ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
CITATION: R. v. Dhaliwal, 2015 ONSC 214
COURT FILE NO.: SCA(P)0001/14
DATE: 20150112
B E T W E E N:
HER MAJESTY THE QUEEN
Shazin Karim, for the Respondent
Respondent
- and -
JAGMIT DHALIWAL
Ranbir S. Mann, for the Appellant
Appellant
HEARD: January 5, 2015
REASONS FOR JUDGMENT
[On appeal from the conviction by Justice J. Stribopoulos
dated December 16, 2013]
F. Dawson J.
I
[1] Following a trial before Stribopoulos J. of the Ontario Court of Justice the appellant was found guilty of operating a motor vehicle while impaired, driving with a blood alcohol level in excess of the legally prescribed limit and failing to remain at the scene of an accident. The only issue at trial was whether the appellant’s identity as the driver of the vehicle involved in an accident had been established beyond a reasonable doubt.
II
[2] On October 2, 2012, at approximately 9:00 p.m. Brinsley Whyte was stopped at an intersection when his vehicle was clipped by a silver van which was making a turn at the intersection. When the driver of the van did not stop, Mr. Whyte followed the silver van which entered a nearby driveway. Mr. Whyte called the police on his cell phone and watched while the driver exited the van and entered a residence. Mr. Whyte was parked 30 to 35 feet away from the van when he made this observation of the driver. There was no one else in the van.
[3] Mr. Whyte told the 911 operator that he thought the driver of the van had been drinking because a beer can fell out of the van.
[4] Two police officers arrived within a short time. One of them took a description of the driver of the van from Mr. Whyte who had remained parked across the street. When the police knocked at the door of the residence the appellant came to the door with an older man and a female.
[5] The appellant matched the description given to the police by Mr. Whyte just moments before. That description was of a male, East Indian adult, wearing a green shirt and jeans. The appellant was arrested and taken to a police station for breath testing. He was obviously impaired.
[6] While in custody, the appellant told the police that he arrived home in his van that day at 6:30 p.m., that no one else had driven his van that day and that no one else ever drove his van. This statement was audio and video recorded. There was no issue as to its admissibility at trial.
[7] When Mr. Whyte testified he explained that as a result of the passage of time his memory had faded and he was unable to identify the driver. He was also unable to recall the driver’s description beyond that the driver was a tall East Indian male wearing pants and a shirt.
[8] The trial judge concluded that he was unable to find that the previous description given to the police by Mr. Whyte was admissible pursuant to the categorical exceptions to the hearsay rule related to prior identification that were described by Doherty J.A. in R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641, 117 C.C.C. (3d) 481 (C.A.). However, he went on to conclude that the previous description was admissible pursuant to the principled approach to hearsay evidence on the basis that both necessity and reliability had been established. The trial judge then used that prior description, together with other evidence in the case, to find that the appellant’s guilt had been established beyond a reasonable doubt.
III
[9] The appellant makes a number of submissions challenging the ruling admitting the hearsay description.
[10] The appellant first argues that the trial judge erred in finding necessity. He bases this on a submission that because Mr. Whyte was able to remember that the driver of the van was wearing pants and a shirt it cannot be said that there was a failure of his memory sufficient to establish necessity.
[11] I am unable to accept this submission. Necessity is to be given a flexible definition which can encompass diverse situations: R. v. Smith (1992), 1986 CanLII 4748 (NS CA), 27 C.C.C. (3d) 257, at p. 271. The concern is with respect to the unavailability of a witness’s evidence: Smith, at p. 271; R. v. Khelawon, 2006 SCC 57, 2006 S.C.C. 57, [2006] 2 S.C.R. 787, at para. 49. The evidence may be unavailable for various reasons, including a lack of memory: R. v. Campbell (2002), 2002 NSCA 35, 163 C.C.C. (3d) 485 (N.S.C.A.). The witness may be available but the passage of time may have resulted in their evidence no longer being complete: David M. Paciocco and Lee Stueser, The Law of Evidence, 4th ed. (Toronto: Irwin Law Inc., 2005) at pp. 111-114. See also S. Casey Hill, David Tanovich, Louis Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Canada Law Book, 2014) at p. 7-44, and Khan v. College of Physicians and Surgeons (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3d) 641 (C.A.).
[12] In the case at bar evidence of the same value as that contained in Mr. Whyte’s out of court statement was no longer available due to his deteriorating memory. The fact that the witness still had some memory of the relevant events was not a bar to the trial judge finding that necessity had been established.
[13] The appellant next argues that the trial judge erred in relation to his finding of threshold reliability. The trial judge listed a number of points which he found supported a finding of reliability. I paraphrase those as follows:
Mr. Whyte had an ample opportunity to observe the driver because he was only 30 to 35 feet away at the relevant times.
One can assume the driver would have been illuminated by the street lighting, the lighting from the van when the door opened, and from the garage.
At that distance and in those conditions Mr. Whyte could have accurately observed the driver’s race and the type and colour of his clothing.
Mr. Whyte described the driver to the police only minutes after observing him exit the van. His recollection was fresh when he provided his description.
Aside from the 911 operator, Mr. Whyte had not spoken to anyone who might have contaminated the independence of his recollection.
