally a letter from thecrown saying, hello, I'm Joe
Blog's Crown Counsel.
I hereby direct a state ofproceedings of this matter.
(14:59):
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 somethings which are viewed as sort
of the core and elements of coreprosecutorial discretion, like
the decision about should acharge be approved or not, which
are not reviewable except inthe most extreme circumstances
(15:22):
that would amount to an abusiveprocess, right?
And it's important to remembersome of those decisions are
really at their core political,right?
Like there are you knowpolicies that are put in place
directing crown what's to beprosecuted and when to do things
and what tests to be set outand so on, right?
And indeed, there are evenprovisions like in the Crown
Council Act, they try toinsulate the process to some
(15:45):
extent from politicalinterference that's not uh
clear.
Uh, but you know, under theCrown Council Act, for example,
the Attorney General can justdirect in writing uh whatever
they want in terms of how aprosecution's to occur.
Like the Attorney General canjust put in writing, it's gonna
be published in the Gazette.
Uh they could just uh publish,you know, uh a direction that
(16:06):
you know Adam Sterling should becharged with something, right?
Or the charge against somebodyshould be stayed.
That's totally political,right?
They can do that.
Uh the idea under that act isthat it should be transparent so
we can know that this is just anaked political act to do
something or other, but there itis, that's how that works.
And when you have a decisionwhether it's that kind of thing
(16:26):
directed by the Attorney Generalin writing or just the uh you
know lying crown making somedecision, are we approving the
shoplifting charge or are westaying the shoplifting charge,
right?
If the decision can amount to,if you can show that that
decision amounts to an abusiveprocess, which are things like
flagrant impropriety orundermining the integrity of the
(16:48):
justice system or made for animproper purpose or in bad
faith, like you know, let Idon't know, let's say in some
small town, Crown had a disputewith their neighbor and decided
to charge him with murder to getback at him for something,
right?
Well, hold on.
That's just flagrantlyimproper.
And so you could have ajudicial review of that
decision.
Or, you know, conversely, ifyou had the attorney general
(17:08):
directing stays or proceedingsfor, you know, uh other members
of their political party, uh,you might be that might amount
to flagrant impropriety or animproper motive and could be
judicially reviewed andoverturned.
Um but in this case, uh and inany of those cases, if you're
applying for uh that kind of anapplication saying this is an
(17:30):
abusive process, the persondoing that bears uh an
evidentiary basis.
They have an evidentiary burdento try to show, well, why do
you say this was somehowimproper, right?
How could this be an abusiveprocess?
Um, you know, while you'resaying that Crown did this
because it was a neighbordispute.
Well, what's the basis forthat, right?
And here, not surprisingly, uhthis man had no evidence that,
(17:52):
you know, the attorney generalor the judge involved or every
crown who dealt with a file orsomething uh was engaged in some
kind of criminal conduct.
There was just no evidentiarybasis for it.
And so the judge hearing thisapp this was an application by
the crown to summarily dismissuh that uh application for the
judicial review on the theory ofan abusive process uh was
(18:15):
successful on that uh basis.
It was also successful on thebasis there's another test where
you can have a uh thing likethis struck out if you could
demonstrate that it's manifestlyfrivolous, right?
Yeah.
And that also it got acrossthat bar too.
I I must say, reading thiswhole thing, it it actually
reminded me of a uh uh Victoriacase now a number of years ago
(18:38):
where the Crown Council wasprosecuting a fellow for some
weapons offenses, and it was ajury trial.
Um and one of the offenses Ithink was pointing a firearm,
and it might have been an unsafeuse of a firearm, something
like that.
But there was an offense ofpointing a firearm.
And in the course of the jurytrial, Crown Council picked up
the gun, which was, you know,all wired up and so on, you
(19:00):
could never actually go off, andwas showing it to the jury, I
guess, bringing it over andbringing it to the jury box and
showing it to them, making somesubmission about it.
Yeah.
And on a break in the case, theaccused went down and swore a
private information, chargingthat crown counsel with pointing
a firearm on the basis of howhe was moving it around the
courtroom.
