COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Laing, 2016 ONCA 184

DATE: 20160304

DOCKET: C57316

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Geary Laing

Appellant

Carlos Rippell, for the appellant

Gillian Roberts, for the respondent

Heard: October 19, 2015

On appeal from the conviction entered on January 21, 2013 by Justice Nancy L. Backhouse of the Superior Court of Justice, sitting with a jury.

Huscroft J.A.:

[1] The appellant, Geary Laing, was arrested by several officers in the parking lot of a shopping mall and charged with two counts each of possession of a loaded firearm, possession of a firearm without authorization and possession of a firearm without being the holder of a licence, and six counts of violating a prohibition order. He was convicted following a twelve-day jury trial and sentenced to a term of imprisonment of eight and one-half years.

[2] Laing appeals from his convictions. He raises three grounds of appeal:

a) the trial judge erred in dismissing his Corbett application to suppress all or part of his record, and he did not testify as a result;

b) the trial judge erred in dismissing his application for a stay based on the failure of the police to preserve a surveillance video; and

c) the trial judge erred in her instructions to the jury.

[3] In my view, all of these grounds fail. I would dismiss the appeal for the reasons that follow.

A. BACKGROUND

(1) The arrest and seizures

[4] P.C. De Sousa was a member of the Guns and Gangs Task Force conducting surveillance of Laing, who had an outstanding warrant for his arrest. De Sousa observed Laing arriving at the home of his girlfriend on October 2, 2010 by car and leaving by taxi several hours later. He testified that Laing was holding the waistband of his pants with his left arm and his left elbow was held tight to his body. De Sousa considered that Laing was armed and sent a radio message alerting other members of the surveillance team.

[5] As a result of this information Detective Brian Johnston, who was supervising the surveillance team, ordered a high-risk takedown. Laing’s taxi was followed to the Fairview Mall parking lot. The taxi was blocked by several police cars once it came to a stop near the entrance to a Sears store, and Laing was removed from the taxi by Detective Chant and Sergeant Tsianos.

[6] Detective Johnston testified that he seized a silver Taurus semi-automatic handgun from the back of Laing’s waistband and called out: “Gun”. The gun was loaded with eight rounds and was ready to fire. Shortly afterward he said he heard Detective Little yell: “Gun, gun, gun”. He saw her remove a black FN Herstal semi-automatic handgun from the side of Laing’s waistband. It was a military firearm loaded with five rounds of armour-piercing bullets.

[7] Detective Little testified that she saw Detective Johnston remove the silver firearm from Laing’s waistband and call out: “Gun, gun, gun”. She said that she found another firearm shortly afterwards and called out: “Gun, gun, gun”. She gave the gun to Detective Johnston.

[8] Detective Philp testified that he was not involved in removing Laing from the taxi or his arrest or search, but heard officers yell: “Gun”, and knew that they had recovered a gun.

[9] Detective Chant testified that he did not see the seizure of the firearms while he was subduing the appellant. He said that he searched Laing prior to arresting him and found drugs and cash. When Detective Constable Tan processed those items, they amounted to 6.94 grams of cocaine, $1085 Canadian and $42 in U.S. currency.

[10] Sergeant Tsianos testified that he heard Detectives Johnston and Little each yell: “Gun”, but did not see the seizure of the weapons. He saw the guns with Detective Johnston after they had been seized.

[11] Sergeant Steeves testified that he arrived on the scene following completion of the takedown. He heard Detective Johnston say: “Gun”, and saw him seize a silver firearm. He said that he heard Detective Little say: “Gun”, and saw her remove a black firearm from Laing’s waistband. Sergeant Steeves identified the firearms Detective Johnston gave him to process. No fingerprints or DNA evidence was recovered from the guns.

(2) The surveillance DVD

[12] Officer Philp testified that he called the Sears store at Fairview Mall when he returned to the station and was informed that a surveillance DVD was available. He watched the DVD at Sears and again at the station before giving it to Detective Tucker, the exhibits officer. Officer Philp said that the DVD did not record the takedown because the camera was angled towards the front door of Sears. He said he did not know what happened to the DVD. Although he made no notes, he remembered what was on the video because of the type of firearm and ammunition seized.

