



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Caesar, 2016 ONCA 599

DATE: 20160728

DOCKETC59609

Blair, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tamille Caesar

Appellant

Brian Eberdt, for the appellant

Maria Gaspar, for the respondent

Heard: March 30, 2016

On appeal from the conviction entered on November 26,
    2013 and the sentence imposed on March 4, 2014 by Justice Kofi N. Barnes of the
    Superior Court of Justice, sitting with a jury.

Blair J.A.:

OVERVIEW

[1]

The appellant and her boyfriend, Brian Anderson, attended her cousins
    wedding in St. Lucia. When they returned to Canada, each was carrying a
    substantial quantity of cocaine in their luggage. They were charged jointly
    with importing cocaine on the Crowns theory that they were engaged in a joint
    enterprise involving the total amount of cocaine brought into the country  3.6
    kilograms, with a street value of
about $130,000.


[2]

Mr. Anderson pled guilty, being careful to limit his acceptance of
    responsibility to the two kilograms of cocaine found in his suitcase. He was
    sentenced to five years imprisonment less twelve months credit for pre-trial
    custody. The appellant proceeded to trial before a jury. She was convicted and,
    on the trial judges finding that the importation was a joint enterprise and
    that the jury had rejected her claim that she had been set up by Mr. Anderson, sentenced
    to six years in prison.

[3]

She appeals her conviction on the ground that the trial judge erred in
    refusing her request to admit the evidence of Mr. Andersons guilty plea at
    her trial. As well, she seeks leave to appeal, and if leave is granted, appeals
    the sentence.

[4]

I italicize the words to admit the evidence of Mr. Andersons guilty plea
    because therein lies one of the difficulties with the case. It is not clear
    what evidence the appellant seeks to have introduced under that rubric. Is it
    the evidence of Mr. Andersons guilty plea alone? Or is it the evidence of Mr.
    Andersons guilty plea coupled with the fact that his plea was founded on the
    two kilograms of cocaine in the bag he brought into Canada? These questions
    give rise to different considerations of admissibility in the circumstances of
    this case, but they were seemingly conflated at trial and, to some extent,
    continued to be on appeal. Here, however, appellants counsel contends that, at
    the very least, the evidence of the guilty plea alone should be admitted 
    something that, in fairness to the trial judge, was never put squarely to him.

[5]

For the reasons that follow, I agree that the evidence of Mr. Andersons
    guilty plea alone, as recorded on the back of the original indictment, is
    admissible and that the appellant should be permitted to tender it. Her defence
    is that she was simply a blind courier who had been set up by Mr. Anderson. On
    her view of the case, the jurors needed to know what happened to Mr. Anderson
    and that he had taken at least some responsibility, because, in the absence of
    that information, they could be left with the misleading impression that she
    alone was responsible.

[6]

I would allow the appeal and direct a new trial on that ground alone.

[7]

However, I would not give effect to the argument that the appellant
    should have been permitted to lead evidence of the facts underlying the guilty
    plea. In my view, the trial judge properly excluded that evidence  absent Mr.
    Anderson, who was available, being called to testify  on the basis that it was
    hearsay evidence that did not meet the tests of necessity and reliance in the
    circumstances.

[8]

It follows from the foregoing that it will be unnecessary to deal with
    the sentence appeal.

FACTUAL BACKGROUND

[9]

The appellant and Mr. Anderson returned from the St. Lucia wedding on
    December 24, 2011. They were selected for secondary screening at the airport by
    an officer of the Canada Border Services Agency (CBSA). When the agent examined
    Mr. Andersons luggage he discovered 2 kilograms of cocaine secreted in a
    hidden compartment in the bottom of the bag. Another officer, searching the
    appellants baggage, discovered 1.6 kilograms of cocaine secreted in a similar
    fashion. Prior to the inspection, the appellant told the CBSA officer the bag
    was hers, she had packed it herself, and she was aware of all of its contents.

[10]

Both the appellant and Mr. Anderson acknowledged that the suitcases were
    different from those they took with them on leaving Canada. Their explanations varied
    somewhat in the details but, in substance, they said that their luggage had
    become water damaged while they were in St. Lucia and had to be replaced. Mr.
    Anderson said that his bag became wet when he left the sunroof of his car open
    and that his cousin had given him a new bag. The appellants version was that
    the contents of their luggage had become wet while being transported in a car,
    that she made arrangements to have their clothes washed and dried at the hotel
    and gave Mr. Anderson money to purchase two new suitcases for them, which he
    did and brought the new luggage back to the hotel.  In an earlier statement to
    police, however, she said they had gone together to the market to purchase the
    suitcases. The appellant admitted that she had personally repacked both of
    their belongings in the new luggage.

