DATE: 20030328

DOCKET: C31682-C31401

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., CRONK and ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Gregory Lafontaine

for the appellant Chang

Respondent

Philip Campbell

for the appellant Kullman

• and -

ALDO CHANG and GEORGE KULLMAN

R.W. Hubbard and Moiz Rahman

for the respondent

Appellants

J. Klukach and S. Magotiaux

for the intervener

• and -

ATTORNEY GENERAL FOR ONTARIO

Intervener

Heard: September 17, 2002

On appeal from the convictions entered by Justice Anne M. Molloy of the Superior Court of Justice on October 9, 1998.

O’CONNOR A.C.J.O. and ARMSTRONG J.A.:

OVERVIEW

[1] After a trial by Molloy J., sitting without a jury, the appellant, Chang, was convicted of two counts of conspiracy and sentenced to a term of imprisonment of one year. The appellant, Kullman , was convicted of one count of conspiracy and sentenced to a conditional sentence of eighteen months.

[2] These appeals are against the convictions only. Both appellants allege that the trial judge erred in admitting evidence of intercepted communications obtained pursuant to two wiretap authorizations issued in Ontario. The appellants allege that these authorizations were unlawful because the evidence that supported the application for the first one was itself obtained illegally. That supporting evidence consisted of communications in Ontario that had earlier been intercepted pursuant to a wiretap authorization issued in Quebec. In particular, the appellants submit that the trial judge erred in ruling: i) that there were no jurisdictional defects underlying the Quebec authorization; ii) that the failure to comply with s. 188.1(2) of the Criminal Code did not render the interceptions in Ontario pursuant to the Quebec authorization unlawful; and iii) that the continued use of the unexpired portion of the Quebec authorization once the Quebec investigation was complete did not violate the minimization requirement in s. 8 of the Canadian Charter of Rights and Freedoms.

[3] In addition, Kullman argues that the trial judge erred in relying on certain hearsay statements of Chang as evidence against Kullman because even if those statements came within the co-conspirators’ exception to the hearsay rule, they did not satisfy the necessity and reliability criteria for the admission of hearsay.

[4] For the reasons below, we would dismiss the appeals.

FACTS

(b) Count One

[5] The first count in the indictment alleges that Chang conspired with five named individuals (but not the appellant Kullman ) to assist Nithicha Chansiri to enter Canada illegally.

[6] Chang was employed as an immigration officer at Toronto International Airport. Chang’s cousin, Albert Chu, was a businessman in Toronto who worked part-time as an immigration consultant. Chu was associated with two other Toronto-area businessmen, Eddy Chan and Bill Fong, who were also engaged in various immigration ventures. Chu, Chan and Fong as well as Ms. Chansiri were named in count one as unindicted co-conspirators.

[7] Three of the unindicted co-conspirators, including Ms. Chansiri, were called as witnesses by the Crown. In addition, the Crown introduced a number of intercepted telephone communications between several of the individuals named in the indictment, including Chang.

[8] In August 1995, the RCMP, while intercepting Ontario-based communications pursuant to an authorization issued in the Province of Quebec, overheard some of the alleged conspirators talking about helping South Asian women to enter Canada for the purpose of working as prostitutes.

[9] In September 1995, after the RCMP obtained a wiretap authorization issued in Ontario, Chu was overheard trying to get Chang to participate in this venture. Over the next month, communications between the alleged conspirators, including Chang, indicated that a young woman would be arriving at the Toronto Airport from Thailand and that Chang would assist her in entering Canada by allowing her to pass through his inspection without making any of the requisite inquiries.

[10] On October 15, 1995, Ms. Chansiri arrived at the Toronto Airport and was admitted into Canada by Chang. Ms. Chansiri testified that after arriving in Canada, she went to work as a prostitute for one of the individuals named as a co-conspirator in count one.

[11] Chu testified that Chang was paid a $1,000 bribe to ensure that Ms. Chansiri was processed without difficulty upon her arrival from Thailand at the airport in Toronto. Chu’s evidence about the bribe was confirmed by the intercepted communications between Chu and Chang. After Ms. Chansiri’s arrival in Canada, Chang was overheard telling Chu that he had recognized Ms. Chansiri at the airport from the information provided to him and had admitted her on a visitor’s visa. Chang made it clear to Chu that, but for his involvement, Ms. Chansiri would likely have been refused entry to Canada.

[12] The trial judge found that Ms. Chansiri’s visa was void ab initio as it was obtained on the basis of misrepresentations made by her in Thailand. The trial judge also found that Chang knew (or was wilfully blind to the fact) that Ms. Chansiri’s visa did not entitle her to lawfully enter Canada. The trial judge relied upon the intercepted conversations to which Chang was a party to conclude that Chang knew that Ms. Chansiri was coming to Canada to work as a prostitute and found that the conversations conclusively proved that Chang was involved in the conspiracy alleged in count one.

[13] At trial, the defence objected to the admissibility of the intercepted phone conversations. After a voir dire, the trial judge admitted all of the conversations. Chang’s appeal against the conviction on count one relates solely to the admissibility of the intercepted communications.

(c) Count Two

[14] The second count in the indictment alleges that the appellants, Chang and Kullman , conspired with each other and with three other named but unindicted individuals to assist unnamed persons to enter Canada illegally. The object of the conspiracy alleged in count two was to sell visas to people who in turn would be paid to assist individuals without proper documentation to enter Canada.

[15] Like Chang, Kullman was employed as an immigration officer at the Toronto Airport. During the month of October 1995, the police intercepted conversations in which Chang discussed the sale of visas with his cousin, Albert Chu. The visas were ultimately to be sold to Allan Lim, who intended to use them to bring prostitutes into Canada from Thailand. Chu and Eddy Chan met with Chang who showed them a blank visitor’s visa. Chang explained that “his colleague” had acquired the visa from an overseas office; Chang showed his potential customers how one could tell the visa was genuine. Subsequent to this meeting, there were further discussions between Chang and Chu regarding the price to be paid for the visas. There was, however, a disagreement with Lim about price and consequently no sales took place.

[16] In December 1995, pursuant to a further Ontario wiretap authorization, the police intercepted conversations in which Chang was again overheard talking to Chu about selling visas. Over a series of calls, the two made arrangements for Chang to show a sample visa to potential buyers. During some of his conversations, Chang told Chu that he, Chang, needed to consult with “his partner”, to whom he referred as “George”. Chang also told Chu that George was someone with whom Chang worked as an immigration officer.

[17] On the evening of January 2, 1996, the police intercepted a call in which Chu told Chang that the purchasers wanted to see a sample visa. The two discussed requiring the purchasers to pay a deposit before showing them the visa. Later that same evening, Chang was overheard for the first time speaking directly to the appellant Kullman . They discussed the purchasers’ request to see the sample visa. Kullman was adamant that the purchasers not have access to the visa because he was concerned that they might try to photocopy it. Kullman was agreeable, however, to the visa being shown to the purchasers provided Chang was present at all times.

[18] Immediately after that call, Chang called Chu to tell him that a deposit would not be necessary, but that he could not leave the visa with anyone. On January 4, in response to Chu’s suggestion that they use an intermediary to show the sample, Chang again said that his partner would not agree to give up control of the visa for fear that it would be copied.

[19] Thereafter, arrangements were made between Chu and Chang to show the visa on two or three occasions, but each time Chang failed to follow through. No sale of visas ever took place.

[20] The Crown’s case against Chang on the second count came from the direct evidence of the co-conspirators who were called at trial as well from the intercepted phone conversations to which Chang was a party. The trial judge did not use the co-conspirators’ exception to the hearsay rule to admit evidence against Chang and Chang’s appeal against the conviction on count two is, therefore, based solely on the admissibility of the intercepted conversations.

[21] Insofar as Kullman is concerned, there was no evidence that he had contact with any member of the alleged conspiracy other than Chang. All of the evidence against Kullman is found in intercepted phone conversations, some of which involved Kullman himself and, importantly for this appeal, others of which did not. In regard to the latter, the trial judge relied upon the co-conspirators’ exception to the hearsay rule and held that certain statements made by Chang to alleged co-conspirators other than Kullman were admissible against Kullman.

