Superior Court Justice Eugene Ewaschuk had many things to say during a witness’s testimony in front of the jury at the murder trial of Boysie Murray.

The comments would prove to be so problematic that Ontario’s top court took the relatively rare step of ordering a new trial.

The interventions in question happened during the testimony of a witness identified only as T.J-D, who as a youth pleaded guilty to first-degree murder in the death of Shawn James.

He shot James on Bleeker St. in Toronto from the back of a Beck Taxi cab being driven by Murray, who was also convicted of first-degree murder by a jury in 2011.

Writing for a unanimous three-judge panel in a Court of Appeal decision released Wednesday, Justice David Watt found Ewaschuk’s repeated interventions during T.J-D’s testimony to have gone over the line in terms of what are considered to be acceptable interjections by a trial judge.

“What occurred marred the appearance of fairness so vital in criminal proceedings,” Watt wrote. “To a reasonable observer, the trial judge had cast his lot with the prosecution. The conviction must be set aside.”

Murray’s appeal lawyer, Philip Campbell, told the Star he was “a bit wide-eyed and eventually quite troubled” when he read the transcript from Murray’s trial.

He said he was struck by the fact that the appeal panel hearing the case included Watt, who as a trial judge was the perfect example of a judge knowing when to properly intervene.

“Justice Watt as a trial judge was a model of restraint and reserve who didn’t inject himself into the proceedings until it was time for him to make a ruling. That’s how it should be,” Campbell told the Star in an email. “As I read his judgment in this appeal I thought about the contrast between Justice Watt’s manner of judging and what happened at Mr. Murray’s trial.”

Watt wrote that the critical issue for the jury at Murray’s trial was his state of mind at the time T.J-D shot James, “more particularly, his knowledge of the purpose of the trip to Bleeker St. and what T.J-D intended to do there.”

There was no dispute at the trial over who actually shot James, or who was in the cab at the time. Aside from T.J-D and Murray, a woman identified as C.L. was in the front passenger seat. She pleaded guilty to accessory after the fact.

T.J-D, who had pleaded guilty to murder, was called as a witness by the Crown at Murray’s trial. Although called by the prosecution, he is described as a “defence-friendly” witness by Watt. The Crown at Murray’s trial anticipated T.J-D would be difficult.

While he admitted to shooting James, he departed from the agreed statement of facts filed following his guilty plea, and maintained on the stand at Murray’s trial that neither Murray nor C.L. knew in advance that T.J-D wanted to shoot James. He claimed on the stand that the killing was impulsive when he suddenly saw James appear on the sidewalk.

According to the Court of Appeal, Ewaschuk, who retired in 2015, directed at least 70 questions at T.J-D during his examination-in-chief and more than 50 comments on the contents of his testimony.

“The trial judge commented that T.J-D’s memory loss was feigned and that he was simply unwilling to tell the truth about relevant events as he recalled it,” Watt wrote.

At one point in front of the jury, Ewaschuk said: “He understands exactly what’s going on. He thinks he’s smarter than we are, that’s the problem.”

In another instance, when T.J-D told the Crown he couldn’t disclose where he got the gun to shoot James, Ewaschuk, on his own initiative, had him handcuffed in front of the jury and removed from the courtroom.

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When T.J-D refused to answer a question because he said it would put his life in jeopardy, Ewaschuk said: “It’s a very convenient excuse that he’s giving. So let’s see where we go.”

And then in the absence of the jury, he commented on T.J-D’s evidence to the lawyers by saying: “I mean you might say it’s B.S., 99 per cent.”

As Watt explains in the appeal court decision, interventions by trial judges are appropriate for reasons such as clarifying evidence or ensuring a witness answers a question. He wrote that appeal courts are “reluctant” to interfere with a case where a judge is accused of improperly interfering during a trial. (Watt also noted that Murray’s trial lawyer did not object to most of Ewaschuk’s interventions.)

He wrote that if T.J-D’s evidence that the killing was impulsive, and not planned, was believed by the jury, then Murray was entitled to be acquitted.

“The trial judge’s repeated interventions during the testimony of T.J-D left no doubt of his view of T.J-D and his evidence. His remarks were disparaging and prejudicial, leaving no doubt where the trial judge stood on the issue of (Murray’s) knowledge (of the murder),” Watt wrote.

Criminal defence lawyer Daniel Brown, who was not involved in this case, said an appeal court would rarely overturn a verdict on the basis of a judge improperly interfering during a trial.

“A judge should not enter the fray in such a way as to convey their personal views on the evidence or the credibility of a witness,” he said. “In this case, the trial judge clearly crossed the line by making disparaging and prejudicial remarks about the credibility of a central witness which led to an unfair trial.”

Watt’s statement indicating that to a reasonable observer, Ewaschuk had “cast his lot with the prosecution,” sounded familiar to criminal defence lawyer Edward Sapiano, who was involved in a famous courtroom showdown with Ewaschuk in 2005.

He argued at the time that the judge should recuse himself because he was biased against defendants. Sapiano had presented about 20 Court of Appeal cases that contained criticism of Ewaschuk. The judge denied the recusal application.

“My argument was that any reasonable person reading this history, and these comments from the Ontario Court of Appeal, would be left with the impression that he’s biased in favour of the prosecution,” Sapiano told the Star.