Court File and Parties

OSHAWA COURT FILE NO.: CR-17-14520 DATE: 20180816 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JACINDA ROSE SHENEEN HUDSON Defendant/Applicant

COUNSEL: J.D. Frost, for the Crown M.G. McLachlan, for the Defendant, Jacinda Rose Sheneen Hudson D.S. Sederoff, for the co-accused, Hazare Raj-Kumar Roman

HEARD: August 10, 2018

REASONS FOR RULING (EDGAR APPLICATION)

CHARNEY J.:

Introduction

[1] The Applicant, Jacinda Hudson, is one of two accused charged with possession of narcotics (fentanyl and cocaine) for the purposes of trafficking. She is also charged with importing fentanyl into Canada. Her counsel has indicated that she intends to testify in her own defence. Her counsel has also indicated that he will seek to lead, as part of her evidence in chief, a video recording of part of a statement made by the Applicant to the police during her interview at the police station following her arrest. These are exculpatory statements in which the Applicant professes her innocence of the charges. Counsel for the Applicant brought what is known as an “Edgar application” seeking admission of these prior, out-of-court, exculpatory statements.

Procedural Issue

[2] Crown counsel took the position that the Edgar application should be brought as a pre-trial application, even though the court should generally reserve its ruling on an Edgar application until the accused testifies. The Crown takes the position that, particularly in the context of a jury trial where court time must be used as efficiently as possible, the arguments on the motion should be heard before the trial commences, even though the court need not decide the application until the accused actually testifies: see R. v. Edgar (2010), 2010 ONCA 529, 101 O.R. (3d) 161 at para. 30. He advises that this is the general practice in Edgar applications.

[3] Counsel for the defence takes the position that it will often be a more efficient use of court time to delay arguing the application until the Crown closes its case, since only then will the accused confirm whether she will testify, which is a pre-condition to admitting evidence of a previous exculpatory statement. If the accused decides not to testify, the issue is moot.

[4] That said, counsel for the Applicant consented to arguing this application as a pre-trial motion given his confidence that the accused would testify in this case. In these circumstances, he agreed that it would be more efficient to argue the motion before the trial began.

[5] Given the consent of counsel, it was not necessary to decide this procedural issue. The application was argued as a pre-trial motion, and my decision was reserved until the conclusion of the Crown’s case.

Facts

[6] On or about October 18, 2016, the Canada Border Services Agency in Richmond, British Columbia intercepted three packages arriving from Guangdong, China via post from the same importer, Digitalpartner Uniko. One of the packages was addressed to the Applicant, Jacinda Hudson, at her residence in Ajax, Ontario. The declaration on the package described the cargo as a “digital cable”, value $10.00.

[7] Upon inspection and testing the Canada Border Services Agency determined that the packages contained approximately 300 grams of fentanyl.

[8] On November 1, 2016, a General Warrant was issued allowing the RCMP to conduct a controlled delivery of the package to Jacinda Hudson or anyone acting on her behalf at her residence in Ajax.

[9] The police staged a postal delivery of the package to the Applicant’s residence at approximately 12:50 p.m. on November 4, 2016. Ms. Hudson was not at home, but the package was accepted by the co-accused, Hazare Roman, who was staying with Ms. Hudson at the time.

[10] When Ms. Hudson returned to her residence at approximately 2:00 p.m. she was arrested by the police and searched incident to the arrest. She was read her rights at approximately 2:16 p.m. She was told that she was being arrested for trafficking drugs.

[11] The police also conducted a search of the residence where they found the package (unopened) that was delivered on the front entrance table inside the residence and 10 grams of cocaine in 20 separate baggies with 0.5 grams in each bag in a sunglass case on the front entrance table.

[12] Ms. Hudson was taken to the police station at 3:00 p.m., and she spoke to duty counsel at approximately 3:48 p.m. and again at 6:50 p.m.

[13] Ms. Hudson was interviewed by the police for approximately 45 minutes beginning at 7:45 p.m., or five and one-half hours after her arrest.

[14] At the beginning of her police interview, Ms. Hudson confirms that she understands that she was arrested for drug trafficking, and states: “I know nothing about it. I really don’t know anything about it”. When told that the package had her name on it, she states “Okay”, and when asked why her name was on it she states” “I don’t know. Anybody can put a name and address together. That’s not hard. I don’t know. I don’t fuck with drugs, I really don’t. I’m not a drug dealer.” When told that the police found a “white substance” in her house and asked if she had drugs in the house, Ms. Hudson states; “I did not have drugs in my house. If he [the co-accused] had drugs in my house that’s a different story but I did not have no drugs in my house”.

Legal Principles

[15] The legal principles relating to the admissibility of an exculpatory out of court statement given by an accused were summarized by the Ontario Court of Appeal in R. v. Liard, 2015 ONCA 414, at paras. 44 – 52:

[44] Under our rules of evidence, an exculpatory out of court statement given by an accused is generally inadmissible. Under this general exclusionary rule, an accused who has given a previous statement consistent with the accused’s trial testimony cannot lead evidence of it.