[22] The trial judge ruled that the following statements of Chang were admissible pursuant to the co-conspirators’ exception to the hearsay rule: (i) In October 1995, Chang told other co-conspirators that the source of the visas was another immigration officer with whom he worked; (ii) In December 1995, in his discussions with Chu, Chang repeatedly made references to his partner, whom he called George, and at times said that he needed to verify certain terms with his partner; and (iii) In January 1996, Chang told Chu that his partner was concerned about letting the sample visa out his hands. As noted above, one of these conversations immediately followed the conversation in which Kullman expressed concern to Chu about relinquishing control of the sample visa.

[23] In this appeal, Kullman joins with Chang in arguing that none of the intercepted phone communications obtained pursuant to the Ontario authorizations should have been admitted. In addition, Kullman argues that the trial judge erred in relying on Chang’s statements, which were hearsay as against Kullman, because even if those statements satisfied the co-conspirators’ exception to the hearsay rule, they did not meet the necessity and reliability criteria for the admission of hearsay.

THE ADMISSIBILITY OF THE INTERCEPTED COMMUNICATIONS

(a) Background

[24] The ruling of the trial judge on the admissibility of the intercepted communications, reported at [1998] O.J. No. 1789, is comprehensive and contains a detailed description of the relevant facts. It is unnecessary to provide the same level of detail here. However, in order to put what follows in context, we set out the facts that are necessary to understand the arguments raised by the appellant.

[25] The conversations of the appellants were intercepted pursuant to two Ontario wiretap authorizations: the first granted on September 28, 1995 and the second on November 16, 1995. The two wiretap authorizations have their genesis in an investigation initiated by the Quebec City police force with the assistance of the Quebec RCMP. That investigation concerned the alleged involvement of a city official, Rene Fortin, in the bid-rigging of municipal construction contracts. In the course of the investigation, a justice of the Superior Court of Quebec issued a wiretap authorization on June 2, 1995 to intercept the telephone conversations of Fortin and J. P. Plante, a person alleged to be involved with Fortin in the bid-rigging scheme.

[26] The wiretap on Fortin’s telephone led the police to believe that he may be involved in another scheme relating to the sale of phony visas for entry into Canada. The investigation revealed that two Ontario residents, Eddy Chan and Bill Fong, referred to above, were involved in discussions with Fortin concerning the visa scam. The discovery of Chan and Fong led the Quebec RCMP to seek the assistance of the Immigration and Passport Section of the Ontario RCMP.

[27] The Quebec police obtained two additional wiretap authorizations on July 28, 1995. The first of those was mainly a renewal of the June 2nd order relating to the bid- rigging allegation. The second order, described by the trial judge as “the Quebec Immigration Authorization,” approved wiretaps on Fortin, Chan and Fong. It is significant, as pointed out by the trial judge in her reasons at para. 4, that:

[t]he affidavit filed in support of the Quebec Immigration Authorization centred almost exclusively on information received as a result of intercepting telephone calls to which Fortin was a party and which involved Chan and Fong. Those interceptions had been authorized by the June 2, 1995 Quebec Order. Up until this point in time, neither of the two accused (Chang and Kullman ) had been mentioned in any of the intercepted communications and neither of them had any of his own communications intercepted.

[28] On August 10, 1995, the Ontario RCMP, in response to a request from the Quebec RCMP, obtained the co-operation of Bell Canada in wiretapping the telephones of Chan and Fong in Ontario. This was done pursuant to the Quebec Immigration Authorization without a confirmation order from an Ontario judge. The wiretaps obtained pursuant to the Quebec Immigration Authorization revealed discussions concerning various illegal immigration schemes.

[29] On September 28, 1995, Keenan J. of the Superior Court of Justice granted a wiretap authorization at the request of the Ontario RCMP in regard to Fortin, Chan, Fong and others. The application for that authorization (referred to by the trial judge as “the September Ontario Authorization”) was supported by the information and affidavit of Corporal Forrest of the Ontario RCMP. Much of the evidence in the Forrest affidavit was obtained from wiretaps executed under the Quebec Immigration Authorization.

[30] The wiretaps under the September Ontario Authorization provided further evidence of illegal immigration schemes and, for the first time, included discussions of the appellant Chang.

[31] The Ontario RCMP made a further application for a wiretap authorization on November 16, 1995. The ensuing order, granted by Hawkins J. of the Superior Court of Justice, authorized wiretaps on many of the same persons as identified in the September Ontario Authorization, and added Chang and four others. It was under “the November Ontario Authorization,” so described by the trial judge, that telephone calls with the appellant Kullman were intercepted.

(b) Analysis

[32] The appellants raise three challenges to the admissibility of the conversations heard pursuant to the two Ontario authorizations. Their first challenge involves an attack on the Quebec Immigration Authorization. This argument is premised on the fact that Corporal Forrest used information obtained from wiretaps under the Quebec Immigration Authorization to support the Ontario applications. They argue that the Quebec Immigration Authorization was not lawful because the Quebec police failed to establish that they had pursued other investigative procedures and that such procedures were unlikely to succeed as required by s. 186(1)(b) of the Criminal Code.

[33] The appellants submit that the trial judge erred in limiting her review of the lawfulness of the Quebec Immigration Authorization to its so-called “facial validity”. In that regard, they complain that the trial judge satisfied herself only that the Quebec judge had the jurisdiction to make the authorization and that the procedural steps taken to implement it were lawful and that she did not consider the sufficiency of the evidence placed before the Quebec court. The appellants submit that the trial judge ought to have made a determination whether there was sufficient evidence before the issuing judge in Quebec to establish that the statutory prerequisites to the issuance of the authorization had been made out. In short, the appellants sought to have the trial judge conduct the kind of review mandated in R. v. Garofoli, [1990] 2 S.C.R. 1421 with respect to the Quebec Immigration Authorization.

[34] If a Garofoli review of the Quebec Immigration Authorization had been conducted by the trial judge, the appellants submit that she would have concluded that there was no evidence upon which the Quebec judge could have been satisfied that the investigative necessity requirement, mandated by s. 186(1)(b) of the Criminal Code, had been established. Consequently, without the information obtained from the wiretaps under the Quebec Immigration Authorization, there would have been no evidentiary basis upon which the Ontario judge (Keenan J.) could have issued the September Ontario Authorization. Without the wiretap evidence obtained pursuant to the September Ontario Authorization, there would have been an insufficient basis to grant the November Ontario Authorization.

[35] The appellants rely upon R. v. Plant, [1993] 3 S.C.R. 281; R. v. Wiley, [1993] 3 S.C.R. 263 and R. v. Grant, [1993] 3 S.C.R. 223. The aforementioned trilogy of cases asserts that information obtained as a result of unlawful activity by the police should be excised by a reviewing court in determining the validity of a search warrant. However, each of those cases involved the breach of the applicant’s own Charter rights and the court excised the information on that basis. The trilogy is distinguishable from the case at bar in that the alleged unlawful evidence obtained as a result of the Quebec Immigration Authorization was not obtained as a result of a violation of the rights of either of the appellants. Indeed, the appellants do not cite any cases in which a reviewing court excised information from an affidavit in support of a wiretap authorization where the impugned information was obtained as a result of the breach of a third party’s rights.

[36] The appellants also submit on constitutional policy grounds that the Crown should not be able to benefit from unlawful conduct, whether or not it involves a direct breach of the Charter rights of the appellants. The Crown, on the other hand, argues that that approach is contrary to the fundamental constitutional principle that as a general rule the enforcement of Charter rights must be personal to the accused who makes the challenge. See R. v. Edwards, [1996] 1 S.C.R. 128.

[37] In this case, neither of the appellants’ communications were intercepted by wiretaps authorized by the order of the Quebec judge. Chang was first intercepted following the September Ontario Authorization and Kullman was first intercepted following the November Ontario Authorization. The Crown, therefore, submits that the appellants do not have the right to attack the Quebec Immigration Authorization since neither had a privacy interest affected by its execution. From this, the Crown submits that the trial judge erred in permitting the appellants to attack the legality of the Quebec Immigration Authorization.

