Not On Record | EP#227 | Judge Cross-Examines Accused, Conviction Overturned

EP#227 | Judge Cross-Examines Accused, Conviction Overturned

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Can a trial judge cross-examine an accused? A recent Ontario Court of Appeal decision raises that question in dramatic fashion.

In Episode 227 of Not On Record, Joseph Neuberger, Michael Bury and Noriana discuss a 2026 Ontario Court of Appeal decision in which a sexual assault conviction was overturned because the trial judge’s conduct created a reasonable apprehension of bias.

The judge questioned the accused extensively after the Crown had already completed its cross-examination, with seven pages of transcript devoted to the judge’s questioning. The Court of Appeal found that the questions went far beyond simple clarification and amounted to cross-examination. Even more significantly, the trial judge relied on evidence that emerged from her own questioning when assessing the accused’s credibility and reliability.

The episode examines the limits of judicial intervention, reasonable apprehension of bias, the importance of an impartial trial, delayed allegations, credibility assessments, memory, and what defence counsel can do when they believe a judge has crossed the line.

The case is a fascinating reminder that justice must not only be done, but must also appear to be done.