COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rowe, 2021 ONCA 684

DATE: 20211006

DOCKET: C67618

Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Lance Rowe

Respondent

Tom Lemon and Bari Crackower, for the appellant

Marianne Salih and Jeffery Couse, for the respondent

Heard: March 25, 2021 by video conference

On appeal from the acquittals entered by Justice Peter Bawden of the Superior Court of Justice, sitting with a jury, on October 16, 2019.

Fairburn A.C.J.O.:

A. Overview

[1] The respondent was tried by a judge and jury on a two-count indictment: (1) possession of cocaine for the purpose of trafficking; and (2) possession of the proceeds of crime. He was acquitted on both counts.

[2] The charges arose from an alleged drug transaction that was said to have taken place inside a vehicle that the respondent was driving. Britany Simpson was in the front passenger seat. The respondent parked the car in a parking lot and an unknown man entered the back seat of the car. According to the Crown, the unknown male bought cocaine from the respondent and exited the car. The respondent was then arrested by police who had been watching the vehicle from afar.

[3] Ms. Simpson was detained by police upon the respondent’s vehicle being searched. The search revealed cash and cocaine. Ms. Simpson was then arrested as well. A few hours later, after Ms. Simpson was informed that she was being unconditionally released, she provided a videorecorded statement to the police. She explained what she had witnessed, including that the respondent had weighed a white powdery substance and given it to the unknown male in the back seat in exchange for a handful of $20 bills. Ms. Simpson recanted that statement at trial, instead maintaining during her trial testimony that the respondent and the unknown male did nothing but “conversate”.

[4] Unsuccessful in the effort to refresh Ms. Simpson’s memory with the use of her prior statement, the Crown successfully applied to cross-examine her pursuant to s. 9(2) of the Canada Evidence Act, R.S.C., 1985, c. C-5 (“CEA”). Ms. Simpson refused to adopt the statement, claiming instead that she had lied to the police, simply telling them what she thought they had wanted to hear.

[5] In the face of her full recantation, the Crown applied to have the statement admitted for the truth of its contents under the principled exception to the rule against hearsay. That application was dismissed. In accordance with that ruling, the trial judge instructed the jury that, while they could consider Ms. Simpson’s prior police statement for purposes of determining her credibility, they could not consider the statement for the truth of its contents.

[6] This Crown appeal rests on what are said to be numerous errors in the trial judge’s hearsay ruling. I agree. The hearsay ruling contains multiple errors that resulted in the erroneous exclusion of this critical evidence. A new trial is required.

B. Background Circumstances Informing the Admissibility of the Hearsay Statement

(1) The Arrest and Search

[7] The respondent was being investigated for drug trafficking. The police obtained two search warrants: one for the respondent’s car and one for his residential address. The warrants were to be executed on March 27, 2018, the same day that the police planned to arrest the respondent.

[8] The police were waiting at a location where they knew the respondent would arrive. When he arrived, Ms. Simpson was seated in the front passenger seat of his car. The police saw another vehicle pull into the parking lot a short time later. An unknown male got out of the second vehicle and entered the back seat of the respondent’s car. While the police could not see exactly what took place within the car, it appeared to one officer that the man in the back seat and the respondent exchanged items. The unknown male then left the respondent’s car, returned to his own vehicle, and drove away.

[9] The respondent was then arrested by the police and Ms. Simpson was detained. During the vehicle search, a plastic bag containing 202 grams of cocaine was located on the rear floorboards behind the passenger seat. As well, $300 in $20 bills was found inside a compartment in the front console area of the car. Ms. Simpson was then arrested.

(2) Britany Simpson’s Videorecorded Statement

[10] The respondent was arrested just after 1:00 p.m. Ms. Simpson was arrested a short time later. A few hours after that, around 4:00 p.m., the police decided to release Ms. Simpson without charges. Before leaving the police station, she provided a videorecorded statement about what she witnessed in the respondent’s car. Ms. Simpson confirmed at trial that, prior to giving her statement: (1) the police told her that she was being unconditionally released; and (2) the police had offered her the opportunity to speak to a lawyer but she had declined to do so.

[11] In her videorecorded statement, Ms. Simpson provided significant details about what she saw during the transaction. Some highlights from Ms. Simpson’s statement include:

(1) The respondent and the unknown male in the back seat “didn’t discuss how much grams or anything like that … [the respondent] took the … bag out of the back seat.”

(2) The clear plastic bag contained a “powder” that was “white” and “soft”, but “it wasn’t a liquid.”

(3) The respondent retrieved the bag from “just behind me.”

(4) The man in the back seat “put [a] scale down in between the arm rest.”