In terms of corroboration, when the police went to the door they discovered an East Indian man wearing jeans and a green shirt who therefore matched the description provided by Mr. Whyte.
[14] The appellant submits that the trial judge was speculating with respect to points two and three above. I respectfully disagree. In my view, these were common sense inferences available from the evidence.
[15] The appellant also submits that the trial judge erred because he failed to undertake any analysis or make any finding about the credibility of the police officer who took the description from Mr. Whyte. Counsel combined this argument with a submission that the police officer’s notes could not confirm the accuracy or reliability of Mr. Whyte’s description of the driver.
[16] This submission confuses threshold and ultimate reliability. At the admissibility stage the trial judge was exercising his “gate keeper” function and was concerned only with the threshold reliability of the hearsay statement. He was not concerned with the credibility or reliability of the recipient of the statement.
[17] Although not developed in the appellant’s factum, I asked both counsel about a concern I had with respect to the appropriateness of the sixth point on the list of factors related to reliability. The trial judge considered the fact that the police found a man inside the home who matched Mr. Whyte’s hearsay description to be corroborative of the reliability of that description. At first blush this seemed to me to be “boot strapping”. The statement’s reliability is being judged in relation to its reliability on an issue of identification. I was concerned that there was circularity in reasoning that the statement meets the test of reliability because someone who matched the description was found in the house.
[18] In other circumstances I believe such an approach could constitute legal error. However, upon reflection, I conclude there are circumstances present in this case which render this a proper factor to be taken into account. It must be remembered that Mr. Whyte followed the driver of the van to a residence, watched the driver enter the residence and remained outside to keep the residence under surveillance for the short period of time until the police arrived. He then provided the description which is the hearsay statement the Crown seeks to tender. It is simply a description and not an actual identification. Although it is in the form of hearsay it is really a piece of circumstantial evidence to be used together with the other evidence on the issue of identification. Given the brief time period and the continuity of Mr. Whyte’s observation the fact that the appellant matched the description is relevant to the reliability of the statement.
[19] As held in Khelawon, factors are not to be categorized as relevant to threshold or ultimate reliability. If a factor is relevant to the reliability inquiry it should be taken into account together with the other relevant evidence in determining whether threshold reliability is established. In the circumstances of this case the sixth factor is relevant. Relevance must be determined in the context of the other evidence.
[20] I also note that the sixth factor was only one of a number of factors the trial judge considered and I cannot say he gave it undue weight.
[21] Finally, in her factum the appellant submitted that the trial judge erred in failing to consider the residual discretion to exclude hearsay statements that are found to meet the test of necessity and reliability. This submission was not advanced in oral argument but it was not abandoned and I will briefly deal with it.
[22] I would simply say that there is no basis for the application of the residual discretion in this case. That discretion was first described in R. v. B.(K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, at pp. 801-802 (paras. 115-118). It was discussed in Khelawon at paras. 3, 49, 81 and 87, in R. v. Devine, 2008 SCC 36, 2008 SCC. 36, [2008] 2 S.C.R. 283, at para. 30 and in R. v. Youvarajah, 2013 SCC 41, at para. 23. It was originally developed to deal with improper police conduct directed towards a witness who is later the hearsay declarant in order to ensure a fair trial. It has subsequently been described as a discretion to exclude a statement on the basis that its probative value is exceeded by its prejudicial effect.
[23] There is no evidence of any police impropriety directed towards Mr. Whyte which led to his statement describing the driver of the van and no evidence of any other form of taint that would affect the fairness of the trial if the hearsay description was admitted. Consequently, there was no basis for the application of the residual discretion and no error in the trial judge’s failure to consider it.
IV
[24] Once Mr. Whyte’s hearsay description was admitted the trial judge considered it on the question of proof of identity. He indicated that even when he considered the description together with the evidence that the appellant was seen to match that description when he came to the door, he would still have been left in a state of reasonable doubt on the issue of identity if it were not for the appellant’s statements that the silver van was his and that no one else had driven the van.
[25] The appellant submits that the trial judge erred in treating the appellant’s statement that he was the only person who drove the van as an admission that he was the driver at the time of the accident. I reject this submission.
[26] The trial judge used the appellant’s statement to eliminate the possibility that anyone else had driven the van. It must be remembered that there were two other people who came to the door when the police knocked. It is clear that the trial judge treated the appellant’s statement as a critical piece of circumstantial evidence and not as a direct admission that the appellant was the driver at the time of the accident.
[27] In any event, in the context of the other evidence the appellant’s statement that no one else drove the van was tantamount to an admission. The appellant did not testify or call any other evidence that someone else was the driver. The circumstances are such that the appellant’s statement constituted overwhelming evidence that he was guilty of the offences he was convicted of.
V
[28] For the foregoing reasons the appeal is dismissed.
[29] The stay of driving prohibition granted pending this appeal has accordingly expired pursuant to the terms of the order that granted it.
F. Dawson J.
Released: January 12, 2015
CITATION: R. v. Dhaliwal, 2015 ONSC 214
COURT FILE NO.: SCA(P)0001/14
DATE: 20150112
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JASMIT DHALIWAL
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: January 12, 2015