COURT OF APPEAL FOR ONTARIO DATE: 20210726 DOCKET: C66183

Juriansz, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Shauvonne Latoya Young Appellant

Counsel: Breana Vandebeek, for the appellant Xenia Proestos, for the respondent

Heard: December 7, 2020 by video conference

On appeal from the conviction entered on October 16, 2018 by Justice Jennifer Woollcombe of the Superior Court of Justice, sitting with a jury.

Jamal J.A.:

A. Introduction

[1] On April 5, 2017, the appellant, Ms. Shauvonne Young, was arrested at Toronto Pearson International Airport on her return from Jamaica and charged with importing 1.9 kilograms of cocaine. Canadian Border Services Agency (“CBSA”) officers found the cocaine inside four containers of Metamucil, a fibre supplement, as soon as they opened her suitcase.

[2] At trial, the only issue was knowledge — whether the appellant knew that she was importing cocaine. She testified that a family friend had given her the containers as a gift for her grandmother. She believed they contained Metamucil blended with roots and seeds to form a Jamaican herbal remedy.

[3] The appellant applied before trial to introduce a hearsay statement that her late father allegedly made to her half-sister. Their father was a cocaine addict and convicted drug dealer and trafficker with a long criminal record. He allegedly confessed to the appellant’s half-sister that he had arranged for the drugs to be given to the appellant and had used her to bring them back to Canada. He said he owed a lot of money to his drug dealer and had been forced to provide them services. He begged his daughter not to tell the appellant “yet” about what he had done and promised to come to court to confess. He also said he was concerned for his own safety. Because the appellant’s half-sister was concerned that telling the appellant might endanger their father or the appellant, she complied. Less than four months later, their father died from a cocaine and fentanyl overdose.

[4] The application judge, André J. (“application judge”), refused to admit the statement under the declaration against penal interest exception to the hearsay rule or under the principled approach to hearsay: R. v. Young, 2018 ONSC 5480. The appellant was then tried by judge and jury and convicted of importing cocaine.

[5] The appellant raises two grounds of appeal from her conviction. First, she says the application judge erred by refusing to admit the hearsay statement under either the penal interest exception to the hearsay rule or the principled approach to hearsay and that he should have applied a relaxed standard for the admissibility of defence evidence to avoid a miscarriage of justice. Second, she says the trial judge, Woollcombe J. (“trial judge”), erred by instructing the jury on wilful blindness as a pathway to a guilty verdict without any air of reality to the claim that she was suspicious of what was inside the Metamucil containers and deliberately failed to inquire further.

[6] For the reasons that follow, I would allow the appeal and order a new trial. The application judge misapprehended the evidence in applying the declaration against penal interest exception to the hearsay rule. On the totality of the evidence, the hearsay statement was admissible under that exception. Because this evidence was critical to the appellant’s defence, its exclusion led to a miscarriage of justice. It is unnecessary to address the appellant’s other arguments.

B. Background

(a) The hearsay evidence

[7] The appellant’s pretrial application to admit the hearsay statement of her late father, Mr. Orville Young, was supported by the affidavit of her half-sister, Ms. Toni Winchester. Ms. Winchester had no criminal record and was not cross-examined on her affidavit. She made these key points in her affidavit:

• The appellant travelled to Jamaica to attend her uncle’s memorial service and returned to Canada on April 5, 2017. On April 5, Ms. Winchester received calls from her father, who wanted to know if she had heard from the appellant. He was unusually persistent. Because this worried Ms. Winchester, she called the appellant but could not reach her.
• Ms. Winchester and the appellant had a difficult relationship with their father. He was in and out of jail and used crack cocaine. He lived with Ms. Winchester briefly in 2015, but they had a falling out because of his drug use. In April 2017 she did not even know where he lived.
• Several days after the appellant returned from Jamaica, Ms. Winchester learned that the appellant had been arrested for importing drugs. Ms. Winchester was surprised because she and the appellant strongly disapproved of their father’s drug use.
• Ms. Winchester confronted her father and asked him to “tell [her] the real deal” about why he kept asking about the appellant when she was delayed at the airport. She explained her father’s response as follows:

He began crying and telling me that he put her in a bad position. He told me that he owed a lot of money to his drug dealer. They had given him a large quantity of drugs, and without money to pay them back, he was forced to provide them services. He told me that he had agreed to have someone hide drugs in a package in Jamaica while [the appellant] was there, and to use her to bring it back to Canada. He told me that his drug dealer had promised him that no one would ever find out, and that this wasn’t the first time he had done something like this. He expressed to me that he was afraid for his own safety now.

