Her Majesty the Queen v. Christopher Bryan

COURT FILE NO.: CRIMJ(F)1398/16 DATE: 2017-04-12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – Christopher Bryan

Counsel: Cindy Afonso and Jonathan Geiger, for the Crown S. Pennypacker, for the Applicant

ADMISSIBILITY RULING

BARNES J.

INTRODUCTION

[1] Christopher Bryan was arrested on December 6, 2013 for importing cocaine from Punta Cana, Dominican Republic to Canada. His co-accused, Jennifer McGrath, was arrested the same day for the same offence. She had travelled with Christopher Bryan and cocaine was found in her luggage.

[2] Ms. McGrath pled guilty and is now testifying against Mr. Bryan. The Crown seeks to tender the passport application of Jennifer McGrath.

BACKGROUND FACTS

[3] Ms. McGrath alleges that the cocaine importation was a joint enterprise with Mr. Bryan. Mr. Bryan organized the trip and arranged for her to bring the cocaine into Canada.

[4] Ms. McGrath explained that Mr. Bryan helped her apply for the passport she needed for the trip. She said Mr. Bryan filled out and signed the guarantor section of the passport application form. He was her guarantor.

[5] On December 13, 2016, at Mr. Bryan’s judge-alone trial, the Crown sought to confirm/corroborate Ms. McGrath’s testimony by showing her a copy of the first page of her passport application.

[6] Royal Canadian Mounted Police Constable Kim had previously testified that the original passport application had been destroyed in accordance with Passport Canada policy, and only a copy of page one of the application was available.

POSITION OF THE PARTIES

[7] The defence opposed the admission of the one-page excerpt from Ms. McGrath’s passport application on the basis that the document was hearsay, the original document was lost, and notice of intent to introduce the document was late. Thus, the admission of the passport application at this stage would be prejudicial to the defence. The defence submitted that the document was lost because of police negligence. The defence further submitted that if the passport application was admitted, Mr. Bryan’s ability to make full answer and defence would be irreparably impaired and his rights under section 7 of the Charter breached. Defence sought a mistrial or, in the alternative, an order precluding the Crown from introducing the document.

[8] The Crown said it sought to introduce the document only for the purpose of proving that Mr. Bryan filled out and signed the guarantor portion of the document and that it was not the Crown’s intention to introduce it for the truth of its contents.

[9] The Court adjourned on December 13, 2016 to allow the parties to prepare proper submissions on the admissibility of the passport application and the defence request for a mistrial. During the adjournment, the defence abandoned its section 7 Charter breach argument because the original passport application had been found and produced, in full. In February 2017, the parties introduced a few nuances and modifications to their positions because of this change in circumstance.

[10] Specifically, on December 22, 2016, the Crown produced the affidavit of Susan Ganas, Intelligence Analyst, Intelligence Division, Immigration Refugees and Citizenship Canada (IRCC). This affidavit introduced a certified copy of Ms. McGrath’s entire passport application. The Crown maintains that the certified copy of the passport application is not hearsay. Alternatively, even if it is hearsay, it is nevertheless admissible as an exception to the hearsay rule under s. 30 of the Canada Evidence Act, R.S.C., 1985, C c-5 (CEA) and the common law admissions exception to the hearsay rule.

[11] The defence submits that the Crown seeks to use the document for the following purposes: to corroborate Ms. McGrath’s testimony that Mr. Bryan helped her get the passport and acted as her guarantor on the application; to rely on the statement within the document where the guarantor swears to have known Ms. McGrath for 17 years in order to show that Mr. Bryan lied when he filled out the document; to rely on the guarantor’s statement for the purpose of refuting any contradictory testimony Mr. Bryan may give at trial; and to suggest that Mr. Bryan acted as guarantor on Ms. McGrath’s passport application in furtherance of the conspiracy to import cocaine.

[12] In essence, the defence submits that the Crown seeks to rely on Ms. McGrath’s passport application for the truth of its contents. Therefore, the document is hearsay. With respect to the alleged statement by Mr. Bryan within the passport application, the defence submits that even if it is admissible as a hearsay exception, this statement is inherently unreliable because the Crown relies on the testimony of Ms. McGrath, who is an unsavoury witness, and not Mr. Bryan. Therefore, the reliability and authenticity of the statement is in serious doubt. Further, the prejudicial effect of the admission outweighs its probative value.

[13] The defence submits that the Crown’s late reliance on s. 30 of the CEA is prejudicial to the defence’s ability to make full answer and defence. The defence says Mr. Bryan has prepared his defence on the basis that the Crown would not seek to admit Ms. McGrath’s passport application (or “the document”) into evidence.

