Court File and Parties

COURT FILE NO.: CR-17-26 DATE: 2018/01/31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Louie McDonald

Counsel: Jeannine Plamondon and Mark Seabaran, Counsel for the Federal Crown André White, Counsel for the Provincial Crown Ian Paul, Counsel for the Accused

HEARD: January 8 – 10, 15 – 18, 2018

Ruling on the Crown’s application to admit into evidence witness statements and a sea-doo owner/operator manual for the truth of their contents

LEROY, J.

[1] Although these are separate applications, as the principles are the same, these reasons pertain to both.

[2] The charges are that Mr. McDonald’s criminal negligence in the operation of a Sea-Doo resulted in death by drowning of two men on September 2, 2015. The allegations are that he was a member of a conspiracy to smuggle three men from Canada into the United States. The role in the conspiracy attributed to Mr. McDonald was to transport three men across the St. Lawrence River from the Province of Ontario to Quebec to exploit the unique configuration of jurisdictions in the Akwesasne Territory and evade the legal port of entry into the US on the Island.

[3] Mayur Patel survived the incident. His whereabouts have been unknown since December 2016. Through an interpreter, Mr. Patel provided recorded statements to police on September 2, 2015 and September 9, 2015 and a recorded statement under oath accompanied by warning on January 16, 2016. The Crown application is for an order granting the admission of the three statements for the truth of their contents pursuant to the principled approach to hearsay, citing necessity and requisite reliability.

[4] The defence contests this application on the grounds that hearsay is presumptively inadmissible and the Crown has not proven either necessity or reliability on a balance of probability.

[5] The Crown printed the owner/operator manual for the watercraft discovered at the scene which contains passenger and weight capacity. The Crown seeks an order admitting the maximum capacity limits section of the manual into evidence for the truth of its contents. The grounds are that the manual content is inherently reliable and necessity is met on the grounds of trial economy and refusal by Yamaha Inc. representatives to testify. The manual is widely dispersed as it is available on the Internet.

[6] The defence contests this application arguing insufficient reliability and necessity. He argues that the manual is a poor substitute for expert opinion evidence regarding load limit and there is no evidence before the Court to allow the trier of fact to adequately assess the reliability of the manual contents.

[7] As will be seen, the circumstances of Mr. Patel’s statements are such that there are indicia of inherent reliability relative to the matters relevant to Mr. McDonald. There are at the same time unmet hearsay dangers that contraindicate threshold reliability. This is a close call. In the end result, trial fairness prevails and for the reasons that follow the application in relation to the Patel statements is dismissed.

[8] For the reasons that follow the application to admit the Sea-Doo manual is dismissed.

Background

[9] There are obvious deficits in Mr. Patel’s perceptions, revealed memory, narration and sincerity.

[10] Mr. Patel’s language is unilingual Gujarati. Anything he overheard in Canada communicated in the English language was incomprehensible to him.

[11] Mr. Patel portrays as unsophisticated. He assigned responsibility for every detail of the construction of his adventure in Canada to Ravikant, a man he knew for 6 months.

[12] Mr. Patel said that his home was in the city of Ahmedabad, in the State of Gujarat, India. He obtained a student visa to attend university in Halifax, Nova Scotia. It is confirmed that the educational transcripts and English proficiency test results were falsified. So far as Mr. Patel knew so was the representation regarding access to the proceeds of the $10,000 security.

[13] In the statements, he chronicled his arrival from Delhi, India to Montreal on August 28, 2015 with one of the men who drowned on September 2, 2015. They flew to Fort St. John, BC through Vancouver the next day and connected with Ravikant. He said he divested himself of the GIC on August 31, 2015 in the context the proceeds were not his property and he depended on Ravikant’s benevolence for his upkeep over the course of the educational program.

[14] The three men flew to Montreal on September 1, 2015 and stayed overnight in a hotel.

[15] Mr. Patel said they vacated the hotel early morning on the second. Ravikant received a phone call at 5:00 a.m. The three immediately departed. They were collected by car outside the hotel. He said they changed vehicles twice. He said they were taken in the third vehicle to the eastern shore of Cornwall Island.

