Is The Trial Judge Permitted to Intervene and Question Witnesses Like a Lawyer?

PUBLISHED ON June 15, 2025

What is written below provides a brief and general explanation about the law surrounding how far a trial judge presiding over a criminal jury trial can go in participating in the questioning of a witness. This is not legal advice and is not intended to be so. Should you require legal advice about your case, you should consult with an experienced criminal defence lawyer.

Can a trial judge assume the role of counsel in the questioning of a witness?

The Ontario Court of Appeal recently addressed this issue in the case of R. v. Walton (2025 ONCA 368). In Canada, the adversarial system provides that there are different roles for each of the participants in a criminal trial: the prosecutor, the defence counsel, the judge, and the jury. While a trial judge can participate in the questioning of a witness, they are governed by the principle of “cautious restraint”. The Court noted the case of R. v. Torbiak and Campbell, where Justice Kelly stated: “The position of established neutrality requires that the trial judge should confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions. On the other hand, his responsibility for the conduct of the trial may well require him to ask questions which ought to be asked and have not been asked on account of the failure of counsel…” Essentially, a trial judge is permitted to question witnesses, but is not allowed to assume the role of trial counsel, similar to how criminal trial preparation by your lawyer remains crucial for ensuring your rights are protected.

Permissible and impermissible intervention

In R. v. Walton, the Court of Appeal reiterated the following principles:

• A trial judge must exercise restraint and remain neutral to promote fairness
• A trial judge can intervene when it is essential to ensure justice is done
• A trial judge must manage the trial and control the procedure to ensure that the trial is effective, efficient, and fair to all parties involved
• A trial judge should, however, confine themselves to their own responsibilities

Thus, the Court stated, “In this light, I point out that examination-in-chief and cross-examination are and must remain the responsibility of counsel; a trial judge should not become an investigator. A trial judge must not cause a reasonable person to believe that he has “placed the authority of his office” on either side, particularly that of the prosecution, and must also be careful not to usurp the role of counsel because the overall impression may be fatal to the appearance of trial fairness.” Further, the Court held that a trial judge “should try to avoid interfering with the organization and flow of the evidence, because judicial intervention might impede counsel in following an organized line of inquiry.”

Understanding these boundaries is important when facing serious charges such as dangerous driving, assaults and threats, or robbery, where courtroom fairness directly impacts the outcome.

The Court outlined permissible and impermissible questioning by a trial judge.  Permissible intervention includes:

• To clear up ambiguities and call a witness to order
• To explore some matters which the witnesses’ answers have left vague
• To put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted

Impermissible interventions include:

• Questioning an accused or witnesses in such a way as to convey an impression that the judge aligns himself or herself with the case for the Crown
• Questioning witnesses in such a way as to make it impossible for counsel to present the defence case
• Intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story, and
• Inviting the jury to disbelieve the accused or other defence witnesses.

For example, in cases involving the right to remain silent, judicial neutrality is critical to ensure evidence is not unfairly interpreted against the accused.

Should you be charged with a criminal offence, contact a criminal defence lawyer to receive legal advice. Call (416) 658-5855 for a consultation with Brian Ross.