COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Woodman, 2016 ONCA 63

DATE: 20160122

DOCKET: C60326

MacPherson, MacFarland, and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Woodman

Appellant

Jeffrey Woodman, in person

Michael Dineen, duty counsel

Robert Gattrell, for the respondent

Heard: December 3, 2015

On appeal from the conviction entered on November 20, 2014 and the sentence imposed on April 7, 2015 by Mr. Justice G. Taylor of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

Overview:

[1] The appellant, Jeffrey Woodman, appeals from his conviction and sentence for six offences, arising out of the high-speed car chase following the appellant’s shoplifting with a group of friends during the evening of September 7, 2013. When a police officer approached the car, it was driven directly at and struck him, causing him serious injuries. The main issue at trial was who was driving the car when it struck the officer.

[2] The trial judge sentenced the appellant to four years and eight months in custody, after giving one year and four months’ credit for pre-trial custody.

Conviction appeal:

[3] The appellant submits that the trial judge erred in admitting for the truth of its contents the unsworn videotaped witness statement that Kevin Sinson gave to the police at 3:00 a.m. on September 8, 2013. At trial, Mr. Sinson claimed to have no recollection of the relevant events because he was under the influence of heroin. In his statement to police, Mr. Sinson identified the appellant as the driver of the vehicle that struck Sergeant Fenton.

[4] The appellant admits that in the evening of September 7, 2013, he was shoplifting at Zehrs with others and that, as confirmed by videotape, he entered the driver’s seat of a black Hyundai in which Mr. Sinson was a passenger. He also admits that when a police cruiser approached, he caused the car to speed off, reaching a speed of 100 kilometres per hour. The appellant argues, however, that he was not driving the car when it struck and injured Sergeant Fenton.

[5] The appellant maintains that without Mr. Sinson’s statement, there was insufficient evidence to prove that the appellant was the driver of the car when it struck Sergeant Fenton.

[6] Mr. Sinson was one of three males, including the appellant, in the car that evening. No other witness, including Sergeant Fenton, could identify the driver of the car that struck him. The appellant argues that Mr. Sinson’s statement was not reliable because of his admitted heroin abuse, his strong motive to lie and blame the appellant, and the futility of cross-examination because of his lack of recollection. The appellant submits that the prejudice to the appellant caused by the statement’s admission outweighed any probative value that it may have had.

[7] We disagree. The trial judge properly exercised his role as gatekeeper in admitting Mr. Sinson’s statement that met the twin threshold requirements of necessity and reliability: R. v. Youvarajah, 2013 SCC 41, at para. 21.

[8] There is no question that Mr. Sinson’s failure or refusal to recollect the events of September 7, 2013 and adopt his prior statement rendered necessary his statement’s admission for the truth of its contents.

[9] Further, there is ample evidence to support the trial judge’s finding that Mr. Sinson’s statement met the criterion of threshold reliability required to be admitted for the truth of its contents, including: Mr. Sinson’s statement was given to police within hours of the relevant events and was videotaped; his demeanour and credibility at the time the statement was given could be assessed on the videotape, in particular, as the trial judge observed, that Mr. Sinson appeared to be coherent, responsive to questions, not under the influence of heroin or alcohol, and anxious to co-operate with the police; Mr. Sinson was available to be cross-examined on his statement and his failed memory at trial; and several aspects of Mr. Sinson’s statement, including the sequence of events, the route taken by the car, and the interactions with Sergeant Fenton, were confirmed by the video recording and/or the testimony of Mr. Sinson and Sergeant Fenton.

[10] The appellant relies on R. v. Youvarajah to argue that the indicia of reliability relied upon by the trial judge in this case, including Mr. Sinson’s availability for cross-examination at trial and the solemnity of the circumstances in which he gave his statement to police, are not sufficient to meet the criterion of threshold reliability. Further, the appellant submits that the trial judge failed to address Mr. Sinson’s powerful motive to lie in his statement. In R. v. Youvarajah, the trial judge’s refusal to admit at trial a recanting co-accused witness’ statement for the truth of its contents was upheld by the Supreme Court of Canada because it did not meet the criterion of threshold reliability notwithstanding that the co-accused was available for cross-examination and the statement was prepared by his lawyer and entered at his trial.

[11] Notwithstanding Mr. Dineen’s very able submissions, in our view, the circumstances of R. v. Youvarajah are distinguishable from the case at bar. In R. v. Youvarajah, the Court noted the absence of the following indicia of reliability that are present in the case at bar: the statement in issue was an agreed statement of facts prepared by the co-accused’s lawyer rather than the witness’ own spontaneous words, for use at his own separate youth trial as part of a plea agreement; the co-accused testified that he did not understand everything that he read in the statement; the statement was not videotaped so that there was no opportunity to assess the co-accused’s demeanour or credibility; and the co-accused not only recanted his previous statement but admitted at the appellant’s trial the acts in which he had implicated the appellant in his previous statement. Most important, cross-examination of the co-accused would be effectively precluded by his invocation of solicitor-client privilege. None of these factors features in the present case.

[12] Mr. Sinson’s statement was highly relevant. The trial judge determined only the issue of threshold reliability. The issue of the statement’s ultimate reliability and the weight, if any, to be given to the statement, was properly left to the jury; and the jury received proper instructions on how they were to evaluate Mr. Sinson’s statement. See: R. v. Taylor, 2015 ONCA 448, at para. 70.

[13] Absent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference: R. v. Youvarajah, at para. 31. We see no error and would not interfere.

Sentence:

[14] With respect to the appellant’s sentence appeal, neither counsel made submissions. In his notice of appeal, the appellant argues that his sentence was too high and out of the applicable sentencing range.

[15] There is no basis to disturb the trial judge’s sentence that is entitled to deference in this court. The sentence was entirely fit and appropriate in the circumstances of this case.

[16] While the appellant pleaded guilty to some of the offences, his lengthy and related criminal record, including 18 previous offences against the administration of justice, the fact that he committed these offences when there were outstanding warrants for his arrest on charges of dangerous driving and aggravated assault, as well as his deliberate attack against a vulnerable police officer who suffered serious injuries, required the sentencing judge to give predominant weight to the sentencing principles of denunciation and deterrence.

Disposition:

[17] For these reasons, the appeal from conviction is dismissed. While leave to appeal the sentence is granted, the appeal from sentence is dismissed.

“J.C. MacPherson J.A.”

“J.L. MacFarland J.A.”

“L.B. Roberts J.A.”