Regina v. MacDonald et al. [Indexed as: R. v. MacDonald]

49 O.R. (3d) 417

[2000] O.J. No. 2606

Docket Nos. C27612 and C27579

Court of Appeal for Ontario

Laskin, Moldaver and MacPherson JJ.A.

July 13, 2000

Criminal law -- Evidence -- Videotaped re-enactment -- Accused charged with offences arising out of failed police takedown -- Trial judge erring in admitting videotaped re- enactment of takedown into evidence -- Video not accurately representing undisputed facts -- Video having little or no probative value and highly prejudicial to accused.

Criminal law -- Procedure -- Corbett application regarding accused's criminal record -- Timing of ruling -- Trial judge erring in refusing to rule on Corbett application either at end of Crown's case or during accused's examination-in-chief -- Accused not testifying about criminal record in-chief as he was unaware what portion of record would be ruled admissible -- Trial judge's decision regarding timing of ruling amounting to serious error -- Jury may have made adverse finding regarding accused's credibility as result of failure to disclose record during examination-in-chief -- New trial ordered.

Criminal law -- Trial -- Exhortation to jury -- Jury not deadlocked or in need of assistance -- Trial judge delivering exhortation to jury and giving them deadline for reaching verdict on all counts -- Exhortation unnecessary -- Trial judge should not have imposed deadline on jury's deliberations -- Exhortation may have coerced jury or interfered with their right to deliberate free of extraneous pressures -- New trial ordered.

On June 20, 1995, the accused M was a fugitive from justice. He and his co-accused V were the targets of a police "takedown" which did not go smoothly. As a result, M was charged with two counts of aggravated assault and one count of dangerous driving, and V was charged with possession of a restricted weapon, possession of a weapon for a purpose dangerous to the public peace and assault with a weapon.

Twenty months after the attempted takedown, the police made a video in which they attempted to reconstruct and re-enact the takedown. The finished product reflected the recollections of four police officers. Defence counsel objected to the admissibility of the video at trial on the ground that it was more prejudicial than probative. The trial judge ruled that the video was admissible. The Crown played the video twice during the examination-in-chief of one of the police officers.

After the Crown completed its case in-chief, counsel for M brought a Corbett application to have weapons convictions edited from his record. The trial judge refused to entertain the Corbett application at that juncture. He instructed defence counsel to renew it after M testified in chief. Defence counsel asked that a ruling be made before the completion of M's evidence in-chief so that he could lead the admissible portions of the record in-chief. Otherwise, in assessing M's credibility, the jury might be left with the erroneous impression that he was trying to hide his record from him. The trial judge stated that he was not about to reconsider his ruling on the timing of the application. Accordingly, defence counsel made no mention of M's record in examination in-chief. It was not until Crown counsel had partially completed his cross-examination of M that a final ruling on the Corbett application was given. The trial judge ruled that the entire record was admissible and Crown c ounsel proceeded to lead it in cross-examination.

The jury commenced their deliberations at 11:07 a.m. on June 3, 1997. They continued deliberating after dinner until 9:00 p.m. They resumed their deliberations at 9:00 a.m. on June 4. At 12:37 p.m. on that day, the trial judge called the jury into court and inquired whether they were making progress. The jury foreman stated that they were making progress and that they had reached verdicts in some of the counts. The trial judge then stated, "I can't let this go too much further . . . I am going to advise you at this time, you will not be spending another night in a hotel. So there is, in my mind at least, a deadline, although it is not quite firm." At 3:48 p.m. the jury returned with verdicts on all counts. M was found guilty of aggravated assault, assault and dangerous driving. V was found guilty of possession of a restricted weapon and possession of a weapon for a purpose dangerous to the public peace. Both accused appealed.

Held, the appeal should be allowed.

The trial judge's exhortation to the jury suffered from two serious defects. First, it was unnecessary. The jury had not signalled that they needed assistance, let alone that they were deadlocked. The jury appeared to be functioning smoothly and properly. Second, and fundamentally, the trial judge imposed a deadline on the jury's deliberations. A trial judge should not impose a deadline. There was a reasonable possibility that the trial judge's exhortation either coerced the jury or interfered with their right to deliberate free of extraneous pressures. On this ground alone, both accused were entitled to a new trial.

The admission of the videotaped re-enactment of the takedown was a reversible error. A serious concern with videotaped re- enactments, particularly those created without the participation of the accused, is their potential to unfairly influence the jury's decision-making. Because a video re- enactment has an immediate visual impact, jurors may be induced to give it more weight than it deserves and, correspondingly, to discount less compelling or less vivid evidence which is nonetheless more probative of the facts in dispute. Moreover, usually only the Crown has the resources to produce a video and, thus, in many cases, the re-enactment will be an extra witness for the state. Despite these concerns, it would be unwise to lay down rigid rules governing the admissibility of video re-enactments. The preferable approach recognizes the dangers of video re-enactments but adopts a case-by-case analysis. As with the admissibility of other kinds of evidence, the overriding principle should be whether the prejudicial effect of the video re-enactment outweighs its probative value. If it does, the video re-enactment should not be admitted. In balancing the prejudicial and probative value of a video re-enactment, trial judges should at least consider the video's relevance, its accuracy, its fairness and whether what it portrays can be verified under oath.

In this case, the video was relevant because it sought to portray the incident that gave rise to the charges against the accused. A police officer testified under oath about the video and explained it to the jury. However, the trial judge erred in admitting the video for two main reasons: he failed to appreciate that its many inaccuracies undermined its probative value; and he was not sensitive to the prejudice caused by re- enacting one side's version of events. The video was highly inaccurate and even contradicted the evidence of the Crown's ballistic expert. Overall, it had little or no probative value. Its one-sided depiction of what occurred, presented in vivid and forceful imagery, was highly prejudicial. The distortion of even undisputed facts only added to the prejudice. However, the video only affected the case against M, who was driving.

