ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P) 2175/12
DATE: 2013-10-09
B E T W E E N:
HER MAJESTY THE QUEEN
Kelly Slate, for the Crown
Respondent
- and -
PIRABA PALANI
R. Graham Zoppi, for the Appellant
Appellant
HEARD: September 9, 2013
REASONS FOR JUDGMENT
[On appeal from the judgment of Blacklock J. dated August 14, 2012]
Fragomeni J.
1The Appellant, Piraba Palani, was convicted of assault with a weapon contrary to Section 267 of the Criminal Code of Canada by His Honour Justice Blacklock on August 14, 2012. Initially and as set out in his Supplemental Notice of Appeal, Palani also filed an appeal against sentencing. That portion of the appeal was abandoned at the appeal hearing. The appellant concedes that the sentence imposed by Justice Blacklock was within the range.
2The Appellant also abandoned the ground of appeal relating to misapprehension of evidence and concedes that the trial judge did not err in this regard.
3The Appellant advances two grounds of appeal as follows:
The learned trial judge took judicial notice that the complainant’s injuries were inconsistent with her testimony at trial, namely that she received the injury by accident after running into a pillar. The Appellant submits that the Crown was required to call expert evidence in this regard and as such the trial judge could not make such a finding in the absence of expert evidence;
The learned trial judge erred in admitting the complainant’s 911 call for the truth of its contents under the principled exception to the hearsay rule.
Summary of the Facts
4The facts are succinctly set out in the Appellant’s factum at paragraphs 4 to 7 as follows:
This case centred on a domestic dispute between the Appellant and his wife, Ms. Priyatharshini Nudpanathan, who was the complainant. They lived at 14 Nathaniel Crescent in Brampton. They had been married for seven and a half years and had three children – Kavya (seven and half), Yaathavan (five) and Kieran (three and a half). On October 10, 2011, in the afternoon, the Appellant and his wife got into an argument. The argument took place in the living room. It concerned the Appellant’s mother-in-law, who was living with them at the time. At times she assisted them by watching the children. The Appellant wanted his mother-in-law to move out because she had a drinking problem. The complainant did not want her mother to go; she relied on her mother’s help. Both her and the Appellant worked. At the time of the argument, the children were playing outside; the complainant’s mother was upstairs. The argument got heated. The Appellant raised his voice and used foul language. She had never heard the Appellant use such offensive language towards her before. As the argument progressed, the Appellant started screaming at her. She got very nervous, panicked and scared. She ran out of the house. As the complainant ran through the front door, she ran into a stone pillar on the front porch. The collision caused an injury to her forearm, which included some swelling and broken skin. It was bleeding slightly.
Once outside, she asked her daughter to go in the house and get her cellular phone. This was about 10 minutes after she had injured herself. She said during this time she was “thinking about what happened”. Her daughter brought her the cell phone and a bag of frozen food to help with the swelling to her arm. The complainant then called 911. At trial, the Crown played the 911 tape to refresh the complainant’s memory. She said she “slightly” recalled talking to the 911 operator. She recanted the version of events that she provided to the 911 operator, where she indicated that the Appellant had hit her with a stick. She said she was nervous and panicked. She thought he hit her but, after she reflected on the incident, she was “ninety percent” certain she hit the pillar. The complainant apologized to the Court because she had “abused the system”. She testified that she called the police to “avoid the situation” with her husband. She explained that she wanted the police to come so that the Appellant would not force her mother to leave. She wanted him to leave the house, but she knew he would not go on his own. The complainant testified that the Appellant could go to his parent’s house, but her mother had nowhere to live. She admitted she “made a mistake.”
The admissibility of the 911 call was hotly contested at trial. Both the audio and a transcript were provided to the Court. The call lasted just over seven minutes. The police arrived on scene moments before the complainant hung up the phone. There was no issue about the accuracy of the call or that it was the complainant’s voice on the tape. In the call, the complainant told the operator: “My husband is harassing me. He’s hitting me with … his stick.” She later described it as a “big stick.” She was asked by the operator: “Where did he hit you?” and she replied “On my hand.” She said the Appellant was inside the house and she was outside, with her children, who could be heard in the background.
