R. v. Tsang Date:, 2013 BCPC 414

Citation: R. v. Tsang Date: 20131216 2013 BCPC 0414 File No: 217489-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal) REGINA v. CHI LING ADRIAN TSANG EXCERPTS FROM PROCEEDINGS RULING RE ADMISSIBILITY OF CONSTABLE PECK’S EVIDENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: S.F. Paulson Counsel for the Defendant: J.V. Myers Place of Hearing: Vancouver , B.C. Date of Hearing: December 16, 2013

Date of Judgment: December 16, 2013 [ 1 ] THE COURT: This is my ruling on a defence objection, regarding evidence the Crown wants to lead from Constable Peck. The evidence the Crown wants to lead from Constable Peck is evidence of a document she seized from the glove compartment of a Hyundai Sonata she stopped in the early morning hours of December 25, 2012. That document was not seized by the police because it appeared to be a rental agreement. Accordingly, it was left with the vehicle since the accused, Mr. Tsang, was released once the police finished their investigation at the scene.

The Crown now wishes to have Constable Peck give evidence about information she gleaned from that document. She wrote the information in her notebook. [ 2 ] Mr. Myers objects to that information being admitted, and raises a number of arguments: (

a) it is hearsay; (

b) since the evidence emanates from a document, it is not the best evidence and the document itself should be produced; (

c) the principled approach to hearsay evidence does not apply because necessity has not been met; and (

d) his client would be prejudiced by admitting the oral evidence of the officer about what was in the document. [ 3 ] The Crown argues, on the other hand, that Khelawon applies. It seeks to have the oral evidence of the officer, about what was in the document, admitted for its truth. It relies on a number of Ontario cases where evidence of what was in a driver's vehicle documents discovered in the course of a driver being investigated for various offences under the Motor Vehicle Act or the Automobile Insurance Act, was admitted into evidence.

I will deal with one of those cases in a moment. [ 4 ] The Crown argues it is necessary to enter the document because that document is legitimately not available. It was not available to the officer at the time of the investigation. The Crown argues that the officer understood this document to be a rental document and that it had to remain in the vehicle. Once they had completed their investigations the officer and her partner decided Mr. Tsang should be released at the scene. Therefore, once that decision was made, to hold him further in order to get a copy of that document would not have been appropriate.

It was noted that this incident occurred between 2 and 3 o'clock in the morning, Christmas Day 2012. It was inferred there were not any practical alternatives to the officer simply noting what was in the document she found. Accordingly, the evidence should be admitted. [ 5 ] I am not going to do justice to the case law. I acknowledge that up front. However, it is very important for the parties to have a decision today. So let me start with McWilliams' Canadian Criminal Evidence . [ 6 ] Mr. Myers relies on an old version of McWilliams' . He acknowledges as much.

He did not try to put an old version of that text as a recent version. He relies on McWilliams' for his argument on the best evidence rule and on what he called "secondary evidence." He submits that if a document does not exist or if the party seeking to show its context cannot get at it, a party may be able to give secondary evidence. However in order to do so, the party has to establish various grounds. Of course, he argues this was not done in this case. [ 7 ] I turn to the most current edition of McWilliams' , which is the Fifth Edition. I know it has been recently updated by the librarian.

Unfortunately, the most recent edition is not organized in the same way as the older edition. There is a

section on documentary evidence, but it does not quite follow through in the same way.

I am going to rely on what McWilliams' has to say about documentary evidence in the current edition. [ 8 ] At paragraph 24:30:10, the authors of McWilliams' stress that it is important to identify at the outset the purpose for which a document is tendered because that will determine the rules of admissibility that apply or that may impact the level of authentication required. [ 9 ] One of the things noted in that paragraph is that where the maker of the document produces it and testifies to the truth of its contents, the evidence as to truth of the contents of the document is considered to have the same credibility and weight as would be attributed to the testimony of the maker.

However, when a witness who did not create the document testifies as to its contents, the hearsay rule is triggered. The document must fall under a hearsay exception to meet the conditions of necessity and reliability under the principled approach before it will be admissible. [ 10 ] I pause to note that McWilliams' refers to a situation where the document itself or a copy thereof is being tendered. In this case I have neither, so the situation is a bit of a hybrid. However, the general comments the authors of McWilliams' make are helpful in setting the context. [ 11 ] At paragraph 24:30:20, there is a

section called "document in possession doctrine". The authors of McWilliams' note that the document in possession doctrine is a good illustration of the dual nature of documentary evidence. It is also an example of circumstantial proof of authenticity. Again, they are talking about the actual document or a copy thereof being available. There are three elements to that doctrine:

a) The Crown must prove the document was in the actual or constructive possession of the accused, and at that juncture, knowledge of the contents of the document is not a condition precedent to the evidentiary value of the document.

b) Once possession is established, the document is admissible as a piece of original evidence from which inferences can be drawn concerning knowledge or intent.

c) The third element of the doctrine relates to using the contents of the document for its truth. If an accused has acted on the document by recognizing it or adopting it in some way, the court will accept proof of those actions as admissions in support of truth of the contents.

