We have all heard the colloquial expression 'wakey, wakey', but imagine representing a client who has waited years for his or her case to reach trial, only to find out that the trial judge falls asleep or dozes off from time to time. What obligations, if any, does counsel have to a client when striving to put forward its position at trial when the trier of fact is 'asleep at the wheel'? The Rules of Professional Conduct provide as follows:
"5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect…
5.1-5 A lawyer shall be courteous, civil, and act in good faith and with all persons with whom the lawyer has dealings."
Thankfully, there is clear guidance in the case law; counsel is obliged to raise the issue with the trial judge on a timely basis and cannot adopt a wait-and-see attitude, putting off any objection until the result in the case is known.
In the leading Ontario case on the subject, Leader Media Productions Ltd v Sentinel Hill Alliance Atlantis Equicap Limited Partnership,(1) the Court of Appeal for Ontario discussed the issues and applicable principles in addressing the trial judge's alleged inability to follow the evidence. The issue arose in response to a motion brought by the appellants to introduce fresh evidence at the appeal stage. The court of appeal framed the issue as follows:
"The appellants have moved in this court to admit fresh affidavit evidence showing that the trial judge was unable to follow the evidence because he fell asleep repeatedly during the trial. The fresh evidence consists of five affidavits authored by appellants' trial counsel and others. These affidavits suggest the trial judge fell asleep frequently, but for only very brief periods of time."
The respondent opposed the introduction of the fresh evidence, but the court allowed it, as it was "relevant to the validity of the trial process itself, rather than directed at a finding made at trial". Stated differently, the fresh evidence sought to be admitted on the appeal was not directed at a finding made at trial, but instead challenged the very validity of the trial process.
Nonetheless, the court determined after hearing the appeal that admission of the fresh evidence did not assist the appellants, insofar as they "deliberately did not raise with the trial judge their concern that he might have been sleeping". The appellants made a deliberate tactical decision effectively to "hedge their bets" – as the respondent's counsel put it. Instead of confronting the trial judge, after discussions among the appellants' counsel (including a senior litigator at the firm who remained at the office and was not directly involved in the trial per se), the appellants decided not to raise the issue. As one of the respondent's witnesses had attested in an affidavit, the appellants decided to "wait and see how things played out". Presumably, if the trial ended in their favour, they would do nothing; if not, they would have this additional evidence to use as a basis for appeal, arguing that they were denied the right to a fair trial.
The court noted that even after the reasons for judgment were released by the trial judge, the appellants did not base their motion for a mistrial on the alleged drowsiness of the trial judge; nor did they even raise the issue. The motion for a mistrial was based solely on the fact that the appellants had been denied the opportunity to make oral argument in addition to written argument. It was only at the appeal stage that the issue was raised that the trial judge was inattentive to the evidence.
The court observed that there appeared to be little case law on this point, but was referred to two cases by counsel for the parties.
Stathooles v Mount Isa Mine Limited
In the Queensland Court of Appeal case Stathooles v Mount Isa Mines Limited,(2) it was alleged on appeal that the trial judge had dozed off or slept during part of the evidence. In that case, the court stressed the fact that the alleged drowsiness was not raised with the trial judge at any time during the trial and dismissed the appeal. The court noted:
"A broad discretion does exist for an appellate court to order a new trial in civil cases where a first trial has been unfair...In civil, as in criminal cases, the discretion can be exercised when the first trial has resulted in a miscarriage of justice.
The exercise of the discretion to order a new trial on the basis that a miscarriage of justice has occurred may require a wide view to be taken of the circumstances but it is necessary to remember that our adversarial system requires parties to proceedings to accept responsibility for their own actions deliberately and consciously taken. Decisions taken by parties with a full awareness of relevant matters can strongly influence the way in which the discretion in cases of an alleged miscarriage of justice will be exercised."
The court went on to quote from the High Court of Australia's joint judgment in Vakauta v Kelly:
"[A] party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her."(3)
The Ontario Court of Appeal in Leader Media noted that the appellant in Stathooles had argued that the determination of the case turned on the credibility of witnesses and that the judge had been especially inattentive during the appellant's cross-examination, yet made a finding adverse to him. It was argued that a different conclusion may have been reached had the trial judge not failed in part to observe and listen to that particular witness throughout his testimony. In reaching its conclusion, the Queensland Court of Appeal stated:
"The lack of reaction here by counsel fully aware of the situation is of importance from a different point of view. It cannot be accepted that there is an entitlement to do nothing at the time, hold the point in reserve until the decision is given and then, since it has proved to be adverse to the appellants, seek to set it aside.