The trial judge erred in not ruling on the Corbett application at the completion of the Crown's case in-chief. M was entitled to a ruling before taking the stand to testify. M was not prejudiced by the trial judge's failure to rule on the application at the completion of the Crown's case, however, as defence counsel had made it clear from the outset that it was M's firm intention to testify regardless of the outcome of the Corbett application. However, M was prejudiced by the trial judge's failure to rule on the Corbett application until after M had completed his case in-chief. Defence counsel made it known that he wanted to lead the record in-chief to avoid leaving the jury with the erroneous impression that M was attempting to conceal it from them. This was a valid concern. Because of the timing of the trial judge's ruling, M was left in the untenable position of having to disclose his criminal record for the first time in cross-examination. There is no telling what effect th is had on the jury's assessment of M's credibility. In all likelihood, the jury was left with the impression that M was being anything but forthright and candid in his testimony. The verdict would not necessarily have been the same had this error not been made.

APPEAL from conviction.

R. v. G. (R.M.), [1996] 3 S.C.R. 362, 139 D.L.R. (4th) 193, 202 N.R. 1, 110 C.C.C. (3d) 26, 1 C.R. (5th) 199, apld Other cases referred to Lopez v. State, 651 S.W. 2d 413 (Tex. C.A. 1983); R. v. Able, [1993] O.J. No. 366 (C.A.); R. v. B. (D.D.) (1995), 1995 CanLII 8925 (ON CA), 24 O.R. (3d) 256, 99 C.C.C. (3d) 232 (C.A.); R. v. Creemer, 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14 (N.S.C.A.); R. v. Halliday (1992), 1992 CanLII 4026 (MB CA), 83 Man. R. (2d) 142, 36 W.A.C. 142, 77 C.C.C. (3d) 481 (C.A.); R. v. Maloney (No. 2) (1976), 1976 CanLII 1372 (ON SC), 29 C.C.C. (2d) 431 (Ont. Co. Ct.); R. v. Stewart, [1994] A.J. No. 91 (C.A.); R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, 67 Alta. L.R. (3d) 81, 155 D.L.R. (4th) 13, 221 N.R. 161, [1999] 4 W.W.R. 326, 48 C.R.R. (2d) 205, 121 C.C.C. (3d) 117, 12 C.R. (5th) 241 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 25(1), (4), 34(1), (2) Authorities referred to Hennes, "Manufacturing Evidence for Trial: The Prejudicial Implications of Videotaped Crime Scenery Re-enactments" (1994), 142 U. Pa. L. R. 2125, pp. 2179-80 McCormick on Evidence, 4th ed. (1992), vol. 2, pp. 3-4, 17 Wigmore, Evidence in Trials at Common Law (1970), s. 798a

David Harris, for appellant, Phillip Chester MacDonald. Michael Lomer, for appellant, Timothy John Varcoe. Susan L. Reid, for the Crown, respondent.

BY THE COURT: --

INTRODUCTION

[1] The appellants, Phillip MacDonald and Timothy Varcoe, were tried together before Whealy J. sitting with a jury in Newmarket in the late spring of 1997. MacDonald was charged with two counts of aggravated assault and one count of dangerous driving. Varcoe was charged with possession of a restricted weapon, possession of a weapon dangerous to the public peace and assault with a weapon.

[2] The trial lasted about three weeks. On their second day of deliberations, the jury found MacDonald guilty of aggravated assault, the included offence of assault (in relation to the second count of aggravated assault) and dangerous driving. The jury found Varcoe guilty of possession of a restricted weapon and possession of a weapon dangerous to the public peace. The jury acquitted Varcoe of assault with a weapon.

[3] The trial judge sentenced MacDonald to concurrent sentences of ten years for aggravated assault, four years for simple assault, and four years for dangerous driving, for a total of ten years. Varcoe received an 18-month conditional sentence.

[4] MacDonald and Varcoe both appeal their convictions. MacDonald also appeals his sentence. Some of the grounds of appeal are common to both appellants; other grounds relate only to one appellant. In our view, the appeal raises important issues concerning the manner in which a trial judge can exhort a jury during their deliberations, the admissibility of video reconstruction evidence in a criminal trial, and the manner in which a trial judge deals with a Corbett application by an accused.

A. FACTUAL BACKGROUND

[5] There was an agreed statement of facts at the trial dealing with MacDonald's status before the crucial events of June 20, 1995. On that date MacDonald was a fugitive. In early May 1995 he had been in hospital, recovering from a gunshot wound inflicted by a non-police assailant. He was in custody and under police guard at the hospital. Three men, one of whom was armed, helped him escape from the hospital.

[6] On June 14, 1995, the police encountered MacDonald in Markham during a traffic stop. He escaped after a foot chase during which he kicked a police officer in the chest. A loaded semi-automatic pistol was found in the back seat of MacDonald's car.

[7] On June 19 and 20, 1995, the police staked out a residence in Markham. In mid-afternoon on June 20, MacDonald and Varcoe left the residence and drove off in a black Toyota.

[8] Eleven police officers from the Metropolitan Toronto Police Service and the York Region Emergency Response Unit decided to "take down" MacDonald on the street. They moved a police van and several unmarked police vehicles into position. When MacDonald's vehicle stopped at a traffic light, the police vehicles attempted to surround MacDonald's car and several officers leaped out and moved rapidly towards it. They wore gray uniforms and black baseball hats, with the word "police" in white letters on the front of their hats. They shouted to identify themselves.

[9] The "takedown" didn't work. According to the testimony of various police officers, MacDonald reversed quickly, banged into the police car behind him and then accelerated forward. Officer Rodgers jumped out of the way and fired his gun, striking MacDonald. Officer Brown was thrown onto the hood of the car. Varcoe jumped or fell from the car. He was shot and fell on a lawn. A gun was found lying under him. MacDonald, wounded, managed to drive around a police van and speed away. The police chased him for 5-7 minutes, through backyards, a school yard, chain-link fences, and then on to a busy main street. Eventually, a police car rammed the Toyota and MacDonald was arrested at gunpoint.

[10] The defence version of the unsuccessful "takedown" differed from the Crown's version in several respects. MacDonald testified that he did not reverse his vehicle quickly and then accelerate forward. He testified that, while he was stopped at the intersection, he heard Varcoe screaming beside him. He turned and saw a man in a blue uniform pointing a gun at him from about two feet. He did not recognize the man as a police officer and did not hear anyone shout "police". The man shot him in his side and arm. He tried to curl up to avoid being shot again. His car was bumped from behind and began to move forward. The car hit the curb. Another man appeared on the hood, pressed against the windshield. At that juncture, MacDonald accelerated and drove away because he feared that he was going to be killed. He did not see Varcoe exit the car. He knew that he was being chased, but saw no flashing lights or sirens. He did not realize that the police were pursuing him until he was apprehended at gunpoint at the end of the chase.

