R. v. Khakh Date:, 2011 BCPC 423

Citation: R. v. Khakh Date: 20111124 2011 BCPC 0423 File No: 148269 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HARJINDER SINGH KHAKH ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. C. BLAKE Counsel for the Crown: I. Hay Counsel for the Defendant: D. H. Christie Place of Hearing: Victoria , B.C. Dates of Hearing: October 26, 27, 28, 2010, April 28, June 8, September 28 and November 24, 2011 Date of Judgment: November 24, 2011 [ 1 ] The defendant, Harjinder Singh Khakh, is charged with committing two offences contrary to s. 42.1(2)(

a) of the Insurance (Vehicle) Act . [ 2 ] I find it helpful at the outset to refer to the essential provisions of the Insurance (Vehicle) Act relevant to the prosecution of those offences. The

section under which the defendant is charged, s. 42.1(2)(a), reads as follows: A person commits an offence who (

a) provides or causes another to provide to the corporation or its representatives information material to a claim that the person knew or ought to have known is false or misleading, whether the information is required under this Act or is volunteered . . . [ 3 ] It is to be noted right away that the charging

section is specific in identifying the types of false information which can lead to the commission of an offence. The information must be "material to a claim", it must be made to "the corporation or its representatives", and it must be made in circumstances from which it can be concluded beyond reasonable doubt that the provider of the information either knew it to be false or misleading or ought to have known it to be false or misleading.

[ 4 ] The word "corporation" used in the charging

section is defined elsewhere in the Act as being the Insurance Corporation of British Columbia. [ 5 ] There is no doubt on the evidence in this court that the defendant made the statements in question here to representatives of the corporation, and so I will say no more about that aspect of the matter. [ 6 ] The terms "claim" and "material to a claim" used in the charging

section bear more careful consideration, however. The word "claim" is defined in part as follows in s. 42.1(1) in the following way: In this section, "claim" includes (

a) a claim for . . . injury, death or loss of or damage to property that arises out of the use or operation of a motor vehicle, if the claim is made against a person who is insured by the corporation for third party legal liability . . . [ 7 ] The term "material to a claim" is not defined. I will return to a consideration of the words "claim" and "material to a claim" later in these reasons. [ 8 ] The prosecution arises out of statements made by the defendant following an unremarkable motor vehicle collision which occurred during the daytime on October 12th, 2008.

It is common ground that on that date a motor vehicle driven by a person named Susan Dulc struck the rear bumper of a car owned by the defendant. The collision occurred when Ms. Dulc's vehicle was travelling at a relatively slow speed around a right-hand turn at the intersection of Carey Road and McKenzie Avenue in Victoria. [ 9 ] Ms. Dulc had initially stopped behind the defendant's vehicle in the turn lane. She took her eyes off the defendant's vehicle momentarily to observe traffic approaching from her left side.

Assuming that the defendant's vehicle in front of her had begun to move into the turn, she began to accelerate herself, only to discover that the defendant's vehicle was still stationary. She could not stop in time, causing the collision to occur. On the face of it, Ms. Dulc was at fault and she has never denied that. [ 10 ] The statements made by the defendant in the months after the collision fall into two categories. The first group of statements, forming the subject matter of Count 1 of the information, relates to the defendant's contention that he was driving his vehicle at the time of the collision.

The second group of statements, forming the subject matter of Count 2, relates to the extent of the defendant's injuries and disabilities resulting from the accident. [ 11 ] The issues which I have to determine may also be said to fall into two categories: first, I must determine if the statements made by the defendant, or either group of them, were "false or misleading" to the extent required by the legislation; second, if I should determine that either group of statements was "false or misleading", I must determine if such statements were "material to a claim". [ 12 ] As the evidence unfolded at trial and as counsel made their submissions afterward, it became evident to me that the focus was on the first question, whether the statements were false or misleading, to a much greater extent than on the second question, whether the statements were material to a claim. [ 13 ] I must say that from my point of view, with the obvious benefit of hindsight, the far more difficult question is the second one.

