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APPEALS - Grounds - Bias - Miscarriage of justice

Wednesday, October 23, 2019 @ 7:52 AM  

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Appeal by the accused, Chambers, from a conviction for sexual assault. The accused and complainant were guests at a hostel who shared a co-ed room that accommodated eight people. They did not know one another prior to arrival. The complainant alleged the accused sexually assaulted her in the early morning hours. The issue at trial was whether the complainant consented to sexual activity with the accused. Both parties gave evidence supporting their respective positions. The accused was convicted by a judge sitting without a jury. The accused appealed, alleging, among other things, a reasonable apprehension of bias.

HELD: Appeal allowed. An examination of the record as a whole gave rise to an appearance of unfairness in respect of the trial judge's conduct and the reasons for judgment that resulted in a miscarriage of justice. During cross-examination of the accused, the trial judge intervened to express annoyance with the answers, questioned the plausibility of the testimony, and expressed concerns with the accused's credibility. In addition, the reasons for conviction were replete with derisive comments about the accused, highly questionable observations, and irrelevant comments regarding defence counsel and the defence's litigation strategy. The trial judge's resolution of conflicting versions and assessment of credibility involved animated and unrelenting criticism of the accused and defence counsel that left the impression his conclusions were not solely based on the evidence. The conduct of the trial and reasons for judgment raised concerns of a loss of perspective and objectivity that resulted in an appearance of unfairness. The conviction was set aside, and a new trial was ordered.

R. v. Chambers, [2019] O.J. No. 4712, Ontario Court of Appeal, D. Watt, B. Miller and J.M. Fairburn JJ.A., September 19, 2019. Digest No. TLD-October212019008