DATE: 20050131

DOCKET: C41639

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – THOMAS HARVEY CHAPLIN (Appellant)

BEFORE: LASKIN, ROSENBERG, and LaFORME JJ.A.

COUNSEL: Frank Miller for the appellant Christine Tier for the respondent

HEARD & ENDORSED: January 31, 2005

On appeal from conviction by Justice M. Rawlins of the Ontario Court of Justice dated July 3, 2003, and from the summary conviction appeal before Justice Robert Abbey of the Superior Court of Justice heard March 11, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] A trial judge may comment on the performance of witnesses and it seems to us that this is what occurred here and did not demonstrate a reasonable apprehension of bias. We agree with Abbey J.’s reasons and his application of the test for bias.

[2] That said, these comments were ill-advised since taken out of context they might cause concern about whether the trial judge had allied herself with the prosecution.

[3] Accordingly, the appeal is dismissed.