He specifically begged me not to tell [the appellant] yet and promised he would attend Court for her and let the Court know what he had done. He told me that he was concerned for his own safety. I did not tell [the appellant] anything about this conversation at the time. I was afraid that if I were to tell her, it might cause danger to my dad, or [the appellant]. As much as my father and I had not seen eye to eye, I believe that if circumstances were different he would do the right thing, come to Court, and tell the truth about what had happened.

My father was born on July 25th, 1964. On July [27th], 2017, he passed away from an overdose. It was [two] days after his 53rd birthday. At his funeral in August of 2017, I told [the appellant] for the first time what he had told me. I wish I had said something sooner, but I never imagined that we would lose our father so soon.

[8] The application to admit the hearsay statement included as exhibits Mr. Young’s lengthy criminal record from 1981 to 2017, which included at least nine convictions for drug possession and trafficking, and a coroner’s report confirming that he died of a cocaine and fentanyl overdose.

(b) The application judge refuses to admit the hearsay statement

[9] The application judge refused to allow the hearsay statement to be admitted at trial. He found:

• The statement was not admissible as a declaration against penal interest because Mr. Young did not make the statement to a person and in such circumstances that he apprehended a vulnerability to penal consequences and that any such vulnerability was remote.
• The statement did not meet the criteria for admission under the principled approach to hearsay. Although the necessity requirement was met because Mr. Young was dead, nothing about the circumstances in which the statement was made attested to its reliability. The truth and accuracy of the statement could not be sufficiently tested given the circumstances in which it was made, and the circumstances in which the statement was made did not substantially negate the possibility that the declarant was untruthful or mistaken. It was unknown whether Mr. Young had a motive to lie, there was reason to doubt his credibility given his long criminal record of dishonest acts, and there was no evidence confirming the statement.

(c) The trial

(i) The prosecution case

[10] The Crown argued that the appellant knew that the Metamucil containers contained cocaine when she imported the drugs into Canada. A CBSA agent found the drugs in her suitcase during a secondary customs inspection. When the agent opened the suitcase, the Metamucil containers were right on top in a black plastic bag. The containers had no security seal and were abnormally solid. The agent opened a container and saw a layer of Metamucil on top of a plastic bag. The substance inside the plastic bag was tested and was cocaine.

[11] The Crown claimed that the appellant’s motive was financial. It was an agreed fact that the street value of the drugs sold at the gram level was between $155,000 and $194,000 and that a drug courier would typically make between $1,000 and $5,000, plus expenses, or sometimes a percentage of the product as payment instead. At the time of trial, the appellant was a 34-year-old single mother with five children (four when she was charged), ranging in age from 18 years to 2 months, and had a $2,500 monthly mortgage payment that she split with her mother. Trial counsel (not appeal counsel) put to her that “having four children live with you is pretty expensive for groceries and clothes and all the things that teenagers need” and “getting an extra few thousand dollars here or there would be a big assistance to you in helping you raise your kids and pay for your mortgage”: Transcript, October 12, 2018, at p. 96. Although the appellant agreed that money was “pretty tight”, she was reluctant to agree with the suggestion that an extra few thousand dollars would have been a big assistance, explaining that she had family support. Crown counsel pressed the point, putting to her that “[h]aving an extra thousand or five thousand dollars given to you at that time would have been of assistance to you”: Transcript, October 12, 2018, at p. 97. Like most people would, she agreed. [1]

(ii) The defence case

[12] The appellant testified in her own defence. Her evidence was that she flew to Jamaica on March 31, 2017 for a celebration of the life of her uncle. He had recently died in Canada, but because many family members could not travel from Jamaica a celebration of life was organized to take place there on April 1, 2017. The appellant would then return to Canada the next day.

[13] One of the appellant’s cousins picked her up from the airport in Jamaica and they went to the family home. There, a man named “Haja” introduced himself to her. He said he knew her parents and that she looked a lot like her father. The appellant had not met Haja before. She later learned his real name was Simian Elliott.

[14] The appellant saw Haja again the next day at the celebration of life but did not speak to him. He was talking to her family members and seemed like a nice guy. The appellant’s cousins asked her to extend her stay in Jamaica. She agreed and believed Haja may have overheard this. She later changed her plane ticket to return on April 5.

[15] On April 5, Haja came to the family home and said he was “happy to catch” the appellant. He gave her a black plastic bag containing four Metamucil containers and said it was for her Grandma Pat, her father’s mother. The appellant did not think this was unusual because she said in Jamaica people blend ginger root, beetroot, mango seed, and June plum seed with Metamucil to ward off evil spirits and as a form of rejuvenation for the body. The appellant looked in the plastic bag, saw the Metamucil containers, and put everything in her suitcase. Although she did not use this herbal remedy herself, the elderly did, so she thought her grandmother would be happy for the gift. The appellant was not suspicious. Haja was a friend of the family and she had no reason to distrust him. She testified that she had no idea that the containers contained drugs.

