COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Caesar, 2016 ONCA 599

DATE: 20160728

DOCKET: C59609

Blair, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tamille Caesar

Appellant

Brian Eberdt, for the appellant

Maria Gaspar, for the respondent

Heard: March 30, 2016

On appeal from the conviction entered on November 26, 2013 and the sentence imposed on March 4, 2014 by Justice Kofi N. Barnes of the Superior Court of Justice, sitting with a jury.

Blair J.A.:

OVERVIEW

[1] The appellant and her boyfriend, Brian Anderson, attended her cousin’s wedding in St. Lucia. When they returned to Canada, each was carrying a substantial quantity of cocaine in their luggage. They were charged jointly with importing cocaine on the Crown’s theory that they were engaged in a joint enterprise involving the total amount of cocaine brought into the country – 3.6 kilograms, with a street value of about $130,000.

[2] Mr. Anderson pled guilty, being careful to limit his acceptance of responsibility to the two kilograms of cocaine found in his suitcase. He was sentenced to five years’ imprisonment less twelve months’ credit for pre-trial custody. The appellant proceeded to trial before a jury. She was convicted and, on the trial judge’s finding that the importation was a joint enterprise and that the jury had rejected her claim that she had been set up by Mr. Anderson, sentenced to six years in prison.

[3] She appeals her conviction on the ground that the trial judge erred in refusing her request “to admit the evidence of Mr. Anderson’s guilty plea” at her trial. As well, she seeks leave to appeal, and if leave is granted, appeals the sentence.

[4] I italicize the words “to admit the evidence of Mr. Anderson’s guilty plea” because therein lies one of the difficulties with the case. It is not clear what “evidence” the appellant seeks to have introduced under that rubric. Is it the evidence of Mr. Anderson’s guilty plea alone? Or is it the evidence of Mr. Anderson’s guilty plea coupled with the fact that his plea was founded on the two kilograms of cocaine in the bag he brought into Canada? These questions give rise to different considerations of admissibility in the circumstances of this case, but they were seemingly conflated at trial and, to some extent, continued to be on appeal. Here, however, appellant’s counsel contends that, at the very least, the evidence of the guilty plea alone should be admitted – something that, in fairness to the trial judge, was never put squarely to him.

[5] For the reasons that follow, I agree that the evidence of Mr. Anderson’s guilty plea alone, as recorded on the back of the original indictment, is admissible and that the appellant should be permitted to tender it. Her defence is that she was simply a blind courier who had been “set up” by Mr. Anderson. On her view of the case, the jurors needed to know “what happened to Mr. Anderson” and that he had taken at least some responsibility, because, in the absence of that information, they could be left with the misleading impression that she alone was responsible.

[6] I would allow the appeal and direct a new trial on that ground alone.

[7] However, I would not give effect to the argument that the appellant should have been permitted to lead evidence of the facts underlying the guilty plea. In my view, the trial judge properly excluded that evidence – absent Mr. Anderson, who was available, being called to testify – on the basis that it was hearsay evidence that did not meet the tests of necessity and reliance in the circumstances.

[8] It follows from the foregoing that it will be unnecessary to deal with the sentence appeal.

FACTUAL BACKGROUND

[9] The appellant and Mr. Anderson returned from the St. Lucia wedding on December 24, 2011. They were selected for secondary screening at the airport by an officer of the Canada Border Services Agency (CBSA). When the agent examined Mr. Anderson’s luggage he discovered 2 kilograms of cocaine secreted in a hidden compartment in the bottom of the bag. Another officer, searching the appellant’s baggage, discovered 1.6 kilograms of cocaine secreted in a similar fashion. Prior to the inspection, the appellant told the CBSA officer the bag was hers, she had packed it herself, and she was aware of all of its contents.

[10] Both the appellant and Mr. Anderson acknowledged that the suitcases were different from those they took with them on leaving Canada. Their explanations varied somewhat in the details but, in substance, they said that their luggage had become water damaged while they were in St. Lucia and had to be replaced. Mr. Anderson said that his bag became wet when he left the sunroof of his car open and that his cousin had given him a new bag. The appellant’s version was that the contents of their luggage had become wet while being transported in a car, that she made arrangements to have their clothes washed and dried at the hotel and gave Mr. Anderson money to purchase two new suitcases for them, which he did and brought the new luggage back to the hotel. In an earlier statement to police, however, she said they had gone together to the market to purchase the suitcases. The appellant admitted that she had personally repacked both of their belongings in the new luggage.

[11] The appellant and Mr. Anderson had been boyfriend and girlfriend on a sporadic basis for a couple of years prior to the trip. When the appellant indicated she was going to her cousin’s wedding in St. Lucia, Mr. Anderson said that he had been planning a similar trip. She agreed to their travelling together because she was four months pregnant at the time and did not want to go alone.

[12] The appellant arranged for, and initially paid for, their flights (Mr. Anderson reimbursed her later for the air fare). They shared the same flight itinerary and their hotel room in St. Lucia (which was paid for by the appellant’s uncle). Upon arrival at Pearson International Airport, their baggage claim tags had been interchanged on their respective suitcases and the baggage claims for both suitcases were attached to the appellant’s boarding pass. They presented themselves to customs as boyfriend and girlfriend travelling together.

