W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

CITATION: R. v. Thai, 2007 ONCA 240

DATE: 20070402

DOCKET: C43331

COURT OF APPEAL FOR ONTARIO

RE:

HEN HAI THAI (Appellant) and

HER MAJESTY THE QUEEN (Respondent)

BEFORE:

SHARPE, SIMMONS and CRONK JJ.A.

COUNSEL:

Irwin Koziebrocki

for the appellant

Amanda Rubaszek and Michelle Campbell

for the respondent

HEARD:

March 23, 2007

On appeal from convictions entered by Justice N. Borkovich of the Superior Court of Justice, sitting with a jury, on November 30, 2004 and the sentence imposed on February 4, 2005.

E N D O R S E M E N T

[1] Following a jury trial before Borkovich J., the appellant was convicted of one count of conspiracy to break and enter dwelling houses and of two counts of assault with intent to steal. He was sentenced to 14 years imprisonment in addition to one year of credit for time served on the conspiracy count and to 10 years imprisonment concurrent on each of the assault with intent to steal charges. Pursuant to s. 743.6(1) of the Criminal Code, the trial judge ordered that the appellant would not be eligible for parole until he has served one half of his sentence. The appellant raises two grounds of appeal against conviction and seeks leave to appeal sentence.

The Conviction Appeal

i) The Vetrovec[^1] Instruction

[2] We do not accept the appellant’s submissions concerning the adequacy of the trial judge’s Vetrovec instruction in relation to K. D. In a preceding instruction concerning assessing the credibility of witnesses generally, the trial judge alerted the jury to the need to consider a witness’s potential interest in the outcome of the case and of “the distressing but real possibility” that a witness could fabricate evidence for personal reasons. Subsequently, within the body of the Vetrovec instruction, the trial judge twice referred to “the circumstances [in] which [D.] testified”. In addition, we note that counsel for the appellant confined his cross-examination of D. to the plea bargain issue. In these circumstances, it could not have escaped the jury’s attention that one of the concerns in relation to D.’s evidence was the possibility that he implicated the appellant in order to obtain favourable treatment for himself.

[3] Further, as part of the Vetrovec caution, the trial judge told the jury explicitly that D. and the other unsavoury witness, D.R., had both acknowledged that they engage in robberies more or less as an occupation. In our view, taken as a whole, the trial judge’s instructions were adequate to alert the jury to the reasons why special scrutiny of D.’s evidence was necessary.

[4] On our review of the record, there was at least some evidence at trial capable of supporting D.’s evidence. For example, D.R. testified that the appellant told him that he (the appellant) sent Mitch Orra to British Columbia because Orra was being investigated and the appellant was concerned that Orra might say something about him. Orra was one of the individuals D. implicated in the Wood Road home invasion. Further, D.R. indicated he had gotten to know D., Orra and some of the other alleged participants in the Wood Road incident through the appellant. In addition, there was some evidence confirming a significant volume of telephone traffic between D. and the appellant in 2002.

[5] Given this evidence, we conclude that the trial judge did not err by telling the jury that it was for them to determine whether there was any confirmatory evidence. Moreover, we conclude that the trial judge’s statement to the jury that, in his view, there was no other evidence to confirm D.’s evidence inured to the appellant’s benefit.

[6] In our view, this is not one of those exceptional cases in which we should hold that the trial judge’s exercise of discretion in crafting the form of Vetrovec instruction was unreasonable. Read as a whole, the caution that was given in this case was quite strong. The trial judge told the jury that common sense indicated there was good reason to examine the unsavoury witnesses’ evidence “with the greatest care and caution.” [Emphasis added.] He also said, “You should look for some confirmation of their evidence from somebody or something else other than what each of them has to say before you rely upon their testimony….” [Emphasis added.]

[7] Further, as we have said, on our review of the record, there was some evidence capable of supporting D.’s testimony. Significantly, defence counsel at trial did not object to the form of instruction that was given. While we agree that the trial judge could have cautioned the jury in stronger terms, we are not persuaded that he committed reversible error by instructing the jury as he did.

[8] We would not give effect to this ground of appeal.

ii) The Trial Judge’s Review of the Evidence

[9] While we agree that the trial judge could have summarized the evidence relating to the defence position at trial more thoroughly, this case turned essentially on credibility and the trial judge’s instructions set out the essence of the appellant’s position, namely that he denied any involvement in a conspiracy and in the incidents in question. Notably, defence counsel at trial did not raise the objection that is being raised on appeal. In all the circumstances, we would not give effect to this ground of appeal.

[10] The conviction appeal is therefore dismissed.

The Sentence Appeal

[11] The Crown concedes and we agree that the trial judge erred in principle by finding that the appellant’s testimony at trial was an aggravating factor on sentencing, that the appellant was not amenable to rehabilitation as a result and therefore that the objectives of denunciation and deterrence required delaying the appellant’s parole eligibility. In our view, the trial judge also erred in failing to give any weight to the appellant’s status as a first offender. Finally, while we agree that the appellant’s role in the offences for which he was convicted justified a significantly higher sentence than the sentences given to the other participants, taking account of the foregoing factors, in our view, the disparity in the sentences imposed was too great.

[12] In all of the circumstances, leave to appeal sentence is granted, the sentence imposed by the trial judge is set aside and a sentence of ten years imprisonment in addition to one year time served on the conspiracy count and eight years concurrent on each of the assault with intent to steal counts is substituted. We make no order under s. 743.6(1) of the Criminal Code.

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”

“E.A. Cronk J.A.”

[^1]: R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811.