[11] At the trial, the jury convicted MacDonald of aggravated assault relating to his vehicle hitting Officer Brown, assault relating to Officer Rodgers who managed to step away from the onrushing vehicle and dangerous driving for the pursuit. The jury convicted Varcoe of possession of a restricted weapon and possession of a weapon dangerous to the public peace, both relating to the gun found under him on the lawn. However, he was acquitted of assault with a weapon, a charge that was grounded in Officer Brown's testimony that he saw Varcoe appear to reach for something inside his waistband while he was still in the passenger seat of MacDonald's vehicle.

[12] Other facts are relevant to the appeal. However, it is convenient to set out those facts in the context of the specific grounds of appeal to which they relate.

B. ISSUES

[13] The issues in this appeal can be grouped in three categories -- issues relating to both MacDonald and Varcoe, issues relating to MacDonald and issues relating to Varcoe:

Common Issues

1. Did the trial judge err by giving the jury an exhortation and setting a deadline for their deliberations?

2. Did the trial judge err by admitting into evidence a police video re-enactment of the "takedown"?

MacDonald Issues

3. Did the trial judge err in his ruling on MacDonald's Corbett application?

4. Did the trial judge err in taking away from the jury the issue of excessive police force?

5. Did the trial judge err in principle and impose a manifestly unfit sentence on MacDonald?

Varcoe Issues

6. Did the trial judge err in his instruction to the jury on how to assess credibility and the effect of prior inconsistent statements on the issue of credibility?

7. Did the trial judge err in his instruction to the jury on the requisite elements of the offence of possession of a weapon for a purpose dangerous to the public peace?

C. ANALYSIS

Common Issues

1. The exhortation issue

[14] The jury commenced their deliberations at approximately 11:07 a.m. on June 3, 1997. They continued deliberating after dinner until 9:00 p.m. They resumed their deliberations at 9:00 a.m. on June 4, 1997. At 12:37 p.m. on that day, the trial judge called the jury into court and inquired whether they were making progress. The trial judge and the jury foreperson had the following exchange:

THE COURT: Ladies and gentleman, I called you in to ask through your foreperson whether you think you are making progress. Can you answer that?

JURY FOREPERSON: Yes, Your Honour, we are making progress.

THE COURT: All right.

JURY FOREPERSON: But we still are indecisive.

THE COURT: All right. Are you in a position to say that you have at least reached verdicts in some of the counts?

JURY PERSON: Yes, we have.

THE COURT: And I take it then further consultations should produce verdicts in the remaining counts. I can't let this go too much farther. I am acutely aware that you are working in a tiny room with no windows and inadequate air conditioning. I am going to advise you at this time, you will not be spending another night in a hotel. So there is, in my mind at least, a deadline, although it is not quite firm. So, thank you for the advice and I would ask you now to continue with your deliberations.

[15] The jury retired after this exchange and the trial judge informed counsel:

THE COURT: I can tell counsel if at 5:30 they have not reached a verdict, I am going to declare a mistrial on those counts on which no verdict has been reached. I will take whatever verdicts they have at 5:30.

[16] At 12:47 p.m., in response to a question from the jury, the trial judge provided an instruction on a matter of law. Before the jury left to continue their deliberations, the trial judge informed them that they could give verdicts on some of the charges and not have a unanimous decision on others. Again, this was in response to a question from the jury.

[17] When the jury again retired, the trial judge asked counsel whether they had any comments. Counsel for the Crown and for one of the accused expressed concern with the trial judge's exhortation to the jury:

THE COURT: Does the Crown have any comments?

CROWN COUNSEL (Mr. Westgate): . . . The other concern I have is indicating to the jury that they wouldn't be sitting another night. It may have the impression of giving the jury a deadline. . . .

THE COURT: Mr. Derry?

DEFENCE COUNSEL (Mr. Derry): . . . My concern in response to what you just mentioned to Mr. Westgate is that at 5:30, if they're somewhat indecisive, if they reflect back upon what you told them about their not going to stay another night, they may feel the effect of a deadline. If they're working at it, then I don't know that that deadline idea should be implanted in their minds. That's the concern I have.

THE COURT: Well, the only deadline they know about is that they are not going to spend another night in a hotel. I did not mention . . .

DEFENCE COUNSEL (Mr. Derry): Well, I guess, that's the one I'm concerned about, Your Honour.

[18] At 3:48 p.m. the jury returned with verdicts on all counts.

[19] The leading case dealing with issues relating to a trial judge's exhortation to a jury is R. v. G. (R.M.), [1996] 3 S.C.R. 362, 110 C.C.C. (3d) 26. After a review of jurisprudence in Canada, the United Kingdom and New Zealand, Cory J. summarized the relevant principles, at p. 380 S.C.R., p. 38 C.C.C.:

The following principles can, I believe, be derived from these cases. (1) Pursuant to their oath, jurors must endeavour to render a verdict based upon the evidence which has been adduced before them. (2) The strength and genius of trial by jury is that members of the community reason together to reach a verdict based solely upon the evidence. (3) It follows from the last principle that it is important to allow a jury to deliberate without imposing any form of pressure upon them. (4) If a jury has apparently reached an impasse, any exhortation given should avoid introducing factors which are extraneous and irrelevant to the task of reaching a verdict, and should not encourage a juror, by reference to extraneous considerations or by exerting unwarranted pressures, to abandon an honestly held view of the evidence. The exhortation must not interfere with the right of jurors to deliberate in complete freedom uninfluenced by extraneous pressure. (5) It follows that a juror should not be encouraged or exhorted to change his or her mind simply for the sake of conformity. (6) A deadline for reaching a verdict should not be imposed and a jury should never be rushed into returning a verdict.

(Emphasis added)

[20] In R. v. G. (R.M.), Cory J. also considered the issue of appellate review of exhortations given by trial judges. In a section of his reasons he titled The Test for Appellate Review of Instructions Given to the Jury as an Exhortation, he stated, at p. 388 S.C.R., p. 45 C.C.C.:

Not every improper reference in an exhortation will lead to a new trial. Instead, the exhortation must be viewed as a whole and in the context of the proceedings. The length of the deliberations, the nature of the question asked by the jury, and the length of the deliberations following the exhortation are all relevant. In considering all of these factors, an appellate court must determine whether there is a reasonable possibility that the impugned statements either coerced the jury or interfered with its right to deliberate in complete freedom from extraneous considerations or pressures, or caused a juror to concur with a view that he or she did not truly hold.

