Brouillard Also Known As Chatel v. The Queen

Lamer J.‑‑Appellant was charged with extortion and convicted by a judge of the Court of Sessions of the Peace. His appeal to the Quebec Court of Appeal was dismissed. He appealed to this Court with its leave. In my view, his appeal should be allowed and a new trial ordered.

Facts

Appellant and the complainant, Mrs. Madeleine Lebel, have known each other since May 1977. They did business together and were partners in two companies. On July 3, 1979, appellant visited the complainant at her home and demanded the sum of $6,000 from her. According to the complainant and one of her daughters, he threatened her. This led to a charge of extortion, worded as follows:

[TRANSLATION] At Montréal, district of Montréal, on or about July 3, 1979, Jean Pierre Brouillard, without reasonable justification or excuse, with intent to extort, attempted to induce Madeleine Lebel by threats, accusations, or violence to do something, to wit: to give him the sum of $6,000, thereby committing an indictable offence under section 305(1) of the Criminal Code .

Judgments

At Trial

In an oral judgment the Sessions judge, expressing certain reservations concerning the credibility of the accused and of another defence witness, the complainant's other daughter, said that he believed the complainant and her witnesses and was convinced beyond a reasonable doubt of the accused's guilt.

The relevant passages of his judgment read as follows:

[TRANSLATION] So there was not only the mother who said she was threatened, there was another witness, the girl, and I cannot doubt the girl's testimony, because she testified honestly that she did not wish to get involved in these matters . . .

...

The mother, her testimony . . . was corroborated by the testimony of the girl Michèle . . .

As for the other girl, there were contradictions in the answers she gave the Court . . .

...

The testimony of Mr. Chatel, well, I'll tell you sincerely, it was evasive. He was asked direct questions, and replied with a series of answers that had no bearing on the questions he was asked. He tried to fabricate, that's the word, fabricate, in any case, he tried to tell us all sorts of stories which, in my opinion, don't stand up.

The judge's decision is thus clearly based on the credibility he gave the witnesses.

On Appeal

In the Court of Appeal the accused Brouillard complained of errors of law and of fact on the part of the trial judge and maintained that he should have been acquitted. He also complained of the judge's conduct, saying that he had been biased, and argued that he had not been able to make full answer and defence.

The Court of Appeal's decision is succinct:

[TRANSLATION] THE COURT, ruling on appellant's appeal from a judgment rendered by a judge of the Court of Sessions of the Peace, district of Montréal, on January 29, 1981, convicting him of attempted extortion;

After reviewing the record, hearing argument and deliberating;

WHEREAS even though this Court cannot sanction all the said judge's interventions during the trial, it was not established before us that either through these interventions or otherwise, appellant was deprived of his right to make full answer and defence;

WHEREAS it was not established either that the said judge erred in law or incorrectly assessed the evidence;

WHEREAS this Court should therefore not intervene in the said judgment;

DISMISSES the appeal.

Appellant relied on essentially the same grounds of appeal in this Court. He also requested leave to present additional evidence. We shall dispose of this request first.

I have read the material submitted by appellant and I am of the view that this evidence, which he sought to present at trial as well, is not relevant to the case; consequently I would deny this request.

With regard to his allegations of errors of law and of fact, I share the Court of Appeal's opinion and am of the view that they are unfounded. The judge's conclusion is not unreasonable having regard to all the evidence and is not based on an error of law in interpreting the provision under which the accused was charged or an error respecting the law of evidence or procedure. The issue was one of credibility and the judge chose to believe the complainant. Had he entertained a reasonable doubt in favour of the accused, a verdict of acquittal would not have been at all unreasonable either.

There remains the question of the judge's conduct and alleged bias.

The role of a trial judge is sometimes very demanding, owing to the nature of the case and the conduct of the litigants (parties). Like anyone, a judge may occasionally lose patience. He may then step down from his judge's bench and assume the role of counsel. When this happens, and, a fortiori, when this happens to the detriment of an accused, it is important that a new trial be ordered, even when the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not incorrectly assessed the facts.

The reason for this is well‑known. It is one of the most fundamental principles of our case law, the best known formulation of which is to be found in Lord Hewart's judgment in R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259:

...[it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

In the case at bar I am certainly not convinced that the judge was biased. On the contrary, I am inclined to believe that he meant to be impartial. I am thus of the view that the accused was not prevented from presenting his defence, calling all relevant witnesses and adducing all relevant evidence, although not without difficulty. However, I am obliged to conclude that, by his conduct, the trial judge allowed there to be some doubt on this subject, which only a new trial can erase. In this regard I am, with respect, in complete disagreement with the Court of Appeal in that I am not of the view that it is sufficient for justice to have been done to dispose of this appeal.