The Crown called the two responding officers, Csts. McKenzie and Fiore. Cst. Fiore was the first one on scene. He took the Appellant into custody. When he arrived, he saw the complainant outside. He observed a fresh wound to her left forearm, which was bleeding. He recalled she had ice on the injury. Cst. McKenzie provided a similar account. When she arrived, Cst. Fiore had the Appellant under arrest. She located a stick inside the front door. The complainant directed the officer to the stick. She confirmed that there were pillars on the front porch. Cst. McKenzie described the complainant’s injury as freshly broken skin, with light swelling, located in the middle of her left forearm. The complainant had a bag of frozen perogies on the injury. Cst. McKenzie said the injured area was two to three inches long and in the officer’s lay-opinion, she believed it was consistent with a stick injury. However, in cross-examination, Cst. McKenzie described the injury as follows:
… it wasn’t a cut, it was more of, like a thicker – it looked like it had been hit by something … it wasn’t cut by something, it was hit with something, like a hard surface.
The defence directly questioned whether Cst. McKenzie had any expertise in determining the cause of an injury from looking at a wound. The officer admitted she was not an expert in this area.
The Ruling on the Hearsay Utterance – 911 Call
5The trial judge gave the following reasons for admitting the statement made in the 911 call:
I am satisfied on the balance of probabilities that this 911 call is certainly necessary, and I think there is sufficient features to it that suggest again, on the balance of probabilities, that threshold reliability is met.
It is a call which is made relatively shortly after the events. It is a call in which there are other circumstances in the case that after Khelawon I am entitled to take into account, which offer some supportive value for the assertions in the call, some injury and the finding of a stick.
Over and above that there is an accurate recording of what is said at the time of the call, and there were circumstances which would have impressed, to some degree, on the complainant’s mind the seriousness of the utterances she was making knowing that she was phoning the police to report assaultive behaviour. Over and above that she is present and here for purposes of cross-examination.
So it seems to me that when I think of all those factors, notwithstanding the fact that there are issues in the statement that may, at the end of the day, mean I am not satisfied beyond a reasonable doubt that the allegations have been made out.
I think, for the purpose of exercising my function as gatekeeper on the admission of material on the trial that both the elements of necessity and reliability have been made out on the balance of probabilities, and as a result the 911 call, I think, is properly admissible as some evidence of the truth of its contents.
Position of Appellant
6The Appellant concedes that the necessity element is met and focuses his argument on the issue of reliability.
7The Appellant acknowledges that the Court can consider all of the evidence to assess the issue of threshold eligibility. In order to consider whether there are circumstantial guarantees of trustworthiness, the Court is entitled to consider the totality of the evidence.
8The Appellant submits that the circumstances in which the prior statement was made must overcome the dangers in admitting an out-of-court statement for its truth. In R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740 the Supreme Court identified the following three main hearsay dangers:
The declarant was not under oath;
The trier of fact cannot assess the declarant’s demeanour;
The declarant was not subject to cross-examination when making the statement.
9The Appellant argues that the trial judge failed to consider the following factors in assessing threshold reliability:
- The complainant testified that she had a motive to fabricate, which was to remove the Appellant from the house – this would have pre-empted the Appellant’s stated intention to kick the complainant’s mother out of their home.
The Appellant submits that the trial judge ignored the issue of motive in his ruling.
The complainant admitted she lied in the statement and that she “abused the system”.
The 911 call is not a video-recorded statement so it is impossible to assess her demeanour during the 911 call.
The complainant acknowledged that she did not know there would be consequences for providing a false statement to the 911 operator; she was not under oath nor were the consequences of lying explained to her.
The statement was not made contemporaneous to the incident. It was made 10 minutes later after she had time to reflect on the events.
The injury itself was not in the place described by the complainant in the 911 call.
10In summary, the Appellant submits that there was a complete lack of guarantees of trustworthiness and as such the call should not have been admitted.
Position of the Crown
11The Crown submits that the learned trial judge properly considered all of the surrounding circumstances and therefore properly admitted the 911 call. He did not err in finding that the complainant’s viva voce trial testimony was not credible.
12The Respondent submits that when considering the motive aspect, the entirety of the discussions with counsel during submissions must be considered. The concern of a motive to fabricate was discussed and in fact formulated by the trial judge. The trial judge found that the timing of the call was such that it did not fit within the res gestae exception.
