R. v. Thain, 2009 ONCA 223

CITATION: R. v. Thain, 2009 ONCA 223

DATE: 2009-03-13

DOCKET: C47602

COURT OF APPEAL FOR ONTARIO

Sharpe, Armstrong and Watt JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Christopher Thain

Appellant

Counsel:

Paula Rochman, for the appellant

Craig Harper, for the respondent

Heard: January 29, 2009

On appeal from the conviction entered by Justice Thomas M. Dunn of the Superior Court of Justice on April 19, 2007 and the sentence imposed on August 21, 2007

Sharpe J.A.:

[1] The appellant was convicted by a Superior Court judge sitting without a jury of "internet luring", contrary to s. 172.1(1)(c) of the Criminal Code. He was sentenced to nine months imprisonment. The appellant appeals his conviction and seeks leave to appeal his sentence.

FACTS

[2] Over a period of some four months in 2003, the appellant engaged in a series of sexually explicit conversations over the Internet with a male undercover police officer. These conversations began in an Internet "chat room" called "#0!!!!!!!!!!younggirlsex." The undercover officer used the name "mandy13". They continued communicating with each other through the chat room, by e-mail and by MSN exchange.

[3] In his extensive and sexually explicit conversations with mandy13, the appellant suggested she masturbate, offered her advice on how to masturbate and on other sexual matters, suggested that she might like to touch him sexually, and ultimately, after a telephone conversation with a female police officer posing as mandy13, he arranged to meet her for a planned sexual encounter. The appellant was arrested on November 8, 2003 as he approached the female officer at the pre-arranged spot on a subway platform.

[4] The indictment charged that the appellant did

within the four month period ending on or about the 8th day of November, 2003…did, using a computer, communicate with a person whom the accused believed was under the age of 14 years for the purpose of facilitating the commission of an offence under section 152 of the Criminal Code of Canada

contrary to section 172.1(c) of the Criminal Code of Canada.

[5] At the end-date of the offence as specified in the indictment, s. 172.1(1)(c) provided as follows:

172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with

(c) a person who is, or who the accused believes is, under the age of fourteen years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 281 with respect to that person.

[6] Section 152 made it an offence to invite, counsel or incite the young person "to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years". These provisions have since been amended to increase the age requirement to 16: S.C. 2008, c. 6, s. 54.

[7] Subsections 172.1(3) and (4) deal with the accused's knowledge of the age of the young person:

172.1(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

[8] The central issue at trial was whether the appellant believed that he was communicating with an adult rather than a child under the age of 14 and whether he had taken reasonable steps to ascertain the age of the person.

[9] The appellant testified that he believed from the start that mandy13 was likely an adult male and that he considered their conversations to be a role-playing game where the object was to keep the game going as long as possible. The appellant denied having any sexual interest in men or in young girls.

[10] He explained that he was familiar with sexually explicit chat rooms and role-playing games and that there were a number of features of his conversations with mandy13 that led him to believe that she was in fact an adult. Among these were:

• When he first conversed with mandy13 he could see that she was simultaneously logged in to a child pornography site, a fact that in his experience indicated that she was likely an adult;
• Mandy13 demonstrated a sophisticated familiarity with chat rooms unlikely to be possessed by a child who professed to be new to them;
• Various answers and information she gave to him regarding matters such as clothing size, experiences at school, and her brother's age, indicated to him that he was likely engaged in a conversation with an adult;
• A picture she sent him purporting to be of her was in an outdated format indicating that it had been taken several years ago.

[11] The appellant eventually arranged to meet mandy13 for a sexual encounter after he spoke by telephone to a female police officer posing as mandy13. The appellant testified that the officer's voice sounded abnormally high, like someone on helium, and that the voice was not believable as that of a 13 year old. The conversation led him to believe that he may have been dealing with an adult female or perhaps an adult couple.

[12] The telephone conversation was taped by the police but the tape recording was lost and not available at trial. The record of an earlier MSN conversation between the appellant and mandy13 was also lost. The appellant alleged that the MSN conversation contained exculpatory material.

[13] The appellant was extensively and effectively cross-examined on what Crown counsel suggested to be the implausible and unlikely aspects of his evidence, in particular:

• Why would the appellant maintain this exchange for several months if he believed mandy13 to be an adult male?
• What satisfaction could he derive from such role-playing with another man if he had no sexual interest in men or young girls?
• Why would he arrange to meet mandy13 if he had no sexual interest in young girls?
• Why did the appellant reveal true details about his own identity if this were really a role-playing exercise?

