COURT FILE NO.: SCA(P) 19-0573 DATE: 20200601 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – NAYMATULLAH SAYFI Appellant
Counsel: Marilyn Dolby, for the Crown Respondent Jeffery Couse, for the Appellant
HEARD: May 21, 2020
REASONS FOR JUDGMENT [On Appeal from the Oral Reasons for Judgment of Justice L. Amlin, dated August 29, 2018]
J.M. Woollcombe J.
A. Introduction
[1] The appellant, Naymatullah Sayfi, was convicted of one count of wilfully causing unnecessary pain to his dog by spraying the dog with bear spray and assaulting it, contrary to s. 445(1)(a) of the Criminal Code. He appeals that conviction. The only issue on the appeal is whether the trial judge erred in admitting for their truth hearsay statements of the appellant’s mother.
[2] At trial, the Crown alleged that the appellant applied bear spray and hit and injured the dog inside the home in which he lived with his mother and two younger sisters. The Crown called as witnesses the police officers who received a complaint from the appellant’s mother, Najiba Karimi, and the officers who attended at the home, arrested the appellant and removed from the home the two dogs located in the basement. The Crown also adduced the evidence of a Guelph Humane Society animal protection worker and of a veterinarian who examined the dogs. It was uncontested at trial that both dogs had been bear sprayed and that the older of the two, a year old Mastiff crossbreed female, had suffered a recent serious head injury.
[3] The appellant’s mother, Ms. Karimi, was subpoenaed as a Crown witness, but did not attend at the trial. The Crown applied to have her hearsay statements to the police admitted for their truth. Following a voir dire, the trial judge ruled the hearsay statements substantively admissible.
[4] The trial judge relied on Ms. Karimi’s hearsay statements to find the appellant guilty.
[5] The appellant submits that the trial judge erred in concluding that the Crown had established the substantive reliability of Ms. Karimi’s statements and, as a result, erred in admitting the statements. The standard of review is one of correctness.
[6] For the reasons that follow, I dismiss the appeal.
B. Trial evidence before the hearsay voir dire
[7] I will summarize briefly the relevant evidence.
[8] In the early hours of April 20, 2017, Guelph Police Service officers were dispatched to attend at a public school to meet with a complainant in respect of a family dispute. They understood that there had been a spray of some sort used in the house and that the mother and daughters had left the home because they were scared for their safety.
[9] At about 12:19 a.m., Constable Kecskemeti met with Ms. Karimi, who was with her two young teenage daughters in the parking lot of the school, located around the corner from her house. They were all wearing their pyjamas.
[10] The officer spoke with Ms. Karimi, whom he described as “extremely upset and scared”. She provided him with information that she had a son at the house and who was out of control. She alleged that he had beaten the dogs and that there was a spray used. The officer understood Ms. Karimi to be adamant that she wanted her son removed from the home because she was frightened and he was violent.
[11] Other officers, including Constables Lunn, Gamsby and Hern also went to the school. After Constable Kecskemeti had spoken to Ms. Karimi for about five minutes, and obtained her permission to enter the home, the four officers left to go to the home. They understood that the appellant lived in the basement and that the dogs were there.
[12] Constables Kecskemeti and Lunn went into the home by the side door and went downstairs to the basement. The officers noted an odour of pepper or bear spray as they went to the basement. The basement had a bathroom, a living area and a laundry room by the stairs. After significant resistance, the appellant was arrested in the basement for animal cruelty and was subdued.
[13] Constable Hern located a Mastiff puppy in a penned off area of the basement. It appeared in good condition. She could also hear the whimpering and crying of another animal and opened the laundry room door. Immediately, she smelled the strong odour of bear spray or pepper spray. She saw a plastic crate, or cage, that was on its end and had a dog inside it. The dog seemed to be in distress and was crying. She noted that that the dog had a laceration above her right eye and redness in her right eye.
[14] In the laundry room, police located a container of bear spray.
[15] Constable Kecskemeti was asked in chief that he had made any observations in the bathroom. He said that he was not sure if the appellant’s t-shirt was in the bathroom, but that he knows that there was blood on the appellant’s t-shirt and that he did not think he had made any observations in the bathroom. Under cross-examination, he was asked about a t-shirt he had mentioned having observed in the laundry room. He confirmed that he had seen a t-shirt with blood on it. He did not know if the blood came from the dog. He also said that the appellant had not been wearing the t-shirt, and that it had been in the laundry room. Under re-examination, after reviewing his notes, the officer said that the appellant wore a t-shirt with blood on it. The police did not seize it and it was never tested.