Before discussing the judge's conduct, we should mention certain rules arising out of the principle put forward by Lord Hewart, as well as their limits. This is not intended to be exhaustive. There are numerous decisions and substantial legal opinion on the subject. It would perhaps be sufficient to refer to the remarks of the late Chief Justice Fauteux in Le livre du magistrat* (1980), which sets out the precepts that should govern a judge's conduct.

*A separate English version, A Book for Judges (1980), was written by the Hon. J. O. Wilson.

We shall mention here his remarks that are relevant to the case at bar.

First of all, it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order.

One of the decisions most often cited in support of this rule is Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.) Lord Denning stated the following, at pp. 158‑59:

No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross‑examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases and have done for centuries.

Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question "How's that?" His object above all is to find out the truth, and to do justice according to the law; . . .

More recently, in Canada, in R. v. Torbiak and Campbell (1974), 26 C.R.N.S. 108, which involved a problem similar to the one in the case at bar, the Ontario Court of Appeal stated the following, at pp. 109‑10:

The proper conduct of a trial judge is circumscribed by two considerations. On the one hand his position is one of great power and prestige which gives his every word an especial significance. The position of established neutrality requires that the trial judge should confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions. On the other hand his responsibility for the conduct of the trial may well require him to ask questions which ought to be asked and have not been asked on account of the failure of counsel, and so compel him to interject himself into the examination of witnesses to a degree which he might not otherwise choose.

Since the limits of the allowable conduct are not absolute, but relative to the facts and circumstances of the particular trial within which they are to be observed, every alleged departure during a trial from the accepted standards of judicial conduct must be examined with respect to its effect on the fairness of the trial.

Another illustration of the precept is to be found in the remarks of Lord Greene, M.R., in Yuill v. Yuill, [1945] 1 All E.R. 183 (C.A.), at p. 185:

It is, of course, always proper for a judge‑‑and it is his duty‑‑to put questions with a view to elucidating an obscure answer or when he thinks that the witness has misunderstood a question put to him by counsel. If there are matters which the judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course, take steps to see that the deficiency is made good. It is, I think, generally more convenient to do this when counsel has finished his questions or is passing to a new subject. It must always be borne in mind that the judge does not know what is in counsel's brief and has not the same facilities as counsel for an effective examination‑in‑chief or cross‑examination. In cross‑examination, for instance, experienced counsel will see just as clearly as the judge that, for example, a particular question will be a crucial one. But it is for counsel to decide at what stage he will put the question, and the whole strength of the cross‑examination may be destroyed if the judge, in his desire to get to what seems to him to be the crucial point, himself intervenes and prematurely puts the question himself.

Finally, I cite with approval the judgment to which the respondent Crown referred us in R. v. Darlyn (1946), 88 C.C.C. 269, where Bird J.A. wrote the following on behalf of the British Columbia Court of Appeal (at p. 277):

The nature and extent of a Judge's participation in the examination of a witness is no doubt a matter within his discretion, a discretion which must be exercised judicially. I conceive it to be the function of the Judge to keep the scales of justice in even balance between the Crown and the accused. There can be no doubt in my opinion that a Judge has not only the right, but also the duty to put questions to a witness in order to clarify an obscure answer or to resolve possible misunderstanding of any question by a witness, even to remedy an omission of counsel, by putting questions which the Judge thinks ought to have been asked in order to bring out or explain relevant matters.

In short, everyone agrees that a judge has a right and, where necessary, a duty to ask questions, but also that there are certain definite limits on this right. On this point respondent cited the remarks of Humphreys J. in R. v. Bateman (1946), 31 Cr. App. R. 106, where he stated:

Judges are entitled, if they form the opinion that a witness is not trying to help the Court, to do what counsel cannot do, and say: "You behave yourself and tell me the truth". It is sometimes very useful to be able to say that. Sometimes it pulls a witness together and makes him say what is the truth, but, of course, it must not be done until the witness has given some indication that he or she is not trying to tell the truth.

(Emphasis added.)

