CITATION: R. v. Punia, 2016 ONSC 2990
COURT FILE NO.: CR-14-250
DATE: 2016-04-06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Kelly Slate and Keeley Holmes on behalf of the Crown
- and -
MANDEEP PUNIA and SKINDER PUNIA
Robert Richardson and Eric Neubauer, on behalf of the Accused Mandeep Punia
Peter Copeland and Kendra Stanyon, on behalf of the Accused Skinder Punia
HEARD: April 4, 2015
911 CALL RULING
Coroza, J.
Overview
[1] Supinder Litt is expected to testify in this murder trial. In advance of her testimony, Crown counsel seek a ruling on the admissibility of certain evidence in relation to a 911 call purportedly made by Supinder Litt.
[2] During a previous proceeding, the Crown attempted to lead in evidence a recording of a 911 call purportedly made by Supinder and a subsequent call-back made by the 911 operator. The issue was not pursued during the voir dire because Supinder failed to authenticate the 911 call.
[3] The Crown has responsibly vetted the issue before me in advance of Supinder testifying. Counsel for both accused submit that the proposed evidence amounts to inadmissible oath-helping.
Background
[4] Supinder Litt is a central Crown witness in this case. She is the mother of the accused Mandeep Punia, mother-in-law of the accused Skinder Punia, mother-in-law of the deceased victim Poonam Litt, and the wife of Crown witness Kulwant Litt.
[5] Prior to jury selection, a hearsay voir dire occurred in this case in advance of trial with the consent of all parties in relation to several statements made by Kulwant Litt. Supinder Litt testified at that voir dire.
[6] The Crown alleges that Poonam Litt was murdered by the accused Mandeep Punia while Supinder and Poonam’s husband Manjinder (Supinder’s son) were in India. The accused Skinder Punia and Kulwant Litt are both charged with being accessories after the fact to the murder. Kulwant Litt is being tried separately as he has been called as a witness in this trial.
[7] Supinder’s evidence at the voir dire was that when she returned from India with Manjinder in the days after the murder is said to have occurred, her husband Kulwant told her that Mandeep killed Poonam. Supinder testified that Mandeep overheard this, came down the stairs, and confronted Kulwant about his admission. Mandeep then apologized to her mother and told her she had “made a big mistake”.
[8] Supinder said that she considered telling the police what she knew. However, she did not say anything for 3 years.
[9] Supinder testified that at one point she made the 911 call. She said the call was interrupted by the accused Mandeep, who took the phone from her and hung it up. The 911 operator called back. Supinder said she could hear Mandeep saying that the call was a mistake.
[10] The call was played during Supinder’s testimony at the earlier voir dire in this trial. I have reviewed the call. A female operator that the call was a mistake. Supinder was unable to identify the female voice on the call. The Crown seeks to lead the recording of the call-back through another witness. The actual 911 operator has apparently retired and is not presently in Canada. If the evidence is admissible, there will be an agreed statement of fact that the call is an accurate recording.
The Issue
[11] There is one issue:
a) Does the 911 call-back offend the rule against oath-helping and is therefore inadmissible as evidence in the Crown’s case?
Positions of the Parties
The Crown’s Position
[12] The Crown argues that the 911 call is presumptively admissible evidence, as it is relevant, material and not subject to any of the exclusionary rules. It could only be excluded through the Court’s residual discretionary ability to exclude evidence after employing a cost-benefit analysis – the onus of which is upon the accused. Any such analysis in this case favours admission of the evidence.
[13] The Crown submits the evidence is admissible because it is the “best evidence” of what Supinder describes happened. It is objective real evidence of something Supinder describes in her evidence.
[14] The 911 call-back is admissible in the same way a prior consistent statement would be to rebut recent fabrication. The 911 call-back occurred in December 2010, a timeframe before the family became estranged and Poonam Litt’s remains were discovered. It is directly relevant and material to assessing Supinder’s credibility about when she was told by Kulwant that Mandeep was the killer. It should be available to the jury to corroborate Supinder’s testimony on this issue. An appropriate instruction can make clear what use can be made of the evidence.
The Defence’s Position
[15] Counsel for Skinder Punia argues that the recordings are virtually devoid of context or context. Given their lack of substantive content, they are incapable of providing confirmation of (i) whether it was Supinder Litt or someone else who initially dialled 911; (ii) what the reason or motivation was behind the initial dialling of 911; (iii) what caused the initial 911 call to come to an end; and (iv) what information Supinder Litt possessed at the time of the call with respect to Poonam Litt’s death.