[38] While the Crown’s submissions before us are to the effect that the appellants were not entitled to make any challenge to the Quebec Immigration Authorization, it appears that before the trial judge it was argued that she was at least entitled to satisfy herself that the authorization was granted by a Quebec superior court judge. Once so satisfied, that would end the inquiry. The trial judge rejected that argument at para. 41:

However, I cannot agree with the submission of the Crown in the case before me that any inquiry with respect to whether the evidence obtained from the Quebec authorization was “authorized by law” is satisfied by the fact that the authorization was granted by a superior court judge. For example, if the judge who granted the authorization had no jurisdiction to do so, then it cannot be said to be “authorized by law”. Similarly, if the extra-territorial aspect of the Quebec authorization required a confirmation order from a judge in Ontario before it could be lawfully executed here, then the evidence obtained as a result of the Authorization without such a confirmation may not have been lawfully intercepted. Accordingly, in my view, the accused have standing to raise both of these points as they relate directly to the legality of the evidence upon which the Ontario Authorizations were based. For the same reason, the accused have standing to challenge the conduct of the police in implementing the Quebec Immigration Authorization, not only as to the alleged requirement for a confirmation order but also with respect to whether the police in Ontario acted lawfully in continuing to intercept communications pursuant to the Quebec Authorization after being advised by the Quebec police that they had essentially completed their investigation.

[39] The trial judge went on to conclude that by permitting the inquiry whether the Quebec judge had jurisdiction to grant the authorization, she was not opening the door to a full Garofoli review. We agree with her.

[40] In our view, the trial judge quite properly concluded that once an Ontario judge is satisfied that the Quebec judge had jurisdiction to make the order, and that the steps that were taken to execute it were lawful, then that is the end of the Ontario court’s inquiry. We agree that the appellants do not have standing to challenge the sufficiency of the evidence upon which the Quebec judge made his order. We also agree with the trial judge that to permit such a challenge would not appear to have any principled or logical basis. In our view, the trial judge correctly concluded at para. 42:

To conduct the type of review requested by the accused in this case would be in effect to substitute a “but for” test for the existing rules of standing. Rather than establishing standing by demonstrating that the Quebec Immigration Authorization permitted the interception of their own communications and thereby intruded upon their personal privacy rights, the accused seek to argue that the Ontario Authorizations intruded upon their privacy rights and that “but for” the Quebec Immigration Authorization, the Ontario Authorizations could not have been made. The problem with this approach is that there is no logical cut-off point. One could equally say that but for the first authorization intercepting Mr. Fortin in connection with the municipal corruption charges, his communications with respect to the immigration matter would never have been intercepted and then there would be no basis for the Quebec Immigration Authorization targetting Fong and Chan; or one could move back another step and say that but for the first investigation of Mr. Plante (the contractor dealing with Mr. Fortin) then there would be no evidence of municipal corruption against Mr. Fortin, and then there would be no basis for intercepting Mr. Fortin’s calls, and then his involvement in the immigration matter would never have come to light, and then there would be no basis to intercept the calls of Fong and Chan and so on. This process could stretch back into infinity.

[41] The appellants argued at trial that the concern expressed by the trial judge did not arise because they sought to limit the inquiry to only one level back. However, we agree with the trial judge that there needs to be a principled reason for taking the inquiry back even one level and a logical basis for stopping there. In our view, the trial judge articulated a principled and practical approach to the review of another province’s wiretap authorizations. In the present circumstances, where there is no evidence of a direct breach of a party’s Charter rights under the Quebec Immigration Authorization, the Ontario court should not review the sufficiency of the evidence giving rise to that authorization. We are also of the view that for an Ontario superior court judge in these circumstances to review the sufficiency of the evidence underlying the authorization of another province’s superior court would offend the general rule that a court order is immune from collateral attack. See Garofoli, supra at p. 1476.

[42] It may well be that if conversations of either Chang or Kullman had been intercepted by wiretaps executed pursuant to the Quebec Immigration Authorization, the trial judge would have been obliged to review the sufficiency of the evidence underlying the Quebec judge’s order. However, that is not the case before us.

[43] As their second argument, the appellants submit that the combined effect of ss. 188.1 and 487.02 of the Criminal Code should have prevented the police from implementing the Quebec Immigration Authorization in Ontario until an Ontario judge had confirmed the Quebec judge’s order. In 1995 those sections provided:

188.1(1) Subject to subsection (2), the interception of a private communication authorized pursuant to section 184.2, 184.3, 186 or 188 may be carried out anywhere in Canada.

(2) Where an authorization is given under section 184.2, 184.3, 186 or 188 in one province but it may be reasonably expected that it is to be executed in another province and the execution of the authorization would require entry into or upon the property of any person in the other province or would require that an order under section 487.02 be made with respect to any person in that other province, a judge in the other province may, on application, confirm the authorization and when the authorization is so confirmed, it shall have full force and effect in that other province as though it had originally been given in that other province.

487.02 Where an authorization is given under section 184.2, 184.3, 186 or 188, a warrant is issued under section 487.01 or 492.1 or subsection 492.2(1) or an order is made under subsection 492.2(2), the judge or justice who gives the authorization, issues the warrant or makes the order may order any person to provide assistance where the person’s assistance may reasonably be considered to be required to give effect to the authorization, warrant or order.

[44] As already stated, the RCMP in Ontario, with the co-operation of Bell Canada, executed wiretaps on Ontario telephones without a confirmation order from an Ontario judge. In addressing this issue, the trial judge held that “[t]he language of s. 188.1(2) in respect of confirmation orders is permissive, not mandatory.” She pointed out that the section does not require a confirmation order for all wiretap authorizations which are to be executed extra-provincially. Two situations call for a confirmation order. The first is when the implementation of a wiretap involves “entry into or upon the property of any person in the other province”. The second is when implementation involves an assistance order pursuant to s. 487.02. However, even in those situations, a confirmation order is not mandatory. We agree with the trial judge that if Parliament had intended to require a confirmation order in every situation of extra-provincial execution of wiretap authorizations, it could have done so in simple and straightforward language. In fact, as the trial judge observed, Parliament did just that in s. 487(2) of the Criminal Code, which provides that both search warrants and general warrants may be executed in another territorial division but only after they have been endorsed by a justice having jurisdiction in that territorial division.

[45] The appellants assert as their third ground of appeal that the trial judge erred in ruling that the police did not violate the minimization requirement under s. 8 of the Charter when they continued to rely upon a wiretap authorization originally obtained for an investigation which had been completed. The appellants submit that the investigation which gave rise to the issuance of the Quebec Immigration Authorization was complete by August 23, 1995. However, they complain that the Ontario RCMP continued to intercept conversations until the expiry of the Quebec Immigration Authorization in late September.

[46] The trial judge ruled that she did not need to address the legal submissions advanced in support of that argument, since there was no factual foundation for it. She made findings of fact to the effect that the investigation was multi-faceted and, while the bid-rigging facet of the investigation was virtually complete by the end of August, the immigration fraud facet of the investigation was still in its early stages. There was evidence before the trial judge upon which she could make the above findings of fact. We see no basis upon which to interfere with those findings.

[47] In the result, we conclude that there was no breach of s. 8 of the Charter, and that the wiretap evidence challenged by the appellants was properly admitted.

[48] In the event that we are in error in our conclusion that there was no Charter breach, we would still admit the impugned evidence on the basis that its admission would not bring the administration of justice into disrepute under s. 24(2) of the Charter. The Quebec Immigration Authorization and its supporting affidavit, which are at the centre of the appellants’ attack, were fully disclosed to the Ontario judges who granted the Ontario authorizations. In our view, the police acted in good faith in the belief that the wiretaps they executed were obtained pursuant to valid authorizations.

THE CO-CONSPIRATORS’ HEARSAY DECLARATIONS

[49] The appellant, Kullman, argues that the trial judge erred in admitting certain hearsay statements of Chang as evidence to prove Kullman’s membership in the conspiracy. In admitting the evidence, the trial judge relied on the co-conspirators’ declarations exception to the hearsay rule[1] but did not determine whether the hearsay met the two requirements of the “principled approach” to the admission of hearsay: necessity and reliability.

[50] The essence of this ground of appeal, therefore, has to do with the relationship between the traditional co-conspirators’ exception to the hearsay rule, the current approach to which was established by the Supreme Court of Canada in R. v. Carter, [1982] 1 S.C.R. 938, and the more recently-developed principled approach to the admission of hearsay evidence.

[51] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, the Supreme Court signalled that the traditional hearsay exceptions would need to be re-evaluated having regard to the principled approach to the admission of hearsay. In this appeal it is therefore necessary to determine first whether the co-conspirators’ rule comes within the scope of the re-evaluation requirement discussed in Starr, and if so, whether the Carter approach survives that re-evaluation.