It is perhaps unfortunate that it received such glancing attention at the trial itself. [ 14 ] I have no doubt whatever in concluding that the defendant's statements concerning both the identity of the driver of his vehicle and the extent of his own injuries or disabilities were deliberately false and misleading. [ 15 ] There were a number of factors which led me to that conclusion, but I would summarize my thoughts in this way: Number 1, the defendant's explanation of how it was that his passenger, Ms.

Brar, was in the passenger's seat and he was in the driver's seat, has not remained at all consistent over time. [ 16 ] In his statement to the investigator, Gerald Poitras, he said first that he met his friend Ms. Brar "just to drive, just to go shopping basic, you know" and that Ms. Brar found herself in the back seat at the time of the collision because he had "lots of stuff on the passenger's seat". [ 17 ] He said initially that the two of them had been window shopping at Walmart but had bought nothing.

Later in that same statement, he changed his story to say that he had been shopping alone that day and had only picked up Ms. Brar afterwards. He said that he had then driven around with her, apparently aimlessly and without stopping, before the collision occurred. [ 18 ] At trial, he told a different story again. He testified that he and Ms. Brar had been having an affair for some time, and that on the day of the accident he had picked her up for a sexual encounter. He said that they had sex in a park, either at Beaver Lake or at Mount Douglas, he was not sure which, before driving to the accident scene.

He said that Ms. Brar was in the back seat, so as to avoid being seen in an embarrassing situation by other members of the Sikh community. [ 19 ] Of course, taken in isolation, the inconsistency which I have referred to means only that the defendant is an unreliable storyteller. It does not assist in the determination of which version of the events may be "false or misleading", although I must say that the final version given at trial seems particularly farfetched.

It is difficult to fathom the logic of a married woman agreeing to engage in sexual intercourse in a park in the middle of the day, but then deciding to hide in the back of her partner's car out of concern for her reputation in the community. [ 20 ] To assist in the determination of whether any of the versions given by the defendant is correct, however, it is important that I have regard to other factors, and that leads me to my second consideration: Number 2, I found Ms. Dulc and Ms. Brar to be generally reliable witnesses. [ 21 ] There were some obvious flaws in Ms.

Dulc's testimony in particular, such as the uncertainty as to which car door Ms. Brar used

when extricating herself at the accident scene, and uncertainty as to the length of time which passed before she gave her first statement to the ICBC adjuster. [ 22 ] These flaws were relatively minor in nature, however, and were understandable in origin. For example, it is quite clear that immediately after the accident happened, the defendant approached Ms. Dulc first and took charge of the situation. Of necessity, Ms. Dulc's attention would be primarily directed to speaking with the defendant, rather than making observations of Ms. Brar's movements at the time. [ 23 ] More importantly, I found Ms.

Dulc's evidence concerning the manner in which she identified the defendant as the front-seat passenger in his vehicle, by reference to her observations in the passenger side rear-view mirror of the defendant's vehicle, to be compelling. Her evidence became all the more persuasive when she sensibly and effectively stood her ground, despite being tested at some length by rigorous cross-examination. [ 24 ] Number 3, I also found the evidence about the elusive "second statement" from Ms. Brar to be highly relevant in my determinations. [ 25 ] Ms.

Brar testified that she provided a comprehensive statement to the ICBC investigator, Gerald Poitras, in February 2009. In that statement she described taking a driving lesson from the defendant on the day of the accident, and said that she was driving under his direction when the car in which the two of them were riding was rear-ended. She identified that statement for the court. [ 26 ] Ms. Brar was then shown the second statement by defence counsel in which she apparently told a different story.

In that second statement, she spoke of being a passenger in the vehicle at the time of the accident, and said that the defendant was the driver. Ms. Brar testified that she had indeed seen this second statement before. She said that the defendant brought it around to her house to sign at some time after the accident, but that she had never signed it. I note that there is indeed a marked difference between the signatures on the two alleged Brar statements. [ 27 ] The defendant testified on this issue and, in my view, he essentially sunk his own ship. He testified that he asked Ms.

