Her Majesty the Queen v. Boyce

[Indexed as: R. v. Boyce]

Ontario Reports Court of Appeal for Ontario Strathy C.J.O., Rouleau and Miller JJ.A. October 21, 2019

148 O.R. (3d) 451 | 2019 ONCA 828

Case Summary

Criminal law — Appeal — First time on appeal

The accused was convicted of offences arising from a conspiracy to import cocaine. The trial judge relied on a laboratory report from Panamanian authorities to establish that the substance sought to be imported was cocaine. The accused raised for the first time on appeal an argument that the judge's interpretation of section 36(1) of the Mutual Legal Assistance in Criminal Matters Act was unconstitutional. The Court of Appeal refused to exercise its discretion to hear the constitutional argument.

Criminal law — Mutual legal assistance in criminal matters

The accused was convicted of offences arising from a conspiracy and attempt to import cocaine. The trial judge relied on evidence from Panamanian authorities via the Mutual Legal Assistance in Criminal Matters Act ("MLACMA") to establish that the substance sought to be imported was cocaine. The trial judge properly interpreted section 36(1) of MLACMA in admitting evidence without considering necessity or threshold reliability.

Facts

The accused was convicted of drug offences under section 6(1) of the Controlled Drugs and Substances Act and sections 463 and 465 of the Criminal Code, arising from his participation in a failed conspiracy to import cocaine from Costa Rica to Toronto. The parties to the conspiracy arranged for almost 356 grams of cocaine to be hidden inside two packages of travel brochures to be shipped to Toronto via Federal Express courier. The packages were intercepted in Panama, a transit point for the shipments. Laboratory analysis conducted by Panamanian authorities indicated that the substance hidden in the travel brochures was cocaine.

The trial judge found that surveillance evidence and intercepted communications established that the appellant was part of a conspiracy to import something illegal from Costa Rica to Toronto, hidden inside two Federal Express packages. However, this evidence could not establish what the conspiracy was attempting to import. The sole evidence that could identify the object matter was provided by a laboratory analysis and other documentation provided to the Crown by Panamanian authorities pursuant to a request made under the Mutual Legal Assistance Treaty ("MLAT").

Canada's obligations under MLAT, as well as rules for the evidentiary use of documents received pursuant to MLAT requests, are established in the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) ("MLACMA").

The Crown relied on the MLAT documents to establish various steps in the Panamanian investigation, including how the cocaine was discovered, the continuous chain of custody to the Panamanian Laboratory of Controlled Substances, and the chemical analysis conducted at that laboratory by the head chemist.

The appellant brought a pre-trial application to exclude the MLAT documents from evidence, particularly the Panamanian laboratory report. Both parties agreed to be bound by the ruling. On June 25, 2015, the appellant's application was dismissed. The trial judge found the MLAT documents to be reliable based on the cumulative effect of the documents, as well as corroboration from information obtained through intercepted communications. Based on the Panamanian drug testing, expert evidence testifying about the nature of the three tests used by the Panamanian laboratory, and other evidence that reinforced the reliability of the MLAT documents, the trial judge concluded that the substance found in the intercepted packages was cocaine. The appellant was convicted.

Issues

The appellant raised two issues on appeal:

1. Did the trial judge misinterpret and misapply section 36(1) of MLACMA and thereby improperly admit hearsay expert evidence?

2. In the alternative, if the trial judge's interpretation of section 36(1) is correct, does section 36(1) infringe sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms?

Analysis

1. The Interpretation and Application of Section 36(1) of MLACMA

At common law, hearsay evidence and opinion evidence are presumptively inadmissible. The issue in this appeal was whether section 36 of MLACMA gives a trial judge the discretion to admit foreign records containing hearsay and opinion evidence that have been sent pursuant to a Canadian request.

Section 36 provides:

Foreign Records

36(1) In a proceeding with respect to which Parliament has jurisdiction, a record or a copy of the record and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record, sent to the Minister by a state or entity in accordance with a Canadian request, is not inadmissible in evidence by reason only that a statement contained in the record, copy, affidavit, certificate or other statement is hearsay or a statement of opinion.

Probative value

(2) For the purpose of determining the probative value of a record or a copy of a record admitted in evidence under this Act, the trier of fact may examine the record or copy, receive evidence orally or by affidavit, or by a certificate or other statement pertaining to the record in which a person attests that the certificate or statement is made in conformity with the laws that apply to a state or entity, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the state or entity, including evidence as to the circumstances in which the data contained in the record or copy was written, stored or reproduced, and draw any reasonable inference from the form or content of the record or copy.