[16] As the police removed the appellant from the home and took him outside, he remained non-compliant. Police described his family members as combative, with one of the sisters trying to push police back. Ms. Karimi was hysterical and screaming. The family did not appear to want the appellant taken into the cruiser. One of the sisters wanted to take the puppy back, but the police told her that it needed to be assessed by the Humane Society.
[17] Constable Kecskemeti did not take a statement from Ms. Karimi that day and tried unsuccessfully to do so at a later point, but she did not call him back.
[18] After the appellant was removed from the home, the Humane Society attended to take care of the dogs.
[19] An animal protection worker from the Humane Society, Darren Gwillam was called to the home and took the two dogs to the Humane Society. He described both as wet to the touch and believed it was some sort of irritant as it smelled and was unpleasant to inhale. The larger dog had a couple of reddish marks on its body that looked like scrapes and a large bump on its head. He contacted the veterinarian.
[20] Dr. Liteplo, a doctor of veterinarian medicine, examined the two dogs early the next morning.
[21] She said that there was a significant smell of bear spray that caused both her and the technician assisting her to cough and their eyes to water. They conducted a physical examination of the two dogs.
[22] In respect of the puppy, a three or four month old male Mastiff, she said that the insides of his eyes were very red and irritated, likely as a result of the spray affecting him. He was given two or three baths to get everything off him. He had no injuries.
[23] The other dog, a one year old Mastiff cross, had injuries that were both acute and those that were older.
[24] The older dog had very severe conjunctivitis and sclerites, meaning that the inside of her eyes was very, very red and that she had swelling above one of her eyes. The vet believed that the dogs had been sprayed with something. Touching the dog without a glove burned and that the smell made them cough. They bathed her hourly and flushed her eyes out with saline.
[25] The older dog’s ears were very red and inflamed and had debris in them. The veterinarian said that there was likely an untreated ear infection and that this injury was not acute. The dog’s ears were treated with medications.
[26] This dog also had a superficial laceration to her right eye which Dr. Liteplo said could be from having been struck or shoved or from another dog or person scratching her. The vet described the wound as bleeding a bit. This dog also had blood on her right shoulder area which could have come from her being hit or from her ear.
[27] Significantly, this dog also had what was described as “very, very large swelling” on the top of her head. Dr. Liteplo described it as a “goose egg” and said it was very sensitive to the touch. The vet put a needle into the swelling and blood came out. An x-ray revealed no fracture of the skull. The swelling was treated with medications. Asked when it had happened, Dr. Liteplo said that she thought it was a very recent injury, in the previous six to eight hours.
C. The hearsay voir dire and ruling
[28] The Crown had subpoenaed Ms. Karimi to testify, but she did not attend at court on the first day of the trial. A material witness warrant was issued. She did not attend at court the following day. The Crown applied to admit Ms. Karimi’s hearsay statements for their truth. A voir dire was conducted to determine their admissibility.
[29] On the voir dire, Constables Kecskemeti and Gemin testified. Given the concession that the necessity test was met, I will not review the evidence respecting necessity and will review only the evidence adduced respecting the threshold reliability.
[30] Constable Gemin testified that on April 20, 2017, she was working at the Guelph Police Station. At about 12:06 a.m., Ms. Karimi came into the station with one of her daughters. She was in a panic and the officer described her as hysterical. The officer knew that Mr. Sayfi was Mr. Karimi’s son and had dealt with her on a previous occasion. The officer provided the following evidence respecting Ms. Karimi’s statements to her:
- Ms. Karimi said that her son, who lived in the basement of her home, was out of control at her house;
- She said that her son had arrived home from work and was upset because his dog had urinated on his bed;
- She said that her son had hurt the dog and beat the dog up and sprayed the dog with bear spray;
- She said that he had used bear spray and that the substance was leaking up into her bedroom and that she could not breathe and that the whole house smelled like bear spray;
- She said that her daughters “were in the house at the time as well” and believed that the dog had a huge bump on his head and that her son had beat the dog badly;
- She wanted her son out of the house at the time because she was afraid what he might do.
[31] The officer did not know if Ms. Karimi had seen the appellant use the bear spray.
[32] Constable Kecskemeti testified about his conversation with Ms. Karimi. He said that she spoke good English and that he talked to her while she was outside her minivan, with the two daughters in the vehicle. He provided the following evidence respecting the hearsay statements of Ms. Karimi to him:
- She said that her son was out of control and that he pepper sprayed and beat the dogs;
- She said that he had been violent in the past;
- She said that when her son gets like this, she is afraid for her safety and that he hurts and damages things;
- When police asked why he would have bear spray, Ms. Karimi said that he goes camping;
- She wanted him gone, kicked out;
- She had concerns for the dogs;
- Mr. Karimi’s demeanour was described as hysterical and frightened.