[ 12 ] I do not think there is any disagreement between the parties, that what the officer would tell the court is hearsay evidence. Am I correct on that? [ 13 ] MS. PAULSON: Yes, Your Honour. [ 14 ] THE COURT: I see -- [ 15 ] MR. MYERS: Yes. [ 16 ] THE COURT: -- both counsel nodding. The other fact on which there is no dispute is that the Crown is seeking to put this evidence in for the truth of its contents. It is not a situation where the Crown is putting the information in to support the basis for the officer having taken certain actions, such as to stop the vehicle or to detain the accused and so forth.

In fact, both parties will recall this document was obtained by Constable Peck after she had already detained the accused. I am using the word " detained " but I know there is an issue about whether it was a detention or arrest; however, I am using the word detained , because that is the word she used. [ 17 ] MR. MYERS: At that point, I believe she had confirmed what happened with the -- on her evidence, she confirmed what happened with the pill bottle, and they'd gone back and arrested both parties. [ 18 ] THE COURT: Yes. Yes.

It was after she had come back and it was during the search of the car that she then found this document which she said appeared to be a rental contract. [ 19 ] Two cases I found helpful, that is not to say I did not find the other cases helpful but these two were the most helpful, were the ones submitted by the Crown. I will deal first with the one I am going to distinguish, that is a case from the Ontario Court of Justice. It is a relatively recent case, R. v. Norat , 2009 ONCJ 106 . This was a case where Mr. Norat was convicted of an offence of operating a motor vehicle without insurance.

He was convicted, as I understand the case, after an ex parte trial in 2008. He did not attend court but he later appealed because, due to a prior driving record, he was issued a fine of $15,000 and a one-year licence suspension. His appeal was against both conviction and sentence. [ 20 ] The accused in that case made two submissions. One related to W.(D.) , which I will not refer to. The primary submission was that the verdict arrived at by the justice of the peace was unreasonable because he failed to appreciate the essential elements of the offence of own/operate a motor vehicle without insurance.

Justice MacLean identified the issue as being: The main issue argued by the Appellant was whether the Crown had proven beyond a reasonable doubt that the Appellant was the owner of the motor vehicle by merely calling evidence that he had produced -- -- and I want to stress that part -- -- that he had produced an ownership which the officer reviewed and determined was in the name of the Appellant. [ 21 ] Justice MacLean reviewed decisions of Justice Lampkin in R. v. Germanis [2001] O.J. No. 3225 , which was followed by Justice Krelove in R. v. Zilaie [2002] O.J. No. 2144 .

In those cases, the justices concluded that the testimony of a police officer that the name on the permit was that of the defendant did not meet the test of reliability and necessity based on the principled approach to the hearsay rule. [ 22 ] That is what Justice Krelove said in Zilaie , and Justice Lampkin in Germanis said the evidence of the constable pertaining to the contents of the licence was hearsay evidence. It did not fall within any of the pigeonholes of the old common law exceptions to the hearsay rule.

The officer's viva voce evidence did not satisfy the requirement of necessity in the sense contemplated by the new jurisprudence. [ 23 ] In Germanis , Justice Lampkin noted that the Province of Ontario maintains documents regarding permits and those could have been obtained. He noted it was not a matter of challenging the accuracy of the officer's testimony but it was putting the prosecution to a strict proof of all the elements of the offence and therefore the necessity requirement was simply not fulfilled. [ 24 ] In another case Justice Khawly adopted the reasoning of Justice Lampkin in Germanis.

That case was R. v. Navarro [2002] O.J. No. 5864 . [ 25 ] Justice MacLean, in Norat , disagreed with all of the earlier cases. At paragraph 18, he said this type of evidence does not fit within any of the common law exceptions to the hearsay rule. It was his view "that the production of the driver's own documents" - and again, I stress production - "to an officer amounts to an admission by that driver" and "[a]dmissions and confessions by an accused person have long been recognized as an exception to the hearsay rule.

The case law that supports this view will be referred to in greater detail below." [ 26 ] In Norat , Justice MacLean noted there were several cases that agreed with that analysis. He referred to R. v. Sambhi [2003] O.J. No. 3131 where, on appeal, Justice Latimer concluded the viva voce evidence of a police officer to prove the contents of a driver's licence was not hearsay. In R. v. Macatangay [2003] O.J.