[16] In the first statement, Mr. Patel said he learned of the planned entry to the United States on route between Montreal and Cornwall Island in the second car in early morning September 2, 2015. In the other two versions, he said the planned excursion into the United States crystallised when they negotiated the student visa security of $10,000 GIC at the Bank of Nova Scotia in Fort St. John, British Columbia on August 31, 2015.

[17] He said they encountered Mr. McDonald with the Sea-Doo. The three men boarded the Sea-Doo, it capsized immediately and all four fell off into the water. They boarded a second time and departed. Within minutes, they capsized again and Mr. Patel’s two companions drowned. Mr. Patel confirmed the absence of personal flotation devices.

[18] Mr. Patel was charged under the Immigration and Refugee Protection Act (IRPA) for misrepresenting his status on the student visa application and for entering Canada with the student visa for the purpose of entering the United States and was detained at OCDC until January 2016.

[19] Mr. Patel did not acknowledge that the end game was entry to the United States. He persistently portrayed the travel to the United States as excursion. In the first statement for 2 days and in the others for 4 days. He applied for and was denied student visa status in the US three times. He was apprehended in a failed attempt to enter the US illegally after only four days in Canada. His activities in those four days was incongruent with someone planning to settle in Halifax for school. He did not articulate a return plan. He understood that collectively they had to pay the sum of $2K to cross the border.

[20] Mr. Patel emphasized that his involvement was limited to instruction compliance.

[21] The range of possible explanations is broad. There is minimal evidence as to Mr. Patel’s history. At one end of the spectrum, the three men could have been part of a terrorist cell. At the other, it could be that Mr. Patel was victim to an unscrupulous modified human trafficking scheme he unknowingly funded from the proceeds of a student bank loan acquired in India.

[22] Mr. Patel was held at OCDC from September 2, 2015 until January 18, 2016. An exclusion order was issued on December 21, 2015. That order had the effect of excluding Mr. Patel from Canada for a period of five years. Every person subjected to an exclusion order has the right to apply for a pre-removal risk assessment. Implementation of the removal is stayed pending completion of the assessment. Mr. Patel applied for pre-removal risk assessment on January 18, 2016. That assessment was rejected on October 27, 2016.

[23] CBSA immediately issued a stay of the removal order so that Mr. Patel could be present for the preliminary hearing and trial. The fact of the stay was communicated to Mr. Patel’s criminal counsel in January 2016.

[24] After negotiation, it was agreed that after Mr. Patel provided the sworn recorded statement on January 14, 2016, the charges against him would be stayed and they were.

[25] Mr. Patel was anxious for release from OCDC on January 14, 2016 – page 35 of the transcript.

[26] The charges were stayed on January 18, 2016. Mr. Patel knew that he was a necessary witness at this trial and that removal from Canada was in abeyance until the trial. CBSA released Mr. Patel into the care of an acquaintance resident in Toronto, subject to a $2,000 cash security and reporting. Mr. Patel executed the acknowledgement of conditions that were communicated through an interpreter. Mr. Patel failed to report on December 19, 2016 and absconded. The cash is forfeited. Mr. Patel is not under subpoena as a witness for this trial.

[27] Ms. Biscotti confirmed that release was appropriate. In order to detain Mr. Patel, CBSA would have to conclude he was a danger to the public or unlikely to appear for removal when the time came. Mr. Patel did not have a criminal record in Canada, he had community in Canada, he had a surety and the acknowledgement. Mr. Patel honoured the reporting requirement for ten months.

[28] CBSA said they conducted open source searches – Facebook and contacted US customs and the Canadian embassy in India. Ms. Biscotti satisfied herself there are no records of Mr. Patel’s travel to the United States or India.

[29] In terms of efforts at locating Mr. Patel for trial subpoena, the IO tasked searches of the RCMP, New York and Akwesasne police data bases, the Ministry of Transport in Quebec, Ontario and New York State and placed calls to the known phone number of the surety. Those searches proved negative.

