Court File and Parties

Ontario Court of Justice

Date: 2014-10-07

Court File No.: Orangeville (Caledon) 140533

Between:

Her Majesty the Queen

— and —

Shazad Sesook

Before: Justice Douglas B. Maund

Heard on: August 22, September 24

Ruling released on: October 7, 2014

Counsel:

• Mr. Mark Poland — counsel for the Crown
• Mr. Richard Allman — counsel for the accused Shazad Sesook

Ruling

Introduction

[1] The accused before the Court, Shazad Sesook, is charged with criminal offences alleged to have occurred on June 14, 2014 at the Town of Caledon. The criminal charges include impaired operation, over 80, operation of a motor vehicle while disqualified and two offences contrary to section 4(1) of the Controlled Drugs and Substances Act.

[2] This Ruling is in respect of an Application by the Crown to admit statements made by the Defendant's two children immediately after he was arrested at the family home in Caledon. The children are Shemar Sesook, born March 22, 2002 and Shamir Sesook born March 10, 2006. Accordingly, these children were ages twelve and eight respectively at the date in question. The Crown submits these third party statements on the basis of the common law exception to the hearsay rule referred to as res gestae.

The Facts

[3] For the purpose of this ruling, I will not summarize in detail the evidence of the Crown heard to date. Rather I will attempt to present the circumstances in which the statements by these children were heard and recorded. On June 14th, 2014 the spouse of Mr. Sesook, Cheryl Chan, telephoned the 9-1-1 operator to report that her ex-husband was driving a motor vehicle while impaired. The information relayed was that Ms. Chan had received a pocket dial call from one of her sons who she believed were in the motor vehicle with her husband. Ms. Chan told the 9-1-1 operator that she heard her son saying words including "Dad slow down you have been drinking" and "Dad you are going too fast". She said she did not know where they were but believed they were enroute to her residence at 4 McCandles Drive. She also gave the description of the vehicle and the licence number and said that it was coming from the Brampton area. Ms. Chan urgently wanted the police to find and intercept the vehicle. She had serious concerns about the safety of her children.

[4] Constable Justin McRae of the O.P.P. Caledon detachment was in the area on Airport Road and proceeded directly to the area of the residence to make observations for the vehicle. Subsequently, at approximately 9:03 p.m. P.C. McRae saw the described motor vehicle passing by his location on Aitchison Drive. He noted that the vehicle had front end damage and observed the male driver. The officer followed the vehicle to the residence on McCandles where it entered the garage. Officer McRae testified that he observed the accused, Mr. Sesook step out of the driver's door. Two small children also got out of the vehicle. While identification will be a significant issue in this trial, it is not yet necessary to deal with this issue for the purpose of this Ruling.

[5] Constable McRae observed a female party, subsequently identified as Cheryl Chan, screaming at Mr. Sesook in the garage. The officer proceeded to walk up the driveway toward the garage. However he said that when Mr. Sesook saw him he walked quickly into the house through the door in the garage.

[6] P.C. McRae called for backup before entering the house. The officer's observation was that Cheryl Chan appeared very upset when he first encountered her in the garage. He described extensive damage to the front of the motor vehicle and indicated that both front seat air bags were deployed.

[7] P.C. McRae spoke briefly to Ms. Chan who told him that she wanted him to go into the house to arrest the accused. She was upset as she believed Mr. Sesook had been driving his motor vehicle while intoxicated with the children in the car.

[8] McRae did not take any action until about a minute later when he was joined by the assisting officers, Rideout and Cordina. He then entered the house with P.C. Cordina and found the defendant standing in the second floor bathroom smoking a cigarette. He observed what he believed were signs of impairment and arrested Mr. Sesook immediately for that offence. His observations included slurred speech and red glassy eyes.

[9] Constable McRae escorted Mr. Sesook out of the house and placed him in his cruiser at the end of the driveway. The scene at the residence during the arrest was tumultuous. After his arrest Mr. Sesook was continuously yelling at all of the officers. He interfered with the arrest procedures and shouted over the reading of his rights to counsel. He was verbally abusive and insulting to the police and also yelled at Cheryl Chan who was standing in the garage. The accused was described by P.C. McRae as "very hostile" during his arrest. He was subsequently transported to the Caledon detachment.