[16] Counsel further argues that, contrary to the Crown’s position, the proposed evidence is not admissible to rebut recent fabrication, relying on the decision of the Supreme Court of Canada in R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272. Given its lack of content, the 911 recording is simply incapable of illustrating that Supinder Litt’s story “was the same even before a motivation to fabricate arose”. Further, the recording is incapable of demonstrating that Supinder Litt’s story “did not change as a result of a new motive to fabricate”. Finally, the recording provides no support to any suggestion that Supinder Litt’s evidence “is more likely to be honest” on the basis that “there is no evidence that [she] had a motive to lie.”
[17] Finally, counsel for Skinder Punia submits that the only apparent use that the jury might make of the recording is to bolster Supinder Litt’s testimonial credibility in relation to a 911 call being made. This would amount to improper oath helping. Given other anticipated issues with her evidence, the recording would be of minimal assistance to the jury and there is a risk the evidence may be given undue weight by the jury.
[18] Counsel for Mandeep Punia agrees with the Crown that the proposed evidence provides confirmation that the calls were made. However, the evidence on its face offends the rule against oath-helping because it tends to prove that Supinder is being truthful when she testified that she called 911, the call was disconnected, and the operator called back in spoke to Mandeep.
[19] In response to the Crown’s submission that the rule against oath-helping does not apply where recent fabrication is alleged, counsel for Mandeep Punia makes two submissions.
[20] First, the evidence does not serve a rebuttal purpose. The defence will not be alleging that Supinder fabricated the fact of the 911 call, the disconnection and the call-back. If this were the case, the Crown may be entitled to call the proposed evidence.
[21] Counsel argues that the defence may challenge Supinder’s evidence with respect to her motives and knowledge at the time of the call. Specifically, the defence may suggest that Supinder has contrived motivations or knowledge which she didn’t have at the time of the call. If the 911 evidence could rebut these suggestions, it might fall into the exception the Crown submits applies. However, the 911 evidence, in its bare and context-less form, goes no further than confirming Supinder’s evidence that a 911 call was made. It cannot corroborate Supinder's testimony that she knew Mandeep was the killer.
[22] Second, if the proposed evidence is probative as rebuttal evidence, its probative value is fair exceeded by the prejudicial oath-helping effects and the court ought to exercise its residual discretion to exclude it.
The Legal Principles
Oath-Helping
[23] In R. v. Llorenz (2000), 2000 5745 (ON CA), 145 C.C.C. (3d) 535 (Ont. C.A.), O’Connor J.A. explained the rule against oath-helping as follows, at paras. 27-31:
The rule against oath-helping prohibits the admission of evidence adduced solely for the purpose of proving that a witness is truthful. The rule applies to evidence "that would tend to prove the truthfulness of the witness rather than the truth of the witness's statements": R. v. B.(F.F.) (1993), 1993 167 (SCC), 79 C.C.C. (3d) 112 (S.C.C.), per Iacobucci J., at 135.
[25] The line to be drawn when evidence is considered to be oath-helping is not always clear. There is a distinction to be made between (1) evidence about credibility (i.e. in my opinion the witness is truthful), which is inadmissible and (2) evidence about a feature of the witness's behaviour or testimony, which may be admissible even though it will likely have some bearing on the trier of fact's ultimate determination of the question of credibility: R. v. K.(A.) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), per Charron J., at 678.
[26] In R. v. B.(F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697, Iacobucci J. noted that “[t]he rule against oath-helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness' credibility before that witness' credibility is attacked” (at p. 729).
[27] In the jurisprudence, the rule against oath-helping is often bound up in the rule against prior consistent statements and the evidentiary rules relating to good character evidence (i.e. to preclude expert opinion evidence about the truth of a witness’s testimony: see Llorenz). In this case, the proposed evidence does not fit neatly within either of these categories.
[28] Justice S. Casey Hill, David M. Tanovich and Louis P. Strezos note in McWilliams’ Canadian Criminal Evidence, 5th ed. (loose-leaf) (Toronto: Canada Law Book, 2014), at p. 11-14:
Evidence falling under the umbrella of oath-helping does not just include prior consistent statements tendered to bolster credibility by showing consistency. Oath-helping evidence may take virtually any form. It is the purpose and effect of the evidence that raises the spectre of impermissible oath-helping, not its form. The evidence may, for example, take the form of conduct, writings, possessions, and lay or expert opinion evidence. It may be evidence of acquittals. Impermissible oath-helping evidence may also take the form of evidence of character, attitude or beliefs. [Emphasis added and footnotes omitted.]
The Principles Applied
[27] I am of the view that the proposed evidence amounts to oath-helping and is therefore, at present, inadmissible in the Crown’s case. This view is subject to review in the event the defence attacks Supinder’s credibility on her testimony in relation to the making of the 911.