[33] The officer confirmed his understanding that the only people who lived in the home were Ms. Karimi, her two daughters, and the appellant.
[34] The officer testified that Ms. Karimi became hostile when the police were taking the appellant and the dogs away.
D. The relevant legal principles
[35] Hearsay evidence is presumptively inadmissible. Exceptionally, it may be admitted if it is necessary and sufficiently reliable.
[36] The leading authority on threshold reliability is R. v. Bradshaw, 2017 SCC 35. Threshold reliability may be established when the hearsay is sufficiently reliable to overcome the dangers that arise from the difficulties in testing it. In order to assess threshold reliability, the trial judge must first identify the specific hearsay dangers that arise from the hearsay statement sought to be admitted. These may relate to the declarant’s perception, memory, narration, or sincerity. Next, the trial judge must consider the means of overcoming the hearsay dangers. This may be done by establishing either procedural reliability (the existence of adequate ways to test the truth and accuracy of the statement) or substantive reliability (the existence of sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy): Bradshaw at paras. 26-27.
[37] Substantive reliability does not require absolute certainty or a guarantee that the hearsay statement is true. But, the standard is high, which, as pointed out in Bradshaw at para. 31, has been described by the Supreme Court of Canada in various ways. One way of understanding the test is to say that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process. Another way to articulate the level of certainty that the statement is true is to ask whether it was made under circumstances which negate the possibility that the declarant was untruthful or mistaken. Substantive reliability may be established when there is no real concern that the statement is true because of the circumstances in which it was made.
[38] Corroborative or conflicting evidence may be considered in assessing threshold reliability. While there has been an evolution in the law respecting when and how a trial judge may rely on corroborative evidence to establish substantive reliability, Karakatsanis J., writing for the majority in Bradshaw, summarized the applicable principles in at paras. 33-58.
[39] The focus of the trial judge at the threshold reliability stage is whether cross-examination of the hearsay declarant would add anything to the trial process in terms of assisting the trier of fact to choose between competing explanations for the declarant’s statement. The question is whether the corroborative evidence provides a basis to reject explanations for the hearsay statement other than that it is true. Accordingly, the only corroborative evidence that may be relied on at the threshold reliability stage is that which shows that the only likely explanation for the hearsay statement is:
…the declarant’s truthfulness about, or the accuracy of, the materials aspects of the statement. If the hearsay danger related to the declarant’s sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, perception, accuracy will be the issue.
Corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement. It must mitigate the need for cross-examination on the point that the hearsay seeks to prove.
[40] Further, corroborative evidence must assist in overcoming the specific hearsay dangers that arise from hearsay statement. It may assist in showing that the hearsay statement is unlikely to change under cross-examination if, in the circumstances, it shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness or accuracy about the material aspects of the statement, The trial judge “must, therefore, identify alternative, even speculative, explanations for the hearsay statement” and determine whether the corroborative evidence shows that the alternative explanations are unavailable. The trial judge must be able to rule out any plausible alternatives on a balance of probabilities.
[41] By way of summary, at para. 57 of Bradshaw, the trial judge is to:
- Identify the material aspects of the hearsay statement that are tendered for their truth;
- Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
- Based on the circumstances of these dangers, consider alternative, even speculative, explanations for the statement; and
- Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these 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.
E. Analysis
[42] While trial counsel submitted to the trial judge that necessity had not been established, no issue is taken on appeal with the trial judge’s finding of necessity. The focus of the appeal is whether the trial judge erred in assessing substantive reliability.
[43] The appellant submits that the trial judge fell into several errors.
[44] First, the appellant submits that while Bradshaw was before the trial judge, she did not follow the four steps it mandates. More specifically, the appellant says that the trial judge never identified the material aspects of the hearsay statement that was tendered for its truth or the dangers raised by those aspects of the statement.
[45] While I agree that the trial judge never expressly articulated that the material aspect of the hearsay statements was Ms. Karimi’s identification of the appellant as the perpetrator of violence on the dog, her reasons as a whole can only be read as demonstrating that she understood that this was the reason for which the hearsay statements were being tendered. There was, of course, no issue that the dog had been sprayed and suffered a head injury. The issue was whether the Crown had proven who did it. In his submissions, defence counsel identified this specific concern saying, “the issue here is whether Mr. Sayfi is the one that sprayed that bear spray”. I do not accept that the trial judge fell into any error in not repeating this in her oral reasons. It is obvious that she understood the material aspects of the hearsay statement being tendered for their truth.
