ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 196/09
DATE: 20120207
B E T W E E N:
HER MAJESTY THE QUEEN
Jason Gorda, for the Crown
Respondent
- and -
SHANE SMITH
Ron Jourard, for Mr. Smith
Appellant
HEARD: November 8, 2011
TROTTER J.
REASONS FOR JUDGMENT
[ 1 ] On February 9, 2009, after a trial before the Honourable Justice Lloyd Budzinski of the Ontario Court of Justice, Shane Smith was found guilty of dangerous driving, contrary to s. 249 of the Criminal Code . Mr. Smith subsequently received a conditional discharge.
[ 2 ] Mr. Smith appeals his conviction on two bases. First, he argues that the trial judge erred in concluding that a defence witness adopted a statement he had given to the police. Secondly, he argues that the trial judge misapprehended or failed to consider material evidence. I find that the trial judge erred in concluding that the passenger adopted the statement he gave to the police. Because this finding was integral to the trial judge’s ultimate conclusion that the charge had been proved beyond a reasonable doubt, the appeal must be allowed.
[ 3 ] It is not necessary to say a great deal about the evidence. The dangerous driving conviction relates to the appellant’s conduct in a residential neighbourhood. The police observed the appellant’s driving shortly before he entered the residential neighbourhood, but that driving does not form the basis of the charge. A pedestrian living in the neighbourhood described the appellant as driving down a narrow street in an erratic, unnecessary and reckless manner. At trial, the appellant admitted that, if the evidence of the pedestrian was accurate, and if the statement of his passenger (which confirmed the pedestrian’s evidence) was admissible, he would be guilty of dangerous driving.
[ 4 ] The appellant testified in his own defence, portraying himself as having driven in a very responsible and careful manner. The appellant called his passenger, Errick Rosa, as his own witness. During his evidence, Mr. Rosa essentially confirmed the appellant’s version of events. In cross-examination, he was confronted with a statement he had given to the police. I reproduce the following exchange with the Crown because it is important to the resolution of the main issue in this case:
Q.: So, do you recall at that point, when you’re being searched by Officer Moxhan, saying to that officer: “I know my buddy was speeding and driving like an idiot. I have no idea why. I told him to just – I told him to stop and just drop me off, but he kept going. I guess he wanted to see your car. And who you were? He didn’t know you, so he took off. I tried to tell him to slow down and stop. We were just killing time after paint ball.” Do you recall saying that to Officer Moxhan?
A.: I believe so, if it’s written down.
Q.: So you said that?
A. : Yeah.
Q.: Okay. So, you said your buddy was speeding and you knew it? Right?
A: Well, he wasn’t speeding. I guess I was upset on (sic) the moment that – yeah.
Q. : Okay. So, you – but you agree, that you said that to the officer?
A. : Well, if it’s written down, yeah. That’s the statement there.
Q. : Okay. You said he was speeding and driving like an idiot?
A. : Well, I called him an idiot, yeah.
Q. : You called your friend an idiot?
A. : Yeah.
Q. : Because of the way he was driving?
A. : For getting us in that situation. I thought it was actually quite stupid.
Shortly afterwards, the trial judge intervened. After a series of questions, the witness was asked: “…but you are saying whatever you told the officer was correct. Is that what you are saying?” Mr. Rosa answered: “Well, I guess so, yeah.” When cross-examination resumed, Mr. Rosa denied that the appellant was speeding. He explained that he was intimidated by the police at the time. In this regard, I note that, when the appellant and Mr. Rosa were approached by police, one of them had his gun drawn.
[ 5 ] In his Reasons for Judgment, the trial judge highlighted the importance of Mr. Rosa’s statement. He asked himself the following question:
Did the passenger adopt a statement that he had given to the police earlier? That statement that he gave to the police at the scene as compared to his evidence in court is supportive, the court finds it supportive of the pedestrian’s evidence.
After describing the alleged manner of driving, the trial judge answered his own question in the following way:
I find that the passenger admitted making a statement to the police. He could not recall what he told the police officer, but in the totality of his evidence, there was an inference that he told the police the truth. In any event, the statement given to the police was one that was volunteered by the passenger. It could be described as a statement against the self interest of the driver and the passenger in the car and it is supported by the pedestrian’s evidence.
[ 6 ] Mr. Rosa’s adoption of his statement turned out to be important in the trial judge’s final analysis. As the trial judge stated:
At the end of the day, the court finds that the description of events as described by both the passenger in his statement to the police and the pedestrian are supportive of each other. And as such, based on the comments by the defence in argument and the law of dangerous driving, the court is satisfied that the Crown has made out its case of dangerous driving beyond a reasonable doubt.
[ 7 ] On behalf of the appellant, Mr. Jourard argues that the trial judge erred in relying on Mr. Rosa’s out-of-court statement because it had not been proved through extrinsic evidence. That is, because Mr. Rosa said that he could not recall making the precise statement that it would appear that he made, the Crown was obliged to prove the existence of the statement through the officer that took it. Alternatively, Mr. Jourard argues that the trial judge erred in finding that Mr. Rosa adopted his statement and, as such, it could only be used to assess his credibility as a witness: see R. v. Mannion (1986), 28 C.C.C. (3d) 544 (S.C.C.), at p. 549.
