



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Danial, 2016 ONCA 822

DATE: 20161103

DOCKET: C60720

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Louay Danial

Appellant

Gerald Chan, duty counsel

Scott Latimer, for the respondent

Heard and released orally: October 31, 2016

On appeal from the conviction entered on March 19, 2015
    by Justice A.T. McKay of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of kidnapping and robbery. The only ground
    of appeal pursued before this court was that the trial judges questions to the
    defence witness created an apprehension of bias.

[2]

The appellant and three others picked up the complainant in a car in
    order to question him about his perceived involvement with a young woman named
    Samira. The trial judge concluded that the appellant kidnapped the complainant
    and stole his phone in order to dissuade the complainant from harassing Samira.

[3]

During the testimony of the defence witness, the trial judge perceived a
    lack of clarity as to the conversation that took place between the witness and
    Samira. At the conclusion of the witness testimony, the judge asked a short
    series of questions in an effort to clarify when those discussions took place.
    The appellant submits that these questions raised an apprehension of bias on
    the part of the trial judge.

[4]

We do not accept this submission. There is a presumption of impartiality
    on the part of the trial judge and a high threshold on the part of an appellant
    to rebut it.

[5]

A trial judge is entitled to ask questions for clarification. The trial
    judge here followed the long standing protocol articulated in
R. v. Stuckey
,
    2009 ONCA 151 at para 64. He waited until the conclusion of the witness
    testimony, asked questions for clarification on a narrow issue, and allowed
    further re-examination. That some of the questions towards the end of the
    series of questions may have been leading would not lead a reasonable observer
    being apprised of all the facts to conclude that the trial judge was not
    impartial.

[6]

The appeal is therefore dismissed.

K. Feldman J.A.

E.E. Gillese
    J.A.

M.L. Benotto
    J.A.