ISSUES

(1) Is the passport application hearsay? (2) If the passport application is hearsay, is it admissible as an exception pursuant to s. 30 of the CEA? (3) Is section 2 of the passport application, “Declaration of Guarantor”, admissible under the admissions exception to the hearsay rule?

1. Is the Passport Application Hearsay?

[14] Hearsay has two components:

i. It is an out of court statement which is tendered to prove the truth of its contents; and ii. The opportunity for contemporaneous cross-examination of the declarant is absent: R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57, at para 35.

[15] Where a declarant makes an out of court statement, but adopts that hearsay statement while testifying in court, or indicates a belief in the statement, the statement can be used for its truth and it is not hearsay: R. v. Streu, [1989] 1 S.C.R. 1521, p. 1530.

[16] The passport application contains statements from two alleged declarants: Jennifer McGrath and Christopher Bryan. The complete passport application is 3 pages long with 9 sections. Jennifer McGrath testified that she filled out all sections except Section 2. Section 2 is the Declaration of Guarantor section. Ms. McGrath said Mr. Bryan filled out and signed the Guarantor section.

[17] The Crown’s explanation of the purposes for which it seeks to introduce the document is a tad unclear. However, the practical effect of its intended uses is clear.

[18] The Crown’s stated uses of the document as evidence are as follows: to corroborate Ms. McGrath’s testimony; to impugn Mr. Bryan’s credibility should he testify and to use Mr. Bryan’s alleged statements in the passport application as acts in furtherance of a conspiracy to import cocaine into Canada. To use the passport application as evidence of a conspiracy, I note that the Crown will have to satisfy the preconditions set out in R. v. Carter, [1982] 1 S.C.R. 938 and R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23. The practical effect of the Crown’s intended uses is that the document will be introduced for the truth of its contents, since the mere fact that Ms. McGrath made this application for a passport is not disputed.

[19] The document contains out of court statements of Ms. McGrath and Mr. Bryan. Ms. McGrath is available for contemporaneous cross-examination and she has adopted the passport application, aside from the statements made within the Guarantor section. Therefore, applying R v. Streu, her statements in the document are admissible for the truth of their contents. However, only her statements on the first page of the passport application are admitted for reasons set out below.

[20] I will deal separately with the admissibility of Section 2, “Declaration of Guarantor” that was allegedly completed by Mr. Bryan.

2. If the passport application is hearsay, is it admissible as an exception pursuant to s. 30 of the CEA?

[21] The Crown has identified two routes of admissibility as exceptions to the hearsay rule. I address each of them in turn.

[22] First is the business records exception under s. 30(1) of the CEA. This section states:

Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.

[23] Section 30 of the CEA is a statutory exception to the hearsay rule. Contents of records admissible under this section are prima facie evidence of their contents and can be used to prove a fact beyond a reasonable doubt, and in effect can be used for the truth of their contents: R. v. Smith, 2011 ABCA 136, 273 C.C.C. (3d) 525, leave to appeal refused [2011] S.C.C.A. No. 314.

[24] The Crown seeks to tender a copy of the document in accordance with s. 30(3) of the CEA. The Crown seeks to introduce the copy together with an affidavit and certificate from Susan Ganas, Intelligence Analyst, Intelligence Division, Program Integrity Branch, Immigration, Refugees and Citizenship Canada (IRCC).

[25] Section 30(7) of the CEA states that unless the court orders otherwise, the party seeking to tender a document under s. 30 shall provide the other party with 7 days’ notice of that intention. In this case, the Crown did not provide notice of intent to produce a copy of the document in accordance with s. 30.

[26] The introduction of the passport application became an issue on December 13, 2016, during the cross-examination of Ms. McGrath. The trial was adjourned because of this issue and resumed on February 1, 2017. In the interim, the Crown provided formal notice of intent to introduce the complete passport application pursuant to section 30(7) of the CEA. The Crown argues there has been technical compliance with s. 30(7) because 7 days have elapsed since formal notice was provided.

[27] The defence has always had disclosure of page 1 of Ms. McGrath’s passport application. However, this disclosure is not notice of intent to produce under s. 30(7) of the CEA.

[28] The defence provided particulars of the alleged prejudice of admitting the passport application: had notice been provided as contemplated under s. 30(7), Mr. Bryan would have hired a handwriting expert and prepared the defence a different way.

[29] The difficulty with the defence argument is that there are other routes for the document to be admitted as a hearsay exception, outside of the business records exception under s. 30 of the CEA. Therefore, regardless of the applicability of s. 30 of the CEA, it has always been open to defence counsel to obtain a handwriting expert. I note that this case is at least 3 years old.

