COURT FILE NO.: CrimJ(F) 264/13
DATE: 2018 02 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Meaghan Hourigan, for the Crown
- and -
JENAE RICHELLE YORK-DENOMME
Leora Shemesh, for the Accused
Accused
HEARD: October 16, 18, 20, 23, 26, 27, December 4, and December 8, 2017, January 29, 2018
REASONS FOR RULING (EDGAR APPLICATION)
Overview
[1] On January 29, 2018, I found Ms. York-Denomme not guilty of importing cocaine. During the trial, defence counsel applied to lead a statement by the accused made to Cst. Gabi of the RCMP pursuant to the principles in R. v. Edgar, 2010 ONCA 529, [2010] O.J. No. 3152.
[2] On October 25, 2017, I released an endorsement and dismissed the application. In that endorsement, I promised counsel I would release further written reasons. These are those reasons.
Background Facts
[3] The application concerns the admissibility of a videotaped interview of Ms. York-Denomme to the Royal Canadian Mounted Police (RCMP). Ms. York-Denomme arrived at Terminal 3 of Pearson International Airport on a flight from Suriname, via Trinidad, on January 12, 2013. During an inspection of her carry on and checked luggage, cocaine was found in a false bottom of one of her bags. Ms. York-Denomme was eventually arrested at 3:53 p.m. by the Canada Border Services Agency (CBSA) for smuggling under the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.).
[4] The arrest occurred about 53 minutes after she arrived in the secondary examination area. BSO Carruthers told her he was arresting her for smuggling. She remained in the CBSA's custody until the RCMP took over the investigation at 7:55 p.m. At that time, RCMP officer Cst. Dionne formally arrested her for importing a controlled substance contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Cst. Dionne testified that he may have explicitly told Ms. York-Denomme that she was being arrested for importing cocaine.
[5] The RCMP transferred Ms. York-Denomme to Terminal 3 where they have a holding cell for prisoners. At about 11:15 p.m., Cst. Gabi brought Ms. York-Denomme into an interview room where she gave a videotaped statement.
Positions of the Parties
[6] The Crown did not lead this video statement as part of its case. However, relying on the criteria in Edgar, defence counsel seeks the admission of this out-of-court statement to demonstrate Ms. York-Denomme's reaction when confronted with the allegation of the offence.
The Law
[7] Generally, an exculpatory out-of-court statement given by an accused is inadmissible for a number of reasons: it is hearsay; it may be fabricated; admitting it would impair the goal of trial efficiency; it will have minimal or no probative value; and admitting it would amount to impermissible oath helping: see: R. v. Blanchard, 2016 ABQB 615, [2016] A.J. No. 1151, at para. 11.
[8] Therefore, the presumptive rule is that an accused's out-of-court statement can, in general, only be tendered by the Crown as part of its case. If the Crown does not lead the statement, the defence is prohibited from leading the statement because such statements would be deemed self-serving and inadmissible: see R. v. Rojas, 2008 SCC 56, [2008] S.C.J. No. 58, at para. 36; R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, at p. 22.
[9] In Edgar, the Ontario Court of Appeal held that an accused's prior statement to the police may be admissible as evidence of reaction and consistency, provided: (1) the accused testified; (2) the statement was made upon arrest or when first confronted with an accusation; and (3) the statement is spontaneous. Edgar was also recently considered in R. v. Liard, 2015 ONCA 414, [2015] O.J. No. 3000, at paras. 44-50, leave to appeal denied [2015] S.C.C.A. No. 402. It was also considered in a case decided by my former colleague Fairburn J. in R. v. Caesar, Ont. S.C.J. (unreported), June 2, 2017.
[10] 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."
[11] I have carefully examined the evidence and considered the arguments of counsel. For the following reasons, I find that Ms. York-Denomme has not met the second and third criteria set out by Edgar.
Analysis
[12] It is up to Ms. York-Denomme, as the party proffering the evidence, to establish admissibility, as again, this type of statement is presumptively inadmissible.
First Criteria - Has the Accused Testified?
[13] Both parties agree that this criteria has been met. Indeed, when this motion was brought, Ms. York-Denomme was in the middle of her testimony. She has exposed herself to cross-examination and her evidence can be challenged.
Second Criteria - The Statement was Made Upon Arrest or When First Confronted with an Accusation
[14] 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": see Edgar, at para. 72. 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": see Edgar, at para. 72.
[15] After reviewing the trial record, I am able to make the following findings.
[16] First, Ms. York-Denomme arrived at Terminal 3 of Pearson International Airport on a flight from Suriname, via Trinidad, on January 12, 2013. She was referred to secondary inspection.
[17] Second, she arrived at the Custom's secondary examination counter at 3:00 p.m. She had a number of carry-on bags and a single, checked suitcase with her.
[18] Third, after the examination, she was arrested at 3:53 p.m., 53 minutes after arriving in the secondary examination area.
[19] Fourth, there is some evidence that Border Service Officers (BSOs) asked her questions about drugs.
