COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foster, 2015 ONCA 184

DATE: 20150318

DOCKET: C55579

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christian Foster

Appellant

Counsel:

Breana Vandebeek, for the appellant

Shawn Porter, for the Crown, respondent

Heard: March 10, 2015

On appeal from the conviction entered by Justice Laurence A. Pattillo of the Superior Court of Justice, dated December 10, 2010, sitting with a jury.

ENDORSEMENT

[1] Christian Foster appeals his convictions following a jury trial on charges of possession of a firearm without a licence, possession of a loaded prohibited firearm, and possession of crack cocaine for the purpose of trafficking. The facts underlying the convictions are as follows.

[2] The appellant was in a second floor apartment when several police officers arrived in the hallway outside the apartment. When the apartment door was opened and the police were spotted, the appellant ran from the police and went over the balcony.

[3] According to police witnesses, the appellant discarded a quantity of crack cocaine and a cellphone on the balcony before going over the railing. One of the police officers also testified that when the appellant landed, he saw the appellant pick up a gun from the ground before continuing to run.

[4] The appellant ran through the lobby of the apartment building and a civilian witness testified that a gun fell from the appellant when he was tangled in a fence he was climbing. He said that the appellant picked the gun up and continued running. A gun was subsequently recovered near the fence.

[5] The appellant testified that he attended at the apartment to buy marihuana for a friend. He admitted to running from police, but denied he was in possession of either the cocaine or the gun. The defence argued the police witnesses were “reverse engineering” the case against the appellant after they found the gun. The defence submitted the crack cocaine and cellphone were located elsewhere in the apartment and were not discarded on the balcony. The defence also submitted the handgun was never in the appellant’s possession and that guns were common in the neighbourhood.

[6] At trial, the defence sought to cross-examine one of the police officers, Officer Gillan, with respect to an SIU investigation referenced in his notebook. The trial judge conducted a voir dire on the issue.

[7] Officer Gillan testified on the voir dire that the SIU investigation was in regard to an allegation of excessive force used in the context of removing someone from a motor vehicle involved in a collision. He further testified he was initially a subject officer, but was then re-designated a witness officer and was compelled to give a statement to the SIU. The underlying charges against the subject officer were ultimately withdrawn.

[8] The trial judge denied the defence request to cross-examine Officer Gillan on the SIU investigation on the basis that the purposed cross-examination was not relevant.

[9] The appellant raises two grounds of appeal. First, the trial judge failed to adequately advise the jury of the impact of the inconsistencies in the police evidence on their assessment of credibility. Second, the trial judge erred in refusing to allow the defence to cross-examine Officer Gillan on the SIU investigation.

[10] We would not give effect to either ground of appeal.

[11] With respect to the inconsistencies in the police evidence, the appellant submits that the officers’ credibility was central to this case. He concedes that the trial judge provided standard instructions regarding credibility and listed six examples of inconsistencies in the police evidence between the evidence given at trial versus that at the preliminary inquiry. However, the appellant submits the trial judge failed to explain to the jury that the evidence at the preliminary inquiry was given under oath, and that a lie in those circumstances is especially serious. The appellant also submits there were additional significant inconsistencies that the trial judge failed to mention.

[12] In our view, the trial judge did not err in his instruction to the jury regarding inconsistencies in the police evidence. Jury charges are to be read as a whole and in the context of the trial. The ultimate question is whether any deficiencies in the jury charge have led to a miscarriage of justice.

[13] The jury charge contained proper instructions on the issue of credibility. The trial judge instructed the jury generally that it was up to them to determine how much of a witness’ testimony to believe. He further instructed that they may find a witness had deliberately lied to them and that they had the option of rejecting the entirety of that witness’s evidence. As noted above, he went on to provide further instructions concerning previous inconsistent statements and listed specific examples of inconsistencies in the police evidence. He reminded the jury that these were just some examples and that there could be additional inconsistencies.

[14] Failure to tell jurors everything that might be considered an inconsistency is not misdirection: R. v. Luciano (2011), 267 C.C.C. (3d) (Ont. C.A.). Moreover, the trial was relatively brief and the jury had the benefit of the arguments of counsel on the issue of credibility.

[15] In these circumstances, we are not satisfied the trial judge was required to reference every alleged inconsistency and to specifically instruct the jury that the preliminary inquiry testimony was given under oath and explain the impact of a lie in that testimony.

[16] With respect to the cross-examination of Officer Gillan on the SIU investigation, the appellant submits the cross-examination would have elicited evidence of prior misconduct and would have assisted in discrediting Officer Gillan and creating reasonable doubt.

[17] We disagree. In defence counsel’s submissions on the voir dire he stated that one of the purposes of the purposed cross-examination was: “I would like the jury to hear that just because you are charged doesn’t mean that you’re guilty.”

[18] This is not a permissible purpose because it is not logically probative of any issue at trial. Moreover, the jury was instructed that being charged with a crime does not constitute proof of a crime.

[19] We also agree with the trial judge’s assessment that the fact that the officer was initially designated as a subject officer and subsequently designated as a witness officer was otherwise not relevant to the matters in issue in the trial, including Officer’s Gillan’s credibility.

[20] In any event, even if the purposed area of cross-examination should have been permitted, we are satisfied any error the trial judge may have committed in failing to allow the cross-examination was not prejudicial. Given that Officer Gillan was ultimately designated as a witness officer and the underlying charges were withdrawn, it is difficult to imagine that this area of cross-examination could have meaningfully impacted his credibility.

[21] The appeal is dismissed.

“David Watt J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”