COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ban, 2014 ONCA 682

DATE: 20141003

DOCKET: C55359

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bao Tien Ban

Appellant

Kim Schofield, for the appellant

Bradley Reitz, for the respondent

Heard and released orally: September 24, 2014

On appeal from the conviction entered on January 6, 2012 by Justice R. MacKinnon of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] We reject the procedural unfairness claim. In our view, the trial judge followed the procedures set out in the authorities. He addressed the issues as they arose and, with the assistance of counsel, was able to navigate his way through the potential problems that arose as a result of the Corbett application. He did so in a manner that is consistent with the jurisprudence and preserved the fairness of the trial. We observe that the real difficulty for the appellant in this case arose not from the procedure that was followed but from the totally unexpected answers he gave to the questions relating to his expertise and knowledge with respect to the growing of marihuana.

[2] On a substantive point we accept that the cross-examination of the appellant on his expertise and knowledge with respect to the operation of a marihuana grow-op was relevant to the veracity of the appellant’s claim that he was “innocently” found in what he admitted he knew was a marihuana grow-op.

[3] The more difficult question is whether the appellant’s denial of any such expertise or knowledge opens the door to cross-examination on the fact that he had been previously convicted of cultivating marihuana. The trial judge had ruled, on the Corbett application prior to the appellant’s testimony, that the Crown could not cross-examine on that prior conviction.

[4] In our view, the fact that the appellant had been previously convicted of growing marihuana, standing alone, was of limited assistance in determining the veracity of his evidence that he did not have any knowledge or expertise in respect of the operation of a marihuana grow-op. A prior conviction on that charge does not necessarily imply either knowledge or expertise. However, we cannot say that cross-examination on the prior conviction could not assist the jury in assessing the credibility of that part of the appellant’s evidence. In our view it had some limited potential value in that regard. We cannot say that the trial judge erred in the exercise of his discretion in favour of admitting the evidence, especially as it was not argued before the trial judge that evidence of the prior conviction had no probative value in the assessment of the appellant’s credibility as it related to his knowledge and expertise in the growing of marihuana.

[5] In his jury instructions the trial judge carefully and correctly limited the use the jury could make of the appellant’s prior conviction. He specifically averted to its potential use in assessing the credibility of the appellant’s claim that he had no knowledge or expertise in the operation of a marihuana grow-op. The instructions were accurate and, to the extent possible, prevented the misuse of the evidence by the jury. The appeal is dismissed.

“Doherty J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”