This week’s top three summaries: R v GV, 2020 ONCA 291, R v MD, 2020 ONCA 290, and R v Raja, 2020 ONCJ 250.
R v G.V.(ONCA)
[May 14, 2020] Credibility of an Accused and Their Constitutional Rights - R. v. G.V., 2020 ONCA 291 [Reasons by Feldman J.A. with Tulloch and Jamal JJ.A. concurring]
AUTHOR’S NOTE: In a pair of judgements that could be entitled, "Why criminal defendants often lose", the Ontario Court of Appeal tackled the improper use an Accused's constitutional rights by some trial judges. The pair of judgements highlights a difficult reality of the criminal justice system: despite all the law to the contrary, criminal defendants begin trials at a significant deficit of credibility. When access to disclosure and the right to be present during one's trial are used openly by a trial judge to find an accused not credible, a defence lawyer would be pardoned for wondering what is the point of having trials. Often, criminal defendant's testimony is rejected for no discernible reason other than the fact they are a criminal defendant and the defence is left wondering if the trial judge may have applied a relaxed version of the presumption of innocence. No such difficulty existed for the accused in this pair of cases. Here, their status was openly used to undermine their evidence to the point of conviction. While the law is largely incapable of rooting out convictions that result from biases that underly the trial judges' reasons in these matters, it is certainly capable of responding when the biases are laid bare on the record. In the opinion of this author, if a judge cannot find another reason to find an accused not credible other than their access to disclosure or right to be present at trial to observe other witnesses' evidence, then what they have failed to recognize in their own minds is a reasonable doubt. That is a truly frightening thought.
Pertinent Facts
[5] Both parties testified. Their accounts were similar in several respects. They agreed there was a sexual encounter that included intercourse and cunnilingus. They disagreed on whether the sexual encounter was consensual, on whether the appellant pushed the complainant’s head into the wall and choked her during sex, and on many other details.
[20] The trial judge rejected the testimony of the appellant for two reasons. The trial judge’s first reason was that she agreed with the Crown’s submission, that “his testimony was structured to meet the allegations he was facing.” Second, she rejected his evidence because he remembered details of collateral issues but had “no recollection of choking [the complainant] or placing his hands on her neck”, which the trial judge found “simply defies credibility.” However, the trial judge rejected the Crown’s submission that the appellant’s comment to his friend – “I’m fucked” – was an admission of guilt. The trial judge viewed that comment as equally consistent with surprise or fear.
The "Evidence Structuring" Error
[24] An accused person is constitutionally entitled and statutorily required to be present at his or her trial: Criminal Code, R.S.C. 1985, c. C-46, s. 650(1); R. v. Laws (1998), 1998 CanLII 7157 (ON CA), 128 C.C.C. (3d) 516 (Ont. C.A.), at para. 79. The accused is also entitled to make full answer and defence: Charter, ss. 7 and 11(d); Criminal Code, s. 650(3).
[25] In order to give full effect to these entitlements and obligations, as well as an accused’s Charter right under s. 7 to a fair trial, this court has held in a number of cases that it is an error of law for the Crown or the trial judge to impugn the credibility of the accused on the basis that he tailored his evidence to the disclosure or the testimony heard in court. To do so has the effect of turning those entitlements into a trap for the accused who testifies: R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.); R. v. White (1999), 1999 CanLII 3695 (ON CA), 132 C.C.C. (3d) 373 (Ont. C.A.); R. v. Schell (2000), 2000 CanLII 16917 (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.); R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230; and R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170. This court has most recently affirmed these principles in R. v. M.D., 2020 ONCA 290, released concurrently with this decision.
[26] In White, Doherty J.A. acknowledged that it seems a logical inference to draw, that where a witness appears to have crafted his evidence to respond to information provided to him about the case, that tends to make his evidence suspect. However, even though it may seem logical, it is an illegal inference when drawn against an accused, who is entitled to hear the case he or she has to meet and to respond to it, as Doherty J.A. held at para. 20:
As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons. [Footnote omitted.]