[16] When the appellant landed at Pearson Airport, she was selected for secondary screening. The CBSA agent inspected her suitcase and found the cocaine.

[17] The appellant was permitted to introduce evidence of a third-party suspect — her father. She suggested that he had a motive, the opportunity, and the disposition to be responsible for the importation. Her father’s lengthy criminal record was admitted into evidence, which included many convictions for drug possession and trafficking. It was also an agreed fact that he died from a cocaine and fentanyl overdose.

[18] The appellant testified that she believed her father had arranged for Haja to transport the drugs through her without her knowledge. She did not have a close relationship with her father. He had drifted in and out of her life because of his drug addiction and criminal lifestyle. But they were trying to rebuild their relationship and she had spoken to him about her upcoming trip to Jamaica.

[19] The appellant’s mother was supposed to pick her up at the airport in Toronto. The appellant would have taken the Metamucil containers to her Grandma Pat, where her father and several other family members would have had access to them. The appellant believed none of these other family members knew about the drugs. Like the appellant, they all hated drugs because of how they had destroyed her father’s life.

[20] After the appellant was arrested, many of her family members contacted her, but her father did not. She tried to contact him, without success, and felt he was ignoring her. He died on July 27, 2017.

C. Discussion

(a) Applicable principles for admitting hearsay

[21] The applicable legal principles governing the admissibility of Mr. Young’s alleged statement to Ms. Winchester are not in dispute.

[22] All relevant evidence is admissible, subject to certain exceptions, one of which is the rule against hearsay evidence. An out-of-court statement of a declarant is hearsay if (1) the statement is adduced to prove the truth of its contents and (2) there is no contemporaneous opportunity to cross-examine the declarant. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 34-35, 42, and 56.

[23] The Supreme Court summarized the framework governing the admissibility of hearsay evidence in Khelawon, at para. 42 and R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

[24] The criteria for the declaration against penal interest exception to the hearsay rule were distilled by Watt J.A. in R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, at para. 88:

The principles that govern the admissibility of declarations against penal interest are these:

i. the declaration must be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result;

ii. the vulnerability to penal consequences must not be remote;

iii. the declaration must be considered in its totality, so that if, upon the whole tenor, the weight of it is in favour of the declarant, the declaration is not against his or her interest;

iv. in a doubtful case, a court might consider whether there are other circumstances connecting the declarant with the crime, and whether there is any connection between the declarant and the accused; and

v. the declarant must be unavailable because of death, insanity, grave illness that prevents the declarant from giving testimony even from a bed, or absence in a jurisdiction to which none of the court’s processes extends.

R. v. Demeter, [1978] 1 S.C.R. 538, at p. 544; R. v. O’Brien, [1978] 1 S.C.R. 591, at p. 600; and R. v. Lucier, [1982] 1 S.C.R. 28, at pp. 32-33.

[25] As the Supreme Court has noted, exceptions to the hearsay rule, such as the exception for declarations against penal interest, “developed for statements carrying certain guarantees of inherent trustworthiness, often because of the circumstances in which they were made”: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 20.

[26] See also Sidney N. Lederman, Alan W. Bryant & Michelle Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at §6.183-6.205; S. Casey Hill, David M. Tanovich & Louis P. Strevos, McWilliams’ Canadian Criminal Evidence, loose-leaf, 5th ed. (Toronto: Thomson Reuters, 2013), at para. 7:200.20.

(b) Application to this case

[27] The focus of the argument in this court was whether the application judge erred in refusing to admit the hearsay statement as a declaration against penal interest because it failed to meet criteria (i) and (ii) in Tash, at para. 88. The Crown did not challenge the application judge’s ruling that criteria (iii), (iv), and (v) of Tash were met. As the application judge found, the entirety of the declaration was not in favour of Mr. Young’s interest because “he took responsibility for arranging to have someone hide drugs in a package which he brought to Canada” (criterion (iii)); there were other circumstances connecting Mr. Young to the crime because “he had an extensive criminal record from 1981 to 2017 with at least nine convictions for possession of a controlled substance and possession for the purpose of trafficking” (criterion (iv)); and Mr. Young was unavailable to testify because he was dead (criterion (v)).

[28] On the first disputed point — whether Mr. Young apprehended a vulnerability to penal consequences (criterion (i)) — the application judge ruled:

Regarding the first criterion, I am not persuaded that the declaration was made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result. Mr. Young made a statement to his daughter who had a very difficult relationship with him growing up; however, he lived with her from July 2015 to November 2015 before having a falling out due to his continued drug use.