13The Respondent submits further that threshold reliability relates to the circumstances surrounding the making of the statement not an assessment of the ultimate truth of the statement. The complainant’s evidence that she had “abused the system” was part of her viva voce trial testimony that is a factor affecting its ultimate reliability but is not a factor on the threshold reliability assessment.
Analysis and Conclusion
14The standard of review is one of correctness. In R. v. S.S., 2008 ONCA 140, [2008] O.J. No. 747 (Ont. C.A.), the Court set out the following at paras. 29 and 30:
The admissibility of a hearsay statement is ultimately a question of law and, therefore, reviewable on a correctness standard. Part of that inquiry, however, requires the trial judge to weigh various factors, some of which may point towards admissibility and others which may point against admissibility. Trial judges cannot consult rules akin to mathematical formulas to tell them how much weight to give to each of the factors. The assessment is case-specific. Different judges will reasonably assign more or less weight to each of the particular factors in any given case.
As long as the trial judge addressed the factors germane to the reliability of the hearsay statement, did not fall into any material misapprehension of the evidence relevant to those factors, and made a reasonable assessment of the weight to be assigned to those factors, this court should not redo the weighing process, but should defer to the trial judge's weighing of those factors.
15In R. v. Blackman, 2008 SCC 37, [2008] S.C.J. No. 38 (S.C.C.) the Court stated the following at paras. 35 and 36:
The central underlying concern about the hearsay form of the proposed evidence is the inability to cross-examine Mr. Ellison on the truth and accuracy of his statements to his mother. The trial judge's role as gatekeeper is to determine whether this concern is sufficiently overcome in the circumstances of the case to justify receiving the evidence. This criterion is usually met by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess their worth. The two ways of demonstrating threshold reliability are not mutually exclusive.
The trial judge is well placed to determine the extent to which the hearsay dangers of a particular case are of concern and whether they can be sufficiently alleviated. Accordingly, the trial judge's ruling on admissibility, if informed by correct principles of law, is entitled to deference. The court below was divided on whether the trial judge applied the correct test in this case. As this issue impacts on the question of whether the trial judge's ruling is entitled to deference, I will deal with it at the outset.
16In the case at bar, the trial judge was able to hear the 911 call. It is true that the call is not videotaped but the trial judge had the opportunity to see and hear the complainant at trial when giving her viva voce testimony. In addition to that the defence was able to fully cross-examine the complainant on the 911 call and her trial testimony.
17It is not the role of a summary appeal court to retry the case or reverse findings of fact that were not favourable to the accused. Deference should be paid to findings of fact and assessment of credibility as the trial judge was in the best position to make these findings.
18In reviewing the transcript of the submissions of counsel the issue of motive is raised. The following exchange is relevant on this point:
THE COURT: … I can see that contemporaneity is one factor a court might consider as going to threshold reliability, but the fact that the call wasn’t strictly contemporaneous doesn’t necessarily mean there aren’t other features to the call that would satisfy threshold reliability.
MR. ROTA: Yes, so under the – I think necessity is made out, but the issue is that the threshold reliability, I think, is in issue is because it’s not necessarily simultaneous with the events that happened.
THE COURT: Okay.
MR. ROTA: I think she stated that with her issues as to the statements whether or not they were accurate. Like, she did state that the telephone conversation was accurate and it helped refresh her memory, but yet, although, albeit as that may, she continued to testify in a different fashion. And looking at the other prongs in the case, whether or not there was any – the evidence of whether or not she had any motive to …
THE COURT: Fabricate?
MR. ROTA: … mislead. I guess, that wasn’t – that didn’t come out, so. …
THE COURT: Well, I mean, to some extent you could say there is one here…
MR. ROTA: Because of the argument and her….
THE COURT: …in the – and that…
MR. ROTA: … in trying to have….
THE COURT: … her husband was asserting to her that he wanted the…
MR. ROTA: Yes.
THE COURT: … mother to leave.
MR. ROTA: Leave, and so she wanted her mother to stay and try to, perhaps, find a way….
THE COURT: So she had a motive in theory to exercise levers to get the accused out of the home.
MR. ROTA: Yes. And she did so by calling the police and made the statements that she made.
THE COURT: Okay. Anything else?
