“Even though it is not the first trial by jury that Justice Cohen presided, it remains that the practice of criminal law does not fall with her expertise,” noted Jean-Claude Hébert, a noted Montreal criminal lawyer, echoing the views of several criminal lawyers. “One wonders whether Quebec Superior Court judges who hear cases from the Criminal Division should follow specialized training for those who have not practiced in this complex and evolving field of law during their practice as a lawyer.”

Adèle Sorella received a life sentence with no possibility of parole for 25 years after she was found guilty of killing her eight and nine year old daughters. Their bodies were found in a room in their home that housed a hyperbaric chamber used to treat juvenile rheumatoid arthritis. A pathologist testified during the trial that the girls could have died either from an insulin injection causing hypoglycemia or from asphyxiation in the hyperbaric chamber.

But the Quebec Court of Appeal found that the trial judge made a series of errors and provided inadequate guidance to the jury over how it should weigh the evidence. In a case that highlights the complexity of conducting a bilingual jury trial, Justice Cohen provided two different interpretations while instructing the jury on the question of reasonable doubt. In English she “correctly” explained to the jury that a guilty verdict required being convinced beyond a reasonable doubt, which is “much closer to absolute certainty,” noted appeal court Justice Martin Vauclair in Sorella c. R. 2017 QCCA 1908 in a unanimous decision that had both Justice Nicholas Kasirer and Justice Marie-Josée Hogue concurring.

The next day however Justice Cohen explained to the jury in French that the Crown does not have to prove something with certainty. She added that that the notion is “closer to certainty than the balance of probabilities” but certainty is not required.” Following guidance by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 SCR 320, appeal court Justice Vauclair found that the different instructions proffered in English and French called into question the degree of certainty. Her instructions in French also failed to use the “absolute,” which “created ambiguity or is the equivalent of telling (the jury) that they did not have to be certain about the prosecution’s proof,” which is “erroneous,” said Justice Vauclair.

Hébert goes further. He suggests that the confusion that arose from the different instructions she gave to the jury may indicate that she does not have sufficient command of the two official languages.

Daniele Roy, president of Montreal’s defence lawyers association, is troubled by the fact that the trial judge refused to follow the model jury instructions issued by the Canadian Judicial Council, erroneously insisting that her instructions to the jury heeded guidance by the SCC.

“The Canadian Judicial Council has model instructions that covers just about all the possibilities in law,” said Roy. “Without legally compelling judges to follow them, we hope that they use it as a model to ensure that new trials are not granted. In the case at hand, she refused to follow the model instructions. It is somewhat worrisome.”

Linked to the trial judge’s inadequate instructions over the notion of reasonable doubt, Justice Cohen failed to directly answer a question from the jury about whether they had to exclude the possibility an accident caused the deaths. Instead Justice Cohen merely repeated her original instructions. Aside from the fact that merely repeating instructions is not a sufficient response, Justice Vauclair noted that the answer expected by the jury was all the more important given that they raised such a question.

“That is pretty problematic,” said Dylan Jones, a Montreal criminal lawyer with the BoroGroup. “You’re leaving the jury in a pretty dangerous spot. It’s obvious that they didn’t know how to address the issue and weren’t properly equipped to make the decision that they had to make.”

Justice Vauclair said that these two errors were in itself enough to order a new trial. But he found that the trial judge made other troubling blunders. The Crown introduced a four-hour videotaped police interrogation in which Sorella invoked her right to remain silent or her wish to return to her cell approximately 90 times or every 2.66 minutes. As Quebec City criminal lawyer Julien Grégoire put it: “How can one more clearly express one’s right to silence?”

While the SCC has maintained that interrogations can be allowed if they have probative value, in this case the “adverse effect” from the use of the videotape outstripped its probative value, said Justice Vauclair. More so because the trial judge “committed the error” of inviting the jury to use it as circumstantial evidence to establish motive, added Justice Vauclair.

“This decision will serve notice to the Crown in that they will have to think twice on how to use videotaped interrogations,” said Jones. “It’s not just because there is video that you can put it to the jury and ask them to draw an inference from it.”

Justice Vauclair also found that the trial judge provided confusing instructions to the jury over the relevance of Sorella’s mental state at around the time of her daughter’s deaths. Though Sorella did not raise a defence of mental disorder, the trial judge nevertheless provided instructions to the jury over section 16 of the Criminal Code, something that was of “no utility” and served only to “confuse” the jury, according to Justice Vauclair.

“It seems obvious that the trial judge ‘lost’ control of the trial,” said Grégoire. “A judge of first instance, sitting before a jury, must adequately instruct the jury, and above all avoid confusing and muddying her task which as it stands is already complex.”

The appeal court also found issue when the Crown suggested that Sorella may have ties with organized crime. Sorella was the wife of a known Mafia leader who died of cyanide poisoning. Justice Vauclair said that if the Crown wants to introduce such evidence, “it should be done so with extreme prudence.” While he said it is up to the new trial judge to determine whether such evidence should be included, Justice Vauclair made it plain that this “allusion” has no basis in fact or in law under the circumstances.

This decision is a timely reminder over the concepts at play during a trial, such as the burden of proof, the right to an attorney, and the use of videotaped evidence when faced with an accused who asserts their right to silence, said Roy.

But the decision also raises troubling questions, said Hébert. “It is astonishing that the coordinating judge of the Superior Court handed the responsibility of such an important and difficult case to a judge whose management seemed to exceed her professional skills,” said Hébert.