[30] Mr. Patel was not available for the preliminary hearing. The date for the preliminary hearing was set on April 20, 2016. Mr. Patel did not breach until December 2016 and was not subpoenaed to attend the preliminary hearing. He has not been cross-examined.

[31] The owner/operator manual for the Sea-Doo retrieved at the scene warns of maximum load capacity of 3 persons or 240 kilograms. The evidence is that the Sea-Doo is American production. The IO contacted the US and Canadian offices of the manufacturer and was unable to persuade anyone with expertise to testify as to the basis for the load capacity contained in the manual.

[32] There is a witness, Larry Mitchell, to the drowning incident. He testified at the preliminary hearing. He is expected to say he saw the Sea-Doo capsize with the four riders. Mr. Mitchell threw a life line to Mr. Patel and pulled him to shore. Mr. Mitchell will say as well there were no life jackets. He called 911. He did not observe the arrival of the three men.

[33] Jacob Martin is expected to testify for the Crown. He testified at the preliminary hearing. He has charges here and in the US for his part in this incident. He comes to court with credibility issues. That said, he acknowledged being part of a conspiracy to smuggle the three men into the US. He said he collected the three men at the Brookdale Mall in Cornwall and drove them to the scene of the drowning. He said that two days before the incident, he arranged cross water transport between Ontario and Quebec with Mr. McDonald. He acknowledged a misunderstanding regarding the contraband. He was unsure if he had ever communicated the trio’s ultimate destination to Mr. McDonald.

Applicable Principles

[34] An out-of-court statement is hearsay when: (1) it is adduced to prove the truth of its contents and (2) there is no opportunity for contemporaneous cross-examination of the declarant. On this application, the out-of-court statements are adduced as the evidence of the declarant and not for its ultimate truthfulness, a matter left to the trier of fact. The rules of evidence applicable to hearsay are rules of admissibility, not weight

[35] Hearsay evidence is presumptively inadmissible because it is often difficult for the trier of fact to assess its truth. Hearsay evidence can be admitted under the principled exception if the criteria of necessity and threshold reliability are met on a balance of probabilities.

[36] The reliability enquiry is intended to ensure that only hearsay statements worthy of consideration by a trier of fact get before it.

[37] Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty in testing it. The hearsay dangers relate to the difficulties of assessing the declarant’s perception, memory, narration and sincerity.

[38] These dangers can be overcome by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).

[39] Substantive reliability: Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form. Examples include dying declarations, spontaneous utterances and statements against pecuniary interests, co-conspirator exception and confessions. Often the declarant is unavailable. In R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, the declaration was made without motive to falsify emerging naturally without prompting by a child who could not know of such sexual acts, immediately after the event, without mother’s influence together with the supportive evidence of the semen stain on her dress. In R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, Chief Justice Lamer considered the factors that would be inquired into on cross-examination – perception memory and credibility and concluded those usual concerns were alleviated because of the way in which the first two calls came about. As to the third and fourth calls, there were issues that cross-examination might have led to changed evidence and they were not admitted. In R. v. Nicholas, the issue was identity and the complainant’s evidence on that issue was not probative. Unavailability of cross-examination was not prejudicial.

When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show whether the statement is true or not. Relevant factors are those circumstances or attributes that address or exacerbate the identified hearsay dangers so long as the trial judge does not cross the line into ultimate reliability. Corroborating or conflicting evidence can be relevant.

To determine whether corroborative evidence is of assistance in the substantive reliability enquiry the trial judge is required to:

i. Identify the material aspects of the hearsay statement that are tendered for their truth;

ii. Identify the specific hearsay dangers raised by those aspects of the statements in the particular circumstances of the case;

iii. Based on the circumstances and these dangers, consider alternative, even speculative explanations for the statement; and

iv. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out those alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of the material aspects of the statement – R. v. Bradshaw, 2017 SCC 35

To be relied on for the purpose of rejecting alternative hypotheses for the statement, corroborative evidence itself must be trustworthy. Untrustworthy corroborative evidence is therefore not relevant to the substantive reliability inquiry. Trustworthiness concerns are particularly acute when the corroborative evidence is a statement, rather than physical evidence – Bradshaw para 50.