[21] Applying G. (R.M.) to the present appeal, in our view the trial judge's exhortation to the jury suffers from two serious defects.

[22] First, the exhortation was unnecessary. The jury had not signalled that they needed any assistance, let alone that they were deadlocked. Counsel did not request that the trial judge call in or exhort the jury. And when the jury returned to the courtroom and were asked by the trial judge if they were making progress, they provided an affirmative response. Indeed, the jury indicated that they had reached verdicts on some of the counts. Moreover, it should be recalled that the trial involved two accused and six counts and had lasted for three weeks. In these circumstances, the jury's response to the trial judge's questions should have been accepted. The jury appeared to be functioning smoothly and properly. No exhortation was needed.

[23] Second, and fundamentally, the contents of the trial judge's exhortation were very unfortunate. He appeared to impose a deadline on their deliberations when he told them: "I am going to advise you that at this time, you will not be spending another night in a hotel. So there is, in my mind at least, a deadline, although it is not quite firm."

[24] The principle enunciated by Cory J. in G. (R.M.) is explicit: "A deadline for reaching a verdict should not be imposed and a jury should never be rushed into rendering a verdict" (at p. 380 S.C.R., p. 38 C.C.C.). Other Canadian appellate courts have also said emphatically that a trial judge should not impose a deadline on a jury's deliberations: see R. v. B. (D.D.) (1995), 1995 CanLII 8925 (ON CA), 24 O.R. (3d) 256, 99 C.C.C. (3d) 232 (C.A.); R. v. Halliday (1992), 1992 CanLII 4026 (MB CA), 77 C.C.C. (3d) 481, 83 Man. R. (2d) 142 (C.A.); and R. v. Stewart, [1994] A.J. No. 91 (C.A.)

[25] The Crown submits that the "deadline" language in the trial judge's remark was softened by its context, namely his expressed concern for the jury's comfort. Moreover, the Crown submits that the jury never indicated that it was deadlocked and that it rendered its verdicts at 3:48 p.m., approximately five hours before the time, based on their previous night's experience, they might have expected the trial judge to terminate their deliberations. Accordingly, contends the Crown, the exhortation did not coerce the jury, or interfere with their right to deliberate in complete freedom from extraneous considerations and pressures, or cause a juror to concur with a view that he or she did not hold.

[26] We do not agree with these submissions. Unfortunately, they are grounded in speculation about how the jury reacted to the trial judge's exhortation. Although the trial judge mentioned the jury's comfort, this was only a reason for the essence of his message to the jury -- namely, there was a deadline on their deliberations. Moreover, the fact that the jury returned with their verdicts at 3:48 p.m. is inconclusive. It is true, as the Crown contends, that this might indicate that the jury was uninfluenced by a perceived deadline of around 9:00 p.m. On the other hand, the timing of their verdicts might indicate that the jury, having heard the exhortation, felt that they had to hurry up their deliberations and reach verdicts.

[27] In summary, the Supreme Court of Canada said clearly in G. (R.M.) that a trial judge should not impose a deadline on a jury's deliberations. The trial judge imposed a deadline in this case; indeed, he used the word "deadline". Moreover, he did so in an exhortation that was unnecessary in light of the length of the trial, the duration of the jury's deliberations, the jury's clear indication that it was making good progress, and the absence of any suggestion from counsel that an exhortation was required (a factor underlined by the objection to the exhortation taken by both Crown counsel and counsel for one accused after it was delivered). In our view, there is a reasonable possibility that the trial judge's exhortation either coerced the jury or interfered with their right to deliberate free of extraneous pressures. Accordingly, we are of the view that this ground of appeal succeeds. On this ground alone, both appellants are entitled to a new trial.

2. The police video re-enactment of the "takedown"

[28] The attempted takedown of MacDonald and Varcoe took place in the afternoon of June 20, 1995. Twenty months later, on a morning in February 1997, the police made a video in which they attempted to reconstruct and re-enact the takedown.

[29] The video was disclosed to the defence only three days before the trial began. The defence did not ask for an adjournment because of the late disclosure. However, they objected to the admissibility of the video on the ground that it was more prejudicial than probative. After a voir dire, the trial judge ruled that the video was admissible. He held that it was "relevant to important issues such as time, fields of view, relative position of the parties, and the like", and "it is not more prejudicial than oral testimony on the same subject". He concluded that the video would help the jury by clarifying the evidence of Officer Rodgers:

The examination and cross-examination illustrate better than I can in words how inadequate mere words are to create for the jury a realistic understanding of a brief traumatic and important instant in this case.

[30] The Crown played the video twice during Rodgers' examination-in-chief, pausing it as it was played. It was not played again and it was not given to the jury during their deliberations. Nonetheless, both appellants submit that the trial judge committed a reversible error in admitting the video and in permitting the Crown to use it during the prosecution's case. We agree that admitting the video re-enactment was a reversible error. Its admission, however, prejudiced only the case against MacDonald because it depicted MacDonald's driving; it had no effect on the case against Varcoe.

[31] We will first describe how the video was made and its contents, then discuss the applicable principles governing its admissibility and, finally, apply the principles to this case.

[32] The evidence on the voir dire explained how the video re-enactment was produced and what it showed. The police acquired a car similar to the car MacDonald was driving and another car to be positioned behind the "suspect car". During the takedown, the car behind had been a large sport-utility vehicle, a Ford Explorer; its replacement in the video was much smaller, a 1987 Toyota. The location chosen for the video, apparently a deserted sand quarry, differed from the location of the actual incident, a controlled intersection with a traffic light in the town of Markham. The video lasted 20 seconds. Officer Brown testified that it showed the cars moving "much slower" than they did during the actual incident and, therefore, the length of the video was also longer than the time of the incident.

