ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 7575
DATE: 2013-02-08
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Bruce Louis Landry
Appellant
Vlatko Karadzic for the Respondent
Brennan Smart for the Appellant
HEARD: December 17, 2012
On appeal from convictions entered by the Honourable Justice M. F. Woolcott dated February 6, 2012.
The Honourable Mr. Justice G. E. Taylor
Introduction
[1] The appellant appeals his convictions on charges of mischief under $5000 and breach of an undertaking. The appellant raises a number of grounds of appeal. In my view, this appeal must be allowed on the basis of one ground of appeal. The Crown presented evidence that the appellant threatened to kill one Stephen House and that he had threatened to physically harm Stephen House and his family. This evidence was admitted without it being subject to a voir dire to determine if its probative value outweighed its prejudicial effect. I would direct a new trial at which such a voir dire can be held.
Evidence at Trial
[2] The appellant was charged as follows:
on or about the 7th day of July, 2010 at the City of Kitchener he did commit mischief by wilfully damaging without legal justification or excuse and without colour of right property to wit: four car tires of Stephen Mitchell House and Michelle Savard, the value of which did not exceed $5000, contrary to section 430 (4) of the Criminal Code of Canada;
on or about the 7th day of July, 2010 at the City of Kitchener, he did without lawful excuse disobey the lawful order made by Justice Sharon Nicklas of the Ontario Court of Justice not to attend at any place known to [him] to be the place of employment, education or residence of Stephen Mitchell House or Michelle Savard, contrary to section 127 of the Criminal Code of Canada.
[3] The appellant is the father of Troy Landry. Troy Landry and Michelle Savard lived in a common-law relationship and were married for a total of 14 years. Their relationship ended in separation in 2008. They were the parents of three children, Shalina, Shade and Madeleine. As of July 7, 2010 Michelle Savard was living in a common-law relationship with Stephen House at 135 Woodpoppy Court in Kitchener. Shade and Madeleine lived with their mother and Shalina lived with her father. Troy Landry lived with the appellant and the appellant’s wife. At least in the initial stages of the separation, there was significant tension and animosity between Troy Landry and Michelle Savard. The appellant had shown animosity towards Michelle Savard as a result of the marital breakup.
[4] On July 7, 2010, the tires on Michelle Savard’s 2004 Cavalier automobile were slashed or punctured as the car was parked overnight in the driveway at 135 Woodpoppy Court. This was not the first occasion when the tires on vehicles belonging to Michelle Savard and Stephen House were slashed or punctured while parked in the driveway. The first time this occurred was after Troy Landry and Michelle Savard had separated. As result of the previous damage to car tires, Michelle Savard and Stephen House had installed a video surveillance camera to capture and record events that occurred on their driveway. The tires on Michelle Savard’s vehicle being slashed or punctured on July 7, 2010 was captured by the video surveillance camera. The focus of the trial was the identity of the person depicted on the video who did the slashing or puncturing.
[5] The appellant represented himself at the trial although counsel was appointed pursuant to section 486.3 of the Criminal Code to conduct the cross examinations of Michelle Savard, Stephen House and Shade Landry. The DVD from the surveillance camera was made an exhibit and was played several times during the course of the trial. It was not possible to identify the culprit from the exhibit. The trial judge stated in her reasons:
In any event, I would agree with both parties in this case that if one looked only at the video it would not likely amount to proof beyond a reasonable doubt with respect to who the person was. I would agree that unless you know who the person is in the video, you have no chance of figuring out who it is in the video because of the balaclava; because of the distance between the surveillance camera; and because of the short span of time that it takes to slash the four tires.
[6] Michelle Savard identified the appellant as the person in the video. She testified that before she first observed the surveillance video she knew that it was the appellant who had damaged the tires on her vehicle. She then went on to explain why she was able to identify the culprit as the appellant. She relied on the size of the person’s arms, the way the person crouched down and by the way he ran. She related all of those descriptors to the appellant.
[7] Shade Landry testified that he thought the person in the surveillance video looked like his grandpa Bruce, meaning the appellant. He described observing, in a closet in the home where his father and the appellant lived, clothing similar to or consistent with the clothing worn by the person in the surveillance video.
[8] Stephen House was the final Crown witness. The Crown asked him questions about his familiarity with the appellant which prompted the response that he knew the appellant as result of the appellant uttering death threats to him. The Crown specifically asked Stephen House if he had had some “hostile communications” with the appellant. The Crown also specifically asked if those hostile communications had anything to do with the topic of car tires. Stephen House then proceeded to relate a conversation that occurred in February 2010 when the appellant physically threatened his life and his family’s safety. Stephen House also testified that on the same occasion the appellant said he liked the new tires on Stephen House’s car and that they must have been costly. The Crown then asked Stephen House why he had purchased new tires which prompted the response that his tires had been slashed. The Crown did not ask Stephen House if he could identify the person seen on the surveillance video.
[9] In cross examination, Stephen House testified that he was quite certain that the person in the surveillance video was the appellant because of his mannerisms and because of prior altercations with the appellant in which the appellant threatened his life. Later in his cross examination, Stephen House disagreed that he disliked the appellant and stated that other than a physical confrontation and being threatened the appellant, he might be a nice person.