No. 5643 , Justice Hawke accepted that the mere production of a driver's license is an admission which is an exception to the hearsay rule and as such can be used as evidence of the truth of its contents as long as there are no problems with admissibility such as voluntariness. [ 27 ] There was another case, R. v. Kingston [2005] O.J. No. 2147 , where Justice DeFilippis dismissed an appeal from a conviction for failing to maintain a logbook. In that case, the issue was whether the prosecution could rely on documents produced by the driver as admissions.

The documents were a commercial vehicle registration and a logbook.

[ 28 ] In Norat Justice MacLean addressed the best evidence rule and how that ought to be applied. It is important to note that his analysis of the best evidence rule is set in the context of a situation where the driver produced certain documents. He adopted the reasoning on the best evidence rule of Justice Stone in R. v. Laidlaw Environmental Services Ltd. [1998] O.J.

No. 6426 that the witness was entitled to give oral evidence about the contents of a written manifest in a motor vehicle but the weight to be given was to be determined after all of the evidence was in at trial. [ 29 ] I have reviewed this case in some detail because on the face of it, it seems to deal with the situation of what police officers can testify to orally. However, when applied to the factual circumstances of this case, it is a totally different situation. In the case before me there is not a lot of evidence about what the driver, Mr. Tsang, was asked to produce.

I assume he was asked to produce his driver's licence and so forth. However, I do not need to go there. All I am saying is I assume that was the case. Whether this is something that is important later in this case will have to be dealt with. What we know for sure is Mr. Tsang was not asked to produce any papers relating to the ownership of the motor vehicle and he did not produce the document which the officer believed was a rental agreement. [ 30 ] All of the cases that deal with the exception to the hearsay rule where there is an admission do not apply in this case because Mr. Tsang did not admit to anything.

He did not produce anything. It might perhaps be very different if he had been asked to produce his driver's licence and motor vehicle registration papers and he produced his licence and what appears to be a rental agreement. That is not what happened in this case. Accordingly, the case before me is very distinguishable, on the facts, from the Ontario cases. [ 31 ] I now turn to the ruling of Mr. Justice Smith in Lising and Pires 2000 BCSC 1589 . I note that it was a ruling in the course of the trial. There is no full-fledged introduction as to what the charges were.

It was not clear in reading this case was whether there was a conspiracy issue. I know that in one of the cases cited by Mr. Froess, the prosecutor in that case, there was an unindicted co-conspirator who had been called, but it is not clear to me whether there was a conspiracy allegation in the Lising and Pires case. However, let me review the facts of that case. [ 32 ] In Lising and Pires , police officers witnessed an Acura being driven by Mr. Lising immediately prior to his arrest earlier that day. One of the police officers testified he found quantities of cocaine and ecstasy inside the Acura.

He also found an automobile rental receipt. Throughout the decision, that automobile rental receipt is referred to as the "receipt." In that case the Crown, without offering the receipt and having it marked in evidence, asked the witness to read from the document. Mr. DelBigio, who represented Mr. Lising, objected. [ 33 ] Mr. Lising's objection was that the Crown was not entitled to put the document before the jury to prove the truth of its contents.

The Crown responded that: the document was original circumstantial evidence, Lising was in possession of the Acura in which it was found, and he was not offering it for a hearsay purpose. This is somewhat different from the Crown's argument in the case before me. [ 34 ] In Lising and Pires , the Crown came back the following day, because the arguments had been made late the previous day, and, as the judge put it, the prosecution recast its position. The prosecution argued: that (

a) the document was original circumstantial evidence connecting Lising to possession of the Acura and, by inference, imbuing him constructively with knowledge and control of the narcotics found therein; (

b) it was original circumstantial evidence of Lising's knowledge of its contents as well as of Lising's connection with the rental of the Contour automobile to which it related. I am not sure if that is the Acura. The Contour appears to be something different than the Acura; (

c) it was original circumstantial evidence connecting Lising to the telephone number recorded on the rental receipt, which number was assigned to a number that the Crown would argue was used by Lising in some of the intercepted telephone communications. [ 35 ] The Crown was creating a web by which to connect Mr. Lising to certain alleged illicit activities, if I can put it that way, or from which such an inference could be drawn. I note at paragraph 6 that the importance of tying the receipt to Mr.

Lising, in terms of it being original circumstantial evidence of his knowledge, was that two other constables had testified they had seen a person they identified as Ronald Lising driving a Ford Contour automobile with a B.C. licence plate, in circumstances which the Crown would argue, established Mr. Lising was a party to a narcotics transaction with one of the unindicted co-conspirators. [ 36 ] What did Mr. Justice Smith conclude? I turn to paragraph 19: In reaching my ruling, I rejected several of counsels' submissions [and I might paraphrase as I go through this].

