



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boyce, 2019 ONCA 828

DATE: 20191021

DOCKET: C62277

Strathy C.J.O., Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dexter Boyce

Appellant

Dean F. Embry and Eric S. Neubauer, for the appellant

David Quayat, for the respondent

Heard: March 7, 2019

On appeal from the conviction entered by Justice Nancy J.
    Spies of the Superior Court of Justice, dated December 11, 2015 with reasons
    reported at 2015 ONSC 7672.

B.W. Miller J.A.:

Background

[1]

The appellant was convicted of offences under s. 6(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19, and ss. 463 and 465 of the
Criminal
    Code
, arising from his part in a failed conspiracy to import cocaine from
    Costa Rica to Toronto. The parties to the conspiracy arranged for almost 356 grams
    of cocaine to be hidden inside two packages of travel brochures to be shipped to
    Toronto via Federal Express courier. The packages were intercepted in Panama, a
    transit point for the shipments. Laboratory analysis conducted by Panamanian
    authorities indicated that the substance hidden in the travel brochures was
    cocaine.

[2]

The trial judge found that surveillance evidence and intercepted
    communications established that the appellant was part of a conspiracy, and the
    object of that conspiracy was to import something illegal from Costa Rica to
    Toronto, hidden inside two Federal Express packages. These findings have not been
    appealed. This evidence could not establish, however, what the conspiracy was
    attempting to import. The sole evidence that could identify the object matter
    was provided by a laboratory analysis and other documentation provided to the
    Crown by Panamanian authorities pursuant to a request made under the
Mutual
    Legal Assistance Treaty
(
MLAT
).

[3]

Canadas obligations under
MLAT
, as well as rules for the evidentiary
    use of documents received pursuant to
MLAT
requests, are established in
    the
Mutual Legal Assistance in Criminal Matters Act
, R.S.C., 1985, c.
    30 (4th Supp.) (
MLACMA
).

[4]

The issue on this appeal is whether the trial judge erred in admitting
    into evidence the documentation received from Panama pursuant to the
MLAT
request (the
MLAT
documents) that attests to the nature of the substance
    hidden in the travel brochures.

[5]

The Crown relied on the
MLAT
documents to establish various
    steps in the Panamanian investigation, including how the cocaine was discovered,
    the continuous chain of custody to the Panamanian Laboratory of Controlled
    Substances, and the chemical analysis conducted at that laboratory by the head
    chemist.

[6]

The appellant brought a pre-trial application to exclude the
MLAT
documents from evidence, particularly the Panamanian laboratory report. Both
    parties agreed to be bound by the ruling. On June 25, 2015, the appellants
    application was dismissed, with reasons reported at 2015 ONSC 4062.

[7]

The trial judge found the
MLAT
documents to be reliable based
    on the cumulative effect of the documents, as well as corroboration from
    information obtained through intercepted communications. Based on the
    Panamanian drug testing, expert evidence testifying about the nature of the
    three tests used by the Panamanian laboratory, and other evidence that
    reinforced the reliability of the
MLAT
documents, the trial judge
    concluded that the substance found in the intercepted packages was cocaine. The
    appellant was convicted.

Issues

[8]

The appellant raises two issues on appeal:

1. Did the
    trial judge misinterpret and misapply s. 36(1) of
MLACMA
and thereby
    improperly admit hearsay expert evidence?

2. In the
    alternative, if the trial judges interpretation of s. 36(1) is correct, does s.
    36(1) infringe s. 7 and 11(d) of the
Charter of Rights and Freedoms
?

Analysis

1.

The
    interpretation and application of s. 36(1) of
MLACMA

[9]

At common law, hearsay evidence and opinion evidence are presumptively
    inadmissible. At issue in this appeal is whether s. 36 of
MLACMA
gives
    a trial judge the discretion to admit foreign records containing hearsay and
    opinion evidence that have been sent pursuant to a Canadian request.