[46] In terms of identifying the dangers raised by the hearsay, the trial judge correctly observed that threshold reliability required an assessment of whether the statements were sufficiently reliable to overcome the dangers arising from their inability to be tested. She recognized that, generally, these dangers included the challenge of assessing Ms. Karimi’s perception, memory, narration or sincerity. Further, she correctly identified the test for substantive reliability when she held:
The standard for substantial reliability is high, but it does not require absolute certainty. Rather, I must be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process. Substantial [sic] reliability can be established when the statement is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken.
[47] I do not agree that the trial judge failed to advert to the specific hearsay dangers that arose in this case. She recognized that these related to the accuracy and credibility of the statements and specifically stated that they included:
- Whether Ms. Karimi had first-hand knowledge of what she alleged the appellant had done, given that she had told police that she observed the odour of the bear spray leaking into her room;
- Whether Ms. Karimi had a motive to falsely implicate her son or to fabricate the allegation against him;
- Whether Ms. Karimi had any medical or mental health concern that made her statements to police unreliable;
- The fact that Ms. Karim did not review her police statements or confirm that they were accurate.
[48] Second, the appellant submits that the trial judge’s reasons reveal errors in her approach to corroborative evidence in establishing substantive reliability.
[49] Generally, the appellant says that in her approach to corroborative evidence, the trial judge failed to appreciate that it was not any corroborative evidence that was relevant to threshold reliability. This led her to improperly consider factors that were not relevant to a threshold reliability assessment.
[50] While the trial judge’s statement that she could consider “any evidence that corroborates or conflicts with the statements”, is an overly broad articulation of what could be legally corroborative, I thing the trial judge’s reasons as a whole, subject to the errors I set out below, reflected a proper understanding of what could be considered in determining whether the hearsay statements were inherently trustworthy and made under circumstances which negated the possibility that Ms. Karimi was untruthful or mistaken.
[51] The trial judge’s reasoning reflects some errors about what evidence was corroborative.
[52] First, the trial judge stated, “I take into consideration that Ms. Karimi gave the same information on two separate occasions to two different police officers”, a fact which she found “contributes to the reliability of the statements”. The Crown properly accepts the appellant’s position that Ms. Karimi’s repetition of the same version of events to two different police officers did not, and could not make the content of her statements more reliable. The trial judge was incorrect to conclude that repetition enhanced reliability.
[53] Second, when she assessed the corroborative physical evidence, the trial judge said:
In terms of corroborative physical evidence, it is Ms. [sic] Sayfi who had blood on his shirt. There is very strong evidence that the dogs were bear sprayed and at least the older female dog had been beaten. The bump on the dog’s head is exactly what the veterinarian saw.
[54] As the appellant points out, the fact that the dogs were bear sprayed is not corroborative evidence that enhances the substantive reliability of Ms. Karimi’s statement that her son injured the dogs. There was no issue that the dogs had been bear sprayed. The issue was the identity of the person who had done so. To the extent that the trial judge mentioned the evidence of the dogs having been bear sprayed as corroborative of the truthfulness and reliability of Ms. Karimi’s statement that the appellant was the person who sprayed the dogs, she fell into error.
[55] In my view, the balance of the trial judge’s analysis respecting the substantive reliability of the hearsay evidence reveals that she was correct to find the hearsay statements admissible and that she appropriately pointed to the significant corroborative evidence that negated the possibility that Ms. Karimi was untruthful or mistaken when she identified her son as the person who injured the dog.
[56] As the trial judge accepted, the timing and nature of Ms. Karimi’s report to the police, combined with her demeanour at the time, were corroborative of the fact that she was being accurate and truthful in what she said about the appellant being the person who injured the dog.
[57] Ms. Karimi and her daughters arrived at the police station at 12:06 a.m., in their pyjamas. The circumstances of her police complaint strongly suggest that she was accurately identifying her son as the perpetrator of the abuse of the dogs. At the time of her police report, Ms. Karimi was upset and afraid because of what had happened in her home. Moreover, her actions reveal that she felt there was an immediate need to stop and prevent further violence from occurring in that home to its other occupants. She said her son was downstairs and that it was him that she feared. The police thought her fear seemed genuine. Police confirmed that the appellant was the only person present in the home when the police attended there very shortly after the complaint was made. In my view, the fact that Ms. Karimi felt that she needed to flee her home in the middle of the night to protect the safety of the only other people who had been in the home, is compelling evidence that her son, who remained in the home alone, was the person whose violence she feared because of what he had done to the dogs. In my view, these circumstances strongly suggest that Ms. Karimi was being honest and accurately reporting what she believed when she told the police that her son was in the home, angry and had beaten the dog.