TRIAL JUDGE'S REASONS

[14] After a six day trial, the trial judge convicted the appellant. The trial judge found that in the first conversation, the appellant had asked mandy13 when she would be 14 and then proceeded immediately to explicit sexual talk. He concluded that on a "plain and literal reading of the first chat", the appellant had suggested to a 13 year old girl that she masturbate and provided her with explicit instructions on how to do so. The trial judge found that the appellant's evidence that he believed he was dealing with an adult "defie[d] logic and common sense" and that he had not taken reasonable steps to ascertain the age of the person he was dealing with before he invited her to masturbate.

[15] The trial judge concluded as follows with respect to this first exchange:

I believe the evidence supports the position argued by the Crown in that at the very least that the accused has committed the offence in question on the first communication with "Mandy". The presumption in s. 172.1 (3) comes into play and as well the accused did not take reasonable steps to ascertain the age of the person.

Having so concluded, how does this conclusion impact upon the balance of the evidence and the continued communication between the accused and "Mandy"?

The accused's credibility must be assessed bearing in mind that his explanation comes long after disclosure was available to him and having regard to the totality of the evidence. In the accused case [sic] I am not convinced that his evidence has not been influenced by his desire to extricate himself his situation [sic]. While any witness is presumed to tell the truth such a presumption can be displaced by inconsistencies, contradictions and the evidence as a whole.

The accused as a witness appeared well educated and well spoken. He obviously does not lack intelligence. His testimony was in my opinion appeared [sic] glib and well rehearsed. It lacked internal and external common sense. He was at times self-contradicting and evasive in cross-examination.

Did there come a time when it can be said the nature of the conversation caused the accused to believe he was dealing with an adult? He of course claims that this was so from the beginning, a claim I find ludicrous in the circumstances. [Emphasis added.]

[16] The trial judge then considered the balance of the evidence regarding the subsequent internet conversations, the telephone call and the arranged meeting, and the significance of the lost evidence. The trial judge concluded that the lost evidence of the MSN chat was not significant, but that the loss of the recording of the telephone conversation was problematic. He concluded that by the time the appellant had this telephone conversation, "he may well have had reason to believe that the person he was dealing with was an adult." However, the trial judge also concluded that he did not otherwise believe the appellant's evidence regarding his belief of mandy13's age, nor did it give rise to a reasonable doubt in his mind. He concluded that the Crown had proved the appellant's guilt "up to and including" the time of the telephone conversation beyond a reasonable doubt, but that the Crown had not proven the appellant's guilt for the time following the telephone conversation.

ISSUE

[17] The central issue on this appeal is whether the trial judge erred in law in relation to his assessment of the appellant's credibility. In particular, the appellant submits that the trial judge erred by stating that the appellant's explanation had to be assessed in light of the fact that it came long after the appellant had received disclosure.

ANALYSIS

[18] For ease of reference, I repeat here the impugned passage from the trial judge's reasons:

The accused's credibility must be assessed bearing in mind that his explanation comes long after disclosure was available to him and having regard to the totality of the evidence. In the accused case [sic] I am not convinced that his evidence has not been influenced by his desire to extricate himself the situation [sic]. While any witnesses is presumed to tell the truth such a presumption can be displaced by inconsistencies, contradictions and the evidence as a whole.

[19] In my respectful view, each of the three sentences in this passage contains a significant legal error.

(1) Disclosure

[20] It is wrong to state 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".

[21] We were not referred to, nor am I aware of, any case dealing with a trial judge's comment on the accused's review or use of disclosure when assessing the accused's credibility. The authorities on the relationship between disclosure and credibility deal with jury trials where in cross-examination or closing argument Crown counsel suggests that an accused has tailored or fabricated his or her evidence in light of disclosure of the Crown's case. In my view, the principles that emerge from those authorities are instructive and applicable to this case.

[22] In R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.), the Crown had argued in closing argument before the jury that the accused had concocted his evidence after receiving disclosure. The Crown had led no evidence to support this allegation and the accused had been given no opportunity to rebut it. Weiler J.A. held, at p. 625, that the comments by the Crown were "improper", "unfair" and prejudicial:

In my view, Crown counsel's submissions were improper and unfair in that the Crown's concoction theory was raised for the first time in his closing address. The appellant had no opportunity to respond to the Crown's improper suggestion that he had tailored his evidence after receiving disclosure and the Crown's editorial comments as to when the defence of self-defence was put forward. Moreover, the comments made a trap of the appellant's constitutional right to disclosure and suggested that his evidence was inherently suspect because the defence was disclosed only in the course of the appellant's testimony.

