R. v. Thain (C.),

• Jurisdiction: Ontario
• Judge: Sharpe, Armstrong and Watt, JJ.A.
• Neutral Citation: 2009 ONCA 223
• Date: 29 January 2009
• Court: Court 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.