[28] Similarly, the Crown may cross-examine the accused on disclosure to substantiate a claim of recent fabrication or concoction of an alibi by the accused: see R. v. Khan (1998), 1998 CanLII 15007 (BC CA), 126 C.C.C. (3d) 523 (B.C.C.A.), at paras. 51-52, leave to appeal refused, [2001] S.C.C.A. No. 126; R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), 77 O.R. (3d) 81, at paras. 69-75, leave to appeal refused, [2006] S.C.C.A. No. 105. However, the Crown cannot make the allegation of concoction to the jury without first putting it to the accused and giving him an opportunity to respond. That was the Crown’s error in Peavoy.
[29]In Peavoy, the Crown argued in its closing address to the jury that the accused had concocted his evidence after receiving disclosure, but never put that proposition to the accused. The court found the Crown’s conduct unfair and prejudicial both because of the misuse of disclosure against the accused and the failure to give the accused the opportunity to respond to the charge of recent fabrication: Peavoy, at p. 625.
[30] R. v. Jorgge was a judge-alone trial where the trial judge erred in her reasons by discounting the appellant’s evidence regarding the meaning of consent because she found that he tailored his evidence to the arguments he had heard his counsel make on a voir dire: at paras. 8-11. White and Schell were jury trials where the Crown erred in the cross-examination of the accused by suggesting that his evidence was suspect because he had received disclosure before testifying. While a limiting instruction to the jury was sufficient to cure the error in White, the trial judge gave no such instruction in Schell, and this court ordered a new trial: White, at para. 21; Schell, at para. 66.
[31] In Thain, a judge-alone trial, the trial judge made the same error by taking into account, when assessing the accused’s credibility, the fact that he had received disclosure before testifying, as quoted at para. 15: “The accused’s credibility must be assessed bearing in mind that his explanation comes long after disclosure was available to him and having regard to the totality of the evidence.”
Application to the Facts
[35] In rejecting the appellant’s evidence, the trial judge stated: “I agree with the Crown’s submission that [the appellant’s] testimony was structured to meet the allegations he was facing.”
[39] Noting the inconsistency in the appellant’s evidence discussed above, the trial Crown argued that the appellant “hear[d] [the complainant] testify and lo and behold now his evidence has changed”. Unfortunately, this is the very type of structuring accusation that is not permitted for a Crown or a trial judge. By accepting the trial Crown’s submission that the appellant’s testimony “was structured to meet the allegations he was facing,” the trial judge fell into precisely the type of legal error that Laskin J.A. described in Jorgge, at para. 13:
The trial judge was entitled to consider the inconsistencies between the appellant’s statement to the police and his testimony at trial. She was not, however, entitled to attribute those inconsistencies to his presence at the voir dire.
[40] Accordingly, the trial judge erred in law and improperly turned the appellant’s right to be present at his own trial into an evidentiary trap.
[45] I am satisfied that these cases are all distinguishable from this appeal. The court was not asked in any of these cases to address the “structuring” or “tailoring” error on the basis discussed in Peavoy, White, Schell, Thain, and Jorgge, binding decisions of this court that address the issue directly. While a trial judge is entitled to treat with concern an accused’s evidence that appears rehearsed, scripted, or implausible, it will be an error for a trial judge to find or for a Crown to submit that an accused’s evidence should be rejected because it appeared tailored or structured to meet the case against him.
[46] In this case, the trial judge accepted the submission of the trial Crown, amplified by an example from the evidence, that the appellant’s evidence was structured to respond to the allegations against him. She erred in law in so doing. By assessing the appellant’s evidence in that way, the trial judge made a trap of his right to be present at the trial and to make full answer and defence.
[58] I would allow the appeal, set aside the conviction, and order a new trial.
R v M.D. (ONCA)
[May 14, 2020] Use of the Accused's Constitutional Rights to Find Them Not Credible - 2020 ONCA 290 [Reasons by Feldman J.A. with Harvison Young and Jamal JJ.A. concurring]
AUTHOR’S NOTE: The only significant difference from the R v GD is that instead of calling it "structured" evidence, here another trial judge called it "tailored" evidence. The error is the same.
