CITATION: R. v. Duncan et al, 2016 ONSC 1126
COURT FILE NO.: CR-14-10000-582-0000
DATE: 20160217
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DAVIDE DUNCAN, KEVIN REILLY, and
RIKARDO ROBINSON
John Dick and Jason Miller Counsel for the Crown
Adam Boni, Counsel for Davide Duncan
Susan Adams, Counsel for Kevin Reilly
Daniel Rechtshaffen, Counsel for Rikardo Robinson
HEARD: January 4th to February 4th, 2016.
REASONS FOR JUDGEMENT
M.A. CODE J.
A. OVERVIEW
[1] The three accused, Davide Duncan, Kevin Reilly, and Rikardo Robinson (hereinafter, Duncan, Reilly, and Robinson), were charged in a two count Indictment with conspiracy to import a controlled substance into Canada and importing cocaine into Canada. They elected trial by jury and, at the end of about five weeks of trial, the jury convicted all three accused on both counts. They are presently awaiting sentencing.
[2] The first week of trial was taken up with a disclosure Motion (that was eventually withdrawn) and with jury selection. The Crown called its case in the second and third weeks of trial. The accused Reilly called a defence and all four counsel addressed the jury during the fourth week of trial. The charge to the jury and the jury’s deliberations took place in the fifth week of trial.
[3] I made two evidentiary rulings during the course of the Crown’s case, one of which admitted certain evidence and one of which excluded certain evidence. I gave short oral reasons at the time of both rulings, with more thorough written reasons to follow if time permitted. These are my written reasons in relation to the two evidentiary rulings.
B. FACTS RELEVANT TO THE TWO RULINGS
[4] In order to understand the factual context in which the two rulings arose, some appreciation of the delays that have been associated with this case as well as the fact that it has proceeded on two different trial dates before two different trial judges, is required. Duncan, Reilly, and Robinson were arrested and charged with the present offences on June 13th, 2007. They were convicted by the jury on February 4, 2016. It can be seen that their trial took place over eight and a half years after they were charged. This is an exceptional period of delay by any standards.
[5] There was no s.11(b) Charter Motion. It can therefore be inferred that the Court and the Crown were probably not responsible for any unreasonable delays. The accused had a preliminary inquiry that proceeded for 19 days, in late 2008 and early 2009, until their committal on March 12, 2009. The Indictment then spent over six and a half years in this Court. The Crown’s case depended heavily on intercepted communications and the defence brought a s.8 Charter Motion concerning the admissibility of the wiretaps. It appears that if took about two years to prepare and schedule the s.8 Motion as it was not heard until early 2012. After thirteen hearing days before Ducharme J., the s.8 Motion concluded on May 25, 2012. Ducharme J. dismissed the Motion on August 2, 2012. See: R. v. Duncan, Reilly and Robinson, 2013 ONSC 8044.
[6] It then appears from the endorsements on the Indictment that Legal Aid issues arose, as counsel were removed from the record and a Rowbotham Application was scheduled to be heard on June 17, 2013. These retainer issues were apparently resolved and all counsel attended judicial pre-trials in mid-2013. On July 8, 2013 the first trial date was finally set for September 8, 2014, some 14 months away. It was scheduled as an eight week jury trial. The trial commenced before Trafford J., as scheduled, but it became side-tracked by a lengthy Motion concerning the admissibility of hearsay (which I will describe in greater detail below). On October 31, 2014, Trafford J. ruled that the hearsay was not admissible. In the meantime, the accused Reilly had become ill and could not attend court.
[7] On November 27, 2014, a new trial date was set for January 4, 2016, some 13 months away. It was scheduled as a six week jury trial. Trafford J. was not available to resume conduct of the trial on that date and he declared a mistrial in relation to the initial trial that had commenced before him in September 2014. I then became the trial judge for what was effectively the second trial which proceeded as scheduled on January 4, 2016.
[8] While the above delays were taking place, the R.C.M.P. lost a small but perhaps useful piece of evidence. It was the loss of this evidence that led to the hearsay Motion at the first trial before Trafford J. in the fall of 2014, and to the two evidentiary rulings that I made at the second trial in January 2016. The background to the lost evidence is that the R.C.M.P. had seized a large empty aluminum baggage or cargo container at Pearson International Airport in Toronto on April 1, 2007, in the course of their investigation. The container was standing on the tarmac or apron near Gate C41 when the police found it. Any luggage or cargo that may once have been in the container had already been removed. However, the police discovered that the apparently empty container had a secret compartment below its floor. There were about 30 kilos of cocaine hidden in this compartment. The value of the cocaine was approximately $1.5 million. The three accused worked at the airport, as cargo handlers, and they had security passes which gave them access to the secure side of the gates where cargo and baggage containers arrive. The wiretaps linked the three accused to this particular container because of text messages and phone calls that referred to its unique serial number. It could be inferred from the wiretaps that the accused had been looking for the container in the days leading up to April 1, 2007.
[9] The seized container belonged to a company known as Unitpool which leased containers to certain airlines. The one airline at the Toronto airport that used Unitpool containers, at this time in 2007, was Air Transat. The R.C.M.P. found three Air Transat reservation cards, both in the exterior pouch of the seized container and on its floor. Air Transat flew between Toronto and various Caribbean countries that were known to the police as sources for the northern trans-shipment of cocaine from its southern countries of origin.
