R. v. Dhoot Date:, 2012 BCPC 525

Citation: R. v. Dhoot Date: 20121211 2012 BCPC 0525 File No: 187431-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KAVITA DHOOT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: R. D. Fox Counsel for the Defendant: B. Mohan Place of Hearing: Surrey , B.C. Date of Hearing: December 11, 2012 Date of Judgment: December 11, 2012

[ 1 ] THE COURT : Kavita Dhoot is before the court for her trial on two counts set out in Information 187431-1. They are first, that from the 23rd of September 2010 to the 16th of December 2012 inclusive, at or near Surrey, in the Province of British Columbia, she provided to the Insurance Corporation of British Columbia, or its representatives, information material to a claim that the person knew or ought to have known was false or misleading, contrary to s. 42.1 (2)(

a) of the Insurance Vehicle Act .

And Count 2, that on or about the 23rd of September 2010 she was the registered owner of a motor vehicle bearing British Columbia licence plate 146 MJE, which vehicle was, on or about the 23rd of September 2010, at Surrey, British Columbia, involved in an accident on a highway and the driver of which vehicle did fail to remain at or immediately return to the scene of the accident, contrary to s. 68 (1) of the Motor Vehicle Act and by virtue of s. 83 of the Motor Vehicle Act of British Columbia. [ 2 ] The circumstances relate to a minor rear-end collision which occurred on September 23, 2010, at about 3:00 p.m.

Kavita Dhoot was the registered owner of a Chevrolet Tahoe motor vehicle which made relatively light contact with the rear bumper of the vehicle driven by Saleshni Pratap as Ms. Pratap stopped for a red light at 88th Avenue and 128th Street in White Rock, British Columbia. [ 3 ] The Crown says Ms. Dhoot thereafter gave false information to the Insurance Corporation of British Columbia by asserting that she was driving her vehicle at the time. The Crown says it was her husband, Maninder Singh Dhoot, an unlicensed driver at the time, who was in fact driving the vehicle.

This is material information to ICBC because the policy of insurance may have been breached if an unlicensed person was operating a vehicle at the time of the accident. Further, the Crown asserts that Mr. Dhoot left the scene without providing to Ms. Pratap his name and address, that of the registered owner, the licence number of the vehicle and particulars of the vehicle's liability insurance as required by s. 68(1) of the Motor Vehicle Act . Pursuant to s. 83, Ms. Dhoot, as the owner of the vehicle, the Crown says, is liable for that not having been done by her husband. [ 4 ] The Crown has called Ms.

Pratap, Angela Logan, the telephone claims adjuster for ICBC, and the claims adjuster Bonnie Miller. Various documents have been filed. [ 5 ] Ms. Dhoot and her husband both gave evidence for the defence. They say that in fact Ms. Dhoot was the driver although it was her husband who got out of the vehicle and spoke with Ms. Pratap. Their evidence is that both Ms. Pratap and Mr. Dhoot agreed that no information needed to be exchanged because no damage or injury appeared to have occurred.

The defence says on the basis of this evidence the court should accept the defence evidence or at least have a reasonable doubt as to who was driving the Dhoot vehicle and the circumstances surrounding the interactions with Ms. Pratap. They say Ms. Dhoot should be acquitted. [ 6 ] Ms. Pratap’s evidence is that she had picked up her two children from school and was driving south on 128th Street towards the 88th Avenue intersection at about 3:00 p.m. That intersection is controlled by traffic lights. She observed a yellow light for traffic travelling south and she then came to a stop for the red light.

Her vehicle was then struck on the rear bumper by the vehicle travelling behind her. [ 7 ] Ms. Pratap stated that at the intersection, traffic southbound on 128th Street can enter a left-turn lane for 88th Avenue, or travel straight ahead on 128th Street in either of two lanes. She was in the left of the two lanes to go straight, and to her left would be the left- turn lane onto 88th Avenue. Ms. Pratap felt the bump of the collision. I take it from her evidence that this was not a heavy bump.

