Court of Appeal for Ontario

Date: January 26, 2017 Docket: C61448

Justices: Doherty, Blair and Lauwers JJ.A.

Between

Her Majesty the Queen Respondent

and

Jordan Mansingh Appellant

Counsel

Mark Halfyard and Breana Vandebeek, for the appellant M. Adams, for the respondent

Heard: January 19, 2017

On appeal from: The convictions entered by a jury presided over by Justice Goldstein of the Superior Court of Justice, dated October 2, 2015, and on sentences imposed on December 18, 2015.

By-the-Court

[1] The appellant was convicted of several gun-related charges. All of the charges arose out of a single incident.

[2] The Crown alleged that the appellant discarded a loaded handgun as he ran from the police. Officers involved in the chase testified that the appellant appeared to have a gun as he ran from them and appeared to drop the gun shortly before he was tackled. According to the police, the gun was found very near where the appellant was tackled and he still had a magazine for the weapon in his hand.

[3] The appellant testified. He acknowledged running from the police. When he saw them he was on his way to deliver some marihuana to a friend. The appellant denied having a gun and indicated that he had dropped his cell phone immediately before being tackled by the police. The defence called two witnesses in addition to the appellant. One witness, Ryan Haye, testified that the gun belonged to him and that he had put it in the location where the police found it. The second witness testified that he was with Mr. Haye when he left the gun in the location where the police eventually found it.

[4] The jury convicted on all counts save one, and the trial judge imposed an effective sentence of 43 months. The appellant appeals convictions and sentence.

I. The Conviction Appeal

The Jury Selection Issue

[5] In his factum, the appellant advanced four grounds of appeal against conviction. Counsel argued three of those grounds. We will address only the three grounds advanced in oral argument.

[6] The appellant chose to challenge for cause on the basis of potential racial bias. He initially sought an order excluding the panel during the selection process and an order allowing for rotating triers during the selection process.

[7] In a dialogue with counsel before the jury selection process started, the trial judge indicated that it was his practice to require static triers if the jury panel was to be excluded during the selection process. He acknowledged that other judges took a different view and permitted rotating triers. The trial judge invited counsel to make submissions in support of the position that rotating triers could be used.

[8] Counsel for the defence replied that his "main application" was to exclude the panel. He added, "I actually like static triers." Counsel and the trial judge proceeded to discuss the steps that could be taken to vet the static triers to ensure that they were up to their task.

[9] After the trial judge indicated that the triers could be vetted, defence counsel said, "then I think that would accommodate my biggest concerns". The Crown indicated that she was agreeable to the use of static triers. The trial judge said, "Well I think we put that issue to bed for the moment."

[10] The jury selection proceeded with the panel excluded. Prospective jurors were challenged for cause based on race. Static triers decided the outcome of those challenges.

[11] On appeal, counsel submits that defence counsel did not bring an application under s. 640(2.1) of the Criminal Code at trial. Consequently, the trial judge could not use static triers to determine the challenge for cause. The improper use of static triers meant that the court was not properly constituted and the verdicts must be quashed: R. v. Noureddine, 2015 ONCA 770.

[12] This case is distinguishable from Noureddine and is governed by R. v. Grant, 2016 ONCA 639, at paras. 50-51. At trial, defence counsel made it clear that he wanted prospective jurors excluded during the challenge process. He was happy to use properly vetted static triers as long as the panel was excluded. As stated in Grant, substance must supersede form. Counsel got what he wanted and, in substance, if not in form, made the requisite application under s. 640(2.1). This ground fails.

II. The Trial Judge's Comment on the Defence Counsel's Opening

[13] The appellant ran from the police. In his opening to the jury, counsel told the jury that the accused's actions had to be assessed in the context of the community in which he lived. Counsel observed that the applicant lived in a high-crime, heavily-policed neighbourhood. He indicated to the jury that the police often acted arbitrarily and without regard to the rights of the individuals with whom they interacted.

[14] After counsel completed his opening, the trial judge instructed the jury to focus on the specifics of the case and not the broader societal concerns referred to by counsel. The trial judge told the jury to disregard counsel's comments "about those broader issues of police practice".