[10] In all these circumstances, it could be inferred that the container with its valuable cargo of cocaine hidden underneath the floor had arrived at the Toronto airport on an Air Transat flight, that the legitimate luggage or cargo had been emptied out of the container, and the importers had intended that someone with access to the secure side of the gate would pick up the apparently empty container and remove the cocaine from its secret compartment at a time and place when it would be safe to do so. The seized container had its ten digit serial number (XKN95255R7) prominently displayed on the outside. This serial number would have been plainly visible to anyone approaching the container on the tarmac or apron near gate C41 on the morning of April 1, 2007.
[11] The officer in charge of the R.C.M.P. investigation, Cst. DeSimone, contacted Air Transat’s airport manager, Max Corsi, during the 2007 investigation. Cst. DeSimone inquired about the provenance of the seized container and Mr. Corsi proceeded to search the Unitpool computer data base. The results of the computer search, according to what Mr. Corsi told Cst. DeSimone, was that the container had been on Air Transat’s flight from Montego Bay in Jamaica on the morning of April 1st, 2007. The flight had arrived in Toronto at about 2:00 am. The R.C.M.P. had found the container near gate C41 some nine hours later, at about 11:00 am. Mr. Corsi produced a print-out of the Unitpool records, tracking this particular container with its unique serial number to the Montego Bay flight. He provided a report, together with this print-out, to Cst. DeSimone in July 2007. Two of the accused (Duncan and Robinson) had links to Jamaica and there were references in the wiretaps to “his guys down there” or “them down there” or “the man down there”, in a context that suggested involvement by these other persons in the shipping of the container. The manner of communicating in the intercepted phone calls and text messages was cryptic and covert, when discussing cargo containers. In all these circumstances, linking the cocaine to some unknown shipper in Jamaica arguably had some probative value in the case.
[12] By the time that the first trial date was approaching in 2014, and the Crown was preparing for trial, some seven years had passed since Mr. Corsi first produced his report from the Unitpool electronic records. In the meantime, Cst. DeSimone had lost Mr. Corsi’s report and the related print-out from the Unitpool records. The R.C.M.P. approached Mr. Corsi in July 2014 and asked him if he could search the Unitpool records again and produce a second report for trial, tracing the route taken by the seized container. Mr. Corsi attempted to do this but, by 2014, the records had been purged from the Unitpool data base due to the passage of time. As a result, the Unitpool records derived from Mr. Corsi’s search of the company’s electronic data base could not be tendered at the trial that was about to begin before Trafford J. in September 2014.
[13] Given this predicament, the Crown brought a Motion before Trafford J. seeking to admit Cst. DeSimone’s notes of his communications with Mr. Corsi in 2007. The notes essentially recorded what Mr. Corsi had told Cst. DeSimone (either by telephone or by e-mail) about what Corsi learned from his computer search of the Unitpool data base. In other words, the police officer’s notes are double hearsay, recording what Mr. Corsi said about what was in the Unitpool data base. The Crown sought the admission of Cst. DeSimone’s notes pursuant to the principled exception to the hearsay rule. Defence counsel approached the Motion on this same footing. All counsel referred to it as a “Khelawon Motion”. In other words, the Crown was seeking to tender Cst. DeSimone’s notes for the truth of their contents pursuant to the principled exception to the hearsay rule, as explained in R. v. Khelawon, 2006 SCC 57, 215 C.C.C. (3d) 161 (S.C.C.).
[14] In lengthy and detailed reasons, released on October 31, 2014, Trafford J. held that Cst. DeSimone’s notes of what Max Corsi told him about the search of the Unitpool data base in 2007 was not admissible pursuant to the principled exception to the hearsay rule. See: R. v. Duncan, Reilly, and Robinson, 2014 ONSC 6251. It should be noted, however, that there was no serious dispute that the Unitpool records, tracing the history of its containers, are “business records” and they would have been admissible at trial if Cst. DeSimone had not lost them or if Unitpool had not purged them in the seven years between 2007 and 2014. As Trafford J. stated at p. 48 of his Reasons: “Had the ESI [electronically stored information] and the hardcopy of it not been lost, they would have been admissible as business records.”
[15] Mr. Corsi eventually testified before me at the second trial as to the various business duties associated with these records. The information in the records, concerning which containers were loaded onto which flight, originates in a report from the loading agent to the pilot which is used by the pilot to calculate the weight and balance of the plane and to determine whether it is safe for take-off. The same information is then forwarded to Unitpool and to Air Transat for their records. I am satisfied that all of these records are kept pursuant to important business duties that would easily satisfy the common law or s.30 Canada Evidence Act requirements for the admissibility of “a record made in the usual and ordinary course of business.” Mr. Corsi acknowledged that mistakes could sometimes be made by persons inputting the relevant information into the records but that he often used the Unitpool records and he found them to be quite reliable. See: Lederman, Bryant, and Fuerst, The Law of Evidence in Canada, 4th Edition (Lexis Nexis 2014) at pp. 295-315.
[16] It is curious that the Crown chose to approach its predicament, concerning the loss of Mr. Corsi’s report and the purging of the Unitpool records, by applying to admit Cst. DeSimone’s notes. Nevertheless, that is the path that was taken and that is the only issue on which Trafford J. ruled in October 2014. Once Trafford J. declared a mistrial in 2015, his ruling concerning the admissibility of Cst. DeSimone’s notes pursuant to the principled exception to the hearsay rule became binding at a subsequent trial. This is the effect of s.653.1, which is a relatively recent amendment to the Criminal Code enacted in 2011. It requires that a subsequent trial judge must follow rulings made prior to a mistrial unless it would “not be in the interests of justice.” See: Report of the Review of Large and Complex Criminal Case Procedures, Queen’s Printer for Ontario 2008, at pp. 57-67; Law Reform Initiatives Relating to the Mega Trial Phenomenon (2008) C.L.Q. 421 at 429.