Application to Admit Mr. Anderson’s Guilty Plea

[13] The appellant’s defence was that she had no knowledge of the cocaine in the two bags and that she had been set up by Mr. Anderson. She was simply a blind courier.

[14] The appellant testified and, in addition, sought to have the evidence of Mr. Anderson’s guilty plea, and of the facts underlying it, admitted at trial. Defence counsel’s theory was that this evidence was relevant and would be important to the jury’s findings respecting the blind courier defence and, as well, the extent of the appellant’s involvement in the enterprise, if they found she was involved. Because the Crown was proceeding against the appellant on the basis that she was criminally responsible for importing the entire 3.6 kilograms of cocaine, and had placed both pieces of luggage into evidence, the jury needed to know what had happened to Mr. Anderson and that he had pled guilty to importing one of the bags containing two kilograms of the drug. Otherwise, the jury could be left with the impression that it was only the appellant who was responsible and being called upon to pay for the crime and that it was Mr. Anderson, not she, who was the blind courier.

[15] Defence counsel put it this way during his submissions on the admissibility issue:

My friend speaks about inferences and speculation and what the jury may speculate. Well, what is the jury going to speculate when they’re in that jury room, and Mr. Anderson was not in this box? They know nothing about Mr. Anderson but she’s facing a trial in regards to both bags. What are they going to speculate, Your Honour? They’re going to speculate that Mr. Anderson has nothing to do with this case. They know he came into the country with a bag…but he’s not before the court and the Crown has presented evidence that she has imported both bags.

But my friend has put both bags before the court. She is now responsible for both bags. She’s sitting before the court responsible for both bags of cocaine and the jury doesn’t know what happened to Mr. Mr. Anderson. And it’s open for them to say, well, someone’s got to pay the price for these -- for these drugs. Mr. Anderson is not here, I don’t know why, he may have walked, because there’s no further evidence of what happened to Mr. Anderson. Did he go to court? Did he have a bail hearing? We know that Ms. Caesar did. Ms. Caesar is the only one paying for this right now, as far as the jury is concerned.

Both bags were put before them, they have to know what happened to Mr. Anderson because, according to the Crown, she’s responsible for both bags and Mr. Anderson pled guilty to one of those bags. Those are the facts he’s acknowledged.

And this jury and I know the court could charge the jury in a certain fashion. I believe it doesn’t matter what the court says to the jury, they’re going to go into that room and go, where is Mr. Anderson, what happened to him? Why is she left holding the two bags?...

It’s not -- it’s more prejudicial to Ms. Caesar if it doesn’t go before the court and I don’t see it being prejudicial to the Crown’s case for the jury to know that Mr. Anderson was arrested, he pled guilty and accepted responsibility for his bag only. It’ll still be left to the jury at that point to say, okay, fine. Was she in cahoots with Mr. Anderson, is she responsible for her bag or do we accept Ms. Caesar’s evidence that Mr. Anderson is actually responsible for her bag as well? And that’s the question for them to decide.

Ms. Caesar testified. She said that she was set up. Mr. Anderson is responsible for both. Mr. Anderson is not here. His name, other than being arrested, they don’t know what happened to Mr. Anderson. She’s pointed a finger at an individual the jury does not know has accepted responsibility, at least partially, in regards to this case. And with both bags being put into evidence, marked as an exhibit, and being in that jury [room], when they consider their verdict, they’re considering both bags as being in her possession without knowing what happened to Mr. Anderson. [Emphasis added.]

[16] Acknowledging that the evidence was hearsay in nature, defence counsel contended that it was admissible either by way of an agreed statement of facts setting out that Mr. Anderson had “pled guilty and accepted responsibility for his bag”, or by the defence calling the officer in charge of the investigation, who had attended at the time of the guilty plea, to give the same evidence. In a very brief reference, defence counsel pointed out that the original indictment contained the information of the guilty plea and in another passing comment mentioned the transcript of the plea. But defence counsel did not seek to admit the indictment as proof of the guilty plea, nor did he ask that the transcript of the guilty plea proceedings be admitted as proof of the plea and the facts underlying it.

[17] The Crown argued, on the other hand, that the evidence was hearsay in nature and therefore inadmissible unless Mr. Anderson was called to testify, because otherwise the Crown was deprived of the opportunity to cross-examine.

[18] Mr. Anderson was made available to testify at trial (apparently after considerable effort by the Crown, defence counsel, and Court Services personnel, on short notice). After speaking with him, however, defence counsel made what he acknowledged was “a strategic decision not to put him on the stand” because cross-examination would not be limited simply to the fact that Mr. Anderson had pled guilty and what he had pled guilty to. Defence counsel told the trial judge:

[Mr. Anderson is] not on the stand because of his guilty plea and the cross-examination he could face in regards to that, and then we’re going back to square one from the time he left Canada and went to St. Lucia, et cetera.

[19] The trial judge ruled that the evidence was inadmissible.

The Ruling

[20] Although the Crown contested relevance below, trial judge accepted that the evidence was relevant to the defence’s theory of the case. Crown counsel argued that even if Mr. Anderson’s guilty plea and the facts underlying it were relevant, the evidence was hearsay and was only admissible if it met the requirements of the principled exception to the hearsay rule. The Crown submitted that the necessity element of that test was not met because Mr. Anderson was available to testify.