Mr. Young must have had confidence in the fact that his statement to Ms. Winchester would remain confidential given his caution to her that she should not tell [the appellant] about what he had said to her.

Furthermore, there is nothing in the circumstances in which the statement was allegedly made that Mr. Young should have apprehended a vulnerability to penal consequences as a result.

[29] On the second disputed point — whether Mr. Young’s vulnerability to penal consequences was not remote (criterion (ii)) — the application judge ruled:

[I]t seems to me that the vulnerability to penal consequences were remote given that Mr. Young told Ms. Winchester not to tell [the appellant] about what he had stated to her. He clearly did not contemplate any penal consequences as a result of his statement to Ms. Winchester. To that extent, this criterion has not been met in this case.

[30] The standard of review of the application judge’s ruling is not disputed. A ruling on the admissibility of hearsay evidence is a question of law reviewable for correctness, but factual findings that go into that determination attract deference: Youvarajah, at para. 31; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 81; R. v. S.S., 2008 ONCA 140, 233 O.A.C. 342, at paras. 29-30; and Hill, Tanovich & Strezos, at para. 37:100. No deference is owed if the lower court materially misapprehended evidence that is central to the ultimate assessment of the admissibility of the hearsay statement: R. v. Dupe, 2016 ONCA 653, 340 C.C.C. (3d) 508, at para. 50.

[31] Here, I conclude that the application judge materially misapprehended evidence that was crucial to deciding whether to admit the hearsay as a declaration against penal interest. He concluded that Mr. Young should not have apprehended a vulnerability to penal consequences because he “must have had confidence in the fact that his statement to Ms. Winchester would remain confidential given his caution to her that she should not tell [the appellant] about what he had said to her” (emphasis added). But this finding ignores a critical sentence in Ms. Winchester’s affidavit, in which she stated that her father “specifically begged me not to tell [the appellant] yet and promised he would attend Court for her and let the Court know what he had done” (emphasis added). Thus, Mr. Young did not ask his daughter not to tell the appellant what he had done; he asked her not to tell her yet. It was a request to delay telling, not a request to never tell. More importantly, the delay was to allow Mr. Young to confess his crime in court.

[32] This crucial part of Mr. Young’s statement — which the application judge did not address in his reasons — materially changed the nature of the statement from one in which the declarant had an expectation it would be kept confidential, and thus would not have exposed him to penal consequences, to one in which the declarant only asked the recipient to delay telling the appellant and promised to publicly confess his crime in court. Had Mr. Young reneged on his promise, the obvious inference is that he understood that Ms. Winchester would come forward, which indeed she did when he died. Thus, when Mr. Young’s complete statement is considered, Mr. Young certainly should have apprehended a vulnerability to penal consequences by making his statement to Ms. Winchester.

[33] Nor was Mr. Young’s vulnerability to penal consequences remote. Mr. Young promised to come to court to confess his crime. This was not a vague promise to say something at some indeterminate time. The appellant had been arrested and charged. The legal process had begun. His time to confess would come soon.

[34] Finally, that Mr. Young’s statement was allegedly made to his adult daughter, albeit one with whom he had a difficult relationship, does not detract from these conclusions. Even though Mr. Young’s statement was to his daughter, his qualification as to timing combined with his promise to confess in court showed that he appreciated his vulnerability to penal consequences was real and not remote.

[35] I conclude that the application judge materially misapprehended the evidence relevant to criteria (i) and (ii) of Tash and erred in excluding the hearsay statement.

[36] The respondent did not seek modification of the declaration against penal interest exception or argue that this was a “rare case” where evidence falling within an existing exception should be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of this case: see Khelawon, at para. 42; Mapara, at para. 15. A finding that the evidence in this case falls within the declaration against penal interest exception to hearsay is thus conclusive as to its admissibility, without resort to the principled approach: Khelawon, at para. 60; Mapara, at para. 34; and R. v. Carty, 2017 ONCA 770, 356 C.C.C. (3d) 309, at para. 10.

[37] It is also unnecessary to address the appellant’s other arguments that the application judge erred by not applying a relaxed standard to the admissibility of defence evidence or in instructing the jury on wilful blindness as a pathway to a guilty verdict.

(c) Conclusion

[38] The hearsay statement was admissible under the declaration against penal interest exception to the hearsay rule. Its exclusion impaired the appellant’s right to make full answer and defence to the criminal charge against her and led to a miscarriage of justice. I would allow the appeal on this basis alone.

