“Where the welfare of children are concerned, a trial judge may intervene as much as is necessary in order to clarify the facts, confirm his or her understanding of expert testimony and generally make sure his appreciation of the evidence is correct. If necessary, he or she may intervene to keep the proceedings moving along efficiently, more necessary in child protection cases where the state with all the resources at its disposal is intervening in a substantial way in the relationship between children and their parents. See New Brunswick Minister of Health and Community Services v. J.G., [1999] 3 S.C.R. 46, 244 N.R. 276, 216 N.B.R. (2d) 25, 552 A.P.R. 25, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203, 1999 CanLII 653 (SCC), 1999 CanLII 653, [1999] S.C.J. No. 47, 1999 CarswellNB 305; Cundy v. Irving (1998), 106 B.C.A.C. 5, 48 B.C.L.R. (3d) 344, 172 W.A.C. 5, 37 R.F.L. (4th) 401, 1998 CanLII 4563 (BC CA), 1998 CanLII 4563, [1998] B.C.J. No. 754, 1998 CarswellBC 718 (B.C.C.A), at paragraph [4]; and, Gordon v. Gordon (1980), 23 R.F.L. (2d) 266, [1980] O.J. No. 1469, 1980 CarswellOnt 341 (Ont. C.A.), where Appeal Justice John W. Morden, referring to the trial judge stated (at page 271 [R.F.L.]):
| Generally, he should do what he reasonably can to see to it that his decision will be based upon the most relevant and helpful information available. | ||
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The trial judge has the right and a duty to intervene, to clarify and to ask questions in order to fully appreciate the evidence. He is to make a decision on the best evidence available. If not satisfied, he has available to him by statute, the right to call his own evidence. |
As held by the Supreme Court of Canada in Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, 267 N.R. 386, 201 Nfld. & P.E.I.R. 1, 605 A.P.R. 1, 1999 CanLII 641 (SCC), 1999 CanLII 641, [2000] S.C.J. No. 1, 1999 CarswellPEI 87 (at paragraph [3]):
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True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind |
And stated by the British Columbia Court of Appeal in Middelkamp v. Fraser Valley Real Estate Board (1993), 83 B.C.L.R. (2d) 257, 20 C.P.C. (3d) 27, 1993 CanLII 2884 (BC CA), 1993 CanLII 2884, [1993] B.C.J. No. 1846, 1993 CarswellBC 249 (B.C.C.A.), at paragraphs [10]-[11]:
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[10] As to the question of bias, Mr. Rankin pointed to in his opening and has reiterated in his reply many remarks which have been made by the learned trial judge over the course of these 60 days which some might think were rather sharper than they ought to have been. That is a matter of perhaps one would say taste. Some judges by nature are silent, some of us talk perhaps more than we should. Whether some one or all of these remarks might better not have been said I do not propose to discuss. Every experienced counsel has from time to time felt herself unfairly treated by receiving a lashing from the sharp edge of the tongue of a judge. I remember the feeling myself. |
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[11] As I believe the Chief Justice of this court has said on more than one occasion, a trial is not a tea party. But bias does not mean that the judge is less than unfailingly polite or less than unfailingly considerate. Bias means a partiality to one side of the cause or the other. It does not mean an opinion as to the case founded on the evidence nor does it mean a partiality or preference or even a displayed special respect for one counsel or another, nor does it mean an obvious lack of respect for another counsel, if that counsel displays in the judge’s mind a lack of professionalism. |
Although a judge must maintain an open mind, this does not mean that he or she cannot express disbelief of evidence being given by a witness or indicate a tentative view of how he or she is inclined to decide an issue in dispute. True impartiality does not require that the judge have no sympathies or opinions. It requires that the judge nevertheless act with an open mind. See Professor Philip Bryden, “Legal Principles Governing the Disqualification of Judges” (2003), 82 Can. Bar Rev. 555 at page 588.”
Catholic Children’s Aid Society of Toronto v. H.(L.D.), 2008 ONCJ 783 (CanLII) at 126-129