[52] We have divided our analysis of this ground of appeal into the following six sections:

a) The co-conspirators’ exception

b) The principled approach to hearsay evidence

c) Does Starr apply to the co-conspirators’ exception?

d) The re-evaluation exercise required by Starr

e) The Carter regime post-Starr

f) Application to this case

(a) The co-conspirators’ exception

[53] The co-conspirators’ exception to the hearsay rule allows the acts and declarations of an accused’s alleged co-conspirators, done or made in furtherance of the conspiracy, to be adduced as evidence against the accused.[2] As noted above, the current approach to the application of this exception was established in Carter, supra. The Carter approach prescribes three steps to be followed before the trier of fact is permitted to consider such acts or declarations as evidence against the accused. As restated by McIntyre J. in R. v. Barrow, [1987] 2 S.C.R. 694 at para. 73, those steps are as follows:

1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.

2. If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy.

3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.

[54] This model is the result of a gradual refinement of the law over time in response to certain practical difficulties inherent in the application of the co-conspirators’ exception. Those difficulties can best be understood by tracing the exception back to its most often-cited rationale.

[55] Historically, the rule allowing for the admissibility against an accused of acts or declarations of alleged co-conspirators was commonly grounded in principles relating to the admissibility of admissions and agency. Out-of-court admissions by a party have traditionally been admissible against that party. Admissions by others having a relationship to a party have also long been admissible against that party in certain circumstances: see J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2d ed., (Markham, ON: Butterworths, 1999) at 298 ff. In cases of conspiracy, specifically, it was accepted that each party to the conspiracy implicitly authorized the others to act and speak on his or her behalf in furtherance of the conspiracy; acts and declarations of one party could therefore be admitted as evidence against the others: see R. v. Blake and Tye (1844), 6 Q.B. 126 at 135; R. v. Connolly and McGreevy (1894), 1 C.C.C. 468 at 491 (Ont. H.C.); R. v. Baker and Sowash (1925), [1926] S.C.R. 92 at 103-104.[3]

[56] A preliminary condition of admissibility for co-conspirators’ declarations against an accused, then, was that the declarations be made in furtherance of a conspiracy in which the accused was a member. This requirement presented a practical problem for the Crown, in that in order to take advantage of the rule admitting a co-conspirator’s declaration, somehow it had to demonstrate through other evidence that the conspiracy existed and that the accused was a member of it: R. v. Savard and Lizotte, [1946] S.C.R. 20 at 29, per Taschereau J.

[57] It was established early on as a logistical matter, however, that a trial judge may admit evidence of the acts and declarations of alleged co-conspirators before the conspiracy itself has been proved: Ford v. Elliot (1849), 4 Ex. 77 at 81, 154 E.R. 1132; R. v. Paradis, [1934] S.C.R. 165 at 170; R. v. Koufis, [1941] S.C.R. 481 at 488-89, per Taschereau J. Indeed, it was recognized that in order to establish the conspiracy it would often be necessary to rely on the cumulative effect of the evidence of isolated acts and declarations of alleged co-conspirators: Ford, supra; Paradis, supra. The trier of fact was to keep in mind, however, that where, at the end of the trial, the evidence directly admissible against the accused was insufficient to establish his or her membership in the conspiracy, the acts and declarations of co-conspirators could not be considered as evidence against the accused: R. v. Benning, [1947] O.R. 362 (C.A.); R. v. Bird, [1969] 1 O.R. 268 (C.A.).

[58] Over time, the courts developed a structured approach to handling this type of evidence that permitted a court to hear the evidence of the acts and declarations of an alleged co-conspirator, but to use that evidence against a particular accused only if there was sufficient evidence linking that accused to the conspiracy. The evolution of the law in this area culminated with the Supreme Court of Canada’s decision in Carter. The process set out in that case for handling this type of evidence has remained intact since that time.

[59] In Carter, the court divided the decision-making process in a conspiracy case according to two factual elements, each of which must be proved beyond a reasonable doubt to support a conviction; the first is that the alleged conspiracy existed and the second, that the accused was a member of it. The second step, proof of membership, is subdivided into steps two and three outlined in paragraph 53 above. Under step two, the trier of fact must be satisfied on a balance of probabilities on evidence directly admissible against an accused that the accused was a member of the alleged conspiracy. Only after the trier of fact is so satisfied can the acts and declarations of an alleged co-conspirator be considered under step 3, and then only if those acts or declarations were made in furtherance of the conspiracy. With this evidence, it is then for the trier of fact to determine whether the accused’s membership in the conspiracy that the trier of fact has found to have existed under step one has been established beyond a reasonable doubt.

[60] Significantly, in Carter, the Supreme Court of Canada directed that it is the trier of fact who determines if there is sufficient evidence directly linking the accused to the conspiracy before the hearsay evidence may be considered. The court rejected an approach in which the trial judge would make this determination in a voir dire and then submit admissible hearsay evidence to the trier of fact on an equal footing with the direct evidence. The court reasoned that there would be less danger that the trier of fact would fail to grasp the need for independent evidence to connect an accused to the conspiracy if the trier of fact must go through the exercise of assessing the sufficiency of the independent evidence linking the accused to the conspiracy.

[61] The Carter approach was subsequently tested and confirmed by the Supreme Court in Barrow, supra. Most recently, the co-conspirators’ exception was discussed by the Supreme Court in R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595. Because the judgment in Starr, supra, was released only the week before the hearing in Sutton, the effect of Starr on the Carter approach was neither argued nor considered by the court in Sutton. Until now, the effect of Starr on the co-conspirators’ exception has not been considered by an appellate court.

(b) The principled approach to hearsay evidence

[62] In Starr, the Supreme Court of Canada held that the traditional categorical exceptions to the general exclusionary rule for hearsay are to be interpreted in a manner consistent with the principled approach to determining the admissibility of hearsay evidence. The principled approach allows for hearsay evidence to be admitted where it meets the criteria of necessity and reliability.

[63] The principled approach was originally a response to the constraints imposed by the rule limiting the admissibility of hearsay to evidence that fell within one of the traditional exceptions. The genesis of the approach was described by McLachlin J. (as she then was) in R. v. Khan, [1990] 2 S.C.R. 531 at para. 18:

The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations. While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law. This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions.

[64] In Khan, the court was called upon to decide whether a mother should be permitted to testify about what her three-year-old daughter told her concerning a sexual assault by a doctor. The Supreme Court of Canada found that the child’s statement to her mother did not fall within any of the established exceptions to the hearsay rule. McLachlin J. reiterated the assertion made in the earlier case of Ares v. Venner, [1970] S.C.R. 608, that the law of hearsay was open to reform by the court to accommodate new social circumstances. She went on to note that the principle underlying the judicial exceptions to the exclusion of hearsay boiled down to the general requirements of necessity and reliability. Assessing the child’s statement to her mother against those requirements, McLachlin J. concluded that the statement was necessary because the child was too young to testify. She also concluded that the statement was reliable because the child had no motive to falsify her story, which emerged naturally and without prompting, and because the child could not be expected to have knowledge of the sexual act she described. The hearsay statement of the child was, therefore, admissible.

[65] This approach was reinforced in R. v. Smith, [1992] 2 S.C.R. 915, where the Supreme Court ruled that two of three phone calls made by a deceased shortly before her death were admissible, even though the statements did not come within a traditional exception to the hearsay rule. Lamer C.J.C. held at para. 32 that Khan had “signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity”.

[66] In R. v. K.G.B., [1993] 1 S.C.R. 740, the court made use of the principled approach to admit a prior inconsistent statement of a witness for the purpose of proving the truth of its contents. Following Khan and Smith, the court ruled that evidence of prior inconsistent statements of a witness should be admissible on a principled basis. On the question of reliability, Lamer C.J.C. set out a number of considerations that would provide sufficient circumstantial guarantees of trustworthiness for such statements. As for the requisite necessity, Lamer C.J.C. indicated that it may arise not only in the case of an unavailable witness, but also from the inability to elicit evidence of the same value from an available but now recanting witness.

[67] Once the principled approach was established, the question inevitably arose as to the impact it had, if any, on the traditional exceptions themselves. The Court had determined in Khan, Smith and K.G.B. that evidence that did not fit into a traditional exception could be admitted if it met the requirements of the principled approach. In Starr, the Court was asked whether the inverse was also true: could evidence that would normally be admissible because it fit within a traditional exception still be admissible if it did not meet the requirements of necessity and reliability?