The trial judge accepted the interpretation of this section proffered by the Crown: that relevant hearsay documents that meet the requirements of section 36(1) are admissible and that it is not necessary to consider the two prongs of necessity and threshold reliability. That interpretation makes the most sense in light of section 36(2), which provides that the ultimate probative value of these hearsay documents and the reasonable inferences that can be drawn from them is for the trier of fact.

That is, section 36(1) makes relevant tendered evidence admissible without considering either its necessity or threshold reliability. This is consistent with the interpretation of that section recently provided by the British Columbia Court of Appeal in R. v. Rajaratnam, at paragraph 123:

We agree with the Crown that s. 36 precludes a successful objection to the admissibility of a document solely on the basis that it contains hearsay or an opinion, which is a form of hearsay. We also agree with the Crown that, by reasons of s. 36, a document containing hearsay can be tendered for the truth of its contents without the need to establish the evidence either falls within a recognized common law exception to the hearsay rule or meets the requirements of the principled approach to hearsay.

Section 36(1) does not, on this reading, determine the question of ultimate admissibility. Evidence derived from foreign law enforcement is still subject to the general exclusionary rule—weighing probative value as against prejudicial effect—as articulated in R. v. Mohan. Furthermore, trial judges retain the power to exclude otherwise admissible hearsay evidence where its admission would infringe on the fair trial rights of an accused: R. v. Harrer.

The appellant argued that section 36(1), properly interpreted, does not remove the presumptive inadmissibility of hearsay and expert evidence, and the Crown is still required to establish necessity and threshold reliability. On the appellant's interpretation, section 36(1) merely restates the common law position that hearsay documents will not be excluded from trial simply because they contain hearsay or opinion provided they come within an exception to the rule against their admissibility. The appellant claimed support from the reasons of the application judge in this case as well as R. v. Armour Pharmaceutical Co.

In support of this position, the appellant argued that section 36(1) is ambiguous and can be read either as the trial judge did or in the manner he proposed. He argued that his interpretation is to be preferred because it would better realize constitutional principles related to sections 7 and 11(d) of the Charter: Bell ExpressVu Limited Partnership v. Rex. That is, removing the barrier to the admission of hearsay, as proposed by the interpretation of the trial judge, would jeopardize the fair trial rights of an accused.

In further support, the appellant argued that were section 36(1) to be interpreted as the trial judge did, it would result in a change to the common law, rendering evidence admissible which would not be admissible but for section 36(1). However, the appellant argued, legislation is not to be interpreted as setting aside or otherwise changing the common law unless Parliament has expressed its intention to do so using clear and unambiguous language. It did not do so in this case.

The Court rejected both arguments, on the basis that each depends on the existence of an ambiguity in the statutory provision. No such ambiguity exists.

An ambiguity, in the relevant sense, means that the words of the provision are reasonably capable of bearing more than one meaning. The Supreme Court has cautioned that "one must consider the 'entire context' of a provision before one can determine if it is reasonably capable of multiple interpretations" and that "'It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids'": Bell ExpressVu.

However, the appellant's interpretation does not account for the purpose of the statute, characterized as combatting international crime by co-operating with other states, and recognizing a comity of nations based on mutual deference and respect for the legal systems of Canada's treaty partners. This purpose was established in Mutual Legal Assistance in Criminal Matters Act (Re) and R. v. Zingre.

Section 36(1) eases the admission of foreign evidence that ordinarily would have encountered procedural obstacles to its admission. This advances the purpose of MLACMA by facilitating the admission of evidence obtained abroad in order to efficiently and effectively prosecute international and transnational crime. Allowing foreign evidence to be requested from foreign governments and received in documentary form respects the comity of nations by avoiding the intrusive and ad hoc process of Crown counsel directly contacting people in other countries and asking them to testify. It is premised on Canada and its treaty partners having confidence in and respect for each other's legal systems.

The interpretation of section 36(1) proposed by the appellant is thus inconsistent with its purposes and is not a plausible interpretation. No ambiguity has been demonstrated and the trial judge made no error in this respect.

The Application of Section 36

Having rejected the appellant's argument that the trial judge misinterpreted section 36(1), the next question was whether the trial judge, or the application judge before her, nevertheless misapplied section 36(1) in admitting the MLAT documents.

Most of the appellant's arguments with respect to the application judge's decision to admit the evidence were premised on the reading of section 36(1) that was rejected above. They therefore could not succeed.