[13] Detective Little testified that she watched the DVD at the station and that it captured only the front part of the taxi and police vehicles, not the takedown.

[14] Detective Tucker testified that he watched the DVD on a computer monitor at the police station along with several other officers (Chant, Philp, and Johnston). He testified that the DVD showed only the front of the vehicles and not the takedown. Detective Tucker testified that he did not follow the procedure for seizing and inventorying the DVD because he forgot that it was in the computer, and that subsequent efforts to find the DVD were unsuccessful.

[15] No officers who viewed the DVD made notes as to its contents.

B. THE GROUNDS OF APPEAL

[16] As noted above, Laing makes three submissions on appeal:

a) The trial judge erred in dismissing his Corbett application;

b) The trial judge erred in dismissing his stay application; and

c) The trial judge erred in her instructions to the jury.

I will address each of these in turn.

(1) The Corbett application

[17] The appellant has an extensive criminal record dating to 1995. It includes Youth Court convictions for mischief, robbery, assault, aggravated assault, uttering threats, and possession of a prohibited weapon. His adult record includes probation violations, possession of a Schedule II substance, assault, carrying a concealed weapon, and possession of a loaded firearm.

[18] The appellant made a Corbett application seeking to prohibit the Crown from cross-examining him on his criminal record. He did not seek to have his entire record excluded. He argued that his Youth Court convictions and his convictions for carrying a concealed weapon, possession of a Schedule II substance, and possession of a loaded firearm should be excluded because their potential prejudice outweighed their potential probative value.

[19] Section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, allows the Crown to cross-examine accused persons on their criminal record if they choose to testify. However, a trial judge has the discretion to limit cross-examination on an accused’s criminal record in order to safeguard the accused’s right to a fair trial: R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670. The discretion to limit cross-examination arises if the probative value of the prior convictions is outweighed by their prejudicial effect.

[20] In Corbett, the Court adopted out a non-exhaustive list of factors that were to be considered in exercising the discretion to exclude evidence of an accused’s record. These factors include the nature of the previous conviction(s); the similarity of the previous conviction(s) and the offence(s) being prosecuted; the remoteness or nearness in time of the previous conviction(s); and the fairness of limiting cross-examination in cases in which the accused has attacked the credibility of a Crown witness and “resolution of the case boils down to a credibility contest between the accused and that witness”: Corbett, at pp. 740-42.

[21] It is important not to lose sight of the purpose for which these factors were promulgated. They are considerations relevant to the exercise of the trial judge’s discretion. At the end of the day, the question is whether it is necessary to limit cross-examination on an accused’s criminal record in order to guarantee the accused’s right to a fair trial. That question is best answered in the context of the trial, and the decision of the trial judge must therefore be accorded considerable deference.

[22] In this case, the trial judge denied the appellant’s Corbett application, ruling that his entire criminal record was admissible. The appellant chose not to testify following the trial judge’s ruling.

[23] The trial judge reasoned as follows:

The references to the cross-examination of the officers in this case are sufficient to demonstrate that the defense mounted a serious attack on not just the credibility of the officers but on their character. The cross-examination in this case did not simply challenge the accuracy and reliability of their evidence. While the officers were not directly accused of conspiring to commit perjury and subvert the course of justice, the only conclusion is that they did so if they did not seize loaded firearms and the drugs from the accused or if they deliberately destroyed the DVD. The conviction for the possession of the firearm in 2009 is relevant to Mr. Laing’s credibility of whether weapons and drugs were seized from him and whether the officers are not telling the truth about seizing firearms from him in this case. While I recognize that there is a danger that the 2009 firearm offence which is identical or very similar to the offences in issue proximate in time might be misused by the jury, I am satisfied that any potential prejudice can be overcome by a strong limiting instruction. To allow cross-examination on Mr. Lang’s criminal record will permit a more informed assessment by the jury on the credibility of the competing versions of the events that bring us here.

