Court File No. CR-23-00000003-00AP
Date: 2023 12 15
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
v.
SAJAN MEHTA
R E A S O N S F O R D E C I S I O N
BEFORE THE HONOURABLE JUSTICE C. CONLAN
on December 15, 2023 at MILTON, Ontario
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 (1) OF THE CRIMINAL CODE OF CANADA, in the Superior COURT OF JUSTICE, DATED March 24, 2023
APPEARANCES:
S. Hamilton Counsel for the Crown
N. Jackson Counsel for Sajan Mehta
Friday, December 15 2023
R E A S O N S F O R D E C I S I O N
CONLAN, J. (Orally):
These are my oral reasons for decision in this matter. This is a summary conviction appeal brought by Sajan Mehta. The appellant was tried before the Honourable Mr. Justice Cooper on an allegation of sexual assault. It was a serious case where it was alleged that Mehta had sexually violated a passenger in the course of Mehta operating an Uber. In oral reasons for judgment, delivered on May 19, 2022, the learned trial judge rendered a verdict of guilty. Mehta originally appealed against both the conviction and the sentence. The sentence appeal has been abandoned. For the reasons that follow, despite the able submissions of Ms. Hamilton, who was not the Crown at trial, the appeal is allowed.
In terms of the standard of review, the within appeal is brought under Section 813 (a)(i) of the Criminal Code.
Under sections 822(1) and 686(1)(a) of the Criminal Code, there are three discrete bases for this appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.
The burden is on the appellant, Mehta.
Factual findings made by the trial judge or entitled to deference, absent palpable overriding error. It is not the role of this Court to substitute its own views of the evidence. This is not a re-trial. R. v. Sheahan, 2017 ONCA 159, at paragraph 12, R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.
Questions of law are generally reviewed on a standard of correctness. In this case, the issue is whether the learned trial judge erred in law.
Regarding the law on prior consistent statements, there is a fairly recent decision from the Court of Appeal for Ontario, which I find to be quite helpful in terms of providing a summary of the relevant law in this area. The case is R. v. Brown, 2022 ONCA 417. In order to provide some context to that decision in Brown, I quote from paragraph one of the decision:
[1] Early in the morning on November 30, 2013, the complainant S.A. suffered injury. She had abrasions and swelling under her right eye, cuts and swelling on her lips, a broken tooth with a damaged nerve, and a gash on her forehead. There were blood stains on her clothes. With the help of her roommate, she placed a 911 call and reported that she had been sexually assaulted by two men. When she was examined at hospital later that morning, semen was found inside her vagina and rectum and on her jeans. Two years later, the appellant was identified through the DNA databank as the source of the semen. He was convicted of sexual assault and forcible confinement, and now appeals.
The following is taken from paragraph 13 in the decision of Brown:
First, the appellant argues that the trial judge impermissibly used the complainant’s statement to the 911 operator as corroboration of her trial testimony. The trial judge noted that the complainant sounded “distraught, hysterical and somewhat intoxicated” and was “crying and rambling incoherently to some extent”. He concluded that “this 911 dialogue is unquestionably a graphic depiction of her state of mind and entirely consistent with an experience of serious harm, injury and trauma.” Elsewhere in his reasons, he noted “the confirmatory tone and content of the 911 call” as part of the evidence that provided “a significant degree of corroboration” of the complainant’s evidence. The appellant argues that the trial judge strayed from using the 911 call as evidence of state of mind, and impermissibly used it to bolster the complainant’s claim that she was sexually assaulted.
The following is taken from paragraph 14 of the decision in Brown:
Prior consistent statements are, as the appellant argues, generally inadmissible. Even where admitted under one of the exceptions to the general exclusionary rule, they can never be used for the inference that in-court testimony is more likely to be true because a witness said the same thing on a previous occasion out of court. The trial judge was, however, entitled to use the complainant’s demeanour on the 911 call to draw inferences about the credibility of the complainant’s account, and to rely on this evidence as supporting her testimony of having experienced a violent sexual assault: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused, [2017] S.C.C.A. No. 139, at paragraphs 31-34; R. v. Steele, 2021 ONCA 186, at paragraph 94. But the appellant argues that the trial judge went beyond this legitimate use and strayed into using the substance of her statements on the 911 call as corroborative of her testimony at trial.
Finally, the following is taken from paragraph 16 of the decision in Brown:
I do not agree that a reading of the trial judge’s reasons as a whole supports the view that the trial judge used the substance of the 911 call as supporting the complainant’s testimony. The central paragraph of the reasons dealing with this evidence focused clearly on demeanour. It was responsive to Crown submissions that sought to use the evidence solely to support the complainant’s state of mind. The phrase “the confirmatory tone and content of the 911 call”, which appears later in the trial judge’s reasons, is clearly a reference to the complainant’s highly emotional state of mind, conveyed not only by the tone that she used, but by the words that she used. The trial judge did not use the 911 statement for the impermissible purpose of equating credibility with repetition.