MR. ROTA: No. Your Honour.
THE COURT: Okay.
19The learned trial judge was alive to the issue of motive.
20I am satisfied that the learned trial judge was correct in admitting the 911 call. The trial judge considered all of the factors relating to threshold reliability. He considered all of the surrounding circumstances including the observations made by the officers at time of their response to the call. He found that there was an accurate recording of what was said in the call. The trial judge also noted in his ruling that the complainant was present and available for purposes of cross-examination. Finally, he determined that there were circumstances which would have impressed upon her, to some degree, in her mind the seriousness of the utterances knowing that she was calling the police.
21In all of these circumstances I cannot find and conclude that the learned trial judge erred in admitting the 911 call for the truth of its contents and that both the elements of necessity and reliability had been made out. The ultimate truth of that statement would be determined at the conclusion of the trial after the trial judge heard all of the evidence. The trial judge was well aware of his role in that regard. As he stated in his reasons on the voir dire:
So it seems to me that when I think of all those factors, notwithstanding the fact that there are issues in the statement that may, at the end of the day, mean I am not satisfied beyond a reasonable doubt that the allegations have been made out.
22The ability to fully cross-examine the complainant at trial and the fact that the trial judge could see and hear the complainant, were critical factors in play that point to admission of the 911 call on the issue of threshold reliability.
23For all of these reasons, this ground of appeal fails.
Re: Improperly taking Judicial Notice of the Complainant’s Injuries
Position of Appellant
24The Appellant submits that in the absence of expert evidence or even a photograph depicting the complainant’s injury, the trial judge erred in finding that her account of running into a stone pillar was “extremely difficult to fit with being caused by any other mechanism that emerges from this record.”
25The Appellant argues that in the absence of expert evidence, the trial judge went beyond the confines of judicial notice when he concluded that the injury was inconsistent with the “mechanism” described by the complainant.
26The level and type of force required to inflict abrasions on the skin is not so notorious that the Court can take judicial notice and draw conclusion, particularly in the absence of photographs.
27This error is significant because the nature and extent of the injuries bore directly on which version the judge accepted as credible. The trial judge rejected the complainant’s evidence by finding the injury was inconsistent with the version she provided at trial.
Position of the Crown
28The Crown submits that the trial judge’s analysis of the evidence did not equate with taking judicial notice. Instead, the trial judge’s analysis was an examination of the explanation leading up to the injury and whether he assessed it to be a credible version of the events leading to the resulting injury.
Reasons of Justice Blacklock
[29]
I must say, I do not believe the evidence of the complainant that I heard from the box in this case. Nor do I really find it to be credible at any level. It strikes me, to be frank, as impossible that she could somehow be confused at any level as to whether or not she had been actually struck with this stick.
Secondly, on reflection, given her evidence, it seems to me it’s very difficult to understand how the injury that were seen by two officers could have been caused by accident in the fashion she describes by her coming into contact in some fashion with one of these pillars. It was observed by the one officer to be swelling and bleeding, and by the second officer, I think, at least to be bleeding.
However, in the complainant’s evidence, there is no evidence that the accused pursued her out. There is no evidence he had the stick in his hand and she was blindly fleeing under real threat here. And yet, in some fashion, she gets her forearm injured to this degree. It’s very difficult, in my view, to square that with the mechanism she very vaguely describes as being the alternative to being hit with this stick.
Whenever a complainant is prepared to come into a courtroom and give a version of evidence under oath that is consistent with an accused person’s innocence, a court must exercise grave care in accepting as true a previous utterance by the same witness as to the same events.
Nonetheless, when I looked at all the circumstances of this record in this particular case, I find that I am so satisfied. The 9-1-1 call here is made very close to these events. The demeanour of those captured on it and its content are consistent with troubling assaultive behaviour having occurred. There is furthermore support for the content of that statement in the finding of the stick at the scene, and not only at the scene, but in relatively close proximity to where the complainant is observed by the police on arrival.
Furthermore, there is bloody injury which is perfectly consistent with the mechanism described on the 9-1-1 tape, and is extremely difficult to fit with being caused by any other mechanism that emerges on this record.