[21] The trial judge ultimately accepted this submission. He considered that there were three potential avenues for admission:

(a) an agreed statement of facts;

(b) Mr. Anderson’s testimony; or

(c) the principled exception to the hearsay rule.

[22] The trial judge rejected the agreed statement option because he could not compel the parties to file such a statement and the parties were unable to agree to do so. He pointed out that Mr. Anderson was available to testify, and that this option was still open to the defence. He then turned his mind to the principled exception to the hearsay rule:

Defence counsel has to establish that this evidence is coming by hearsay on [the] basis of necessity, reliability and certainly if the party … seeking to introduce the evidence satisfies those two requirements, then the judge has the residual discretion to do a probative prejudicial analysis and to exclude the evidence on the basis of the fact that it may be too prejudicial.

[23] The trial judge eliminated the exercise of residual discretion – apparently with counsel’s agreement – on the basis that the proposed evidence was not too prejudicial to the appellant to be admitted. Although he focussed on the issue of “necessity” – noting that “the big issue here is the issue of necessity” – the trial judge ultimately concluded that the “the requirements of necessity and reliability have [not] been met” because Mr. Anderson was alive, was at the courthouse, and was available to testify. In this respect, the opportunity for the Crown to cross-examine was an important trial fairness consideration going to both elements.

[24] On this basis the trial judge ruled that the hearsay evidence of Mr. Anderson’s guilty plea, and the facts underlying it, could not be admitted through another witness.

THE CONVICTION APPEAL

[25] On the conviction appeal, only one issue was pursued in argument: did the trial judge err in ruling that the evidence of Mr. Anderson’s guilty plea to importing one bag containing two kilograms of cocaine was inadmissible?

[26] As noted at the outset of these reasons, however, there are two components to this question: (i) evidence of the guilty plea alone; and (ii) evidence of the guilty plea and of the underlying facts on which it was based. Conflating the two clouds the analysis because different admissibility considerations may apply in each case. The analysis here is complicated by the confusion over what evidence it was, or is, that the appellant seeks to have admitted.

[27] On my review of the record it is apparent that she did not seek at trial to introduce the evidence of the guilty plea alone, through proof of the original indictment or otherwise; she sought to introduce the evidence of the plea plus the facts underlying it – as she put it, to show that Mr. Anderson had “pled guilty and accepted responsibility for his bag”. Appellant’s counsel conceded this in oral argument before us.

[28] On the appeal, however, the appellant adopted a more nuanced approach. While continuing to press for the admission of the broader evidentiary package, appellant’s counsel submitted in the alternative that, at the very minimum, the evidence of Mr. Anderson’s guilty plea itself should have been admitted. I will accordingly approach the analysis by dividing the “evidence of the guilty plea” question into its two components and consider separately whether:

(a) the evidence of Mr. Anderson’s guilty plea alone was admissible through proof of the indictment on which it was recorded; or,

(b) the evidence of Mr. Anderson’s guilty plea together with the evidence of the underlying facts on which it was based, was admissible through proof of the transcript of the guilty plea hearing.

[29] As I shall explain, the answer to the first of these questions is “Yes”, but to the second is “No”.

[30] I would therefore allow the appeal and order a new trial on the basis that the appellant should have been permitted to lead the evidence of Mr. Anderson’s guilty plea alone, through proof of the indictment on which it is recorded (redacted as necessary to eliminate information, such as the sentence imposed, that the jury should not have before it). The evidence of the underlying facts upon which the plea was based is not admissible, however, because proof of the truth of the contents of the transcript of the plea does not fall within any of the exceptions to the hearsay rule on which the appellant now relies, nor does it meet the necessity and reliability criteria required for application of the principled exception to the hearsay rule in these circumstances.

Discussion

[31] In fairness to the trial judge, his ruling was responsive to the double-barrelled nature of the request for admission that was put to him (the guilty plea plus proof of the facts underlying it). Although, as mentioned above, defence counsel made a passing reference to the fact that the details of the guilty plea were contained on the back of the original indictment and to the existence of the transcript of the plea, no attempt was made to have either the indictment or the transcript admitted, no alternative argument was advanced that the guilty plea alone could be admitted, and no argument was made that the evidence was admissible on the basis of any exception to the hearsay rule, apart from the principled exception.

[32] On appeal, the appellant submits that the trial judge erred in moving directly to a principled necessity/reliability analysis of the hearsay issue, without first considering whether the evidence was otherwise admissible based on an existing exception to the hearsay rule, as contemplated by the Supreme Court of Canada in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. Appellant’s counsel puts forward three exceptions upon which he argues that the evidence of the guilty plea or of the guilty plea and its underlying facts were admissible by way of proving the original indictment and/or the transcript of the guilty plea:

(a) as an original court document, upon which the court could take judicial notice (or, to put it more aptly, under the principles relating to the admission of public documents or judicial records);

(b) through s. 23 of the Canada Evidence Act, R.S.C. 1985, c. C-5, as “evidence of any proceeding”; or

(c) under the common law doctrine of exemplifications.