When the route to admissibility is through inherent reliability the proponent must always prove reasonable necessity.

[40] Procedural Reliability K.G.B: Another way of fulfilling the reliability requirement is to show no real concern arises from the fact the statement is presented in hearsay form because in the circumstances its truth and accuracy can nonetheless be sufficiently tested. The reliability inquiry for admissibility is focussed on the question as to whether the trier will be in a position to rationally evaluate the evidence. Examples include preliminary inquiry transcripts and availability of the declarant for cross-examination in recanting cases. In R. v. B.(K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, the most contextual factor was the availability of the declarant for cross-examination.

The usual trigger will be recantation so that necessity is almost automatic. Before the prior inconsistent statement is to be adduced for the truth of its contents, the Court directed that the accoutrements of reliability such as an oath and warning, videotaping in entirety and full opportunity to cross-examine come with the statement.

When the reliability requirement is met on the basis that the trier of fact has as sufficient basis to assess the statement’s truth and accuracy – witness availability – there is no need to inquire further into the likely truth of the statement.

Justice Charron noted in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at paragraph 80, “To say that a statement is sufficiently reliable because it is made under oath, in person and the maker is cross-examined is somewhat of a misnomer. A lot of courtroom testimony proves to be totally unreliable. However, therein lies the safeguard – in the process that has uncovered its untrustworthiness. Hence, the presence of adequate substitutes for that process establishes a threshold of reliability and makes it safe to admit the evidence.”

[41] The two routes to satisfying the reliability required for admissibility are not mutually exclusive and can work in tandem. In R. v. U.(F.G.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, the complainant’s out-of-court statement was strikingly similar to that of the accused, suggesting they were telling the truth at the time, so that the prior inconsistent statement was admitted for its truth. That said, where the declarant is not available for cross-examination, the focus of the reliability inquiry will be on the circumstances in which the statement came out – R. v. Tsekouras. 2017 ONCA 290, para 152.

[42] Even where the necessity and threshold reliability standard is met, the trial judge as gate keeper has discretion to exclude the hearsay evidence. The accused’s inability to test the evidence may impact on trial fairness.

Necessity

[43] Necessity is the other consideration that underlies the principled common law exception to the hearsay rule. It is founded on the need to get at the truth. Generally, the common law requires that evidence be presented under oath and subject to cross-examination. Where the test of cross-examination is impossible of application, the Court is faced with the alternatives of receiving the evidence without the test or of leaving that information unutilized.

[44] The reasonable necessity criterion is to be applied flexibly so as to be capable of encompassing diverse situations. As noted in B.(K.G.), the Court concluded that when a witness recants, necessity is based on unavailability of testimony. It comes down to a choice between hearsay evidence and the functional equivalent of no evidence.

[45] It does not mean necessary for the case advocated by the party adducing it – R. v. Smith (1992), 1992 CanLII 79 (SCC), 75 C.C.C. (3d) 257. The court in Smith quoted Wigmore at 1421 noting that “the assertion may be such that we cannot expect, again or at this time, to get the evidence of the same value from the same or other sources.”

[46] The court in determining the question of necessity may question whether the proponent made reasonable efforts to secure the evidence of the declarant in a manner that preserves the rights of the other party. This requirement protects the integrity of the trial process. Without the necessity requirement, the introduction of out-of-court statements would replace testimony - Khelawon

Principles Applied

Patel Statements

Necessity

[47] Mr. Patel has direct knowledge of how it was that three very recent visitors to Canada found themselves in the St. Lawrence River sixty feet from the easterly shore of Cornwall Island.

[48] Practically speaking, Mr. Patel is unavailable for trial. His whereabouts has been unknown since December 2016. He is in the wind.

[49] CBSA did not have grounds for continued detention pending this trial and eventual removal. They concluded that flight risk was adequately mitigated by the surety cash deposit and weekly reporting. CBSA did not have evidence to suggest that Mr. Patel presented as a danger to the public.

[50] CBSA did its diligence after Mr. Patel breached the reporting requirements. There is a live Canada-wide warrant for his arrest.