In short, having considered all the circumstances of this case, I accept that the 9-1-1 complaint by the complainant in this case is an accurate description of the events that occurred in this matter. Given the support that I see in this record and the other circumstances in it, which I reviewed as a whole, I find not only did I accept that that is the version of events that occurred, but I find I am satisfied beyond a reasonable doubt that that is the version of events that occurred on this case.
Analysis and Conclusion
30The Appellant points to the decision in R. v. Hackett, [2008] O.J. No. 4012 (S.C.J.), at paras. 71 to 73:
It is impossible to conclude with certainty, based on the conflicting evidence before the court, that the injury occurred as a result of an object being swung at the complainant's body. It is possible that the bruising could have been caused by hitting a wall with objects such as pipes or a gas meter attached to it. I find that the trial judge went beyond the evidence before him to make a finding of fact.
As noted by the Ontario Court of Appeal in R. v. Perkins, 2007 ONCA 585, [2007] O.J. No. 3246 (Ont. C.A.), a trial judge may only go beyond the evidence to make findings of fact if he can take judicial notice of that fact (Perkins, para. 36). The scope of judicial notice is narrowed where an adjudicative fact is at issue as opposed to a legislative or social fact (Perkins, para. 38). A fact that is adjudicative in nature can only be judicially recognized where the fact is (a) so notorious and generally accepted as not to be subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of undisputed accuracy (Spence 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 53, citing Find 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48). The cause of the bruise goes to a crucial issue in the case - whether or not the Appellant assaulted the complainant with a piece of two-by-four as alleged. By concluding that the bruise could only have been caused by an object swung at the complainant's body, an object swung by the Appellant, the trial judge closed his mind as to any other version of events and basically decided the case against the Appellant.
The bruise, as depicted in the photograph, being caused by a swinging object, does not meet the criteria set out in Spence, above. A trial judge's improper resort to judicial notice to reject a crucial part of the Appellant's evidence amounts to an error of law (Perkins at para. 42).
31The trial judge explained in his reasons why he could not accept the complainant’s trial testimony and in doing so used very clear and strong language. For example:
Nor do I really find it to be credible at any level.
It strikes me, to be frank, as impossible that she could somehow be confused at any level as to whether or not she had been actually struck with this stick.
32The trial judge’s reasons relating to the nature of the injury must be read as a whole. I cannot find and conclude that he was taking judicial notice of the nature of the actual injury. It is my view that he was analysing her trial testimony regarding the accused pursuing her out of the house and that she went running out of the house blindly and hitting a stone pillar.
33The trial judge was entitled to make this finding of credibility and he was entitled as the trier of fact, to reject the complainant’s trial testimony and he gave reasons for doing so. The trial judge did not close his mind to the other version of events and explained why he rejected it.
34The trial judge stated this:
Whenever a complainant is prepared to come into a courtroom and give a version of evidence under oath that is consistent with a person’s innocence, a court must exercise grave care in accepting as true a previous utterance by the same witness as to the same events.
35The Supreme Court of Canada dealt with reasons for judgment and a trial Judge’s assessment of credibility in R. v. G.(L.) 2006 SCC 17, 207 C.C.C. (3d) 353 (S.C.C.). At paragraph 10 the Court stated:
There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference of opinion with the trial judge (Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 74). A succinct description of the overall approach appears in R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 4, where this Court stated that "it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can ... overturn the trial court's verdict". With respect to the credibility of witnesses, the same standard applies. In R. v. Lavoie, [2003] Q.J. No. 1474 (QL), at para. 37, Nuss J.A. of the Quebec Court of Appeal stated that a trial judge's assessment of the credibility of witnesses "will not be disturbed unless it can be demonstrated that he committed a palpable and overriding error" (citing Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33).
36At paragraphs 19 and 20 the Court went on to state the following:
This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court. Having encouraged these expanded reasons, it would be counterproductive to dissect them minutely in a way that undermines the trial judge's responsibility for weighing all of the evidence. A trial judge's language must be reviewed not only with care, but also in context. Most language is amenable to multiple interpretations and characterizations. But appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components. In re-examining the evidence piece by piece, the Court of Appeal in this case confused the need for sufficiency of reasons with the examination of sufficiency of the evidence, the latter being central to the disposition of the case in Burke, Burns and R. (D.) on which it relied. In our view the reasons were sufficient. In any event, any consideration of the sufficiency of the evidence had