D. Disposition

[39] I would allow the appeal, quash the conviction, and order a new trial.

“M. Jamal J.A.”

“I agree. R.G. Juriansz J.A.”

Coroza J.A. (concurring):

A. Overview

[40] The appellant raises the following three grounds of appeal:

I. Did the application judge err in concluding that Orville Young’s statement was not a declaration against penal interest?

II. Did the application judge err in concluding that Mr. Young’s statement was not admissible pursuant to the principled exception to the rule against hearsay?

III. Did the trial judge err in leaving wilful blindness as a route to a guilty verdict?

[41] I have had the advantage of reviewing Jamal J.A.’s reasons. I agree with his proposed disposition of the appeal, albeit on different grounds. My colleague would allow the appeal and order a new trial on the first issue. While I agree that Mr. Young’s statement should have been admitted at trial, in my respectful view, the statement was not admissible as a declaration against penal interest.

[42] Instead, I conclude that the application judge erred by refusing to admit the statement pursuant to the principled exception to the rule against hearsay. The application judge’s ruling discloses a material misapprehension of the evidence. He also failed to consider the appellant’s argument that the application judge should apply a relaxed standard to the admissibility of the hearsay evidence, to avoid a miscarriage of justice or to ensure a fair trial.

[43] In light of the proposed disposition of the appeal, I agree with my colleague that it is unnecessary to address the appellant’s third argument.

B. Analysis

(1) Did the Application Judge Err in Concluding that Mr. Young’s Statement Was Not a Declaration Against Penal Interest?

(i) Background

[44] My colleague has thoroughly reviewed the factual background, the principles applicable to admitting hearsay, and the criteria for the declaration against penal interest exception to the hearsay rule discussed by this court in R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173. I need not repeat that discussion. There is no dispute that the application judge correctly outlined the applicable principles in his ruling.

[45] The focus of the parties’ arguments before the application judge was on whether Mr. Young’s statement met the first two criteria set out in Tash, at para. 88. For ease of reference, I repeat the first two criteria for the declaration against penal interest exception to the hearsay rule:

I. The declaration must be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result; and

II. The vulnerability to penal consequences must not be remote.

[46] The assumption underlying this exception is that people do not readily make statements that admit acts contrary to their interests, unless those statements are true. It is also essential that the statement should be to the declarant’s immediate prejudice; that is, the declarant must realize, at the time the statement is made, that it may be used against them: R. v. O’Brien, [1978] 1 S.C.R. 591, at pp. 599, 601; R. v. Kimberley (2001), 157 C.C.C. (3d) 129 (Ont. C.A.), at para. 68, leave to appeal refused, [2002] S.C.C.A. No. 29; R. v. Underwood, 2002 ABCA 310, 170 C.C.C. (3d) 500, at para. 42. As counsel for the appellant aptly put it during her submissions before the application judge:

“It’s [Mr. Young’s] apprehended fear of what Ms. [Toni] Winchester could do. And that happens the moment he tells the information to Ms. Winchester. It’s not something that, it doesn’t, it’s irrelevant to whether or not what he intends to do at some later date”. [Emphasis added.]

[47] Jamal J.A. finds that the application judge materially misapprehended evidence because he ignored a critical sentence in Ms. Winchester’s affidavit. In this sentence, Ms. Winchester stated that Mr. Young had “specifically begged me not to tell [the appellant] yet and promised he would attend Court for her and let the Court know what he had done”. He concludes that Mr. Young did not make a request to Ms. Winchester to never disclose that he was responsible for the drugs, but only to delay disclosure. According to my colleague, the crucial part of the statement “not to tell [the appellant] yet” materially changed the nature of the statement from one in which Mr. Young expected it would be kept confidential to one that only directed Ms. Winchester to delay telling the appellant until he could publicly confess his crime in court. He reasons that the obvious inference is that Mr. Young understood, were he to renege on his promise to confess, that Ms. Winchester would come forward with the information Mr. Young allegedly told her.

[48] I agree that the application judge did not address Mr. Young’s specific request to delay telling the appellant. However, I do not agree that this is a material misapprehension of the evidence permitting this court to interfere with the application judge’s finding that, at the time he made the statement, Mr. Young must have had confidence that his statement to Ms. Winchester would remain confidential given his caution to her that she should not tell the appellant. The application judge’s finding appropriately turned on his assessment of the relationship between Mr. Young and Ms. Winchester. Furthermore, the evidence led on the application about the nature of Mr. Young’s concern supported the application judge’s conclusion that any apprehension of penal consequences was remote.