[33] I agree that evidence of the guilty plea alone, as recorded on the original indictment, may be proved at least under the public documents or judicial records category and that, in the circumstances, the appellant ought to have been permitted to prove the fact that Mr. Anderson pled guilty by putting the information on the back of the original indictment to that effect into evidence. However, I am not persuaded that any of the foregoing exceptions, by themselves, render the transcript containing the rolled-up evidence of Mr. Anderson’s guilty plea and the facts underlying it, admissible for the truth of those facts.

The Relevant Principles

[34] I say this because, in my view, the exceptions now relied upon by the appellant are designed primarily to facilitate proof of the court documents and records of proceedings themselves without the need to call the authors or creators of those documents or records to establish their authenticity (proof of authenticity), but they do not automatically render the hearsay contents of such documents or records admissible for the truth of their contents if they are not otherwise admissible for that purpose (proof for purposes of substantive admissibility). Whether the contents of the documents or records are admissible for their truth will depend upon whether it was within the scope of the recorder’s duty to confirm their truth. Here, proof of Mr. Anderson’s guilty plea, as verified on the back of the original indictment, meets the latter test. Proof of the underlying facts on which that plea was based, as reflected in the transcript, does not, however.

[35] I turn to the jurisprudence to illustrate this analysis.

[36] The appellant’s first submission is that the indictment and/or the transcript of the guilty plea proceedings, and their contents are admissible because a court “may take judicial notice of its own process”. While that may be so – see, for example, R. v. Hunt (1986), 18 O.A.C. 78 (C.A.); R v. Bailey 2014 ONSC 5477. [2014] O.J. No. 4420; and Craven v. Smith (1869) L.R. 4 Ex. 146 – the power of the court to look at its own documents and take notice of their contents only takes the inquiry so far. By itself, it does not answer the question whether the contents of the documents or records are admissible for the truth of their contents, and I do not take those authorities to mean that they are in all circumstances.

[37] In determining the answer to the substantive admissibility question, I think it is more helpful, and more accurate, to reframe the inquiry and to examine the admissibility of the indictment and transcript, and their contents, through the prism of the common law principles relating to the admissibility of public documents or records of court proceedings (as Weiler J.A. preferred to call similar records and documents, in R. v. C. (W.B.) (2000), 2000 CanLII 5659 (ON CA), 130 O.A.C. 1 (C.A.), at para. 30). Such records are admissible as public documents without further proof “because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove them”: R. v. P. (A.) (1996), 1996 CanLII 871 (ON CA), 109 C.C.C. (3d) 385 (Ont. C.A.), at p. 390: C. (W.B.), at paras. 30-31.

[38] To be admissible in this sense, the documents or records must meet the four criteria necessary for the admissibility of a public document or judicial record:

(a) the document must have been made by a public official, that is a person on whom a duty had been imposed by the public;

(b) the public official must have made the document in the discharge of a public duty or function;

(c) the document must have been made with the intention that it serve as a permanent record, and

(d) the document must be available for public inspection.

See P.(A.), at p. 390; C. (W.B.), at para. 32.

[39] However, as noted above, the admissibility of the contents of the records for substantive purposes is driven by the scope of the duty of the public or court official making the record in question. If it is the recorder’s duty to validate the truth of the contents, they will be admissible for that purpose (if otherwise relevant), but if it is not within the scope of the recorder’s duty to do so, they will not be. Weiler J.A. explained this principle in C. (W.B.), at paras. 33-34:

Like a public document, the admissibility of a judicial proceeding is limited to the precise scope of the recorder’s duty. Ewart, in Documentary Evidence in Canada, Carswell, 1984, at 153 terms this a strict requirement. He says:

In all cases, it will be necessary to determine the precise scope of the recorder’s duty, since that will delimit the admissibility of the contents of the document he prepared. For example, since duty determines admissibility, baptismal records are admissible to prove the fact, date, and place of the baptism, but any statements therein concerning the age of the child will not be admissible. Similarly death certificates are admissible to prove the fact, time, and place, but not the cause of death.

… The court reporter [has] a duty to transcribe what was said. That is the extent of the admissibility of the transcript. The transcript would not answer the question of whether what was said was true. …

[40] The appeal can be resolved on the application of the foregoing principles, but the appellant seeks to rely as well on two additional avenues of proof: s. 23(1) of the Canada Evidence Act and the common law doctrine of exemplification. I accept that evidence of a court proceeding or record may be given in another proceeding by an exemplification or certified copy of the proceeding or record, under s. 23(1) (provided notice is given), or under the common law doctrine of exemplification (even without notice in appropriate circumstances): C. (W.B.); R. v. Tatomir, 1989 ABCA 233, 69 Alta. L.R. (2d) 305, leave to appeal to the Supreme Court of Canada refused (1990), 53 C.C.C. (3d) ii; Bailey; R. v. John, 2015 ONSC 2040, [2015] O.J. No. 1719. Like the admissibility of public documents and judicial records, however, and absent the recorder’s duty to validate the truth of the contents, these avenues of proof are just that, in my view – procedural mechanisms whereby evidence of the court proceeding or record may be proved, without having to provide proof of the authenticity of the document by calling the court officer or stenographer who made the record. In other words, they provide a shortcut to proof of authenticity. However, they do not render the hearsay content of court proceedings or records admissible for the truth of their contents where they would not otherwise be admissible for that purpose in the circumstances.

