DATE: 2004-11-17

DOCKET: C41772

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ATIF TOOR (Appellant)

BEFORE:

WEILER, SIMMONS and JURIANSZ JJ.A.

COUNSEL:

Sil Salvaterra

for the appellant

Riun Shandler

for the respondent

HEARD & RELEASED ORALLY:

November 5, 2004

On appeal from the order of Justice Paul S. Rouleau of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated April 7, 2004, dismissing an appeal from the conviction entered by Justice Thomas P. Cleary of the Ontario Court of Justice dated July 10, 2003.

E N D O R S E M E N T

[1] A judge of the Ontario Court of Justice convicted the appellant of threatening bodily harm and the appellant’s appeal to the Summary Conviction Appeal Court was dismissed. The principal basis of the conviction was the complainant’s signed statement, which was admitted as past recollection recorded by both the trial judge and the Summary Conviction Appeal Judge. The statement was admitted because at trial the complainant was unable to recall the incident in question and could not remember making the statement to the officer, or even meeting the officer.

[2] Before us the respondent concedes that the statement should not have been admitted as past recollection recorded as it did not meet the third criterion in Wigmore, namely: that the witness, although unable to recall a recorded event, is able to now assert that the record accurately represented his or her recollection at the time. The respondent submits however that the statement was admissible under the principled exception to the hearsay rule and that there has been no substantial wrong or miscarriage of justice.

[3] The appellant concedes that the statement meets the necessity criteria but submits it does not meet the reliability criteria.

[4] There are two aspects to reliability: the first is reliability respecting how the statement is recorded and the second is reliability respecting the content. In respect of the first aspect, the appellant submits that there was a language or communication difficulty between the complainant and the police officer and that the statement was not reliably recorded. We would not give effect to the appellant’s argument that the statement was not reliably recorded.

[5] The trial judge dealt with the issue of whether the statement had been reliably recorded in ruling that the requirements of past recollection recorded were met and found that the statement was reliably recorded. His ruling is amply supported by the following factors: first, the statement was recorded verbatim in question and answer format. Second, officer Bobesich, who took the statement, said that he kept an accurate record and that although the complainant spoke with a thick accent he had no difficulty communicating with her. Finally, after Officer Bobesich reviewed the complainant’s statement with her, and explained the purposes for which it would be used, she stated that the statement was correct and true.

[6] The appellant further submits that the record lacked a sufficient number of the safeguards that courts have traditionally relied upon to determine the truth or falsity of evidence.

[7] In relation to the circumstantial guarantees of trustworthiness, the Crown relies upon the following factors with which we agree:

(i) Mrs. Toor gave her statement within minutes of the officer receiving the call over his radio;

(ii) There was no suggestion that she had a motive to lie;

(iii) Her statement was not given in response to leading questions;

(iv) Mrs. Toor’s statement was recorded verbatim and read back to her. She confirmed at that time that the statement was accurate, and signed her name at the bottom. At trial, Mrs. Toor identified the signature at the bottom of her statement as her own;

(v) Without prompting, Mrs. Toor named her son as the person who had threatened her; and,

(vi) There was no indication of misconduct by the officer in obtaining or recording her statement.

[8] Circumstantial guarantees of trustworthiness of this nature are a sufficient basis to support admissibility. See R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723 at para 22.

[9] The statement was admissible as an exception to the hearsay rule. The appeal is therefore dismissed.

“K.M. Weiler J.A.”

“Janet Simmons J.A.”

“R.G. Juriansz J.A.”