



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. Laings 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 Laings 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 Laings 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 Laings 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 Laings 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 accuseds criminal record in order
to safeguard the accuseds right to a fair trial:
R. v. Corbett,

[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
accuseds 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
judges discretion. At the end of the day, the question is whether it is
necessary to limit cross-examination on an accuseds criminal record in order
to guarantee the accuseds 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 appellants
Corbett
application,
ruling that his entire criminal record was admissible. The appellant chose not
to testify following the trial judges 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. Laings 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. Langs 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
appellants 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 counsels 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), 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 accuseds 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 prosecutions 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 Crowns 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 Crowns 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 judges 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; isnt that correct?

A: Thats not correct.

Q: And isnt 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: Thats incorrect.

Q: I suggest to you what happened is that you didnt 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; isnt 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; isnt 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, isnt that correct?

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

Sergeant Tsianos

Q: Im 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; isnt that correct?

A: Thats 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 didnt tell you about it here, they told you about it back at the debrief
when you were making these notes; isnt that correct?

A: No.



Q: Similarly, I suggest, werent you involved with Detective
Chant in planting cocaine on Mr. Laing as well; isnt that correct?

A: No.

Detective Tucker

Q: And I suggest that you diminished whats 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 youve recorded them in your notes as personal observations, but they
werent, in fact, anything you observed?

A: I made those direct observations.

Q: I suggest to you that you couldnt 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 wasnt in possession of them.

A: Thats incorrect.

[30]

Plainly,
the appellants 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 prosecutions 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 appellants
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] 2
S.C.R. 680, the principles of which are summarized in
R. v. Bero
(2000),
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
appellants 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 judges 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
appellants 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), 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 judges 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
Crowns 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.