[46] But our courts have also carved out exceptions to this exclusionary rule. Before Edgar, the recognized exceptions under which a previous consistent statement has been held to have probative value included statements to demonstrate an accused’s state of mind at the time the offence was committed or to rebut an allegation of recent fabrication, and statements made as part of the res gestae.

[50] Under Edgar, to put into evidence a previous exculpatory statement, an accused must meet three requirements:

• The accused must testify.
• The statement must be made when the accused was arrested or when first accused of committing a crime.
• The statement must be spontaneous.

[16] Statements admitted under the Edgar exception are not, however, admissible for the truth of their contents. In Liard, the Court of Appeal stated, at para. 49:

The statements are evidence of an accused’s reaction to being accused of a crime and are relevant to show consistency with an accused’s trial testimony. Thus, although not admissible for the truth of their contents they are relevant to an accused’s credibility and as a piece of circumstantial evidence bearing on an accused’s guilt or innocence. In short, the statements are relevant because an accused’s immediate reaction to an accusation of a crime may be more reliable and more probative than the accused’s testimony given years later in a courtroom.

[17] In Liard the Court also confirmed that “the accused bears the onus of establishing that the statement was spontaneous and made when first confronted with an accusation” (para. 74), and that the trial judge’s decision to permit an accused person to show her police statement to the jury was a discretionary decision (para. 52).

[18] The Court of Appeal gave specific consideration to the requirement that the statement must be spontaneous (at paras. 62 – 64):

The requirement that the accused’s statement be spontaneous is the critical requirement for admissibility under the Edgar exception. Spontaneity is what gives the statement its probative value and justifies its admission. A spontaneous reaction is more likely “to truly reflect the individual’s honest and genuine reaction to the allegation”, and thus is more likely to be a reliable reaction. See Kailayapillai, at para. 60. Conversely, when an accused has an opportunity to “think things through”, the spontaneity of the statement is diminished, and in some cases eliminated altogether.

No single consideration, no single point in time, determines whether the spontaneity requirement has been met. The passage of time between the crime and the accused’s reaction to an accusation of committing it, and any intervening events, are undoubtedly relevant. But spontaneity lies along a spectrum. And along that spectrum, the degree of spontaneity may vary. In Edgar itself, the accused made three statements – the third, four hours after he was arrested. Sharpe J.A. held that all three statements were admissible...

Thus, in determining whether an accused has satisfied the spontaneity requirement, the trial judge must consider all the circumstances of the case – the passage of time, any intervening events, and the making of the statement itself. Importantly, as Sharpe J.A. pointed out in Edgar, at para. 69, when in doubt about spontaneity, the trial judge should admit the statement and allow the jury to assess its weight. Proper jury instructions can eliminate any risk of the jury’s misuse of the statement.

[19] The principles in Edgar were also helpfully explained by the Ontario Court of Appeal in R. v. Badhwar, 2011 ONCA 266, at para. 17:

Edgar stands for the proposition that “it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination”. The statement does not go in for its truth (unless it is otherwise admissible as original evidence) but “is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence”.

[20] In Badhwar the Edgar ruling was not sought at trial, but raised for the first time on appeal. In dismissing the appeal in Badhwar, the Court of Appeal rejected the contention that the proffered statements were spontaneous, stating, at paras. 21 and 22:

That brings me to the statement of the appellant. Whatever else may be said about it, it can hardly be characterized as spontaneous. The appellant had five hours to consider his position and “think things out” before going to the police station. He also had the opportunity to speak to his friends after the accident, either directly or by cell phone, before speaking to the police.

In these circumstances, if the trial judge had had the benefit of Edgar, I believe he would likely have excluded the appellant’s statement for lack of spontaneity. But even if the statement had been admitted, in my view, its probative value would have been minimal due to its lack of spontaneity. The appellant’s reaction upon being confronted with an accusation that he knew was coming and that he had had five hours to think about was not likely to be of much value to the jury…

[21] The most recent Ontario Court of Appeal decision commenting on the Edgar exception appear to be R. v. Dawson, 2018 ONCA 458, where the court, at para. 23, again emphasized the importance of spontaneity to the question of admissibility:

The persuasive value of Edgar evidence is linked to its spontaneity, which gives support to the prospect that the denial of guilt was made with little opportunity to reflect. In the circumstances of this case, Mr. Dawson had ample opportunity to consider his situation before his words were uttered. The trial judge reasonably concluded that this was not compelling evidence of innocence, in all of the circumstances.

[22] Similarly, in R. v. Kailayapillai, 2013 ONCA 248, the Court stated, at paras. 6 and 61:

I agree with the trial judge that there was no allegation of recent fabrication explicit or implicit in the cross-examination of the appellant such as to permit counsel to adduce a prior consistent statement on re-examination. Nor, in my view, can this trial record support the admissibility of the statement under the ratio in Edgar.

