Court of Appeal for Ontario

Citation: R. v. Thomas, 2010 ONCA 209

Date: 2010-03-18

Docket: C43798

Between:

Her Majesty the Queen Respondent

And

Everton Thomas Appellant

Judges: Moldaver, Simmons and Lang JJ.A.

Counsel: Brian Snell, for the appellant Roger A. Pinnock, for the respondent

Heard and endorsed: March 16, 2010 On appeal from conviction of first degree murder by Justice Roland Haines of the Superior Court of Justice dated February 3, 2005.

APPEAL BOOK ENDORSEMENT

[1] Assuming that we are entitled to revisit the principle in [Kelsey [1953 5 (SCC), [1953], 1 S.C.R. 220]](https://www.canlii.org/en/ca/scc/doc/1953/1953canlii5/1953canlii5.html), we are not persuaded that this is a proper case to do so.

[2] The appellant gave evidence and explained to the jury why he had "falsely" confessed. His explanation was not complicated and would have been readily understood by the jury. Both defence counsel and the trial judge alerted the jury to the factors arising from the evidence that affected the reliability of the confession. The trial judge directed the jury on two occasions that if they believed the appellant's testimony that he had falsely confessed or if they were left in a state of reasonable doubt in this regard, they must acquit. He also cautioned the jury that they were not restricted to simply choosing whether to accept the evidence of the prosecution or the defence and the issue was "not which of the two versions is true, but rather on the totality of the evidence, viewed as a whole, has the Crown proved beyond a reasonable doubt that [the appellant] caused the death of [the deceased]."

[3] In the circumstances of this case, we are not persuaded that anything more was required. In so concluding, we note that the reliability of the appellant's confession was the key issue before the jury and, as we have said, the jury had the appellant's explanation.

[4] While there may be cases in which the type of instruction contemplated by Osmar [(2007), 2007 ONCA 50, 217 C.C.C. (3d) 174] would be prudent, or perhaps even necessary, this is not one of them. That is not to say that it would have been improper for the trial judge to have given such an instruction in this case.

[5] Accordingly, we would not give effect to the primary ground of appeal.

[6] As for the second ground of appeal, while Crown counsel's cross-examination and jury address may have been unfortunate in isolated respects, we are not persuaded the conduct gave rise to a miscarriage of justice. In this regard, we note that competent defence counsel raised no concerns.

[7] In the result, the appeal from conviction is dismissed.