



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

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 appellants 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 witnesss 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 counsels 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 doesnt mean that
    youre 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 judges 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 Officers Gillans 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.