[15] The trial judge cannot be criticized for telling the jury to focus on the specific events and issues in the case and not on broader societal concerns. However, in a jury trial, a trial judge must try to avoid comments that may cast counsel in a bad light in the eyes of the jury. Sometimes such comments are necessary to the proper conduct of the trial. Here, the trial judge raised his concerns with counsel and gave his instructions to the jury only after hearing submissions from both counsel.

[16] It may be that the trial judge could have stopped his instruction to the jury after properly cautioning the jury to focus exclusively on the specifics of the case. However, there is no realistic possibility that the trial judge's further instruction to disregard parts of counsel's opening address that went beyond the specifics of the case could have prejudiced the appellant or compromised the fairness of the trial. The sentence, which is the focal point of this ground of appeal, was the single, hardly inflammatory comment made by the trial judge in the course of conducting the trial in an entirely fair and even-handed manner. We reject this ground of appeal.

III. The W.D. Instruction

[17] The trial judge gave the usual W.D. instruction. Counsel submits that the jury would have understood this instruction as applicable only to the accused's evidence and not the exculpatory evidence from the other defence witnesses, and particularly the evidence from two witnesses indicating that Mr. Haye had placed the gun where it was found by the police. Counsel referred to R. v. B.D., 2011 ONCA 51, at para. 114 and R. v. Dayes, 2013 ONCA 614, at para. 55.

[18] The adequacy of a jury instruction is measured by reference to the conduct of the trial and the specific issues raised in a trial. Factually, this was a single issue case. Did the appellant throw the gun away when he was running from the police?

[19] The trial judge made it clear to the jury that if they had a reasonable doubt on "all of the evidence", which clearly included the defence evidence other than the accused's testimony, it must acquit the accused. It may be that the trial judge could have said more. There would have been nothing wrong had the trial judge given an instruction like that now urged by the appellant. However, the failure to say something that could have been said is not necessarily an error.

[20] In light of the simple and single factual issue on which these verdicts turned, and the positions of the parties, we have no doubt that the jury understood that it was required to consider all of the evidence and, if on all of that evidence it had a reasonable doubt as to whether it was the accused who placed the gun where the police found it, they were obligated to acquit. We would not give effect to this ground of appeal.

IV. The Sentence Appeal

[21] The trial judge imposed an effective sentence of 43 months. While acknowledging that a penitentiary term was necessary, counsel submits that the trial judge erred in finding the appellant was engaged in commercial drug activity at the time he was in possession of the loaded firearm. The trial judge treated this as a significantly aggravating factor. The appellant accepted that he was trafficking in marihuana in the technical sense in that he was carrying marihuana to a friend. He denied that he was a drug dealer.

[22] The trial judge found that the appellant was engaged in commercial drug trafficking, albeit at a low level. That finding was open on the evidence. The appellant was in possession of a large amount of cash and a loaded handgun. Both indicate that the appellant was in the business of selling drugs and was not merely delivering the drugs to a friend as a favour.

[23] Counsel also submits that the trial judge failed to give adequate weight to the appellant's status of a young first offender.

[24] The trial judge was alive to the appellant's age, the absence of a criminal record and his relatively positive prospects. However, this court, and more importantly the Supreme Court of Canada, have repeatedly indicated that the kind of offences committed by the appellant require the imposition of substantial jail terms even if the offender is young and has no criminal record: see R. v. Nur, 2015 SCC 15. Cases from this court, referred to by the trial judge, support the position that the sentence imposed was within the established range for this kind of offence even when committed by a relatively young first offender. We observe, as did the trial judge, that the appellant not only fled from the police while armed with a loaded handgun, a very dangerous activity, he also threw that loaded weapon away in a place where it could easily have been found by a young child.

[25] The trial judge did not err in principle in the sentence he imposed. The sentence is not manifestly unfit. We cannot interfere.

V. Conclusion

[26] As indicated at the end of oral argument, the appeal from conviction and the appeal from sentence are dismissed.

Released: January 26, 2017

"Doherty J.A." "R.A. Blair J.A." "P. Lauwers J.A."