Pertinent Facts
[3] As one reason for rejecting the appellant’s evidence, the trial judge stated that he “formed the impression” that “many of [the appellant’s] answers were tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure”: at para. 47. It was an error of law for the trial judge to criticize the appellant and impugn his credibility on the basis that his evidence responded to Crown evidence at trial (or at the preliminary hearing), when the appellant was constitutionally entitled to receive Crown disclosure and be present at his trial.
The complainant testified that her employer forced sex on her in the bathroom stall of the bar she worked at. The Accused testified that the sexual contact was invited by the complainant. (Paras: 8-11)
[15] Although [the trial judge] noted that the appellant described “in elaborate detail how matters unfolded and why he believed the complainant was inviting him to touch her”, the trial judge largely rejected the appellant’s evidence that the complainant initiated the sexual activity and that it was entirely consensual: at paras. 36, 45. He gave several reasons for rejecting the appellant’s evidence, at paras. 45-47:
In the first place he denied seeing the complainant vomit but he did describe her as spitting into the toilet. It is hard to imagine spitting into the toilet as a prelude to a sexual encounter and his clear need to downplay the event by describing it as “spitting” did not have a ring of truth.
Similarly he had no convincing explanation of why he took the complainant’s underwear. He was evasive on that point and the suggestion made by the Crown that he took the underwear as a trophy seems the most likely explanation. He had no good answer for why he could not have taken the complainant into his office which was right next to the washroom if this was consensual sexual activity. Finally his evidence that she was initially not too intoxicated to consent but then suddenly “hit a wall” and became too intoxicated is not credible and is too dependent on split second assessment as she succumbed to the effects of alcohol to have any air of reality.
While credibility of evidence cannot be assessed purely [by] demeanour, observation of the accused and the manner in which he testified is a useful tool. I found the evidence of the accused to be delivered in a manner that was bordering on glib. He was clearly an intelligent and sophisticated witness who admitted that many of his activities were immoral, wrong and perhaps even illegal but he did so with no real conviction. I formed the impression that many of his answers were tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure. His vagueness about the number of drinks he knew the complainant had drunk, the precise timing of her blackout and his inability to describe what happened to the complainant after he left her alone in the bathroom left me entirely unconvinced.
Credibility of Accused - Tailoring of Evidence
[18] Among his reasons for rejecting the appellant’s evidence, the trial judge referred to his impression that the appellant’s testimony was “tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure”: at para. 47.
[20] Regardless of the reason the trial judge drew this conclusion, he fell into legal error by using the appellant’s presence at his trial and his receipt of Crown disclosure against him.
[21] This court has discussed and explained this issue in a number of cases and contexts, including in R. v. G.V., 2020 ONCA 291, released concurrently with these reasons.
[22] The issue first arose in relation to Crown cross-examination of the accused regarding the disclosure, during jury trials. In R. v. White (1999), 1999 CanLII 3695 (ON CA), 132 C.C.C. (3d) 373 (Ont. C.A.), and in R. v. Schell (2000), 2000 CanLII 16917 (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.), the Crown had tried to suggest to the accused in cross-examination that his answers were formed based on his knowledge of Crown disclosure.
[23] In White, Doherty J.A. acknowledged the basic logic underlying an allegation that the accused tailored his evidence to the disclosure, but explained that cross-examination of the accused suggesting such reasoning is improper and potentially prejudicial, stating, at para. 20: “That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons.” He directed trial judges to ensure that such any such inference in cross-examination be eradicated: at para. 20. As the trial judge in that case had given immediate instructions to the jury to undercut the improper suggestion put forth by the Crown, the appeal was dismissed.
[24] In Schell, the following year, Rosenberg J.A. repeated the same admonition against the Crown’s insinuation, in cross-examination and in a closing address, that the accused was tailoring his evidence to the disclosure he had received and the testimony he had heard. Rosenberg J.A. stated, at para. 57: “It was wrong and unfair for Crown counsel to attempt to exploit the appellant’s exercise of his rights.”