[68] Iacobucci J., writing for the majority, answered the question decisively, concluding at para. 155 that “in the event of a conflict between the two, it is the principled approach that must prevail. The governing principles for hearsay admissibility must be reliability and necessity.” Hearsay that does not meet the criteria of reliability and necessity is not admissible even if it comes within one of the established exceptions to the hearsay rule.

[69] In reaching that conclusion, Iacobucci J. noted at para. 193 that, in Khan, the Court had declined to simply modify the spontaneous declarations exception to include all statements made by children to others regarding sexual abuse within a set time after the alleged incident. To do so might have automatically allowed the admission of some evidence that was either unreliable or unnecessary. He noted that it made little sense to permit the exceptions in their traditional form to have that result.

[70] It was therefore necessary, Iacobucci J. concluded, to rationalize the existing exceptions to the requirements of reliability and necessity. Such a rationalization was important in order to guarantee trial fairness and to preserve the intellectual coherence of the law of hearsay. Both would be compromised by the admission of unreliable or unnecessary evidence simply because it fell into an established exception.

[71] Iacobucci J. cautioned, however, that the complete abolition of the exceptions was not the answer. The existing exceptions, he emphasized, serve a useful purpose. First, he noted, they bring certainty and predictability to the law of hearsay. Second, they serve an explanatory or educative function: they illustrate the “peculiar factors that make it desirable, or undesirable, to admit a particular form of out-of-court statement” (para. 204). Iacobucci J. noted that since most of the exceptions are themselves rooted in the principles of reliability and necessity, they are likely to be a strong indicator that evidence falling within them meets those requirements. Further, the exceptions have the added benefit of being fact-specific and contextually sensitive. “Properly modified to conform to the principled approach,” Iacobucci J. explained at para. 205, “the exceptions are practical manifestations of the principled approach in concrete and meaningful form”. Finally, the traditional exceptions are informative about the historical and contemporary rationale for admitting certain forms of hearsay.

[72] Because of the important functions served by the traditional hearsay exceptions, Iacobucci J. said at para. 207 that the goal is “to seek to derive the benefits of certainty, efficiency and guidance that the exceptions offer, while adding the benefits of fairness and logic that the principled approach provides. The task is to rid the exceptions of their arbitrary aspects, in order to avoid admitting hearsay evidence that should be excluded.”

[73] In Starr, the Court carried out this rationalization exercise in respect of the “state of mind” or “present intentions” exception. Under that exception, statements of intent or of other mental states may be admitted for the truth of their contents, or to support reasonable inferences as to what the declarant subsequently did. Iacobucci J. considered Wigmore’s argument that the exception also includes a requirement that the statement “be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion”. While acknowledging that there was some debate as to whether such a requirement had ever been adopted in Canadian jurisprudence, Iacobucci J. held that the principled approach (specifically, the reliability component) demanded that the present intentions exception incorporate the requirement from that point forward.

[74] Iacobucci J. offered that in revisiting the hearsay exceptions in future cases, courts should bear in mind the paramountcy of the principled approach. He noted that evidence falling within a traditional exception is presumptively admissible, as the exceptions typically have an inherent reliability component. He reiterated at para. 213, however, that, in the case of conflict, the principled approach must take precedence: “hearsay evidence may only be admitted if it is necessary and reliable, and the traditional exceptions should be interpreted in a manner consistent with this requirement.”

[75] Iacobucci J. also said that in rare cases, even evidence that falls within an otherwise valid exception might still not meet the requirements of necessity and reliability. In such a case, the evidence would have to be excluded, but the onus would be on the party challenging the admissibility of the evidence on that basis to show that it should not be admitted.

[76] Finally, Iacobucci J. pointed out that it is important when examining the reliability of a statement under the principled approach to distinguish between threshold and ultimate reliability. Threshold reliability is relevant to admissibility and is concerned with whether the circumstances surrounding the statement provide circumstantial guarantees of trustworthiness. It is not concerned with whether the statement is true. Ultimate reliability is a matter to be determined by the trier of fact. To this, he added at para. 217 the observation that at the admissibility stage “I would not consider the presence of corroborating or conflicting evidence”.

(d) Does Starr apply to the co-conspirators’ exception?

[77] The first question that arises is whether the co-conspirators’ exception needs to be re-evaluated at all in light of the principled approach. Does the direction in Starr to revisit the traditional hearsay exceptions apply to the rule allowing for the admissibility of co-conspirators’ declarations?

[78] The respondent argues that it is unnecessary to measure the co-conspirators’ rule against the Starr approach to hearsay exceptions, as the rule is not hearsay based; rather, it is premised on admission-agency principles. As such, the rule, even though it is commonly called a hearsay exception, should not be treated as a hearsay exception. Accordingly, the respondent contends that the principled approach to the admission or exclusion of hearsay should play no part in determining whether a declaration of a co-conspirator may be used as evidence to link an accused to a conspiracy.

[79] We do not accept that argument. Clearly, evidence that becomes admissible under the Carter approach is by definition hearsay. Hearsay is a statement, other than one made by a declarant while testifying at trial, offered to prove the truth of the matter asserted. Hearsay is characterized by the use to which an out-of-court statement is put, namely, to prove the truth of its contents: see Smith, supra.

[80] The declarations of alleged co-conspirators that become admissible under the Carter test are made out of court and are introduced for the purpose of providing evidence that an accused was a member of the conspiracy charged. Once a declaration is admitted, the trier of fact is entitled to use what was said in the co-conspirator’s out-of-court statement as affirmative evidence of the accused’s membership in the conspiracy, that is, as proof of the truth of the contents of the statement.

[81] Often a declaration of a co-conspirator introduced through the Carter process will be admissible in the trial for purposes other than showing membership of a non-declarant accused in the conspiracy. For example, declarations of an alleged co-conspirator will be admissible against the declarant, or they also may be admissible to show background or context. However, the fact that a declaration that comes within the Carter regime is admissible for another purpose does not change the fact that the statement is hearsay against an accused, who was not present when the out-of-court statement was made.

[82] There is no question that the Carter process and its counterparts in other jurisdictions were developed historically on the basis of principles not relating to hearsay at all. As noted above, the rationale for the rule in Canada was grounded in principles governing admissions by party litigants and their agents.

[83] As to the admissibility of admissions by a party, Sopinka J. in R. v. Evans, [1993] 3 S.C.R. 653 said at p. 664:

[I]t is open to dispute whether [an admission] is hearsay at all … [I]ts admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements.

[84] The co-conspirators’ rule is based on the notion that the declarant co-conspirator who speaks in furtherance of a conspiracy to which the accused is shown to be a party should be considered to speak as an agent of the accused. The combination of the principles relating to admissions and agency leads to admissibility.

[85] However, the fact that the co-conspirators’ rule is grounded in those principles does not alter the fact that a statement that becomes admissible under the Carter process is hearsay and concerns about unreliability are very real. Indeed, the dangers attached to the use of hearsay that give rise to the general exclusionary rule are all present in the case of a statement admitted under the Carter process. The statement is not made under oath, is not subject to contemporaneous cross-examination, and the trier of fact has no opportunity to observe the declarant at the time the statement was made.

[86] The question, then, is whether the historical basis for the development of the co-conspirators’ rule ought to shield it from the need to conform to the principled approach to the admission of hearsay. In our view, the message from the Supreme Court in Starr is clear: if the hearsay dangers are present, then the evidence must conform to the principled approach – particularly the requirement for reliability. The concern about the admission of unreliable evidence with the resulting impact on trial fairness must take priority.

[87] In Starr, the court repeatedly emphasized that a fundamental concern with reliability lies at the heart of the hearsay rule: “It would compromise trial fairness, and raise the spectre of wrongful convictions, if the Crown is allowed to introduce unreliable hearsay …” (para. 200). The court pointed out, with obvious approval, that the most recent definitions of hearsay are focussed on the reliability concerns underlying the exclusionary rule. The central concern revolves around the inability to test the reliability of the declarant’s assertions and the possible consequential effect on trial fairness.

[88] All of those concerns arise in the case of co-conspirators’ declarations that come through the Carter process. As a result, we are satisfied that the re-evaluation exercise discussed by the Supreme Court in Starr should extend to Carter-type declarations, regardless of the fact that the Carter process derives from principles not relating to the admission of hearsay.