Well, he pointed it at me.
He pointed it at the jury,right?
Adam Stirling (19:20):
Everybody's guilty.
Michael Mulligan (19:21):
Pointed a firearm.
You're you're charged, right?
And process actually got issuedin that case.
Uh, and the crown didn't wantwanted to avoid uh the idea of
uh having just some other personin the same office just stay
the proceedings for fear thatit'd be viewed as, well, hold
on, that's just sort of yourbuddy from the next office.
You can't be staying thoseproceedings, right?
(19:42):
And you know, maybe the concernthere was it wasn't so
obviously manifestly frivolous,like the you know, the attorney
general must have beeninterfering in this guy's breach
trial or something, right?
You know, yeah, in fact, he hada gun, yeah, yeah, it might
have been pointed at somebody.
The issue would be in that casewhether it was without lawful
excuse or whether that's meantby pointing an unloaded firearm.
And so in that case, I guess toavoid some of these questions,
(20:05):
what happened is they appointedad hoc crown uh to review the
thing, so it's not just somebodyfrom the next office making the
decision.
And the ad hoc crown in theVictoria case just decided,
look, this just has no merit uhand stayed the proceedings.
So, anyways, these things docome up from time to time.
It's important we have thisthere in the most extreme cases
(20:26):
where you had politicalinterference or some misconduct
or something.
You know, you you see flavorsof that right now in the U.S.
in the federal context, right?
You see, you know,circumstances where you've got
former political opponents beingcharged with crimes.
Um, and so, you know, it's agood thing we have these uh
possible review for abuse ofprocess here and mechanisms
(20:46):
where somebody could do itprivately, but uh it's a fairly
high bar.
So that's the latest from theBC Supreme Court on when you can
and cannot uh review a decisionby Crown not to continue with a
uh private criminalprosecution.
Adam Stirling (21:00):
Michael Mulligan and Small Good Defense Lawyers,
legally speaking, during thesecond 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 backafter this.
How does that work?
Michael Mulligan (00:27):
Well, I I guess that that may be a
surprise to some listeners, butuh it's uh the case that uh
judges are uh permitted to asksome questions in the course of
a trial.
I mean, at its base, ourjustice system operates on an
adversarial basis with the ideathat, you know, in a criminal
case, Crown Counsel would askquestions, defense counsel would
(00:48):
cross-examine, and vice versa,with witnesses the other of them
calls.
Um and while that's the generalproposition, uh, it is
permissible uh for judges to asksome questions, for example, to
clear up ambiguities orsomething is vague left vague.
It's not clear to the judge,for example, what a witness
said, or requires a bit moreexplanation.
(01:10):
And you do see that from timeto time, you know, after a
witness testifies and wascross-examined, you might have a
judge ask some question, youknow, you know, you said the
color, you know, the car waswhat color again?
Blue.
Okay, very good.
Thank you very much.
And then they might say to bothlawyers anything arising from
that question, right?
So there can be interventionsand and questions asked by a
(01:31):
judge.
But uh, as this case pointsout, there are real limits on
what a judge is allowed to do uhin 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 uhbaseball umpire shouldn't start
uh you know trying to field theuh field the a ball or
(01:51):
something, right?
Yeah um and this particularcase, it was a sexual assault
case, um, and the uh judgeconvicted uh and there was an
appeal from the conviction, andthe appeal was an appeal on the
basis of there being amiscarriage of justice, which is
one of the uh grounds uponwhich there can be a conviction
(02:13):
appeal.
Um and in terms of whetherthere was a miscarriage of
justice as a result of how muchthe judge intervened in the
trial, uh the issue on theappeal was whether it was so
severe that either the renderedthe trial in fact unfair or
created the appearance ofunfairness, because both of
(02:33):
those are important, right?
E even if you might concludethat, well, the right judge you
know decision might have beenreached if the whole thing just
looked unfair, well that'sreally not acceptable.
Um and so on this uh convictionappeal, uh the uh judge hearing
the appeal was looking back at,well, what exactly did the
judge do here?
