2016 ONSC 7393

COURT FILE NO.: CV-12-0208

DATE: 20161128

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JIEFU KWOK

Plaintiff

– and –

DAVID ABECASSIS, SIMON ABECASSIS, and THE PERSONAL INSURANCE COMPANY

Defendants

T. Lehman and L. Fitzgerald-Husek, for the Plaintiff

D. H. Rogers and D. M. Rogers, for the Defendants, David Abecassis and Simon Abecassis

T.J. McCarthy, for the Defendant, The Personal Insurance Company

HEARD: November 25, 2016

ENDORSEMENT

HEALEY J.

[1] The plaintiff moves for leave to admit into evidence, for substantive use by the jury, a statement given to a police officer approximately two hours after being involved in a motor vehicle accident. As hearsay, it is presumptively inadmissible unless the test can be met for the admission of hearsay evidence under the principled approach, or it falls under one of the traditional exceptions.

[2] The plaintiff also seeks a ruling restricting the evidence to be provided by P.C. Otchere, the investing officer, in these respects:

i) to exclude reference to the written commentary from the accident vehicle report, asserting that it is opinion evidence;

ii) to prevent the officer from testifying as to which lane he understood the plaintiff to have been travelling in prior to the onset of the first collision; and

iii) to prevent the officer from testifying as to his opinion about the subjective nature of a driver’s statement that he had been "cut off".

The Statement Taken by the Officer

[3] With respect to the statement, necessity is not in dispute. It is satisfied by virtue of the fact that there is no alternative way to obtain the plaintiff’s evidence of the events surrounding the accident due to his post-traumatic amnesia.

[4] As a result of this amnesia, the plaintiff has no memory of giving the statement or the events of the motor vehicle accident that are the subject matter of the police statement, and so he is unable to be cross-examined in respect of it. He had the same lack of memory at his examination for discovery. There are no adequate substitutes for testing the evidence in question. Accordingly, reliability can only be met if the contents of the statement are sufficiently trustworthy: R. v. Khelowan, 2006 SCC 57, at para. 105.

[5] In my view, the reliability requirement of the plaintiff’s statement is met in a similar way to the facts in R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, where statements given to the police by the victim and her father were so similar that it was an unavoidable conclusion that they were both being truthful at the time the statements were given. In this case, the similarity between the content of the plaintiff’s statement and the statement made by an independent witness, Brian Chan, are compelling. I have previously ruled that Mr. Chan's call to 911 is admissible under the principled approach. Mr. Chan was an independent witness who observed the driving behavior of an unidentified motorist. He told the 911 dispatcher that he saw a vehicle cut the plaintiff off, or push him out of his lane, so that the plaintiff undertook an avoidance maneuver, lost control of his car and then veered left across all of the express lanes and smashed headfirst into the concrete barrier on the left side. He reported that he observed this to happen in the very location that the plaintiff’s accident actually occurred. The plaintiff reported to the police that he was exiting on to the collector’s lanes at Allen Road when he was cut off. Similarly, the plaintiff reported that a car cut him off by coming into his lane, causing his car to spin around before hitting the side. Mr. Chan reported that the unidentified driver kept going. The plaintiff told the officer that the unidentified vehicle did not make contact with his.

[6] R. v. Khelowan makes clear that evidence extrinsic to the making of this statement can also be considered when assessing reliability. In this case, corroborative evidence of the statement's truthfulness arises from the fact that the accident site was in fact just after the collector lanes as reported by Mr. Chan. The plaintiff told the officer that he was "driving in the express lane and I was going to take the collector's at Allen Road when a car cut me off. The car was also going in the collector lanes". The officer also asked the plaintiff what happened after his car hit the concrete guardrail, and the plaintiff’s response was "a van hit my car on the passenger side". There is no dispute in this case that this is indeed what happened; a Toyota Sienna minivan did collide with the passenger side of the plaintiff's vehicle after it had come to rest against the concrete median.

