Court of Appeal for Ontario

Citation: R. v. Bryan, 2008 ONCA 301

Date: 2008-04-22

Docket: C47345

Before: Simmons, MacFarland and Epstein JJ.A.

Between:

Her Majesty the Queen Respondent

and

Leon Bryan Appellant/Applicant

Counsel:

Leon Bryan, in person Michael Dineen, as duty counsel Joanne Stuart, for the respondent

Heard and released orally: March 17, 2008

On appeal from the convictions entered by Justice David Stinson of the Superior Court of Justice dated February 12 and 21, 2007.

Endorsement

[1] The appellant faced two indictments arising out of one incident. He pled guilty to the crimes set out in the first indictment – possession of a loaded prohibited firearm while not the holder of an authorization, licence or registration certificate and breach of the terms of a probation order requiring that he not possess any firearm or ammunition. He pled not guilty to the charge in the second indictment – pointing a firearm without lawful excuse.

[2] On February 21, 2007, a jury convicted the appellant of the charge of pointing a firearm without lawful excuse. The appellant appeals his conviction. He submits that the trial judge erred in failing to provide the jury with a limiting instruction in respect of certain admissions that negatively reflected on his character.

[3] At trial, the Crown alleged that the appellant briefly pointed the firearm in question at an undercover police officer during a foot chase. The three officers who were involved in the chase gave evidence relevant to this issue, the most significant of which was that of Officer Harris who testified that the appellant pointed the firearm at him. Neither of the other two officers saw the appellant with a gun in his hands. However, Officer Sandhar saw the appellant point his hand at Officer Harris. Officer Walters saw the appellant turn and raise his hand toward Officer Harris and the appellant’s arm come forward in a throwing motion. He then heard Officer Harris say “He dropped it.” and Officer Harris found the gun.

[4] The appellant gave evidence on his own behalf in which he admitted to having had the gun in his possession. However, he denied pointing it at anyone.

[5] The appellant testified that he was a drug dealer and an active participant in a “gangster” lifestyle. He also said that he obtained the gun after an incident in which he felt threatened.

[6] The trial judge gave a limiting instruction regarding the appellant’s extensive criminal record. However, he did not provide any instruction on how the jury was entitled to deal with the bad character evidence set out in paragraph 5.

[7] The appellant’s trial counsel did not object to this omission. However, a failure to object by trial counsel is not necessarily fatal to success on appeal.

[8] The law is clear that where evidence of bad character is put before the jury, limiting instructions are required to avoid jury misuse. See R. v. Selles (1997), 116 C.C.C. (3d) 435 (Ont. C.A.).

[9] While the trial judge’s charge, including that portion concerning the use the jury could make of the appellant’s criminal record, was, as the Crown put it in her submissions, “textbook”, the complete absence of any instructions on the issue of bad character evidence constitutes reversible error. See R. v. Farrah, [2004] O.J. No. 2089, (Ont. C.A.).

[10] There was a real risk that the jury could infer guilt based on the appellant’s character evidence. It was therefore incumbent on the trial judge to instruct the jury that, even though the appellant had admitted these aspects of his background in his own defence, the jury should not use that evidence to infer guilt on the basis that he was the type of person who would point a firearm at another individual.

[11] We therefore allow the appeal, set aside the conviction and order a new trial.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“G. Epstein J.A.”