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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant's 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2019-09-19

Docket: C66884

Panel: Watt, Miller and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Nicholas Chambers Appellant

Counsel

Michael Dineen, for the appellant

Vallery Bayly, for the respondent

Hearing and Appeal Information

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 appellant's complaints as largely centring upon an appearance of unfairness arising from: (a) the trial judge's 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, 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, "I'm 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 appellant's evidence about a kiss that he said the complainant gave him, questioning the appellant's version of events:

So, one little kiss like that, and it's not a big – it's not the kiss of the century, but it gets you all excited. So, you're 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 judge's 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 complainant's cross-examination and only one objection went to the materiality of the evidence being elicited. (We also note that the trial Crown's cross-examination of the appellant was longer than defence counsel's 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 complainant's 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 appellant's 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 appellant's 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 complainant's 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 appellant's 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 appellant's 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 didn't 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 appellant's 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 appellant's remark to the complainant. He first summarized the appellant's 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 she's 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 complainant's 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 appellant's 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 sheep's clothing. For all intents and purposes, he had corroborated the complainant's 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 appellant's 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 judge's task to resolve those factual matters, a resolution that called upon him to make findings of credibility. While he was entitled to reject the appellant's evidence on the basis that he was not credible, the trial judge's 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 appellant's 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.