[10] Sergeant Michael Mobbs also arrived on the scene and testified during the voir dire. Sergeant Mobbs received a request for assistance on his radio at 9:04 p.m. and arrived at the Sesook residence at approximately 9:07 p.m. Upon his arrival he immediately encountered Cheryl Chan and two boys in the garage whom he believed were either seven to nine or eleven to twelve years of age. While Sergeant Mobbs did not record their names, these were two male children of the Defendant and Ms. Chan, were subsequently identified as Shemar Sesook and Shamir Sesook.

[11] Sergeant Mobbs entered the residence briefly and encountered Mr. Sesook being escorted outside under arrest. He describes him as being very argumentative and noted that he was swearing and yelling at the officers throughout. He also described his observations of Mr. Sesook which he believed were consistent with signs of impairment.

[12] According to Sergeant Mobbs, he spoke with the two children sometime between his arrival at 9:07 p.m. and 9:19 p.m. when he left the scene. He had this conversation in the garage with the two boys and then spoke with Ms. Chan. His conversation with Ms. Chan is not relevant for the purpose of this Ruling. Sergeant Mobbs did obtain information from Ms. Chan in relation to her original complaint and the investigation. During his dealings with her, he described Ms. Chan as visibly upset and crying. This was in front of the children who were with her throughout in the garage.

[13] The officer testified that he spoke first to the two children in the presence of their mother. He did so prior to being told by Ms. Chan later that she refused to allow him to take any statements from her children. I took this reference to be to a more formal statement procedure, such as a video. Earlier the mother had not prevented or stopped the boys from speaking to the officer, according to his evidence.

[14] Despite Ms. Chan's evidence during the voir dire that the children did not speak with Sergeant Mobbs in the garage, it is clear to the Court that he did speak to them. Their information was recorded in his notes. Sergeant Mobbs described both of the children as extremely excited. He said that they were talking non-stop and at times talking over one another. The main person speaking to him was the older boy, subsequently understood to be Shemar Sesook, who was twelve at the time.

[15] While Sergeant Mobbs stated that "they" conveyed this information to him, I understood from his evidence that the primary speaker was the older boy, Shemar. The statements were not recorded verbatim but rather he paraphrased and later recorded in his notes what he was told. The children told the officer that their father had been drinking and was speeding while he was driving the car home that evening. They said they were afraid because he was drunk and driving the vehicle in that manner.

[16] When Mobbs asked the children about the damage to the front of the vehicle, they told him that they had been near a park and their father had swerved and hit something. They were unable to say where this happened. According to Sergeant Mobbs, the children made it clear that their father was driving the motor vehicle that evening. He indicated that he was 100% certain that that was what the boys told him.

[17] For the purpose of this Ruling, it will not be necessary to review and assess the evidence of Ms. Chan extensively. She was called by the Crown as a witness on the voir dire. Ms. Chan was also cross examined by the Crown pursuant to Section 9(2) of the Canada Evidence Act concerning inconsistencies between her evidence on the voir dire and her statements during the 9-1-1 call.

[18] Ms. Chan made it clear in her evidence that she had no intention of permitting the children to make any further statement to the police. As I have noted, she denied that they said anything to the officer when she was with them in the garage at any time. Ms. Chan's evidence contradicted what she was heard to say during the 9-1-1 call about the call from her son. Her explanation was that she had been under an incorrect assumption when she conveyed that information. She specifically denied ever receiving a pocket dial call from one of her sons about their father driving and speeding while drunk.

[19] As is her right, Ms. Chan declined to provide a statement to the police up to and including when she was called as a witness in the voir dire. This was despite her belief that Mr. Sesook was not driving the motor vehicle at the time and is innocent of the driving charges before the Court.

[20] In relation to how the two boys appeared to her while in the garage, she described them as "fine and normal". However, she added that they appeared to be reacting to how she was acting. That is to say that she was, in her words, "flipped out" due to her emotions. Ms. Chan indicated that she did not want the children to give any statements to the police because they were minors. She also wanted to consult legal counsel about her own situation before any statements were given. Later when asked why she was not prepared to have her two children cooperate with the police investigation she answered, "I don't know ……I choose not to."

[21] When Ms. Chan was asked by the Crown why she would not let her children, who would be expected to know the truth about who was driving the car cooperate, her answer was that she did not want them to become involved.

Analysis

[22] Unless these hearsay statements fall into a recognized common law exception to the rule against hearsay, this evidence is presumptively inadmissible. It is also potentially admissible if found to be both necessary and reliable within what is referred to as the principled exception to the rule against hearsay as stated by the Supreme Court of Canada.

[23] I adopt the definition of res gestae as stated by Justice Dambrot in R v Praljak [2003] OJ No. 4430 of the Superior Court of Justice at paragraph 30.

A spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion, often referred to as a res gestae statement, may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneously to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. (see R v. Khan (1988), 42 C.C.C. (3d) 197 (Ont. C.A.))

[24] During the events leading up to the exchange between Sergeant Mobbs and the children they had heard, according to police evidence, their mother initially shouting at their father and demanding his arrest, Mr. Sesook then leaving the garage and his return under arrest escorted by the officers in an extremely angry and agitated state. This brief interview with the children occurred within minutes of their arrival home, as witnessed by P.C. McRae. They were described as very excited and upset. This state of upset and excitement on the part of the children must relate to both the turbulence in their home and their complaint of being afraid while being driven in the car minutes before.

[25] With respect to the requirement of spontaneity, it is clear that the statements by the children must have flowed from a startling event. They appear to have been prompted by nothing more than the presence of the officer in the garage, although he did ask a specific question in relation to the damage to the vehicle. I accept the evidence of Sergeant Mobbs that the children were under visible stress when they made these statements to him. While Ms. Chan did not initially agree that her children were in this state and described them as "fine and normal," she added that they appeared to react to her own upset emotional state at that time. So there is that contradiction in her evidence. The statements on their face relate to the preceding event and the fear of the children they spoke of when they were being driven by their father. They believed he was drunk and speeding. Their state of upset in their home may also relate to their mother's demand that the officers arrest her ex-husband for driving drunk and the fact that she was very upset.

[26] I cannot find any basis from this evidence to conclude that these statements of the children were influenced by their mother. Their statements, in any event, were consistent with what Ms. Chan told the police in her 9-1-1 call and what she continued to believe and state to the arresting officer in the garage. There is no reasonable basis for an inference that the children were merely repeating what they may have heard or understood from their mother.

[27] The essential issue in this analysis is the possibility of concoction or fabrication on the part of the children. All of these circumstances including the obvious spontaneity of their statements and how they were given establish that such a possibility is extremely remote, in my view.

[28] Nor do I find that there is any basis to conclude that the statements were not reliable. The primary speaker to Sergeant Mobbs was the older child, aged 12, who was at times interrupted by his younger brother who added his own information. The statements were made in an excited rush but were not captured verbatim by the officer. Nevertheless he heard and recorded a series of statements from both of the children which established with complete certainty in his mind that both children told him that their father had driven them home minutes before. While the children were in an emotional state, there is nothing in the evidence to suggest they were influenced to fabricate by other circumstances such as compulsion or fear which might impact on the reliability of their statements.

[29] In the result, I conclude that the statements by the children are admissible within the res gestae exception to the rule against hearsay. I find that they meet the tests established by caselaw.

[30] I note that in previous caselaw, most notably Praljak, the Court also addressed the principled exception approach as a potential basis for admissibility. I have already dealt with the reliability of the statements as I assess them on the evidence. But, I will comment further that in my view, the requirement of necessity is also met on these facts. It is completely clear that Ms. Chan had and continues to have no intention to permit her children to cooperate in the investigation or give more formal statements. In these circumstances the Crown is faced with a tactical choice considering the age and circumstances of these young children. The Crown could issue and serve subpoenas which would compel the children to come to court and give evidence on these criminal charges against their father. Alternatively, the Crown is entitled to proceed, as they have done, to attempt to have their hearsay evidence admitted pursuant to the rules of evidence.

[31] Mr. Poland advised the court during argument that the Crown has no intention of placing these young children in the position of giving potential evidence against their father in a criminal trial over the active objections of their mother. The concerns raised by the Crown about doing so are fair and appropriate in my view. I do not conclude that the element of necessity is less acute because the Crown has chosen not to drag these two children into a criminal courtroom by subpoena.

[32] In the result, I find that this evidence would meet the test of both reliability and necessity in the circumstances. Clearly the probative value of the statements is significant given the important issue of who may have been operating the motor vehicle that evening. I can see no prejudicial effect. As to the usual prejudice in such cases of the inability to cross-examine the declarants, that is not the case with these speakers. The evidence of the children is available if Defence chooses to make the tactical decision to present their direct evidence to the Court.

[33] I therefore also come to the conclusion that these statements are admissible under the tests stated by the Supreme Court of Canada in relation to the principled exception to the rule against hearsay.

[34] Accordingly, the statements by the children as recorded by Sergeant Mobbs are admitted into evidence.

Released: October 7, 2014.

Justice Douglas B. Maund