R. v. Sidhu Date:, 2011 BCPC 226

Citation: R. v. Sidhu Date: 20110516 2011 BCPC 0226 File No: 165132 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAPINDER SIDHU RULING ON APPLICATION OF THE HONOURABLE JUDGE JOHN J. LENAGHAN Counsel for the Crown: D. Ballyk Counsel for the Defendant: M.A. Nathanson Place of Hearing: Surrey, B.C. Dates of Hearing: June 1, 2, 3 & 4; December 10, 2010 Date of Judgment: May 16, 2011 A. Background [ 1 ] The defendant is charged with the offence of falsely representing himself as a police officer on or about July 31, 2007 at Surrey, contrary to s. 130 (

a) of the Criminal Code . [ 2 ] The defendant is a former member of the R.C.M.P. [ 3 ] On the day in question, an unidentified male telephoned a dispatcher at the main R.C.M.P. detachment, and stated that he was “Roberts from I.H.I.T.” and asked for the address of certain notorious criminals. [ 4 ] During the course of the conversation, the dispatcher became suspicious of the caller and when she asked him to identify himself by his call sign, the caller hung up. [ 5 ] The Crown alleges that it was the defendant who made that telephone call. [ 6 ] The Crown has called a number of police officers as witnesses and, at this point in the trial, Superintendent Wayne Rideout is testifying. [ 7 ] Superintendent Rideout testified at the Braidwood Inquiry into the death of Robert Dziekanski at Vancouver International Airport in October, 2007. [ 8 ] The defendant seeks leave to cross-examine Superintendent Rideout with regard to his testimony before the Braidwood Inquiry.

The Crown opposes the application. B. The position of the defendant [ 9 ] Defence counsel submits that he should be allowed to cross-examine Superintendent Rideout with regard to his testimony at the Braidwood Inquiry and that there is no principled reason in law to disallow the proposed cross-examination.

[10] It is entirely appropriate to challenge the credibility of a witness by referring to testimony he has given at other times. That is allthat the defendant seeks to do. [11] The defendant is not seeking to question the witness with regard to findings of fact made by Mr.

Braidwood but simply withregard to certain aspects of the evidence given by the witness, namely, what he did or did not do and explanations he gave for his actionsor inactions. [12] It is trite law that the credibility of a witness is always relevant and the defendant seeks only the opportunity to test the credibilityof Superintendent Rideout. [13] Defence counsel further submits that many of the cases relied upon by the Crown do not deal with the issue which is before thecourt and have very different fact patterns from the case at bar. [14] The court has the discretion to grant the defendant’s application and the power to ensure that the proposed cross-examination isnot abusive or improper.

C. The position of the Crown [15] The Crown submits that the defendant has failed to prove that the evidence it seeks to elicit from Superintendent Rideout isrelevant to the single issue which must be decided in this case: whether it was the defendant who made the subject telephone call. [16] Ms. Ballyk made extensive submissions and cited a number of authorities but, essentially, submitted that the application by thedefendant amounted to an attempt to embarrass the witness. His testimony at the Braidwood Inquiry could not be characterised asrelevant to any issue at trial.

The probative value of that testimony was far outweighed by its prejudicial effect. To allow thedefendant’s application would be unfair to the witness and the court has an overriding responsibility to prevent unfairness. D. Discussion and decision [17] I have fully reviewed the submissions of counsel and the cases they submitted for my consideration.

I have not found itnecessary to deal with either at great length given the view I have of the defendant’s application. [18] In my respectful view, most of the submissions made on behalf of the Crown dealt with issues distinctly different from the issue Imust decide that is why I have focussed on what I believe to be the relevant submission of the Crown, namely, that the proposed cross-examination amounts to an attempt to embarrass the witness without eliciting any relevant and thus admissible evidence. [19] I have concluded that that submission must be rejected.

In my view, the defendant seeks an order that is quite unremarkable. Isee no principled objection to him being allowed to cross-examine the witness on evidence given at the Braidwood Inquiry. Thecredibility of a witness is always relevant although the court must guard against an abuse of the right to cross-examine. The right is notopen-ended. Mr. Nathanson has acknowledged that the Collateral Evidence Rule will determine, to a great extent, the length of his cross-examination.

That is to say, he will be “stuck” with the answers given by Superintendent Rideout and will not be able to cross-examinefurther. [20] In the case of R. v. Rowbotham (No. 5), (ON CJ), [1977] 2 C.R. (3d) 293, Borins J stated: [t]he credibility of a witness is generally tested by probing his means of knowledge, opportunity of observation, reasons for recollectionor belief, experience, powers of memory and perception and any special circumstances affecting his competency to speak to the particularcase.

A cross-examination touching any or all of these matters will, of necessity, flow from the testimony given in examination in chief. However, in addition, a witness may upon cross-examination be asked any question concerning his antecedents, associations or mode oflife which, although irrelevant to the testimony given in chief or to any issue in the case, would be likely to discredit his testimony ordegrade his character. . . Generally speaking, the answers given by a witness who is cross-examined for this purpose cannot becontradicted.

However, the fact that the rules of evidence provide or permit one to put in issue the credibility of a witness by means of a cross-examination the purpose of which is to impeach his character does not mean that the cross-examiner is given carte blanche to raise anyand every occurrence in the life of the witness which may be seen as reflecting badly upon his character. . . It is to be remembered thatat the forefront of a cross-examination designed to impeach character is the credibility of the witness.

This is the legal norm thatestablishes the permissible limits or relevancy of a cross-examination. [At paragraphs 8 and 9.] [21] In my view, the cross-examination sought by the defendant does not violate any of these principles. The credibility of animportant Crown witness is highly relevant, particularly in a case of this nature. Moreover, the defendant does not seek to examine theentire career or life of the witness but simply the evidence he gave under oath at another proceeding. This is entirely appropriate.

Sufficient safeguards exist to protect the witness from abuse or any form of unfairness. [22] I am, therefore, satisfied that the application of the defendant should be granted. In doing so, I am mindful of the followingcomments of the Supreme Court of Canada (per Major and Fish JJ) in R. v. Lyttle, 2004 SCC 5 , [2004] 1 S.C.R. 193: [c]ross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice . ..

At times there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that wouldotherwise remain forever concealed. That is why the right of an accused to cross-examine witnesses for the prosecution – without significant and unwarranted constraint – isan essential component of the right to make full answer and defence. [At paragraphs 1 and 2. Emphasis in the original.]

____________________________________ The Honourable Judge John J. Lenaghan Provincial Court of British Columbia