Her vehicle was not driven forward by the contact. [ 8 ] She put her car in park, turned the vehicle off, checked to ensure her children were okay, and they were, removed her seatbelt and got out of her vehicle. In re-examination, using the courtroom clock, Ms. Pratap estimated the period of time from contact to her exiting or getting out of her vehicle to be about 11 seconds. [ 9 ] Ms. Pratap stated that a male person got out of the driver’s door of the vehicle which had struck her.

She gave a description of that male person including his approximate age, the colour of his clothing, his hair length, that he did not wear glasses, and that he appeared to her to be Punjabi. She said that she had seen that person present outside the courtroom, an order excluding witnesses was in effect at that time. [ 10 ] Ms. Pratap stated that both parties looked at both of the vehicles at the point of contact and agreed there was no visible damage. Ms. Pratap asked to exchange information. The male said the traffic was heavy and suggested they pull over to do so. Their encounter was only a matter of minutes.

Ms. Pratap returned to her vehicle. She observed the male enter the driver’s door of the vehicle behind her. Ms. Pratap observed a young female, appearing to be a teenager, in the front passenger seat of that vehicle. She did not see anyone else in the Dhoot vehicle. She was again closely cross-examined on all of these points, but was consistent and confident in her answers throughout on these issues. Ms. Pratap does not know the Dhoots and was, of course, unaware that Mr. Dhoot was not licensed to drive at the time. [ 11 ] Ms.

Pratap says that believing the male would drive ahead through the intersection with her she drove ahead on the green light. They had agreed to stop at the first street ahead. She turned left at the first street and parked. The other vehicle did not follow her but drove on without stopping. She was never provided the information referred to in s. 68(1) of the Motor Vehicle Act . [ 12 ] Having returned home after the events, her husband noted that in fact the bumper of her vehicle had suffered some damage which was not visible on the surface. Ms.

Pratap had noted the licence plate number of the other vehicle while she was at the scene. She subsequently contacted ICBC and provided a description of the events and the licence plate number. [ 13 ] Angela Logan is a telephone claims adjuster with ICBC. She has worked for ICBC for 18 years and has been in her current role for 12 years. Her responsibilities are to receive initial telephone claim reports, take the details by asking a series of questions, and determine what should happen to the claim reported.

She obtains the name of the caller, the particulars of the registered owner and operator of vehicles involved, driver's licence information, the number of passengers present, and a synopsis of the incident as described by the caller. She enters the information, as it is given by the caller, into a computer terminal. As she receives the information she checks the insurance coverage and ensures the driver is licensed. The data she enters into the ICBC database will populate what is referred to as a Form CL75 entitled Claim File Report. Ms. Logan does not see that form or follow it in taking the information from the

caller, but the data will subsequently be available to ICBC personnel in the CL75 format. [ 14 ] On September 29, 2010, Ms. Logan took a telephone report from Kavita Dhoot respecting the events of September 23rd. The record of that report is substantially contained in the file claim report CL75 marked Exhibit 1 in this trial. [ 15 ] The synopsis of the mechanics of the collision itself is not significantly different than the description given by Ms. Pratap.

Although the report describes the location as 128th Street and 84th Avenue, there is no dispute that the incident being described is the same as that reported by Ms. Pratap. The CL75 document states that the accused, Kavita Dhoot, not her husband, was driving the vehicle at the time and that she acknowledged she was 100 percent responsible for the collision. The report discloses that Ms. Dhoot said that she was picking up her daughter and that she was driving for a purpose covered by her ICBC policy. There is a box titled “no. of passengers”. The number 1 is entered on the CL75 form.

There is a further box titled “no. of passengers identified”. A zero was entered in that box. [ 16 ] One of the questions Ms. Logan must ask during the call is the number of passengers in the vehicle, the answer to which would generate the entry "1" in the "no. of passengers" box. Ms. Logan would not need to have the identity of that passenger because no injuries were being reported in Ms. Dhoot’s vehicle. [ 17 ] Ms. Logan was frankly unaware what the specific purpose of the box entitled "no. of passengers identified" was and would not have entered a zero. She does not know where or by whom that entry was made.

She was closely cross-examined about this entry and it was suggested to her that the entries in these two boxes are inconsistent. Ms. Logan denied that was so. She relies on the entry to the box entitled "no. of passengers". She entered the number given her by the caller, that is "1". She did not ask for identities. The Crown says the answer "1" as the number of passengers must be taken as the information Ms. Dhoot gave to Ms.