After considering the relevant factors, I conclude that it would not be proper to insulate Mr. Laing from his criminal past because this would present a distorted view to the jury. In the present circumstances, the probative value of permitting cross-examination on his prior record clearly exceeds any potential prejudice.

[24] The appellant’s argument turns on the fourth factor from Corbett. He submits that the trial judge erred in finding that he attacked the officers’ character in cross-examination. He says that his counsel’s questions were directed to the lack of reliability and honesty of the officers’ accounts of the takedown, and that he was entitled to deny his guilt and repudiate the officers’ allegations. The appellant submits, further, that it was not necessary to admit his entire criminal record in order to avoid creating an imbalance. Admission of some of his offences would have addressed the concern of presenting a distorted view to the jury; there was no need to include his 2009 firearm conviction. In addition, the appellant argues that the other three Corbett factors – the nature of the previous conviction, proximity in time to the present charge, and similarity to the present charge – all favoured exclusion of his 2009 firearm conviction at a minimum.

[25] The appellant argued at length that this case is virtually identical to R. v. Brown (2002), 2002 41937 (ON CA), 166 C.C.C. (3d) 570, [2002] O.J. No. 2562 (C.A.). In that case, this court held that the trial judge erred in allowing cross-examination on an accused’s criminal record. Writing for the court, Goudge J.A. stated, at para. 24:

While the cross-examination attacked both the reliability and the honesty of the police officers, it did so on the basis of matters which were directly connected with the offence and which were raised in an attempt by the defence to meet the prosecution’s evidence. This is unlike Corbett where the attack on the credibility of the Crown witnesses was based on their character, especially as disclosed in the criminal record, rather than arising out of events surrounding the offence.

[26] The cases are similar, in that both are concerned with a reasonable inference that could be drawn from cross-examination of the Crown’s witnesses that the police had planted evidence on the accused. But in my view there are several relevant differences between this case and Brown. For example, the Corbett application was denied in Brown despite the Crown’s agreement that the order should be made. Moreover, the criminal record of the accused in Brown was much less substantial than that of the appellant, and there were significant gaps between the convictions in Brown, which is not the case here.

[27] But the larger concern is that care must be taken when it comes to assessing decisions made in ostensibly similar factual circumstances. The appropriateness of the exercise of a trial judge’s discretion in one set of circumstances is not determinative of how another judge must exercise his or her discretion in another. The decision in every case turns on its own facts considered in light of the relevant context: R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415, at para. 38.

[28] In Brown, the court concluded that the cross-examination of the police properly attacked the reliability and honesty of the police on relevant matters, and as a result, it was not unfair to limit cross-examination of the accused.

[29] The circumstances in this case are qualitatively different. The trial judge was entitled to regard the appellant as having mounted a serious attack on the credibility and character of the police. I set out some extracts from the cross-examination to establish the flavour of the proceedings:

Officer Philp

Q: I suggest what happened, sir, was that there was – you were present for a calculated decision made to have this video disposed of because its contents would not be in accordance with what occurred, what the police say occurred outside of the Sears store?

A: I disagree with you.

Detective Little

Q: I suggest, Detective Little, that what occurred in this case is that you did not find or seize any firearms off of Mr. Laing, because he was never in possession of them; isn’t that correct?

A: That’s not correct.

Q: And isn’t it further correct that you and the other officers seized and subsequently disposed of the only independent evidence of that fact in this case, namely the surveillance video?

A: Absolutely not.

Detective Johnston

Q: I suggest, sir, the exact opposite. In fact, the debrief is an opportunity to make sure you and your other officers all get your stories straight?

A: That’s incorrect.

Q: I suggest to you what happened is that you didn’t find or seize any firearms off of Mr. Laing in the course of this investigation because he wasn't in possession of any?

A: Totally totally incorrect.