(5) The respondent “had a scoop” and “poured out some” of the powder onto the scale, but “I’m not too sure how much.”

(6) When the men “finished … doing the exchange … [the respondent] put the bag … underneath his seat.”

(7) The unknown male then “asked [the respondent] if he had any weed. He said no he didn’t sell weed and then … the gentleman in the back seat gave him money.”

(8) “I saw them counting … He was counting the money … It was in twenties.”

(9) The respondent then “put [the money] in the front console”, described as the “compartment in his car like in the little console. Like there’s like a little pocket.”

[12] Ms. Simpson’s videorecorded statement demonstrated that she was an eyewitness to a cocaine transaction that took place inches away from her. And, importantly, her statement aligned with what was found during the search of the vehicle: (1) a clear plastic bag containing 202 grams of cocaine was located on the floor in the back of the vehicle, just behind the passenger seat; and (2) $300 in $20 bills were located in a compartment in the front console of the car.

[13] As I will now explain, by the time of the trial, Ms. Simpson testified that she only saw the respondent and unknown male “conversate”. In other words, unlike what she told the police, she did not see them engage in a cocaine transaction.

(3) Britany Simpson’s Trial Evidence and the Rulings that Followed

[14] Ms. Simpson was called as a Crown witness at trial. While her testimony was consistent with much of what she had previously told the police, it was inconsistent with respect to anything involving the respondent’s culpability. For instance, while she testified that the unknown male entered the back seat of the car, she said that the respondent and unknown male did nothing more than talk or, as she put it, “conversate”. Not a hint of white power, a scoop, a plastic bag, a scale, or money was mentioned.

[15] While Ms. Simpson was given the opportunity to refresh her memory with a transcript produced from her prior videorecorded statement, she said that it was of no assistance. Accordingly, the Crown applied pursuant to s. 9(2) of the CEAto cross-examine Ms. Simpson on her prior inconsistent statement. That application was successful. The cross-examination was not.

[16] The trial judge noted in his s. 9(2) ruling that Ms. Simpson acknowledged that she had not been threatened or induced to make the videorecorded statement. I share that view. The trial judge also noted that there was nothing oppressive about the interview. From having read the transcript of that interview, I also share that view. The trial judge further noted that much of what Ms. Simpson said was “corroborated by information obtained by police through other aspects of the investigation.” I share that view as well.

[17] The trial judge then went on to explain in his s. 9(2) ruling what he thought was motivating Ms. Simpson’s recantation:

Having viewed the video and heard the evidence of Ms. Simpson in the presence of the jury and in a voir dire I do not believe she lacks memory due to the trauma of the arrest or that she fabricated evidence because she believed the police wanted her to implicate Mr. Rowe.

Based on all the evidence I believe that it is most likely that Ms. Simpson is trying to assist Mr. Rowe at this trial by giving false evidence. [Emphasis added.]

[18] Having concluded that Ms. Simpson was “most likely” lying, the trial judge permitted the Crown to cross-examine Ms. Simpson on her prior statement pursuant to s. 9(2) of the CEA. While Ms. Simpson acknowledged that she had said the things reflected in her police statement, she disavowed their truth.

[19] Contrary to what she had told the police, Ms. Simpson maintained that she had not seen cocaine in the car that day. Instead, she claimed that she told the police what she “assumed” they wanted to hear. She said she did that because she was concerned about being late to pick up her children and about the police possibly having to cut off some jewelry she was wearing. Even so, she acknowledged that: (1) before giving the statement, she knew she was being released without charges; (2) no one told her that her release was conditional upon giving a statement; (3) no one promised her anything in return for the statement; and (4) no one shared any details about the investigation with her.

[20] Following her recantation, the trial Crown signaled the desire to bring an application to have Ms. Simpson’s statement admitted for the truth of its contents under the principled exception to the rule against hearsay. The trial judge immediately commented that any such application would be “dodgy” in nature. He seems to have been of the view that the Crown had enough evidence without Ms. Simpson’s statement being admitted for its truth:

[The Crown] do[es]n’t by any stretch need in the larger context of [its] case to introduce the statement for the purposes of its truth it seems to me because frankly [it] already ha[s] quite a powerful case and … there’s no risk at all that any trier of fact is going to look at Ms. Simpson and think that she was the one who was in the possession of the cocaine in the car. [Emphasis added.]

[21] Despite the trial judge’s express reservations, the trial Crown informed the court the following day that she intended to pursue the hearsay application. The Crown’s concern was that the defence would suggest that the cocaine found in the vehicle belonged to someone other than the respondent and that he had no knowledge of its presence in the vehicle. If admitted for the truth of its contents, Ms. Simpson’s statement – an eyewitness account of the respondent selling the cocaine – would offer powerful evidence rebutting that anticipated defence position.