With respect to the argument that the trial judge erred in not exercising her residual discretion to exclude the evidence on fair trial grounds, the Court was not persuaded that the trial judge made such an error.

The trial judge relied on the Panamanian drug test results in finding that the substance the appellant conspired to import, and attempted to import, was cocaine. At trial, the only basis on which the appellant argued for the exclusion of the evidence was that it constituted hearsay and opinion evidence. The trial judge noted that the unavailability of cross-examination to test the evidence was not a matter of admissibility, but of what weight to give the evidence. She found that the traditional concerns about hearsay were "virtually non-existent" with the MLAT documents, with "little if anything" to be gained by cross-examination of the authors.

The appellant argued that the trial was unfair because he did not have an opportunity to cross-examine the Panamanian chemist on the procedures that were followed in the drug testing. The trial judge rejected this argument on the basis that the nature of the confirmatory testing is such that, absent contamination with cocaine from a source other than the white powder found in the packages, a false positive could not result. A substance that was not cocaine could not be positively identified by the infrared spectroscopy test as cocaine. The Crown's expert witness admitted that a successful test would depend on functioning equipment and a competent operator. However, based on her explanation of the test method, the trial judge inferred that a failure of the equipment or a competent operator would result in non-identification, rather than a positive identification of cocaine. This is an inference that was available to the trial judge from the evidence, and there is no basis for the appellate court to interfere with it.

The trial judge had no difficulty in giving the expert report significant weight, given that it was prepared by the head chemist of a government laboratory, using internationally recognized tests, for use of the Panamanian prosecutor's office, and reported to a Panamanian court. Furthermore, the trial judge's conclusion was supported by the evidence that the substance found in the parcels was a white powder, and that the intercepted communications had made it clear that the substance to be imported was something illegal.

The Court saw no error in the trial judge's analysis.

2. The Constitutional Question

At trial, the appellant did not bring a Charter challenge seeking to invalidate section 36 under section 52 of the Constitution Act, 1982. Constitutional invalidity was raised for the first time in a notice of constitutional question on appeal, and section 52 arguments were advanced in the appellant's factum. In oral submissions, however, the appellant took the position that section 36(1) was not unconstitutional, but merely that the interpretation given by the trial judge was unconstitutional. The remedy sought was not a declaration of invalidity pursuant to section 52, but that the provision be interpreted in a manner that is consistent with sections 7 and 11(d) of the Charter.

After oral argument, the British Columbia Court of Appeal released its judgment in Rajaratnam, in which it declared section 36(1) to be of no force and effect pursuant to section 52 of the Constitution Act. The Court of Appeal then invited the parties to make written submissions on whether or to what extent Rajaratnam had any bearing on the matters at issue in this appeal. In his submissions in response, the appellant argued that the British Columbia Court of Appeal erred by misinterpreting section 36(1) in the same manner as the trial judge had done. However, he argued in the alternative that if the Court were to agree with the interpretation given by the British Columbia Court of Appeal and the trial judge, then the Court ought to find section 36(1) to be inconsistent with sections 7 and 11(d) of the Charter and declare section 36(1) to be of no force and effect pursuant to section 52.

The respondent, although agreeing with the British Columbia Court of Appeal on the question of statutory interpretation, took the position that the constitutional analysis in Rajaratnam is flawed and should not be adopted. The respondent's primary position, however, was that the section 52 argument should not be decided, given that it was raised for the first time on appeal.

In general, appellate courts are reluctant to consider constitutional challenges to legislation that are not advanced at trial: e.g., R. v. Wookey:

The appellant raises this constitutional challenge for the first time on appeal.

As the Supreme Court recently explained in Guindon v. Canada, 2015 SCC 41, at paragraphs 20-22, while appellate courts can hear and decide new issues not raised at trial, whether or not to do so is a matter for the court's discretion. This discretion is exceptional; it should not be exercised routinely or lightly. When determining whether to exercise its discretion, a court should take into account all of the circumstances, including the following:

-- the state of the record,

-- fairness to all parties,

-- the importance of having the issue resolved by the court,

-- its suitability for decision, and

-- the broader interests of the administration of justice.

The court should not exercise its discretion unless convinced that doing so would cause no prejudice to the parties or that failing to do so would risk injustice.

The Court would not exercise its discretion in favour of hearing the constitutional argument.

Disposition

The appeal was dismissed.

Appeal dismissed.

End of Document