[17] When the trial proceeded before me in January 2016, the Crown did not seek to re-visit the hearsay issue on which Trafford J. had ruled. Max Corsi testified early in the case, as the second Crown witness. He was not asked any questions in-chief concerning his successful search of the Unitpool data base in 2007 or his unsuccessful search in 2014, after the R.C.M.P. had lost his initial report and computer print-out. The Crown stayed away from the topic and elicited evidence from Mr. Corsi concerning other issues such as Air Transat’s exclusive use of the Unitpool containers at Toronto airport in 2007, the unique nature of container serial numbers, the fact that Air Transat reservation cards were found in the seized container’s external pouch and on its floor, and the schedule of five Air Transat flights from the Caribbean that had arrived at the Toronto airport in the early morning hours of April 1st, 2007, including the flight from Montego Bay. Mr. Corsi introduced Air Transat business records which showed the time of arrival of these five flights, the number of passengers, and the weight of the baggage and cargo on each flight.
[18] It was in cross-examination that the subject of the lost Unitpool records came up for the first time. Mr. Boni, counsel for Duncan, cross-examined first. He brought out the fact that the R.C.M.P. had approached Mr. Corsi in June 2007, had given him the serial number of a seized container, and had asked him to trace it. Mr. Boni brought out the further fact that Mr. Corsi had searched Unitpool’s records, had produced a report, and had then given it to Cst. DeSimone, both by e-mail and by providing the officer with a hard copy. Finally, Mr. Boni brought out the fact that the R.C.M.P. approached Mr. Corsi in 2014, advised him that his original report had been lost, and asked him to search the records again and replicate his earlier report. Mr. Corsi testified that when he took these further steps in 2014, he discovered that the Unitpool records had been purged due to the passage of time, and that the records tracking the seized container could no longer be produced.
[19] Prior to re-examination, the Crown applied for two remedies: first, the Crown sought to re-examine Mr. Corsi on his recollection of what he had found in 2007 when he first searched the Unitpool records; and second, the Crown sought to elicit evidence from Cst. DeSimone (once he testified) as to what Mr. Corsi had told him about the results of his 2007 search of the Unitpool records. The Crown submitted that Mr. Boni had opened the door to these issues by his cross-examination of Mr. Corsi. I ruled in favour of the first remedy but I denied the second remedy. My reasons for these two rulings are set out in the following section of this judgment.
C. ANALYSIS
[20] Both of the rulings sought by the Crown emerged from Mr. Boni’s cross-examination of Mr. Corsi. However, they raised fundamentally different issues in the law of evidence. The first ruling, concerning Mr. Corsi’s recollection of his 2007 search of the Unitpool records, engages the “best evidence” rule. It also concerns the proper scope of re-examination. The second ruling, involving Cst. DeSimone’s evidence as to what Mr. Corsi told him in 2007 about his search of the Unitpool records, engages the rule against bolstering credibility with prior consistent statements. It also engages the exception to that rule where there is an allegation of “recent fabrication.”
[21] In light of these very different evidence law principles, I will set out the reasons for the two rulings separately.
(i) The first ruling: Max Corsi’s recollection of the lost evidence
[22] The starting point in relation to the first ruling is that the Unitpool records, initially produced by Mr. Corsi in 2007 from the company’s electronic data base, were admissible in evidence pursuant to the “business records” exception to the hearsay rule, as explained above. When admissible primary evidence in documentary form has been lost or destroyed, the “best evidence” rule permits secondary evidence to be tendered in some circumstances as to the contents of the lost evidence. That is what the Crown sought to do in its re-examination of Mr. Corsi.
[23] There is an excellent discussion of the “best evidence” rule in Lederman, Bryant and Fuerst, The Law of Evidence in Canada, supra at pp. 1253-1263. I have borrowed heavily from the analysis set out in this leading text.
[24] The modern rule has been explained in two Ontario Court of Appeal criminal cases. In R. v. Swartz et al., 1977 CanLII 1925 (ON CA), 37 C.C.C. (2d) 409 (Ont. C.A.), the police in Montreal had surreptitiously tape recorded many hours of conversations between certain underworld figures in 1974. This was in the era before Part VI of the Criminal Code was enacted with its strict limitations on police wiretapping. The Montreal police generally did not use wiretaps as evidence in court at this time and so their practice was to destroy the original tape recordings. As the court put it in Swartz, “a record only of significant conversations was kept by re-recording such significant parts on fresh tapes.” The issue on the Swartz appeal was the admissibility, at a Toronto trial, of these edited re-recordings after the destruction of the original tapes. Jessup J.A. (Arnup and Zuber JJA. concurring) stated the following:
Of the “best evidence” rule Halsbury states in 17 Hals., 4th ed., pp. 8-9, para. 8:
That evidence should be the best that the nature of the case will allow is, besides being a matter of obvious prudence, a principle with a considerable pedigree. However, any strict interpretation of this principle has long been obsolete, and the rule is now only of importance in regard to the primary evidence of private documents. The logic of requiring the production of an original document where it is available rather than relying on possibly unsatisfactory copies, or the recollections of witnesses, is clear, although modern techniques make objections to the first alternative less strong.
The rule itself, in its relatively modern form, did not absolutely exclude secondary evidence. It is stated by Lord Esher, M.R., in Lucas v. Williams & Sons, [1892] 2 Q.B. 113 at p.116:
“Primary” and “secondary” evidence mean this: primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation is given of the absence of that better evidence.
