COURT FILE NO.: CRIMJ(F) 754/17 DATE: 20180918

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN M. Dykstra, for the Crown Respondent

- and -

SHAUVONNE LATOYA YOUNG B. Vandebeek and E. Ghebria, for the defence Applicant

HEARD: August 10, 2018, at Brampton

RULING ON VOIR DIRE TO DETERMINE ADMISSIBILITY OF HEARSAY EVIDENCE

André J.

[1] The applicant Ms. Shauvonne Young, brings an application for a declaration that a statement purported to have been made by her father, before his death, was admissible in her trial either as a declaration against penal interest or under the principled exception to the hearsay rule. The Crown maintains that neither basis for admissibility advanced by Ms. Young justifies the admission of the statement.

BACKGROUND FACTS

[2] Ms. Young was charged with importing cocaine from Jamaica into Canada on April 5, 2017.

[3] Following Ms. Young’s arrest, her step-sister, Toni Winchester, told her about a conversation she had with Orville Young, Ms. Young’s father. Ms. Winchester stated that on April 5, 2017, she received several telephone calls from her father asking whether she had heard from Ms. Young. Her father was unusually hesitant. Ms. Winchester unsuccessfully tried to call Ms. Young. Ms. Winchester later learnt that Ms. Young had been arrested for importing cocaine.

[4] Ms. Winchester then confronted her father and demanded to know why he kept asking her about Ms. Young. Her father cried. He said that he put his daughter in a bad position. He told Ms. Winchester that he owed a lot of money to his drug dealer. They had given him a large quantity of drugs, and without money to pay them back, he was forced to provide them services. He had agreed to have someone hide drugs in a package in Jamaica while his daughter was there, and to use her to bring the drugs back to Canada. His drug dealer promised him that no one would ever find out, and that this was not the first time he had done something like this. He expressed that he was afraid for his own safety following his daughter’s arrest.

[5] Mr. Young died of a drug overdose on July 29, 2017. He had an extensive criminal record.

APPLICABLE LEGAL PRINCIPLES

[6] Watt J. established the principles that govern the admissibility of declarations against penal interest in R. v. Tash, 2013 ONCA 380, at para. 88. They are:

i. the declaration must be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result; ii. the vulnerability to penal consequences must not be remote; iii. the declaration must be considered in its totality, so that if, upon the whole tenor, the weight of it is in favour of the declarant, the declaration is not against his or her interest; iv. in a doubtful case, a court might consider whether there are other circumstances connecting the declarant with the crime, and whether there is any connection between the declarant and the accused; and v. the declarant must be unavailable because of death, insanity, grave illness that prevents the declarant from giving testimony even from a bed, or absence in a jurisdiction to which none of the court’s processes extends.

[7] A hearsay statement may be admissible for the truth of its contents under the principled exception to the hearsay rule if it is necessary and reliable: R. v. Khelawon, [2006] 2 SCR 787, 2006 SCC 57, at para. 78. Necessity is established on the basis that the witness is not available. Reliability is established either by showing that there is no real concern about whether the statement is true or not because of the circumstances in which it was made or by showing that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested: Khelawon, at paras. 61-63.

[8] In R. v. Smith, [1992] 2 S.C.R. 915, at p. 933, Lamer C.J. noted that:

If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be "reliable", i.e., a circumstantial guarantee of trustworthiness is established.

[9] In R. v. Johnson, 2015 ONSC 6161, at para. 35, the court noted the following:

The factors that have been considered on this inquiry include: (1) whether the circumstances are such that a sincere and accurate statement would naturally be uttered and no plan of falsification formed; (2) the presence or absence of a motive to lie; (3) the extent of the dangers associated with hearsay such as the perception, memory, and credibility of the declarant; and (4) the existence of confirming or contradictory evidence.

ANALYSIS

[10] Can the statement attributed to Orville Young be considered a declaration against penal interest, based on the criteria set out in Tash?

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

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

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

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

[15] Third, in my view, the entirety of the declaration cannot be said to weigh in favour of Mr. Young, giving that he took responsibility for arranging to have someone hide drugs in a package which he brought to Canada. To that extent, the declaration is against his interest. Accordingly, this criterion has been met.

[16] Are there other circumstances connecting Mr. Young to the crime and is there a connection between the declarant and the accused?

[17] Ms. Young is the daughter of Orville Young. He had an extensive criminal record from 1981 to 2017 with at least nine convictions for possession of a controlled substance and possession for the purpose of trafficking. For these reasons, this criterion has been met.

[18] Finally, the fifth criterion in Tash has been satisfied given Mr. Young’s death on July 29, 2017.

[19] Based on my conclusions concerning the first two criteria of the test for the admissibility of a declaration against the penal interest of a declarant, the statement attributed to Orville Young is not admissible as a declaration against penal interest exception to the inadmissibility of hearsay evidence.

PRINCIPLED APPROACH

[20] Is Mr. Young’s statement admissible for the truth of its contents under the principled exception to the hearsay rule? Mr. Young, the declarant, is dead. The necessity requirement has therefore been met.

[21] Is the statement reliable? There is nothing about the circumstances in which the statement was made that attest for its reliability. The statement was neither written nor recorded. There were no persons present other than Ms. Winchester who is the declarant’s daughter.

[22] Can the truth and accuracy of the statement be sufficiently tested given the circumstances in which it was made? Alternatively, do the circumstances in which the statement was made substantially negate the possibility that the declarant was untruthful or mistaken?

[23] Neither question can be answered in the affirmative. It is unknown whether or not Mr. Young had a motive to lie. If he wanted to come to his daughter’s assistance, there would have been no reason to tell Ms. Winchester not to tell her. Alternatively, he could have chosen to contact the authorities about his involvement in the offence with which Ms. Young was charged.

[24] The declarant’s credibility, as the court noted in Johnson, is a factor to be considered in assessing the reliability of the statement attributed to Mr. Young. Mr. Young had a lengthy record of dishonesty. He had forty convictions for theft and possession of stolen property. Finally, there does not appear to be any confirmatory evidence of what Mr. Young allegedly told his step-daughter, other than the fact that he reportedly made the comments to Ms. Winchester on the very day of Ms. Young’s arrest.

CONCLUSION

[25] For the above reasons, the application is denied.

André J.

Released: September 18, 2018