ONTARIO COURT OF JUSTICE DATE: 2024 10 30 COURT FILE No.: Brampton 3111 998 22 3121
BETWEEN:
HIS MAJESTY THE KING
— AND —
JATINDER LALLI
Before: Justice G.P. Renwick
Heard on: 29-30 October 2024 Reasons for Judgment released on: 30 October 2024
Counsel: L. Eikelboom, for the Crown P. Dhaliwal, for the Defendant Jatinder Lalli
RULING ON S.9(2) CANADA EVIDENCE ACT APPLICATION
INTRODUCTION
1During the Defendant’s trial for assaulting his wife (the complainant), causing her bodily harm and related charges, the prosecutor has brought an Application seeking leave to cross-examine its witness on a prior inconsistent statement, pursuant to s. 9(2) of the Canada Evidence Act.
2Yesterday, evidence was taken on the Application from the complainant and police officer Ghassan Atme, who took the statement. A transcript of the complainant’s unsworn video statement to the police, given in the hours after the alleged assaults, was the sole exhibit on the Application. I have not seen the video statement, which was not produced as an exhibit.
3Today, counsel for both sides relied on caselaw and made submissions on the Application.
4The parties agree that the statement upon which a party seeks leave to cross examine its own witness must have some markers of reliability, but this is a low threshold. As well, the parties disagree whether the threshold for the use of the statement has been met in this case.
GOVERNING PRINCIPLES
5With trademark brevity and clarity, Justice Watt outlined the governing principles for applications to cross-examine a party’s own witness on a prior statement:
i. s. 9(2) permits a limited exception to the general rule that a party cannot cross-examine its own witness;
ii. the party seeking to rely upon s. 9(2) must allege that its witness made a recorded statement which is inconsistent with the witness’ current testimony;
iii. the court may, not must, grant leave to permit cross-examination “as to the statement;”
iv. to determine the issue, the judge should determine whether the ends of justice are best attained by permitting the Application;
v. if permitted, the cross-examination is limited in scope to the requirement within s. 9(2): “as to the statement;”
vi. as well, the witness may be asked whether their departure from the earlier statement is to protect the defendant;
vii. the statement, even if adopted by the witness, does not become admissible for the truth of its contents; rather, the cross-examination may provide the trier of fact with tools to assess the weight to be given to the witness’ trial testimony; and
viii. reliability is not an essential component of a prior statement for the purposes of the s. 9(2) Application, at least not in the same sense that reliability is used in connection with an application to adduce the contents of the statement for substantive admissibility (a hearsay purpose). [1]
EVIDENCE
6Given that the trial is mid-stream, and the short turnaround for this ruling, I do not propose to recapitulate the entire evidential landscape that forms the basis for the Application. I have heard and reviewed the evidence of both witnesses, but I will only comment on the salient parts of their testimony. The parties agreed that trial testimony could also become part of the evidence on this Application.
7The complainant initially testified about an incident at her home with her husband, the Defendant, that gave rise to police involvement. During an evening with friends over, the two began to argue because she had made a comment about one of the Defendant’s friends. After the friends left, the argument escalated to a physical confrontation. “We started pushing each other around,” is how the complainant described the start of the physical confrontation. She testified that each pushed and shoved the other. At some points the complainant said “stop,” and at other points so did the Defendant.
8They continued to fight and hurt each other. The complainant testified about a cut to her nose and forehead and having a broken arm. She did not know with any precision how her injuries occurred, but she did remember falling at one point and scraping her knees. The complainant testified that the Defendant tried to help her up and she told him to let go and when he did, she fell forward and that is when she hit her head on the bedroom dresser. She had no memory about the cause of her broken forearm.
9The complainant testified that she went by ambulance and received treatment for the cuts on her forehead and nose (two stitches each) and a cast for her broken forearm. She was then told that she had to go with the police to the station to provide her statement despite wanting to go home to sleep. When asked if she was afraid during the incident, the complainant testified that she was not afraid of her husband, “I just wanted someone to stop [the fighting].”
10The transcript of the complainant’s statement contradicts her trial testimony in several respects:
i. While testifying, the complainant indicated that she called her parents “to mediate” the fight between them. She was not afraid of her husband and she called her parents to stop the fight. In her statement she said, “Um, I called my parents because I was afraid that he wasn’t gonna stop hitting me, and at points, like he had my neck like I thought he was gonna choke-, he was gonna kill me.” (p. 5);
ii. In her evidence, the complainant said that they both started fighting after the friends had left. In her statement she described asking “what the fuck, right…and then he just-, that’s it. That’s where it started. He started hitting me. He started hitting me. At first he was just like-, kind of like punching me and throwing me around, whatever, and I was mad. So like I was yelling back at him and stuff at that point, and then like a light switch went off or something and then he just like got really violent and he, he was-, like I felt like I couldn’t breathe.” (pp. 6-7);
iii. While testifying, the complainant made the physical confrontation sound consensual and equal: both gave as good as they got. Conversely, in her statement she said, “I tried to fight back. I tried as much as I could to fight back ‘cause there were points where I was like, he’s gonna kill me. Like I can’t breathe. I can’t breathe. And his grasp around my neck was so tight. Like, um, I tried to fight back as much as I could. I tried to bite him, um, I tried to fight back. I did. …Mm-hmm. He was like choking me. Choking me, pulling my hair, just literally throwing me into the dresser-, the corner, the sharp edge of the dresser so many times….He was just throwing me around all over the place. A lot bigger than I am.” (p.11);
iv. During her testimony in chief, the complainant reviewed the photographs taken by police. In respect of exhibit 3J, which shows marks on the left side of the complainant’s neck, she testified that she did not remember anything specifically happening to her arm or neck. While speaking with police she told them: “Like he was choking me. …Like it happened multiple times. Like while we were standing it happened, when he had me pinned to the floor and he was doing it.” (p.12);
v. In her evidence the complainant did not acknowledge that the hair on the bedroom floor captured in photograph exhibit 1A was hers. In her statement she said, “He pulled my hair and like I, like I know it came out, a bunch of it came out…” (p.14); and
vi. While testifying the complainant said that this was two drunken people fighting. When asked how much wine she had consumed during the evening, the complainant said, “Two, three glasses of wine.” (p. 19).