Lord Denning would remove the question of secondary evidence entirely from the area of admissibility to that of weight. In Garton v. Hunter, [1969] 2 Q.B. 37 at p. 44 he said:
It is plain that Scott L.J. had in mind the old rule that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded. That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in your hands, you must produce it. You cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility.
However, the counsel of prudence mentioned by Halsbury accords with the principle stated by McCormick’s Handbook of the Law of Evidence, 2nd ed. (1972), p. 571:
If the original document has been destroyed by the person who offers evidence of its contents, the evidence is not admissible unless, by showing that the destruction was accidental or was done in good faith, without intention to prevent its use as evidence, he rebuts to the satisfaction of the trial judge, any inference of fraud.
The same principle should apply to tape recordings.
In the present case, in my opinion, the onus mentioned by McCormick was met by the Crown. Here the destruction of the original tapes was done in good faith and the re-recordings are acknowledged to be authentic.
[25] On further appeal to the Supreme Court of Canada, Pigeon J. set out the above passages from the Court of Appeal’s reasons and stated, “I can see no reason to doubt the correctness of the opinion thus expressed and I find it unnecessary to add anything on that point.” Martland J. and Dickson J. (as he then was), wrote separate reasons on the other issues in that case but they both agreed with Pigeon J. on the “best evidence" rule. Accordingly, Jessup J.A.’s reasons on this point in the Court of Appeal were unanimously adopted on the further appeal. See: R. v. Cotroni and Papalia, 1979 CanLII 38 (SCC), 45 C.C.C. (2d) 1 at 4, 7-9, and 26 (S.C.C.).
[26] Almost twenty years after Swartz was decided, the proper application of the “best evidence” rule was again before the Court in R. v. Shayesteh, 1996 CanLII 882 (ON CA), 111 C.C.C. (3d) 225 at 252-255 (Ont. C.A.). Charron J.A., as she then was (Carthy and Austin JJA. concurring) quoted the above passages from Swartz and described the rule in the following terms:
When considering any proposed method of proof, the old principle known as the “best evidence rule”, in my view, can still provide a useful starting-point. The rule may be used, not so much as a criterion for determining questions of admissibility and exclusion with respect to any item of evidence sought to be adduced, but as a general guide for choosing the appropriate method of proof. The parties (usually the Crown) should endeavour to put forth the best evidence “that the nature of the case will allow” (17 Hals., 4th ed., pp. 8-9, para. 8) for consideration by the triers of fact. Such evidence can then be supplemented by secondary evidence to the extent that such secondary evidence remains relevant. What particular use will be made of the evidence during the course of the trial then becomes essentially a matter of discretion for the trial judge depending on the particular circumstances of any given case.
[27] As I read the above authorities, the Crown has the burden of proving that the loss or destruction of the original Unitpool records “was done in good faith, without intention to prevent its use as evidence.” Mr. Corsi testified at trial that the Unitpool records had been purged due to the passage of time. In his testimony on the Motion before Trafford J. he explained (at pp. 18 and 20) that “the Unitpool data base deleted all such records after six months” and that “such data was retained for six months and then deleted by Unitpool in the normal course of business.” Mr. Corsi was not challenged in this regard and there can be no question that the loss of the original records was “done in good faith.” Cst. DeSimone testified at trial and he was not questioned about how the R.C.M.P. lost Mr. Corsi’s original 2007 report. His evidence before Trafford J. (at p.16) was summarized as follows: “My best recollection is that I received a report attached to an e-mail from Mr. Corsi … any such e-mail and any hardcopy of it are lost.” Trafford J. concluded as follows (at p.19): “Neither Cst. DeSimone nor Corsi presently has a printed copy of any such tracking history, or of any pertinent e-mail and attachment. The Unitpool data base and the R.C.M.P. data base deleted such information, if any, in the usual course of business” [Emphasis added].
[28] In my view, given the above circumstances, secondary evidence as to the contents of the original Unitpool records is admissible pursuant to the “best evidence” rule. The only question is whether Mr. Corsi’s recollection of those contents, as opposed to a hard copy, is admissible. This issue, which concerns the form of the “best evidence,” is discussed in Lederman, Bryant, and Fuerst, The Law of Evidence in Canada, supra, at pp. -3:
Secondary evidence has been admitted when the court is satisfied that the original document existed and it has been lost or destroyed. Proof of its loss or destruction need not be made by direct evidence, but may be proved circumstantially by showing that a reasonably diligent search has been made in the places where the document was likely to be found.
In R. v. C. (J.S.), the Alberta Court of Appeal concluded that the best evidence rule was not a bar to the admissibility of testimony describing the contents of a video that was unavailable to be played at trial due to administrative/investigative error. Commenting on an earlier decision in R. v. After Dark Enterprises Ltd., the Court noted:
In After Dark Enterprises this Court rejected the contention that the prosecution could not call any other evidence if real evidence on the same point was available to be seized and had not been seized. It commented that to do so would extend the best evidence rule far beyond its original purpose, which was simply to avoid fraud and forgery: at para 9. What is common to both cases is that the video was simply not available, and the Crown has provided an explanation as to why the video was not available.
In our view the best evidence rule does not preclude the admission of viva voce evidence of persons who observed the video (see R. v. Pham, 1999 BCCA 571 at paras 18-25, 139 C.C.C. (3d) 539). However, the evidence may vary greatly in its weight and reliability. In this case, the trial judge was entitled to admit the evidence of the police officers who testified about what they observed in the video, and to give it the appropriate weight. It was only one item among several pieces of evidence which the trial judge found to be confirmatory of the identification evidence.