First, I concluded that the receipt is not admissible to show Lising's knowledge of its contents . . . [and then he went on to say] because [as Mr. Froess has admitted, the] evidence that Lising knew of the contents of the receipt has not been shown to be relevant to any issue in the case. [ 37 ] Mr. Justice Smith then rejected Mr. DelBigio's submission that there was no evidence that Mr. Lising had possession of the receipt. The judge said there was some evidence of that fact and it would therefore be for the jury to decide whether Mr. Lising in fact had possession of the document.

However, the Court at paragraph 20 accepted Mr. DelBigio's submissions on behalf of Mr. Lising and also co-counsel's submissions that the receipt could not be used by the jury to connect Lising with or to make him complicit in the rental transaction: I concluded that there is no other evidence of a rental of the Contour so that the jury might follow the chain of reasoning from original circumstantial evidence identified in Phipson on Evidence and in the cases relied upon by the Crown. In the result, I found that the second purpose for which Mr.

Froess offered the document is a hearsay purpose and that the document is inadmissible for that purpose. [ 38 ] The situation may be a little different in the case before me because in Lising and Pires there was no other evidence about rental of the Contour. Here we have evidence of Mr. Tsang sitting in the vehicle, but I may be jumping ahead. [ 39 ] At paragraph 21, the Court continued.

I concluded further, that the document would be admissible in relation to the Acura and to the cellular telephone under the principle relied upon by the Crown.

However, it was my view that the probative value of the document on the issue of Lising's possession of the Acura at the time of his arrest is minimal, particularly having regard to the Crown's other evidence on that point, which includes numerous police surveillance observations of a person identified as Lising driving the Acura on earlier occasions . . . [ 40 ] In the case before me, to the extent that the Crown may want to use the document found in the Sonata to link Mr. Tsang to the Sonata, there is evidence that he was driving the vehicle at the time. At least that is the evidence elicited so far.

In the Lising case, there were other points: I concluded, as well, that if the document were admitted for the first or third purposes advocated by [the Crown], there would be a risk that the jury might use the document to conclude that a person contracted to rent the Contour on the terms set out in the document, and that Lising was that person, which would be an improper hearsay use of the document.

I concluded further that a cautionary instruction to the jury would be unlikely to cause the jurors to disabuse their minds of the contents of the document on that issue, and that the potential prejudice to Lising and Pires - from the possible misuse of the document to draw an inference that, because there was a rental transaction and he was the "Renter" in the rental contract, Lising was in possession of the Contour on March 2, 1997 - outweighs the minimal probative value of the document on the first and third grounds. (para 21) At the end of the day, Mr.

Justice Smith ruled the document inadmissible. [ 41 ] It is my understanding, and Ms. Paulson, please correct me if I am wrong, that the Crown's reason for wanting to enter the rental document is that it would be an admission that Mr. Tsang knew of the contents. [ 42 ] MS. PAULSON: Well, Your Honour, I wouldn't put it in such black-letter terms, just that it is one further indicia of Mr. Tsang's connection to and control over the contents of the vehicle. [ 43 ] THE COURT: Well, all right, but then the point made by Mr. Justice Smith is right on point.

The difference is that in Lising and Pires the rental agreement was for another vehicle. However, I am being asked to draw inferences further connecting Mr. Tsang to the vehicle in addition to the fact that he was found driving the vehicle. [ 44 ] In this particular case, my concern is exacerbated by the fact I have been told evidence will also be led that Mr. Tsang was identified as a secondary driver, or as a secondary operator. So we are getting further and further removed from whether the rental document could establish Mr. Tsang was the actual renter of the vehicle.

In any event, The Crown does not just want the witness to read from the document but the officer wants to read her notes of what she wrote down from the document. My understanding of the defence submissions is that, at least at the time the officer wrote her notes, she did not even write down the name of the rental company. [ 45 ] At the end of the day, I agree with defence counsel that the admission of Constable Peck's evidence on this point would be unduly prejudicial to Mr. Tsang. The Crown has noted the defence can cross-examine.

However, all the defence would be doing is cross-examining her on her notes and not about the document itself because the defence does not have the document. The defence does not know exactly what the document said and so forth. [ 46 ] The other point is that in applying the Khelawon test, this is one of those cases where I am satisfied, in all of the circumstances, that necessity has not been proven. These events took place a year ago. Other steps could have been taken to introduce the document, which would not necessarily have prevented the officer from releasing Mr. Tsang.

It is not for me to instruct police officers on how they ought to conduct their investigations. However, the way police officers conduct an investigation will be subject to scrutiny if they do not take steps to ensure that evidence the Crown thinks is important is placed before the court and is found to be admissible. It is a risk police officers take.

They can run the investigation the way they see fit, but the results will be subject to the court's scrutiny and to rules regarding admissibility. [ 47 ] In this case, I conclude the testimony of Constable Peck with respect to what she read on the rental document will not be admitted. (RULING CONCLUDED)