[22] The trial judge said that he would hear the matter at the end of the Crown’s case. Therefore, the Crown proceeded to call its last three witnesses.

[23] Later that day, when the Crown reached the end of her case, the trial judge said: “[B]efore you close your case I think you want to quickly for the record make submissions as to why I should admit the statement of Britany Simpson for the truth of its contents.” The transcript does not reveal that the Crown simply wanted to put something on the record. Rather, the record demonstrates that the Crown wanted to pursue the hearsay application in earnest.

[24] In any event, the trial Crown then offered the trial judge a copy of the decision in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865. The trial judge declined the offer, saying that he did he did not wish to hear submissions on the law. Instead, he wanted to hear the Crown address what “factually … makes out reliability in the circumstances” of the case.

[25] The Crown first addressed procedural reliability, explaining that a statement being videorecorded is a procedural safeguard for reliability, and that Ms. Simpson’s statement had been videorecorded. The trial judge interjected, suggesting that a videorecording was “not present in this case” because the Crown was “not in a position today to present the jury with the video.” The Crown confirmed that, if admitted into evidence, the videorecording would need to be edited for some prejudicial information in advance of playing it for the jury. It became clear that there would be no pause in the trial to permit the editing to take place.

[26] The trial judge then asked a couple more questions, which the Crown answered. The Crown then said, “I can continue my submissions or answer any other questions arising from that.” The trial judge cut her off, saying, “I think I have your submissions”. He dismissed the application for reasons to follow, adding that if the defence evidence “awakens [the] issue in a way which is presently utterly unforeseeable” then the Crown could revisit the ruling.

(4) The Defence Case: The Respondent and Sade Levene

[27] The respondent testified exactly as the trial Crown had anticipated, claiming that many other drivers used the car, including his brother, cousin, girlfriend, ex-girlfriend, and roommate. Accordingly, he accepted that cocaine was found in the car, but claimed to have no knowledge of its existence, the inference being that someone else must have left it there.

[28] Following the respondent’s in-chief testimony, the trial Crown requested permission to make submissions on “how the evidence that [the respondent] has given makes the hearsay evidence … highly probative” in the sense that Ms. Simpson’s statement placed “the drugs squarely in his hands moments before his arrest”. The trial judge answered, “Surely that hasn’t changed. You didn’t really think he was going to stand up and say anything other than he didn’t know?” The Crown then said she was having a “hard time understanding why that is not sufficiently material or probative to overcome any prejudice” but acknowledged that she would have to await the written ruling. That ruling was released about a month following the trial.

[29] At the end of the respondent’s evidence, the defence called Ms. Levene to the stand. She was the respondent’s former girlfriend and, essentially, took full responsibility for the cash and cocaine that was found in the car.

[30] Ms. Levene said that she had used the respondent’s car to go to the bank during the morning of the day that the respondent was arrested. She had taken out $300 in $20 bills, which she placed in the compartment of the vehicle where the gear stick is located. She also said that she met up with her then boyfriend after her attendance at the bank. She said that he asked her to hold onto a plastic bag for the day. She identified the bag that contained the cocaine as the one that her then boyfriend had given to her. She said that she had placed that bag “on the floor in the backseat kind of under the passenger seat.”

[31] In other words, she placed both the cash and the bag in the locations where they were later found by the police.

C. The Erroneous Approach to the Admissibility Inquiry

(1) Overview

[32] Hearsay is an out-of-court statement relied upon for the truth of its contents. Hearsay statements are presumptively inadmissible: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2.

[33] The primary rationale underlying the rule against hearsay is rooted in concerns over the inability to test the reliability of out-of-court statements. Absent the declarant being present in court and available for contemporaneous cross-examination, concerns over reliability prevail. These concerns include whether the statement is accurately recorded and whether the declarant accurately and honestly perceived, recalled, and narrated the events: Khelawon, at para. 2.

[34] Accordingly, the presumption against the admissibility of hearsay evidence is directed at improving the court’s “truth-seeking function”: Khelawon, at para. 2. However, there are times (like this case) when the exclusion of hearsay statements will directly undermine the court’s fact-finding process; where the exclusion of hearsay statements, rather than their admission, will “impede accurate fact finding”: Khelawon, at para. 2; Bradshaw, at para. 22.

[35] Accordingly, trial judges perform an important gatekeeping function when considering whether the presumption against admission has been rebutted. In making that determination, judges focus upon whether the twin criteria of necessity and threshold reliability have been met on a balance of probabilities: Bradshaw, at para. 23, referring to Khelawon, at para. 47. Even where that burden has been met, trial judges retain a residual discretion to nonetheless exclude the statements if their prejudicial effect outweighs their probative value: Khelawon, at para. 3.

