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).

R. v. Chalmers, 2011 ONCA 433

CITATION: R. v. Chalmers, 2011 ONCA 433

DATE: 20110606

DOCKET: C52891

COURT OF APPEAL FOR ONTARIO

O’Connor 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 judge’s reasons for rejecting the appellant’s evidence. First, the trial judge attached significant, if not overwhelming weight, to the appellant’s answer when he was first asked in examination-in-chief if the intercourse occurred. The trial judge understood the appellant’s 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 appellant’s 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 judge’s misapprehension of the appellant’s first answer may have played an unfair role in his assessment of the appellant’s evidence.

[4] Second, and more importantly, after referring to his view of the appellant’s 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 appellant’s 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. O’Connor A.C.J.O.”

“K. Feldman J.A.”

“H. S. LaForme J.A.”