



WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486(1), (2), or (3) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.    (1)
Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may order the
    exclusion of all or any members of the public from the court room for all or
    part of the proceedings if the judge or justice is of the opinion that such an
    order is in the interest of public morals, the maintenance of order or the
    proper administration of justice or is necessary to prevent injury to
    international relations or national defence or national security.

(2)
For
    the purpose of subsection (1), the proper administration of justice includes
    ensuring that.

(a)
the
interests of the witnesses under the age of eighteen
    years   are safeguarded in all
    proceedings; and

(b)
justice
system participants who are involved in the
    proceedings are protected.

(3)
If
    an accused is charged with an offence under section 151, 152, 153, 153.1, 155
    or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212,
    271, 272 or 273 and the prosecutor or the accused applies for an order under
    subsection (1), the judge or justice shall, if no such order is made, state,
    reference to the circumstances of the case, the reason for not making an order.
     R.S., c. C-34, s. 442; 174-75-76, c. 93,
    s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd
    Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7;
    1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16,
    34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss.
    4 and 8(3)(a).






CITATION:
R. v. Chalmers, 2011
          ONCA 433



DATE: 20110606



DOCKET: C52891



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Feldman and
LaForme
JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Edward Chalmers



Appellant



Ian N. McLean, for the appellant



Deborah Calderwood, for the respondent



Heard and released orally: May 31, 2011



On appeal from conviction entered by Justice Jean-Gilles Lebel
          of the Superior Court of Justice dated July 29, 2010.



ENDORSEMENT



[1]

We have two concerns with the trial judges reasons for
    rejecting the appellants evidence. First, the trial judge attached significant,
    if not overwhelming weight, to the appellants answer when he was first asked
    in examination-in-chief if the intercourse occurred. The trial judge understood
    the appellants answer to be not to my knowledge.

[2]

The trial judge considered that to be an equivocal
    answer and commented that: the first answer is the best answer. In fact, the appellants
    answer was not as equivocal as the trial judge understood. The answer was not
    to my knowledge, no. Moreover, the appellant repeated the no part of the
    answer, unequivocally denying the occurrence several times, both in examination-in-chief
    and in cross-examination.

[3]

We are therefore concerned that the trial judges
    misapprehension of the appellants first answer may have played an unfair role
    in his assessment of the appellants evidence.

[4]

Second, and more importantly, after referring to his
    view of the appellants answer, the trial judge said the following: As a
    result of that I am unable to make a finding of fact on the basis of his
    evidence.

[5]

The appellant submits that the trial judge erred in law
    by, in effect, requiring himself to be able to make a finding of fact on the
    basis of the appellants evidence. To the contrary, the evidence of the
    appellant can also be effective if it raises a reasonable doubt. Although the
    trial judge is presumed to know the law on
W
.(
D
.
),
his
    reference to a finding of fact is a clear error in the articulation and
    application of that case and effectively reverses the onus of proof.

[6]

On the above bases the appeal is allowed, the
    conviction set aside and a new trial is ordered.


Signed:           D. OConnor
    A.C.J.O.

K.
    Feldman J.A.


H. S.
LaForme
J.A.