[89] Consistent with our conclusion, we note that, for more than twenty years, the Supreme Court of Canada has consistently recognized the admission of evidence through the Carter process to be an exception to the hearsay rule. In Carter, McIntyre J. made it clear that the declarations in issue were hearsay and he described the admission of such declarations into evidence as an exception to the hearsay rule.

[90] When reiterating the process in Barrow, supra, McIntyre J., speaking for the court, again described it as the application of an exception to the hearsay rule. Finally, in Starr itself, Iacobucci J. specifically referred to the co-conspirators’ rule as an example of an exception to the hearsay rule.

(e) The re-evaluation exercise required by Starr

[91] The Supreme Court of Canada’s decision in Starr makes it clear that the principled approach to the admission or exclusion of hearsay evidence takes precedence over the traditional exceptions to the hearsay rule. The result is that the traditional exceptions need to be re-evaluated. They are to be maintained only if they can be justified on the basis of the governing principles of necessity and reliability. If not, they must be modified to conform with those overriding requirements, or discarded. In carrying out the re-evaluation exercise, it is important to bear in mind that even where a traditional exception is maintained, it will no longer be finally determinative of admissibility. Hearsay that comes within an accepted exception is only presumptively admissible for, in the end, the requirements that the evidence be necessary and reliable must govern the issue of admissibility.

[92] The decision in Starr expands the role of the court in excluding evidence that comes within a hearsay exception. Before Starr, evidence that came within an exception was admissible subject only to the overriding discretion of a court to exclude evidence where its prejudicial effect exceeded its probative value. Following Starr, a court is required to exclude evidence that comes within an exception if the party against whom the evidence is offered can rebut the presumption of admissibility by showing that the evidence does not meet the requirements of necessity or reliability.

[93] The pre-Starr approach had many advantages. The way in which the exceptions would be applied was predictable and parties approached litigation with a good deal of certainty about what hearsay would be admitted. In addition, the expenditure of court time and judicial resources needed to consider admissibility issues was minimized because the courts were applying well-established and well-understood rules.

[94] In requiring a re-evaluation of the hearsay exceptions in Starr, the Supreme Court of Canada was quick to call for caution so that the advantages that flow from the use of the traditional exceptions are preserved to the extent possible and to ensure that the wisdom and the experience that underlie those exceptions is not lost under the new regime. Maintaining hearsay exceptions that are justified on the basis of necessity and reliability, and that will therefore provide presumptive admissibility, should go some distance to ameliorating the concerns that would arise if all issues of hearsay admissibility were simply weighed against the somewhat vague criteria of necessity and reliability. Indeed, if the existing exceptions are not maintained where justified, the courts will inevitably develop precedents for admitting hearsay based on the necessity and reliability criteria. Those precedents, in time, would become established rules – new hearsay exceptions. Accordingly, maintaining the existing exceptions, where justified, is a sensible way to shortcut this process.

[95] The Supreme Court in Starr signalled that it will only be “in some rare cases” that hearsay coming within an accepted exception will not pass muster and must, therefore, be excluded. Although the possibility that hearsay that fits within an exception after Starr may still be excluded brings with it the prospect of the need for a voir dire to canvass the issues of necessity and reliability, the presumption that flows from coming within an exception should limit the number of situations in which a voir dire is required and also limit the scope and complexity of the voir dire inquiry.

[96] With that background, we turn then to the nature of the exercise of re-evaluating the traditional hearsay exceptions that must be carried out as a result of Starr. Bearing in mind that the legal effect of maintaining a hearsay exception is that it creates only presumptive, not absolute, admissibility, we are of the view that the question to be asked is whether as a general rule, hearsay that comes within an exception meets the necessity and reliability requirements. If so, the exception should be maintained. Put another way, if a traditional exception is maintained it should be the unusual or exceptional situation only, in which evidence that comes within the exception would be excluded because of failure to satisfy the necessity and reliability criteria.

[97] In the course of the re-evaluation exercise, it may be necessary to consider whether a traditional exception needs to be modified in order to be justified under the principled approach. As pointed out above, in Starr, Iacobucci J. considered the present intentions exception and determined that, in future, the exception should only apply when there are no suspicious circumstances surrounding the making of the statement. The parameters of some traditional exceptions may evolve as courts are required to consider specific fact situations in light of the principled approach.

[98] If, however, it cannot be said that as a general rule evidence that comes within a traditional exception, with modification if necessary, satisfies the principled approach, then there is no further utility in maintaining the exception and it would be unfair to create a legal presumption of admissibility arising from the continued use of the exception.

(f) The Carter regime post-Starr

[99] We will examine the co-conspirators’ rule in Carter against the two requirements, necessity and reliability. Before doing so, we reiterate that some declarations that are screened under Carter may be admissible for purposes other than proving the particular accused’s membership in the conspiracy. Our comments are directed solely at the use of the evidence for the purpose permitted by the Carter process.

[100] We also point out that the determination of whether declarations may be used by a trier of fact in accordance with Carter is made during the final decision-making stage of a trial. The statements are provisionally admitted into the record as a matter of convenience in order that the trier of fact can make the necessary determination about their ultimate use.

[101] The evaluation of the Carter approach against the two requirements of necessity and reliability can be carried out by asking – if the trier of fact concludes that a declaration of an alleged co-conspirator may be used against an accused as a result of the Carter process, does the declaration as a general rule meet the principled requirements of necessity and threshold reliability? In other words, does compliance with Carter bring with it presumptive compliance with the two requirements?

(i) Necessity

[102] The co-conspirators’ rule clearly meets the requirement of necessity in cases where the declarant is not available to testify. In some cases, a declarant may be unavailable because he or she cannot be located or because of other physical reasons such as death. In cases like the present appeal, the declarant may be unavailable to testify because he is a co-accused and cannot be compelled to give evidence by either the Crown or the accused.

[103] When a declarant is unavailable to testify because he or she is a co-accused, it is not an answer for an accused against whom the evidence is offered to say that the Crown could have avoided the dilemma by charging the declarant separately. The Crown has a discretion to proceed against alleged co-conspirators jointly. In most cases, there are compelling reasons to do so, not the least of which is the efficient use of judicial resources. It is well-established that the Crown’s discretion to proceed against co-accused jointly deserves considerable deference and the Crown should not be restricted in the exercise of that discretion by a concern about the admissibility of co-conspirators’ declarations.

[104] We recognize that an earlier line of cases resulted in the proposition that in the case of declarations against penal or pecuniary interest, a declarant who elects not to testify because he or she is a co-accused cannot be considered unavailable for the purpose of satisfying the necessity requirement inherent in that exception: see R. v. Agawa and Mallet (1975), 11 O.R. (2d) 176 at 189 (C.A.); R. v. Demeter (1977), [1978] 1 S.C.R 538 at 544; R. v. O’Brien (1977), [1978] 1 S.C.R. 591 at 599. Leaving aside the question of whether the effect of that proposition was confined to that particular exception, we conclude that under the fresh approach to the admissibility of hearsay evidence developed later in Khan, Smith and K.G.B., a co-conspirator’s declaration may satisfy the necessity requirement where the declarant is a co-accused who does not testify.

[105] We reach that conclusion because under the principled approach, necessity can be grounded in more than just the unavailability of the declarant. In Smith, Lamer C.J.C. held at pp. 933-934 that “the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a number of situations.” He then cited Wigmore’s suggestion that the categories of necessity should include not only instances where the declarant is unavailable for the purpose of testing through cross-examination, but also situations where “we cannot expect… to get evidence of the same value from the same or other sources.” In K.G.B., Lamer C.J.C. reiterated this proposition, and noted at p. 798 that the “precise limits of the necessity criterion remain to be established in the context of specific cases”. In our view, in the case of co-conspirators’ declarations, necessity will arise from the combined effect of the non-compellability of a co-accused declarant, the undesirability of trying alleged co-conspirators separately, and the evidentiary value of contemporaneous declarations made in furtherance of an alleged conspiracy.

[106] Therefore, in a case where two accused charged with the same conspiracy are jointly tried and one of them is a declarant of hearsay statements, implicating the other in the conspiracy, the necessity requirement for the admission of hearsay evidence, in our view, has been met.

[107] The more difficult question arises in the situation where a co-conspirator declarant is available to testify. The respondent argues that the evidentiary value of a declaration of a co-conspirator made in furtherance of the conspiracy cannot be duplicated by viva voce testimony of the declarant. It is superior evidence that is otherwise unavailable to the trier of fact and, therefore, should always meet the necessity requirement for the admission of hearsay.