(ii) The Relationship Between Mr. Young and Ms. Winchester

[49] In his ruling, the application judge quite properly focused on the relationship between Mr. Young and Ms. Winchester. Mr. Young was not disclosing what he had done to a complete stranger. This was a family member. Their relationship had to be considered. The application judge held:

Mr. Young made a statement to his daughter whom had a very difficult relationship with him growing up. However, he lived with her from July 2015 to November 2015 before having a falling out due to his continued drug use. Mr. Young must have had confidence in the fact that this statement to Ms. Winchester would remain confidential, [given] his caution to her that she should not tell [the appellant] about what he said to her.” [Emphasis added.]

[50] I read this as the application judge holding that Mr. Young did not apprehend any real vulnerability to penal consequences because he was telling his own daughter to keep what he had told her confidential. The application judge recognized that they had a difficult relationship. But in the passage cited above, the application judge also observed that they were not completely estranged. It is worth noting that Ms. Winchester’s affidavit referred to the fact that Mr. Young contacted her, and that she appeared to know how to contact him.

[51] In these circumstances, it was open for the application judge to conclude that Mr. Young did not apprehend or believe that Ms. Winchester would act on his confession by going to the authorities at the time he made the statement. In other words, the core of the application judge’s reasoning is that the combination of the relationship between Mr. Young and Ms. Winchester and his direction to her to remain silent revealed that Mr. Young did not really apprehend a vulnerability to penal consequences.

(iii) The Nature of Mr. Young’s Concern

[52] Nor do I agree with my colleague that the obvious inference is that Mr. Young understood, were he to renege on his promise to come to court and confess, that Ms. Winchester would come forward to the authorities and expose him to prosecution.

[53] Ms. Winchester’s affidavit stated that on the date that the appellant was scheduled to arrive from Jamaica, Mr. Young repeatedly called Ms. Winchester to find out if the appellant had contacted her. Ms. Winchester found this behaviour odd, since Mr. Young typically had no interest in her or the appellant’s whereabouts. Ms. Winchester then tried to contact the appellant. She was unsuccessful.

[54] However, several days after the appellant had arrived in Canada, Ms. Winchester found out that the appellant had been arrested for importing drugs. She confronted Mr. Young. According to Ms. Winchester, Mr. Young told her that he feared for his safety because his drug dealer had forced him to assist with importing the large quantity of drugs to Canada from Jamaica to repay a debt.

[55] The overall tenor of Mr. Young’s statement is that he was fearful of the drug dealer. An obvious inference from this is that he was afraid because he had been forced to bring drugs into Canada and the scheme had failed. It is in this context that Ms. Winchester stated in her affidavit that Mr. Young specifically begged her not to tell the appellant yet and promised he would attend court for her. As she put it:

He told me that he was concerned for his own safety. I did not tell [the appellant] anything about this conversation at the time. I was afraid that if I were to tell her, it might cause danger to my dad, or [the appellant]. [Emphasis added.]

[56] I do not agree with my colleague that we can infer that Mr. Young understood Ms. Winchester would go to the authorities were he to renege on his promise to go to court. In my view, the affidavit discloses that Mr. Young wished to keep his statement confidential until he could disclose it in a manner that was acceptable to him, given his concerns. Ms. Winchester’s affidavit reveals that Mr. Young was afraid for his safety and Ms. Winchester did not tell the appellant because she was afraid for both her father and half-sister.

[57] There was also no evidence led on the admissibility voir dire that, had the appellant been told what her father had disclosed, she would have gone to the authorities and exposed the declarant to prosecution. Accordingly, I do not accept that the application judge erred in finding that, in the circumstances, the vulnerability to penal consequences was remote.

[58] In conclusion, the suggestion that the application judge materially misapprehended the evidence and that Ms. Winchester would obviously go forward to the police if Mr. Young did not follow through on his promise is not borne out by the evidence on the application. The application judge did not err in finding that Mr. Young’s statement did not meet the criteria set out in Tash. Therefore, I would not give effect to this ground of appeal.

(2) Did the Application Judge Err in Concluding that Mr. Young’s Statement Was Not Admissible Pursuant to the Principled Exception to the Hearsay Rule?

(i) Background

[59] The appellant advanced an alternative argument before the application judge and repeats that argument before this court. She contends that if Mr. Young’s statement did not fit the criteria for a declaration against penal interest, then it was nevertheless admissible under the principled approach to hearsay. Further, she argues that where hearsay evidence is tendered by an accused, the court has the discretion to take a more relaxed view of the prerequisites to admissibility.

[60] Under the principled approach, Mr. Young’s statement could have been exceptionally admitted into evidence if the appellant had demonstrated that the twin criteria of necessity and threshold reliability were met on a balance of probabilities: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47.