[7] Counsel for The Personal Insurance Company argued that the statement is unreliable because Officer Otchere did not speak to him in Cantonese, the plaintiff's first language, and because it is known that the plaintiff sustained a head injury in the collisions. While these facts have been established in the evidence, there is nothing in the answers given by the plaintiff to suggest that he did not understand the questions asked. His responses to the open-ended questions asked by the officer are appropriate and comprehensible. The officer testified that he recorded the plaintiff's responses verbatim. He also testified that he had no difficulty communicating with the plaintiff in English. There is nothing in the answers recorded by the officer that would suggest that he was speaking to someone whose first language was not English. While the officer testified that the plaintiff was not very verbal when he first spoke to him at the scene, he was able to give the officer a brief description of the accident. He interviewed him at the hospital at least two hours after the initial discussion at the roadside, and testified that he was much more verbal by that time.

[8] As the statement was given to a police officer, the court must ensure that it was given voluntarily and without coercion of any form. The officer’s testimony revealed no evidence of any words or behavior on the part of the officer that would rule out the admission of the statement taken on the basis of threats or inducements. While defence counsel argued that the plaintiff had a motive to lie to the officer, the only basis for this might be that Officer Otchere told him that he was taking the statement for insurance purposes. Absent some other evidence that the statement is patently false, of which there is none, this possibility cannot be enough to defeat the reliability assessment at this stage.

[9] As was the case in R. v. U. (F.J.), the very high reliability of the plaintiff's statement renders its admission necessary, as otherwise valuable evidence would be lost. As there is no basis upon which to exclude the evidence, this court orders that it is admissible.

[10] For the same reasons, the statement given at the roadside by the plaintiff to the officer is also permitted to be used by the jury. The officer had a brief opportunity to speak to the plaintiff before he was loaded in the ambulance. The plaintiff told him that he was trying to exit at the collector's and was cut off by a black motor vehicle that caused him to lose control and go into the guardrail. He also told him that he was hit by a second vehicle, which was obvious to the officer. This statement is consistent with the plaintiff's later answers, and again, consistent with the extrinsic evidence.

Contents of Accident Report

[11] The impugned statement on the accident report states that the plaintiff was travelling on Highway 401 eastbound when he “attempted to change lane when way was not clear, overcorrected moving back into L#2, lost control and hit left guardrail”. The accident report was prepared by another officer attending the scene, but Officer Otchere testified on the voir dire that he reviewed it, felt it to be accurate, and signed it because he adopted its contents.

[12] Officer Otchere testified that he reached that opinion on the basis of the physical evidence at the scene, being primarily tire marks, and his understanding of how accidents have occurred involving other motorists. He testified that he did not agree with defence counsel that the remarks in the accident report were a summary or interpretation of what the plaintiff told him. As such, the remarks are exactly what he testified they were - an opinion. For the purpose of this trial, this is beyond the scope of his expertise and knowledge as a police officer and enters the realm of the expertise of an accident reconstructionist.

[13] Further, it is clear that the opinion that the plaintiff attempted to change lanes when the way was not clear was not based on the statements provided to the officer by the plaintiff, who indicated to him, as recorded on the form filled out by the officer, that he did not make a lane change. The plaintiff also told him that he did not see the car, it “came out of nowhere”. In adopting the other officer’s rendition of how the accident transpired, the officer must have been speculating or hypothesizing about how it in fact occurred. Given that he reach conclusions on an inadmissible basis, offering an opinion that goes to the very center of the liability issues to be decided by the jury, the evidence is highly prejudicial and without probative value. Accordingly, the opinion captured in the commentary is inadmissible. The balance of the accident report, with the impugned portion redacted, may be entered into evidence.

[14] With respect to the officer offering his opinion that a driver’s perception of being "cut off" is subjective, all counsel agreed that he should not be permitted to provide such testimony.

[15] With respect to the officer testifying about the lane in which the plaintiff may have been travelling from the outset, the officer is allowed to provide his interpretation of the answer given to him by the plaintiff. On the second page of the pre-printed form on which the officer recorded his interview, the first question asks "counting from the left, which lane were you in?" The plaintiff's answer was "right lane". Given Officer Otchere’s familiarity with the highway, he is permitted to explain to the jury which lane he assumed that to be, and why.

HEALEY J.

Released: November 28, 2016