[11]

The appellant and Mr. Anderson had been boyfriend and girlfriend on a
    sporadic basis for a couple of years prior to the trip. When the appellant
    indicated she was going to her cousins wedding in St. Lucia, Mr. Anderson said
    that he had been planning a similar trip. She agreed to their travelling
    together because she was four months pregnant at the time and did not want to
    go alone.

[12]

The appellant arranged for, and initially paid for, their flights (Mr.
    Anderson reimbursed her later for the air fare). They shared the same flight
    itinerary and their hotel room in St. Lucia (which was paid for by the
    appellants uncle). Upon arrival at Pearson International Airport, their
    baggage claim tags had been interchanged on their respective suitcases and the
    baggage claims for both suitcases were attached to the appellants boarding
    pass. They presented themselves to customs as boyfriend and girlfriend
    travelling together.

Application to Admit Mr. Andersons
    Guilty Plea

[13]

The appellants defence was that she had no knowledge of the cocaine in
    the two bags and that she had been set up by Mr. Anderson. She was simply a
    blind courier.

[14]

The appellant testified and, in addition, sought to have the evidence of
    Mr. Andersons guilty plea, and of the facts underlying it, admitted at trial. Defence
    counsels theory was that this evidence was relevant and would be important to
    the jurys findings respecting the blind courier defence and, as well, the
    extent of the appellants involvement in the enterprise, if they found she was
    involved.  Because the Crown was proceeding against the appellant on the basis
    that she was criminally responsible for importing the entire 3.6 kilograms of
    cocaine, and had placed both pieces of luggage into evidence, the jury needed
    to know what had happened to Mr. Anderson and that he had pled guilty to
    importing one of the bags containing two kilograms of the drug. Otherwise, the
    jury could be left with the impression that it was only the appellant who was
    responsible and being called upon to pay for the crime and that it was Mr.
    Anderson, not she, who was the blind courier.

[15]

Defence counsel put it this way during his submissions on the
    admissibility issue:

My friend speaks about inferences and speculation and what the
    jury may speculate. Well, what is the jury going to speculate when theyre in
    that jury room, and Mr. Anderson was not in this box? They know nothing about
    Mr. Anderson but shes facing a trial in regards to both bags. What are they
    going to speculate, Your Honour?
Theyre going to speculate that Mr.
    Anderson has nothing to do with this case. They know he came into the country
    with a bagbut hes not before the court and the Crown has presented evidence
    that she has imported both bags
.



But my friend has put both bags before the court. She is now
    responsible for both bags. Shes sitting before the court responsible for both
    bags of cocaine and the jury doesnt know what happened to Mr. Mr. Anderson.
    And its open for them to say, well, someones got to pay the price for these
    -- for these drugs. Mr. Anderson is not here, I dont know why, he may have
    walked, because theres no further evidence of what happened to Mr. Anderson.
    Did he go to court? Did he have a bail hearing? We know that Ms. Caesar did.
    Ms. Caesar is the only one paying for this right now, as far as the jury is concerned.

Both bags were put before them, they have to know what
    happened to Mr. Anderson because, according to the Crown, shes responsible for
    both bags and Mr. Anderson pled guilty to one of those bags. Those are the
    facts hes acknowledged.

And this jury and I know the court could charge the jury in a
    certain fashion. I believe it doesnt matter what the court says to the jury,
    theyre going to go into that room and go,
where is Mr. Anderson, what
    happened to him? Why is she left holding the two bags?
...

Its not -- its more prejudicial to Ms. Caesar if it doesnt
    go before the court
and I dont see it being prejudicial to the Crowns case
    for the jury to know that Mr. Anderson was arrested, he pled guilty and
    accepted responsibility for his bag only. Itll still be left to the jury at that
    point to say, okay, fine. Was she in cahoots with Mr. Anderson, is she
    responsible for her bag or do we accept Ms. Caesars evidence that Mr. Anderson
    is actually responsible for her bag as well? And thats the question for them
    to decide
.

Ms. Caesar testified. She said that
    she was set up. Mr. Anderson is responsible for both. Mr. Anderson is not here.
    His name, other than being arrested, they dont know what happened to Mr.
    Anderson. Shes pointed a finger at an individual the jury does not know has
    accepted responsibility, at least partially, in regards to this case. And with
    both bags being put into evidence, marked as an exhibit, and being in that jury
    [room], when they consider their verdict, theyre considering both bags as
    being in her possession without knowing what happened to Mr. Anderson.
    [Emphasis added.]