(2) The Erroneous Approach to Necessity

[36] The trial judge’s assessment of necessity was as follows:

I will assume for present purposes that necessity is made out although I have reservations on the point. It is true that the Crown has been deprived of the fulsome description of a drug transaction which appears in Ms. Simpson’s statement to police. There is, however, reliable evidence from other sources which would permit the jury to infer that a drug transaction took place without considering Ms. Simpson’s statement for the truth of its contents. [Emphasis added.]

[37] The appellant argues that the trial judge erred in his necessity analysis. In particular, the appellant argues that, even though the trial judge said that he was prepared to “assume” necessity had been made out, read in context, he did not accept that fact. As a result, his expressed “reservations” about necessity infected the balance of his decision.

[38] The respondent maintains that, even if the trial judge was wrong about how he expressed his reservations, it had no effect on the result, since his reasoning must ultimately be taken at its highest. The fact that the trial judge said that he was prepared to assume that necessity had been made out should be accepted by this court and provide a full answer to this objection on appeal.

[39] I start with the observation that the trial judge’s expressed reservation about whether necessity had been made out appears to rest on his view of the overall strength of the Crown’s case. The trial judge saw the Crown’s case as a strong one and equated that view with a lack of necessity. As in the passage just quoted, the trial judge emphasized that “without considering Ms. Simpson’s statement for the truth of its contents”, the jury had “reliable evidence from other sources” that would permit the inference that a drug transaction took place. Later in his reasons, the trial judge put the point succinctly: “the Crown hardly needs the statement to make out its case” (emphasis added).

[40] In my view, the trial judge erred by approaching necessity from the perspective of what he thought the Crown needed to “make out its case.” Every participant in a criminal trial operates within their own zone of responsibility. That is how fair trials that lead to just verdicts are best achieved. It was for the Crown, not the trial judge, to determine what evidence was necessary to prosecute the matter; it was for the trial judge to adjudicate upon any admissibility issues that might have arisen from the Crown’s decisions in that regard.

[41] Under the principled exception to the rule against hearsay, necessity is not measured by the overall strength of the case of the party seeking admission of the statement for the truth of its contents. That is, “[t]he criterion of necessity […] does not have the sense of ‘necessary to the prosecution’s case’”: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 933.

[42] Rather, necessity is measured by availability. Sometimes a hearsay statement becomes unavailable because a witness goes missing, dies, or is otherwise unavailable to testify. And sometimes a statement becomes unavailable because a witness is present and available to testify, but refuses to do so or, as in this case, recants the earlier statement. In the case of a recantation, the “recanting witness holds the prior statement, and thus the relevant evidence, ‘hostage’:” R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at p. 799. In these circumstances, necessity arises from the unavailability of the testimony that would otherwise reflect the content of the prior relevant statement: Khelawon, at para. 78.

[43] Accordingly, “[w]here a witness recants from a prior statement, necessity is established”: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 22. It is that simple. The focus then turns to threshold reliability.

[44] While I accept that the trial judge did as he stated – that he “assume[d] for present purposes that necessity [was] made out” – the erroneous observations he made about the fact that, in his view, the Crown “hardly” needed Ms. Simpson’s statement bled into his analysis regarding the exercise of his residual discretion. I will come back to this point later in these reasons.

(3) The Erroneous Approach to Threshold Reliability

(a) Overview

[45] Threshold reliability can be shown by demonstrating that there are: (1) adequate substitutes in place to test the truth of the statement (“procedural reliability”); or (2) sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (“substantive reliability”): Bradshaw, at para. 27; Khelawon, at paras. 61-63; and Youvarajah, at para. 30. Procedural and substantive reliability do not exist in mutually exclusive silos, but rather work in tandem to overcome hearsay dangers: Bradshaw, at para. 32; R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22. Therefore, strength in one area, such as substantive reliability, can be compensated for by procedural reliability and the opposite is also true.

[46] The appellant maintains that the trial judge erred in his approach to both procedural and substantive reliability. I agree. I will address each in turn.

(b) Procedural Reliability

[47] Because hearsay evidence is not given by a witness in court under oath or affirmation, and is not subjected to the typical rigours of contemporaneous cross-examination, procedural reliability focuses upon whether there exist adequate substitutes for testing the statement: Bradshaw, at para. 28; Khelawon, at para. 63.

[48] Over time, courts have come to recognize three ways of rationally evaluating the truth and accuracy of hearsay statements from a procedural perspective: (1) the availability of the declarant to be cross-examined before the trier of fact; (2) the presence of an oath or solemn affirmation after a caution about the consequences arising from being untruthful; and (3) videotaping or recording the statement in its entirety: B. (K.G.), at pp. 795-96; Youvarajah, at para. 29.

