R. v. Chambers, 2019 ONCA 736

TRIAL FAIRNESS – APPEARANCE OF FAIRNESS

Background

The Appellant was tried by a judge, and convicted of sexual assault. The Appellant and the complainant were guests in the same hostel room. They did not know each other prior to the night in question. The Appellant alleges reasonable apprehension of bias premised on the trial judge’s conduct throughout the trial, and the content of his reasons for judgment. The ONCA concludes that the record taken as a whole gives rise to an appearance of unfairness that resulted in a miscarriage of justice.

 Analysis

 Trials must not only be fair, they must seem fair. Conduct or comments by the trial judge, taken as a whole rather than in isolation, may give rise to an overall appearance of unfairness.

 Examples of trial judge’s comments: during cross-examination of the Appellant the trial judge expressed that he [trial judge] could get annoyed if Appellant was not answering the questions, and the trial judge displayed his impatience with the Appellant when saying “here we go again. Fine.” Similarly, throughout his reasons for judgment the trial judge repeatedly made disdainful comments about the Appellant and performance of defence counsel.

 In essence, the trial judge’s reasons were more than simply unconventional. The trial judge lost sight of his role in the courtroom: to resolve factual matters which requires him to make findings of credibility. This does not include unrelenting criticism that creates the impression that his finding of guilt was not solely based on the evidence adduced at trial.

 A trial judge’s task is not to mock or shame accused persons, or rate counsel’s performance. Their ultimate task is to establish whether the Crown has established the accused’s guilty beyond a reasonable doubt.

 Watt JA, writing for the court, sets aside the conviction and orders a new trial.