[16]

Acknowledging that the evidence was hearsay in nature, defence counsel
    contended that it was admissible either by way of an agreed statement of facts
    setting out that Mr. Anderson had pled guilty and accepted responsibility for
    his bag, or by the defence calling the officer in charge of the investigation,
    who had attended at the time of the guilty plea, to give the same evidence. In
    a very brief reference, defence counsel pointed out that the original
    indictment contained the information of the guilty plea and in another passing
    comment mentioned the transcript of the plea. But defence counsel did not seek
    to admit the indictment as proof of the guilty plea, nor did he ask that the
    transcript of the guilty plea proceedings be admitted as proof of the plea and
    the facts underlying it.

[17]

The Crown argued, on the other hand, that the evidence was hearsay in
    nature and therefore inadmissible unless Mr. Anderson was called to testify,
    because otherwise the Crown was deprived of the opportunity to cross-examine.

[18]

Mr. Anderson was made available to testify at trial (apparently after
    considerable effort by the Crown, defence counsel, and Court Services personnel,
    on short notice). After speaking with him, however, defence counsel made what
    he acknowledged was a strategic decision not to put him on the stand because
    cross-examination would not be limited simply to the fact that Mr. Anderson had
    pled guilty and what he had pled guilty to. Defence counsel told the trial
    judge:

[Mr. Anderson is] not on the stand because of his guilty plea
    and the cross-examination he could face in regards to that, and then were
    going back to square one from the time he left Canada and went to St. Lucia,
et
    cetera
.

[19]

The trial judge ruled that the evidence was inadmissible.

The Ruling

[20]

Although the Crown contested relevance below, trial judge accepted that
    the evidence was relevant to the defences theory of the case. Crown counsel
    argued that even if Mr. Andersons guilty plea and the facts underlying it were
    relevant, the evidence was hearsay and was only admissible if it met the
    requirements of the principled exception to the hearsay rule. The Crown
    submitted that the necessity element of that test was not met because Mr.
    Anderson was available to testify.

[21]

The trial judge ultimately accepted this submission. He considered that
    there were three potential avenues for admission:

(a) an agreed
    statement of facts;

(b) Mr. Andersons
    testimony; or

(c) the principled
    exception to the hearsay rule.

[22]

The trial judge rejected the agreed statement option because he could
    not compel the parties to file such a statement and the parties were unable to
    agree to do so. He pointed out that Mr. Anderson was available to testify, and
    that this option was still open to the defence. He then turned his mind to the
    principled exception to the hearsay rule:

Defence counsel has to establish
    that this evidence is coming by hearsay on [the] basis of necessity, reliability
    and certainly if the party  seeking to introduce the evidence satisfies those
    two requirements, then the judge has the residual discretion to do a probative
    prejudicial analysis and to exclude the evidence on the basis of the fact that
    it may be too prejudicial.

[23]

The trial judge eliminated the exercise of residual discretion 
    apparently with counsels agreement  on the basis that the proposed evidence
    was not too prejudicial to the appellant to be admitted. Although he focussed
    on the issue of necessity  noting that the big issue here is the issue of
    necessity  the trial judge ultimately concluded that the the requirements of
    necessity and reliability have [not] been met because Mr. Anderson was alive,
    was at the courthouse, and was available to testify. In this respect, the
    opportunity for the Crown to cross-examine was an important trial fairness
    consideration going to both elements.

[24]

On this basis the trial judge ruled that the hearsay evidence of Mr.
    Andersons guilty plea, and the facts underlying it, could not be admitted
    through another witness.

THE CONVICTION APPEAL

[25]

On the conviction appeal, only one issue was pursued in argument: did
    the trial judge err in ruling that the evidence of Mr. Andersons guilty plea to
    importing one bag containing two kilograms of cocaine was inadmissible?

[26]

As noted at the outset of these reasons, however, there are two
    components to this question: (i) evidence of the guilty plea alone; and (ii) evidence
    of the guilty plea and of the underlying facts on which it was based. 
    Conflating the two clouds the analysis because different admissibility
    considerations may apply in each case. The analysis here is complicated by the
    confusion over what evidence it was, or is, that the appellant seeks to have
    admitted.

[27]

On my review of the record it is apparent that she did not seek at trial
    to introduce the evidence of the guilty plea alone, through proof of the
    original indictment or otherwise; she sought to introduce the evidence of the
    plea plus the facts underlying it  as she put it, to show that Mr. Anderson
    had pled guilty and accepted responsibility for his bag. Appellants counsel
    conceded this in oral argument before us.