[108] The contrary argument is that if the declarant is available, the Crown should at least start by calling the declarant. If the declarant as a witness recants or gives evidence that is not consistent with the statement that the Crown seeks to have admitted, then the Crown can seek to confront the witness with the earlier statement either under s. 9 of the Canada Evidence Act, R.S.C. 1985, c. C-5, or by having the witness declared adverse. Depending on how the confrontation plays out, the prior statement may then become admissible for the truth of its contents under the principles laid down in K.G.B.

[109] An intermediate position would be to permit the Crown to introduce the statement because of its unique evidentiary value and then to have the Crown make the witness available for cross-examination by the defence on matters relating to the making of the statement in issue.

[110] This appeal does not raise the issue of an available declarant (the declarant Chang was tried jointly with Kullman and did not give evidence). This court did not have full argument on the issue of whether the necessity requirement is met when the declarant is available and we will therefore leave the resolution of that question to another case.

(ii) Reliability

[111] The second criterion against which the co-conspirators’ exception must be measured is whether, as a general rule, the process in Carter will result in the use of hearsay that meets the threshold of reliability, that is, evidence about which there are sufficient guarantees of trustworthiness to warrant presumptive admissibility. The question of ultimate reliability under both the Carter process and the principled approach is a matter for the trier of fact.

[112] In our view, evidence admitted under the Carter process meets this requirement. We start by noting that the co-conspirators’ rule is a long-recognized and well-entrenched feature of criminal conspiracy trials. The rule is steeped in common law history and similar approaches have been a fundamental part of the law of evidence in Canada, the United States, Great Britain, Australia and New Zealand for many years.

[113] The broad acceptance of the rule, of course, cannot validate it under the principled approach. However, it can safely be asserted that for generations courts have proceeded on the basis that hearsay statements of co-conspirators made in furtherance of a conspiracy can be used as affirmative evidence that an accused is a member of the conspiracy. The significance of the history of the rule is simply that one should start the re-evaluation exercise with respect for the experience and wisdom of the ages. The co-conspirators’ rule was no doubt developed and applied with a view to assisting the truth-seeking process and to achieving fair and just results in criminal conspiracy cases. Implicit in the rule is the assumption that it is safe to permit a trier of fact to use hearsay that comes within the three-step Carter process. One should discard a rule that has achieved such broad acceptance only with reluctance.

[114] The Supreme Court in Starr refers at para. 215 to the test for threshold reliability as being “circumstantial guarantees of trustworthiness”. In the case of most hearsay exceptions, the guarantees of trustworthiness are found in the circumstances in which the statements were made. As we point out below, in the case of the co-conspirators’ exception, the guarantees of trustworthiness come from both the circumstances in which the declarations are made and the use of the Carter approach. Because of that, we have recast the test for threshold reliability by simply referring to guarantees of trustworthiness.

[115] There are several safeguards against the admission of unreliable evidence found in the Carter approach to co-conspirators’ declarations. The cumulative effect of the Carter requirements provides safeguards against the dangers traditionally associated with hearsay evidence and, in our view, provides sufficient guarantees of trustworthiness to permit the use of hearsay that satisfies those requirements.

[116] The first requirement of the Carter approach is that the trier of fact must be satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed. Although not a reliability-enhancing requirement itself, this is the web that connects the members. This step points to the commonality of interest among those who may be shown to be connected to the common unlawful object.

[117] The second requirement is that it be shown on a balance of probabilities, on the basis of evidence that is directly admissible against the accused, that the accused was a member of the conspiracy found to exist under step one. Notably, the corroborative value of the direct evidence requirement goes beyond the mere fact that it is evidence that supports what is asserted in the hearsay statement. It also lends itself to reasoning based on the unlikelihood of coincidence; the unlikelihood of the coincidence that the direct evidence incorrectly points to the accused and that the statement of the co-conspirator also incorrectly points to the accused becomes a circumstance of some probative force.

[118] We recognize that in Starr, the court at para. 217 said that when determining threshold reliability, a court should not consider the presence of corroborating evidence. In relying on the consistency between the finding in step two of the Carter approach and the hearsay statement as an indicium of reliability, we are to some extent doing just that. It is significant, however, that the kind of probability reasoning based on the unlikelihood of coincidence to which we attach importance does not depend so much on the truth of the hearsay as on the fact that it was said. Further, under the Carter approach, the comparator against which the hearsay is measured is more than mere corroborating evidence. It is a finding on a balance of probabilities based on independent evidence that the accused is a member of the conspiracy.

[119] We also note that the statement in Starr that a court should not consider corroborating evidence does not appear to be of universal application. In R. v. F.J.U., [1995] 3 S.C.R. 794 at paras. 40-45, Lamer C.J.C. for the majority opined that a court, in some circumstances, when considering the admissibility of prior inconsistent statements, may look to the similarity between the statements of two declarants as an indicator of reliability.

[120] The third requirement in Carter provides a further safeguard against the use of unreliable hearsay. Assuming the hurdles in steps one and two are cleared, the trier of fact may rely on hearsay declarations, but importantly only if they are made in furtherance of the conspiracy. This is critical. It is not enough that the hearsay words or acts pertain to the conspiracy. They must be found to further the specific unlawful object which has been found to exist beyond a reasonable doubt under step one and to which the direct evidence links the accused under step two.

[121] The rule does not permit the trier of fact to consider idle conversation, or narrative description of past events. Rather, the trier may only rely on acts or declarations that further the common interest, which are the very acts and declarations the parties themselves are likely to have relied upon in seeking to achieve the common goal.

[122] Those types of statements have the reliability-enhancing qualities of spontaneity and contemporaneity to the events to which they relate. Other hearsay exceptions recognize that people are more likely to be truthful when speaking spontaneously with less opportunity for contrivance. By way of example, it is presumed, absent circumstances of suspicion, that a statement of future intention refers to what a person intends to do and that a record prepared during the ordinary course of business is likely to be accurate.

[123] Indeed, the “in furtherance” requirement imbues co-conspirators’ declarations with res gestae type qualities. “In furtherance” declarations are the very acts by which the conspiracy is formulated or implemented and are made in the course of the commission of the offence. See, for example, R. v. Pilarinos (2002), 2002 BCSC 855, 2 C.R. (6th) 273 (B.C.S.C.); R. v. Keen, [1999] E.W.J. No. 5578 (C.A. (Crim. Div.)).

[124] These, then, are the safeguards of reliability that flow from the application of the Carter process. The appellant answers by saying that even if the Carter process provides some safeguards, in criminal conspiracies there are commonly circumstances that cast doubt on the reliability of the acts or declarations of members to the conspiracy. The appellant starts by noting that the declarants are criminals, people of unsavoury character who are engaged in illegal activity. Such people are by nature untrustworthy and unreliable. That is no doubt a basis for concern, particularly when such people are testifying. However, the “in furtherance” requirement in step three of the Carter process goes a long way to addressing this concern. That requirement minimizes the motive and opportunity for contrivance. Moreover, the trier of fact, when assessing ultimate reliability, is able to weigh the unsavoury character of the declarant against the context in which the hearsay act or declaration is made. The declarant’s general reputation for truthfulness is usually not considered at the stage of hearsay admissibility. See Starr, supra, at para. 217.

[125] The appellant also argues that, in some circumstances, an alleged co-conspirator has a motive for lying – for example, a seller of drugs may try to impress the purchaser by describing his or her partners in exaggerated terms or even naming someone as a partner who is not connected to the conspiracy at all. We recognize that there may be occasions when the circumstances surrounding the making of a particular statement raise such serious suspicions about its reliability that the court will exclude the evidence despite the fact it may comply with the Carter process. We expect that those situations will be rare. Most often this type of concern goes to the question of ultimate reliability and can be weighed by the trier of fact in making a final assessment about the use to be made of the evidence. We are not persuaded that the number of situations in which circumstances will require the exclusion of evidence admissible under the Carter process is sufficient to warrant discarding the process altogether and, with it, the resulting presumption of admissibility.

[126] The appellant also points out that the admission of hearsay evidence under the Carter process may be determinative of the guilt of the accused by providing the link from a finding of membership in the conspiracy on a balance of probabilities to a finding beyond a reasonable doubt. The importance of the hearsay statements of a co-conspirator, therefore, can be critical to the outcome of the case. For that reason, the appellant argues that extreme care should be exercised before permitting their use.