Q: And that you debriefed with Officer Little and the other officers involved in order to make sure there was a script to follow as to what occurred that day; isn’t that true?

A: Incorrect

Q: And your other members of the team, your team, seized and disposed of the only independent evidence of what occurred, namely the surveillance video; isn’t that true?

A: Absolutely incorrect.

Detective Chant

Q: I suggest that you were never told that at that point because there were never any firearms seized off of Mr. Laing as he was arrested outside of Fairview Mall?

A: No, there were two firearms seized off his person at Fairview Mall.

Q: And I suggest further that you never found any cocaine on Mr. Laing when you searched him later on?

A: No, I found cocaine in his front right pocket.

Q: I suggest either you or told by other officers that he was in possession of cocaine and that you were told to say that you seized it off of him, isn’t that correct?

A: No, I seized that cocaine out of his front right pocket.

Sergeant Tsianos

Q: I’m going to suggest that you never, as your notes indicate, that you in fact never heard Johnston or Little yell out “gun, gun, gun” when Mr. Laing was arrested outside the Fairview Mall?

A: I heard him yell “gun”, so your suggestion is incorrect.

Q: Okay. I suggest the reason you never heard that is because there was no firearm seized from Mr. Laing outside of the Fairview Mall outside the taxi; isn’t that correct?

A: That’s totally incorrect.

Q: And your notes are accurate in that it was information you were told about or something you were told about from the other detectives, but they didn’t tell you about it here, they told you about it back at the debrief when you were making these notes; isn’t that correct?

A: No.

Q: Similarly, I suggest, weren’t you involved with Detective Chant in planting cocaine on Mr. Laing as well; isn’t that correct?

A: No.

Detective Tucker

Q: And I suggest that you diminished what’s on that video for the purposes of minimizing the problem that that missing DVD has created?

A: No, I disagree with you.

Sergeant Steeves

Q: I suggest that you were told about the events at the debrief and you’ve recorded them in your notes as personal observations, but they weren’t, in fact, anything you observed?

A: I made those direct observations.

Q: I suggest to you that you couldn’t have made those direct observations because there were never any firearms seized off of Mr. Laing at 4:03 outside the Fairview Mall because he wasn’t in possession of them.

A: That’s incorrect.

[30] Plainly, the appellant’s questions on cross-examination were designed to suggest that he had been framed in what can only be described as a massive police conspiracy, involving not only the planting of drugs and firearms but also the destruction of video evidence and fabrication of stories. This goes far beyond simply challenging the reliability and honesty of the officers’ accounts of the takedown. It goes far beyond simply meeting the prosecution’s evidence. The impact of these questions on the character of the police cannot reasonably be described as incidental.

[31] In these circumstances, it was open to the trial judge to conclude that the appellant attacked the credibility and character of the police and that, in the circumstances, it was appropriate to allow cross-examination on the appellant’s entire record, including his recent firearms offence. The trial judge was alive to the danger of allowing cross-examination on the firearms offence but considered that a proper instruction to the jury would be sufficient to address any possible prejudice. That was a judgment call the trial judge was entitled to make, and her judgment is in keeping with Dickson C.J.C.’s admonition in Corbett, at p. 692:

We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information. So long as the jury is given a clear instruction as to how it may and how it may not use evidence of prior convictions put to an accused on cross‑examination, it can be argued that the risk of improper use is outweighed by the much more serious risk of error should the jury be forced to decide the issue in the dark.

[32] I would reject this ground of appeal.

(2) The stay application

[33] The appellant sought to have the proceedings against him stayed on the basis that the police had lost the surveillance DVD. He submits that the failure of the police to preserve the DVD evidence breached s. 7 of the Canadian Charter of Rights and Freedoms and, if the failure was deliberate, constitutes an abuse of process. Laing argues that the officers’ evidence as to the contents of the video was unreliable given the absence of notes and contradictions in the evidence as to who watched the video.