Statements made by an accused long after he or she has had the opportunity to reflect on the situation and consider his or her response to an allegation do not provide the kind of spontaneous response capable of giving a true reflection of the accused’s reaction to the allegation…

[23] See also R. v. K.T., 2013 ONCA 257 at paras. 34 and 35 and R. v. Hong, 2015 ONSC 5583 at paras. 24 – 35.

[24] Finally, in R. v. York-Denomme, 2018 ONSC 864, Coroza J. rejected an Edgar application relating to the admissibility of a videotaped interview given by the accused who had been held in custody for about four hours following her arrest. At para. 10, Coroza J. references the decision of Fairburn J. (as she then was) in R. v. Caesar, Ont. S.C.J. (unreported), June 2, 2017:

In Caesar, Fairburn J. held that "the presumptive rule against admission remains alive and well" and that the presumptive rule is only overtaken when the Edgar purpose for admission is real and present, to give the trier of fact insight into the accused's "immediate reaction to an accusation of crime". Fairburn J. went on to hold that "this purpose is inextricably linked to the requirement of confrontation and spontaneity.”

Analysis

[25] In my view the proposed statement is much like the statement rejected by the Ontario Court of Appeal in Badhwar, coming more than five hours after the Applicant was arrested. The Applicant had more than five hours to consider her position and her response to the allegation. Throughout this time she understood that she had been arrested for trafficking drugs, and she discussed the charges with duty counsel twice before the police interview, so that the interviewing police officer was not the first person she spoke to about the charges. She clearly had an opportunity to “reflect on the situation” during her time in custody. In these circumstances her statement to the police during the interview does not meet the spontaneity requirement as set out in Edgar and its progeny.

[26] While that conclusion is sufficient to find that the videotaped interview is not admissible under the Edgar exception, I have an additional reason for dismissing the application.

[27] In a pre-trial application heard by this court on March 19, 2018, the Applicant sought to sever the narcotics-related charges in this case from three other counts relating to the possession of false identity documents. In a pre-trial ruling (2018 ONSC 3198) I concluded that the false identity documents charges were not related to the narcotics-related charges, and that the interests of justice required the severance of the narcotics-related charges from the false identity documents charges. Accordingly, I allowed her Application. I stated, at paras. 33 and 34:

The Applicant has identified a source of prejudice in trying the two sets of counts together. If she testifies, the jury may conclude that the Applicant is not a credible witness because she is in possession of false identity documents. Even if she does not testify, the jury may engage in prohibited propensity reasoning and conclude that the possession of such documents (which she has admitted) is indicative that she is the sort of person who would also traffic in prohibited drugs. In addition, the drug charges are much more serious than the false document charges.

Even with a properly written jury instruction, there is a real risk of prejudice to the Applicant in trying the two sets of counts together.

[28] The Applicant took the position on this application that, given my previous ruling, if I were to admit her interview with the police under the Edgar exception, I should redact from the video and the transcript those portions of the interview relating to the false identity documents. In those portions, the Applicant makes admissions that she had false identity documents in her purse when arrested.

[29] My difficulty with this proposition stems from the purpose for which evidence admitted under the Edgar exception is admitted. As indicated above, it is not admitted for the truth of its contents, but is relevant to the accused’s credibility and to her demeanour when first accused of a crime.

[30] I have viewed the entire interview video. It is only about 45 minutes long. In my view, credibility and demeanour can only be properly assessed by viewing the entire video and evaluating Ms. Hudson’s reactions in their full context.

[31] I have some difficulty accepting the proposition that the jury can use the interview to assess the Applicant’s credibility and demeanour if they are provided with only those portions of the interview in which the Applicant professes her innocence, but are denied those portions in which she confesses her guilt. In my view, if the Applicant wants to rely on a prior, out-of-court, exculpatory statement to demonstrate her credibility and demeanour, the jury should see the entire interview. The Applicant must take the bitter with the sweet.

[32] In this regard, the Court of Appeal’s decision in Liard acknowledged that the entire context of the statement may be relevant to the jury’s evaluation of the accused’s reaction to the charge. In rejecting the Crown’s submission that the jury should be given only the excerpts of the interview in which Liard was reacting to a specific charge and that other parts of the interview should not have been put before the jury, the Court stated, at para. 79:

I do not agree with the Crown’s submission. Liard’s interview was continuous, and its entire context mattered. The jury would not have been able to properly evaluate Liard’s reaction to the charge, which came toward the end of her interview, without taking into account what came before. Editing out and isolating part of the interview would likely have undermined the jury’s ability to assess the probative value of Liard’s statement. The better course was to admit the entire statement (or virtually all of it) and let the jury decide what weight to give to it.

[33] In my view, my earlier ruling on severance would not preclude the admission of the entire interview if the statement otherwise met all of the Edgar criteria and the Applicant were prepared to put the entire interview before the jury. As the Application stands, however, the Applicant does not agree that the jury should have an unedited version of the interview. Had the statement otherwise met all of the Edgar criteria, I would not have exercised my discretion to provide the jury with only an edited version of the interview.

Conclusion

[34] The application to admit prior exculpatory statements is dismissed.

Justice R.E. Charney

Released: August 16, 2018