Logan. [ 18 ] The defence says that that entry is not reliable and should not be accepted, bearing in mind the unexplained entry "0" in the box "no. of passengers identified". [ 19 ] The Crown says this is significant. The Crown says Ms. Dhoot’s information was false and intended to mislead ICBC by asserting that she drove and her husband was not present, only her daughter who she had picked up from school was in the vehicle with her. [ 20 ] Ms. Logan concluded her call with Ms. Dhoot. She then saved the information she had been given. At the point she saved that information, the claim filed earlier by Ms.

Pratap came up on her computer as associated to the information provided by Ms. Dhoot by reason of the licence plate number on the Dhoot vehicle. Ms. Logan noted Ms. Pratap had reported she had spoken to a male driver who left without providing required information. Ms. Logan then cross-referenced with Ms. Dhoot’s household to determine the status of drivers in that residence. She discovered Mr. Dhoot did not hold a valid licence at that time. Ms. Logan concluded that further investigation was required.

She referred the file to the Claims Centre for that to occur. [ 21 ] Bonnie Miller was the claims adjuster assigned to interview Ms. Dhoot. She contacted Ms. Dhoot who attended for that interview on December 6, 2010. In advance, Ms. Miller reviewed the CL75 form. She was aware that a driver switch was suspected. At the interview, Ms. Miller confirmed Ms. Dhoot’s address, driver's licence status, and that she is the registered owner of a 2001 Chevrolet Tahoe motor vehicle, B.C. licence plate 146 MJE, and that it is the only vehicle she owned. [ 22 ] During the interview, Ms. Miller made a copy of Ms.

Dhoot’s driver's licence which is Exhibit 3. Ms. Miller then asked Ms. Dhoot to describe the events of September 23rd, 2010. As Ms. Dhoot did so, Ms. Miller typed the information provided into her computer in the form of a statement. After Ms. Dhoot had described the events and responded to any questions, Ms. Miller printed the statement that she had typed. As she does in all cases, Ms. Miller asked Ms. Dhoot to read the statement which is two typewritten pages in length. Ms.

Miller stated that she will not allow a person to sign the statement without reading and advising of any corrections the person would like made. She says that Ms. Dhoot did as requested; she read both pages and then she signed the statement, as did Ms. Miller. Exhibit 2 is the signed statement. [ 23 ] Once again, the mechanics of the accident itself are not significantly different, although I note that Ms. Dhoot said she was driving in the far right-hand lane of the three lanes. Ms.

Pratap said that they were travelling in the left of the two southbound lanes, but little turns on that. [ 24 ] In this statement, however, Ms. Dhoot’s information about who was present in the events following the collision is markedly different than those recorded by Ms. Logan during the initial call leading to the completion of the Form CL75. Ms. Dhoot’s statement asserts on the first page that she was driving, her daughter was in the front passenger seat, and her husband was in the rear passenger seat behind the driver’s seat. Following the collision, Ms.

Dhoot asked her husband to get out first to see if there were any damages while she put on her flashers and, now moving to the second page of the statement, she moved the vehicle out of the way of traffic. [ 25 ] The statement goes on to say that traffic was heavy. Her husband got out and looked but could not see any visible damage. She asserts that the other driver gave her husband her information. The statement asserts that Ms. Dhoot then got out of her vehicle and exchanged her own information with the other driver. Her daughter remained in the vehicle.

She looked herself at the rear bumper of the other vehicle and saw no damage. There was no discussion about calling the police because there were no injuries. The statement asserts that Ms. Dhoot has read the statement and that it is true and correct to the best of her knowledge. Ms. Dhoot acknowledged she signed the statement and her signature appears on page 2. [ 26 ] In cross-examination, Ms. Miller said that Ms. Dhoot was cooperative and maintained throughout that she was the driver of the vehicle. [ 27 ] Ms. Dhoot gave evidence at trial through a Punjabi interpreter.

