



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. 486.4(1), (2), (2.1), (2.2), (3) or
(4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
sections of
the Criminal Code
provide:

486.4(1)       Subject
to subsection (2), the presiding judge or justice may make an order directing
that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in
proceedings in respect of

(a)     any of the
following offences;

(i)      an offence
under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
with in the same proceeding, at least one of which is an offence referred to in
paragraph (a).

(2)     In proceedings
in respect of the offences referred to in paragraph (1)(a) or (b), the
presiding judge or justice shall

(a)     at the first
reasonable opportunity, inform any witness under the age of eighteen years and
the victim of the right to make an application for the order; and

(b)     on application
made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
subsection (2.2), in proceedings in respect of an offence other than an offence
referred to in subsection (1), if the victim is under the age of 18 years, the
presiding judge or justice may make an order directing that any information
that could identify the victim shall not be published in any document or
broadcast or transmitted in any way.

(2.2) In proceedings in
respect of an offence other than an offence referred to in subsection (1), if
the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
inform the victim of their right to make an application for the order; and

(b) on application of
the victim or the prosecutor, make the order.

(3)     In proceedings
in respect of an offence under section 163.1, a judge or justice shall make an
order directing that any information that could identify a witness who is under
the age of eighteen years, or any person who is the subject of a
representation, written material or a recording that constitutes child
pornography within the meaning of that section, shall not be published in any
document or broadcast or transmitted in any way.

(4)     An order made
under this section does not apply in respect of the disclosure of information
in the course of the administration of justice when it is not the purpose of
the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s.
8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
13, s. 18..

486.6(1)       Every
person who fails to comply with an order made under subsection 486.4(1), (2) or
(3) or 486.5(1) or (2) is guilty of an offence punishable on summary
conviction.

(2)     For greater certainty, an order
referred to in subsection (1) applies to prohibit, in relation to proceedings
taken against any person who fails to comply with the order, the publication in
any document or the broadcasting or transmission in any way of information that
could identify a victim, witness or justice system participant whose identity
is protected by the order. 2005, c. 32, s. 15.







COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chambers, 2019 ONCA 736

DATE: 20190919

DOCKET: C66884

Watt, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Chambers

Appellant

Michael Dineen, for the appellant

Vallery Bayly, for the respondent

Heard: September 10, 2019

On appeal from the conviction entered on
October 18, 2018 by Justice Robert N. Fournier of the Ontario Court of Justice.

REASONS FOR DECISION

A.

OVERVIEW

[1]

This is an appeal from conviction on one count
of sexual assault after a trial by a judge sitting without a jury. The
appellant was tried in a judge alone trial. At the conclusion of argument, we
allowed the appeal and ordered a new trial with reasons to follow. These are our
reasons.

[2]

The appellant and complainant were guests at the
same hostel on the night in question. They shared a co-ed room that
accommodated eight people. They did not know each other before they arrived at
the hostel. The complainant said that the appellant sexually assaulted her in
the early morning hours. The issue at trial was one of consent.

[3]

The appellant raises a number of issues in this
appeal. We find it necessary to deal with only the allegations of reasonable
apprehension of bias. We see the appellants complaints as largely centring
upon an appearance of unfairness arising from: (a) the trial judges conduct
during the trial; and (b) the content of the reasons for judgment. We agree
that, when the record is considered as a whole, this case gives rise to an
appearance of unfairness that resulted in a miscarriage of justice

B.

ANALYSIS

[4]

It is axiomatic that trials must not only be
fair, but also must be seen to be fair. Viewed in isolation, certain comments
may be excused as regrettable and of no consequence, but considered in
totality, they may rise to the level of an overall appearance which is
incompatible with our standards of fairness:
R. v. Stewart
(1991), 62
C.C.C. (3d) 289 (Ont. C.A.), appeal quashed, [1991] S.C.C.A. No. 110, at p.
320.

[5]

In this case, the trial judge intervened during
the cross-examination of the appellant on a number of occasions. Standing on
their own, we do not consider those interventions as having created an
appearance of unfairness. Even so, they provide important context against which
the impugned passages within the reasons for judgment should be considered. A
few examples suffice:

(i)

During the cross-examination of the appellant,
the trial judge expressed a view that the appellant was not answering his
questions, which the trial judge said could get [him] annoyed.