(02:54):
Um, and looked at examples ofwhere in the past judicial
overstepping um has resulted inthere being a finding that there
was a lack of uh an appearanceof unf uh fairness, right?
Uh and that can include thatcan occur in a number of ways.
And as was pointed out on theappeal, that can happen where,
for example, you know, a judgewinds up questioning the accused
(03:16):
or a witness in a way thatsuggests, you know, they are uh
advocating for the crown orsomething, right?
Um, or where they're suchquestioning that it made it
impossible for counsel toproperly conduct the case on
their own, um, or intervening uhin a way that prevents somebody
from telling their story or uhwhatever it might be.
But there are clearly limits onwhat can be done.
(03:36):
And here, some of what thejudge had done was in that
category of sort ofunobjectionable clarification of
things, right?
And that that wasn't what wascomplained about.
But uh as was pointed out onthe by the uh judge hearing the
appeal, a Supreme Court uhjudge, um the judicial
interventions were verysignificant, going on in some
(03:59):
cases for pages and pages of thejudge effectively doing things
like cross-examining witnesses,um uh and even doing things like
uh the judge was interferingwith the uh with crown counsel,
how she was trying to uh leadevidence from the complainant in
the case.
Like the uh the transcriptrevealed the judge was
(04:20):
intervening, directing crown tohave the person draw a sketch
during the court break and uhcoming back and asking uh
questions, prompting things likethe uh crown to you know ask to
be given a chance to finishasking asking their questions.
And the interventions by thejudge even extended to it was a
(04:40):
case where uh the accused choseto testify.
Um and uh for a while the judgesort of allowed the crown to
cross-examine the accused, butthen sort of just took over,
basically, um, and got into sortof you know questioning the
person and getting them toacknowledge things, and then
moreover used things the judgehad managed to himself get out
(05:02):
in the course ofcross-examination as being his
reasons for disbelieving theaccused.
You know, sort of all thebrilliant cross-examination I
conducted, of course, led tothings I found to be very
persuasive, although we didn't,of course, use terms like
brilliant.
But the point was that thiswasn't a minor um you know
clarification.
Uh the judge was repeatedlyintervening uh and conducting
(05:25):
his own cross-examinations uhand uh interfering with direct
examinations and then relyingupon um things that he managed
to bring out or or uh extract inthe course of those things.
And you know, on the appeal, uhthe judge hearing the appeal,
um, and be uh the way that worksinterestingly is if it's a
(05:47):
summary conviction case, or wehave two ways you can be
prosecuted uh criminally, eitherby summary conviction or by
indictment.
It's the rough equivalent of ifyou've heard about it from the
U.S.
or the movies, felonies andmisdemeanors, right?
With felonies being moreserious in Canada, we've got by
indictment being more serious,right?
And so if there's a criminalappeal from a case that's uh
(06:08):
preceded with by indictment,that goes first to the Court of
Appeal, where you'd havemultiple judges of that court,
you know, three or five hearingthe appeal.
Where it's a summary convictionthing, which would be heard in
provincial court initially, thefirst level of appeal would be
to the BC Supreme Court, sort ofone level of court up, and a
single judge hearing the appeal.
So that that's what was goingon here.
(06:28):
Uh and so the Supreme Courtjudge hearing the appeal, uh,
you know, concluded that uh, youknow, they they weren't
persuaded uh that uh in fact thetrial judge had acted unfairly,
right?
That's a pretty high bar,right, if you sort of find the
trial judge was in fact biasedand uh unfair.
But that's not the end of theinquiry, because the uh the way
(06:51):
it has to be analyzed is fromthe perspective of you know, if
you had a reasonable person whojust watched all of what went on
here, would you conclude uhthat that looked like a fair
trial the person got?
And on that test, uh the uhjudge on the appeal answered no,
right?
It's just how many and howsignificant the interventions
(07:14):
were uh of the judge effectivelyuh you know assuming the role
of counsel in some cases wasjust over the line.
Um and so when it gets uh thatfar, uh the result here uh is
that it was a miscarriage ofjustice because a reasonable
person watching what went onhere would not have thought uh
(07:34):
this looked fine.