[51] It would have been better had the preliminary hearing subpoena been served on Mr. Patel in the seven months after the date was set during which he complied with the release terms. That may have allayed the concerns for immediate removal that the news of the rejection of his application for pre-removal risk assessment in October 2016 would engender. He would have been subject to cross-examination. This deficient prejudiced the defence.

[52] The witness statement taken on January 14, 2016 was an effort to preserve Mr. Patel’s evidence. Detention was no longer an option. That he might choose flight was foreseeable. The choice was to release on terms or remove him from the country.

[53] Necessity is made out. Are these statements sufficiently reliable to be adduced in evidence for the trier fact?

Reliability

[54] For the statements given on September 2 and 9, 2015, Mr. Patel was an accused person. In both cases, Mr. Patel was advised of the audio/video recording. He was cognizant of the charges he was facing, right to counsel and silence. Mr. Patel was not under oath. The interpreter was accredited but not under the interpreter’s oath.

[55] For the statement given on January 14, 2016 Mr. Patel, as witness, was under oath and the consequences for not being truthful were explained. The interpreter was accredited but not under the interpreter’s oath.

[56] The Crown motion seeks admission of the three statements. To the extent the statements cover the same ground, the Crown is not advancing the three as consistent statements, rather as evidence that Mr. Patel did not advance a narrative materially different from the first two on January 14, 2016. So, for trial purposes, the statements dated September 2 and 9, 2015 would only be adduced to counter the argument that Mr. Patel contrived the narrative to curry favour in his quest to be released from OCDC in January 2016.

[57] The material aspects of the statements that are tendered for their truth here are:

i. That the three men determined to enter the US illegally two days prior to the attempt;

ii. The implementation plan involved four carriers for pay in the amount of $2,000 – the first 3 drivers and Mr. McDonald;

iii. That the Sea-Doo found at the scene is the watercraft the four men were on when it capsized;

iv. That a capsize was foreseeable, particularly after the initial capsize;

v. There were no personal safety devices on board the Sea-Doo.

[58] The specific hearsay danger lies in the defence inability to cross-examine Mr. Patel as to his perceptions, memory, narration and sincerity. A significant issue lies in the impression Mr. Patel’s motives throughout every statement were to minimize his culpability in the manufacture of falsified documentation and the curious financial misdirection. A successful cross-examination could show that Mr. Patel is so careless with the truth that little if anything he says attracts deference.

[59] The task is to identify factors present here tending to establish inherent trustworthiness or which provide a substitute basis for testing the evidence.

Sincerity

[60] Motive to be truthful – The statement given on January 14, 2016 was under oath on notice that lying was legally significant and might carry sanctions for Mr. Patel. Mr. Patel had the benefit of legal counsel in the period preceding the statement. The stay of proceedings had been negotiated in return for a truthful narrative. Mr. Patel was not thriving at the detention center. As noted above, his anxiety over having to return was palpably evidenced in the video. His statements were given voluntarily.

[61] The statements were video and audio recorded. Mr. Patel’s demeanor was there for the watching. The recordings were not easy to watch. Mr. Patel’s narrative in the first and second recording sounded totally implausible. Based on the interviewer’s context, Mr. Patel’s responses were nonsensical. The combination of language and context reduced the first interaction to cross purpose dialogue. How much of the dialogue was reliably translated is an unknown.

[62] That said, Mr. Patel has significant capacity for deceitfulness. The project of gaining entry to Canada was built on deceit. Nothing about their five days in Canada or his individual circumstances pointed to settling in for the school year in Halifax. Mr. Patel deflected responsibility for the deceit to Ravikant until the end.

[63] Mr. Patel’s motive to fabricate was directed at minimizing his personal blameworthiness in the project. It cannot be said that what Mr. Patel said was contrary to his penal or pecuniary interest.

[64] Once he acknowledged a plan to travel to the US from Canada hatched, he says, in Fort St. John, the implementation details were just that. The drivers were faceless implements in the pursuit of the plan. Mr. Patel could not know the legal implications involved in the use of three cars and a watercraft seemingly by serendipity, from his perspective showing up at the right time. He did not seem to understand the implications relative to the life jackets.