[49] The trial judge was of the view that the “one and only procedural safeguard” present in this case was that Ms. Simpson’s statement was videorecorded, yet, in his view, that videorecording was not available to be played for the trier of fact. Accordingly, the trial judge formed the view that the statement contained no procedural safeguards.

[50] The appellant argues that the trial judge erred in numerous respects when he arrived at this conclusion.

(i) The Failure to Acknowledge the Availability of the Declarant for Cross-Examination

[51] First, the appellant maintains that the trial judge erred by failing to appreciate the single most significant procedural safeguard that was present: Ms. Simpson’s availability for cross-examination.

[52] While the respondent acknowledges that the trial judge overlooked the fact that Ms. Simpson was available for cross-examination, he claims that no harm was caused by this oversight because it would not have resulted in admissibility in any event. The respondent maintains that, because Ms. Simpson had lost her memory of what happened while she was seated in the car that day, a cross-examination on the statement to undermine its truth would have been useless. Accordingly, the respondent contends that, in the circumstances of this case, the procedural safeguard typically attaching to the availability of the declarant to be cross-examined was no procedural safeguard at all.

[53] I start with the observation that the availability of the declarant for cross-examination is widely considered the most important of the three procedural safeguards: R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at para. 39. The status of the declarant as a witness who can be cross-examined on a prior inconsistent out-of-court statement has been described as the “most powerful factor favouring admissibility”: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 95. The importance of the declarant’s participation in court before the trier of fact was again reinforced in Youvarajah, at para. 35, where this factor was described as the “most important factor supporting the admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents.” Indeed, as more recently noted in Bradshaw, at para. 28, “Some safeguards imposed at trial, such as cross-examination of a recanting witness before the trier of fact, may provide a satisfactory basis for testing the evidence” (emphasis added).

[54] The trial judge erred by failing to take this fundamental procedural safeguard into account during the admissibility analysis.

[55] Respectfully, I do not agree with the respondent’s suggestion that Ms. Simpson had no memory of the events in question and, therefore, could not have been cross-examined effectively. Ms. Simpson had a memory of that day, it just did not accord with her police statement. The juxtaposition was significant. In her police statement, she recounted in fine detail the cocaine trafficking that took place in her immediate presence. In her trial testimony, she explained that she had never seen the respondent in possession of cocaine and, on the day in question, only saw and listened to the respondent and unknown male “conversate.” That is not a lack of memory; it is an entirely different version of events.

(ii) The Overemphasis on the Lack of Oath and Caution

[56] Second, the appellant claims that the trial judge overemphasized the fact that the statement was not provided under oath or solemn affirmation, nor with any caution about the importance of telling the truth and the consequences of lying. The trial judge said:

The interview proceeded without any reference to the necessity of telling the truth. Ms. Simpson was not sworn. She was not provided with any form of caution regarding the potential consequences of being untruthful. There was no attempt to adopt any form of solemnity which would bring home to Ms. Simpson the necessity of providing a truthful statement.

[57] In my view, the trial judge placed undue emphasis on the factors relating to whether Ms. Simpson understood that she should tell the truth. While the trial judge is right that Ms. Simpson was not sworn or asked to affirm, nor was she cautioned about failing to tell the truth, these were not particularly concerning features of this case.

[58] While it would have been preferable for the police to have specifically brought the solemnity of the moment home to Ms. Simpson, it is difficult to imagine that she did not appreciate the need to tell the truth. The statement forming the subject of the admissibility inquiry was not made in a random location to a random member of the public. She was in a police station, while on video, speaking to police officers. She had been arrested earlier in the day and agreed that she had been told that she was going to be released without charges. In these circumstances, whether she was told it or not, it is highly unlikely that Ms. Simpson would not have appreciated the solemnity of the occasion and the need to tell the truth.

[59] In any event, the oath or affirmation was the least necessary of the procedural safeguards. To this end, I would echo the suggestion by Moldaver J.A. (as he then was) that, when an out-of-court statement is videorecorded and the declarant is available for cross-examination, “the oath has very little burden to shoulder in the threshold reliability assessment”: R. v. Trieu(2005), 2005 CanLII 7884 (ON CA), 74 O.R. (3d) 481 (C.A.), at para. 78. The situation described in Trieu is precisely the one here, with Ms. Simpson available for cross-examination and her recanted statement having been videorecorded.

