



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Woodman, 2016 ONCA 63

DATE: 20160122

DOCKET: C60326

MacPherson, MacFarland, and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Woodman

Appellant

Jeffrey Woodman, in person

Michael Dineen, duty counsel

Robert Gattrell, for the respondent

Heard:  December 3, 2015

On appeal from the conviction entered on November 20,
    2014 and the sentence imposed on April 7, 2015 by Mr. Justice G. Taylor of the
    Superior Court of Justice, sitting with a jury.

ENDORSEMENT

Overview
:

[1]

The appellant, Jeffrey Woodman, appeals from his conviction and sentence
    for six offences, arising out of the high-speed car chase following the
    appellants shoplifting with a group of friends during the evening of September
    7, 2013.  When a police officer approached the car, it was driven directly at
    and struck him, causing him serious injuries. The main issue at trial was who
    was driving the car when it struck the officer.

[2]

The trial judge sentenced the appellant to four years and eight months
    in custody, after giving one year and four months credit for pre-trial
    custody.

Conviction appeal
:

[3]

The appellant submits that the trial judge erred in admitting for the
    truth of its contents the unsworn videotaped witness statement that Kevin
    Sinson gave to the police at 3:00 a.m. on September 8, 2013. At trial, Mr.
    Sinson claimed to have no recollection of the relevant events because he was under
    the influence of heroin. In his statement to police, Mr. Sinson identified the
    appellant as the driver of the vehicle that struck Sergeant Fenton.

[4]

The appellant admits that in the evening of September 7, 2013, he was
    shoplifting at Zehrs with others and that, as confirmed by videotape, he
    entered the drivers seat of a black Hyundai in which Mr. Sinson was a
    passenger. He also admits that when a police cruiser approached, he caused the
    car to speed off, reaching a speed of 100 kilometres per hour. The appellant
    argues, however, that he was not driving the car when it struck and injured
    Sergeant Fenton.

[5]

The appellant maintains that without Mr. Sinsons statement, there was
    insufficient evidence to prove that the appellant was the driver of the car
    when it struck Sergeant Fenton.

[6]

Mr. Sinson was one of three males, including the appellant, in the car
    that evening. No other witness, including Sergeant Fenton, could identify the
    driver of the car that struck him. The appellant argues that Mr. Sinsons
    statement was not reliable because of his admitted heroin abuse, his strong
    motive to lie and blame the appellant, and the futility of cross-examination
    because of his lack of recollection. The appellant submits that the prejudice
    to the appellant caused by the statements admission outweighed any probative
    value that it may have had.

[7]

We disagree. The trial judge properly exercised his role as gatekeeper
    in admitting Mr. Sinsons statement that met the twin threshold requirements of
    necessity and reliability:
R. v. Youvarajah
, 2013 SCC 41, at para. 21.

[8]

There is no question that Mr. Sinsons failure or refusal to recollect
    the events of September 7, 2013 and adopt his prior statement rendered necessary
    his statements admission for the truth of its contents.

[9]

Further, there is ample evidence to support the trial judges finding
    that Mr. Sinsons statement met the criterion of threshold reliability required
    to be admitted for the truth of its contents, including: Mr. Sinsons statement
    was given to police within hours of the relevant events and was videotaped; his
    demeanour and credibility at the time the statement was given could be assessed
    on the videotape, in particular, as the trial judge observed, that Mr. Sinson appeared
    to be coherent, responsive to questions, not under the influence of heroin or
    alcohol, and anxious to co-operate with the police; Mr. Sinson was available to
    be cross-examined on his statement and his failed memory at trial; and several
    aspects of Mr. Sinsons statement, including the sequence of events, the route
    taken by the car, and the interactions with Sergeant Fenton, were confirmed by
    the video recording and/or the testimony of Mr. Sinson and Sergeant Fenton.

[10]

The
    appellant relies on
R. v. Youvarajah
to argue that the
indicia
of reliability relied upon by the trial judge in this case, including Mr.
    Sinsons availability for cross-examination at trial and the solemnity of the
    circumstances in which he gave his statement to police, are not sufficient to
    meet the criterion of threshold reliability. Further, the appellant submits
    that the trial judge failed to address Mr. Sinsons powerful motive to lie in
    his statement. In
R. v. Youvarajah
, the trial judges refusal to admit
    at trial a recanting co-accused witness statement for the truth of its
    contents was upheld by the Supreme Court of Canada because it did not meet the
    criterion of threshold reliability notwithstanding that the co-accused was
    available for cross-examination and the statement was prepared by his lawyer
    and entered at his trial.

[11]

Notwithstanding
    Mr. Dineens very able submissions, in our view, the circumstances of
R. v.
    Youvarajah
are distinguishable from the case at bar. In
R. v.
    Youvarajah
, the Court noted the absence of the following
indicia
of reliability that are present in the case at bar: the statement in issue was
    an agreed statement of facts prepared by the co-accuseds lawyer rather than
    the witness own spontaneous words, for use at his own separate youth trial as
    part of a plea agreement; the co-accused testified that he did not understand
    everything that he read in the statement; the statement was not videotaped so
    that there was no opportunity to assess the co-accuseds demeanour or
    credibility; and the co-accused not only recanted his previous statement but
    admitted at the appellants trial the acts in which he had implicated the
    appellant in his previous statement.  Most important, cross-examination of the
    co-accused would be effectively precluded by his invocation of solicitor-client
    privilege. None of these factors features in the present case.

[12]

Mr.
    Sinsons statement was highly relevant. The trial judge determined only the issue
    of threshold reliability. The issue of the statements ultimate reliability and
    the weight, if any, to be given to the statement, was properly left to the jury;
    and the jury received proper instructions on how they were to evaluate Mr.
    Sinsons statement.  See:
R. v. Taylor
, 2015 ONCA 448, at para. 70.

[13]

Absent
    an error in principle, the trial judges determination of threshold reliability
    is entitled to deference:
R. v. Youvarajah
, at para. 31. We see no
    error and would not interfere.

Sentence
:

[14]

With
    respect to the appellants sentence appeal, neither counsel made submissions. In
    his notice of appeal, the appellant argues that his sentence was too high and
    out of the applicable sentencing range.

[15]

There
    is no basis to disturb the trial judges sentence that is entitled to deference
    in this court. The sentence was entirely fit and appropriate in the
    circumstances of this case.

[16]

While
    the appellant pleaded guilty to some of the offences, his lengthy and related
    criminal record, including 18 previous offences against the administration of
    justice, the fact that he committed these offences when there were outstanding warrants
    for his arrest on charges of dangerous driving and aggravated assault, as well
    as his deliberate attack against a vulnerable police officer who suffered
    serious injuries, required the sentencing judge to give predominant weight to
    the sentencing principles of denunciation and deterrence.

Disposition:

[17]

For
    these reasons, the appeal from conviction is dismissed. While leave to appeal
    the sentence is granted, the appeal from sentence is dismissed.

J.C. MacPherson J.A.

J.L. MacFarland J.A.

L.B. Roberts J.A.


