COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Thompson, 2026 ONCA 596
DATE: 20260820
DOCKET: M56515 (COA-24-CR-0619) & M56863 (COA-22-CR-0202)
Coroza, George and Favreau JJ.A.
DOCKET: M56515 (COA-24-CR-0619)
BETWEEN
His Majesty the King
Respondent/Responding Party
and
O’Neil Thompson
Appellant/Moving Party
DOCKET: M56863 (COA-22-CR-0202)
AND BETWEEN
His Majesty the King
Respondent/Responding Party
and
Fantasia Hoo-Hing
Appellant/Moving Party
Stephen Aylward and Zachary Rosen, for the appellant/moving party O’Neil Thompson
Jeffery Couse, for the appellant/moving party Fantasia Hoo-Hing
Elise Nakelsky, for the respondent/responding party
Heard: May 21, 2026
REASONS FOR DECISION
I. Overview
[1] The appellants/moving parties, O’Neil Thompson and Fantasia Hoo-Hing, were jointly charged and tried for murder alongside their co-accused, Peter Wight.[1]
[2] Thompson and Wight were alleged to have beaten the victim to death. Hoo-Hing was alleged to have aided and abetted the killing. Only because it is relevant to this appeal do we note that both Thompson and Hoo-Hing are Black.
[3] On April 8, 2022, the jury commenced deliberations. On the second day of deliberations, the trial judge received several notes from members of the jury.
[4] It was implicit from the notes that the jury had unanimously agreed to convict Thompson and Hoo-Hing of the most serious charge on the indictment (i.e. murder). However, the jury was at an impasse about Wight. A minority of jurors believed that Wight should only be convicted of the lesser offence of manslaughter, but the remaining jurors believed he should be convicted of murder. Some of the notes alleged that the jurors in the minority were racist and unduly favored Wight because he was white.
[5] Relying on R. v. Pan, 2001 SCC 42, the trial judge declined to hold an inquiry into the allegations of racism raised in the notes. He found that the juror secrecy rule precluded him from providing these notes to the parties because the notes disclosed deliberations. The trial judge determined the notes were entirely about statements made, opinions expressed, arguments advanced, and votes cast by members of the jury in the course of their deliberations and consequently sealed them in accordance with the jury secrecy rule set out in Pan.
[6] The jury reached a verdict. The trial judge accepted this verdict and Thompson was convicted of first-degree murder and Hoo-Hing was convicted of second-degree murder. Wight, however, was convicted of manslaughter.
[7] The trial judge subsequently released written reasons explaining his decision regarding the jury notes and jury secrecy: R. v. Wight, 2022 ONSC 2950.
[8] Thompson and Hoo-Hing have appealed their convictions. The appellants now seek to lift or vary the sealing order made by the trial judge to allow appeal counsel to review the notes, copy them and use them to prepare for the appeal.
II. Position of the Parties
[9] Counsel for the appellants submit that the notes should be released to them because one of the arguments on appeal will be that there was a reasonable apprehension of bias on behalf of the jury, and in particular, a concern that several jurors were tainted by having deliberated and conferred with a juror who allegedly had racial biases.
[10] The appellants contend the challenge they face is that they can only rely on the trial judge’s summary conclusions. The appellants argue they require an opportunity to review the notes to determine whether the trial judge’s refusal to hold an inquiry was reasonable in order to address the reasonable apprehension issue.
[11] During oral argument, counsel for the appellants modified their position and submitted that they would abide by any conditions this court imposes for the dissemination of the information found in these notes, such as permitting only counsel to review the notes and not the appellants.
[12] The respondent is opposed to the motion to vary the sealing order. The respondent contends that the trial judge’s summary of the notes and his written reasons provide the appellants with enough information to advance the appeal. Moreover, the respondent argues that the trial judge explicitly told trial counsel that there was no suggestion of a dissenting juror being unduly harsh towards Thompson and Hoo-Hing because they were Black. The respondent further submits that, based on the sanctity of jury secrecy, as set out in Pan, it is not in the interests of justice to lift the sealing order on the notes disclosing the jury deliberations.
III. Analysis
[13] We are not persuaded that the appellants have shown that unsealing the notes would be of any meaningful assistance to their appeal or that the continued sealing of the notes causes them prejudice. Much of the argument advanced by the appellants on this motion drifts into the merits of the appeal by suggesting that the trial judge erred in failing to hold an inquiry and by sealing the notes. In essence, the issue on this motion is whether the appellants can advance their arguments on appeal without access to the sealed notes. In our view, they can.
[14] Counsel for Hoo-Hing has filed a factum on the appeal plainly setting out the arguments in relation to the trial judge’s handling of the juror notes and his failure to hold an inquiry. Thompson’s counsel has not yet filed a factum but will likely advance similar arguments in relation to the decision of the trial judge. Disclosing the notes does not put counsel for the appellants in a better position to advance their appeal or put the court in a better position to determine the issues raised. The appellants are already in possession of transcripts of the proceedings that took place in the absence of the jury. Those transcripts contain the submissions of trial counsel, the trial judge’s responses to those submissions, and the trial judge’s summary of the notes which was read out in open court in the presence of all the parties. Moreover, as noted above, the trial judge released detailed written reasons explaining why he declined to hold an inquiry, refused to disclose the notes and ultimately sealed them. The appellants are well equipped to challenge the reasoning of the trial judge on appeal.
[15] Accordingly, the motion to vary the sealing order of the trial judge is denied.
[16] Before leaving this issue, we stress that nothing in these reasons should be taken as commenting on the strength of any ground of appeal advanced by the appellants.
[17] The panel has determined that it should remain seized of the appeal. Accordingly, the parties should contact the appeal scheduling unit regarding the scheduling of this appeal on a date available to the panel.
“S. Coroza J.A.”
“J. George J.A.”
“L. Favreau J.A.”
1For the purposes of clarity we will refer to the parties using their surnames.