A party tendering secondary evidence need not negate every possibility of the existence of the best evidence. Loss or destruction need not be proved directly or circumstantively where it is impossible or highly inconvenient to produce the original, for example, where the characters are on something such as a wall, monument, or other thing which cannot very well be removed. So far as admissibility is concerned, there are no degrees of secondary evidence, and oral evidence of the contents of a paper from a person who has read it and a copy of the document are put exactly on the same footing. While more weight may be attached to a copy of a document than oral evidence of it, there is no requirement to account for copies before oral evidence can be adduced [Emphasis added].
[29] Applying the above approach, I was satisfied that Mr. Corsi could testify as to his recollection of the results of the computer search of the Unitpool records that he conducted in 2007. He testified that he recalled the results because it was the only time in the last eight and a half years that he had been asked by the police to track a container. I gave the defence a right of surrebuttal, in order to test the reliability of Mr. Corsi’s recollection, and Ms. Adams conducted further cross-examination in this regard on behalf of the defence. I also required the Crown to comply with s.31.2(1)(a) of the Canada Evidence Act which provides: “The best evidence rule in respect of an electronic document is satisfied on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored.” Mr. Corsi testified, as previously noted, as to the important business duties that led to the creation of these records and as to their general reliability. He also testified that there is limited access to the data base. Only three Air Transat employees had access and he was one of them. Finally, I set out the evidence relating to this issue in the Charge to the Jury (at pp. 83-4) so that the jury could evaluate it. Of course, the weight to be given to Mr. Corsi’s recollection of his 2007 computer search results was entirely a matter for the jury. I also stressed early in the Charge (at pp. 17-29) that the entire body of circumstantial evidence was to be considered, in its totality and not piecemeal, and that Mr. Corsi’s tracking history was only one of at least thirteen different items of relevant circumstantial evidence.
[30] The only remaining issue relating to this first ruling was whether it came properly within the scope of re-examination. It was argued, somewhat faintly, that the Crown could not re-examine on this issue because the Crown had not addressed it during examination-in-chief. I do not accept this submission. The Crown avoided the topic of the 2007 search of the Unitpool records, undoubtedly because of Trafford J.’s earlier ruling. It was an issue that was raised for the first time in cross-examination. The defence stressed one aspect of the issue, namely, that a record of the container’s tracking history had existed but that the police had lost it. The other aspect of this issue, which the defence did not mention, concerning the results or the contents of Mr. Corsi’s 2007 search of the tracking history records. Undoubtedly, this careful and selective cross-examination was conducted because it was thought to be helpful to the defence. It left the impression or the possible inference that there was a gap in the Crown’s case concerning the tracking history, that the gap was caused by police negligence, and that Mr. Corsi’s report might have been helpful to the defence if it had been preserved. See: R. v. Bero, 2000 CanLII 16956 (ON CA), 151 CCC (3d) 545 at paras. 54-67 (Ont. C.A.).
[31] Mr. Boni’s cross-examination of Mr. Corsi, based on the principles set out in Bero, was entirely proper and he resorted to it with a number of witnesses throughout the trial, pointing to gaps or failings in the police investigation which left the possible inference that a more thorough and complete investigation might have helped the defence. However, these areas of cross-examination, once raised by the defence, were not immunized from re-examination. As Watt J.A. put it in R. v. Candir, 2009 ONCA 915, 250 C.C.C. 139 at para. 145 (Ont. C.A.), citing a line of prior authority, “Where the defence asserts an inadequate investigation…the prosecutor is entitled to a fair opportunity to rebut the defence assertion.” The Crown is not expected to conduct its examination-in-chief of each witness with perfect foresight of every area of investigative negligence that the defence might raise in cross-examination. The cross-examination of Mr. Corsi left an incomplete and potentially misleading picture, because Mr. Corsi had not been asked about the results or contents of his records search in 2007. The inference left hanging, pursuant to the principles explained in Bero, was that the results might have been helpful to the defence. In fact, the results were arguably useful to the Crown in that they tended to establish a link between the cocaine seized in Toronto and unknown exporters located in Jamaica.
[32] All of the leading texts on evidence law stress that re-examination is limited to matters that are raised in cross-examination, which is exactly what occurred in the present case. Lederman, Bryant, and Fuerst, The Law of Evidence in Canada, supra at p. 1188, states:
The purpose of re-examination is to enable the witness to explain and clarify relevant testimony which may have been weakened or obscured in cross-examination. The witness is not ordinarily allowed to supplement the examination-in-chief by introducing new facts which were not covered in cross-examination. The general rule is that re-examination must be confined to matters which arose out of cross-examination.
[33] Justice Watt’s Manual of Criminal Evidence, Carswell 2014, at p. 292 states:
Where cross-examination has taken place, the party who called the witness is entitled to re-examine. The scope of re-examination is limited to matters about which the witness was cross-examined. Re-examination is not re-examination-in-chief.
The purpose of re-examination is largely rehabilitative and explanatory. The witness is afforded the opportunity, under questioning by the examiner, to explain, clarify or qualify answers given in cross-examination that are damaging to the party’s case. There is no right, however, to introduce new matters in re-examination, subjects that should have been canvassed, if at all, in examination-in-chief.
[34] Professor Schiff’s Evidence in the Litigation Process (Carswell 1988), 3rd Ed. at p. 216, sets out the following description of the scope of re-examination.