(iii) The Treatment of the Statement as if it was not Captured on Video

[60] This takes us to the appellant’s third alleged error in the trial judge’s procedural reliability analysis: treating Ms. Simpson’s statement as if it was not videorecorded. As before, the trial judge formed the view that the “one and only procedural safeguard” in this case would have been that Ms. Simpson’s recanted statement had been videorecorded. Yet, in the trial judge’s view, because the videorecording required some editing, it had to be removed as a factor pointing toward procedural reliability:

The Crown is not able to play the video to the jury because of inadmissible utterances which have not been vetted from the digital file. Thus, if the statement were to be admitted, the jury would only hear the Crown read a transcript of the statement and would be deprived of its one and only procedural safeguard.

[61] The appellant argues that the trial judge erred by neutralizing the force of this procedural safeguard – the fact that the statement was videorecorded – simply on the basis that the videorecording required some editing. Further, the appellant argues that, even if the court was not prepared to give the Crown time to make the necessary edits, an accurate transcript of that videorecording existed and could have acted as an adequate substitute for the videorecording.

[62] The respondent does not dispute that the statement was videorecorded. Ultimately, though, the respondent emphasizes that failing to have the videorecording in a ready-to-play state means that the trial Crown must bear the sole responsibility for the trial judge’s treatment of the videorecording as non-existent, thus removing it from the procedural reliability calculus.

[63] The fact is that the videorecording was an important procedural safeguard attaching to Ms. Simpson’s statement. As Lamer C.J. described in B. (K.G.), videotaping is a powerful tool in respect of reliability because it essentially places the trier of fact in the same room as the declarant and the interviewer. As a result, “the experience of being in the room with the witness and the interviewing officer is recreated as fully as possible for the viewer … In a very real sense, the evidence ceases to be hearsay in this important respect, since the hearsay declarant is brought before the trier of fact”: at p. 793. Of course, when the declarant is a recanting witness, such as Ms. Simpson, not only is the declarant before the trier of fact on video, but she is also before the trier of fact in the witness stand.

[64] Accordingly, the importance of the videorecording to the determination of procedural reliability in this case cannot be denied. The question is whether the trial judge erred by treating Ms. Simpson’s statement as if it had not been videorecorded only because it was not in a ready-to-play state at the very moment of the admissibility voir dire.

[65] Context is important to understanding this issue.

[66] The appellant does not dispute that there were some prejudicial portions of the videorecording that would have required editing before the videorecording could be played for the jury. The need for those edits arose from the fact that Ms. Simpson told the police that the respondent went to the parking lot where he was subsequently arrested because he had told her that he needed to attend at a “probation”/“parole” appointment.

[67] Therefore, the need for edits was clear. What is not clear is how long that editing exercise would have taken. The reason it is not clear is that the trial Crown was essentially cut off from making submissions on this point at the voir dire.

[68] After the trial Crown submitted that the existence of the videorecording provided an important procedural safeguard, the trial judge announced that it was “not present in this case” because the trial Crown was “not in a position today to present the jury with the video.” The Crown responded that treating the matter as if there was no videorecording was:

putting the Crown in a difficult situation. I feel like if there was more time then I could rely on the availability of an edited video statement but it sounds as if given the timeline that the court would like us to follow I’m effectively stuck with … a written transcript which is still a … record of the statement.

[69] Clearly, the trial judge was of the view that the Crown should have been better prepared. As he said in his ruling, released nearly a month following the trial, “the Crown did not meet with Ms. Simpson prior to trial and had seemingly not anticipated that she would deviate from the statement which she made to police.” In the trial judge’s view, “[t]hat possibility should have been anticipated.”

[70] No one can dispute the central importance of moving trials along in an organized and efficient manner. Every party to the proceeding, including the court, is obliged to tackle the “culture of complacency towards delay”, a culture that was addressed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 40, and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 37. In order to achieve this laudable goal, it is necessary that the parties come to court organized and prepared to efficiently move the case forward.

[71] At the same time, it is not a rule of efficiency at all costs, including fairness.

[72] It is difficult to know what facts the trial judge relied upon to conclude that the Crown had fallen short by failing to anticipate that Ms. Simpson would recant. While he implied that the failure of anticipation arose from the failure to meet with the witness ahead of time, the record does not reveal why the Crown did not meet with Ms. Simpson.

[73] The court is not always privy to the things that motivate decisions around trial preparation. Speculation on these points can be a stranger to the truth. There are all manner of legitimate reasons why counsel may choose to meet or not meet with a witness ahead of trial and all manner of legitimate reasons why a witness may choose to meet or not meet with counsel ahead of trial.

[74] While the trial judge is to be commended for his concern over moving this jury trial forward in an efficient manner, his summary removal of the videorecording from the procedural reliability analysis, simply because he thought that the Crown should have “anticipated” the possibility of a recantation, was an error.