[25] This court has applied similar reasoning in the context of judge-alone trials. In R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, the trial judge’s analysis of the credibility of the accused included the observation that the appellant’s testimony came “long after disclosure was available to him and having regard to the totality of the evidence”: at para. 15. On appeal, this court approached the case as one of first instance, given that the issue was not improper Crown use of disclosure against the accused, but improper use of it by a trial judge in his reasons.
[26] In his analysis, Sharpe J.A. noted two circumstances where, contrary to the general principle, the Crown may cross-examine an accused regarding disclosure: Thain, at para. 24. One such situation arose in White, where the accused used telephone records produced prior to trial to assist with times and dates of meetings with the complainant, and the Crown was entitled to bring out that he had had access to the records before testifying: see White, at para. 22; R. v. Cavan (1999), 1999 CanLII 9309 (ON CA), 139 C.C.C. (3d) 449 (Ont. C.A.), at para. 45, leave to appeal refused, [1999] S.C.C.A. No. 600; R. v. Kokotailo, 2008 BCCA 168, 232 C.C.C. 279, at paras. 53-58. Similarly, the Crown may cross-examine the accused on disclosure to substantiate a claim of recent fabrication or concoction of an alibi by the accused: see R. v. Khan (1998), 1998 CanLII 15007 (BC CA), 126 C.C.C. (3d) 523 (B.C.C.A.), at paras. 51-52, leave to appeal refused, [2001] S.C.C.A. No. 126; R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), 77 O.R. (3d) 81, at paras. 69-75, leave to appeal refused, [2006] S.C.C.A. No. 105.
[28] Taking this jurisprudence into account, Sharpe J.A. found that the trial judge in Thain had no legal basis to use the fact of receiving disclosure against the accused. None of the exceptions applied, nor had the Crown ever suggested to the accused that he recently fabricated his evidence. Any comment on the accused’s use of the disclosure thus first emerged in the trial judge’s reasons. In these circumstances, Sharpe J.A. concluded, at para. 29, that in a judge-alone trial, fairness is undermined if the accused has no opportunity to respond to allegations of fabrication on the basis of Crown disclosure:
In my view, the fact that the accused enjoyed his constitutional right to disclosure had no bearing on his credibility in this case and the trial judge erred in law by stating that it did. Even if the disclosure might possibly have had a bearing on credibility, trial fairness demanded that the accused be confronted with the suggestion and afforded the opportunity to refute it or make submissions before being disbelieved on that account.
[29] The issue arose again in R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, another sexual assault trial by judge alone. In her reasons for judgment dealing with her credibility assessment of the accused, the trial judge discounted his evidence because he had had the benefit of listening to the legal arguments presented by his counsel and by the Crown and therefore understood the issues at stake: 2010 ONSC 8038. At paras. 10-14 of her reasons, she made several comments that were the subject of the accused’s appeal to this court:
...
I conclude that this evidence given by Mr. Jorgge at the trial when he said “that unless I gave him something, I was never going to get out of there” was evidence carefully tailored to fit the arguments raised by the Crown and his counsel during the voir dire
...
[30] While this court again acknowledged that there may be a “natural temptation” to reason in the way the trial judge did, that temptation must be resisted: at para. 12. It subverts an accused’s statutory right and obligation to be present at his or her trial under s. 650(1) of the Criminal Code, which is grounded in the guaranteed Charter rights to a fair trial and to make full answer and defence: ss. 7 and 11(d). In Jorgge, this court explained that a trial judge is entitled to consider inconsistencies between an accused’s statement to police and his testimony at trial, but may not attribute any such inconsistencies to the accused’s presence at the voir dire.
Application to the Matter
[31] This case law applies with full force to the reasons given by the trial judge in this case. The trial judge fell into the same error as in the cases discussed by discounting the appellant’s credibility on the basis that he “tailored” many of his answers to the case against him, which he knew from being present during the proceedings and from the disclosure. This reasoning, as in the previous cases, turned the appellants’ constitutional rights into an evidentiary trap.
[32] The Crown referred the court to two cases that it submits may contradict the other authorities: R. v. Brown, 2018 ONCA 9, and R. v. Roble, 2004 CanLII 23106 (Ont. C.A.). I do not regard either of these cases as undermining the statements of the law as articulated by the court in full reasons in White, Schell, Thain, and Jorgge.
