



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Mansingh, 2017 ONCA 68

DATE: 20170126

DOCKET: C61448

Doherty, Blair and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan Mansingh

Appellant

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

[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.

The Jury Selection Issue

[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
Noureddin
e 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 judges comment on the defence counsels opening

[13]

The appellant ran from the police.  In his opening to the jury, counsel
    told the jury that the accuseds 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 counsels
    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 judges further instruction to disregard parts of counsels 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 accuseds 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 accuseds 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 appellants status of a young first offender.

[24]

The trial judge was alive to the appellants 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: DD  JAN 26 2017

Doherty J.A.

R.A. Blair J.A.

P. Lauwers J.A.