[41] This view is confirmed by s. 36 of the Canada Evidence Act:

This Part shall be deemed to be in addition to and not in derogation of any powers of proving documents given by any existing Act, or existing law. [Emphasis added.]

[42] The same theme is reflected in the following observation made by J. Douglas Ewart, Michael Lomer and Jeff Casey, in Documentary Evidence in Canada (Agincourt, ON: Carswell Legal Publications, 1984), at p. 183, with respect to the common law doctrine of exemplification:

At common law, judicial documents must be proved by the production of the original record or an exemplification under the seal of the court to which the record belongs. No notice is required. [Emphasis added.]

[43] The view I take is also confirmed by the manner in which resort to s. 23 of the Canada Evidence Act has been treated in the jurisprudence.

[44] For example, in R. v. Duong (1998), 1996 CanLII 8000 (ON SC), 29 O.R. (3d) 161, where the accused was convicted of being an accessory-after-the-fact to second degree murder, this Court had to consider whether the guilty plea of the principal who committed the crime was admissible against the accused at the accused’s trial. The Court held that it was. The Crown sought to prove the principal’s conviction by way of a certified copy of the indictment recording the plea through s. 23 of the Canada Evidence Act. However, it was only after concluding that the conviction was otherwise substantively admissible against the accused – as some proof that the crime of which he was alleged to have been accessory after the fact, had been committed – that Doherty J.A. turned to consider the method by which the conviction could be proved, namely through resort to s. 23 (para. 47).

[45] R. v. Byrnes, 2012 ONSC 2090, [2012] O.J. No. 1454, is also illustrative. In that case, the accused was charged with the attempted murder of his ex-wife and with breaking and entering her home with intent to commit an indictable offence. The Crown sought to introduce the transcript of a prior family law proceeding between the two, relying on the submission that s. 23 of the Canada Evidence Act provided a statutory exception to the hearsay rule. Drawing on the passage from this Court’s decision in C. (W.B.) referred to above, R.D. Gordon J. declined to admit the evidence on that basis, although he did admit portions that did not infringe the hearsay rule. Responding to the Crown’s statutory exception argument, he said, at para. 15:

I do not necessarily agree. As stated in R. v. W.B.C. 2000 CanLII 5659 (ON CA), [2000] O.J. No. 397, the admissibility of a transcript of a judicial proceeding is limited to the precise scope of the recorder’s duty. In a case such as the one before me, the court reporter’s duty was to transcribe what was said and nothing more. Accordingly, the transcript can be tendered under the Canada Evidence Act as evidence of what was said at the hearing, but not for the purpose of establishing the truth of what was said. Admissibility of the transcript will therefore require a consideration of whether it is relevant, and whether it contains evidence that might otherwise be inadmissible as hearsay. [Emphasis added.]

[46] Gordon J. went on to analyse the purposes for which the statements contained in the transcript were being entered: if not for the truth of their contents, they were admissible (no hearsay issue); if as his own admission, they were admissible against the accused (as was the case in C. (W.B.)); but if for the truth of their contents or for reasons that were otherwise inadmissible, they were not admitted. See also R. v. McDonald, 2013 BCSC 1977, at paras. 66-67.

[47] As the tenor of these decisions indicates, the transcripts of a court proceeding – including the transcript of a guilty plea – may be admissible to prove what was actually said or what actually happened at an earlier proceeding, but they are not rendered admissible for the truth of their contents simply because they are a judicial record or are tendered under s. 23 of the Canada Evidence Act or under the common law doctrine of exemplification. There may be circumstances where they are admissible for the truth of their contents, but they will not be admissible for that purpose unless it was the recorder’s duty to validate the truth of their contents or unless they are otherwise admissible under the principled exception to the hearsay rule and the prejudice of their admission does not outweigh their probative value.

[48] The underlying basis upon which the records in question in the authorities relied on by the appellant, and other authorities, were admitted confirms this view. In C. (W.B.), the accused’s guilty plea as reflected in the transcript of an earlier sexual assault matter was admitted into evidence against him in a subsequent sexual assault trial as an admission against interest and as similar fact evidence, but the transcript would not otherwise have been admissible for the truth of its contents. In Tatomir, the record was a prior driving prohibition order in subsequent proceedings involving a charge of driving while prohibited. It was the duty of the maker of the order to ensure the validity of the prohibition order and its terms. In Bailey and John, the accused faced charges of “failing to comply” (breach of recognizance and breach of probation, respectively), and what the Crown sought to introduce were certified copies of the relevant informations, indictments, bail orders and probation orders. Again, it was the duty of the maker of the court records to ensure the validity of their contents.

[49] There was no issue in any of these cases about whether the evidence contained in the records was substantively admissible. It was. The issue was whether it could be proved on one of the foregoing bases.