[23] In R. v. White (1999), 1999 CanLII 3695 (ON CA), 42 O.R. (3d) 760 (C.A.), the Crown's cross-examination was calculated to suggest to the jury that the appellant's testimony was suspect because he had received disclosure, knew the Crown's case and himself had not been asked to reveal his case until he testified at trial. Doherty J.A. held that questions posed by Crown counsel were improper and potentially prejudicial and stated, at pp. 767-768:

As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons. [Citation omitted.]

[24] On the other hand, as White recognized at p. 768, while questions concerning disclosure are "always potentially dangerous", they are not always improper. Where, for example, the accused has suggested that records in the Crown disclosure confirm aspects of his testimony, it may be proper for the Crown to cross-examine on the fact that the accused received and reviewed the disclosure prior to trial so that his or her testimony can be viewed in that light: White at p. 768; see also R. v. Cavan and Scott (1999), 1999 CanLII 9309 (ON CA), 139 C.C.C. (3d) 449 (Ont. C.A.); R. v. Kokotailo, 2008 BCCA 168, 232 C.C.C. (3d) 279 (B.C.C.A.). Similarly, it has been held that the Crown may refer to the accused's receipt of disclosure in order to undermine a defence of alibi – particularly an alibi with no particulars – to suggest that the accused has tailored his evidence to fit the disclosure: R. v. Khan (1998), 1998 CanLII 15007 (BC CA), 126 C.C.C. (3d) 523 (B.C.C.A.); R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), 77 O.R. (3d) 81 (C.A.); R. v. Simon (2001), 2001 CanLII 11996 (QC CA), 154 C.C.C. (3d) 562 (Que. C.A.).

[25] In my view, in the circumstances here, the fact that the appellant received disclosure could not properly or fairly be said to bear upon the assessment of his credibility. Moreover, at no point did the Crown suggest or put to the appellant that he had fabricated or concocted his evidence in the light of the Crown disclosure. Indeed, Crown counsel expressly distanced himself from any suggestion that the appellant's evidence was the product of recent fabrication. When the appellant's counsel attempted to lead a prior consistent statement in re-examination, Crown counsel objected and confirmed that he was not alleging recent fabrication.

[26] In his own evidence, the appellant referred to the disclosure, but only in the sense that he recognized that disclosure reflected the case the Crown would lead at trial. Much of this evidence contained technical and jargon-laden language that had to be explained to the trial judge. The appellant indicated at a few points that he had reviewed the disclosure prior to testifying when offering his explanation of what the computer logs and transcripts meant. As I read his evidence, however, he did not attempt to bolster or support his version by reference to the disclosure in a manner that would open him to cross-examination by the Crown that he had done so.

[27] In the end, this was simply a case, like all others, where the Crown disclosed its case to the accused and where the accused knew, well before the trial, the nature of the evidence the Crown would rely on to prove its case.

[28] The suggestion that disclosure had a bearing on the appellant's credibility did not surface until the trial judge delivered his reasons, long after the appellant could be confronted with the suggestion or be afforded an opportunity to refute it and long after the appellant's counsel could be given the opportunity to address the point in argument.

[29] In my view, the fact that the accused enjoyed his constitutional right to disclosure had no bearing on his credibility in this case 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.

(2) Burden of proof

[30] By stating "I am not convinced that his evidence has not been influenced by his desire to extricate himself the situation", the trial judge appears to me to have shifted the burden of proof from the Crown to the appellant. The appellant was entitled to the presumption of innocence and to the benefit of reasonable doubt. It was not for the appellant to "convince" the trial judge that his evidence was to be believed or that that he was not simply spinning a tale to extricate himself.

[31] These are such well-established principles that one must assume they were known by the trial judge, yet we cannot ignore his use of explicit language indicating that he approached the case in a manner that flies in the face of those basic principles.

(3) Witnesses are not presumed to be truthful

[32] Witnesses are not "presumed to tell the truth". The evidence of each witness is to be assessed in the light of the totality of the evidence without any presumptions except the general and over-riding presumption of innocence. Perhaps a generous reading of the final sentence in the impugned passage could be that, as it was applied to the evidence of the accused, it somehow resurrected the presumption of innocence apparently ignored in the preceding sentence. However, as we are dealing here with basic and fundamental rights essential to a fair trial, I do not think it appropriate to salvage what appears to me to be a clear error with a strained and generous reading of this final sentence.

