The Ontario Superior Court of Justice has overturned nine convictions1 against a man in a domestic violence case and ordered a new trial, finding that the original trial judge’s extensive questioning of the accused created a reasonable apprehension of bias. The appeal decision, released on August 11, 2025, concluded that the trial judge “entered the arena” and aligned herself with the prosecution by repeatedly cross-examining Joshua Hambleton while he was on the witness stand.
Mr. Hambleton was originally tried in the Ontario Court of Justice on a 14-count information involving allegations from his former spouse, which included uttering threats, assault, assault by choking, assault with a weapon, and mischief. At the conclusion of that trial, the Crown invited the court to dismiss three of the counts. The trial judge proceeded to find Mr. Hambleton guilty of nine counts and acquitted him of two others. Represented by a lawyer at his trial, Mr. Hambleton chose to represent himself when he launched an appeal of the nine convictions against him. Among several grounds of appeal, he argued that the conduct of the trial judge created a reasonable apprehension of bias, compromising the fairness of his trial.
In reviewing the case, appeal judge Justice I. Carter initially examined the legal arguments and court documents filed by Mr. Hambleton and the Crown. However, it was only after reading the full transcripts of the original trial that a specific concern came into focus: the nature and extent of the trial judge’s questioning of Mr. Hambleton during the Crown’s cross-examination. Although the issue of bias was raised by Mr. Hambleton, this particular aspect had not been the primary focus of his arguments. Recognizing its significance, Justice Carter requested that both Mr. Hambleton and the Crown provide additional written submissions specifically addressing the judge’s interventions. After a thorough review of these submissions and the trial record, Justice Carter determined that the interventions were improper and warranted a new trial.
In his reasons for the decision, Justice Carter laid out the fundamental legal principles that govern the role of a judge during a trial. Citing recent case law from the Ontario Court of Appeal, he emphasized that a judge has a duty to exercise restraint and remain neutral to ensure not only the reality but also the appearance of fairness. The examination and cross-examination of witnesses are the responsibility of the lawyers, not the judge. A judge must not become an investigator or give a reasonable person the impression that the court’s authority has been placed on the side of the prosecution. When a judge does find it necessary to ask questions, it must be done with care to avoid creating an impression that they have already formed an opinion on the facts or a witness’s credibility. Critically, Justice Carter noted, this need for judicial restraint is even greater when the witness being questioned is the person accused of the crime.
While the law does permit a judge to ask questions in limited circumstances, such as to clarify ambiguous testimony or to explore a vague matter, the interventions in Mr. Hambleton’s trial went far beyond these justifications. The Crown argued on appeal that the trial judge’s questions fell within these acceptable categories. The prosecutor submitted that some questions were merely to ensure answers were heard correctly, while others were aimed at clearing up confusing evidence or bringing out relevant details that counsel may have missed. Justice Carter accepted that in some minor instances, this might have been the case. However, he found that many other interventions were improper and gave the impression the judge had pre-judged Mr. Hambleton’s credibility.
The appeal ruling highlighted several exchanges from the trial transcript that demonstrated a “tone of incredulity” in the judge’s questioning. In one instance, while Mr. Hambleton was testifying about his belief that his former spouse had fabricated the allegations to gain an advantage in a custody dispute, the judge interjected. The transcript records the judge asking, “And that’s what you believe now, sir?” followed by, “That she set you up?” and again, “She intentionally set all this up?” Justice Carter found that the tenor of these questions suggested disbelief in Mr. Hambleton’s version of events rather than a genuine attempt to seek clarification. In another exchange, the questioning went “well beyond clearing up ambiguities” and took on the character of a cross-examination. The judge challenged Mr. Hambleton’s explanation for repeating himself on a recording, asking sarcastically, “You never have to repeat yourself in any conversation with anyone?”
Perhaps the most significant finding was that the trial judge appeared to be actively questioning Mr. Hambleton to test his credibility, a role that properly belongs to the Crown prosecutor. Justice Carter pointed out that the trial judge could not have known what questions the Crown prosecutor intended to ask, as she repeatedly interjected during the cross-examination rather than waiting for it to conclude. The appeal decision noted that the trial judge intervened during the cross-examination of Mr. Hambleton on 20 separate occasions, asking approximately 70 questions. This pattern culminated in the trial judge explicitly using her own line of questioning in her final verdict to conclude that Mr. Hambleton was not a believable witness. She had accused him of changing his story and attempting to change the topic when her questioning became difficult, a conclusion based on an exchange she initiated herself. Justice Carter stated that using judicial questioning to make findings on credibility does not assist the Crown’s position on appeal, because it is not the trial judge’s role to build that part of the case.
In concluding his analysis, Justice Carter wrote that the trial judge had, “in effect, entered the arena and cross-examined the Appellant along with Crown counsel. To an objective observer, the appearance is that the trial judge aligned herself with the case for the Crown.” He relied on a landmark Supreme Court of Canada decision which establishes that when a judge steps down from the bench and assumes the role of a prosecutor to the detriment of the accused, a new trial must be ordered. This is true even if the evidence seems to support a guilty verdict and the judge made no other errors in law. Consequently, while finding no other fault in the trial judge’s review and analysis of the evidence, Justice Carter ruled that the convictions could not stand. The nine convictions against Joshua Hambleton were set aside, and a new trial was ordered.