[50] In short, where records of judicial proceedings are sought to be admitted into evidence to prove the truth of their contents, two questions must be addressed: (i) do the records meet the criteria for admission without further proof of authenticity through one of the avenues advanced by the appellant; and (ii) if so, are their contents substantively admissible either because it was the recorder’s duty to verify their validity or because they are otherwise admissible through the principled exception, or some other exception, to the hearsay rule?

[51] Here, there is little dispute that the original indictment and the transcript of the guilty plea proceedings could themselves be proved either through the principles relating to the admissibility of public documents/judicial proceedings or through the common law mechanism of exemplification (proof through s. 23 of the Canada Evidence Act is problematic because of the absence of notice). However, as the foregoing review demonstrates, the substantive admissibility of their contents is another matter.

The Principles Applied

[52] Why, then, do I conclude that the evidence of Mr. Anderson’s guilty plea alone, as recorded on the back of the original indictment is admissible to prove the plea and conviction, but the evidence that the plea was based on his having arrived in Canada carrying his own bag with two kilograms of cocaine in it, as recorded in the transcript of the plea, is not admissible to prove that fact? The answer lies in the public documents/judicial records analysis and in considerations of necessity, reliability, trial fairness, and prejudice.

The Guilty Plea Alone

[53] The fact that Mr. Anderson pled guilty is recorded on the back of the original indictment. In terms of the public documents/judicial records analysis, the indictment itself is admissible as a reliable document meeting the test of necessity without further proof of authenticity. It is also admissible for proof of the truth of its contents because it is the duty of the recorder (the judge) to assure the validity of the finding of guilt. As Doherty J.A. observed in Duong, para. 42:

A previous judicial determination of guilt beyond a reasonable doubt, whether based on a plea, or following a full trial is, in my view, sufficiently reliable to warrant its admissibility in a subsequent proceeding as some evidence of the facts essential to the finding of guilt.

[54] The Crown argues that proof of the guilty plea is simply inadmissible, relying for that proposition on such authorities as: R. v. Berry (1957), 1957 CanLII 505 (ON CA), 118 C.C.C. 55 (Ont. C.A.), at p. 60; R. v. P.C., 2015 ONCA 30, 321 C.C.C. (3d) 49, at paras. 44-46; R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, at pp. 18-19; and R. v. MacGregor (1981), 1981 CanLII 3351 (ON CA), 64 C.C.C. (2d) 353 (Ont. C.A.), aff’d [1982] S.C.C.A. No. 246. I agree that these authorities stand for the proposition that the Crown is generally not entitled to lead such evidence. It does not follow that the defence (or even the Crown) may never be entitled to do so, however.

[55] The reason for the general proscription against the Crown tendering such evidence is that the guilty plea of the first co-accused – an admission against his or her own interest only – is just an admission of guilt to the offence charged and that there is some evidence to support the finding, but it is not an admission of the truth of the contents stated in the facts underlying the plea. The first guilty plea is therefore generally irrelevant to the guilt of the second co-accused from that point of view and may be severely prejudicial to that co-accused: Berry, at p. 60; R. v. Vinette, 1974 CanLII 165 (SCC), [1975] 2 S.C.R. 222.

[56] Cases such as Duong demonstrate, however, that such a plea is not always irrelevant,[^1] and an accused is entitled to wide latitude in crafting his or her defence. Different considerations are in play when it is the second co-accused accused (the appellant here) who seeks to enter the guilty plea of the first co-accused – most notably the presumption of innocence and the right to make full answer and defence. The concerns about unfairly trammeling the accused’s fair trial rights that arise when it is the Crown seeking to admit the evidence do not necessarily arise where it is the accused seeking to do so.

[57] For these reasons, I do not accept that the authorities relied upon by the Crown preclude the admission of the guilty plea into evidence on the basis of the public documents/judicial records analysis.

[58] The authorities recognize – as did the trial judge – that the court always retains a discretion to exclude even admissible evidence where its admission would render the trial unfair: see C. (W.B.), at para. 45. However, no considerations of trial fairness or prejudice to the appellant weigh against the admission of the indictment recording the guilty plea here.

[59] The existence of the guilty plea is not contentious nor is it open to competing inferences as to its meaning. Mr. Anderson was arraigned. He pled guilty. This means there is some evidence to support his conviction. That is all.

[60] Even though the plea does not constitute an admission of guilt to the offence charged on which the appellant can rely – it is an admission of guilt against Mr. Anderson’s interest only – and even though the plea does not in law constitute an admission of the truth of the facts underlying the plea for any other purpose (see Berry, at p. 60), the appellant argues that proof of the fact that Mr. Anderson pled guilty and that there is some evidence to support the plea is relevant and important to her case, as outlined above. She submits this evidence supports one of the intermediate inferences necessary to establish that Mr. Anderson used her as a blind courier, namely that he was actually involved in the drug smuggling. In the absence of any explanation as to what happened to Mr. Anderson, she submits, the jury may have been led to exactly the contrary conclusion, namely that she was the perpetrator and he the blind courier.

[61] The relevance of the guilty plea, on the defence theory, is not seriously contested at this stage, and the trial judge accepted it was relevant. Admission of the evidence of the guilty plea is not prejudicial to the Crown or to the defence, a consideration accepted by all concerned. Indeed, on the defence theory, the failure to admit the evidence of the guilty plea would be prejudicial to the defence.

