The Court of Appeal for Sexual Abuse reversed the Alberta Court of Appeal after the judge "entered the fray" and acted as an agent of the victim, interrupting and refusing the questions to the female plaintiff to the point that created an unfair trial.
The 2017 trial at Fort McMuray heard evidence from a woman who came out drinking with a male friend and a friend at the bar. The three then went to the home of one of the men, where they got sick and fell. She testified that the next thing she remembers was a naked bed in a dark room with two men. One raped her, while the other held her hands, she said.
She fled on a cold night without her shoes, purse, or jacket. Shortly thereafter, she took the two men who came looking for her in a car, where she secretly recorded the words before being stopped by the police and she left with the police.
Both were arrested and charged. The defendant in this complaint testified at the trial, saying that he slept on another bed that night and woke up to find the argument with his friend. He denied attacking her.
After giving evidence in court by answering questions from the Crown Prosecutor, the woman was followed by the defendant's lawyer, a process called cross-examination, which is part of the court's rules in order to enable the defendant to give a full answer and defend the allegations.
During the cross-examination, the trial judge, Stephanie Cleary, inserted nearly 50 times, despite questions involving only 30 pages in a 325-page trial, the appeals court said.
"The trial judge entered into the quarrel and, unfortunately, undoubtedly inadvertently seemed to act to undermine the defense with the appearance of an unfair trial," the ruling appeals court said on January 18.
Net Impact "made it impossible for the defense to test the applicant's evidence".
Cleary made interventions at other times during the trial, including during the testimony of the woman about the prosecution, but the appellate court found that those interruptions were with a different tenor.
"The theme of these previous interventions appears to be generally aimed at making the applicant as comfortable as possible, or to ensuring that the (Spanish) translation is as accurate as possible," the appellate court said.
"The overview of the transcript … reveals a significant number of situations in which the trial judge prevented the defenders from asking certain questions without first accepting an objection from the Crown Defender or reformulating them to answer her version of the question rather than the defense.
"Many of these situations alone would not have been sufficient to establish that the trial was unjust or that the counsel was unable to advance the defense. However, it was taken cumulatively and in the context of the many additional intimidations made by the trial judge, cross-examination of the petitioner, we conclude that the defense was compromised. "
The cumulative influence of Cliri's involvement "created an impression of enmity toward the defense that contributed to the overall fairness of the trial. These went a lot above and beyond the mutual" necessary for a well-functioning trial.
Many of these situations would not be enough to justify that the trial was unfair
The Court of Appeal said cross-examination questions were not inadequate to appease a woman, as was concern for some rape cases, but were often "typical questions posed by each applicant in cross-examination".
The Court of Appeal stated that there are times when it is necessary to ban interviews by a judge in a sexual assault trial, such as when the defense makes "random recordings of the applicant's reputation or unfounded issues aimed at discredited myths of rape by the impure complainant or excited state increases the likelihood that you will agree with the sexual activity in question. "
They were not in line with that, the Court of Appeal said.
A new trial with another judge was imposed on the defendant, Eider Quintero -Gelvez. The name of the applicant remains prohibited for publication.
The case is another example of the difficulties that can arise in the trials of sexual violence, where the rules of the court may conflict with social inclinations.
In 2017, the Ontario Court of Appeal overturned a sexual assault ruling because the judge used "indecent and abusive language" to the defendant and "deprive his personal feelings … to overstep his objectivity".
The same year, the Ontario Court also reversed a sexual assault verdict against Mustafa Urewjahr in a very publicly announced case. The judge issued a bizarre, 179-page decision citing academic studies and sexual assault literature, including three pages of Mother Angelow. I know why the bird sings.
A new trial was ordered, but it was not held and a peace bailout solved the charge.
Cliri was named a judge at the Alberta Provincial Court in 2008. Her appointment came after two years as Acting. Chief Coronal Prosecutor in Medicine Hat, several years as a prosecutor in Nova Scotia and two years as a lawyer for defense in private practice.
When she was named on Alison Redford's bench, the then Justice Minister and the next conservative prime minister, she was praised for her work to form a specialized domestic court of violence in medicine.
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