Court of Appeal for Ontario

Date: 2025-05-13
Docket: C66734
Coram: Fairburn A.C.J.O., Copeland and Pomerance JJ.A.

Between:
His Majesty the King, Respondent
and
Kathleen Thur, Appellant

Appearances:

• Kathleen Thur, appearing in person
• Margaret Bojanowska, appearing as duty counsel
• Charmaine M. Wong, for the respondent

Heard: 2025-05-05

On appeal from the convictions entered by Justice M.S. James of the Superior Court of Justice on September 24, 2018, and from the sentence imposed on February 21, 2019.

Reasons for Decision

Introduction

[1] This is an appeal from convictions for obstructing justice and uttering a forged document: Criminal Code of Canada, R.S.C. 1985, c. C-46, ss. 139(1), 368(1).

Background

[2] While volunteering as the treasurer of the Rankin Community Centre, the appellant was also the acting clerk-treasurer of the Township of North Algona-Wilberforce in Renfrew County. She eventually left her position with North Algona-Wilberforce in 2013 and obtained employment with McGarry Township near Kirkland Lake, Ontario.

[3] Not too long after she obtained her new employment, she was charged with fraud for misappropriating over $40,000 belonging to the Rankin Community Centre. She was arrested at the Township office. As reported by the mayor during his testimony, she told him and council members that the arrest related to a domestic issue and that it had “something to do with her ex.”

[4] In fact, what precipitated her arrest was the missing funds for the Rankin Community Centre. She pled guilty a few months after her arrest. However, as the trial judge found, she did not disclose the fact of the guilty plea to her employer.

[5] By January 2016, the mayor and Council of McGarry Township had gained a clearer understanding of the circumstances surrounding the charges. The appellant denied the allegations. What she did not disclose is that, despite that denial, she had already pled guilty and was set to be sentenced on January 7, 2016.

[6] The appellant asked the mayor to sign a letter of support for her trial (the “first letter”). However, unbeknownst to the mayor, the letter was used for her sentencing. There is no dispute that the mayor signed that letter on January 4, 2016, essentially acknowledging that the appellant was a good employee.

[7] The mayor testified that he received a call from the appellant’s sister a few days after what turned out to be her sentencing proceeding. The sister told him that the appellant was in custody and would not be returning to work. The mayor took immediate steps to have the appellant’s employment terminated.

[8] At the time of sentencing, a document purportedly signed by the mayor on January 5, 2016, was produced to the court (the “second letter”). The second letter was a fundamentally different letter than the first letter, which the mayor acknowledged signing on January 4, 2016.

[9] The second letter referenced the fact that the Council of McGarry Township was “fully aware that [the appellant] has pleaded guilty to a charge of fraud from a charitable institution, Rankin Cultural and Community Centre” and that if she received an intermittent sentence her job would be “secured and her employment [would] continue the same with the Township of McGarry”. The content of the second letter clearly would have supported a more favourable outcome at the sentencing proceeding.

The Trial

[10] The central issue at the trial was whether the Crown had proven beyond a reasonable doubt that the appellant forged the mayor’s signature on the second letter.

[11] This was not a complex trial. The mayor testified that he had never seen the second letter, denied signing it, and asserted that he would have never signed it. The appellant testified and claimed that the mayor signed the letter. She also suggested that the mayor was motivated to lie about having signed the letter because, in the wake of her being sentenced to a custodial disposition on the convictions arising from the misappropriation of the funds from the Rankin Community Centre, the mayor of McGarry Township came under heavy criticism for having supported the appellant.

[12] As part of its case, the defence also filed an expert opinion report authored by a forensic document examiner at the Centre of Forensic Sciences (“CFS”). The report was obtained by the Ontario Provincial Police during the investigation. At that time, it was the CFS expert’s opinion that the mayor could neither be eliminated nor identified as the author of the second letter. The defence took the view, as reinforced on a fresh evidence application on appeal, that the CFS expert’s report was exculpatory in nature, as it was incapable of excluding the mayor as the author of the signature on the second letter.

[13] The trial judge provided careful reasons for judgment. His reasons are not impugned on appeal.

[14] The trial judge reviewed the evidence of each witness and made credibility findings. Importantly, he rejected the appellant’s evidence, finding that she obfuscated and was deceptive when explaining her legal circumstances to her employer, falsely attributing it to issues with her former husband. The trial judge also observed that before her sentencing hearing, despite being advised that imprisonment was likely, she assured the mayor she would return to work the next day. Additionally, during trial, she claimed to have disclosed all her criminal convictions except for driving offences, but it was later revealed that she had a prior conviction for impaired driving.

[15] He also found her responses during cross-examination to be vague and evasive. Finally, the trial judge considered the appellant’s criminal record, including prior convictions for crimes of dishonesty, in assessing her credibility. Ultimately, he concluded that she lacked credibility entirely, dismissing her evidence as insufficient to raise a reasonable doubt.

[16] In contrast, the trial judge explained why he accepted the mayor’s credibility. The chronology of the events leading up to the alleged signing of the second letter, combined with the mayor’s immediate decision to have the appellant’s employment terminated after discovering that she had been sentenced in the wake of a guilty plea, reinforced his view that the second letter was forged. In the trial judge’s view, the only logical way to explain this sequencing of events was to accept the mayor’s suggestion that he did not sign the second letter.

[17] As for the forensic document examiner’s report, the trial judge accurately noted that it was “inconclusive” in nature and did not leave him in a state of reasonable doubt.