[20] Fifth, BSO Carruthers emptied her suitcase and examined the contents of the suitcase. BSO Carruthers cut into the blue fabric of the suitcase and discovered cocaine in a false bottom. This was done in her presence.
[21] Sixth, BSO Carruthers arrested her for smuggling. He did this by reading language that is printed out in his CBSA Reference Booklet. The language communicated to Ms. York-Denomme that the officer believed she had smuggled or attempted to smuggle goods into Canada, the importation of which is prohibited, controlled, or regulated pursuant to the Customs Act.
[22] After her arrest by BSO Carruthers, Ms. York-Denomme remained in the CBSA's custody for the next four hours. It was not until the RCMP took over the investigation from the CBSA at 7:55 p.m. that she was formally arrested for importing a controlled substance into Canada.
[23] At 9:05 p.m., Cst. Gabi gave Ms. York-Denomme medication to treat her bi-polar disorder from her luggage. Over two hours later, Cst. Gabi brought Ms. York-Denomme into the interview room where she gave an exculpatory videotaped statement. The total time that elapsed between her arrest by BSO Carruthers and her interview with Cst. Gabi is approximately 7 hours and 16 minutes.
[24] I agree with the Crown that Ms. York-Denomme could not have been under any illusions about the basis of her initial arrest. Context is important here. She was carrying checked luggage which was examined. During the examination, the CBSA asked her questions about drugs. Following the examination of that luggage, she was arrested. The CBSA explicitly told her it was for smuggling. In my view, Ms. York-Denomme was first confronted with the allegation by the CBSA officer who arrested her, BSO Carruthers.
[25] I have difficulty accepting that the first time Ms. York-Denomme came to understand the reason for her arrest (suspected cocaine in her suitcase) was late into her interview with Cst. Gabi (pg. 13 of transcript), which took place several hours after arrest. Any traveller arriving from a foreign country at the airport knows that their luggage has the potential to be examined. In this case, Ms. York-Denomme was sent for a secondary examination. She was present when the CBSA asked her questions. They asked her questions about drugs and examined the luggage. By the end of the arrest by BSO Carruthers, she would have known that the allegation against her was that she was smuggling drugs in her luggage.
[26] Indeed, at one point in her statement to Cst. Gabi, Ms. York-Denomme admitted that she was told by the CBSA that she was smuggling cocaine.
A: Well pretty pissed off 'cause uhm like I said I didn't even know there was stuff in it like when he told me I was arrested for smuggling cocaine okay, because first of all, when I left Calgary I noticed this little black thing in my night stand desk. And I thought that it was something battery operated and I checked and there was no batteries in it and then I went on my trip. …
Transcript of York-Denomme Video Statement, Page 11, Lines 466 to Page 12, Line 490.
[27] I agree with the Crown's submission that Edgar does not stand for the proposition that prior consistent exculpatory statements can be admissible when they are made when the accused is first "taxed" or confronted with a particular detail or details about a crime. What matters for Edgar purposes is whether or not the accused made a spontaneous statement upon arrest or when first confronted with the allegation of having committed a crime.
[28] The crime in this case was importing narcotics into Canada. By the time Ms. York-Denomme had spoken to Cst. Gabi, she had been arrested for it by the CBSA and already confronted with the allegation. She had also been arrested by Cst. Dionne hours before the interview took place.
[29] The application fails the second criteria.
Third Criteria - The Statement is Spontaneous
[30] By the time she started her interview with Cst. Gabi, Ms. York-Denomme had been in custody for 7 hours and 16 minutes. I acknowledge that determining whether a statement is spontaneous involves a number of factors. As Laskin J.A. stated in Liard, spontaneity lies along a spectrum: see Liard, at para. 63. When I consider all of the surrounding circumstances, I conclude that Ms. York-Denomme's statement to Cst. Gabi is not a spontaneous statement. In my view, Ms. York-Denomme had plenty of time to "think things out", reflect on the situation, and consider her response to the allegation before she spoke to Cst. Gabi.
[31] I acknowledge that in Liard, at paras. 44 to 50, Justice Laskin held that an accused's statement made 13 hours after a murder was spontaneous. However, as the Crown points out, it is significant that in Liard, it was shortly after the accused was formally charged with murder that she gave the statement sought to be introduced. This case is different. By the time Ms. York-Denomme gave her statement to Cst. Gabi, she had been: (i) formally arrested and cautioned by the CBSA; (ii) held in CBSA custody for about four hours after the arrest; and (iii) formally arrested and cautioned by Cst. Dionne of the RCMP. Even prior to her arrest by the CBSA, she had already been confronted with pointed questions about drugs.
[32] The application fails at the third criteria.
Conclusion
[33] The application is dismissed.
Coroza J.
Released: February 6, 2018
COURT FILE NO.: CrimJ(F) 264/13
DATE: 2018 02 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JENAE RICHELLE YORK-DENOMME
REASONS FOR RULING
(EDGAR APPLICATION)
COROZA J.
Released: February 6, 2018