What is the effect of the errors?

[33] The respondent submits that as the impugned passage is found at a point in the trial judge's reasons where he has already concluded that the Crown had proved its case on the basis of the very words of appellant's first conversation with "mandy13", the passage does not infect that finding and applies only to what follows it. The respondent also submits that, when read as a whole, the trial judge's reasons provide ample explanation for his adverse credibility findings with respect to the first conversation and that those findings are sufficient to sustain the conviction.

[34] I do not agree that the appellant could be convicted in relation to the first conversation simply by looking at the words he exchanged with mandy13. The appellant offered the explanation that he believed that he was engaged in a role-playing game with an adult right from the start, and he testified that this belief was fortified by six facts:

1. the chat-room was designated as adult-only;
2. his observation before saying anything to mandy13 that she was logged into a pornographic website unlikely to be frequented by a child;
3. when he asked her about her age, she stated that she was 13 but added "lol", slang for "laugh out loud", suggesting a joke;
4. mandy13 used what he regarded as a joke e-mail address
5. mandy13 purported not to have a photo available;
6. mandy13 was familiar with a "blush" command, causing his screen to turn pink, despite claiming to be new to the chat room.

The trial judge could not convict the appellant without rejecting his evidence and the explanation that he offered in relation to that first conversation.

[35] The respondent's argument places undue emphasis on the manner or order in which the trial judge constructed his reasons and I would not parse his reasons in the manner suggested by the respondent. It would be unsafe to assume that the trial judge's explanation of his approach to assessing the appellant's evidence only applied to what followed it and dangerous to assume that his credibility findings can be neatly divided into discrete portions in order to immunize one portion from the errors contained in another. I find it difficult to see how or why the trial judge would or could take one approach to the assessment of the appellant's credibility in relation to what happened after the first incident but isolate the first incident and apply a different approach to it.

[36] This was not, as the appellant's counsel put it, "an all or nothing case" where the trial judge had to accept all or none of the appellant's defence. However, the appellant essentially told one consistent story, namely, that at all times, he believed "mandy13" to be an adult playing a role. On their face, the trial judge's reasons suggest that he disbelieved all or part of the appellant's explanation because of the fact that the appellant had obtained disclosure, or because the appellant had not "convinced" him that he was not attempting to extricate himself. That negative assessment, based upon either or both errors of law, was bound to infect his assessment of the explanation that the appellant offered in relation to the first exchange as well.

[37] I recognize that by virtue of 172.1(4), a belief that the person is 14 years or older must be supported by reasonable steps to ascertain the person's age. The trial judge made a finding that even if the appellant believed mandy13 to be 14 years or older, he had failed to take reasonable steps to ascertain her age on the first conversation. I am not persuaded, however, that this finding can be isolated from the errors I have identified with respect to the assessment of the appellant's credibility. While no doubt s. 172.1(4) introduces an objective element, the reasonableness of the steps taken to ascertain the age of the person must be assessed in context – here the unusual context of internet chat-rooms. The appellant pointed to six different facts which led him to believe that mandy13 was an adult which arose in relation to the first conversation. He asserted that by ascertaining those facts, he did take reasonable steps. These six reasons 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 operate. Much of that evidence came from the appellant and assessing the reasonableness of the steps necessarily involved the trial judge's assessment of the appellant's credibility. Simply put, the trial judge's negative credibility assessment, fuelled by his concern that the "explanation comes long after disclosure was available" to the appellant and that the appellant had not "convinced" him "that his evidence has not been influenced by his desire to extricate himself his situation" was bound to affect the trial judge's assessment of the reasonableness of the steps the appellant claimed he took.

[38] I do not agree with the respondent's submission that this is a case for the application of the curative proviso, s. 686 (1)(b)(iii). The appellant was entitled to have his credibility fairly assessed without being trapped by the exercise of his constitutional rights and, in my respectful view, he was denied that right. It is not certain that the trial judge would have still disbelieved the evidence of the appellant had he not committed the legal errors that he did in assessing the appellant's credibility.

CONCLUSION

[39] Accordingly, I would allow the appeal, set aside the conviction and order a new trial. In view of this conclusion, it is unnecessary for me to deal with the sentence appeal.

"Robert J. Sharpe J.A."

"I agree R.P. Armstrong J.A."

"I agree David Watt J.A."

RELEASED: March 13, 2009