[62] Proof of this by way of the indictment is reliable and trustworthy and, in fact, is probably the best evidence available to establish the guilty plea. It was the duty of the judge to assure the validity of the plea and that there was some evidence to support it. I am satisfied that it was open to the appellant to prove Mr. Anderson’s guilty plea alone as recorded on the back of the original indictment and that she should have been permitted to do so.

[63] The evidence of the guilty plea was admissible on the public documents/judicial records analysis and trial fairness considerations on the part of the appellant favour its admissibility as well.

Proof of the Facts Underlying the Guilty Plea: The Transcript

[64] But the same analysis does not flow in respect of the facts underlying the guilty plea as recorded in the transcript of the plea proceedings. Similar to the indictment, the transcript itself could be proved, for purposes of authenticity, either as a public document or record of judicial proceedings or through the common law mechanism of exemplification. However, the transcript is only admissible to prove what was said, because that is what it was the court reporter’s duty to record; it is not admissible to prove the truth of what was said, because the scope of the duty did not extend to validating the truth of what was said in the circumstances: C. (W.B.), at para. 34; Byrnes, at para. 15.

[65] For this reason, the truth of the facts underlying the guilty plea, as recorded in the transcript, may not be proved under the public documents/judicial records analysis. It follows that, if the underlying facts are to be admitted for that purpose, another avenue of proof must be found.

[66] As I have already explained, neither s. 23 of the Evidence Act nor the common law doctrine of exemplification automatically renders the contents of the tendered documents admissible for substantive purposes when they are not otherwise admissible for those purposes. This inevitably leads us back, then, to the principled exception to the hearsay rule and to considerations of necessity, reliability and trial fairness – an analysis conducted by the trial judge.

[67] In this regard, it is important to keep in mind – as previously noted – that an accused is permitted a wider latitude in introducing evidence than is the Crown. The Supreme Court of Canada recently canvassed the principles relating to the admission of defence evidence in R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at paras. 18-46. Underlining the distinction between evidence led by the Crown and evidence led by the accused, the Court said, at para. 19:

Evidence led by the Crown will be excluded where its prejudicial effects outweigh its probative value. The presumption of the accused’s innocence leads us to strike a different balance where defence-led evidence is concerned. As this Court explained in Seaboyer,[^2] “the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law” … [Citations omitted. Emphasis added.]

[68] The authorities also recognize that courts may take a somewhat more relaxed approach to the necessity/reliability analysis where it is the defence seeking to put forward hearsay evidence and the defence will be prejudiced if the evidence is not admitted. In R. v. Williams (1985), 1985 CanLII 113 (ON CA), 50 O.R. (2d) 321 (C.A.) Martin J.A. commented:

It seems to me that a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist.

[69] This passage was approved by Cory J. in R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701, at p. 854 and by Rosenberg J.A. in R. v. Folland (1999), 1999 CanLII 3684 (ON CA), 132 C.C.C. (3d) 14 (Ont. C.A.), at para. 48.

[70] What I draw from these authorities is that if the defence can point to evidence – even hearsay evidence – that is logically relevant to an allowable defence, and a case can be made for adopting the Williams approach, the defence will be entitled to lead that evidence unless the prejudicial effect of the evidence substantially outweighs its probative value.

[71] Not all relevant evidence is admissible, however, and hearsay evidence is presumptively inadmissible. Inadmissible hearsay does not become admissible hearsay simply because it is proffered by the defence in support of its right to make full answer and defence and because an accused is entitled to the presumption of innocence, in my opinion. The evidence must either fall within one of the recognized exceptions to the hearsay rule or pass the test of the necessity/reliability analysis under the principled exception, taking into account the foregoing reservation regarding the exceptional circumstance where there is some evidence of reliability, in particular, and where rigid adherence to the strict rules of evidence would hinder a fair trial or lead to a miscarriage of justice. If the evidence meets one of these tests, and it is logically relevant to a tenable defence, and its prejudicial effect does not substantially outweigh its probative value, it is admissible.

[72] With these considerations in mind, and returning to the facts underlying Mr. Anderson’s guilty plea, what was said in the transcript regarding the cocaine is this:

Mr. Anderson was arrested for smuggling under the Customs Act and the duffle bag was ultimately found to contain 2.02 kilograms of cocaine.

[73] That is all. However, the appellant seeks to draw from the combination of the guilty plea and the fact on which the plea was based (i.e., that “the duffle bag was ultimately found to contain 2.02 kilograms of cocaine”), an inference enabling her to persuade the jury on this basis that Mr. Anderson “accepted responsibility for his bag”. This is where the admissibility considerations between the facts underlying the plea and the mere fact of the plea disengage.

[74] The fact of the plea is not contentious. However, “accepted responsibility for his bag” is a loaded expression and is far from uncontentious. Does it mean that Mr. Anderson accepted sole responsibility for the two kilograms of cocaine in his bag (a fact that might enhance the appellant’s blind courier/set up defence) or simply that he accepted responsibility for his role in bringing in the cocaine in his bag as part of a joint enterprise (a fact that might enhance the Crown’s case)? These competing inferences cannot properly be resolved by reading the text of the transcript. The best evidence is that of Mr. Anderson himself; the best way to clarify any conflict is through cross-examination on that evidence – a tool taken away from the Crown when the transcript alone is put into evidence.

