R. v. Thain (C.),

JurisdictionOntario
JudgeSharpe, Armstrong and Watt, JJ.A.
Neutral Citation2009 ONCA 223
Date29 January 2009
CourtCourt of Appeal (Ontario)

R. v. Thain (C.) (2009), 247 O.A.C. 55 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. MR.061

Her Majesty the Queen (respondent) v. Christopher Thain (appellant)

(C47602; 2009 ONCA 223)

Indexed As: R. v. Thain (C.)

Ontario Court of Appeal

Sharpe, Armstrong and Watt, JJ.A.

March 13, 2009.

Summary:

The accused was convicted of internet luring, contrary to s. 172.1(1)(c) of the Criminal Code. He was sentenced to nine months' imprisonment. The accused appealed his conviction and applied for leave to appeal the sentence.

The Ontario Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - Over a period of four months in 2003, the accused engaged in a series of sexually explicit conversations in an internet chat room with a male undercover police officer - The officer used the name "mandy13" - After a telephone conversation with a female police officer posing as mandy13, he arranged to meet her for a planned sexual encounter - The accused was charged with internet luring - The accused asserted that he believed he was communicating with an adult male and considered the conversations to be a role-playing game - The trial judge convicted the accused - The Ontario Court of Appeal allowed the accused's appeal - The trial judge erred in stating that "I am not convinced that his evidence has not been influenced by his desire to extricate himself the situation" - The trial judge appeared to have shifted the burden of proof from the Crown to the accused - The accused was entitled to the presumption of innocence and to the benefit of reasonable doubt - It was not for the accused to "convince" the trial judge that his evidence was to be believed or that he was not simply spinning a tale to extricate himself - See paragraphs 30 and 31.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - Over a period of four months in 2003, the accused engaged in a series of sexually explicit conversations in an internet chat room with a male undercover police officer - The officer used the name "mandy13" - After a telephone conversation with a female police officer posing as mandy13, he arranged to meet her for a planned sexual encounter - The accused was charged with internet luring - The accused asserted that he believed he was communicating with an adult male and considered the conversations to be a role-playing game - The trial judge convicted the accused - The Ontario Court of Appeal allowed the accused's appeal - The trial judge erred in stating that "any witnesses are presumed to tell the truth" - Witnesses are not "presumed to tell the truth" - The evidence of each witness was to be assessed in the light of the totality of the evidence without any presumptions except the general and over-riding presumption of innocence - See paragraph 32.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - Over a period of four months in 2003, the accused engaged in a series of sexually explicit conversations in an internet chat room with a male undercover police officer - The officer used the name "mandy13" - After a telephone conversation with a female police officer posing as mandy13, he arranged to meet her for a planned sexual encounter - The accused was charged with internet luring - The accused asserted that he believed he was communicating with an adult male and considered the conversations to be a role-playing game - The trial judge convicted the accused - The Ontario Court of Appeal allowed the accused's appeal - The trial judge erred in stating as a general proposition that "the credibility of an accused must be assessed 'bearing in mind that his explanation comes long after disclosure was available to him'." - The fact that the accused received disclosure could not properly or fairly be said to bear upon the assessment of his credibility - The suggestion that disclosure had a bearing on the accused's credibility did not surface until the trial judge delivered his reasons, long after the accused could be confronted with the suggestion or be afforded an opportunity to refute it and long after the accused's counsel could be given the opportunity to address the point in argument - The fact that the accused enjoyed his constitutional right to disclosure had no bearing on his credibility and the trial judge erred in law by stating that it did - Even if the disclosure might possibly have had a bearing on credibility, trial fairness demanded that the accused be confronted with the suggestion and afforded the opportunity to refute it or make submissions before being disbelieved on that account - See paragraphs 20 to 29.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Effect of error by trial judge - General - Over a period of four months in 2003, the accused engaged in a series of sexually explicit conversations in an internet chat room with a male undercover police officer - The officer used the name "mandy13" - After a telephone conversation with a female police officer posing as mandy13, he arranged to meet her for a planned sexual encounter - The accused was charged with internet luring - The accused asserted that he believed he was communicating with an adult male and considered the conversations to be a role-playing game - The accused fortified his belief by six facts - The trial judge convicted the accused - The Ontario Court of Appeal identified errors committed by the trial judge in his statements respecting the accused's credibility, the burden of proof and the credibility of witnesses in general - The court rejected the Crown's assertion that the court should apply the curative proviso in s. 686(1)(b)(ii) of the Criminal Code - The accused was entitled to have his credibility fairly assessed without being trapped by the exercise of his constitutional rights and he was denied that right - The six facts were peculiarly specific to the world of internet chat-rooms and could only be assessed in the light of the evidence as to how internet chat-rooms operated - Much of the evidence came from the accused and assessing the reasonableness of the evidence necessarily involved the trial judge's assessment of the accused's credibility - The trial judge's errors were bound to affect his assessment of the accused's credibility - It was not certain that the trial judge would have still disbelieved the accused's evidence had he not committed the legal errors in assessing the accused's credibility - See paragraphs 33 to 38.