The party calling a witness has had full opportunity during examination-in-chief to elicit all the testimony the witness can give supporting the party’s case. Thus, when counsel later re-examines the witness, considerations of fairness to the opponent and efficiency in trial administration ordinarily bar testimony on wholly new matters and repetition of testimony given in chief: the proper target of re-examination is matters raised for the first time during cross-examination. Counsel will therefore seek testimony explaining, avoiding or qualifying statements the witness made on cross-examination. For example, counsel may draw from the witness additional facts putting in helpful perspective (or at least neutralizing) facts revealed in cross-examination which tend to discredit the witness or damage the calling party’s substantive case. He may have the witness clarify the intended meaning of ambiguous expressions used in answering the opponent’s questions. If part of some transaction, conversation or writing was brought out on cross-examination, counsel may have the witness detail other parts relevant to the part earlier revealed [Emphasis added].
[35] In my view, the above emphasized passages in Professor Schiff’s text squarely cover the Crown’s re-examination of Mr. Corsi in the case at bar. Recent authorities from the Court of Appeal support the view that, where cross-examination has left out some part of “a full and accurate picture” of a particular topic and has “left the jury with an incorrect impression,” re-examination is permitted “to correct the erroneous impression.” See: R. v. Stiers, 2010 ONCA 382, 255 C.C.C. (3d) 99 at paras. 37-39 (Ont. C.A.); R. v. Candir, supra at paras. 145-153 (Ont. C.A.).
[36] In conclusion, the re-examination of Mr. Corsi was permitted under the “best evidence” rule and it was properly within the scope of re-examination in relation to a topic that had been raised for the first time in cross-examination. I therefore ruled that the Crown could proceed with the proposed re-examination.
[37] I should note that there was no suggestion that Trafford J.’s earlier ruling had the effect of prohibiting the proposed re-examination of Mr. Corsi. Trafford J. had only ruled that Cst. DeSimone’s notes of what Corsi had told him in 2007 were inadmissible, under the principled exception to the hearsay rule. He was never asked to rule on whether Mr. Corsi himself could testify, based on the “best evidence” rule, as to what he recalled of his own 2007 computer search of the Unitpool records. This issue was squarely raised by Mr. Boni’s cross-examination of Mr. Corsi, as defence counsel focused on the loss of the 2007 search results and on Mr. Corsi’s present inability to conduct a further search, due to the deletion of the computer records. Accordingly, the “best evidence” issue came before me at the second trial as a matter of first impression.
(ii) The second ruling: Cst. DeSimone’s account of what Max Corsi told him in 2007
[38] The Crown applied for both of the remedies it was seeking at the conclusion of Mr. Corsi’s cross-examination, on January 12, 2016. I ruled in favour of the first remedy, namely, re-examination of Mr. Corsi as to the results of his 2007 records search, after hearing argument that same day. I deferred any ruling as to the second remedy concerning testimony from Cst. DeSimone about what Mr. Corsi had told him. I wanted to first hear Mr. Corsi’s testimony about his 2007 records search, including any further cross-examination by the defence concerning Corsi’s recollection of the results of his search.
[39] Three days later, on January15, 2016, the Crown renewed its application to elicit evidence from Cst. DeSimone (who was to be the next witness) about what Max Corsi had told him in 2007 as to the results of his computer search. The Crown anticipated that Cst. DeSimone would testify that Corsi told him that the seized container had arrived in Toronto on April 1, 2007 on Air Transat’s early morning flight from Montego Bay. This was the evidence that Trafford J. had ruled inadmissible in his October 31, 2014 ruling on the “Khelawon Motion.” I need not consider Trafford J.’s analysis of the admissibility of Cst. DeSimone’s notes, pursuant to Khelawon and the principled exception to the hearsay rule. That analysis focuses on the admissibility of the officer’s notes as hearsay, that is, when they are used to prove the truth of their contents concerning the tracking history of the seized container. That was no longer the issue that was before me on January 15, 2016 at the second trial. Max Corsi had already testified as to the hearsay contents of the Unitpool records, pursuant to the “business records” exception to the hearsay rule and the “best evidence” rule. The purpose of eliciting evidence from Cst. DeSimone, about what Corsi had told him in 2007, was simply to prove a prior consistent statement. That is a non-hearsay use of the evidence, namely, proving the fact of prior consistency.
[40] It is settled law that a witness’ prior consistent statement is generally inadmissible, not because it is hearsay but because it is self-serving and of little probative value. However, there are exceptions to the rule, in particular, to rebut an allegation of “recent fabrication.” The rule and its exceptions are explained in Lederman, Bryant and Fuerst, The Law of Evidence in Canada, supra at pp. 407-9:
There is a general exclusionary rule against the admission of self-serving evidence to support the credibility of a witness unless his or her credibility has first been made an issue. The rule is generally applied to prior consistent statements of the witness. A witness, whether a party or not, may not repeat his or her own previous statements concerning the matter before the court, made to other persons out of court, and may not call other persons to testify to those statements. Although contradictory statements may be used against a witness, “you are not entitled to give evidence of statements on other occasions by the witness in confirmation of her testimony.”
A number of exceptions to the rule have developed in common law permitting the introduction of a witness’ prior consistent statement when credibility has been impeached. The purpose of such evidence is generally limited to bolstering the witness’ credibility by showing consistency with his or her testimony, and is not evidence of the truth of the earlier assertion.
