Judge's sarcasm from the bench forces costly retrial


February 25, 2009


A 69-day criminal trial costing hundreds of thousands of dollars must be replayed because sarcastic interventions by Mr. Justice Arthur Gans of the Ontario Superior Court suggested that he had prejudged the case.

In a ruling yesterday, the Ontario Court of Appeal scolded Judge Gans for improperly questioning witnesses, cutting them off and employing heavy-handed sarcasm to suggest that he found testimony from the defendant - David Stucky - to be "preposterous."

Mr. Stucky faced several charges of making false or misleading representations in direct-mail promotions.

Coming at a time when renegade defence counsel have been harshly criticized for dragging out trials and wasting public money, the ruling highlighted the fact that judges, too, can be at fault.

"A reasonable observer present throughout the trial would conclude that the appearance of fairness of the trial was compromised by the trial judge's repeated interventions during the testimony of Mr. Stucky and key defence witnesses," said Madam Justice Karen Weiler, writing on behalf of Madam Justice Eileen Gillese and Mr. Justice Robert Armstrong.

She said that Judge Gans conducted vigorous unwarranted cross-examinations and "made sarcastic comments, some of which suggested that he had prematurely judged the witnesses' credibility."

Mr. Stucky - whose business involved selling foreign consumers an opportunity to participate in syndicates that purchased lottery tickets as a group - was ultimately acquitted. Judge Gans ruled that the false-representation law applies only to members of the Canadian public who are misled - not consumers abroad.

In one instance, Judge Gans dismissed a statement by Mr. Stucky as "malarky." In another exchange, with a witness from the United States, Judge Gans said: "So you buy your fireworks and your AK-47s at the same store?"

"I hope not," the witness replied.

"That's the American way, isn't it?" said Judge Gans.

The appeal judges concluded that Judge Gans's interjections "were part of an overall pattern of conduct that indicated that the trial judge, in effect, stepped down from the bench and improperly placed his authority on the side of the Crown."

The fact that he made occasional acerbic comments about the prosecution did nothing to level the playing field, Judge Weiler said. "It is the accused who is in danger of losing his liberty or being sanctioned if found guilty at trial," she wrote. "As we have already emphasized, prudence and judicial restraint must be greater where the accused takes the stand."