[127] That is true. However, that is always the case with the admission of any hearsay evidence. A particular piece of evidence may prove to be the final link on the way to a finding of guilt. We note that under the post-Starr regime, co-conspirators’ declarations, like other hearsay exceptions, will have to clear three hurdles before the trier of fact determines to use them towards a finding of guilt. First, a co-conspirators’ declaration will have to meet the Carter requirements with the safeguards present there. In addition, when an accused can point to circumstances in the evidence to rebut the presumption arising from the application of the Carter process, the trial judge will be required to scrutinize the evidence to ensure that it meets the principled approach. Finally, the trier of fact will determine the ultimate reliability of the hearsay before acting upon it.

[128] For the above reasons, we are satisfied that the application of the Carter regime brings with it sufficient guarantees of trustworthiness to warrant its continued use. We are satisfied that as a general rule hearsay that comes within the Carter approach will meet the threshold reliability requirement.

(iii) Conclusion

[129] In summary, we conclude that the co-conspirators’ exception should be maintained, at least for unavailable declarants.

[130] We note that the Carter process leaves the determination whether the co-conspirators’ declarations may be used against an accused to the trier of fact. Given that, in future, evidence that comes within a hearsay exception will still be subject to the principled approach, the question arises whether it should be judges or the triers of fact who test co-conspirators’ declarations against the necessity and reliability criteria when it is necessary to do so. In our view, this task should fall to the judges for two reasons. First, there will be greater consistency in approach if the judges, rather than juries, make these types of decisions. Second, applying the Carter analysis to co-conspirators’ declarations is often a complex task for a jury. Adding to that a further instruction, that in exceptional cases the evidence should be excluded if it does not meet the requirements of necessity and reliability, would be unduly burdensome and confusing. If the trial judge determines that a voir dire is necessary to screen a declaration against the necessity or reliability criteria, the voir dire should be held before the case is left with the trier of fact.

[131] We repeat that a declaration may be admissible for purposes other than its hearsay use against an alleged co-conspirator. When a voir dire is required to screen a declaration against the necessity and reliability requirements, the voir dire will be concerned only with the hearsay use of the declaration against an alleged co-conspirator. The stage of the trial at which such a voir dire is held will be a matter for the trial judge to determine having regard to the circumstances of the particular trial.

[132] We wish to add a few observations of a practical nature. We are concerned that conspiracy trials, many of which are already complicated, may become more so if every time the Crown seeks to introduce co-conspirators’ declarations, the trial judge is required to hold a voir dire to determine if there is compliance with the principled approach. We do not anticipate that will be the case. A voir dire addressing the principled approach should be the exception. It will only be required when an accused is able to point to evidence raising serious and real concerns about reliability emerging from the circumstances in which a declaration was made, which concerns will not be adequately addressed by use of the Carter approach. As a general rule, the presumption that evidence that meets the Carter requirements also meets the principled approach should obviate the need for a voir dire. Moreover, when a court determines that a voir dire is warranted, the voir dire should focus solely on the issue of whether the circumstances emerging from the evidence are sufficient to rebut the presumption that, if the evidence complies with the Carter regime, it will also satisfy the necessity and reliability requirements.

[133] Finally, we again emphasize that the Carter process itself is a reliability-discerning exercise that assists the court in separating declarations that are safe to be considered by the trier of fact from those that are not. Although the overlay of the principled approach on top of the Carter regime has the potential to complicate conspiracy trials, we conclude that maintaining the Carter approach, in most cases, should render the principled approach to co-conspirators’ declarations more efficient and more predictable than would be the case if their admissibility was left to an application of only the necessity and reliability criteria.

(g) Application to this case

[134] In convicting the appellant, Kullman, the trial judge properly applied the three-step process in Carter and then relied upon certain statements of the appellant, Chang, as evidence connecting Kullman to the conspiracy.

[135] First, she found beyond a reasonable doubt that there was a conspiracy with the object of selling visitor’s visas for entry into Canada. She found that this was a continuing conspiracy beginning in September or October 1995 and continuing until January 1996. The core conspiracy involved two potential transactions: the sale of visas in the fall of 1995 for the use by women from Thailand who were to brought into Canada to work as prostitutes, and the sale of visas in December 1995 and January 1996 for the use by businessmen from the Republic of China. Neither set of transactions was completed.

[136] Next, the trial judge found that there was ample direct evidence to establish that Kullman was a member of the conspiracy on a balance of probabilities. Kullman worked as an immigration officer at the airport. In the January 2, 1996 conversation between Kullman and Chang it appeared that Kullman was aware of the impending sale of visas and that he was being consulted about the purchasers’ request to see blank visas. He was adamant about not allowing unsupervised access and insisted that Chang be present so that the purchasers could not copy them. There were indications in that conversation that Kullman ’s involvement went back to the fall of 1995. Kullman had control of the visas, and he was told that the purchasers this time were a new group, implying he was aware of the earlier attempt to sell. Based on that evidence, the trial judge quite reasonably concluded on a balance of probabilities that Kullman was a member of the conspiracy from the fall of 1995 to January 1996.

[137] As to the third step in Carter, the trial judge relied upon a number of statements that Chang, who was clearly shown to be a member of the conspiracy, made to alleged co-conspirators. In October 1995, Chang told the others that the source of the visas was another immigration officer who worked with Chang and who had obtained genuine blank visas when posted overseas. In December, Chang repeatedly referred to his partner, and identified him as “George” and also as someone whose approval he needed in order to show the visas. In January, immediately after Chang spoke to Kullman, he called Chu and, in effect, relayed the substance of what Kullman had told him.

[138] The trial judge correctly found that all of those declarations were made by Chang in furtherance of the conspiracy. She therefore considered them in concluding that Kullman ’s membership in the conspiracy was established beyond a reasonable doubt.

[139] In admitting the hearsay declarations, the trial judge did not weigh them against the criteria of necessity and reliability.

[140] At trial, the defence argued that the Carter process needed to be revised as a result of recent changes in the law relating to the admissibility of hearsay evidence. The trial judge did not have the benefit of the Supreme Court’s decision in Starr. She ruled that the hearsay declarations met the Carter requirements, and that the factors of reliability and necessity played no part in determining if they were admissible. However, she observed that reliability does become a major factor in determining the weight to be given to evidence once admitted.

[141] As we conclude above, there is a presumption that co-conspirators’ declarations that make it through the Carter process meet the requirements of necessity and reliability. The hearsay evidence in this case falls within that category.

[142] In our view, there is nothing in the evidence in this case which could rebut the presumption that the hearsay declarations should have been considered by the trial judge in her role as the trier of the facts. All of the hearsay statements of Chang in issue were made in the course of discussing the sale of visas and appeared to be part of normal conversations that could be expected to take place between individuals contemplating such a venture. Suggestions as to the unreliability of what Chang said to the alleged co-conspirators are based upon speculation, nothing more. There is nothing in those statements, or in the circumstances in which they were made, to raise serious concerns about whether the statements should be considered in determining whether Kullman’s membership in the conspiracy had been established beyond a reasonable doubt. Even if the trial judge had approached this issue in the manner we have discussed in these reasons, this is not a case in which she would have been required to hold a voir dire to canvass the issues of necessity and reliability.

[143] In the result, we are satisfied that the trial judge was entitled to use the declarations of Chang as she did and we do not give effect to this ground of appeal.

DISPOSITION

[144] For the above reasons, we would dismiss the appeals.

RELEASED: “RPA”

“MAR 28 2003”

“Dennis O’Connor A.C.J.O.”

“Robert P. Armstrong J.A.”

“I agree E.A. Cronk J.A.”

[1] For simplicity we often refer to this rule as the “co-conspirators’ exception” or the “co-conspirators’ rule” or, in some instances, by making reference to the Carter case, infra, in which the present form of the rule was established by the Supreme Court of Canada.

[2] The exception applies equally to acts or declarations of a co-conspirator. In this appeal, we are only concerned about declarations, which we refer to interchangeably as declarations, statements or utterances. When discussing the rule we do not always repeat the reference to acts.

[3] The exception applies to all admissions by parties in furtherance of a common design, whether the charge is conspiracy or some other offence. For the sake of simplicity, we will generally refer to the rule in the context of a conspiracy trial only.