[37] For these reasons, I find that the trial judge fell into legal error when he reasoned that the appellant “tailored” his testimony “to the evidence he knew would be forthcoming or to the forensic disclosure.” That inference tainted the trial judge’s legal analysis and conclusion.
[40] I would allow the appeal, set aside the conviction, and order a new trial.
.
R v Raja (ONCJ)
[May 21, 2020] – Charter s.7 and 11(d) - Acts that allow Hearsay Evidence without Preserving Judicial Threshold Reliability Testing are Unconstitutional – 2020 ONCJ 250 [K.A. Wells J.]
AUTHOR’S NOTE: This case follows BC jurisprudence finding Section 36 of the Mutual Legal Assistance in Criminal Matters Act (“MLACMA”) unconstitutional. Although the case seems to suggest a declaration of no force and effect, that is not lawful because the matter originated in the Ontario Court of Justice - the declaration merely affects the applicants here as that court lacks the jurisdiction to make such declarations. It would properly be referred to as a constitutional exemption. Nonetheless, the logic is persuasive otherwise. Hearsay is inadmissible in courts in the normal course. The provision provides a blanket exception without any testing of the value of the hearsay evidence. Here, it would have allowed unsworn officer's notes from a foreign police force to be filed in a criminal proceeding. Clearly, that would have watered down protections available to accused persons in a Canadian courtroom.
Pertinent Facts
[6] On July 11, 2018, investigators from Peel Regional Police (“PRP”) intercepted Mr. Ravi Shanker (“Shanker”) during a phone call with Mr. Azad Damani (“Damani”) during which they were believed to be having a drug-related discussion in coded language. On that same day, Shanker and Mr. Bhupendra Raja (“Raja”) were seen leaving 10 Wilkinson Road together, and Shanker’s cell phone was subsequently tracked to the area of 325 Stirling Avenue South in Kitchener, Ontario. Guru Motors and Auto Service is located at 325 Stirling Avenue South.
[7] On July 12, 2018, Raja drove Shanker to 10 Wilkinson Road. Shortly after entering the premises, Raja was seen leaving in his vehicle with Mr. Gurinder Bedi (“Bedi”) and driving to a commercial address in Mississauga. The two men unloaded five garbage bags from the vehicle into a trash bin and then left the area.
[8] Police seized the garbage bags. Inside they located 89 motorcycle gloves with the knuckle plates removed. They also located an air shipping way bill for motorcycle gloves from Zubair Enterprises in Pakistan. The waybill was dated July 9, 2018 and addressed to 325 Stirling Avenue South. On July 19, 2018, Health Canada tested two of the knuckle plates and concluded that heroin was once present. PRP Forensic Identification Services also located Bedi’s fingerprint on one of the knuckle plates.
[9] At some point, PRP investigators were advised by the United States Drug Enforcement Agency that two shipments of motorcycle gloves with concealed heroin were seized by the Pakistan Anti-Narcotics Force. The shipments were destined for addresses in Canada associated to the Applicants. One of the shipments was intercepted on July 15, 2018, at a DHL office in Lahore, Pakistan; a total of 72 pairs of motorcycle gloves were seized and found to conceal a total of 1480 grams of heroin. The gloves were addressed to Jaspreet Singh, Guru Motors and Auto Service, 325 Stirling Avenue South, Kitchener. The sender of the shipment was listed as Zubair Enterprises in Pakistan.
[10] The Applicants were arrested on August 30, 2018. On that same date a search warrant was executed at Guru Motors and Auto Service at 325 Stirling Avenue South, Kitchener. During the search a DHL box was found containing 30 pairs of intact motorcycle gloves. Investigators also found a DHL shipment invoice from Zubair Attique, Pakistan to Jaspreet Singh at Guru Motors. During the execution of a search warrant at 10 Wilkinson Road, Unit #12 on the same date, investigators located four motorcycle gloves which had been cut open.