11Constable Atme testified about the circumstances surrounding the taking of the complainant’s video statement. She had been brought to the Intimate Partner Violence Unit, but he was unsure how she arrived. He was aware that she had been to the hospital and received treatment for her arm, but he was unaware of any medications the complainant had received.
12The officer testified that he did not observe the effects of any medications upon the complainant. She appeared to understand him and her answers to his questions were responsive. He was aware that she was tired and had been awake all night when he took the complainant’s statement at 7:57 to 8:56 am.
ANALYSIS
13The Defendant opposes the Application on the following grounds:
i. The statement is unreliable; it is unsworn; the complainant was on medications; she had consumed alcohol; she was sleep-deprived; and she was emotional;
ii. The complainant admitted to the court that she had minimized her role in the physical altercation when she spoke to police, for this reason the statement is not objective or accurate; and
iii. There is little to be gained by cross-examination where the complainant is unlikely to adopt the contents of the statement or change her trial testimony.
14I find that the inconsistencies between the complainant’s trial testimony and her statement to police are patent. This is not simply a case of the passage of time. The complainant testified that she had recently reviewed her statement. She did not want to review it when asked by the prosecutor. I find that she is apparently holding the truth of what happened, and specifically how she was injured, hostage.
15I infer that the complainant may have a motive (to assist the Defendant) in what appears to be her feigned memory loss. This is something that can properly be explored during cross-examination, if permitted.
16It is obvious that the police did not take a sworn statement from the complainant. However, the cautions given prior to the start of the taking of the statement are noteworthy. The complainant was told the following at the start of her interview:
i. “It is important to be truthful throughout the investigation, including while providing the statement;”
ii. “The investigation is a search for the truth. So be accurate as possible;”
iii. “If you do not remember something or do not know the answer to the question, do not guess. If you remember something later, it is important to let us know;”
iv. “Mistakes are not the same thing as a deliberate lie. It is okay if you make a mistake. If you realize later you made a mistake, you should let us know.”
v. “It is important to understand that if you mislead or obstruct the police, there may be criminal consequences;”
vi. “It is important to understand that you may be a witness at a trial concerning the events you describe in your statement;” and
vii. “I’m looking to get as much details as possible, and if you don’t know something, it’s okay. Say, I don’t know. There may be some tough questions I’m going to ask you and there may be, um, uncomfortable conversations, but it’s important for me to know all of these things, okay.”
17The complainant never refused to answer any questions. She did not seek to halt or pause the interview at any point. She never sought legal advice before speaking to the police.
18The Defendant submits that the complainant was feeling the effects of the medications she had taken (the ambulance report indicates she had been given an IV drip with fentanyl, while other medicals indicated she also had received morphine for her pain). Also, she admitted in her testimony that she was drunk. Lastly, she was exhausted and sleep deprived.
19I would note that the officer conducting the interview had no apparent concerns with the state of sobriety or fatigue of the complainant. Admittedly, the officer noted that the complainant was likely exhausted, but she never specifically addressed this either time he mentioned it. Moreover, there is nothing on the face of the interaction captured in the transcript that demonstrates any difficulty understanding or communicating on the part of the complainant. The claim that at 8:00 am she was still feeling the effects of up to four glasses of wine (what the medicals indicate that the complainant had reported for prior alcohol consumption) she had consumed before 2:00 am rings hollow.
20Granted, the complainant may not have been in the best frame of mind when she spoke with police, and she would have been tired and sleep deprived. Nonetheless, I am not concerned that her statement is so unreliable as a result that it would create an unfairness to permit cross-examination upon that statement.
21Cross-examination can canvass any possible motive on the complainant’s part, while testifying. This is a valid reason, among others, to permit cross-examination of the complainant by the prosecutor as to her prior statement to police.
22I find that the ends of justice would be best met by permitting the prosecution to conduct a limited cross-examination of its witness as permitted by s. 9(2) of the Canada Evidence Act.
CONCLUSION
23The Application succeeds.
Released: 30 October 2024 Justice G. Paul Renwick
1R. v. Taylor, 2015 ONCA 448 at paras. 43-51.