(ii)

The trial judge cautioned the appellant, Im
the trier of fact here, and told the appellant during the course of his
testimony that his evidence on a particular point [did not] bolster [his]
credibility. The trial judge went on to display his impatience with the
appellant when the appellant remained firm on the point, saying: Here we go
again. Fine.

(iii)

The trial judge challenged the plausibility of
the appellants evidence about a kiss that he said the complainant gave him,
questioning the appellants version of events:

So, one little kiss like that, and
its not a big  its not the kiss of the century, but it gets you all excited.
So, youre all excited for about two minutes before you decide to do something
about it?

[6]

As noted, although standing on their own, these
interventions would not call for a remedy, the tone of the interventions carried
through to the 49-pages of single-spaced reasons for judgment. Those reasons
are replete with derisive comments about the appellant, highly questionable
observations, diversions into the trial judges assessment of the performance
of defence counsel, and adverse comments on the defence litigation strategy. A few
examples will suffice:

(i)

The trial judge repeatedly used phrases like, place
a mental sticker on this point, make sure to put a big mental sticker on that
one and put a big mental sticker on this one!

(ii)

The trial judge repeatedly graded the
performance of defence counsel and the defence strategy. Among other things, he
referred to the defence approach to cross-examining the complainant as tedious
and repetitious and far too long. Notably, there were few objections by the
trial Crown during the complainants cross-examination and only one objection went
to the materiality of the evidence being elicited. (We also note that the trial
Crowns cross-examination of the appellant was longer than defence counsels
cross-examination of the complainant.)

(iii)

The trial judge also referred to one line of
questioning aimed at establishing that the complainant was not intoxicated at
the time of the alleged offence as demeaning and offensive. We would note
that we have reviewed this line of questioning and do not agree with that
characterization of it. The complainants level of sobriety was first elicited
by Crown counsel. In any event, rather than simply making his factual
determinations, the trial judge felt compelled to go further and comment on
what he perceived to be a flawed defence strategy from the outset and a
feeble attempt to demonstrate that the complainant had the capacity to
consent to sexual intercourse.

(iv)

The trial judge rejected the appellants
suggestion that he had forged a rapport with the complainant in a short time
and called it:

[a] symptom of a fanciful alternate
reality, which could only exist in his mind and dreams. Having observed his
performance in the witness stand, I doubt that even one person in the audience,
with the exception of his father perhaps, could lend credence to his version of
events. He was either delusional or a very obsessed and inexperienced fiction
writer, whose script would never be the basis of a movie.

We are informed that the appellants father, who came to Canada to
be present at the trial, was in the courtroom when his son testified.

(v)

The appellant testified that, prior to the act
of intercourse, he and the complainant engaged in a discussion about whether
they had STDs and whether she was on birth control. He testified that she told
him that she had an IUD. Crown counsel on appeal acknowledges that during the cross-examination
of the complainant, she acknowledged that the appellant had asked her this
question during the act of penetration and that she had probably told him she
had an IUD. There did not appear to be another explanation for why he knew she
had an IUD.

The trial judge seems to
have misunderstood the complainants evidence on this point, suggesting that
[a]s far as she knew, the topic of her IUD occurred the next morning, as she
was confronting him.

The appellant argues that
this was a serious misapprehension of the evidence. There appears to be some
traction to that position, particularly in light of the heavy emphasis that the
appellant placed upon this fact in his closing submissions. Whether it was or
not, though, the trial judge appears to have looked unfavourably upon the
appellants denial that the conversation about the IUD occurred the following
morning: 
As expected
, Mr. Chambers would not agree with that
proposition. [Emphasis added.]

Importantly, nor did the
complainant suggest that the conversation happened the following morning.