[33] The video re-enacts the police's version of what occurred during the attempted takedown. Four police officers -- Brown, Wright, Rodgers and Giangrande -- played themselves, recreating what each claimed to have done during the incident. The video shows the four officers getting out of the emergency response unit van, which is partly blocking the suspect car. Three officers take up positions several feet in front of the car with their guns aimed at the occupants. All three are shouting loudly: "Police, don't move." Four seconds elapse between the police first shouting and the suspect car backing up. The camera shows the police from behind facing the suspect car. The camera is then set inside the car to show the driver's perspective looking out at the officers through the windshield. The police are clearly visible to the driver of the suspect car.

[34] After the suspect car backs up a considerable distance, the camera shows the car from the outside, advancing on the officers. Brown, the officer nearest the passenger side, shoots twice into the windshield on that side of the car. Rodgers, the officer at the driver's window, fires four shots in rapid succession at the windshield on the driver's side. Red lines were added to the video to show the trajectory of the bullets but the trial judge ruled they be deleted before the video was shown to the jury. As the car moves forward on the video it hits Brown, who rolls onto the hood in a fetal position. The video ends with the car driving away, Brown still on the hood.

[35] The video re-enactment took two hours to make. The finished product reflected the recollections of the four officers. Although each officer tried to recreate his own actions, the four discussed the incident among themselves before making the video.

[36] We turn now to the applicable legal principles. A serious concern with videotaped re-enactments, particularly those created without the participation of the accused, is their potential to unfairly influence the jury's decision- making. Because a video re-enactment has an immediate visual impact, jurors may be induced to give it more weight than it deserves and, correspondingly, to discount less compelling or less vivid evidence which is nonetheless more probative of the facts in dispute. Several commentators and courts have warned against this danger. Dean Wigmore adverted to it in his classic treatise on evidence, Wigmore, Evidence in Trials at Common Law (1970), at s. 798a:

In so far as such a [motion] picture has any value beyond a still picture, this value depends on the correctness of the artificial reconstruction of a complex series of movements and erections, usually involving several actors, each of them the paid agent of the party and acting under his direction. Hence its reliability, as identical with the original scene, is decreased and may be minimized to the point of worthlessness.

Where this possibility is serious, what should be done? Theoretically, of course, the motion picture can never be assumed to represent the actual occurrence: what is seen in it is merely what certain witnesses say was the thing that happened. And, moreover, the party's hired agents may so construct it as to go considerably further in his favor than the witnesses' testimony has gone. And yet, any motion picture is apt to cause forgetfulness of this and to impress the jury with the convincing impartiality of Nature herself . . .

(Emphasis in original)

[37] So too did Professor McCormick in his evidence text, McCormick on Evidence, 4th ed. (1992), vol. 2, at pp. 3-4:

It has already been noted that evidence from which the trier of fact may derive his own perceptions, rather than evidence consisting of the reported perceptions of others, possesses unusual force. Consequently, demonstrative evidence is frequently objected to as prejudicial, a term which is today generally defined as suggesting "decision on an improper basis, commonly, though not necessarily, an emotional one." A great deal of demonstrative evidence has the capacity to generate emotional responses such as pity, revulsion, or contempt, and where this capacity outweighs the value of the evidence on the issues in litigation, exclusion is appropriate.

Again, even if no essentially emotional response is likely to result, demonstrative evidence may convey an impression of objective reality to the trier. Thus, the courts are frequently sensitive to the objection that the evidence is "misleading", and zealous to insure that there is no misleading differential between objective things offered at trial and the same or different objective things as they existed at the time of the events or occurrences in litigation.

[38] This danger increases when the videotape depicts not just the undisputed positions of persons and things, but one side's version of disputed facts. McCormick makes this point in discussing the admissibility of photographs, at p. 17:

A somewhat . . . troublesome problem is presented by posed or artificially reconstructed scenes, in which people, automobiles, and other objects are placed so as to conform to the descriptions of the original crime or collision given by the witnesses. When the posed photographs go no further than to portray the positions of persons and objects as reflected in the undisputed testimony, their admission has long been generally approved. Frequently, however, a posed photograph will portray only the version of the facts supported by the testimony of the proponent's witness. The dangers inherent in this situation, i.e., the tendency of the photographs unduly to emphasize certain testimony and the possibility that the jury may confuse one party's reconstruction with objective fact, have led many courts to exclude photographs of this type . . . the current trend would appear to be to permit even photos of disputed reconstructions in some instances [e.g., if pressing necessity].

[39] In a comprehensive article on the subject, "Manufacturing Evidence for Trial: The Prejudicial Implications of Videotaped Crime Scenery Re-enactments" (1994), 142 U. Pa. L. R. 2125, David B. Hennes examined the high sensory impact of video images and their tendency to stay at the front of the viewer's mind. He summarized why admitting videotaped re-enactments may be unfair at pp. 2179-80:

The danger of unfair prejudice presented by the videotaped re-enactment is a function of both the manner of the presentation and the content of the presentation. That danger is only accentuated by its stark lack of probative value. The availability heuristic suggests that the re-enactment will be readily recalled and heavily relied upon during the decision- making process. Individuals learn more readily through sight, and a key component of the learning process comes through the use of the television, an everyday source of entertainment and information. A television videotape, much more than other forms of demonstrative visual evidence, leaves a lasting impression on jurors' mental processes, since its vividness dictates that it will be readily available for cognitive recall. The videotaped re-enactment, because of its mental impressionability, is exactly the type of vivid information to which the availability heuristic grants cognitive priority during decision-making.

Mr. Hennes approved of the majority opinion of the Texas Court of Appeals in Lopez v. State, 651 S.W. 2d 413 (1983) at p. 416, banning video re-enactments. Burdock J. wrote:

We find that any staged, re-enacted criminal acts or defensive issues involving human beings are impossible to duplicate in every minute detail and are therefore inherently dangerous, offer little in substance and the impact of re- enactments is too highly prejudicial to insure the State or the defendant a fair trial.

[40] In addition to the concerns about video re-enactments discussed by courts and commentators, we cannot ignore the reality that usually only the Crown has the resources to produce a video and thus, in many cases, the re-enactment will be an "extra witness for the state".

[41] Despite these concerns, however, we think it would be unwise to lay down rigid rules governing the admissibility of video re-enactments. In an era of rapidly changing technology we would take a step backward were we to prohibit the use of video re-enactments in the courtroom. Further, an outright prohibition would hinder the efforts of today's advocates to devise new and creative ways to promote their clients' causes.

