COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thomson, 2025 ONCA 162[^1]

DATE: 20250303

DOCKET: COA-24-CR-0909

Simmons, George and Pomerance JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Joseph Isaac Thomson

Appellant

Paul Calarco and Michael Bartlett, for the appellant

Emily Marrocco, for the respondent

Heard: February 25, 2025

On appeal from the conviction entered on March 4, 2022, by Justice Robert F. Goldstein of the Superior Court of Justice, and the sentence imposed on August 2, 2022, sitting with a jury, with reasons reported at 2022 ONSC 4443.

REASONS FOR DECISION

[1] We dismissed this appeal at the conclusion of the oral hearing for reasons to follow. These are our reasons.

[2] Following a jury trial, the appellant was convicted of sexual assault and sentenced to nine years' imprisonment less three years credit for time served[^2]. He appeals against conviction and seeks leave to appeal sentence.

[3] At trial, the appellant did not dispute that, while homeless, he broke into a university residence for women looking for something to steal and entered the complainant's room for one minute and 44 seconds as was confirmed on a surveillance camera. However, the appellant did dispute the complainant's allegation that while in her room, he pulled down her pants and underwear and penetrated her vagina with his penis.

[4] The appellant raised three issues on appeal.

[5] The appellant’s first argument was that the trial judge erred in failing to exercise his discretion under s. 633 of the Criminal Code, R.S.C., 1985, c. C-46 to stand aside a prospective juror ultimately empanelled as juror no. 9 (“juror no.9”). When juror no. 9 was initially called forward and asked if there was any reason why he should not serve on the jury he said he did not think so but also volunteered the additional information that he had a couple of friends who had been sexually assaulted in the past.

[6] It is unnecessary in the circumstances that we address the appellant’s argument about the stand aside power. The trial judge properly screened the jury panel pursuant to s. 632 of the Code, in accordance with R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 and R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R 136. We see no error in the trial judge’s approach. The trial judge conducted a meaningful inquiry into whether juror no. 9 was biased and whether his ability to decide the case impartially would be affected by what he had disclosed. It was open to the trial judge to find, based on the response, that juror no. 9 was capable of being impartial. Before the inquiry took place, prospective jurors were instructed on the concept of bias, including unconscious bias. The trial judge reinforced these instructions when he told juror no. 9, at the end of the inquiry: “But it’s very important that you deal with and think about the bias and not allow it to affect your judging of this case”. There is no basis upon which to conclude that the appellant did not receive a fair trial before an impartial jury.

[7] Regarding the second issue, we reject the appellant’s argument that the trial judge erred in his instructions concerning reasonable doubt and reliability. The trial judge gave the jury a standard instruction as to reasonable doubt that included the following statement:

If you have a reasonable doubt about [the appellant’s] guilt arising from the evidence, the absence of evidence, or the credibility or reliability of one or more of the witnesses, then you must find him not guilty. [Emphasis added.]

[8] The trial judge also instructed the jury to consider factors relating to reliability in assessing whether and to what extent a witness’ evidence should be relied upon. We are not persuaded that the trial judge’s subsequent instruction, which focused on reasonable doubt and credibility, would have misled the jury.

[9] Finally, we reject the appellant’s argument that the verdict was unreasonable. It was open to the jury to accept the complainant’s testimony as to what took place in her room. The verdict was supported by the evidence and there is no basis for appellate intervention.

[10] On the issue of sentence, the appellant argued that the trial judge misapprehended Dr. Pallandi’s letter about the likelihood of the appellant re-offending. Again, we see no error. The trial judge was at liberty to reject Dr. Pallandi’s opinion, particularly as Dr. Pallandi offered opinions about prior break-ins that were contradicted by findings made by the judge who sentenced the appellant for breaking and entering the complainant’s residence. Given the gravity of the offence, which the trial judge characterized as a home invasion sexual assault, and the criminal antecedents of the appellant, which include 20 prior convictions for break and enter, the sentence imposed is eminently fit.

[11] Based on the foregoing reasons, we dismissed the conviction appeal, granted leave to appeal sentence but dismissed the sentence appeal.

“Janet Simmons J.A.”

“J. George J.A.”

“R. Pomerance J.A.”

[^1]: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[^2]: The appellant pleaded guilty to a charge of breaking and entering in relation to the incident forming the subject matter of the appeal prior to being charged with sexual assault. The complainant did not disclose the sexual assault until approximately 18 months after the incident occurred.