[65] Mr. Patel is unavailable for cross-examination. He was not cross-examined by the police interviewers. He was challenged on facts the investigation had uncovered and he assigned responsibility to Ravikant. He was not challenged on issues important to Mr. McDonald.

[66] Role or influence of the person receiving the evidence – there were three interviews. The interrogators began with a blank sheet. As they marshalled more information about the student visa application and the intra-Canada itinerary, their interrogation became progressively move focussed, but they did not bring any degree of enhanced focus on the segment of the interview dealing with Mr. McDonald’s issues. Those questions became routine.

Corroborative Evidence

[67] Jacob Martin’s testimony is expected to corroborate Mr. Patel’s conspiracy evidence. Mr. Paul’s cross- examination of Mr. Martin at the preliminary hearing raised issues relating to Mr. Martin’s credibility. As noted, untrustworthy corroborative evidence is not relevant to the substantive reliability threshold enquiry.

[68] Mr. Mitchell’s testimony is expected to corroborate the events of the final capsize. He did not observe the asserted initial capsize.

[69] The real evidence discovered on scene doesn’t corroborate, rather it requires explanation.

Perception - reliability

[70] Mr. Patel’s position on matters including all that was involved in the garnering of the student visa, the extensive travel within Canada, the money, the decision to visit the US and how it was implemented was to deny cognizance.

[71] The week had to be a difficult for Mr. Patel. He was in a strange country with minimal linguistic skills. In one week, he travelled half way across the world – Delhi to Montreal, half way across Canada twice. They arrived at the hotel on Tuesday night at 11:00 p.m. and were underway towards Cornwall at 5:30 a.m. Wednesday morning. He had to be on autopilot. He took little note of the drivers. He recalls the juice stop and two exchanges. No recall of where these occurred. He recalls arrival at the shoreline. He wasn’t attentive to details such as cash transfers. The first capsize would be significant. The near death capsize likewise was significant.

Memory

[72] An out-of-court statement becomes more or less reliable depending on the declarant’s ability to recall relevant matters.

[73] The first statement was made the day of the incident. That would tend to enhance his memory. That said, he had to be exhausted and traumatised. He had been travelling for 5 days and had lost two traveling companions and nearly his life. That was apparent in his demeanor.

[74] As for the metadata of the route to the US such as when they decided to go, when they departed, how they got to the scene that would be clearer in his memory closer to the event than further in time from it.

Narration

[75] There was a little bit of leading nearing the end of the 3rd statement. The questioning was not coercive at any point. Mr. Patel was not under the influence of any intoxicating substances. In the earlier statements, he was emotionally traumatized by his recent experiences. For the last statement, Mr. Patel was anxious about being discharged from the detention center.

[76] The translation in all three statements was problematic. There were times when the interpreter and Mr. Patel engaged in Gujarati dialogue in their own conversation – page 18 September 9 interview – after a lengthy discourse between Mr. Gupta the interpreter and Patel, Derek White had to say “Translate some of it.” There are different times during the last interview when what was said was not translated – pages 21, 32 and 33.

[77] This is not a situation where the trier will be in a position to rationally evaluate the evidence based on the presence of adequate substitutes for testing the evidence. There are the police videos, one under oath and nothing more. Mr. Patel was never cross-examined and in his absence never will be. It is the availability of the declarant for thorough cross-examination with KGB-type statement that carries the test of reliability. As Justice Charron said in Khelawon at para 106, the principled exception to the hearsay rule does not provide a vehicle for founding a conviction on the basis of a police statement, without more.

[78] In order to meet the reliability requirement, the Crown has to rely on the inherent trustworthiness of the statement.

[79] The inability to cross-examine as to Mr. Patel’s perceptions, narrative and credibility results in significant prejudice to Mr. McDonald.

[80] The circumstances of the making of the Patel statements do not reflect the seal of reliability present in Khan, Smith, Nicholas and U.(F.G.) suggesting that cross-examination of the declarant would not bring value to the proceeding. Those incidents of reliability are not closed; however, here, I am not satisfied that effective cross-examination would not lead to material changes in the details pertinent to Mr. McDonald’s circumstances. This application is dismissed.

