CITATION: R. v. Therrien, 2010 ONCA 81
DATE: 20100129
DOCKET: C49365
COURT OF APPEAL FOR ONTARIO
Sharpe, Simmons and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Sandra Therrien
Appellant
Paul Calarco, for the appellant
Deborah Calderwood, for the respondent
Heard: January 28, 2010
On appeal from the conviction entered on June 19, 2008 and the sentence imposed on July 24, 2008 by Justice Clair Marchand of the Superior Court of Justice, sitting with a jury.
By the court:
[1] The appellant appeals from her conviction for fraud over $5000 and seeks leave to appeal the sentence imposed of three years' imprisonment. The offence involved a fraud against the appellant’s employer.
[2] The appellant raises four issues on her conviction appeal.
1. Adverse witness ruling
[3] The Crown sought and obtained a ruling that the appellant’s daughter was an adverse witness and proceeded to cross-examine her. The appellant submits that the Crown’s application was without foundation and that the trial judge erred in the manner in which he conducted the application. We agree that the manner in which this application was handled was problematic for a variety of reasons. However, we are not persuaded that what followed gave rise to any significant prejudice to the appellant. The ensuing cross-examination consisted of no more than about 15 questions. Many of those questions were not, in fact, cross-examination and the answers given to those that were cross-examination did not materially advance the Crown's case. We do not accept the appellant’s characterization of what happened as an illegitimate manoeuvre by the Crown to discredit the appellant's daughter and to tar the appellant with the same brush.
2. Improper cross-examination by the Crown
[4] The appellant argues that the Crown's cross-examination was improper for two reasons.
[5] First, the appellant was contradicted with the statement she had made to her probation officer and no voir dire was held to assess the voluntariness or admissibility of that statement.
[6] We would not give effect to this ground of appeal. The statement in question was made to the probation officer for the purpose of preparing a pre-sentence report for another case involving the appellant. Defence trial counsel did not ask for a voir dire and did not object to the cross-examination. The questions concerning the appellant's statements to the probation officer were not controversial and the appellant did not dispute their truth. While, as conceded by the Crown, it is certainly preferable to canvass the issue of voluntariness prior to embarking on such a cross-examination, we fail to see how, in light of all the circumstances, the appellant has suffered any prejudice.
[7] Second, the appellant alleges that the trial Crown made many demeaning or sarcastic remarks during the appellant's cross-examination. Again, while taken in isolation, some of the trial Crown's remarks were unfortunate, when the cross-examination is considered in the context of this trial as a whole, we see nothing in what happened that rises to the level of having rendered the trial unfair.
3. Corbett ruling
[8] The appellant has a criminal record which includes several convictions for crimes of dishonesty. The appellant brought a Corbett application prior to testifying and her trial counsel asked that the entire record be excluded. The trial judge rejected that submission and ruled that the appellant’s criminal record was relevant to her credibility. On appeal, the appellant submits that her record should have been edited and that the last conviction for theft in 2003 should have been expunged. We disagree. The theft conviction had a direct bearing upon the honesty of the appellant and although it involved theft from an employer, the background to the conviction was not advanced before the jury.
4. Failure to vet jury observations
[9] Before the appellant testified at trial, the Crown disclosed to defence counsel the record of the appellant’s driver’s licence suspension ten years earlier. The appellant admitted in chief that she regularly drove but denied any knowledge of the suspension of her license. She was cross-examined as to her knowledge of the suspension. After this evidence had been given, the trial judge received notes from two jurors indicating that they had observed someone they thought to be the appellant driving out of the courthouse parking lot. When this was brought to the attention of counsel, defense counsel moved for a mistrial. The trial judge refused to declare a mistrial and simply thanked the jurors for their notes and proceeded with the trial. In both his opening instructions to the jury and in his charge, the trial judge gave the standard instruction that the jury were to determine the case solely on the basis of the evidence led in court.
[10] Before this court, the appellant argues that the trial judge erred by failing to conduct an inquiry to ensure that the jury remained impartial and that it would decide the case solely on the basis of the evidence presented in court.
[11] While it may have been preferable had the trial judge explored any concerns the jury might have had arising from the observations they had made, we are not persuaded that his failure to do so amounted to an error in law in the circumstances of this case. As the appellant had admitted that she regularly drove an automobile before the jury members made their observations, there was no significance to the information the jury members gleaned. Furthermore, the note did not ask for any assistance. The jurors were simply reporting their observation. In these circumstances, it was open to the trial judge to conclude that the jury members were simply acting out of an abundance of caution and that his instructions would provide an adequate safeguard.
Conclusion: cumulative effect
[12] As we have indicated, the manner in which this trial was conducted was far from a model of perfection. However, whether considered individually or cumulatively, we are simply not persuaded that any of the shortcomings we have discussed resulted in an unfair trial. We agree with the respondent Crown’s submission that the appellant faced a formidable prosecution case that clearly implicated her as having perpetrated a significant fraud upon her employer.
[13] Accordingly, the conviction appeal is dismissed.
Sentence appeal
[14] The appellant seeks leave to appeal her sentence of three years’ incarceration. We are not persuaded that the sentence was outside the range or that the trial judge committed any error of principle. This was a serious fraud on the appellant’s employer involving approximately $50,000. Given the appellant’s record for crimes of dishonesty, including one prior breach of trust theft, the fact that the appellant was on probation at the time she committed the offense in question and the devastating effect the crime had upon the victim, the sentence was not unfit.
[15] Accordingly, we grant leave to appeal sentence but dismiss the sentence appeal.
RELEASED: “GJE” Dec 29, 2010 “Robert J. Sharpe J.A.”
“Janet Simmons J.A.”
“G.J. Epstein J.A.”