[10]

Section
    36 provides:

Foreign Records

(1) In a proceeding with respect to which Parliament
    has jurisdiction, a record or a copy of the record and any affidavit,
    certificate or other statement pertaining to the record made by a person who
    has custody or knowledge of the record, sent to the Minister by a state or
    entity in accordance with a Canadian request, is not inadmissible in evidence
    by reason only that a statement contained in the record, copy, affidavit,
    certificate or other statement is hearsay or a statement of opinion.


Probative value

(2) For the purpose of determining the probative
    value of a record or a copy of a record admitted in evidence under this Act,
    the trier of fact may examine the record or copy, receive evidence orally or by
    affidavit, or by a certificate or other statement pertaining to the record in
    which a person attests that the certificate or statement is made in conformity
    with the laws that apply to a state or entity, whether or not the certificate
    or statement is in the form of an affidavit attested to before an official of
    the state or entity, including evidence as to the circumstances in which the
    data contained in the record or copy was written, stored or reproduced, and
    draw any reasonable inference from the form or content of the record or copy.

[11]

The
    trial judge, at para. 84, accepted the interpretation of this section proffered
    by the Crown,

that relevant hearsay documents that meet the requirements of
    s. 36(1) are admissible and that it is not necessary to consider the two prongs
    of necessity and threshold reliability. That interpretation makes the most
    sense in light of s. 36(2), which provides that the ultimate probative value of
    these hearsay documents and the reasonable inferences that can be drawn from
    them is for the trier of fact.

[12]

That
    is, s. 36(1) makes relevant tendered evidence admissible without considering either
    its necessity or threshold reliability. This is consistent with the
    interpretation of that section recently provided by the British Columbia Court
    of Appeal in
R. v. Rajaratnam
, 2019 BCCA 209, 376 C.C.C. (3d) 181, at
    para. 123:

We agree with the Crown that s. 36 precludes a successful
    objection to the admissibility of a document solely on the basis that it
    contains hearsay or an opinion, which is a form of hearsay. We also agree with
    the Crown that, by reasons of s. 36, a document containing hearsay can be
    tendered for the truth of its contents without the need to establish the
    evidence either falls within a recognized common law exception to the hearsay
    rule or meets the requirements of the principled approach to hearsay.

[13]

Section
    36(1) does not, on this reading, determine the question of ultimate admissibility.
    Evidence derived from foreign law enforcement is still subject to the general
    exclusionary rule  weighing probative value as against prejudicial effect  as
    articulated in
R. v. Mohan
,

[1994] 2 S.C.R. 9. Furthermore,
    trial judges retain the power to exclude otherwise admissible hearsay evidence
    where its admission would infringe on the fair trial rights of an accused:
R.
    v. Harrer
, [1995] 3 S.C.R. 562, at paras. 21-24.

[14]

The
    appellant argues that this is not a sound interpretation of s. 36(1). The appellant
    argues that s. 36(1), properly interpreted, does not remove the presumptive
    inadmissibility of hearsay and expert evidence, and the Crown is still required
    to establish necessity and threshold reliability. On the appellants
    interpretation, s. 36(1) merely restates the common law position that hearsay
    documents will not be excluded from trial simply because they contain hearsay
    or opinion provided they come within an exception to the rule against their
    admissibility. The appellant claims support from the reasons of the application
    judge in this case as well as
R. v. Armour Pharmaceutical Company
, 2007
    CanLII 82855 (ON SC).

[15]

In
    support of this position, the appellant argues that s. 36(1) is ambiguous and
    can be read either as the trial judge did or in the manner he proposes. He
    argues that his interpretation is to be preferred because it would better realize
    constitutional principles related to ss. 7 and 11(b) of the
Charter
:
Bell
    ExpressVu Limited Partnership v. Rex
,

2002 SCC 42, [2002] 2
    S.C.R. 559. That is, removing the barrier to the admission of hearsay, as
    proposed by the interpretation of the trial judge, would jeopardize the fair
    trial rights of an accused.