The Manual

[81] The manual provides that the Sea-Doo found at the scene is rated for 3 person capacity and maximum load of 240 kg (530 lb.).

Reliability

[82] No evidence was adduced directed at the reliability of the manual for purposes of establishing Seadoo load capacity. Although it is a public document, in the circumstances, it is impossible to measure or assess the factors tending to establish inherent trustworthiness or which provide a substitute for testing the evidence.

[83] The utility of an owner’s manual was discussed in R. v. Ibrahim, 2016 ONSC 7665 by Justice Clark as follows: at paragraphs 94 - 96

[94] Antonio Soloperto testified on September 29. He is employed by the Toronto Police Service as a Class “A” automobile mechanic. On consent, he was qualified to give expert evidence in that field. He was called by the Crown to say that he examined the applicant’s taxi, a 2010 Toyota Camry, and found it to be without mechanical flaw.

[95] In the course of cross-examination, Mr. Thorning sought to put certain statements contained in a Toyota owner’s manual to Mr. Soloperto. When the Crown objected, the jury and the witness were excused. During a fairly lengthy discussion, Mr. Thorning repeatedly insisted that the manual was authoritative simply by virtue of the fact that it was published by Toyota. Mr. Thorning was either unable to grasp, or unwilling to accept, that, to the extent that he wished to rely on it for the truth of propositions stated therein, the manual’s content was hearsay. Contrary to Mr. Thorning’s repeated assertion in this behalf, the mere fact that the literature in question was published at the instance of a large, multi-national corporation does not make it authoritative and propositions stated in such a document ought not to be put into evidence through the vehicle of cross-examination, unless, of course, they are adopted by the witness.[17]

[96] I resolved the issue by ruling that Mr. Thorning could use the document to cross-examine the witness, but only if the witness were to first recognize it as authoritative. Mr. Thorning indicated, at the time, that he was content with that resolution. To that end, I conducted a very brief voir dire, during which the witness indicated that, as a general rule, he does not use owner’s manuals in the course of repairing automobiles because, “half the time, they’re false.” What he was meaning to say, as I understood him, was that he considers them to be generally unreliable, as he went on to illustrate with several examples. He specifically indicated that he was unfamiliar with the particular manual to which counsel wished to refer him.

[84] Suffice to conclude that the mere fact the literature in question was published at the instance of a large, multi-national corporation does not make it authoritative and propositions stated in such a document ought not to be put into evidence without evidence going to the process behind the crafting of the document that would allow the trier to assess its reliability and hence probative value.

Necessity

[85] Detective King contacted Yamaha Canada and United States. The impression is that neither were eager to engage in this process. Although a Canadian with the requisite knowledge relative to the crafting of the manual for Canadian manufacture is compellable, the expertise may not carry over to the American manufacturing experience. We won’t know because no one was subpoenaed.

[86] That said, necessity is to be assessed flexibly. Cost benefit and inconvenience in marshalling the evidence augur in favour of necessity. If I was comforted by the reliability of the manual, I would not trip on necessity for admission.

Opinion

[87] The load capacity section of the Manual is an opinion. It is not a record of an act, transaction, occurrence or event. I am not persuaded that it is a business record. As such, the load capacity section is inadmissible without qualifying the expert who might validate the opinion.

[88] Mr. White argued that it may be appropriate to exclude the weight limit, but that I should accept the 3-person rating of the Sea-Doo sales promotion context as definitive. While the Sea-Doo may be marketed as a 3-person water craft the issue there remains the engineering basis for that context, which is missing

[89] Accordingly, this application is dismissed.

The Honourable Mr. Justice Rick Leroy

Released: January 31, 2018

COURT FILE NO.: CR-17-26 DATE: 2018/01/31

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

Louie McDonald

Ruling on the Crown’s application to admit evidence witness statements and a seadoo owner/operator manual for the truth of their contents

The Honourable Mr. Justice Rick Leroy

Released: January 31, 2018