[34] The leading case on the failure to preserve evidence is R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, the principles of which are summarized in R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545, 39 C.R. (5th) 291 (Ont. C.A.), at para 30. For present purposes, the key consideration is whether the DVD was lost as a result of what Justice Sopinka termed “unacceptable negligence”.

[35] The trial judge concluded that in order to establish that the standard of unacceptable negligence had been met, the conduct of the police would have to be such as to shock the conscience of the average citizen.

[36] That was a mistake. Conduct that shocks the conscience of the average citizen is relevant to determining whether a failure to meet the disclosure obligation constitutes an abuse of process, but it is not necessary to find such conduct in order to establish “unacceptable negligence”. As Justice Sopinka stated in La, a failure of disclosure “may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose”: at para. 20.

[37] The most important consideration is whether the police took reasonable steps to preserve the DVD for disclosure. In determining this, the relevance that the DVD was perceived to have at the time must be considered. The police are not held to a standard of perfection in their duty to preserve evidence. Justice Sopinka specifically acknowledged that evidence will occasionally be lost by the police. He was prepared to countenance even the loss of relevant evidence so long as the conduct of the police was reasonable, but the degree of care expected of the police increases with along with the relevance of the evidence: La, at paras. 20-21.

[38] All of this is to say that every case is unique and must be considered in light of its own circumstances.

[39] The trial judge noted that the police disclosed the existence of the DVD early in the process and that the defence did not seek production for some 18 months. There was no evidence that the DVD was deliberately destroyed or deliberately not produced. The trial judge accepted the testimony of the officers that they could recollect what was on the DVD; that the DVD did not show the takedown; and that it contained little relevant information. She found that the officers were distracted from submitting the DVD into the property management system by their conclusion that it did not show anything that would assist either the defence or the Crown, and characterized the loss of the DVD as an inadvertent oversight – a mistake that did not rise to the level of unacceptable negligence or an abuse of process.

[40] Although the trial judge misstated the legal test for unacceptable negligence, her error is harmless to the result. The trial judge considered and rejected the appellant’s submission that the loss of the DVD caused him significant prejudice. Her conclusion that s. 7 of the Charter was not breached is supported by the record and there is no basis for this court to interfere with it.

[41] I would reject this ground of appeal.

(3) The jury charge

[42] The appellant argues that the trial judge erred in instructing the jury concerning the loss of the DVD and in failing to instruct the jury as required in Bero. He argues, further, that read as a whole, the trial judge’s charge was unbalanced in favour of the Crown.

[43] There is no merit to this submission.

[44] The trial judge provided counsel for the appellant and the Crown with a copy of her draft charge and invited submissions. She then conducted two pre-charge conferences to address their concerns. At no point in the proceedings did the appellant’s trial counsel raise concerns about the adequacy of the instruction concerning the DVD, nor did counsel request that the trial judge give a specific Bero instruction.

[45] The failure of counsel to object to a proposed instruction, or to request that a discretionary instruction be given, is not determinative, but it is a significant consideration in determining whether or not appellate intervention is warranted: R. v. Austin (2006), 2006 39077 (ON CA), 214 C.C.C. (3d) 38, [2006] O.J. No. 4660 (C.A.), at para 14.

[46] In any case, I am satisfied that the trial judge’s charge adequately addressed the relevant considerations. Although she did not couch her remarks in the language from Bero, the trial judge informed the jury of the shortcomings of the evidence including the loss of the DVD and the failure of the police to make notes about what they saw when they watched it. She made clear to the jury that the missing DVD was “a factor for [them] to consider in considering whether the Crown has proven its case beyond a reasonable doubt”.

[47] I see no basis to impugn the fairness of the charge. The trial judge fairly reviewed the evidence and the absence of evidence as they related to the Crown’s burden to prove the charges beyond a reasonable doubt.

C. Disposition

[48] I would dismiss the appeal.

Released: March 4, 2016 (DW)

“Grant Huscroft J.A.”

“I agree David Watt J.A.”

“I agree C.W. Hourigan J.A.”