[41] The Crown sought to bring itself within the “recent fabrication” exception to the rule. In this regard, the Crown pointed to Ms. Adams’ surrebuttal cross-examination of Mr. Corsi in which she brought out the fact that the R.C.M.P. had sent Mr. Corsi a particularly suggestive e-mail in July 2014, after his original 2007 report and print-out had been lost, asking him to replicate his “tracking history for the container.” The e-mail went on to tell Mr. Corsi that, “there’s other evidence that the container came from Montego Bay.” The Crown submitted that the thrust of Ms. Adams’ cross-examination was to suggest that Mr. Corsi’s present recollection of the container’s tracking history was a recent invention, resulting from the July 2014 e-mail in which the R.C.M.P. effectively told Corsi what they wanted or needed him to say at the upcoming trial. On the other hand, the defence submitted that Ms. Adams’ cross-examination did nothing more than attack the present reliability of Mr. Corsi’s recollection of events that had happened eight and a half years ago, including the impact on that recollection of the intervening suggestive e-mail from the R.C.M.P. The defence submitted that this kind of attack on the general reliability of Mr. Corsi’s evidence did not amount to an allegation that he had concocted a false story, as required by the “recent fabrication” exception.
[42] I regarded this issue as a close judgement call, with good arguments on both sides. My ruling in favour of the defence, excluding Cst. DeSimone’s evidence as to what Mr. Corsi told him in 2007, turned largely on the narrow and restrictive way in which the “recent fabrication” exception has generally been framed in the Canadian case law. The narrow formulation of the exception is best illustrated by Finlayson J.A.’s reasons in R. v. O’Connor, 1995 CanLII 255 (ON CA), 100 C.C.C. (3d) 285 at 295 (Ont. C.A.):
I am of the view that an allegation of recent fabrication is no more than an allegation that the complainant has made up a false story to meet the exigencies of the case. The word “recent” means that the complainant’s evidence has been invented or fabricated after the event in question and thus is a “recent” invention or fabrication: see Wigmore at p. 274:
Of course, if the word “recent” in this court’s formulation of the exception, in the case above cited, means that the witness’s statement at the trial must have been assailed as being fabricated at some point before the trial, this was no case for applying the exception. But we think that “recent” as so used, has a relative, not an absolute meaning. It means, we think, that the defense is charging the witness, not with mistake or confusion, but with making up a false story well after the event (see Commonwealth v. Retkovitz, 222 Mass. 245, 250). “Recently fabricated” means the same thing as fabricated to meet the exigencies of the case (see Judge Werner’s discussion in People v. Katz, 209 N.Y. 311 at p. 340). Judge Hand in DiCarlo v. United States (6 F2d 364, 366), after careful examination of authorities and reasons, stated the exception thus: “that, when the veracity of a witness is subject to challenge because of motive to fabricate, it is competent to put in evidence statements made by him consistent with what he says on the stand, made before the motive arose” [Emphasis added].
[43] The O’Connor view, that “recent fabrication” means “making up a false story” at some point after the event in question, appears to have been adopted by the Supreme Court of Canada in R. v. Stirling, 2008 SCC 10, 229 C.C.C. (3d) 257 at 260-1 (S.C.C.). Bastarache J. gave the unanimous judgement of the full court and stated:
It is well established that prior consistent statements are generally inadmissible (R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398). This is because such statements are usually viewed as lacking probative value and being self-serving (Evans, at p. 643). There are, however, several exceptions to this general exclusionary rule, and one of these exceptions is that prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence (Evans, at p. 643; Simpson, at pp. 22-23). Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made – it is sufficient that the circumstances of the case reveal that the “apparent position of the opposing party is that there has been a prior contrivance” (Evans, at p. 643). It is also not necessary that a fabrication be particularly “recent”, as the issue is not the recency of the fabrication but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred (R. v. O’Connor, 1995 CanLII 255 (ON CA), 100 C.C.C. (3d) 285 (Ont. C.A.) at pp. 294-95). Prior consistent statements have probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose [Emphasis added].
[44] Subsequent cases have held that, “a fabrication can include being influenced by outside sources” and “can arise because outside sources have influenced the witnesses.” See: R. v. Ellard, 2009 SCC 27, 245 C.C.C. (3d) 183 at para. 33 (S.C.C.); R. v. T. (J.A.), 2012 ONCA 177, 288 C.C.C. (3d) 1 at para. 98 (Ont. C.A.). These cases both refer to an earlier case, R. v. A.J.B., 1995 CanLII 94 (SCC), 98 C.C.C. (3d) 95 (S.C.C.), where the Court held that cross-examination of the complainant in a sexual assault case, to the effect that “she came up with the allegation after reading a book … constituted an allegation of recent fabrication.” This line of authority bears some resemblance to what happened in the case at bar as the defence alleged that Mr. Corsi’s account had been “influenced by outside sources,” namely, the suggestive R.C.M.P. e-mail sent to the witness in 2014.
[45] It is unclear whether the Ellard line of authority intended to broaden the narrow O’Connor and Stirling approach to “recent fabrication.” The Ellard line of cases makes no reference to a competing line of authority which has adopted a broader conception of “recent fabrication.” Professor Schiff notes in Evidence in the Litigation Process, supra at p. 601, that most of the authorities have required “an accusation that the witness has deliberately fabricated his testimony” but that “a small minority has included an imputation that the witness has mentally reconstructed the event without any conscious dishonesty.” Professor Schiff questions whether the rationale for the exclusionary rule and its exceptions justifies “a limitation to accusations of perjured testimony.” Most notable amongst the minority line of cases, that take a more flexible or expansive approach to “recent fabrication”, is the Australia High Court decision, Nominal Defendant v. Clements (1960) 104 C.L.R. 476 (H.C. Aust.). It was followed by the English Court of Appeal in R. v. Oyesiku (1971) 56 Cr. App. R. 240 (C.A.). These authorities hold that the exception to the rule excluding prior consistent statements can arise from an attack “on the ground of recent invention or reconstruction,” that is, where opposing counsel “is laying a foundation for impugning the witness’ account of a material incident or fact as a recently invented, devised or reconstructed story,” as Dixon C.J. put it in Nominal Defendant [Emphasis added].