[42] In our view, the preferable approach recognizes the dangers of video re-enactments but adopts a case-by-case analysis. As with the admissibility of other kinds of evidence, the overriding principle should be whether the prejudicial effect of the video re-enactment outweighs its probative value. If it does, the video re-enactment should not be admitted. In balancing the prejudicial and probative value of a video re- enactment, trial judges should at least consider the video's relevance, its accuracy, its fairness, and whether what it portrays can be verified under oath: see R. v. Creemer, 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14 at p. 22 (N.S.C.A.). Other considerations may be material depending on the case. And as with rulings on the admissibility of other kinds of evidence, the trial judge's decision to admit or exclude a video re-enactment is entitled to deference on appeal.

[43] The appellants contend that another consideration should be necessity, whether the video is needed in the light of the other evidence in the case. According to the appellants, if a taped re-enactment merely repeats what witnesses have already testified to, it adds nothing new and accordingly should not be admitted. This argument, however, applies equally to other kinds of demonstrative evidence -- charts, graphs, diagrams and photographs -- that courts routinely admit to help the trier of fact understand the testimony of witnesses. The question of necessity is, therefore, better dealt with as yet another aspect of evaluating the prejudicial effect and probative value of a video re-enactment in a given case.

[44] With these principles in mind, we consider the use of the video by the Crown in this case. We accept that the video was relevant because it sought to portray the incident that gave rise to the charges against the appellants. We also accept that Officer Rodgers testified under oath about the video and explained it to the jury. In our view, however, the trial judge erred in admitting the video for two main reasons: first, he failed to appreciate that its many inaccuracies undermined its probative value; and, second, he was not sensitive enough to the prejudice caused by re-enacting one side's version of events.

[45] A video's probative value rests on the accuracy of its re-enactment of undisputed facts. This video failed to meet this requirement. It did not accurately represent the undisputed facts and even ventured into the realm of disputed facts. Variation from the actual facts may be permissible but only if the variation can be fully explained to and properly understood by the trier of fact. No explanation was given to the jury in this case.

[46] Accuracy imports many different factors. LeSage J. observed in R. v. Maloney (No. 2) (1976), 1976 CanLII 1372 (ON SC), 29 C.C.C. (2d) 431 (Ont. Co. Ct.) at p. 436 that accuracy means "consistent with facts, agreeing with reality . . . reality therefore includes not only material objects but also the immaterial such as light, sound, and the dimensions of space and time" (emphasis in original). Discrepancies in various factors may affect the accuracy of a videotaped re-enactment, including time of day, time of year, weather conditions, lighting or visibility, speed of action, distance, location, physical characteristics of the individuals portrayed, physical characteristics of the "props", and complexity of the events depicted. Many of these factors are inaccurately represented in this video re-enactment. The following table shows how the undisputed evidence at trial about the attempted takedown differed from the video re-enactment of it:

Facts Actual Takedown Video Re-enactment

Time of year June 20 February

Time of day 4:00 p.m. Morning

Location Markham intersection Deserted at stop light sand quarry

Speed Actual Slower

Distance (of 3-4 feet Inches suspect's car from Officer Rodgers

Type of car Ford Explorer Toyota behind the suspect car

[47] These inaccuracies distorted the reality of the takedown. The jurors were given a powerful and misleading image of what occurred, which could only have undermined their ability to fairly determine the crucial fact in the case, whether MacDonald could see that those who surrounded his car were police officers. Moreover, the video re-enactment was superfluous. The jury heard ample evidence from the Crown and the defence about what happened during the takedown. They were also given maps and diagrams of the scene. Overall, in our view, the video re-enactment had little or no probative value.

[48] In contrast, the video was highly prejudicial. The trial judge dismissed the claim of prejudice by stating that the video re-enactment "is not more prejudicial than oral testimony". This is surely wrong. All of the authorities say the opposite. The video permitted the prosecution to put before the jury its own version of what occurred, distilled into a neatly packaged, compressed, and easily assimilated sight and sound bite. The violent, visual, highly impressionistic imagery gave the Crown an unfair advantage in this trial. Courts must be sensitive to how a video re-enactment that depicts only the Crown's version of disputed facts may distort the jury's decision-making and thus prejudice an accused's right to a fair trial.

[49] In this case, the Crown's video re-enactment contradicted in material ways not just MacDonald's testimony but even the evidence of the Crown's ballistics expert. For example, the video depicts the police van cutting off MacDonald's car; MacDonald testified that he did not see the van. In the video the police are yelling loudly; MacDonald testified that he did not hear the police announce their presence. In the video the police are plainly visible in front of the car; MacDonald said that he did not see the police at first and then mistook them. On the video MacDonald's car backs up; MacDonald testified that the unmarked police car bumped him from behind. The video showed two shots fired into the front windshield on the passenger's side and four shots into the windshield on the driver's side; MacDonald's evidence, supported by the Crown's ballistics expert, was that shots were fired through the window on the driver's door.

[50] These examples demonstrate how one-sided the video re- enactment was. This one-sided depiction of what occurred, presented in vivid and forceful imagery, was highly prejudicial. The distortion of even undisputed facts only added to the prejudice.

[51] Ms. Reid, in her able argument on behalf of the Crown, contended that this case is indistinguishable from R. v. Able, [1993] O.J. No. 366, in which this court deferred to the trial judge's decision to admit a video re-enactment showing a witness' opportunity to recognize an accused. The video showed the motionless shadow profile of a man for about ten seconds; in reality the witness could see the shadow profile only for a few seconds and in the course of a struggle. However, a still photograph of the same scene was admitted without objection. Because the ten-second video was so similar to the still photograph, its prejudicial effect was minimal.

[52] This case is different. For the reasons we have outlined, the police video re-enactment was high prejudicial and its prejudicial effect vastly outweighed its limited probative value. The trial judge exercised his discretion unreasonably in admitting it.

[53] The Crown submits that even if the trial judge erred in admitting the video, its admission caused no substantial wrong. We disagree. Apart from the video, the case against MacDonald was strong, but not overwhelming. Under the best of circumstances a trial judge would be hard-pressed to craft a jury instruction that could neutralize the powerful imagery of a partisan video re-enactment. The jury instruction in this case was both inaccurate and inadequate.