The judge may on occasion call to order a witness who is obviously trying to avoid testifying, who "is not trying to help the Court". In Bateman a witness said she was not able to recall dates or times accurately. The appellate judges, at pp. 110‑11, disapproved in the following terms, of the reprimand the Commissioner presiding at the trial had given her:

For some reason the Commissioner, who was presiding at the trial, formed the opinion that the witness could give much more satisfactory evidence if she liked, and he cross‑examined her and treated her as if she were a thoroughly disreputable liar. It must not be forgotten by those who preside at criminal trials that witnesses, whether called for the prosecution or the defence, are entitled to be treated with courtesy and politeness unless and until they show some symptom of refusing to assist the Court by giving evidence promptly and properly. With all due respect to the Commissioner, it is not the duty of any presiding Judge, as soon as a witness says: "I cannot tell you with accuracy what time something happened", to say: "Oh, yes, you can. You be careful", or anything designed to force the witness to say something which she really cannot say. The result was that when that cross‑examination was taken up to some extent by counsel for the prosecution, this unfortunate woman was induced to give about seven or eight different times as being very probably the times when the appellant went there. Mr. Gordon, who appeared for the appellant, has told us that in the result‑‑and this agrees with our own reading of the transcript‑‑the witness showed herself to be the sort of women who, if sufficiently badgered, would say anything. It means, not that the woman was not trying to tell the truth, but that she was a person who could not fix times and whose evidence was valueless.

It was only further on that they added the remarks cited by the Crown, and then, by way of clarification, at pp. 111‑12:

The mere fact that a witness cannot fix a time is no reason for treating her in that way, and why it was thought necessary so to treat the witnesses in this case is a little difficult to understand.

The observations which were made in Gilson and Cohen (1944), 29 Cr. App. R. 174, at p. 181, in which the Court adopted the language of a previous decision, Cain (1936), 25 Cr. App. R. 204, at p. 205, are apposite in this case. The observations were to this effect: "There is no question why the Judge should not from time to time interpose such questions as seem to him fair and proper. It was, however, undesirable that . . . the Judge should proceed, without giving much opportunity to counsel for the defence to interpose, and long before the time had arrived for cross‑examination, to cross‑examine (the witness) with some severity. The Court agrees with the contention that that was an unfortunate method of conducting the case. It is undesirable that during an examination‑in‑chief the Judge should appear to be not so much assisting the defence as throwing his weight on the side of the prosecution by cross‑examining a prisoner." We would adopt those observations and apply them to any witness, whether called by the prosecution or the defence.

The remarks of Humphreys J. were cited out of context, and the Bateman decision as a whole seems somewhat contrary and even fatal to the Crown's position.

Finally, prudence and the resulting judicial restraint must be all the greater where the accused is a witness. He must be allowed to proceed, within limits, of course, but always bearing in mind that at the end of the day he is the only one who may be leaving the court in handcuffs.

In conclusion, although the judge may and must intervene for justice to be done, he must nonetheless do so in such a way that justice is seen to be done. It is all a question of manner.

In the case at bar, the least that can be said is that the judge was aware of his right to intervene. He asked the witness Dominique Gauthier, the complainant's daughter and the accused's girlfriend and witness, some sixty questions, almost as many as the Crown, and interrupted her more than ten times during her testimony.

During the accused's testimony the judge asked many more questions than the two counsel. In fact during the examination‑in‑chief he interrupted the examination being conducted by counsel for the defence almost twenty times, and cross‑examined the accused. As a result he asked the accused, still during the examination‑in‑chief, twice as many questions as his own lawyer asked. Since his questions were more in the nature of a cross‑examination, he thus clearly gave the impression of assisting the Crown by doing precisely what he would have had to prevent the Crown from doing if necessary. The accused was interrupted by the judge a total of over sixty times in his answers in chief and in cross‑examination. Both the accused and the witness Gauthier were the object of sarcastic remarks.

By way of illustrating the general situation, I quote:

[TRANSLATION] The Court:

Q. Tell the truth Miss, tell what happened in this case, that document, what was it for, tell me the truth?

A. Well I've been telling the truth.

Q. Stop beating around the bush.

...

The witness:

No, no, no but can I explain myself?

The Court:

Ah! explain yourself. You better have, I better have very good explanations.

...

The Court:

Explain that to me. You know, I understand, I'm not intelligent, I've never studied law, I've never done any civil or whatever but in any case.

The witness:

If I told you that on the first of August '79 . . .

The Court:

Ah! tell me what you like but you need . . .

The witness:

But you are asking me questions.

The Court:

. . . you need to have an explanation, and a good one this time.

The witness:

If I told you that on the first of August '79, I didn't owe the company that sum of money.

The Court:

Ah! why didn't you tell the company to go to hell?