[58] The trial judge recognized that it was possible, because Ms. Karimi said that the bear spray odour leaked into her room, that she had not personally witnessed the appellant spraying the dog. I see no reason why Ms. Karimi had to have personally witnessed the spraying in order to know and accurately report who injured the dogs. This occurred in the middle of the night. She knew who was in her home at the time. She knew that the appellant and the dogs were in the basement. She knew that the appellant had bear spray. Even if she did not see what happened with her own eyes, in my view, she was well-positioned to accurately recount what happened and who had injured the dogs.
[59] Moreover, the trial judge acknowledged that Ms. Karimi had not told the police that she actually witnessed the beating of the dog or the bear-spraying. However, she reasonably concluded that Ms. Karimi had personal knowledge of what had occurred. Ms. Karim described her son being angry that the dog had urinated on his bed and that as a result he had sprayed and beaten the dog. As the trial judge recognized, even had she not been present for this, the nature of what was done to the animals made it very likely that Ms. Karimi heard what went on in the basement, including the reactions of the dogs. The circumstances made it clear, in my view, that even if she did not see everything that had happened in the basement to the dogs, Ms. Karimi knew that it was her son who had abused the dogs.
[60] Further, the trial judge recognized the physical evidence confirmed that Ms. Karimi had at least some personal knowledge that her son had injured the dog. She was accurate in her reporting to the police that the dog had a significant injury on its head, a fact that was confirmed subsequently by the veterinarian who examined the dog. While this fact did not mean, of course, that the appellant was the perpetrator, it suggests that Ms. Karimi had personal knowledge of what had been done and had accurately recounted what had happened to the dog. Contrary to the position of the appellant, I see no error in the trial judge using the existence of this physical evidence to support the inference that Ms. Karimi was able to accurately describe how the dog had been injured, including by whom.
[61] The trial judge also observed that the presence of blood on the t-shirt worn by the appellant was confirmatory physical evidence of him having been the perpetrator of the assault on the dog. While the appellant correctly notes that the officer’s evidence as to where the t-shirt was located was not consistent between his examination in chief, cross-examination and re-examination, the trial judge was entitled, on the basis of the evidence, to make a factual finding that a substance that appeared to be blood was on the t-shirt worn by the appellant. Absent palpable and overriding error, that factual finding is entitled to deference. While I accept that the blood was not tested, and there is no way to know with certainty whether it had come from the dog, in my view, the fact that there was a substance that appeared to the officer to be blood on the shirt worn by the appellant was a piece of evidence that enhanced the likelihood that the appellant was the person who injured the dog.
[62] Finally, in my view it was reasonable for the trial judge to consider and reject the defence position that Ms. Karimi could have been motivated to falsely implicate her son in this incident. There was no evidence that Ms. Karimi had any reason to intentionally falsely accuse her son. The defence position at trial was that cross-examination might have revealed that she had some motivation to lie or to “stretch the truth about what exactly happened”. With respect to this position, the issue on the voir dire was not about whether Ms. Karimi had exaggerated or stretched the truth. It was about whether her statement that it was her son who had beaten and sprayed the dogs was sufficiently trustworthy to be admitted. While I agree with the appellant that the fact that Ms. Karimi became hostile when the police arrested the appellant did not enhance the reliability of her statement, I view the argument that the defence needed to be able to cross-examine on Ms. Karimi’s motivation to falsely accuse her son as without merit because there is no basis to believe that this would have made any difference.
[63] In conclusion, as the trial judge found, the circumstances as a whole ensured that the hearsay statements were true and accurate. The dogs had been recently bear sprayed in the basement of Ms. Karimi’s home in the late evening or early morning hours when the others in the home, Ms. Karimi and her daughters, were in their pyjamas. The appellant lived in the basement and he and the injured dogs were found there by police shortly after, at a time when no one else was in the home. Ms. Karimi knew that one dog had a bump on its head and knew that the spray had been used. There was blood on the dog and blood seen on a t-shirt worn by the appellant. Ms. Karimi seemed to police to be so genuinely scared for her safety, and that of her daughters, that at midnight, in their pyjamas, they fled the home and the appellant so that she could report to police what had happened and to seek their assistance in having the appellant removed from the home. In all of these circumstances, I see the only explanation for the injuries to the dog being that the appellant beat and bear sprayed her. Accordingly, the trial judge made no error in admitting Ms. Karimi’s hearsay statements identifying her son as the perpetrator of the injuries.
F. Conclusion
[64] The appeal is dismissed.
Woollcombe J. Released: June 1, 2020