A conviction for sexual assault was overturned by the Alberta Court of Appeal after a judge "went into the fray" and acted as an advocate for the victim, interrupting and diverting questions to the female complainant to the point that she created an unfair trial.
A 2017 test at Fort McMurray heard evidence from a woman who went out drinking with a friend and her friend in a bar. The three then went to the home of one of the men, where she became ill and fell. She testified that the next thing she remembers is being naked on a bed in a dark room with two men. One was raping her, the other holding her arms, she said.
She fled into the cold night without her shoes, purse or jacket. Soon after, she was caught by the two men who came to find her in a car, where she secretly recorded them talking before the car was stopped by the police and she left with the police.
The two men were arrested and charged. The accused in this appeal testified in his trial, saying that he went to sleep in another bed that night and woke up to find her arguing with her friend. He denied attacking her.
After presenting his evidence in court, answering questions from the Crown Prosecutor, the woman was questioned by the defendant's lawyer, a process called cross-examination, which is part of the court's rules designed to allow a defendant to respond fully. and defense of charges.
During the interrogation, the lower court judge, Stephanie Cleary, intervened almost 50 times, despite the issues that cover only 30 pages in a 325-page transcript, the appeals court said.
"The judge has entered the fray and, unfortunately and undoubtedly, seems to be unwittingly acting to undermine the defense, with the consequent appearance of an unfair trial," said the decision of the appeals court released on January 18.
The net impact "made it impossible for the defense to test the complainant's evidence."
Cleary made interjections at other times during the trial, including during the woman's testimony to the prosecution, but the appeals court found that these interruptions were of a different content.
"The subject of these earlier interjections seems to be generally intended to make the complainant as comfortable as possible, or to ensure that the (Spanish) translation is as accurate as possible," the appeals court said.
"A review of the transcript … reveals a significant number of situations where the trial court prevented the defense attorney from asking certain questions without first receiving an objection from the Crown attorney, or reformulating them to have their version of the question answered , not defense.
"Many of these situations alone would not be sufficient to establish that the trial was unfair or that the lawyer had failed to advance in defense. However, taken cumulatively and in the context of the many additional interjections made by the court of first instance limiting the complainant's questioning, we conclude that the defense was compromised. "
The cumulative impact of Cleary's interjections "created an impression of hostility toward the defense that contributed to the overall impartiality of the trial. These went well beyond the "interjections" needed for a test that works well.
Many of these situations alone would not be enough to establish that the trial was unfair.
The appeals court said cross-examination questions were not unfit to downgrade the woman, as has been a concern in some rape trials, but often were "typical questions asked of any claimant in cross-examination."
The appeals court has said there are times when it is necessary for a judge to intervene in a sexual assault trial, such as when the defense makes "random shots at the claimant's reputation or unfounded questions directed at discredited" rape myths & # 39; ; in the sense that the complainant is indecent or excited state made it more likely that she would consent to the sexual activity in question. "
These were not in agreement with this, said the court of appeal.
A new trial with a different judge was ordered for the defendant, Yeider Quintero-Gelvez. The claimant's name remains under a publication ban.
The case is another example of the difficulties that can arise in sexual assault trials, where court rules may appear to be against social inclinations.
In 2017, the Ontario Court of Appeal overturned a conviction for sexual assault because a judge used "untimely and insulting language" toward the accused and "left his personal feelings … overtaken his objectivity."
That same year, the Ontario court also overturned the conviction for sexual assault on Mustafa Ururyar in a much publicized case. The judge issued a bizarre, 179-page ruling, citing academic studies and literature on sexual assault, including three pages of Maya Angelou, I know why the caged bird sings.
A new trial was ordered, but it was not carried out and a peace bond settled the charge.
Cleary was appointed Judge to the Alberta Provincial Court in 2008. Her appointment came after two years as Acting Chief Prosecutor for Medicine Hat, several years as a Nova Scotia prosecutor and two years as a private practice defense attorney.
When appointed to the post by Alison Redford, then Minister of Justice and future Conservative Prime Minister, she was praised for her work in setting up a Specialized Court on Domestic Violence in Medicine Hat.