[11] On December 13, 2018, an Official Request was sent to Pakistan on behalf of the Minister of Justice of Canada (“Request for Assistance”). The Request for Assistance was sent pursuant to the terms of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“The Convention”). Both Canada and Pakistan are signatories to The Convention, which was created in 1988 with the aim of combating transnational drug crimes.
[12] On April 4, 2019, the Government of Pakistan responded to the Request for Assistance by providing information relating to the seizure of heroin on both May 13, 2018 and July 15, 2018 at DHL offices in Lahore, Pakistan. In each case, heroin was found concealed in motorcycle gloves. In each case, the destination of the gloves was an address with some connection to one or more of the Applicants.
The Legislative Provision
[13] In conjunction with signing on to The Convention, Parliament enacted the MLACMA to implement Canada’s overall treaty obligations to facilitate mutual legal cooperation. Part II of MLACMA is entitled “Admissibility in Canada of Evidence Obtained Abroad Pursuant to an Agreement.” Section 36 reads as follows:
Foreign Records
36(1) In a proceeding with respect to which Parliament has jurisdiction, a record or a copy of the record and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record, sent to the Minister by a state or entity in accordance with a Canadian request, is not inadmissible in evidence by reason only that a statement contained in the record, copy, affidavit, certificate or other statement is hearsay or a statement of opinion.
[14] It is pursuant to this section that the Crown seeks to tender into evidence the series of documents provided by the Government of Pakistan – Ministry of Narcotics Control (the “Pakistan Documents”). Before turning to my analysis of the constitutionality of s. 36, it is appropriate to consider the contents of the Pakistan Documents, particularly in reference to the initial Request for Assistance.
[17] In response to the Request for Assistance, the Government of Pakistan provided a letter from the Ministry of Narcotics Control summarizing two seizures of heroin in Pakistan on May 13, 2018 and July 15, 2018 – both seizures took place at DHL offices and involved the secretion of heroin in the knuckle plates of motorcycle gloves. The May seizure was destined for an address in Scarborough, Ontario, and the July seizure was destined for 325 Stirling, Kitchener, Ontario. Appended to the letter are 4 Annexes and then a separate group of documents:
[18] None of the Pakistan Documents are certified to be true copies, nor are there any affidavits or attestations whatsoever that the documents are made in conformity with the laws of Pakistan, or that the contents of the documents are indeed true. Furthermore, the documentation purporting to relate to evidence continuity in no way speaks to the continuity of the drugs allegedly seized from the motorcycle gloves on May 13 and July 15, 2018. Indeed, the so-called drug certificates in Annexes A and B contain information that is not reflected in the point-form translations of the police reports. For example, Annex B is a drug certificate for a sample received on July 17, 2018, through a Constable Sakhi Hussain, with a gross weight of the tested substance being 717.7 grams. The police report from July 15, 2018 (Annex D), however, bears only the name of Ali Hassan, indicates the total weight of heroin was 1480 grams, and says nothing about the continuity of evidence after the point of seizure.
[19] The Crown seeks to rely on the Pakistan Documents for the truth of their contents in proving the count of conspiracy to import heroin against the Defendants. According to the prosecution, the intended use of the Pakistan Documents is “limited to proving continuity and the nature of the seized substance as heroin.”
[23] The Ontario Court of Appeal’s ruling in Boyce, supra, confirms that s. 36 of MLACMA means just what it says – hearsay evidence is admissible without any consideration of its necessity or threshold reliability.
[25] In R. v. Christhurajah, 2016 BCSC 2400, Justice Ehrcke of the Supreme Court of British Columbia recognized the necessary role of a trial judge where hearsay evidence is sought to be admitted. After acknowledging the direction from the Supreme Court of Canada in developing a more flexible approach to the admission of hearsay (known as “the principled approach”) in the decisions of R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, and R. v. Khelawon, 2006 SCC 57, Ehrcke J. at paragraph 26 stated as follows:
A critical component of the principled approach is the role of the trial judge as a gatekeeper who must make a preliminary finding that the proposed evidence meets a minimum level of threshold reliability before the evidence is admitted to the jury for their assessment of what, if any, probative value they will attach to the evidence.
