CITATION: R. v. Thompson, 2008 ONCA 693

DATE: 20081009

DOCKET: C44085

COURT OF APPEAL FOR ONTARIO

Sharpe, Juriansz and Rouleau JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Kemar Troy Thompson

Appellant

Brian Snell for the appellant

Kimberley Crosbie for the respondent

Heard and released orally : October 7, 2008

On appeal from the judgment of Justice Ronald G. Thomas of the Superior Court of Justice dated May 30, 2005.

ENDORSEMENT

[1] The appellant appeals his conviction for manslaughter and effective sentence of 13 years. The sole issue at trial was whether the appellant was the fourth participant in a bank robbery during the course of which a bank teller was shot and killed by one of the other robbers.

Brown v. Dunn

[2] Given the overall context of the trial we do not agree there was any unfairness in the way the trial judge dealt with the defence’s cross-examination of Jones. In a statement to police, the appellant claimed that Jones had coerced him into participating in the robbery. Defence counsel in his closing address raised the issue broadly, explained why the cross examination had not seriously addressed the issue and suggested to the jury that the Crown should have raised the allegation of coercion with Jones. The appellant’s story regarding Jones went to the core of his defence – that Jones was in control of the appellant and forced him to participate in the robbery – and some instruction was appropriate.

[3] The manner in which the trial judge dealt with the matter fell within his discretion. He accurately related the positions of both counsel. He did not directly or indirectly suggest any burden on the defence, and left it to the jury to assess the evidence. In the end we see no unfairness to the appellant

Vetrovec

[4] The trial judge gave a Vetrovec warning about Jones and instructed the jury to approach his evidence with “the greatest care and caution”. While the trial judge did not recite all the reasons why the jury should exercise caution in the course of the Vetrovec instruction, he did review all the problems with Jones evidence, including his immunity agreement, in the balance of the charge. Defence counsel made no objection to this aspect of the charge. Reading the charge as a whole, we are satisfied that the jury was not left in doubt why Jones’ evidence should be approached with caution.

Corbett

[5] We see no error in the trial judge’s Corbett ruling. The defence necessarily amounted to an attack on Jones and to painting the appellant as naïve and vulnerable to being manipulated by Jones. In these circumstances the appellant’s entire criminal record was directly relevant. The trial judge did not err in concluding its exclusion would create a serious imbalance.

Sentence

[6] The appellant does not allege any error of principle but argues the sentence is unreasonably harsh. We do not agree. The appellant was an active participant in a violent robbery. He himself brandished a handgun threatening the people in the bank. He continued to brandish the gun after the bank clerk was fatally shot.

[7] Defence counsel at trial suggested a range of 10-12 years imprisonment. In our view, the 13 years imposed was not manifestly unfit for this offence.

Conclusion

[8] Accordingly the appeal from conviction is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”