(vi)

The trial judge expressed astonishment at what
he perceived as the appellants denial of self-evident truths and small
details independently established. However, he did not simply describe those
matters. Rather, he commented as follows:

Was this the hill he really wanted to die
on? Then the simple answer occurred to me. He had formulated a script in his
defence and would push back on any little detail, which didnt align with his
defence strategy. And it appeared he would do so at all costs, seemingly
without regard for the merits. I remembered how
Tiger Woods
had
attributed his comeback to the PGA as a 
process
. I recalled that
professional engineers created models and adhered to a process. Doctors tasked
with complex surgeries likewise agreed on a process in advance, anticipating
decisions might have to be made under stress and emotionally charged
situations. What Mr. Chambers had in common with them, was a dogged
determination, to stick with the 
process
 or as
Mark Twain
said,
to stick to possibilities
. [Emphasis in original.]

(vii)

The trial judge ascribed an inordinate amount of significance to the
appellants admission that, after the alleged offence, he had told the
complainant that he wished that her friend was there as well. The appellant
admitted that he made this remark and admitted that it was insensitive. The
trial judge called this comment a freakish notion and sarcastically remarked,
[o]n that interesting note, he returned to his seat. Put a big mental sticker
on this one!

Later in his reasons the
trial judge came back to the appellants remark to the complainant. He first
summarized the appellants testimony that he and the complainant had to pause
the act of intercourse briefly because one of the other people staying in the
room walked by. The trial judge then said, Once shes gone, they resume
intercourse and he ejaculates prematurely, and inconsiderately exclaims in joy:
do you think your friend  would like to join. Make sure to put a big mental
sticker on that one.

He later came back to the
comment that the appellant admitted he made and queried what the complainants
friend was doing ever so gentle on his mind, as he was climaxing prematurely,
lying on top of the complainant? The trial judge described the appellants
acknowledgement of the comment as a loss of focus on his strategy and then
said:

In one careless faux pas, he had not only
shed his sheeps clothing. For all intents and purposes, he had corroborated
the complainants version of events, exposing himself as the aggressor he
really was. Perhaps it was his turn to be caught with his guard down. In that
moment, his defence strategy came crashing down like a house of cards!
E.K.
s
voice had finally been heard and for our purposes, she had been vindicated. As
I implied from the very start, for fabrication to succeed, requires a good deal
of artistry, and evidently it was sadly lacking in Mr. Chambers case.

The trial judge did not
explain why the appellants admission that he uttered the insensitive remark
caused his defence strategy to come crashing down.

(viii)

In his concluding remarks, the trial judge exclaimed: [p]lease
pardon the vernacular, but pure and simple, this was 
wham bam, thank you
ma[]am
 sex - every bit as degrading and demeaning, as this urban
expression obviously implies! [emphasis in original].

[7]

The respondent argues that while these were
perhaps colourful reasons, they do not rise to the level of demonstrating a
reasonable apprehension of bias or an appearance of unfairness. Crown counsel contends
that the language in this case is less egregious than the intemperate, condescending
and sarcastic language that this court found gave rise to a reasonable
apprehension of bias in
R. v. P.G.,
2017
ONCA 351, 138 O.R. (3d) 343
(Ont. C.A.), at para. 48. We disagree.

[8]

A sexual assault prosecution is a profoundly
serious matter for all those involved: both the complainant and the accused.
Trial judges must bring a dispassionate objectivity to the task at hand, one
that is consistent with the solemnity of the matter in dispute.

[9]

The complainant and appellant had different
versions of what had occurred. It was the trial judges task to resolve those
factual matters, a resolution that called upon him to make findings of
credibility. While he was entitled to reject the appellants evidence on the
basis that he was not credible, the trial judges animated and unrelenting
criticism leaves one with the impression that his conclusions were not based
solely on the evidence before him.

[10]

In short, the reasons are not merely unconventional.
They demonstrate that the trial judge lost sight of his fundamental task. It
was not to mock. It was not to shame. It was not to grade counsels
performances or the defence strategies invoked. It was to decide whether the
Crown had proven the appellants guilt beyond a reasonable doubt. These reasons
went far afield. As a whole, they give rise to concerns regarding a loss of
perspective and objectivity and result in an appearance of unfairness.

C.

disposition

[11]

The conviction is set aside and a new trial
ordered.

David Watt J.A.

B.W. Miller J.A.

Fairburn J.A.