[46] The facts of Nominal Defendant, supra at 478-482, bear some resemblance to the case at bar. The plaintiff/respondent in that case was a seven year old boy who was hit and injured by a motor vehicle in 1954. The trial took place “more than four and a half years after the accident,” at which point the boy’s recollection of the relevant events was vigorously challenged in cross-examination. In particular, defence counsel suggested with some success that the boy “had been coached to give evidence by his father…some time in 1958.” Defence counsel made it clear, “I am testing his memory. I am not suggesting the boy is giving false evidence.” The trial judge ruled that the boy could be rehabilitated, in relation to the impact of any fatherly coaching in 1958, by admitting a prior statement that the “police had obtained [from the boy] two months after the accident” in 1954.
[47] On these facts, Dixon C.J. (McTiernan and Kitto JJ. concurring), upheld the trial judge’s ruling and stated (Nominal Defendant, supra at 480):
The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it [Emphasis added].
Windeyer J. gave a concurring judgement stating (Nominal Defendant, supra at 494):
The kind of imputations and allegations that – if sufficiently clearly made – will let in prior consistent statements are: First, that the witness’s testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated.
The description in Taylor on Evidence quoted above, “a design to misrepresent”, is misleading. A fraudulent design on the part of the witness is not essential. As Sholl J. has pointed out (Woodward v. Shea [1952] VicLawRp 40; (1952) VLR 313; Frankcombe v. Holloway [1957] VicRp 17; (1957) VR 139), a suggestion of recent invention does not necessarily involve a suggestion of deliberate falsification or a determination to commit perjury. It may, especially in the case of a young child or susceptible person, mean no more than that, at some time since the occurrence of which he speaks, some persuasion or influence or suggestion has been brought to bear on him, so that his testimony is not of what he saw and remembers but is what he has been induced to say [Emphasis added].
[48] I am not satisfied that Ms. Adams’ cross-examination of Mr. Corsi suggested that he had “made up a false story,” as required by the O’Connor approach, and all defence counsel undertook not to make this submission to the jury. I am satisfied that the cross-examination did suggest that Mr. Corsi’s evidence was “a recently … reconstructed story”, as required by the Nominal Defendant approach, and that the story had been “influenced by outside sources,” as required by the Ellard approach.
[49] It can be seen that there is some uncertainty in the case law concerning the meaning of “recent fabrication” and how to apply it to the facts of this case. I ultimately decided that the better course was to follow the narrow O’Connor and Stirling approach. As a result, I held that the defence had not alleged “recent fabrication” and that the Crown could not elicit evidence from Cst. DeSimone about what Mr. Corsi had told him in 2007.
[50] I should add that Dixon C.J. and Windeyer J.’s approach in the Nominal Defendant case seems to accord with principle. When a witness is impeached on the basis that a certain event (the suggestive 2014 e-mail from the R.C.M.P. in this case) influenced his story and rendered his present account unreliable, it is logically responsive to that line of impeachment to allow the proponent of the witness to elicit a prior consistent statement, made before the allegedly influencing event, in order to prove that the witness’ account was not in fact influenced in this way. Hopefully the law in this country will eventually be clarified on this point. In this regard, I note that the leading Privy Council case, Fox v. General Medical Council [1960] 3 All E.R. 225 (P.C.) contemplated the rule and its exception being applied with some flexibility and discretion, as it “will depend on the nature of the challenge offered.” Lord Radcliffe stated the following in this regard:
If in cross-examination a witness’s account of some incident or set of facts is challenged as being a recent invention, thus presenting a clear issue as to whether at some previous time he said or thought what he has been saying at the trial, he may support himself by evidence of earlier statements by him to the same effect. Plainly the rule that sets up the exception cannot be formulated with any great precision, since its application will depend on the nature of the challenge offered by the course of cross-examination and the relative cogency of the evidence tendered to repel it. Its application must be, within limits, a matter of discretion, and its range can only be measured by the reported instances, not in themselves many, in which it has been successfully invoked [Emphasis added].
[51] Ultimately, Mr. Corsi’s evidence concerning the tracking history of the seized container did not strike me as that important. It was one small piece of circumstantial evidence, amongst many, that helped to prove the act of importation and the accused’s involvement in that importation. The other circumstantial evidence on these issues was compelling, without Corsi’s tracking history evidence, and it did not strike me as the right case in which to depart from a literal reading of binding authority in order to make a point of principle based on Australian authority and some threads in the English and Canadian authorities.
D. CONCLUSION
[52] For the above reasons, I ruled that the Crown’s proposed re-examination of Mr. Corsi was permissible but that the proposed examination of Cst. DeSimone was not permissible.
[53] I wish to thank counsel for their helpful submissions on these somewhat complex points of evidence law that arose in the midst of a jury trial with little notice and little opportunity for research and preparation.
M.A. CODE J.
Released: February 17, 2016.
CITATION: R. v. Duncan et al 2016 ONSC 1126
COURT FILE NO.: CR-14-10000-582-0000
DATE: 20160217
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Plaintiff
- and -
DAVIDE DUNCAN, KEVIN REILLY and RIKARDO ROBINSON
Defendants
REASONS FOR JUDGMENT
CODE J.
Released: February 17, 2016 .