The Crown:

Q. What did you owe the company?

A. Well at that . . .

The Court:

When I don't owe anything, and a guy is trying to collect from me, do you know what I do? I tell the guy: get three lawyers, ten lawyers, do what you like, but come and collect from me if you can.

The witness:

That's right.

The Court:

Eh. You you're a president . . .

The witness:

That's right.

The Court:

. . . of marketing, you're a specialist in marketing and you write a letter to an individual saying he's going to be arrested and then after that he'll pay. Come on. Do you take me for an idiot? I'm not Mrs. Lebel. Just a minute. Do you take me for an imbecile?

The witness:

Not at all.

The Court:

No. And I'll tell you something. You'll be making a mistake if you take me for an imbecile.

The witness:

Not at all.

The Court:

Then continue with your evidence, and you're under oath.

The witness:

Yes, yes. I know.

The Court:

And I'm warning you, you're under oath.

The witness:

Eh! . . .

The Court:

You're going to speak properly.

The witness:

I shall file a document shortly.

The Court:

You can file all the documents you like, but when you're asked questions, you'll answer the questions. But don't take me for an idiot. That's not true. Because we're more or less the same age, I've lived as long as you. But I wasn't a president of marketing. I don't know for what company. In fact, at that time, I don't know what company you were with, you're working for your brother.

The witness:

I said . . .

The Court:

You'll tell the truth.

The witness:

I said I was a marketing consultant.

The Court:

What I want to know is the truth. I'll tell you something. Tell me the truth.

The Crown:

It would be much simpler for everyone.

The Court:

It's simple, the truth.

The witness:

I'm telling the truth.

The Court:

Yes.

The Crown:

Okay. We'll continue.

The Court:

But I don't believe you. So far. Change stories.

...

The Court:

One thing's certain, if a guy owed me forty thousand bucks ($40,000.00), I wouldn't lend him even six thousand (6,000); I don't know, I don't know.

The witness:

It's based, my Lord, on Mrs. Lebel's instalments and on the conversation I had with her, on July 3rd. I know, I was there.

The Court:

Yes. There were others who were there and they don't say the same thing as you.

The witness:

No, no, the others weren't there at the time . . .

The Court:

There were two others who were there, and they don't say the same thing as you.

...

The Court:

And then when I make out a cheque, or anyone intelligent here, you're more intelligent than us because you're in marketing, you know that, when I make out a personal cheque, I imagine I must know whether I'm the one paying or whether it's someone else. You're being asked a clear and straightforward question. Did you always make your payments to the company, what's it called?

The witness:

Minico.

The Court:

Minico?

The witness:

Perhaps . . .

The Court:

Was it you or was it someone else who made the payments?

The witness:

Well, I'll answer that.

The Court:

That's clear?

The witness:

Well . . .

The Court:

Yes or no?

The witness:

But I can't answer yes or no.

The Court:

No?

The witness:

No, no, but I'll tell you why.

The Crown:

These are words he doesn't know.

The Court:

No.

...

The Court:

Yes or no?

The witness:

Well it was done by both.

The Court:

Maybe yes, maybe no. Yes, well, okay.

...

The Court:

There's something I wonder about.

The witness:

Because I'm the one who had the contract.

The Court:

How is it that you weren't capable of making out a cheque?

In my view it is clearly in the interests of justice that a new trial be held.

In conclusion I would like to reiterate certain remarks I made at the beginning of my reasons. The task of a trial judge is not always an easy one. In trials involving relatives or people who have emotional ties, emotions run high and the judge's intervention is often required more than is usual. The danger the judge then runs, even if he is the best of judges, is that he will lose patience. Hence my sympathy (the undersigned has also been a trial judge in difficult circumstances) for trial judges in general and for the particular judge who presided over the Brouillard trial. However, this in no way relaxes the rule that justice must be seen to have been done.

I would therefore allow the appeal, set aside the judgment of the Court of Appeal and order a new trial.

Appellant is asking us to acquit him. In support of this request he raised at the hearing the fact that he has already served his probationary sentence. This is a factor which the judge presiding at the new trial would surely wish to take into account, should it prove necessary to decide on a sentence. It is also a factor which the Attorney General may take into account in exercising his discretionary powers as a prosecutor. As I have already mentioned, the verdict of guilty is not unreasonable, just as a verdict of acquittal would not have been at all unreasonable. The issue is one of credibility. This Court is intervening in this case only to order a new trial. The new trial judge and the Attorney General are in the final analysis the only ones, although in a different way, capable of taking this aspect of the situation into account.