[16]

In
    further support, the appellant argues that were s. 36(1) to be interpreted as the
    trial judge did, it would result in a change to the common law, rendering evidence
    admissible which would not be admissible but for s. 36(1). However, the
    appellant argues, legislation is not to be interpreted as setting aside or
    otherwise changing the common law unless Parliament has expressed its intention
    to do so using clear and unambiguous language. It did not do so in this case.

[17]

I
    would reject both arguments, on the basis that each depends on the existence of
    an ambiguity in the statutory provision. As explained below, no such ambiguity
    exists.

[18]

An
    ambiguity, in the relevant sense, means that the words of the provision are
    reasonably capable of bearing more than one meaning. The Supreme Court has
    cautioned that one must consider the entire context of a provision before
    one can determine if it is reasonably capable of multiple interpretations and
    that It is only when genuine ambiguity arises between two or more plausible
    readings,
each equally in accordance with the intentions
    of the statute
, that the courts need to resort to external interpretive
    aids  to which I would add, including other principles of interpretation.:
Bell ExpressVu
, at para. 29.

[19]

However,
    the appellants interpretation does not account for the purpose of the statute,
    characterized by the trial judge  relying on
Pokidysheve Re
, (1999)
    138 C.C.C. (3d) 321 and
Zingre v. R.
, [1981] 2 S.C.R. 392  as combatting
    international crime by co-operating with other states, and recognizing a comity
    of a nations based on mutual deference and respect for the legal systems of
    Canadas treaty partners.

[20]

As
    explained by Goldstein and Dennison in Mutual Legal Assistance in Canadian
    Criminal Courts (2002) 45 Crim LQ 126, s. 36(1) eases the admission of foreign
    evidence that ordinarily would have encountered procedural obstacles to its
    admission. This advances the purpose of
MLACMA
by facilitating the
    admission of evidence obtained abroad in order to efficiently and effectively prosecute
    international and transnational crime. Allowing foreign evidence to be
    requested from foreign governments and received in documentary form respects
    the comity of nations by avoiding the intrusive and
ad hoc
process of
    Crown counsel directly contacting people in other countries and asking them to
    testify. It is premised on Canada and its treaty partners having confidence in
    and respect for each others legal systems.

[21]

The
    interpretation of s. 36(1) proposed by the appellant is thus inconsistent with its
    purposes and is not a plausible interpretation. No ambiguity has been
    demonstrated and the trial judge made no error in this respect.

The application of s. 36

[22]

Having
    rejected the appellants argument that the trial judge misinterpreted s. 36(1),
    the next question is whether the trial judge, or the application judge before
    her, nevertheless misapplied s. 36(1) in admitting the
MLAT
documents.

[23]

Most
    of the appellants arguments with respect to the application judges decision
    to admit the evidence are premised on the reading of s. 36(1) that was rejected
    above. They therefore cannot succeed.

[24]

With
    respect to the argument that the trial judge erred in not exercising her
    residual discretion to exclude the evidence on fair trial grounds, I am not
    persuaded that the trial judge made such an error.

[25]

The
    trial judge relied on the Panamanian drug test results in finding that the
    substance the appellant conspired to import, and attempted to import, was
    cocaine. At trial, the only basis on which the appellant argued for the
    exclusion of the evidence was that it constituted hearsay and opinion evidence.
    The trial judge noted that the unavailability of cross-examination to test the
    evidence was not a matter of admissibility, but of what weight to give the
    evidence. She found that the traditional concerns about hearsay were virtually
    non-existent with the
MLAT
documents, with little if anything to be
    gained by cross-examination of the authors.

[26]

The
    appellant argues that the trial was unfair because he did not have an
    opportunity to cross-examine the Panamanian chemist on the procedures that were
    followed in the drug testing. The trial judge rejected this argument on the
    basis that the nature of the confirmatory testing is such that, absent
    contamination with cocaine from a source other than the white powder found in
    the packages, a false positive could not result. A substance that was not
    cocaine could not be positively identified by the infrared spectroscopy test as
    cocaine. The Crowns expert witness admitted that a successful test would
    depend on functioning equipment and a competent operator. However, based on her
    explanation of the test method, the trial judge inferred that a failure of the
    equipment or a competent operator would result in non-identification, rather
    than a positive identification of cocaine. This is an inference that was
    available to the trial judge from the evidence, and there is no basis for this
    court to interfere with it.