[54] After telling the jury that diagrams introduced through a witness depended on the credibility and reliability of that witness, the trial judge said simply, "Similarly, the re- enactment video is entirely dependent upon the reliability that you attach to the testimony of Staff Sergeant Rodgers". This instruction was inaccurate because the re-enactment depended on the recollection and reliability of all four officers, not just Rodgers. It was inadequate because he failed to alert the jury to any of the dangers in relying on a video re-enactment, or to warn them to use caution before accepting the video as an accurate portrayal of what occurred, or even to identify the discrepancies between the video re-enactment and the undisputed evidence at trial. We would therefore not apply the curative proviso to the trial judge's error in admitting the video re-enactment. This ground of appeal succeeds but only for MacDonald, whose conduct alone was in question in the video. The video did not affect the case against Varcoe.

MacDonald Issues

3. The Corbett Ruling

[55] At the time of trial, the appellant MacDonald had the following criminal record:

Date Offence Sentence

1987 Possession of a weapon 18 months (Youth)

1987 Possession of property 20 days secure obtained by crime (Youth) Possession of a prohibited 3 days secure consecutive weapon

1988 Break and enter and theft 2 months secure 2 years probation

1988 Possession of property $120 fine obtained by crime

1991 Conspiracy to traffic in 10 years concurrent on narcotic each

Conspiracy to deliver 10 year firearm restricted weapon without prohibition permit

1996 Escape lawful custody One year consecutive Assault police officer 6 months consecutive Possession of a prohibited 2 years consecutive weapon (semi-automatic pistol) Possession of firearm 2 years concurrent knowing serial number removed

Possession of heroin for 5 years consecutive purpose of trafficking

[56] After the Crown completed its case in-chief, counsel for MacDonald brought a Corbett application to have the two 1987 weapons convictions and the 1991 conspiracy convictions edited from the record. Given that MacDonald was facing two counts of aggravated assault, it was defence counsel's position that the three weapons convictions portrayed him as a dangerous person prone to violence and as such, their prejudicial effect outweighed any marginal probative value they might have on the issue of credibility. [See Note 1 at end of document]

[57] In the midst of defence counsel's submissions, the trial judge made it clear that he would not entertain the Corbett application at that juncture. In his view, the application was premature and he instructed defence counsel to renew it after MacDonald testified in-chief. The court then recessed for lunch.

[58] On resuming, before defence counsel opened to the jury, he invited the trial judge to reconsider his position on the issue of prematurity. At a minimum, he requested that the Corbett ruling be made before the completion of MacDonald's evidence in-chief so that he could lead the admissible portions of the record in-chief. Otherwise, as he pointed out, in assessing MacDonald's credibility, the jury might well be left with the erroneous impression that he was trying to hide his record from them.

[59] Part way through defence counsel's submissions, the trial judge made it known that he was not about to reconsider his ruling on the timing of the application. At this point, Crown counsel (not Ms. Reid) interceded in support of defence counsel's position and the following exchange among counsel and the trial judge occurred:

CROWN COUNSEL: What I can do in regards to this matter, if I just may respond, is if Your Honour makes the ruling in regards to this and it's not in favour of defence counsel, and you allow the record to go in, he can conclude his examination in-chief -- he can get to a certain point in his examination in-chief and then say to Your Honour, would you excuse the jury. We can do the argument. If Your Honour rules against him, I have no difficulty if he continues with his examination in-chief and then puts that record to him.

THE COURT: No, no, no. It's either now or at the end of his evidence.

CROWN COUNSEL: That's fine.

DEFENCE COUNSEL: I'm sorry, I didn't understand your response to what Crown counsel was suggesting.

THE COURT: He said, in effect, why don't you make your application halfway through the examination in-chief. Well, that's no help. It's either now or at the end of his examination.

DEFENCE COUNSEL: I'm sorry, I didn't understand him to say that. I thought it was essentially when MacDonald had finished the substantive portion of his evidence. When they've heard it all, other than the issue of the record, we make the application, you make a ruling. If it's adverse to me, then I say I have one more question . . .

THE COURT: No, no. You design your case, you do it your way. I'm not going to make the decision until I hear his evidence.

[60] As a result of the trial judge's position, defence counsel did not know whether MacDonald's criminal record was admissible in whole or in part. Accordingly, he made no mention of it in examination in-chief; nor was it raised by counsel for the co-accused in cross-examination. It was not until Crown counsel had partially completed his cross-examination of MacDonald that a final ruling on the Corbett application was given. For reasons that need not be detailed, the trial judge ruled that the entire record was admissible and Crown counsel proceeded to lead it in cross-examination.

[61] In our view, the procedure adopted by the trial judge raises two issues of concern. The first relates to his refusal to rule on the application at the completion of the Crown's case; the second to his refusal to decide the application until MacDonald completed his evidence in-chief.

[62] As indicated, the trial judge refused to rule on the Corbett application at the completion of the Crown's case in- chief. In this, he was clearly wrong. MacDonald was entitled to a ruling before taking the stand to testify: see R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, 121 C.C.C. (3d) 117. In fairness, we note that the trial judge did not have the benefit of Underwood at the time of trial.

[63] On behalf of the respondent, Ms. Reid concedes the error but argues that it did not prejudice MacDonald. She submits that the timing of the ruling did not deprive MacDonald of his right to make a meaningful choice whether or not to testify. Viewed realistically, she contends that the case against MacDonald was overwhelming and if he had any hope of being acquitted, he had to take the stand and present his version of the events, regardless of the outcome of the Corbett application. On behalf of MacDonald, Mr. Harris takes a different position. He maintains that MacDonald may well have chosen not to testify had he known that his entire criminal record would be before the jury.

[64] Mr. Harris' position is not borne out by the record. Defence counsel made it clear from the outset that it was MacDonald's firm intention to testify regardless of the outcome of the Corbett application. Accordingly, we cannot conclude that MacDonald was prejudiced by the trial judge's failure to rule on the application at the completion of the Crown's case.

[65] The second concern is far more problematic. The trial judge refused to finally rule on the application until after MacDonald completed his evidence in-chief. In light of Underwood, it is axiomatic that MacDonald was entitled to a ruling on the application before completing his examination in- chief and the trial judge erred in ruling otherwise.