[ 8 ] The issue of what is required before a witness can be said to have adopted a prior statement was addressed by the Court of Appeal in R. v. Toten (1993), 83 C.C.C. (3d) 5 (Ont. C.A.). Writing for a five-person panel, Doherty J.A. said the following at pp. 23-24:
The adoption of out-of-court statements by witnesses during their testimony occurs most commonly when a witness is confronted in cross-examination with a prior inconsistent statement. If the witness acknowledges making the statement, the witness may be asked whether the prior statement is true. If the witness testifies that the prior statement is true, the witness is said to have adopted the prior statement. Where a witness adopts a prior statement as true, the witness incorporates that statement into his or her evidence at trial so as to make the prior statement part of the trial testimony: R. v. Deacon , [1947] S.C.R. 531 at p. 534. To incorporate the prior testimony, the witness must be able to attest to the accuracy of the prior statement based on the witness' present memory of the facts referred to in that statement. In this sense, adoption refers to both the witness' acknowledgement that he or she made the prior statement and the witness' assertion that his or her memory while testifying accords with the contents of the prior statement : R. v. Atikian (1990), 1 O.R. (3d) 263 (C.A.) at p. 268; R. v. Smith (1985), 66 A.R. 195 (C.A.) at p. 200.
See also R. v. McCarroll (2008), 238 C.C.C. (3d) 404 (Ont. C.A.), at pp. 412-418.
[ 9 ] This passage from R. v. Toten , supra, contemplates a two-step process. First, the witness must acknowledge having made the prior statement. If the witness acknowledges doing this, there is no need for it to be proved through extrinsic evidence. Secondly, if the witness acknowledges the prior statement, it can only be said to be adopted by the witness if he/she testifies that it is true.
[ 10 ] In this case, based on the passages from the testimony of Mr. Rosa that are reproduced above, he admitted to making the statement to the police. Looking at his evidence as a whole on this point, Mr. Rosa did not dispute the accuracy of what was written down. Indeed, he later explained that he may have said what he did to the officer because he was intimidated. In the circumstances, there was no need to prove the statement through independent evidence.
[ 11 ] The real issue is whether Mr. Rosa adopted his statement as true. I do not think he did. I acknowledge that the issue of whether a witness adopts a prior statement is a question of fact: see R. v. McCarroll , supra, and R. v. Steirs (2010), 255 C.C.C. (3d) 99 (Ont. C.A.), at p. 113. However, I believe that the two steps inherent in this process became blurred in this trial. As noted in the prior paragraph, Mr. Rosa clearly had a memory of the events in question and acknowledged that, if the police said he made a statement, then that is what he said to them. He gave numerous answers that would support the finding that he admitted to making a statement to the police. However, the evidence concerning the second step in Toten , supra, falls short. It is true that, in answering the question from the trial judge (“Well, I guess so, yeah”), he seemed to agree that his statement to the police was truthful. However, it is clear from the rest of his evidence that he did not accept the contents of the statement as true in so far as it related to the appellant’s driving. He admitted to calling the appellant an “idiot” in his statement. But at trial, he gave a different reason for doing so, one that the Crown noted was quite different from the original way he used this expression.
[ 12 ] In the end, the evidence falls short of supporting the learned trial judge’s conclusion that Mr. Rosa adopted his prior statement. As such, the statement could only be used to assess his credibility. It did not become incorporated into his evidence in the sense contemplated in R. v. Deacon , [1947] S.C.R. 531.
[ 13 ] As the passage from the trial judge’s Reasons for Judgment in paragraph 6 reveals, the so-called adopted statement played a pivotal role in the trial judge’s conclusion that the Crown had established Mr. Smith’s guilt beyond a reasonable doubt. Reading the trial judge’s Reasons in their entirety, I am unable to determine whether he would have reached the same result had he concluded that Mr. Rosa had not adopted his statement. [1] It is for this reason that the conviction must be set aside. In reaching this conclusion, I observe that this case was a close call, the conduct in question residing at the lower end of what would constitute a marked departure within the meaning of s. 249 of the Criminal Code : see R. v. Hundal (1993), 79 C.C.C. (3d) 97 (S.C.C.) and R. v. Beatty (2008), 2008 SCC 5 , 228 C.C.C. (3d) 225 (S.C.C.).
[ 14 ] Before concluding, I wish to address an issue that was raised in the appellant’s written materials, but not pressed during oral argument. At trial, the 21-year-old appellant was self-represented. It was submitted that the learned trial judge did not provide him with the level of assistance necessary to ensure a fair trial because he did not warn the appellant about the potential pitfalls of calling Mr. Rosa as a witness. I disagree. From beginning to end, every step of the way, the learned trial judge provided very helpful assistance to the appellant. He explained things as they were about to happen, explained the appellant’s options and suggested that the appellant speak to duty counsel at various junctures. The trial of this self-represented accused person was a model of fairness. Moreover, the trial judge would not have known about Mr. Rosa’s prior statement until it was adduced by the Crown during cross-examination.
[ 15 ] For the foregoing reasons, the appeal is allowed and a new trial is ordered.
TROTTER J.
Released: February 7, 2012
COURT FILE NO.: 196/09
DATE: 20120207
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - SHANE SMITH Appellant
REASONS FOR JUDGMENT
TROTTER J.
Released: February 7, 2012
[^1]: I note that, earlier in his Reasons, the learned trial judge spoke about considering the evidence as a whole: “‘Harmony’ is the key word. In other words, you look to examine a witness’ evidence within itself for harmony. You look to examine a witness’ evidence with other witnesses to look for harmony. And you look to examine the witness’ evidence with the totality of the picture that evolves on all of the evidence to look for harmony.” In this case, this is precisely what the trial judge did.