Brar to write the statement while the events were still fresh in her memory. He testified that she apparently did so in his absence, then provided the signed version to him, all within days of the accident. [ 28 ] The defendant conceded that on this version of the events, he must surely have had the second statement in his possession at the time he spoke to the adjuster, Mark Beveridge, on November 25th, 2008, and also when he spoke to the investigator, Gerald Poitras, some three weeks after that. [ 29 ] I find it inconceivable that, if he did indeed have the signed statement from Ms.

Brar in hand, he would fail to advise at least Mr. Poitras of that fact, especially in light of the investigator's pointed assertion during the course of the interview that ICBC had evidence that he was not the driver. [ 30 ] The statement in fact was not brought to light until the middle of the trial in this court, after Ms. Brar had given her evidence identifying herself as the driver of the defendant's vehicle at the time of the collision. [ 31 ] In the circumstances, I think there is only one conclusion; namely, that the second statement is a concoction either prepared by the defendant or at his instigation.

That conclusion severely damages the defendant's credibility. [ 32 ] Number 4, I also take into account the video evidence and accompanying testimony from the investigator, Poitras. I accept Mr. Poitras's evidence that on November 13th, 2008, about a month after the accident, he observed the defendant for a period of more than just a few minutes, engaging in work on the roof of his residence at 6725 Central Saanich Road. He said that he saw the defendant reaching up over his head to repair an eaves trough with a drill or perhaps a caulking gun in hand.

The video footage presented in court essentially confirmed the investigator's viva voce testimony. [ 33 ] At an interview within a month after the investigator's observations, the defendant was asked to attend at the ICBC Claims Centre for an interview. The interview was tape-recorded and transcribed by Mr. Poitras. I found that while Mr. Poitras was persistent with the defendant during the course of the interview, he was also scrupulously fair, not pressing the defendant unduly nor putting words in his mouth.

The investigator took some time to carefully inquire about the defendant's physical symptoms as a result of the accident, and to ask specifically about any work done around his house or other properties. [ 34 ] I do take into account the fact that English is not the defendant's first language.

I note as well, though, that the defendant was canny and alert enough to decline to answer when he thought the investigator was asking unduly intrusive questions about his family and his revenue properties. [ 35 ] In the circumstances, I found the following exchange toward the conclusion of the interview to be most instructive: MR. POITRAS: So since the accident, I just want to clarify, since the accident you haven't done any physical maintenance to your home or any of that sort of thing? MR. KHAKH: Physical? No. MR. POITRAS: Working on your yard or any of that sort of thing? MR. KHAKH: No. MR.

POITRAS: Working on your house? MR. KHAKH: No.

[ 36 ] The investigator's questions were fair and clear, and followed naturally as a

summary from the earlier discussion between the two men.

The answers, in my view, were deliberately untruthful, taking into account the careful nature of the questioning and also the fact that the incident in which the defendant had been repairing the roof had occurred only a matter of weeks before. [ 37 ] I found the defendant's explanation at trial, namely that he thought the investigator was only asking about "serious physical labour", was feeble and not at all persuasive. [ 38 ] I am also bound to say that the investigator's evidence on this point corroborated as it is by the video footage, rather colours my perception of all of the defendant's testimony, not just the evidence regarding his physical condition in the last two months of 2008. [ 39 ] I could probably go on at some length explaining in more detail why I do not accept the veracity of the defendant's statements to ICBC concerning either the identity of the driver of the vehicle at the time of the collision or the extent of his injury and disability following the accident.

I expect, though, that the general point is by now pretty clear. [ 40 ] I would emphasize that on the essential issue of the identity of the driver, it is not simply a matter of preferring the evidence of Ms. Brar and Ms. Dulc on the one hand over the evidence of the defendant on the other hand.

I reject outright the defendant's statements to ICBC and his evidence on that issue, and I find that neither his statements nor his evidence in this court raise any reasonable doubt as to who was driving at the relevant time. [ 41 ] It may well be that the Crown theory is correct that the defendant elected to portray himself as the driver at the time of the accident, so as to avoid the insurer reaching the conclusion that he was over-reaching his insurance coverage by engaging in the business of giving driving lessons.

