Nova Scotia's top court has delivered a strongly worded rebuke to a provincial court judge who tried to withdraw remarks he made in open court.
The case involves a man, identified in court records by the initials K.J.M.J., who was convicted by provincial court Judge Alain Begin of sexual assault, invitation to sexual touching and sexual touching. The charges involve the man's stepdaughter.
"The astonishing behaviour of the trial judge in this case requires a salutary reminder of the duty of all judges privileged to hear and decide cases in court," Justice Peter Bryson wrote on behalf of a three-member panel of the Court of Appeal.
"It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done," he added
In his appeal of his convictions, K.J.M.J. cited comments Begin made during the trial, including the following:
"Is he swimming at angels and totally innocent? Absolutely not. Does he have issues and invited some young child to do stuff to him? Absolutely. Zero doubt in my mind. He's got issues. Yeah, I'm looking at you. You've got issues, sir," the court transcript quotes Begin as saying.
Not 'off the record,' court rules
He later characterized his comments as "initial impressions" and "off the record." He ordered that they not form part of the official trial transcript.
But that isn't what happened. According to the Court of Appeal decision, the transcriptionist asked the Crown whether Begin's comments should be included in the official record and was instructed to do so.
After all the evidence had been presented in the trial, Crown counsel asked Begin whether there was anything the lawyers should focus on in their arguments. At that point, Begin described K.J.M.J as a "sexual deviant" and said he had "no doubt" that the man was guilty of the sexual touching charge.
When the Court of Appeal tried to listen to the audio recording of the trial, they couldn't because access had been restricted. When they questioned why, Begin, in an email, asserted again that the comments he made during the trial had been off the record.
Comments made in open court
The Court of Appeal disagreed.
"The judge's attempt to impose confidentiality on his remarks followed rather than preceded his indiscretions," Bryson wrote in the decision.
"Regardless, it is improper for the judge to suggest he can insulate himself from appellate scrutiny by pausing the trial as he seems to suppose."
New trial ordered on sex assault charges
The appeal court went on to note: "It is immediately obvious that the claimed 'privilege' in this case does not exist. The exchange occurred in open court with counsel and parties present. Other than exceptions that have no application here, there is no privilege over conversations with the judge during trial."
In the end, the Court of Appeal quashed K.J.M.J's convictions and ordered a new trial.
"The judge's premature conclusions and intemperate conduct denied K.J.M.J. the presumption of innocence, the right to make full answer and defence, and could have impaired the open court principle and appellate review."
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