ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DAVID JOHN THORNTON
Appellant
Harutyun Apel, for the Crown, Respondent
David Thornton, in person, Appellant
HEARD: October 29, 2014
REASONS FOR JUDGMENT
GRAY J.
REASONS FOR JUDGMENT
1On August 6, 2013, Mr. Thornton was convicted of assault and breach of probation. The conviction for breach of probation was based on the same facts as for the assault. He was placed on probation for 36 months, subject to a number of conditions. It is not suggested that he has not abided by the conditions.
2The complainants were young girls in elementary school. The trial judge found that Mr. Thornton touched one of them on the wrist.
3One of the grounds of appeal is that counsel appointed pursuant to section 486.3(1) of the Criminal Code, to cross-examine the young complainants, did not live up to his obligations to Mr. Thornton in that he failed to cross-examine the complainants on matters that Mr. Thornton instructed him to pursue. For the reasons that follow, I will allow the appeal on that ground.
4Ordinarily, this would give rise to a new trial. However, in the particular circumstances of this case I will substitute, for the sentence imposed by the trial judge, a conditional discharge pursuant to section 730(1) of the Code, and subject to probation for the period from August 6, 2013 to the date of the release of my decision, subject to the same terms of probation fixed by the trial judge. Since it is not contended that Mr. Thornton has not lived up to the conditions, he is deemed to be discharged as of the date of release of my decision.
Background
Background
5While the trial took place over several days, the relevant facts, as far as the appeal is concerned, are not overly complicated.
6Mr. Thornton is now 73 years old. He is the founder of an organization called Crime Busters Now, which he describes as an organization that investigates and actively opposes pyramid/Ponzi schemes, charity scams and other forms of fraud. He spreads his message through presentations in print and via telecommunications media. He travels around warning citizens, including students, against being caught up in the scammers’ webs of deceit. He claims to have been successful in exposing a number of perpetrators of fraudulent schemes.
7Mr. Thornton says he was described at his bail hearing as paranoid, schizophrenic and delusional. Some may think he goes overboard in his various campaigns.
8The incident that gave rise to the current charges against Mr. Thornton occurred on June 17, 2010. He was in front of the Oakville Trafalgar Secondary School in Oakville and had been speaking to a group of students. At some point, he engaged in conversation with two young female students. It turned out they were not secondary school students; indeed they were quite young and in elementary school.
9It is not in dispute that Mr. Thornton attempted to engage these young girls in the same way he dealt with virtually everyone else. That is, he tried to show them literature and advise them as to the dangers of perpetrators of fraudulent schemes. It is at that point that the evidence differs.
10The young girls testified that they were not particularly interested in speaking to Mr. Thornton, but they did so because he was insistent. It was ultimately alleged that he touched one of them without her consent. The young girl who alleged that she was touched testified that Mr. Thornton attempted to reach for her wrist, but she pulled it away and as a result Mr. Thornton very briefly touched her on her wrist. The other girl testified that Mr. Thornton grabbed the wrist rather than just touching it. For his part, Mr. Thornton denied touching either girl in any way. The trial judge ultimately preferred the evidence of the girl who said she was touched on her wrist.
11During, or perhaps towards the end of this interaction, a vice-principal of the secondary school observed what was going on and approached Mr. Thornton and the girls. Mr. Thornton’s version was that the conversation had essentially wrapped up, and the girls were in the process of leaving. He said the vice-principal spoke somewhat harshly to him about what he was doing, and the girls left. According to the vice-principal the conversation broke up because she approached. In any event, the conversation did not continue after the vice-principal approached.
12For some time thereafter nothing happened. The girls went home to their respective parents and said nothing about what had occurred. A few days later, one of them told the principal at the elementary school what had happened. The police were called and the girls were interviewed. Mr. Thornton was charged.
13Mr. Thornton was arraigned on January 10, 2012. Prior to the commencement of trial, Robert Brooks was appointed by the court, pursuant to section 486.3(1) of the Criminal Code to cross-examine the complainants. On the argument of the appeal, it was confirmed by counsel for the Crown that Mr. Thornton had no input into the identity of counsel who was appointed.
14It is clear from the record that Mr. Thornton and Mr. Brooks consulted before commencement of the trial.
15Both of the young girls testified. Mr. Brooks cross-examined both of them.
16The first young girl to testify was the one who claimed Mr. Thornton had touched her. With respect to the touching, her evidence-in-chief was as follows:
Q. Sorry, let me finish the questions first. What did you see him do?
A. He reached his arm out and like, my wrist was right where he was reaching for and he said, “No, stay” because we were trying to leave.
Q. Did he actually make physical contact with your wrist? Did…
A. He…
Q. …he actually touch you?
A. Yes.
Q. And what part of his body, touched what part of your wrist?
A. His hand touched my wrist for a quick second until I pulled away.
17On cross-examination, she confirmed this evidence, as follows:
Q. Now, I – you recall when you testified here early today, do you recall saying that he tried something to the effect – “He tried to grab my wrist for a quick second.” Do you recall saying that?
A. Yes.
Q. Okay. And do you recall saying that his hand briefly touched your wrist?
A. Yes.
Q. All right. And if I was to suggest that that’s the limit of any physical contact that you had with him, would you agree with that?
A. That is all he did was briefly touch my wrist.
Q. All right. He didn’t push you?
A. No.
Q. He didn’t drag you anywhere?
A. No.
Q. He didn’t threaten you?
A. No.
Q. He was trying to show you some photographs, correct?
A. Yes.
18Before the cross-examination commenced, Mr. Brooks signalled that there may be issues between himself and Mr. Thornton as to what questions he should ask. In the transcript, the following appears:
(continues exactly as in the judgment)
Gray J.
Released: November 18, 2014