The evidence is clear that he had been warned about doing exactly that in the past. [ 42 ] I do accept defence counsel's submission that the course which the defendant adopted seems an awfully long and convoluted route to take to avoid some sort of minor retribution at the hands of his insurers in a small, garden variety car accident, but that argument rather misses the point, in my view. The defendant does not strike me as likely being particularly sophisticated in his knowledge of the law.

At the moment of the collision, the misuse of his vehicle might have seemed like an enormous factor to him, particularly since he could not know at that time the extent of the physical consequences that might arise from the collision. [ 43 ] It seems a plausible explanation, though not one that the Crown must necessarily prove, that the defendant was motivated by his knowledge that he was operating outside the boundaries of his coverage, and having started this charade, unfortunately he did not have the sense to know when to stop. [ 44 ] As I noted at the outset of these reasons, however, s. 42.1(2)(

a) limits the sorts of false information which can properly be the subject of prosecution under that section. The false information must be material to a claim. [ 45 ] In the present case, there was very little evidence presented concerning the existence of any claims as defined in the legislation. I have no evidence that either Ms. Dulc or Ms. Brar made any sort of claim. It is common ground that the defendant advanced no claim with respect to personal injury or for the "benefits or insurance money" referred to in s. 42.1(

b) of the Act.

Section 42.1(

c) is plainly irrelevant to the circumstances of this case. [ 46 ] I am aware that on the day of the accident itself, when the defendant reported to ICBC that a collision had occurred, the ICBC representative who received the report took down the information on a document entitled "Claim File Report", but that internal usage cannot convert a simple accident report required as a condition of an insurance policy into a claim as defined by the legislation. [ 47 ] The only information which I have on the matter of legislatively-defined claims arising in this case consists of the fact that the defendant did receive compensation from ICBC for the damage caused to the rear of his vehicle.

Although the information on the point is quite limited, I took it to be common ground between counsel that the compensation for property damage was provided out of Ms. Dulc's insurance coverage, and not as a result of a claim by the defendant against his own policy of insurance.

Nonetheless, it is a claim as defined in s. 42.1(a). [ 48 ] The question then becomes whether the false information provided by the defendant has been shown to be material to the property damage claim. [ 49 ] I have concluded that the false information provided by the defendant concerning the state of his physical limitations in November and December 2008 could simply have no material bearing on the adjustment of the property damage claim.

Indeed, I understood Crown counsel to ultimately concede that, in the absence of a personal injury claim or a claim for so-called "Part 7 benefits", the Crown's case on Count 2 was a difficult one to prove. [ 50 ] In the end result, Count 2 of the information must be dismissed. It has not been shown to my satisfaction that the defendant's false statement concerning his physical condition was material to any claim which arose from the accident. [ 51 ] After much consideration, I have concluded that a different result must follow with respect to Count 1.

In my view, when considering a property damage claim arising from a rear-end collision, it is a material consideration for the insurer to identify the driver of a vehicle which has been struck and to receive an accurate statement from him or her concerning the circumstances of the collision. [ 52 ] It cannot simply be assumed that when a rear-end collision occurs, the insurer will automatically cover property damage to the vehicle which has been struck from behind to the full extent of the damage caused.

The insurer may well wish to explore issues of contributory negligence, for example, and such a conclusion may arise from such driving actions as stopping or braking improperly, failing to exercise the right of way in traffic, or operating a vehicle knowing that the brake lights were not functioning properly. [ 53 ] Gathering that kind of information is, in my view, material to the proper resolution of the claim, and it is frustrated improperly and unlawfully when a person with knowledge of the true facts misidentifies the driver of the vehicle struck from behind.

[ 54 ] In the end result, therefore, I find the defendant guilty on Count 1 of the information, not guilty on Count 2. ______________________ E.C. Blake Provincial Court Judge