[30] I turn now to consider whether the passport application has any indicators of reliability. Ms. McGrath is a co-accused who has already been sentenced. She has received a favourable sentence for her cooperation. This cooperation took the form of providing testimony to incriminate Mr. Bryan. Therefore, the risk of fabrication is high. This makes her testimony regarding the passport application inherently unreliable. It is dangerous to rely only on her statement as corroboration that Mr. Bryan signed Section 2 of the document as her guarantor and wrote the statement describing how long he has known her. Ms. McGrath is an unsavoury or Vetrovec witness, and her entire testimony will be assessed accordingly.

[31] The reliability of a document is enhanced where a public official has a duty to validate the truth of the contents of the document. R. v. A.P., 109 C.C.C. (3d) 385 at p. 7; R. v. C. (W.B.), 130 O.A.C.1 (C.A.); R. v. Ceaser, 2016 ONCA 599, at paras. 32, 34-39.

[32] Once the Crown has met the formal requirements under s. 30 of the Act, the records are admissible as business records as prima facie proof of the truth of their contents: R. v. Smith, 2011 ABCA 136, 510 A.R. 37, at para. 46. There records will confirm the evidence of Ms. McGrath on the passport application issue. Therein lies the prejudice to the defence. The certified copy of the passport application should not be introduced despite any hearsay exception under statute or common law. I exercise my residual discretion as the trial judge to exclude otherwise admissible evidence where the prejudicial effect of admission outweighs the probative value.

[33] In my view, in the absence of a CEA notice from the Crown, it was reasonable for the defence to anticipate that the Crown was not seeking to bolster the testimony of a Vetrovec witness by admitting the passport application and affidavit under s. 30 of the CEA.

[34] For these reasons, the Crown cannot introduce the certified copy of the passport application (including the affidavit of Susan Ganas) as a statutory exception to the hearsay rule as described in s. 30 of the CEA.

3. Is section 2 of the passport application, “Declaration of Guarantor” admissible under the admissions exception to the hearsay rule?

[35] The Crown submits that Mr. Bryan’s statements in the document are admissible under the admissions doctrine as an exception to the hearsay rule. This is explained in R. v. Evans, [1993] 3 S.C.R. 653 as follows:

(a) The admissions exception to the hearsay rule does not depend on a circumstantial guarantee of trustworthiness; (b) The judge must first be satisfied that there is some evidence that the declarant was the Accused; (c) The trier of fact must then determine, on the evidence properly admitted, that the Crown has established on a balance of probabilities, that the Accused was the declarant; (d) Once so satisfied, the trier of fact may then consider the admission together with the rest of the evidence, in deciding with the Crown has proven the case beyond a reasonable doubt.

[36] Applying Evans, and on the basis of Ms. McGrath’s testimony, I find that Mr. Bryan probably made the statements as described under Section 2 of the document. Therefore, the statements constitute admissions by Mr. Bryan that he signed Ms. McGrath’s passport application as guarantor and wrote that he has known Ms. McGrath for 17 years. The Declaration of Guarantor portion of the passport application completed by Mr. Bryan is admissible under the admissions doctrine as an exception to the hearsay rule, and may be considered along with all of the evidence in resolving the issues at trial.

[37] The defence argues that the prejudicial effect of the admission outweighs its probative value. Specifically, that the content of the document is corroborated only by Vetrovec witness Jennifer McGrath, and the contents cannot otherwise be contradicted. The admissions doctrine nevertheless applies, despite these concerns.

[38] I take note that Ms. McGrath is an unsavoury witness, and any dangers of improper use or weight attributed to this evidence is not present as this is a judge-alone trial. For all these reasons, I conclude that the probative value of its admission outweighs any prejudicial effect. All concerns raised shall go to weight.

CONCLUSION

[39] The defence is only irreparably prejudiced if the full passport application, at this late stage, is introduced pursuant to s. 30 of the CEA. This event could not have been anticipated by the defence and hence the Crown is precluded from relying on s. 30 of the CEA.

[40] The defence has had a copy of the first page of the passport application for multiple years. It was no secret that Ms. McGrath would testify and likely adopt her statements in the document. Ms. McGrath’s statement in the one-page excerpt is admissible, following R v. Streu. Mr. Bryan’s statement in section 2 of the passport application is admissible under the admissions exception to the hearsay rule.

[41] For all these reasons, the defence is not prejudiced by the admission of the one-page document. Mr. Bryan’s ability to make full answer and defence is not impaired by the admission of the document within the parameters I have described. The defence request for a mistrial is denied.

Barnes J. Released: April 12, 2017

COURT FILE NO.: CRIMJ(F)1398/16 DATE: 2017-04-12 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen – and – Christopher Bryan ADMISSIBILITY RULING Barnes J. Released: April 12, 2017