[61] In this case, the necessity for Mr. Young’s statement was established by his death from a drug overdose and his resulting unavailability for trial. The Crown did not challenge this evidence and the parties therefore focused their arguments before the application judge on whether threshold reliability had been met.

[62] Threshold reliability is established when the hearsay statement is sufficiently reliable to overcome the dangers arising from the difficulty of testing it: Khelawon, at para. 49. In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them: Bradshaw, at para. 26. The hearsay dangers can be overcome and threshold reliability can be established by demonstrating that (i) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (ii) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability): Bradshaw, at para. 27.

[63] The application judge identified the primary hearsay danger as flowing from the fact that the truthfulness of Mr. Young’s statement could not be tested. The statement was not written or recorded and there were no persons present at the time the statement was made other than Ms. Winchester. Obviously, the Crown could not cross-examine Mr. Young before the trier of fact.

[64] However, as mentioned above, threshold reliability may also be established by demonstrating substantive reliability, meaning that the statement has sufficient circumstantial guarantees of reliability or an inherent trustworthiness. To determine inherent trustworthiness, a court can consider the circumstances in which the statement was made and evidence that corroborates or conflicts with the statement: Bradshaw, at para. 30. The standard for substantive reliability is high, but absolute certainty about the reliability of the statement is not required: Bradshaw, at para. 31. If the statement is admitted, it remains for the trier of fact to assess the ultimate reliability of the statement; that is, to determine “whether, and to what degree, the statement should be believed, and thus relied on to decide issues in the case”: Bradshaw, at para. 39.

[65] There is also strong authority to support the appellant’s argument that, where hearsay evidence is tendered by an accused, a court should take a more relaxed view of the prerequisites to admissibility where it is necessary to do so in order to prevent a miscarriage of justice: Tash, at para. 89. This court in R. v. Caesar, 2016 ONCA 599, 339 C.C.C. (3d) 354 reviewed the authorities and cited the earlier decision of this court in R. v. Williams (1985), 18 C.C.C. (3d) 356 (Ont. C.A.), at p. 378, leave to appeal refused, [1985] S.C.C.A. No. 168, where Martin J.A. stated:

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.

[66] Blair J.A., writing for this court in Caesar, then summarized the authorities in the following way, at paras. 70-71:

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.

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. [Emphasis added.]

[67] The question of whether Mr. Young’s statement ought to have been admitted is a question of law. A ruling on the admissibility of hearsay evidence, if informed by correct principles of law, is owed deference by this court: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 36. However, deference ends if the application judge materially misapprehended evidence that is central to his ultimate assessment of the reliability of the hearsay statement: R. v. Dupe, 2016 ONCA 653, 340 C.C.C. (3d) 508, at para. 50.

(ii) The Statement Was Admissible Under a Relaxed Application of the Principled Approach to Hearsay

[68] In his ruling, the application judge found that threshold reliability had not been met because, in part, there was nothing about the circumstances in which the statement was made that attested to its reliability.

[69] As I read his reasons, the application judge found that it was unknown whether or not Mr. Young had a motive to lie. The application judge reasoned that the evidence shedding light on Mr. Young’s motive was ambiguous and the circumstances in which the statement was made did not negate the possibility that he was untruthful or mistaken. If Mr. Young wanted to come to the appellant’s assistance, there would have been no reason to tell Ms. Winchester to keep his confession from the appellant. Furthermore, he personally could have chosen to contact the authorities about his involvement in the offence with which the appellant was charged.

[70] The application judge also held that Mr. Young had a history of dishonesty, as disclosed by his lengthy criminal record, and that this was a factor to be considered in assessing the reliability of the statement.

[71] Finally, the application judge held that there did not appear to be any confirmatory evidence of what Mr. Young allegedly told Ms. Winchester, other than the fact that he reportedly made the comments on the date of the appellant’s arrest.

[72] In my view, the application judge’s ruling discloses a material misapprehension of the evidence led at the pretrial application and is therefore not entitled to the customary deference otherwise afforded to rulings of this nature. The application judge misapprehended the evidence about the context in which Mr. Young made the statement which, contrary to the application judge’s conclusions, tended to support the reliability of the statement. Given that this context offers some indicia of reliability, and bearing in mind the fact that this evidence was a crucial part of the appellant’s defence, the statement was admissible under the relaxed approach to admissibility outlined in Caesar.