She is a registered practical nurse at the Royal Columbian Hospital. Although she speaks English with patients and is generally conversant with English, it is her second language, and if a difficulty arises she wished to have the benefit of the interpreter. She said in cross-examination that had she known she could have had an interpreter with her for the interview with Ms. Miller, she would have done so.

[ 28 ] The tenor of the evidence from both Ms. Miller and Ms. Logan is that Ms. Dhoot was fully capable of providing the information, responding to questions and describing events in English, and no difficulty in respect to language or concern for her understanding arose during either interview. Ms. Dhoot did not, in her evidence, suggest she was unable to understand or fully respond. I find, on the whole of this evidence, no reason to be concerned that Ms. Dhoot did not understand or was unable to respond or describe events during either interview with these ICBC representatives. [ 29 ] In her evidence, Ms.

Dhoot described the accident in similar terms. She again said she was the driver. Her daughter was in the front passenger seat and her husband sat behind her, that is, behind Mrs. Dhoot, the driver. She said that after the slight contact with the car ahead she was nervous and asked her husband to go and check what happened. He did. She looked for registration papers in the glove box. She said her husband returned. He said there had been no damage or injury and he said “Let’s go." She started the car and drove off. She did not herself get out of the vehicle. She did not speak to the other driver.

She did not exchange information with the other driver. [ 30 ] After they left the scene she asked her husband if she should contact ICBC. He said there was no point because there was no damage or injury, but several days later she decided to do so. She called ICBC. She stated that when asked how many were in the vehicle she said three, including her daughter and her husband. [ 31 ] She was later called for an interview and she attended and provided information to Ms. Miller who typed a two-page statement. Ms. Dhoot disputes the contents of that statement. In particular, she says that she did not tell Ms.

Miller that she got out of the vehicle and spoke to the other driver and provided her information to the driver, nor that she looked for damage on the other vehicle; it was her husband only who got out. She was given the printed statement prepared by Ms. Miller. The tenor of her evidence is that she was given an opportunity to read the statement.

She said she read only the first page of the statement, found it to be correct, and then took on faith that the second page was also correct, and rather than reading it, simply signed at the bottom of the statement. [ 32 ] It is on page 2 of the statement that substantial variations with Ms. Dhoot’s evidence at trial appear. Ms. Dhoot confirmed that at the time her husband was not licensed to drive. His licence was being held by the Motor Vehicle authorities pending clarification of his medical circumstances. He had apparently, on an earlier date, suffered chest pains.

When attended to by Emergency Services he was asked if he suffered seizures. His English was poor. He answered "yes" when that was not the case and it took some time for that situation to be resolved and his licence returned. It was still being held at the time of these events. [ 33 ] In cross-examination, Ms. Dhoot confirmed that she was asked simple, direct questions by initially Ms. Logan, and answered them to the best of her ability. She said she told Ms. Logan her husband was sitting behind her. She said, somewhat in contradiction, that she did not recall that much.

She once again stated that she described events to Ms. Miller as she has stated them in court, and any discrepancy is as a result of the mistaken use of "I" in the statement when "he" was intended or meant. The confusion is because Ms. Miller wrote it down wrong. [ 34 ] Marinder Singh Dhoot gave evidence in support of his wife. He confirmed he did not have a driver’s licence at the time for the reasons described by Ms. Dhoot. He said he was a passenger sitting behind his wife who was driving, and their daughter was in the front passenger seat.

He said he got out following the collision and spoke with the other driver. They agreed there were no injuries or damage and they agreed to go. No information was exchanged. He said Ms. Pratap did not ask for any information and he did not provide any. He denied driving the vehicle that day. [ 35 ] The issue to be resolved on Count 1 is whether the Crown has proven beyond a reasonable doubt that Ms. Dhoot misled or gave false information to ICBC when she asserted to ICBC that she, and not her husband, drove the vehicle at the time of the accident. [ 36 ] Ms.

Pratap’s evidence is that a male person got out of the driver’s door of the Dhoot vehicle. All parties are agreed that Ms. Pratap was a credible witness who sought to tell the events truthfully. The defence says, however, that she was mistaken and that Mr. Dhoot came from the driver’s side rear passenger door, not the driver’s door. [ 37 ] Counsel for Ms. Dhoot asserts that Ms. Pratap could not have seen that occur because she was distracted by the events, her children, and the securing of her vehicle before getting out, all of which must reasonably raise a doubt about what she saw of Mr.

