WARNING
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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
CITATION: R. v. Thomas, 2010 ONCA 662
DATE: 20101008
DOCKET: C49899
COURT OF APPEAL FOR ONTARIO
Weiler, MacPherson and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Lorriel Thomas
Appellant
Mark Halfyard, for the appellant
Brian G. Puddington, for the respondent
Heard and released orally: October 6, 2010
On appeal from the conviction entered on July 4, 2008, and the sentence imposed on September 3, 2008, by Justice John R. McIsaac of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
[1] The appellant was convicted, following a trial before McIsaac J. and a jury, of one count of sexual assault under s. 271 of the Criminal Code and three counts of various drug offences under the Controlled Drugs and Substances Act. He appeals these convictions. He also appeals the three-year custodial sentence he received for these offences.
[2] On his conviction appeal, the appellant’s first ground of appeal is that the trial judge improperly denied his application to sever the Criminal Code and CDSA offences, which may have resulted in improper propensity reasoning by the jury. In particular, the appellant contends that the trial judge did not give sufficient weight to the appellant’s stated intention of testifying on the Criminal Code charge but probably not testifying on the CDSA charges.
[3] We do not accept this submission. Although the trial judge made his ruling before the Supreme Court of Canada delivered its most recent decision relating to severance of counts in an indictment, R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, in our view his analysis was consistent with the framework set out in Last.
[4] The trial judge found that there was a close nexus between the event (in a period of less than 24 hours) grounding the Criminal Code and CDSA charges. He did not regard the joint trial of the four offences as leading to undue complexity. He was concerned that a young, vulnerable complainant (on the sexual assault charge) testify, if possible, only once. He also specifically addressed potential prejudice to the appellant. In all of this, in our view, the trial judge’s identification and balancing of the relevant factors was appropriate and in line with the existing case law and, in an anticipatory sense, with Last. There is a high degree of deference to a trial judge’s ruling in this domain and the trial judge is entitled to that deference in this case: See Last and R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333. Finally, we note that the appellant makes no objection to the trial judge’s charge to the jury on the issue of the danger of cross-pollination on credibility assessments and propensity reasoning.
[5] The appellant’s second ground of appeal is that the trial judge permitted improper confidential informer hearsay evidence to be admitted and that he compounded this mistake by referring to it in his jury charge. The information about which the appellant was concerned was information that a confidential source had provided to the police that established a link between the appellant, his car and a house in Barrie that the police were investigating concerning illegal drugs.
[6] We disagree. To start, we doubt that the testimony of the two police officers of concern to the appellant was, as they expressed it, even hearsay. In any event, that information came out first hand from the testimony of the complainant (before the police officers’ testimony) and the appellant himself (in his later testimony). In short, there was no mystery about the possible connection between the appellant and the house.
[7] Turning to the jury charge, in light of the trial judge’s earlier warnings to counsel about this evidence, it is unfortunate that he appears to have breached his own warning in his jury charge by referring to the appellant as “a target” of the investigation. That said, we do not believe that the trial judge’s use of the word “target” constitutes reversible error. The appellant did testify on the drug charges and explained why his van had been seen at the house on a number of occasions, namely, that he left it there when he came into Barrie to party. He also testified that the van had been parked there on the two nights prior to the day in question. Moreover, counsel for the Crown acknowledged that, while she did not use the word “target” in her address to the jury, that was the inference she sought to have the jury draw.
[8] On the sentence appeal, the appellant submits that the trial judge did not properly credit pre-trial custody – namely, 287 days in custody that the appellant had “banked” from a second set of charges that arose after the charges in this case.
[9] We do not accept this submission. We agree with the trial judge that “there is absolutely no explanation... to explain why [the later charges] only attracted credit for 60 days pre-sentence custody.” Accordingly, there is no proven link between any of the 287 days and the charges in this case.
[10] The appeal is dismissed.
“K. M. Weiler J.A.”
“J. C. MacPherson J.A.”
“Rob P. Armstrong J.A.”