[75] Fairness considerations on the part of the Crown favour the exclusion of this evidence.

[76] This is precisely the conclusion arrived at by the trial judge in considering the case as put to him, namely on the double-barrelled approach that evidence of the guilty plea plus evidence of the facts underlying it should be admitted. He found on ample evidence that the necessity and reliability requirements had not been met and in this regard found that the lack of the opportunity for the Crown to cross-examine was “an important consideration, particularly when it’s clear that [the] witness is still available”. This was an important trial fairness issue, attracting as it did considerations of both necessity (not met because Mr. Anderson was available to testify) and reliability (Mr. Anderson’s evidence was the best evidence available, compared to the evidence of the guilty plea and underlying facts which were, at the very least, potentially tainted by the motivation of self-interest on Mr. Anderson’s part).

[77] The latter point is far from trivial. While the transcript of the guilty plea is reliable for purposes of establishing what was said at the guilty plea proceedings, the reliability of what was said is a different matter. Courts have warned against the dangers of relying on such evidence when it is to be used against a co-accused because of the self-interest of the person making the plea in accepting as substantially correct a version of the facts most favourable to his or her plea bargain: see R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at para. 43; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 62. The same unreliability concerns exist where evidence of this nature is sought to be tendered by the second co-accused in support of his or her defence at trial, in my view.

[78] Hence the importance of cross-examination on the issue of the facts underlying the guilty plea. There was no risk of a miscarriage of justice or trial unfairness to the appellant in this respect. Mr. Anderson was available to testify. The fact that it may have been risky for the appellant to call him as a witness does not constitute prejudice or unfairness to the appellant in this context. An accused person is not guaranteed that a witness who is called to give evidence on one particular point helpful to the defence may not give harmful evidence on a different, but relevant point.

[79] On the other hand, trial fairness considerations flowing from the Crown’s inability to cross-examine on the evidence in the absence of Mr. Anderson testifying militates in favour of excluding the evidence of the factual circumstances underlying guilty plea.

Conclusions

[80] On the foregoing analysis, neither the evidence of Mr. Anderson’s guilty plea alone nor the evidence of his plea together with the underlying facts on which it was based become admissible automatically pursuant to one or more of the three purported “exceptions” to the hearsay rule advanced by the appellant. Court documents or records of proceedings are themselves admissible without further proof of authenticity pursuant the public documents/judicial records exception to the hearsay rule, or pursuant to s. 23 of the Canada Evidence Act or the common law doctrine of exemplification. However, their contents are not necessarily admissible for their truth and reliability simply because the documents or records may be proved in that fashion. The scope of the recorder’s duty defines the purposes for which the contents may be admissible.

[81] Absent substantive admissibility through the public documents/judicial records analysis, and absent the application of some other exception to the hearsay rule (an admission against interest, for example), all roads therefore lead back to whether the evidence becomes substantively admissible pursuant to a necessity/reliability analysis conducted under the principled exception to the hearsay rule tempered to the extent it may be by trial fairness considerations, particularly in relation to the defence but also in relation to the Crown and to the integrity of the administration of justice.

[82] Here, the substantive admissibility of Mr. Anderson’s guilty plea alone, as recorded on the back of the original indictment, is justified under the public documents/judicial records analysis. The information is reliable. The broader necessity requirement is satisfied because the indictment provides the best evidence of the fact of the plea. And trial fairness to the appellant weighs in favour of not leaving her with a vacuum as to any information about what happened to her former co-accused.

[83] As I have explained, however, the same considerations point in the opposite direction with respect to the substantive admissibility of the facts underlying the guilty plea. In my view, the trial judge did not err by refusing to admit that evidence other than through the testimony of Mr. Anderson, who was available for that purpose.

THE SENTENCE APPEAL

[84] Given the foregoing, it is unnecessary to determine the sentence appeal.

DISPOSITION

[85] For the reasons outlined above, I would allow the appeal and direct a new trial on the basis that the evidence of Mr. Anderson’s guilty plea alone, as recorded on the back of the original indictment (with the necessary redactions) is admissible. Proof of the facts underlying the guilty plea is not admissible save through the testimony of Mr. Anderson or on any other basis that may be agreed upon by the Crown and the appellant and approved by the judge at the new trial.

[86] It may be that the court at the new trial should consider whether, in fairness to the Crown, the jury should be instructed that even though Mr. Anderson has pled guilty it does not necessarily follow that both he and the appellant could not be guilty of participating in a joint enterprise. The jury will undoubtedly be instructed that the fact of Mr. Anderson’s guilty plea cannot be used by them against the interests of the appellant.

[87] Finally, I do not view this as a case for the application of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code.

[88] In order to dispose of the sentence appeal, I would grant leave to appeal but dismiss the appeal.

Released: July 28, 2016

“Robert A. Blair J.A.”

“I agree M. Tulloch J.A.”

“I agree G. Pardu J.A.”

[^1]: Recall that Duong was a case where the plea of a co-accused was admitted at the second accused’s trial for being an accessory-after-the-fact, to prove the prior offence.

[^2]: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577.