Cases Noticed:

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 34 O.R.(3d) 620 (C.A.), refd to. [para. 22].

R. v. White (I.) (1999), 117 O.A.C. 246; 42 O.R.(3d) 760 (C.A.), refd to. [para. 23].

R. v. Cavan (H.) et al. (1999), 126 O.A.C. 201; 139 C.C.C.(3d) 449 (C.A.), refd to. [para. 24].

R. v. Kokotailo (J.R.) (2008), 254 B.C.A.C. 262; 426 W.A.C. 262; 232 C.C.C.(3d) 279; 2008 BCCA 168, refd to. [para. 24].

R. v. Khan (A.R.) (1998), 109 B.C.A.C. 299; 177 W.A.C. 299; 126 C.C.C.(3d) 523 (C.A.), refd to. [para. 24].

R. v. Marshall (D.) (2005), 201 O.A.C. 154; 77 O.R.(3d) 81 (C.A.), leave to appeal refused (2006), 359 N.R. 390 (S.C.C.), refd to. [para. 24].

R. v. Simon (2001), 154 C.C.C.(3d) 562 (Que. C.A.), refd to. [para. 24].

Counsel:

Paula Rochman, for the appellant;

Craig Harper, for the respondent.

This appeal was heard on January 29, 2009, by Sharpe, Armstrong and Watt, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Sharpe, J.A., on March 13, 2009.

