Introduction

[1] Deepak Prasad was charged on August 31, 2016, with three counts of possession for the purpose of trafficking and three counts of possession of proceeds of crime, after police executed two search warrants. One search took place in a car driven by Mr. Prasad on that day. The other search took place in apartment 1801, 2212 Lake Shore Blvd. West, an apartment that the Crown alleges is associated with Mr. Prasad.

[2] One of the officers involved in the searches, Officer Michael Thompson, died of a fentanyl overdose approximately eight months after the searches. The Crown now brings an application to have Officer Thompson’s notes from the searches, as well as property reports he prepared after the searches, admitted substantively.

[3] The notes and reports are hearsay and thus are presumptively inadmissible: R. v. Khelawon, 2006 SCC 57, at paras. 2-3; R. v. Bradshaw, 2017 SCC 35, at para. 21. Under the principled exception, hearsay can be admitted into evidence when the party tendering it establishes on a balance of probabilities that the twin criteria of necessity and threshold reliability are met: Khelawon, at para. 47, Bradshaw, at para. 23.

[4] The Crown argues that it has established that the evidence is both necessary and reliable. Mr. Prasad concedes that since the officer has died, necessity is made out. He argues, however, that the Crown has failed to establish threshold reliability.

[5] For the reasons set out below, I have determined that the Crown has failed to establish threshold reliability. As result, the application to admit the notes and property reports prepared by Officer Thompson is dismissed.

[6] I do not intend to outline the facts at the outset, but instead will refer to them as necessary in my analysis.

Analysis

[7] The essential defining features of hearsay are twofold: (i) the out of court statement is introduced to prove the truth of its contents; and (ii) there is no opportunity for a contemporaneous cross-examination of the declarant: Khelawon, at paras. 35 and 56. There is no dispute that the notes and property reports prepared by Officer Thompson are hearsay.

[8] As noted in Bradshaw, at para. 20, there are dangers in relying on hearsay; the hearsay statement may be inaccurately recorded, and it may be difficult to assess the declarant’s perception, memory, narration or sincerity. The hearsay dangers can be overcome, and threshold reliability established, by showing: (1) procedural reliability; or (2) substantive reliability. Procedural reliability and substantive reliability may work in tandem.

[9] Procedural reliability is established when there are adequate substitutes for testing the evidence. Substitutes include traditional safeguards such as a video or audio recording of the statement, the presence of an oath or affirmation, a warning about the consequences of lying, and in many cases, some form of cross-examination of the declarant such as preliminary hearing testimony or cross-examination of a recanting witness at trial: Bradshaw, at para. 28.

[10] In this case, there are no such guarantees. Officer Thompson is not available for cross-examination. He was not under oath or affirmation. The hearsay is in the form of notes and reports, not a video or audio recording. Indeed, the notes are not even a complete statement and instead are in point form.

[11] Substantive reliability is established if the hearsay is inherently trustworthy. In assessing whether a statement is inherently trustworthy, the judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement: Bradshaw, para. 30; R. v. Blackman, 2008 SCC 37, at para. 55.

[12] In the present case, the Crown concedes that there is no corroborative evidence as explained in Bradshaw. I agree. The Crown argues, however, that the circumstances surrounding the making of the notes and the property reports establish that the statements are inherently trustworthy for four reasons.

[13] First, the Crown argues that the property reports were made contemporaneously, which would assist in ensuring that they were accurate. The difficulty with this submission is, as will be explained below, there were clear inaccuracies in the reports prepared by Officer Thompson.

[14] Second, the Crown points out that the property reports were verified by Officer Ash Awad. In my view, however, this does not assist the Crown a great deal, as Officer Awad signed off on reports that, as set out below, contained inaccuracies. Further, Officer Awad admitted that he signed off on the property report submitted by Officer Thompson regarding money allegedly seized from Mr. Prasad, but that he did not actually count the money himself.