[28] One of Ms. Holmes forceful submissions is that the 911 evidence is admissible as the “best evidence” of what Supinder said happened in relation to the calls, as it is real evidence of something Supinder describes in her evidence. The logic of her argument cannot be denied. I agree that the 911 evidence can be admissible as real “best” evidence, if it is properly authenticated. The party seeking to introduce real evidence bears the burden of authenticating it: see e.g. McWilliams’, at pp. 23-5 ¬– 23-6; R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197; R. v. Andalib-Goortani, 2014 ONSC 4690, at paras. 24-27.
[29] I also agree with her that it is not necessary to establish either the integrity of a tape or a speaker's identity before a tape can be admitted: R. v. Parsons, 1980 31 (SCC), [1980] 1 S.C.R. 785, 110 D.L.R. (3d) 71 (S.C.C.), aff'g R. v. Parsons (1977), 1977 55 (ON CA), 17 O.R. (2d) 465, 80 D.L.R. (3d) 430 (Ont. C.A.). A video tape is admissible once it is established the tape was not altered or changed and it depicts the scene of the crime: R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, 141 D.L.R. (4th) 647 (S.C.C.) at para. 28.
[30] However, in my view, the fundamental problem with the 911 tape in this case is that it is wholly devoid of any material information. Unlike Liard and other cases where 911 call evidence has been admitted (see e.g. R. v. Badgerow, 2014 ONCA 272) in this case there is not substantive discussion between the caller and the operator to give context to the 911 call. Supinder is unable to identify the recipient of the call-back phone call is and thereby unable to authenticate the call. I also disagree that the person talking to the dispatcher has said “it was a mistake”. It is the dispatcher who suggests that the call was a mistake and the person on the other end of the line simply says “yeah”. [residual discretion]
[31] The Crown’s primary position on the application is that the defence are alleging that Supinder has recently fabricated her evidence in this case. In that regard, the Crown says the 911 call evidence is material to the assessment of whether or not Supinder is being truthful that Kulwant told her shortly after she returned from India that Mandeep was the killer.
[32] The Crown points to the apparent defence theory that Kulwant Litt was the killer who himself fabricated the story that Mandeep was responsible for the murder. The Crown says that because the 911 call occurred in December 2010, it suggests that Supinder did not recently fabricate her version of the events.
[33] I do not agree with this submission. Again, I repeat that the 911 evidence is devoid of any meaningful information. It does not confirm Supinder’s testimony about when her knowledge of Mandeep’s alleged culpability arose.
[34] I agree with Ms. Holmes that one of the circumstances that can make a prior consistent statement admissible is an allegation of recent fabrication, in this case, counsel for the accused submit that there will be no suggestion that Supinder is fabricating that she made the 911 call. Therefore, it seems to me that counsel for the accused will suggest to Supinder that she had a motive to fabricate her evidence about Mandeep apologizing to her. However, it is unclear to me as to whether this is actually an allegation of ‘recent’ fabrication. For example, the motivation may have come into existence well before Supinder made the call. My recollection of her evidence is that Supinder is a poor historian and cannot recall with any specificity when the call was made. Accordingly, admission of the call would not “illustrate that the witness’s story was the same even before [the] motivation to fabricate arose”: Stirling, supra, at paragraph 5.
[35] All the proposed evidence can do is merely confirm the fact a call was made and disconnected, that the 911 operator returned the call, suggested to the person on the other end of the line that the call was a mistake. The person on the other end of the line simply replies: “yeah”. The call can go no further.
[36] I am satisfied that the only purpose the evidence can serve is for oath-helping. Its evidentiary value would be limited solely to the purpose of proving that Supinder is being truthful about the occurrence and circumstances of the 911 call. This is the reasoning prohibited by the rule against oath-helping.
[37] To the extent that the defence takes the position that Supinder contrived her motivations or knowledge at the time the call was made, the proposed 911 call evidence does not serve to confirm her evidence on those issues. Rather, it is entirely ambiguous on those subjects.
Result
[38] In summary, I am of the view that the proposed evidence, to the extent that it is evidence presented “solely for the purpose of bolstering a witness' credibility before that witness' credibility is attacked”, the 911 call-back is inadmissible as evidence at this juncture in the trial. I would observe that nothing precludes the Crown from renewing its application should there be a material change in circumstances.
Coroza J.
Released: April 6, 2016
CITATION: R. v. Punia, 2016 ONSC 2990
COURT FILE NO.: CR-14-250
DATE: 2016-04-06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
MANDEEP PUNIA and SKINDER PUNIA
911 CALL RULING
COROZA J.
Released: April 6, 2016