Um one of the things that didnot work on the appeal is the uh
crown on the appeal arguedthat, well, defense counsel
should have been objecting tothe judge more, right?
So if you know, because forexample, uh the judge did things
like asking leading questionsof the witness, which is not
permitted in a directexamination, right?
Then uh when a witness istestifying indirect, telling
(07:55):
what happened, one of the rulesis that uh you can't ask leading
questions, like something thatwould suggest the answer to the
person, right?
Like you if let's say the colorof the car was important, you
couldn't, when you were firstcalling a witness in their
testifying, you couldn't say, uhyou saw a uh big blue car out
front, didn't you?
And have the person just say,Yeah, right?
That would becross-examination.
(08:17):
And so the judge was doingthings like that, even.
Um, and Crown argued on theappeal, well, you know, defense
counsel should have beenobjecting more to the judge.
And I think they pointed outquite reasonably, it's difficult
to be objecting to the questionbeing asked by the person who
would then decide whether thequestion is itself
objectionable.
(08:37):
And so that didn't get too farand did point out that, you
know, yeah, defense counsel wastrying to intervene in what the
judge was doing, but just sortof got brushed off and the judge
just carried on.
Um and so, anyways, that thatdidn't do it.
And that was an interestingapproach.
You should have objected moreto what the uh judge was doing
so that you know he himselfcould have uh ruled in your
(08:57):
favor about how objectionablehis questions were.
Um so, anyways, the net resultis given all of that, it just uh
wasn't just some innocuousclearing something up.
It did interfere with theappearance at least of a uh a
fair trial.
Uh and the uh result of that isin order that the uh there be a
do-over, uh a new trial with adifferent judge.
And uh presumably uh with thebenefit of this decision, they
(09:20):
might just uh sit back and allowuh you know, call some balls
and strikes and don't try toactually catch the pitch or uh
you know throw it back out tothe uh throw it back out to the
pitcher.
Um that's the latest in the BCSupreme Court on that issue of
just how far a judge is allowedto go in terms of uh uh
intervening in a trial thatthey're hearing themselves.
Adam Stirling (09:39):
Michael Moscow, I think.
Michael Mulligan (10:09):
That's true.
And and I must say, part ofthis comes from sort of the
history, uh sort of earliertimes in Canada's criminal law
history, uh, when it would notbe uncommon for there to be
private prosecutions.
Um and you know, it wasn't thatmany years ago.
You go back and you would havea circumstance where you could
in fact hire a lawyer and goabout charging somebody with a
(10:31):
crime, you know, stealing yourhorse or something.
Um and that history remains inthe criminal code dealing with
the issue of who may lay aninformation, which is sort of
the process starting a criminalprosecution going, like the
information's the chargingdocument.
And if you look at section 504of the criminal code, it says
(10:53):
that anyone may lay aninformation uh charging somebody
with a criminal offense, andanyone means well, anyone,
right?
Uh uh usually in the in theordinary course of things in the
modern world, what's happeningis that uh the police would make
a report to Crown, Crown woulddecide whether there was a basis
to approve uh charges, if so,Crown would draft that
(11:15):
information, uh, and thenanother police officer would
read over the police report uhand then attend before a uh uh
judicial uh JP uh and swear thatthey've got reasonable grounds
to believe that the person'scommitted a criminal offense,
sign it, JP would sign it, andthat's what starts the criminal
process going.
But section 504 remains, as itsays, anyone can lay in
(11:39):
information.
However, that's been modernizedto the extent that if it's some
person, not a police officer,who's starting uh wanting to
start a prosecution, uh they arerequired to appear before a
provincial court judge or adesignated justice to have a
hearing about whether there's abasis for that happening.
And indeed, there's arequirement that notice be given
(12:02):
to Crown Counsel if you'replanning to do that, so they
could show up and uh under theCrown Council Act, that that act
which deals with how crownprosecutions work in BC, it
directs Crown Counsel thateither they take over the
prosecution, if they look at itand say, yeah, this appears to
have merit, uh, they would takeit over, or uh they would be
(12:22):
permitted to take it over andstay in a prosecution, like stop
it, right?