[10] Shalina Landry was the only witness called by the defence. She testified that she did not think the person in the surveillance video was the appellant. She said the person in the video was shorter than her grandfather and moved more quickly than he did. She also disagreed with her brother, Shade, that there was clothing in a closet in her father and grandfather’s home which was similar to the clothing worn by the person in the surveillance video.
The Reasons of the Trial Judge
[11] The trial judge gave comprehensive reasons. After reviewing the evidence of Michelle Savard and Stephen House, the trial judge stated that the evidence of Shalina and Shade was critical to the Crown’s case with respect to identity. She preferred the evidence of Shade Landry. She accepted his evidence that the person on the surveillance video was his grandfather. She described him as a young man who was put in an impossible position but did the best he could. She found that he did not get caught up in trying to defend indefensible positions. He took reasonable positions about what he had seen and not seen.
[12] The trial judge found that Michelle Savard and Stephen House did not like the appellant but there was no reason why they should because he had been at least threatening to them. The trial judge also relied on the incident related by Stephen House about being threatened by the appellant and on the same occasion the appellant making an observation about there being nice new tires on Stephen House’s car.
Analysis
[13] In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, the Supreme Court of Canada confirmed that evidence of disposition or prior discreditable conduct of an accused is presumptively inadmissible. The Court in Handy also confirmed the law as stated in R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, that evidence of propensity may be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice to the accused where evidence of prior immoral or illegal acts is introduced.
[14] In the present case, the Crown introduced evidence that the appellant had, on at least one prior occasion, threatened to kill Stephen House and had threatened to physically harm Stephen House and his family. This evidence was introduced without objection but it is significant that the appellant was self represented and counsel was only appointed for the purpose of cross-examining Stephen House. No voir dire was held to determine if the probative value of the evidence of disposition or prior discreditable conduct outweighed its prejudicial effect.
[15] On the same occasion as the appellant threatened to physically harm Stephen House and his family the Crown introduced and relied upon the statement by the appellant regarding the new tires on Stephen House’s car. The comment about the new tires only takes on relevance if it is assumed that the appellant was in some way connected with damaging the tires which required Stephen House to purchase new tires for his vehicle. In this context, that evidence also relates to prior discreditable conduct on the part of the appellant.
[16] Although the trial judge accepted the evidence of Michelle Savard and Shade Landry that the person in the surveillance video was the appellant, she also relied on evidence of threatening conduct on the part of the appellant and the statement by the appellant to Stephen House about the new tires on his car. This evidence should not have been admitted without first being subjected to the test as to whether the probative value outweighed its prejudicial effect.
[17] The Crown conceded in its factum that the evidence about the appellant threatening Stephen House and his family was presumptively inadmissible and that the trial judge erred in failing to address the admissibility of this evidence. However, the Crown submits that this evidence was not relied upon by the Crown and therefore its admission amounted to a harmless error. While the evidence of the threats may not have been relied upon by the Crown, it was considered by the trial judge. Further, the Crown did rely on the comment by the appellant about the new tires on Stephen House’s car. This evidence was also considered by the trial judge in coming to the conclusion that the Crown had proven the guilt of the appellant beyond a reasonable doubt.
[18] The Crown submits that the comment by the appellant regarding the new tires is evidence of motive and is therefore presumptively admissible. Although I have difficulty understanding how the comment about the new tires on Stephen House’s car is evidence of motive in relation to the offence relating to the slashing or puncturing of the tires on Michelle Savard’s vehicle on July 7, 2000, the admissibility of such evidence should nevertheless have been the subject matter of a voir dire to determine its admissibility as evidence of motive. In R. v. Johnson, 2010 ONCA 646, [2010] O.J. No. 4153, the Ontario Court of Appeal held that although evidence establishing motive is normally admissible, when such evidence is associated with discreditable conduct on the part of an accused, the admissibility of the evidence must still be assessed after a balancing of probative value and prejudicial effect. As I have said, the comment about the new tires is evidence of prior discreditable conduct on the part of the appellant because it connects him to a prior incident of tire slashing or puncturing.
Voir Dire Regarding Identification
[19] It was submitted on behalf of the appellant that the trial judge also erred in failing to hold a voir dire to determine the admissibility of the evidence of Michelle Savard, Shade Landry and Stephen House identifying the appellant as the person in the surveillance video. In making this submission the appellant relies on R. v. Leaney, [1999] 2 S.C.R. 393.
[20] Although I would not give effect to this ground of appeal I mention it only because a voir dire should be held to determine the admissibility of this evidence at a new trial. Based on the evidence presented at the trial, Michelle Savard and Shane Landry were sufficiently familiar with the appellant that their identification evidence would have been ruled admissible had a voir dire been held. Accordingly I would apply the curative proviso. With respect to the evidence of Stephen House identifying the appellant as the person on the surveillance video, that evidence was introduced in the course of cross examination. In the circumstances it is understandable why a voir dire was not held. However, should the Crown seek to rely on the identification evidence of Stephen House at a new trial it should be subject to an admissibility voir dire because his familiarity with the appellant appears to be much less than that of Michelle Savard and Shade Landry. Also at a new trial the identification evidence of Michelle Savard and Shade Landry (as well as Shalina Landry if she testifies) should also be the subject of a voir dire.
Conclusion
[21] For the foregoing reasons, the appeal is allowed and a new trial is directed.
G. E. Taylor J.
Released: February 8, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Bruce Louis Landry
Appellant
REASONS FOR JUDGMENT
G. E. Taylor J.
Released: February 8, 2013