'Entered the fray:' New sex assault trial ordered due to judge's interjections

EDMONTON - A new trial has been ordered for a man found guilty of sexual assault because the judge repeatedly interjected while the complainant was being cross-examined by the defence.

The Alberta Court of Appeal has ruled that Yeider Quintero-Gelvez is to be tried again before a different judge.

Stephanie Cleary, A provincial court judge in Fort McMurray, Alta., convicted Quintero-Gelvez in 2017.

The Appeal Court justices said in their Jan. 18 decision that Cleary interjected almost 50 times while the defence was cross-examining the complainant.

It noted that the judge's interruptions "may well have undermined (defence counsel's) strategy and made it impossible for the defence to test the complainant's evidence."

"The trial judge entered the fray and, unfortunately and no doubt unintentionally, appeared to be acting to undermine the defence with the resulting appearance of an unfair trial."

The trial heard the woman was drinking with a male friend and one of his friends, Quintero-Gelvez, and that she became ill and fell over at the accused's home. She testified that she next remembered being on her back and naked in the dark while Quintero-Gelvez was raping her and the second man held down her arms.

She said she fled into the cold without her purse, shoes or jacket. The men picked her up in Quintero-Gelvez's car, which was stopped by police.

Quintero-Gelvez denied the assault in his testimony.

The appeal judges said a trial judge can intervene to ensure clarity or to correct inappropriate conduct, such as demeaning remarks toward sexual assault complainants. But the interjections must not make it impossible for the defence to do its job, they wrote.

"A review of the transcript of the cross-examination of the complainant reveals a significant number of situations in which the trial judge prevented defence counsel from asking certain questions without having received an objection to them from Crown counsel, or rephrasing them so that her version of the question is answered, not that of the defence."

The Appeal Court said many of the interruptions did not compromise the defence in and of themselves, but "nonetheless created an impression of hostility toward the defence which contributed to the overall fairness of the trial."

— By Lauren Krugel in Calgary

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