But there is still that processof appearing in front of a
provincial court judge, uh, andthere could even be a process
for judicially reviewing adecision for the crown to stay a
proceeding.
And you can think of when youthink about it, you can think of
(12:42):
why we need that safety valvethere, you know, because what
happens if, for example, theattorney general herself uh is
uh apparently murdered somebodyor engaged in some totally you
know criminal conduct, right?
You don't want to live in aworld where the crown could just
say stay a proceedings andnothing could ever be done,
right?
Yeah.
Uh and so there is this processwhere a person can appear
(13:06):
before a provincial court judgeand maybe persuade the
provincial court judge to issuea warrant, for example, or allow
the prosecution to go ahead.
And then if Crown took over theprosecution and stayed it, uh
you could have a judicial reviewof that decision.
And this case, which just cameout, was a circumstance where
this fellow who was uh clearly avery litigious person, he's
(13:29):
been in another context declareda vexatious litigant, like so
uh suing so many people withoutmerit, he has to get approval to
be able to do that.
Uh and he himself had beeninvolved in a criminal case a
number of years ago, and he wastrying to it looks like
relitigate his unsuccessful, hewas convicted, trying to
relitigate some of the issueswhich were decided against him
(13:51):
by trying to charge everyoneinvolved.
And so he had swear swore outthirteen private informations
charging everyone from everycrown council that had anything
to do with anything, the policewho investigated him, David Eby,
uh, you know, uh the currentA.G., everyone involved, right?
So must he was doing somethingwrong.
And the result of that was theCrown Council just took over the
(14:14):
prosecution and regional crownjust directed a state of
proceedings.
That led to the man, being ayou know, litigious fellow and
all, to seek a judicial reviewof that decision.
Trying to say, well, that wasimproper, uh, and wanting it to
proceed.
And indeed there is a processto do that.
Uh, but it's a fairly highstandard.
And the start of it is that youwould need to establish that
(14:38):
the uh decision to stay theproceedings, to discontinue it,
uh amounted to an abusiveprocess.
Okay?
Now, a state of proceedings iscan just be it can be done in
court orally, or it can be donelike in this case by letters,
literally a letter from thecrown saying, hello, I'm Joe
Blog's Crown Counsel.
I hereby direct a state ofproceedings of this matter.
(14:59):
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 somethings which are viewed as sort
of the core and elements of coreprosecutorial discretion, like
the decision about should acharge be approved or not, which
are not reviewable except inthe most extreme circumstances
(15:22):
that would amount to an abusiveprocess, right?
And it's important to remembersome of those decisions are
really at their core political,right?
Like there are you knowpolicies that are put in place
directing crown what's to beprosecuted and when to do things
and what tests to be set outand so on, right?
And indeed, there are evenprovisions like in the Crown
Council Act, they try toinsulate the process to some
(15:45):
extent from politicalinterference that's not uh
clear.
Uh, but you know, under theCrown Council Act, for example,
the Attorney General can justdirect in writing uh whatever
they want in terms of how aprosecution's to occur.
Like the Attorney General canjust put in writing, it's gonna
be published in the Gazette.
Uh they could just uh publish,you know, uh a direction that
(16:06):
you know Adam Sterling should becharged with something, right?
Or the charge against somebodyshould be stayed.
That's totally political,right?
They can do that.
Uh the idea under that act isthat it should be transparent so
we can know that this is just anaked political act to do
something or other, but there itis, that's how that works.
And when you have a decisionwhether it's that kind of thing
(16:26):
directed by the Attorney Generalin writing or just the uh you
know lying crown making somedecision, are we approving the
shoplifting charge or are westaying the shoplifting charge,
right?
If the decision can amount to,if you can show that that
decision amounts to an abusiveprocess, which are things like
flagrant impropriety orundermining the integrity of the
(16:48):
justice system or made for animproper purpose or in bad
faith, like you know, let Idon't know, let's say in some
small town, Crown had a disputewith their neighbor and decided
to charge him with murder to getback at him for something,
right?
Well, hold on.
That's just flagrantlyimproper.