In our case, unlike that in Brown, with much respect for the learned trial judge, I conclude on a reading of the reasons for judgment as a whole that the trial judge appears to have used the substance of the 911 call as supporting the complainant's testimony at trial. That respectfully, was an error in law that warrants appellate intervention.
The following points are important.
(1) There is no discussion anywhere in the reasons for judgment about for what purpose or purposes the 911 call was admitted into evidence or what purpose or purposes it was being relied upon by the trial judge.
(2) There is no discussion anywhere in the trial transcript about for what purpose or purposes the 911 call was being admitted into evidence or what purpose or purposes it was to be relied upon by the trier of fact.
(3) That is not fatal to the judgment. This is an experienced jurist presumed to know the law. It does however result in a lack of clarity as to the use made of the 911 call in the trial judge's overall assessment of the evidence.
(4) This was not an overwhelming case for the Crown. The verdict turned largely on the trial judge's assessment of the credibility and reliability of the complainant's evidence and that of the accused who testified at trial and steadfastly denied the allegations.
(5) The reasons for judgment make it clear that the 911 call was considered by the trial judge to be very important evidence. For example, at the bottom of page six of the reasons for judgment, the trial judge described the transcript of the 911 call as "powerful evidence". At page seven of the reasons for judgment and again at page eight of the reasons for judgment, the trial judge quotes verbatim from the transcript of the 911 call; a word for word account of what the complainant said to the 911 operator as to what the accused had done to her.
(6) If the trial judge was relying upon the 911 call for a permissible purpose, such as to assess to demeanour of the complainant or the timing of the call or the complainant's level of intoxication or something else as submitted by the Crown, then there would have been no utility to quoting exactly what the complainant said during the 911 call, in terms of the alleged actus reus of the offence.
(7) At page 27 of the reasons for judgment, the trial judge referred to the 911 call as "powerful confirmatory evidence of commission of the offence in question". In my respectful view, given that it is undisputed that the statements made by the complainant to the 911 operator were not made during the alleged commission of the offence, it cannot reasonably be that the trial judge intended to convey that the 911 call captured the actual commission of the offence. It must be that the trial judge was saying that the 911 call was powerful confirmatory evidence of the truthfulness of the complainant's evidence at trial, and that with respect, was an error in law.
(8) We must be fair to the trial judge. We must not take a microscopic view of the reasons for judgment in certain passages divorced from the reasons as a whole. In our case, however, there is simply nothing in the reasons for judgment, or in the trial transcript for that matter, that gives this Court some confidence that the 911 call was not used by the trial judge impermissibly, that is, as a prior consistent statement of the complainant that tended to bolster the credibility and reliability of her evidence at trial as to what happened between her and the accused.
It is worth mentioning that the analysis portion of the reasons for judgment really begins at page 25 and ends at page 29. Page 27 is where the trial judge assesses the evidence of the complainant specifically, and it is at that very page, page 27, where the trial judge refers to the 911 call as "powerful confirmatory evidence of commission of the offence in question", not confirmatory of something else, like the complainant's state of mind or her level of intoxication as just two examples. For these reasons, I have concluded that the learned trial judge did err in law and that the said error in law contributed materially to the verdict rendered after trial. The appeal must be allowed, and a new trial ordered.
THE COURT: So, Ms. Hamilton, you will know better than I what court and what date I should be putting Mehta to.
MS. HAMILTON: I would think it should go back into a judge's court rather than back into just general remand court, given the age of the file. So, it can really go into M15 on any day of the week at 10:00am.
THE COURT: So, when do you want this returnable?
MR. JACKSON: Just checking in my schedule, Your
Honour, I don’t think it makes sense to come back before the holidays, respectfully, so any day the week of the 15th of January would be fine for me, and I don't know if my friend has a preference.
MS. HAMILTON: I do not.
THE COURT: We'll say 10:00am in courtroom — did you say M15?
MS. HAMILTON: Yes.
MR. JACKSON: That's January 15th, Your Honour?
THE COURT: Yes. The matter will be scheduled for courtroom M15 in the Ontario Court of Justice at 10:00am on Monday, January 15, 2024, to set a new trial date at that time. And will that be in Milton or Burlington?
MS. HAMILTON: That's in Milton.
THE COURT: Thank you.
MR. JACKSON: Thank you, Your Honour for your time and consideration today. Also thank Ms. Hamilton for her carriage of the matter. It was good to reconnect with her as well.
C O U R T A D J O U R N E D
FORM 3
ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Eric Magri , certify that this document is a true and accurate transcript of the recording of R. v. Mehta in the Superior Court of Justice held at 491 Steeles Avenue East, Milton, Ontario taken from Recording Number 1211_6_20231215_084749__10_CONLANC.dcr, which has been certified in Form 1.
December 21, 2023
Date (Electronic signature of authorized person)
3595206113
(Authorized court transcriptionist's identification number - if applicable)
Ontario, Canada
(Province of signing)
LEGEND
[sic] - Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) - Indicates preceding word has been spelled phonetically.
Transcript Ordered: December 15 2023
Transcript Completed: December 21 2023
Transcript Approved for Release: Pending
Ordering Party Notified: December 21 2023
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.