[27]

The
    trial judge had no difficultly in giving the expert report significant weight,
    given that it was prepared by the head chemist of a government laboratory,
    using internationally recognized tests, for use of the Panamanian prosecutors
    office, and reported to a Panamanian court. Furthermore, the trial judges
    conclusion was supported by the evidence that the substance found in the parcels
    was a white powder, and that the intercepted communications had made it clear
    that the substance to be imported was something illegal.

[28]

I
    see no error in the trial judges analysis.

2.

The
    constitutional question

[29]

At
    trial, the appellant did not bring a
Charter
challenge seeking to
    invalidate s. 36 under s. 52 of the
Constitution Act, 1982
. Constitutional
    invalidity was raised for the first time in a Notice of Constitutional Question
    on appeal, and s. 52 arguments were advanced in the appellants factum. In oral
    submissions, however, the appellant took the position that s. 36(1) was not
    unconstitutional, but merely that the interpretation given by the trial judge
    was unconstitutional. The remedy sought was not a declaration of invalidity
    pursuant to s. 52, but that the provision be interpreted in a manner that is
    consistent with ss. 7 and 11(d) of the
Charter
. After oral argument,
    the B.C. Court of Appeal released its judgment in
Rajaratnam
, in which
    it declared s. 36(1) to be of no force and effect pursuant to s. 52 of the
Constitution
    Act
. This court then invited the parties to make written submissions on whether
    or to what extent
Rajaratnam
had any bearing on the matters at issue
    in this appeal. In his submissions in response, the appellant argued that the B.C.
    Court of Appeal erred by misinterpreting s. 36(1) in the same manner as the
    trial judge had done. However, he argued in the alternative that if this court
    were to agree with the interpretation given by the B.C. Court of Appeal and the
    trial judge, then this court ought to find s. 36(1) to be inconsistent with ss.
    7 and 11(d) of the
Charter
and declare s. 36(1) to be of no force and
    effect pursuant to s. 52.

[30]

The
    respondent, although agreeing with the B.C. Court of Appeal on the question of
    statutory interpretation, takes the position that the constitutional analysis
    in
Rajaratnam
is flawed and should not be adopted. The respondents primary
    position, however, is that the s. 52 argument should not be decided, given that
    it was raised for the first time on appeal.

[31]

In
    general, this court is reluctant to consider constitutional challenges to
    legislation that are not advanced at trial: e.g.
R. v. Wookey
, 2016
    ONCA 611, 351 O.A.C. 14, at paras. 55-57:

[55] The appellant raises this constitutional challenge for the
    first time on appeal.

[56] As the Supreme Court recently explained in
Guindon v.
    Canada
, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 20-22, while appellate
    courts can hear and decide new issues not raised at trial, whether or not to do
    so is a matter for the courts discretion. This discretion is exceptional; it
    should not be exercised routinely or lightly. When determining whether to
    exercise its discretion, a court should take into account all of the
    circumstances, including the following:

·

the state of the record,

·

fairness to all parties,

·

the importance of having the issue resolved by
    the court,

·

its suitability for decision, and

·

the broader interests of the administration of
    justice.

[57] The court should not exercise its discretion unless
    convinced that doing so would cause no prejudice to the parties or that failing
    to do so would risk injustice:
Guindon
, at paras. 22-23;
Performance
    Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.,
2002 SCC 19,
    [2002] 1 S.C.R. 678, at para. 33.

[32]

I
    would not exercise this courts discretion in favour of hearing the
    constitutional argument.

Disposition

[33]

I
    would dismiss the appeal.

Released: GS OCT 21 2019

B.W. Miller J.A.

I agree. G.R.
    Strathy C.J.O.

I agree. Paul
    Rouleau J.A.