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38 practice notes
  • Court Of Appeal Summaries (May 11 ' 15, 2020)
    • Canada
    • Mondaq Canada
    • May 22, 2020
    ...(3d) 620 (C.A.), R. v. White (1999), 132 C.C.C. (3d) 373 (Ont. C.A.), R. v. Schell (2000), 148 C.C.C. (3d) 219 (Ont. C.A.), R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, R. v. M.D., 2020 ONCA 290, R. v. Cavan (1999), 139 C.C.C. (3d) 449 (Ont......
  • Table of cases
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ...16, 505 R v TH, 2017 ONCA 485............................................................................. 553, 554 R v Thain, 2009 ONCA 223, 243 CCC (3d) 230 .................................. 45, 592, 625 R v Therens, [1985] 1 SCR 613 ............................................................
  • Table of cases
    • Canada
    • Irwin Books Archive The Law of Evidence. Seventh Edition
    • August 29, 2015
    ...45, 365 R. v. Tessling, [2004] 3 S.C.R. 432, 23 C.R. (6th) 207, 2004 SCC 67 .......... 13, 422 R. v. Thain (2009), 247 O.A.C. 55, 243 C.C.C. (3d) 230, 2009 ONCA 223 ..................................................................................... 37, 524 R. v. Therens, [1985] 1 S.C.R. 6......
  • Table of Cases
    • Canada
    • Irwin Books Archive The Law of Evidence. Sixth Edition
    • September 8, 2011
    ...106 C.C.C. (3d) 508 .....41, 338 R. v. Tessling, [2004] 3 S.C.R. 432, 23 C.R. (6th) 207, 2004 SCC 67 ................ 389 R. v. Thain (2009), 247 O.A.C. 55, 243 C.C.C. (3d) 230, 2009 ONCA 223 .................................................................................... 33, 487 R. v. ......
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25 cases
  • Kallab c. Canada (Citoyennété et Immigration),
    • Canada
    • Federal Court (Canada)
    • May 16, 2019
    ...A.C.F. no 37 (QL) (1re inst.); Feher c. Canada (Sécurité publique et Protection civile), 2019 CF 335; R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230; Bersie c. Canada (Citoyenneté et Immigration), 2016 CF 900; Ismaili c. Canada (Citoyenneté et Immigration), 2014 CF 84.D......
  • R. v. P.B., 2015 ONCA 738
    • Canada
    • Ontario Court of Appeal (Ontario)
    • January 19, 2015
    ...to. [para. 136]. R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 137]. R. v. Thain (C.) (2009), 247 O.A.C. 55; 243 C.C.C.(3d) 230 (C.A.), refd to. [para. 137]. R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 140].......
  • R. v. LaFlamme, (2014) 464 N.R. 338 (CMAC)
    • Canada
    • June 13, 2014
    ...of the evidence adduced in the proceedings, unaided by any presumption, except perhaps the presumption of innocence: R. v Thain , 2009 ONCA 223, 243 CCC (3d) 230, at para 32. [41] Second, a trier of fact is under no obligation to accept the evidence of any witness simply because it is not c......
  • R. v. Clark (L.M.), (2012) 438 N.R. 366 (CMAC)
    • Canada
    • February 24, 2012
    ...witnesses - Witnesses - Credibility - [See Criminal Law - Topic 4300 and Criminal Law - Topic 4351 ]. Cases Noticed: R. v. Thain (C.) (2009), 247 O.A.C. 55; 243 C.C.C.(3d) 230; 2009 ONCA 223, refd to. [para. 40]. Aguilera et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.......
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2 firm's commentaries
  • Court Of Appeal Summaries (May 11 ' 15, 2020)
    • Canada
    • Mondaq Canada
    • May 22, 2020
    ...(3d) 620 (C.A.), R. v. White (1999), 132 C.C.C. (3d) 373 (Ont. C.A.), R. v. Schell (2000), 148 C.C.C. (3d) 219 (Ont. C.A.), R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, R. v. M.D., 2020 ONCA 290, R. v. Cavan (1999), 139 C.C.C. (3d) 449 (Ont......
  • COURT OF APPEAL SUMMARIES (MAY 11 – 15, 2020)
    • Canada
    • LexBlog Canada
    • May 19, 2020
    ...(3d) 620 (C.A.), R. v. White (1999), 132 C.C.C. (3d) 373 (Ont. C.A.), R. v. Schell (2000), 148 C.C.C. (3d) 219 (Ont. C.A.), R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, R. v. M.D., 2020 ONCA 290, R. v. Cavan (1999), 139 C.C.C. (3d) 449 (Ont......
4 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ...16, 505 R v TH, 2017 ONCA 485............................................................................. 553, 554 R v Thain, 2009 ONCA 223, 243 CCC (3d) 230 .................................. 45, 592, 625 R v Therens, [1985] 1 SCR 613 ............................................................
  • The Basics of Admissibility and the Evaluation of Evidence
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ...evidence showed this. Given the limited admission Araya had made, a depiction of his appearance at the time of the 68 R v Thain , 2009 ONCA 223 at para 32; Luciano , above note 11 at para 147. 69 R v HPS , 2012 ONCA 117 at para 36. 70 R v Proctor (1992), 69 CCC (3d) 436 (Man CA). 71 R v Ara......
  • Evidence About Credibility and Reliability
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ...whether to accept testimony as accurate, triers of fact will consider both “credibility” (the honesty of the witness 1 R v Thain (2009), 243 CCC (3d) 230 (Ont CA) at para 32. 2 See the discussion in Chapter 4, Section 2.2, “Threshold Reliability.” 3 R v RR , 2017 ONCA 141 at para 7. 592 Evi......
  • Secondary Materiality and Your Own Witness
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    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ...describe the same event the same way, a trier of fact is entitled to consider the mutual support of their testimony 4 R v Thain (2009), 243 CCC (3d) 230 (Ont CA) at para 32. 5 R v Siu (1998), 124 CCC (3d) 301 (BCCA) [ Siu ]. And see R v Austin (2006), 214 CCC (3d) 38 (Ont CA) at 47 [ Austin......

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