[66] In our view, this error was serious. Defence counsel made it known that he wanted to lead the record in-chief to avoid leaving the jury with the erroneous impression that MacDonald was attempting to conceal it from them. This was a valid concern. MacDonald found himself in the difficult position of having to overcome the evidence of close to a dozen police officers. His defence depended largely on the jury's assessment of his credibility and if he had any hope of success, it was crucial that he present as an open and forthright witness. To do so, he had to be in a position to disclose his criminal record to the jury in-chief. The trial judge's intransigence on the timing of the ruling made this impossible.

[67] Defence counsel could not lead the record because he did not know whether it was admissible in whole or in part. This only became known during MacDonald's cross-examination when the trial judge finally ruled on the application. As a result, through no fault of his own, MacDonald was left in the untenable position of having to disclose his criminal record for the first time in cross-examination.

[68] There is no telling what effect this had on the jury's assessment of MacDonald's credibility. Suffice it to say that given the length and severity of his record, in all likelihood, the jury was left with the impression that he was being anything but forthright and candid in his testimony.

[69] On behalf of the respondent, Ms. Reid concedes that the trial judge was wrong in withholding his ruling until after MacDonald completed his evidence in-chief and she accepts that the error may well have been prejudicial. She maintains, however, that this is a proper case to apply the curative proviso because the case against MacDonald was overwhelming and the verdict would inevitably have been the same had the error not been made.

[70] We disagree. Although the case against MacDonald was strong, the forensic evidence lent some support to his version of the events at the "takedown" scene, while at the same time belying the testimony of the Crown's key witness, Officer Rodgers. As indicated, the success or failure of MacDonald's defence depended largely on the jury's assessment of his credibility. That assessment was skewed as a result of the trial judge's refusal to rule on the Corbett application until after MacDonald had completed his evidence in-chief. Accordingly, we are not persuaded that the verdict would necessarily have been the same had the error not been made. We would therefore give effect to this ground of appeal.

4. Excessive police force

[71] The trial judge instructed the jury that MacDonald was relying on two possible defences to the charges of aggravated assault, the first that he did not intentionally assault anyone, the second that if he did commit an intentional assault, he was justified in doing so under either s. 34(1) or (2) of the Criminal Code, R.S.C. 1985, c. C-46. On the charge of dangerous driving, the trial judge instructed the jury that MacDonald's defence was that he was justified in driving as he did to save his life.

[72] Having summarized the defences upon which MacDonald was relying, the trial judge then told the jury that the success or failure of his defence really boiled down to one factual issue, whether MacDonald genuinely believed that his assailants were not police officers:

Let me deal with the law which surrounds that defence. If you accept MacDonald's testimony that he honestly believed that his assailants were not police, given that the assault that he described had caused grievous bodily harm and/or placed his life in danger, then the law allows him to flee and in the process to use a similar level of force to do so.

[73] The trial judge then read s. 34(1) and (2) of the Code to the jury and continued as follows:

The whole point of reading that to you is that the law does not apply to MacDonald if he did not genuinely hold the belief that his assailants were not police officers. It is for you jurors to determine as reasonable people whether in the circumstances it was reasonable for MacDonald to hold that belief. If the assault was not unlawful, then section 34 has no application.

[74] The trial judge next turned to s-ss. 25(1) and (4) of the Code and after reading those provisions, he instructed the jury as follows:

In this case, the police acted under the authority of an arrest warrant vis a vis MacDonald, but not Varcoe. They were therefore armed with the authority given by section 25. Obviously when making an arrest, the police must identify themselves. If you as jurors accept the evidence of the police witnesses that they identified themselves by uniform and/or voice, then their use of force when the suspect does not submit is not an unlawful assault. If it is not an unlawful assault, it doesn't fit within section 34.

It is not for the suspect to decide if the level of force is excessive. There is no right of self-defence to force when it is being used by the police to make a lawful arrest. The level of force employed in this case is not an issue for you to decide. The only issue arising out of this defence is the one factual issue, whether MacDonald held an honest belief that his assailants were not policemen.

If he held the belief, you should acquit him because section 34 applies and he is entitled to use force to escape. If you do not accept his evidence on that point, examine the Crown evidence and if you are satisfied with it, MacDonald has no right to flee and no right to use force.

(Emphasis added)

[75] MacDonald submits that the trial judge erred in directing the jury that the level of force used by the police in effecting his arrest was irrelevant. He maintains that the jury should have been told that if they believed or had a reasonable doubt that the degree of force used by the police was excessive, then MacDonald was entitled to forcibly resist arrest and flee. We agree with this submission.

[76] On the facts of this case, it was open to the jury to disbelieve MacDonald and find that he knew that his assailants were police officers from the outset. That said, it was also open to the jury to find that MacDonald took no steps to resist arrest until after he had been shot and that his flight and the ensuing consequences, though intentional from the outset, were justified as a result of the excessive life-threatening force used by the police in effecting his arrest. Manifestly, this line of defence was available on the charges of aggravated assault and possibly on the charge of dangerous driving as well. Alternatively, the common law defence of necessity may have been available.

[77] In view of our conclusion that MacDonald is entitled to a new trial on other grounds, we need not finally decide whether, standing alone, this ground of appeal would require a new trial. Depending on how the evidence unfolds at the re- trial, the trial judge may have to decide if the defences of self-defence and necessity are available to MacDonald.

5. MacDonald's sentence appeal

[78] MacDonald is entitled to a new trial. Accordingly, we do not have to address his appeal against sentence.

Varcoe Issues

[79] On behalf of Varcoe, Mr. Lomer submits that the trial judge misdirected the jury on the use of prior inconsistent statements in assessing the credibility of various police officers and that he further misdirected the jury on the requisite elements of the offence of possession of a weapon for a purpose dangerous to the public peace.

[80] We see no merit in either ground. Nonetheless, Varcoe is entitled to a new trial because of the trial judge's improper exhortation of the jury.

D. CONCLUSION

[81] Because of the errors made by the trial judge, both appellants are entitled to a new trial. Accordingly, the appeals against conviction are allowed, the convictions are set aside and a new trial is ordered.

Appeal allowed.

Notes

Note 1: Defence counsel did not seek to edit out the 1996 convictions because they arose out of the events of June 14, 1995, referred to in the agreed statement of facts.