[15] Third, the Crown argues that Officer Thompson had no motive to lie. I agree that the evidence before me does not reveal any such motive. That said, an absence of a motive to lie goes only to the hearsay danger of sincerity, and does not address the dangers of perception, memory or narration. As explained by Fish J. in R. v. Baldree, 2013 SCC 35, at para. 32, in addition to knowingly making a false statement, there are three other concerns with respect to hearsay:

First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered, third, the declarant may have narrated the relevant facts in an unintentionally misleading manner…

[16] Finally, the Crown argues that Officer Thompson was under a duty to make complete and accurate notes, which means that his notes and reports are inherently trustworthy. In my view, there are two difficulties with this submission. First, Officer Thompson was also under a duty to uphold the law, yet, he violated that duty by using illicit drugs. While he did not overdose on fentanyl until April 2017, the Crown candidly concedes that it cannot be ruled out that Officer Thompson was using drugs in August 2016.

[17] Second, despite the duty to be accurate, it is clear that there were errors made by Officer Thompson. For example, one of the property reports he prepared noted that 940.75 grams of a cutting agent were seized by the police from the car being driven by Mr. Prasad. But the evidence of Officer Matthew Serrano, and the DVD filed as Exhibit 5, establish that this substance came from a safe in the apartment. In another property report, Officer Thompson noted that items were seized from apartment 810, rather than apartment 1801.

[18] Moreover, and of significance, Officer Thompson prepared a property report in which he said that the key to open the safe was found in apartment 1801. Although the Crown seeks to have this property report admitted substantively, he also argues that to the extent that the officer said that he seized the key to the safe from the apartment, this is not correct. Rather, he argues that Officer Thompson’s notes make clear that the key to the safe was attached to a fob that he seized from the car being driven by Mr. Prasad. Thus, on the one hand the Crown asserts that the note and reports are admissible because the officer was required to be accurate, yet on the other hand, asks this court to find that the officer was not accurate on this important point in the property report.

[19] The Crown submission that Officer Thompson was being inaccurate in his property report about where the key to the safe was found is also problematic in light of the evidence of Officer Serrano. Officer Serrano said that he was given a fob with the safe key on it by Officer Thompson. But he also said that the fob did not have a car key attached. Yet, Officer Thompson’s notes had the following: “In the ignition to the [target vehicle] were the keys for the [target vehicle], a FOB [with] 4 blue buttons, & other keys on it.” Thus, the evidence of Officer Serrano could be seen as inconsistent with the notes of Officer Thompson.

[20] Crown counsel argues that Officer Thompson’s notes may not be inconsistent with Officer Serrano’s evidence, as his notes could be read as saying that the car keys and the fob with keys were two separate items. That said, he candidly concedes that the notes could also be read as saying that the car key was on the fob, which would be inconsistent with Officer Serrano’s evidence. If so, it makes it more difficult to simply discount the property report that said that the key used to open the safe came from the apartment. Unfortunately, there is no ability to cross-examine Officer Thompson to get a better understanding of what he meant in his notes and to properly evaluate what could be an important inconsistency.

[21] As noted in Bradshaw, at para. 31, for hearsay to be admitted, the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process: see also Khelawon, at para. 49. Given some of the peculiarities in this case, I cannot be so satisfied. Cross-examination of Officer Thompson on his drug use could impact on an assessment of his perception, memory and narration. Given that his notes are point form and, on the issue of the key/fob open to more than one interpretation, cross-examination would allow for an understanding of what the officer meant. Further, cross-examination would delve into the potential inconsistency between his notes and the property report about where keys were found, and also why the fob provided to Officer Serrano did not have a car key on it. These are all areas of questioning that would add to the process.

Conclusion

[22] The Crown has failed to establish threshold reliability. There were no adequate substitutes for testing the evidence and the circumstances do not establish that the evidence is inherently trustworthy. I am not satisfied that the notes and property reports are so reliable that cross-examination of Officer Thompson would add little if anything to the process. As a result, the application to tender the notes and property reports prepared by Officer Thompson is dismissed.

Justice Heather McArthur

Date: January 17, 2019

R. v. Prasad, 2019 ONSC 444

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DEEPAK PRASAD

REASONS on APPLICATION TO ADMIT HEARSAY EVIDENCE

Justice Heather McArthur

Released: January 17, 2019

R. v. Prasad, 2019 ONSC 444

Case Summary

Introduction

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1