On August 3 the Court of Appeal rendered judgment in the murder case of R. v. Ertmoed. The facts are familiar to many because of the extensive media attention devoted to the disappearance of the victim, 10-year old Heather Thomas, and the subsequent arrest of Mr. Ertmoed. The two grounds of appeal were related. The first was that defence counsel was incompetent. The second was that frequent interventions by the trial judge "to criticize, rebuke or admonish defence counsel" compromised the credibility of the defence in the eyes of the jury.

Both grounds were dismissed by the Court of Appeal. First, the Court held that the alleged incompetence, which consisted of questions in cross-examination "that bore no apparent relevance to any material issue at trial, [and] that were repetitious and unnecessarily time-consuming", as well as some dubious tactical decisions, had not prejudiced Mr. Ertmoed's defence. Second, the Court ruled that the judge's many interventions, described as "pointed, sharply critical, and occasionally sarcastic", were not surprising given "the prolix, time-consuming and often unproductive nature of defence counsel's cross-examinations". The judge had a duty to control the trial process and to protect witnesses from repetitious and irrelevant questioning, said the Court. Moreover, the interventions did not impair the ability to make full answer and defence and did not impugn counsel's honesty or integrity. Finally, the judge's charge cautioned the jury (who during the trial had sent the judge a note complaining about the "mind-numbing" cross-examination) against drawing any adverse inference from counsel's conduct.

The Ertmoed case demonstrates once again that allegations of incompetence of counsel and improper interventions by the trial judge only rarely result in success on appeal. The appellant must show not only that defence counsel or the judge, as the case may be, acted improperly, but also that the impropriety resulted in prejudice to the defence. Appeal courts are clearly reluctant to second-guess either defence counsel or trial judges, and even where prepared to do so must be convinced that trial fairness was undermined.

To read the Ertmoed decision, click here