And so you could have ajudicial review of that
decision.
Or, you know, conversely, ifyou had the attorney general
(17:08):
directing stays or proceedingsfor, you know, uh other members
of their political party, uh,you might be that might amount
to flagrant impropriety or animproper motive and could be
judicially reviewed andoverturned.
Um but in this case, uh and inany of those cases, if you're
applying for uh that kind of anapplication saying this is an
(17:30):
abusive process, the persondoing that bears uh an
evidentiary basis.
They have an evidentiary burdento try to show, well, why do
you say this was somehowimproper, right?
How could this be an abusiveprocess?
Um, you know, while you'resaying that Crown did this
because it was a neighbordispute.
Well, what's the basis forthat, right?
And here, not surprisingly, uhthis man had no evidence that,
(17:52):
you know, the attorney generalor the judge involved or every
crown who dealt with a file orsomething uh was engaged in some
kind of criminal conduct.
There was just no evidentiarybasis for it.
And so the judge hearing thisapp this was an application by
the crown to summarily dismissuh that uh application for the
judicial review on the theory ofan abusive process uh was
(18:15):
successful on that uh basis.
It was also successful on thebasis there's another test where
you can have a uh thing likethis struck out if you could
demonstrate that it's manifestlyfrivolous, right?
Yeah.
And that also it got acrossthat bar too.
I I must say, reading thiswhole thing, it it actually
reminded me of a uh uh Victoriacase now a number of years ago
(18:38):
where the Crown Council wasprosecuting a fellow for some
weapons offenses, and it was ajury trial.
Um and one of the offenses Ithink was pointing a firearm,
and it might have been an unsafeuse of a firearm, something
like that.
But there was an offense ofpointing a firearm.
And in the course of the jurytrial, Crown Council picked up
the gun, which was, you know,all wired up and so on, you
(19:00):
could never actually go off, andwas showing it to the jury, I
guess, bringing it over andbringing it to the jury box and
showing it to them, making somesubmission about it.
Yeah.
And on a break in the case, theaccused went down and swore a
private information, chargingthat crown counsel with pointing
a firearm on the basis of howhe was moving it around the
courtroom.
Well, he pointed it at me.
He pointed it at the jury,right?
Adam Stirling (19:20):
Everybody's guilty.
Michael Mulligan (19:21):
Pointed a firearm.
You're you're charged, right?
And process actually got issuedin that case.
Uh, and the crown didn't wantwanted to avoid uh the idea of
uh having just some other personin the same office just stay
the proceedings for fear thatit'd be viewed as, well, hold
on, that's just sort of yourbuddy from the next office.
You can't be staying thoseproceedings, right?
(19:42):
And you know, maybe the concernthere was it wasn't so
obviously manifestly frivolous,like the you know, the attorney
general must have beeninterfering in this guy's breach
trial or something, right?
You know, yeah, in fact, he hada gun, yeah, yeah, it might
have been pointed at somebody.
The issue would be in that casewhether it was without lawful
excuse or whether that's meantby pointing an unloaded firearm.
And so in that case, I guess toavoid some of these questions,
(20:05):
what happened is they appointedad hoc crown uh to review the
thing, so it's not just somebodyfrom the next office making the
decision.
And the ad hoc crown in theVictoria case just decided,
look, this just has no merit uhand stayed the proceedings.
So, anyways, these things docome up from time to time.
It's important we have thisthere in the most extreme cases
(20:26):
where you had politicalinterference or some misconduct
or something.
You know, you you see flavorsof that right now in the U.S.
in the federal context, right?
You see, you know,circumstances where you've got
former political opponents beingcharged with crimes.
Um, and so, you know, it's agood thing we have these uh
possible review for abuse ofprocess here and mechanisms
(20:46):
where somebody could do itprivately, but uh it's a fairly
high bar.
So that's the latest from theBC Supreme Court on when you can
and cannot uh review a decisionby Crown not to continue with a
uh private criminalprosecution.
Adam Stirling (21:00):
Michael Mulligan and Small Good Defense Lawyers,
legally speaking, during thesecond 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 backafter this.
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