[73] To be clear, Ms. Winchester’s evidence was not, as the application judge held, simply that Mr. Young had made comments on the date that the appellant had been arrested. Rather, her affidavit disclosed that Mr. Young made his statement after he had initiated contact with Ms. Winchester by repeatedly asking her if she had heard from the appellant on the date that the appellant was due to arrive. Ms. Winchester stated that it was several days after the appellant had returned from Jamaica that she became aware that the appellant had been arrested. Ms. Winchester then confronted Mr. Young and asked him to tell her “the real deal” about why he kept asking about the appellant. As I have set out above, Mr. Young’s response to Ms. Winchester demonstrated concern and fear of his drug dealer. His proposal was to control the disclosure of this information.

[74] In my view, the fact that Mr. Young made the statement immediately after Ms. Winchester confronted him with the appellant’s arrest for importing cocaine; that it was Mr. Young who initiated first contact and acted in a suspicious manner when the appellant was initially due to arrive to Canada; and that Mr. Young was fearful of his drug dealer and begged Ms. Winchester not to tell the appellant so that he could control the disclosure of this information were all circumstances that supported the substantive reliability of the statement.

[75] The application judge’s misapprehension of the evidence regarding the context in which Mr. Young made his statement also infected his conclusion that Mr. Young’s motive was ambiguous. Ms. Winchester stated that Mr. Young was fearful and concerned for his own safety. These circumstances support the inference that Mr. Young’s motive to keep this information confidential until he could reveal the scheme at the appellant’s trial, was to protect both himself and the appellant from his drug dealer. I therefore disagree with the application judge that Mr. Young may have been lying given the alleged inconsistency between his expressed desire to help and his request that Ms. Winchester not yet disclose this information to the appellant.

[76] As I have explained, and contrary to the application judge’s conclusions, the statement bore some indicia of reliability. I acknowledge that, given the high standard for threshold reliability described in Bradshaw, the statement would not be admissible on a strict application of the rules. However, the application judge also failed to address the appellant’s submission that he should relax the assessment of threshold reliability, since the evidence of Mr. Young’s statement was crucial to the only issue that was going to be litigated at trial: the appellant’s knowledge. I conclude that this was a case where a strict adherence to the rules of threshold reliability was not warranted.

[77] This evidence was central to the defence. As my colleague points out, at trial, the appellant was permitted to lead evidence of Mr. Young’s propensity to commit the offence as a third-party suspect. For example, his lengthy criminal record was admitted into evidence. It contained entries for drug possession and trafficking. The jury was also told that he died from a cocaine and fentanyl overdose before trial. Finally, the trial judge explained to the jury in her charge that, if there was evidence demonstrating that Mr. Young organized a scheme for the appellant to unknowingly commit the offence, then that evidence, taken together with the rest of the evidence, may leave them with a reasonable doubt about whether the appellant had the knowledge required to convict her.

[78] It seems to me that there is a substantial disconnect between the application judge’s ruling rendering Mr. Young’s statement to Ms. Winchester inadmissible and the fact that the appellant was subsequently permitted by the trial judge to point to Mr. Young as a viable third-party suspect. In my view, it was manifestly unfair to the appellant that she was prevented from introducing the most crucial piece of evidence to support her defence. Ms. Winchester was available to be cross‑examined before the jury. The jury could decide whether or not to accept Ms. Winchester’s evidence that Mr. Young had made the statement after being confronted by her, in the circumstances described in her affidavit, as well as whether or not to believe the statement and rely on it to decide the issue of the appellant’s knowledge. The probative value of Mr. Young’s statement outweighed any prejudice to the Crown in adducing it, in light of the viable third-party suspect defence advanced at trial.

[79] In fairness to the application judge, the third-party suspect application was brought later in the trial, after he had already given his evidentiary ruling. He had not been asked to rule on the third-party suspect application by the time of his evidentiary ruling. However, had that successful application been brought before the application judge, it likely would have been an important consideration in the analysis.

[80] I would give effect to this ground of appeal. Rigid adherence to the strict rules of evidence in this case led to an unfair trial. The statement was admissible under the relaxed approach to the principled exception to the hearsay rule outlined in Caesar.

(3) Did the Trial Judge Err in Leaving Wilful Blindness as a Route to a Guilty Verdict?

[81] It is unnecessary to deal with this ground of appeal.

C. Disposition

[82] I agree with Jamal J.A.’s proposed disposition of this appeal. I would allow the appeal and order a new trial.

Released: July 26, 2021 “R.G.J.”

“S. Coroza J.A.”

[1] Outside the presence of the jury, appellant’s trial counsel objected to this line of questioning as suggesting that “poverty in other words is tantamount to motive to commit an offence”: Transcript, October 12, 2018, at p. 145. The trial judge stated that this was “for the jury to decide”: Transcript, October 12, 2018, at p. 146. Because this line of questioning was not raised as a ground of appeal, I will not address it further.