[75] Eight court days had been set aside for the trial, although the jury was told that it was likely to conclude in five or six days. By all accounts, the Crown had moved the prosecution forward efficiently. With the exception of the hearsay voir dire, the case for the Crown was complete by the afternoon of the fourth day of trial. Rather than cut off the Crown’s submissions about the importance of the existence of the videorecording, the trial judge should have explored how long it would have taken the Crown to produce the edited version of the video. The record reveals no reason to believe that this could not have been accomplished in very short order.

[76] With those meaningful inquiries having been made, the trial judge would have been in a better position to properly adjudicate upon the matter. If the editing exercise would have taken too long, particularly in the context of a jury trial, then the trial judge would have had to turn his mind to the existence of the transcript of the videorecorded statement as an alternative procedural safeguard. That transcript could have been edited in very short order, or the Crown could have read from the statement, simply leaving out the references to the prejudicial information.

[77] Yet the trial judge’s reasons suggest that he considered the transcript to be meaningless in the admissibility inquiry. While not as strong a procedural safeguard as the videorecording, the transcript, representing an accurate recording of that statement, was in fact also an important procedural safeguard that should have been considered in the admissibility analysis. Even if he had been right about treating the statement as if it had not been videorecorded, the trial judge erred by underestimating the procedural value of the transcript of Ms. Simpson’s statement.

(c) Substantive Reliability

[78] There is a critical distinction to be made between threshold and ultimate reliability. At the threshold stage, it is for the trial judge to determine whether there exist “sufficient indicia of reliability so as to afford the trier of fact ‘a satisfactory basis for evaluating the truth of the statement’”: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 83, citing R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 75; Khelawon, at para. 88. However, whether the statement is actually true remains within the exclusive jurisdiction of the trier of fact and, in a criminal trial involving a jury, it is “constitutionally imperative” that this be so: Khelawon, at para. 50.

[79] The trial judge reviewed the evidence that corroborated Ms. Simpson’s statement, of which there was a significant amount. In particular, the cash and cocaine found in the respondent’s vehicle, and the location of those items, accorded almost exactly with what she said in her statement. For instance, the twenty-dollar bills that she said that she saw the unknown male give to the respondent were found exactly where she said they had been placed by the respondent. As well, the plastic bag containing the white, powdery substance that she described was found near where she said it had been taken from. Coupled with the fact that Ms. Simpson acknowledged at trial that the police had not shared any investigative details with her, the corroboration arising from the search was nothing short of striking in nature.

[80] Even so, the trial judge concluded that the Crown had failed to establish substantive reliability. His reasoning is captured in the following passage:

Although this is compelling corroboration of Ms. Simpson's statement, I cannot find that it meets the standard set out in Bradshaw. The standard for substantive reliability is high. Given the circumstances of this case, I find that it is reasonably possible that Ms. Simpson fabricated her statement either to ensure her own release or to cover for her involvement in the drug transaction. I cannot say that the corroborative evidence is so strong that the only likely explanation for the hearsay statement is that Ms. Simpson was telling the truth. [Emphasis added]

[81] The trial judge then concluded that the “substantive reliability of the statement is insufficient to outweigh the complete lack of procedural guarantees of reliability” (emphasis added).

[82] I start with the observation previously made, that procedural and substantive reliability work together to overcome hearsay dangers. They exist in a symbiotic relationship, with strength in one area compensating for weakness in another: Bradshaw, at para. 32; Devine, at para. 22.

[83] For the reasons already set out, contrary to the trial judge’s suggestion that there was a “complete lack of procedural guarantees of reliability”, there were strong indicators of procedural reliability, the most important one being Ms. Simpson’s availability for cross-examination. Therefore, as a starting point, it was erroneous to conclude that the “substantive reliability of the statement” was insufficient to outweigh the “complete lack of procedural guarantees of reliability.” To the contrary, the substantive reliability of the statement simply added to the procedural guarantees present in this case, all pointing toward the admission of Ms. Simpson’s statement.

[84] Second, I would note that the trial judge seems to have been proposing an alternative explanation for Ms. Simpson’s statement, that she was fabricating to “ensure her own release or to cover for her involvement in the drug transaction.” While Bradshaw, at para. 48, instructs that when considering substantive reliability, the trial judge “must … identify alternative, even speculative, explanations for the hearsay statement”, the trial judge’s suggestion that Ms. Simpson was fabricating does not sit comfortably with the s. 9(2) CEA ruling provided during the trial proper.