[27] Ultimately, Ehrcke J. held that s. 36 of MLACMA to be inconsistent with the rights guaranteed under ss. 7 & 11(d) of the Charter, and pursuant to s. 52(1) of the Constitution Act, 1982, declared the section to be of no force or effect. In reaching this conclusion, Ehrcke J. found that to be constitutionally sound, any provision permitting the admission of hearsay evidence must either preserve a judge’s discretion to determine threshold reliability or contain some other feature to ensure that manifestly unreliable evidence will not be put before the trier of fact.
[28] Ehrcke J. identified what he found to be two protections inherent in s. 36 that might be considered as protecting against admission of unreliable evidence. First, he held that since s. 36(1) deals with records provided by another state to the Minister, records from manifestly corrupt and oppressive countries would not be captured “since Canada would be unlikely to have concluded a treaty with such regimes.” Second, he acknowledged that s. 36(2) allows for the assessment of ultimate reliability such that a trier of fact can choose to place little or no weight on the hearsay evidence.
[29] Finally, Ehrcke J. held that s. 36(2) was not an adequate substitute to justify the elimination of the trial judge’s role as a gatekeeper to assess threshold reliability. He held that the combined effect of ss. 36(1) and 36(2) of the MLACMA infringes an accused’s right to a fair trial and to make full answer and defence.
[30] The British Columbia Court of Appeal’s decision in R. v. Rajaratnam, supra, was an appeal of Ehrcke J.’s decision in Christhurajah. The Court of Appeal agreed with the trial court’s ruling on s. 36 and declared it to be of no force or effect in criminal trials. In doing so the Court stated that “s.36 fundamentally alters the rules governing the admissibility of hearsay in a manner that is inconsistent with an accused’s right to a fair trial.”
[32] I agree entirely with Ehrcke J. and the British Columbia Court of Appeal in their respective assessments of s. 36 of the MLACMA. To admit hearsay evidence without any consideration of necessity or threshold liability undermines an accused’s right to a fair trial and the ability to make full answer and defence.
[33] Here, the Crown seeks to rely on evidence that lacks even the most basic indicia of trustworthiness. Despite the details sought in the Request for Assistance, the Pakistan Documents are not certified to be true copies or accompanied by any oath or guarantee of truthfulness. If signatory countries to The Convention are truly committed to combating transnational crime, a commitment to effective assistance in prosecuting cases seems obvious. There was no evidence lead to suggest that the Pakistan authorities would be unwilling to testify via video-link for example. Were it the case that any country refused to make witnesses available to testify about documents provided under The Convention, this would call into serious question both their commitment to the cause, and the reliability of the evidence provided.
[34] Combating transnational crime, including global drug trafficking, is an important objective. In many instances, courts will need to be flexible in allowing for the presentation of evidence in different ways, particularly where that evidence is from another part of the world. However, that flexibility cannot extend so far as to allow for the admission of what would otherwise be inadmissible evidence, simply because it comes from another State pursuant to a treaty. It cannot be that officer notes from Pakistan in this case are somehow imbued with reliability (and therefore admissible for their truth), when notes of investigators from PRP could not be so tendered.
[35] Finally, despite the Crown’s compelling argument to the contrary, I find that a trial judge’s overriding ability to exclude evidence on a prejudice vs. probative analysis cannot save the constitutionality of s. 36. Under s. 36(1) it is not open for a trial judge to deem a record’s prejudicial effect to outweigh its probative value if the only reason for so concluding is that the record is hearsay. In the case before me, The Pakistan Documents (if true) are compelling evidence of the Defendants’ involvement in international drug trafficking. Without having any way of assessing the reliability of the evidence, I would find that the prejudicial effect outweighs the probative value because they are entirely hearsay which the Defendants’ have no opportunity whatsoever to test. Exclusion on this basis, however, is not permitted by s. 36(1) of MLACMA. Trying to characterize the prejudicial effect as being based on some reason other than hearsay would be to engage in intellectual dishonesty.
[36] I find that ss. 36(1) and (2) of the MLACMA are inconsistent with the rights guaranteed under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, and pursuant to s. 52(1) of the Constitution Act, 1982, I find ss. 36(1) and (2) are of no force and effect.