Fresh Evidence on Appeal

[18] Following conviction, the appellant retained another forensic document examiner who produced an initial report dated January 16, 2023, and then another one dated June 5, 2024. In short, the second document examiner opines that the second letter is “written by the same writer” as the sample reference signatures, which are purported to be those of the mayor. Following the report dated June 5, 2024, the CFS document examiner, now equipped with additional information, prepared another report. In this updated assessment, she concluded that the writer of “known signatures” on certain documents – purportedly those of the mayor – could be “identified, within the limits of practical certainty” as having signed the second letter.

[19] At the heart of this appeal is a fresh evidence application. The appellant argues that the new expert reports should be admitted, the conviction set aside, and an acquittal entered. She claims that the test for the admission of fresh evidence has been met.

[20] The admissibility of this evidence on appeal is tested against the criteria articulated in R. v. Palmer, [1980] 1 S.C.R. 759. Over time, the test has been distilled into three helpful, broad considerations: R. v. Truscott, 2007 ONCA 575, para 92. The appellant argues that she has met the criteria.

[21] First, she argues that the reports are admissible under the operative rules of evidence (the admissibility component). Second, she maintains that the evidence is sufficiently cogent in that it “could reasonably be expected to have affected the verdict” (the cogency component), and that no other reasonable verdict other than an acquittal could have resulted if the new expert opinion reports had been admitted into evidence. Third, she submits that she has a satisfactory explanation for the failure to adduce these reports at trial (the due diligence component).

[22] Concerning the due diligence component, the appellant argues that her trial counsel provided her with ineffective assistance by failing to diligently pursue another expert opinion report. She claims that if her counsel had pursued a second report, she would have known at trial of what she knows now – namely, that even the CFS expert agrees today that, “within the limits of practical certainty”, the second letter was authored by the same person whose signature appears on documents purportedly signed by the mayor.

Analysis and Disposition

[23] We agree with the appellant that the fresh evidence must be admitted, and the conviction set aside. We disagree that an acquittal is the correct remedy. Instead, for the reasons that follow, we would order a new trial.

[24] In our view, the new expert opinion reports are clearly admissible evidence. Indeed, the original report was filed without objection at trial.

[25] The reports go to the heart of the issue that had to be decided at trial: whether the trial judge was satisfied, beyond a reasonable doubt, that the second letter was a forgery. Today, both experts reach nearly the same conclusion: the second letter was signed by the same person who has previously signed multiple prior documents bearing the mayor’s signature.

[26] If these reports had been available to the trial judge, he would not have been in a position to say that the expert evidence was “inconclusive”. While we do not accept that it would necessarily be conclusive, it is no longer neutral in nature. Rather, it points toward the signature on the second letter being that of the mayor. While the issue must be examined in the broader context of all of the evidence and through a proper exploration of the expert evidence, the key point remains: the new expert evidence is the type of evidence that could, at a minimum, give rise to a reasonable doubt. Therefore, we are satisfied that it goes to the heart of a decisive issue on appeal and could reasonably be expected to have changed the result.

[27] While Crown counsel argues that the proposed fresh evidence is a red herring, asserting that the trial judge’s verdicts were based entirely upon his assessment of the evidence as a whole and the credibility of the witnesses, the circumstances have since evolved. There is now new expert evidence, which carries probative value, that may have shifted this case beyond something other than one turning upon credibility findings.

[28] Crown counsel also argues that this fresh evidence application is different than others, such as DNA cases, because handwriting analysis is a “soft science”. Whatever one may call the science around document examination, the fact remains that if these reports had been available, they would have constituted admissible evidence that was wholly supportive of the defence. While Crown counsel argues that the best evidence of whether the mayor signed the letter is his clear and unwavering testimony denying it, this does not diminish the cogency of the fresh evidence.

[29] This leaves the question of due diligence.

[30] The appellant attempts to overcome this hurdle by raising a claim of ineffective assistance of counsel. Specifically, she claims that her counsel should have pursued an independent opinion from a forensic handwriting analyst. Alternatively, she argues that her counsel should have followed up with the CFS analyst and provided her with further handwriting samples to compare the subject signature against.

[31] Crown counsel disputes the ineffectiveness claim by filing an affidavit of trial counsel, explaining the rationale for not seeking an additional expert opinion. Among other points, she disputes the appellant’s financial ability to obtain such an opinion and questions its overall utility. Trial counsel is of the view that the original CFS report was more helpful to the defence than the Crown because of its inconclusive nature.

[32] In our view, we need not resolve the claim of ineffective assistance of counsel. The due diligence inquiry is a context-specific one that must remain focused upon the importance of finality, but also the overarching interests of justice. We cannot think of a tactical reason why a second report would not have been pursued at trial. At times, compelling evidence will arise after a verdict that, while it could have been sought beforehand, raises concerns about the accuracy of the verdict, justifying its admission on appeal: R. v. Manasseri, 2016 ONCA 703, para 222. In light of the central nature of the new evidence, this is not one of those cases where the lack of due diligence alone would mandate a dismissal of the application to admit fresh evidence.

[33] The fresh evidence is admitted. The appeal is allowed. The conviction is set aside, and a new trial is ordered. We would like to express our gratitude to counsel for their able submissions and specifically acknowledge Ms. Bojanowska for the significant assistance she has provided in her capacity as duty counsel.

“Fairburn A.C.J.O.”
“J. Copeland J.A.”
“R. Pomerance J.A.”