Court of Appeal rules judge erred in finding hearsay evidence inadmissible

In a drug trafficking trial, on an application to admit hearsay evidence in the form of a statement by the father of the accused confessing to using the woman as an unwitting cocaine smuggler, the Court of Appeal has found the application judge erred in ruling the evidence inadmissible and has ordered a new trial.

In April 2017, the appellant was arrested at Toronto Pearson International Airport and charged with importing 1.9 kilograms of cocaine. She had just returned from Jamaica and officers with the Canada Border Services Agency found the cocaine in her suitcase in four Metamucil containers.

The appellant testified at trial she was unaware the containers were filled with cocaine, and believed they contained the fibre supplement mixed with roots and seeds, which formed a Jamaican herbal remedy. She said a family friend had given it to her as a gift to deliver to her grandmother.

The appellant applied to introduce into evidence a statement her father had made to her sister.

Her father suffered from cocaine addiction and had a substantial criminal record including drug trafficking offences. He had allegedly told the appellant’s sister he had used her as a drug mule without her knowledge, arranging for the cocaine to be given to her for transit to Canada. The father was in debt to a drug dealer and said he was forced to arrange the scheme. Worried for his safety, he told the appellant’s sister not to tell the appellant but that he would testify to the Court about what he had done.

But before the father could, he died from an overdose of cocaine and fentanyl – two days after his 53rd birthday.

Out-of-court statements are hearsay if the statement is cited as evidence for the truth of its content and there is no opportunity for the court to cross-examine the person who made the statement. Hearsay is presumptively inadmissible unless it falls under an exception summarized in the 2006 Supreme Court of Canada case R. v. Khelawon.

One exception is the declaration against penal interest, the criteria for which comes out of the 2013 Ontario Court of Appeal decision, R. v. Tash.

On the application to admit the hearsay evidence from the appellant’s sister, Justice Irving André found the statement fell short on the first two principles of the declaration against penal interest exception. Justice André’s reasoning rested on the fact the father had told the sister not to divulge his admission to anyone. It therefore could not be said that the father “apprehended a vulnerability to penal consequences” that would result from his statement: the first criterion. Nor could that fact allow the statement to meet the second, which required that “the vulnerability to penal consequences must not be remote,” said Justice André.

But without any way to tell that side of the story, “the jury was just not left with a fair picture,” says Breana Vandebeek, who acted for the appellant.

“The Crown had concerns that the sister had made this up or that the affidavit was false,” she says. “Well, then the proper thing is you just cross-examine the sister in front of the jury and then the jury can decide if this is believable or it’s not believable. But it's not fair to have this evidence that's super crucial to the defence and then not have it in front of the jury.”

Court of Appeal Justices Mahmud Jamal and Russell Juriansz found that Justice André “materially misapprehended evidence” crucial deciding whether to admit the hearsay. Though the father was alleged to have told the sister not to expose him, he also promised he would tell the court what he had done. Had he reneged on his promise, his “obvious inference” would then be that the sister would come forward, which she did when he died, said Justice Jamal, writing the reasons for him and Justice Juriansz. The Judges found Justice André erred in excluding the hearsay statement.

Justice Steve Coroza wrote concurring reasons. Though he agreed the statement should have been admitted at trial, Justice Coroza said the statement was not admissible as a declaration against penal interest, but admissible pursuant to the principled exception to the rule against hearsay. Justice André had also failed to consider the argument that a “relaxed standard to the admissibility of the hearsay evidence” should be applied to avoid a miscarriage of justice or ensure a fair trial.

Justice Coroza found that “rigid adherence to the strict rules of evidence in this case led to an unfair trial,” says Xenia Proestos, Crown Counsel on the case. “… The evidence was central to the defence, particularly when the appellant was permitted to advance a third-party suspect argument: it was manifestly unfair to the appellant that she was prevented from introducing the most crucial piece of evidence to support her defence.”

“The probative value of [the sister’s] statement outweighed any prejudice to the Crown in adducing it, in light of the viable third-party suspect defence advanced at trial,” says Proestos, describing the findings of Justice Coroza.