[85] In the s. 9(2) ruling, as previously reviewed, the trial judge concluded that Ms. Simpson was “likely” trying to assist the respondent by “giving false evidence” at trial (by recanting her statement). Yet the hearsay ruling reveals a conclusion that it was “reasonably possible that Ms. Simpson fabricated her statement either to ensure her own release or to cover for her involvement in the drug transaction.” It is somewhat difficult to reconcile these different conclusions, particularly in light of the trial judge’s comment that his “findings on the principled exception to some degree incorporate [his] findings on the [s.] 9(2) [application].”

[86] Third, corroborative evidence can be “of assistance in establishing substantive reliability if it shows that [the] alternative explanations are unavailable”: Bradshaw, at para. 48. Ms. Simpson clearly admitted that the police did not share any details with her about what was found in the car nor the locations of such findings within the car. Therefore, considering the correspondence between what she told the police and what was found in the respondent’s car, it is difficult to determine how the corroborative evidence arising from the search did not meet the Bradshaw threshold.

[87] In my view, absent the errors in the procedural and substantive reliability analysis, Ms. Simpson’s recanted statement would have been found admissible.

(4) The Erroneous Exercise of Residual Discretion

[88] Finally, the trial judge held that, even if he was wrong in his conclusion about threshold reliability, he would “nevertheless exercise [his] residual discretion to exclude the statement in order to maintain a fair trial.”

[89] The appellant claims that the trial judge erred here as well because he went on, not to measure the probative value of the statement against its prejudicial effect, but instead to return to the concept of measuring the strength of the Crown’s case and then concluding that the evidence was simply unnecessary. As noted previously, in this part of his reasons, the trial judge said, “The Crown case might be stronger if the hearsay statement was admitted for its truth, but the Crown hardly needs the statement to make out its case.”

[90] For the reasons already articulated under the necessity analysis, the trial judge should not have entered this arena. The question to be resolved under the residual discretion prong was not whether the trial judge thought that the Crown had enough evidence to prove the elements of the offence, but whether the statement that formed the subject of the admissibility voir dire was probative of an issue in dispute (it was) and whether the prejudicial impact of admitting that statement outweighed its probative value.

[91] As for the statement’s prejudicial impact, the respondent emphasizes that the trial judge was properly concerned with the fact that admitting the statement for the truth of its contents could lead to “an element of reasoning prejudice” because it would trigger the need for an unnecessarily complex jury instruction.

[92] While I do not discount that the jury would have had to have been instructed on how to approach the statement had it been admitted for a hearsay purpose, the reality is that the jury already knew about the existence of the statement because of the s. 9(2) CEA ruling. Therefore, the jury already needed, and in fact had received, a decisive legal instruction about how to deal with the prior inconsistent statement they heard about during Ms. Simpson’s cross-examination by the trial Crown. That instruction required that the jury be told that the statement could be used solely for evaluating Ms. Simpson’s credibility and the weight the jury would give her evidence.

[93] In contrast, had the statement been admitted for the truth of its contents, then the instruction would have changed to reflect the fact that it was also part of the substantive evidence left for the jury’s consideration while engaged in their fact-finding function.

[94] While there is a significant legal difference between the instruction that the jury received, arising from the s. 9(2) cross-examination, and the instruction that the jury would have had to have received if the statement had gone the final distance and been admitted for the truth of its contents, there is little difference in the degree of complexity between those instructions. Both are well within the grasp of 12 intelligent members of the community to understand.

[95] In my view, the trial judge erred by failing to come to grips with the necessary balancing exercise he was called upon to complete under his residual discretion: weighing the probative value of the statement against its prejudicial effect.

[96] The probative value of the statement was high. It was the only evidence of an actual hand-to-hand exchange of cocaine for money. According to Ms. Simpson’s statement, she was an eyewitness to that transaction.

[97] At one point during submissions, the defence counsel at trial described the statement as “highly toxic”. I do not agree. A more accurate descriptor is that the statement was “highly probative”. Just because evidence is highly probative, does not mean it is toxic or prejudicial in any sense.

[98] By excluding Ms. Simpson’s hearsay statement, the truth-seeking function of the trial was undermined. By keeping that account from the jury’s consideration, the jury was left to deliberate only on Ms. Simpson’s exculpatory account of what went on in the car that day: a conversation between the respondent and the unknown male in the back seat. To return to Khelawon, at para. 2, and Bradshaw, at para. 22, having regard to the minimal dangers presented by the statement, its exclusion served to “impede accurate fact finding”.

D. Conclusion

[99] I am satisfied that the appellant has established that the erroneous ruling “might reasonably be thought … to have had a material bearing on the acquittal[s]”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14.

[100] I would set aside the acquittals and order a new trial.

Released: “October 6, 2021 JMF”

“Fairburn A.C.J.O.”

“I agree. K. van Rensburg J.A.”

“I agree Grant Huscroft J.A.”