In the present case, if what is alleged to have occurred is sufficient to constitute a significant defect in the proceedings, it should have been drawn to the attention of the trial judge at the time it occurred. To experienced counsel there should have been no difficulty other than perhaps some slight embarrassment in being required to draw the judge's attention to the concern that was felt that he may be missing an important feature of the evidence. Experienced professional advocates may be called on to display conduct which will need to be more robust than that in their day to day practice in the courts. There should have been no fear that what needed to be done could not have been handled with the customary courtesy that should, and usually does, prevail between judge and counsel in the hearing of cases."
R v Chan
The second case referred to by the Ontario Court of Appeal was R v Chan.(4) In that case, during the sentencing hearing, court staff noticed that the trial judge appeared to be sleeping during the appellant's testimony. The judge was awakened and adjourned the proceedings. The appellant then applied for a mistrial.
During argument on the mistrial, the trial judge advised that he had fallen asleep because of a medical condition. The appellant then filed an affidavit alleging that the trial judge's posture while sleeping was the same as it had been during critical points of the trial. The trial judge refused to grant a mistrial, stating that lawyers are obliged to raise inattentiveness with the judge when they notice it. He directed another judge to deal with sentencing. The appellant appealed.
Although the court of appeal ultimately allowed the appeal on other grounds, it rejected the appellant's inattentiveness argument for the same reasons discussed above. It stated:
"We conclude that Nicholas has failed to demonstrate that he suffered prejudice at the trial stage of these proceedings. The trial judge fell asleep during the testimony at the sentencing stage of the trial, several months after all evidence relating to Nicholas' guilt had been adduced. An accused person must, at a minimum, show a real danger of prejudice before judicial inattentiveness, that is sleeping, will call for the results of his trial to be set aside. (for authority, see Cesan v. Director of Public Prosecutions (CTH)).(5) In this case, Nicholas' affidavit accomplishes, at most, speculation that the trial judge's similar posture during the trial must mean he was asleep.
Nicholas' affidavit does not identify exactly when he noticed this posture, so it is impossible to determine whether any crucial issues were being dealt with at the time. Moreover, it is incumbent upon counsel to immediately draw a trial judge's inattentiveness to his attention, so as to permit replacement testimony or other corrective procedures during the course of the trial. It is not enough, nor is it appropriate, to note the inattentive episode and then hold it on reserve in the event the result at trial was less than what is hoped for. We do not suggest that is what occurred here, but the effect is the same, whether the withholding of the concern was advertent or inadvertent."
The Ontario Court of Appeal concluded that the same reasoning should be applied in Leader Media. While the appellants' trial counsel was inexperienced (the court noted that it was her first trial), the record disclosed that she had consulted with senior litigation counsel in her firm about the judge's inattention. They had decided to do nothing about it at the time, but to "roll the dice", as the respondent's counsel put it.
The court stated that counsel was obliged to address the trial judge's inattention at the time. Not having done so, and having decided to wait and see what happened, they could not raise that inattention for the first time as a ground of appeal on either a substantive or contextual basis. Consequently, the court dismissed the appeal with costs.
It is somewhat rare for counsel to find themselves facing a sleepy judge. However, if the situation presents itself, the court of appeal in Leader Media has clearly set out the required course of action to take. From a practical point of view, counsel could potentially politely suggest to the judge that he or she take an unscheduled break or rise early for the day in a candid, courteous and professional manner. Counsel should broach the intention of making such a suggestion to all counsel present in the courtroom.
For further information on this topic please contact Norm Emblem, Chelsea Rasmussen or Amer Pasalic at Dentons Canada LLP by telephone (+1 416 863 4511) or email ([email protected], [email protected] or [email protected]). The Dentons website can be accessed at www.dentons.com.
(3) (1989) 167 CLR 568, 9 MVR 193 (HC (Australia)), at p 572 CLR.
(4)  AJ 1522, 2008 ABCA 88 (CanLII).