Dhoot as she exited her vehicle about 11 seconds after the collision. There must be room for confusion there is the assertion of counsel. The defence position is that this confusion is enhanced by tinting in the window and Ms. Dhoot positioned low to the window as she reached for documents in the glove box. [ 38 ] I found Ms. Pratap’s evidence to be consistent and convincing through a pressing but fair cross-examination on these essential observations. She was observant. She described the male person. She provided the other vehicle licence number. This was mid- afternoon.

There is no evidence suggesting visibility or opportunity to make observations was hindered. There is some evidence that the windows of the Dhoot vehicle were tinted, but at the end of the day that does not detract from my analysis of the evidence as a whole. I must consider whether the defence evidence of Ms. Dhoot and her husband should be accepted or whether it raises a reasonable doubt. [ 39 ] Ms. Dhoot challenges the accuracy of the record of her interviews with both Ms. Logan and Ms. Miller. Both have been carefully cross-examined.

Both were following their standard practice and procedure in conducting the interviews. Neither has an interest in the outcome. Ms. Logan was unaware of the link to Ms. Pratap’s earlier report when she took the initial report from Ms. Dhoot. [ 40 ] I am invited to find the CL75 form is unreliable and contradictory insofar as the entries to the questions "no. of passengers" and "no. of passengers identified" is concerned. I disagree. Both Ms. Logan and Ms. Miller said they do not find the entries contradictory. Ms.

Logan takes this information routinely and enters the number of passengers in answer to the question as given by the caller. There was no reason here in any event to identify the passenger, or passengers, because no injuries were reported in Ms. Dhoot’s vehicle. I find the CL75 form a reliable record of what Ms. Dhoot told Ms. Logan that there was one passenger in her vehicle. It is reasonable to conclude on the evidence that that was her daughter, not her husband. [ 41 ] Ms. Dhoot’s statement to Ms. Miller provides, substantially on page 2, an entirely different description of those essential

circumstances from that given to Ms. Logan and recorded in the CL75, and different again from her evidence at trial. The only points that are consistent between those three records are the general mechanics of the collision, that she was driving, and that her daughter was present. The material circumstances involving her husband and herself differ in each case. [ 42 ] In the statement to Ms. Miller, Ms. Dhoot said that she simply did not read page 2 where these divergent particulars are set out. That is at odds with Ms.

Miller’s evidence that she does not let a person sign without reading the statement and that Ms. Dhoot did so. There are such a variety of discrepancies on page 2 from the CL75 form and her trial evidence that they cannot be explained by saying that Ms. Miller is responsible for inserting "I" for "he". The construction of the sentence on page 2 in which Ms. Dhoot said she got out of the vehicle is to the effect that she joined her husband outside and looked at the Pratap vehicle and exchanged information with her.

It is simply not an answer to say "I" and "he" were confused. [ 43 ] The trial evidence is yet a third version of the events. Bearing in mind the risk to Ms. Dhoot’s insurance coverage if her unlicensed husband were driving, there is a motive present to deny that he was and to assume the driver’s role herself. [ 44 ] I find Ms. Dhoot’s evidence to be completely unreliable. I reject it, and I reject as well Mr. Dhoot’s evidence in these circumstances. I accept the evidence of Ms. Pratap that she saw Mr. Dhoot get out of the driver’s door of that vehicle.

On the whole of the evidence, no reasonable doubt has been raised. Kavita Dhoot has misled ICBC by providing false information on this material point, and she is guilty on Count 1. [ 45 ] In respect to Count 2, I accept Ms. Pratap’s evidence that Mr. Dhoot suggested, due to heavy traffic, they move their vehicles to exchange information. They agreed to meet at the next intersection, but he drove off.

That, of course, is entirely consistent with the fact that he was unlicensed and would have been exposed had he so attended. [ 46 ] On the whole of the evidence, no reasonable doubt is raised in respect to this matter. Kavita Dhoot, as the registered owner of the vehicle, is guilty on Count 2. (REASONS FOR JUDGMENT CONCLUDED)