[28]

On the appeal, however, the appellant adopted a more nuanced approach.  While
    continuing to press for the admission of the broader evidentiary package,
    appellants counsel submitted in the alternative that, at the very minimum, the
    evidence of Mr. Andersons guilty plea itself should have been admitted. I will
    accordingly approach the analysis by dividing the evidence of the guilty plea
    question into its two components and consider separately whether:

(a) the evidence of Mr. Andersons
    guilty plea alone was admissible through proof of the indictment on which it
    was recorded; or,

(b) the evidence of Mr. Andersons
    guilty plea
together with
the evidence of the underlying facts on which
    it was based, was admissible through proof of the transcript of the guilty plea
    hearing.

[29]

As I shall explain, the answer to the first of these questions is Yes,
    but to the second is No.

[30]

I would therefore allow the appeal and order a new trial on the basis
    that the appellant should have been permitted to lead the evidence of Mr.
    Andersons guilty plea alone, through proof of the indictment on which it is
    recorded (redacted as necessary to eliminate information, such as the sentence
    imposed, that the jury should not have before it). The evidence of the
    underlying facts upon which the plea was based is not admissible, however,
    because proof of the truth of the contents of the transcript of the plea does
    not fall within any of the exceptions to the hearsay rule on which the
    appellant now relies, nor does it meet the necessity and reliability criteria
    required for application of the principled exception to the hearsay rule in
    these circumstances.

Discussion

[31]

In fairness to the trial judge, his ruling was responsive to the double-barrelled
    nature of the request for admission that was put to him (the guilty plea plus
    proof of the facts underlying it). Although, as mentioned above, defence
    counsel made a passing reference to the fact that the details of the guilty
    plea were contained on the back of the original indictment and to the existence
    of the transcript of the plea, no attempt was made to have either the
    indictment or the transcript admitted, no alternative argument was advanced
    that the guilty plea alone could be admitted, and no argument was made that the
    evidence was admissible on the basis of any exception to the hearsay rule,
    apart from the principled exception.

[32]

On appeal, the appellant submits that the trial judge erred in moving
    directly to a principled necessity/reliability analysis of the hearsay issue,
    without first considering whether the evidence was otherwise admissible based
    on an existing exception to the hearsay rule, as contemplated by the Supreme
    Court of Canada in
R. v. Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144. Appellants
    counsel puts forward three exceptions upon which he argues that the evidence of
    the guilty plea or of the guilty plea and its underlying facts were admissible
    by way of proving the original indictment and/or the transcript of the guilty
    plea:

(a) as an original court
    document, upon which the court could take judicial notice (or, to put it more
    aptly, under the principles relating to the admission of public documents or
    judicial records);

(b) through s. 23 of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5, as evidence of any proceeding; or

(c) under the common law
    doctrine of exemplifications.

[33]

I agree that evidence of the guilty plea alone, as recorded on the
    original indictment, may be proved at least under the public documents or
    judicial records category and that, in the circumstances, the appellant ought
    to have been permitted to prove the fact that Mr. Anderson pled guilty by
    putting the information on the back of the original indictment to that effect
    into evidence.  However, I am not persuaded that any of the foregoing exceptions,
    by themselves, render the transcript containing the rolled-up evidence of Mr.
    Andersons guilty plea and the facts underlying it, admissible for the truth of
    those facts.

The
    Relevant Principles

[34]

I say this because, in my view, the exceptions now relied upon by the
    appellant are designed primarily to facilitate proof of the court documents and
    records of proceedings themselves without the need to call the authors or
    creators of those documents or records to establish their authenticity (proof
    of authenticity), but they do not automatically render the hearsay contents of
    such documents or records admissible for the truth of their contents if they
    are not otherwise admissible for that purpose (proof for purposes of
    substantive admissibility). Whether the contents of the documents or records
    are admissible for their truth will depend upon whether it was within the scope
    of the recorders duty to confirm their truth. Here, proof of Mr. Andersons
    guilty plea, as verified on the back of the original indictment, meets the
    latter test. Proof of the underlying facts on which that plea was based, as
    reflected in the transcript, does not, however.

[35]

I turn to the jurisprudence to illustrate this analysis.

[36]

The appellants first submission is that the indictment and/or the
    transcript of the guilty plea proceedings, and their contents are admissible
    because a court may take judicial notice of its own process. While that may
    be so  see, for example,
R. v. Hunt
(1986), 18 O.A.C. 78 (C.A.);
R
    v. Bailey
2014 ONSC 5477. [2014] O.J. No. 4420; and
Craven v. Smith
(1869) L.R. 4 Ex. 146  the power of the court to look at its own documents and
    take notice of their contents only takes the inquiry so far. By itself, it does
    not answer the question whether the contents of the documents or records are
    admissible for the truth of their contents, and I do not take those authorities
    to mean that they are in all circumstances.

[37]

In determining the answer to the substantive admissibility question, I
    think it is more helpful, and more accurate, to reframe the inquiry and to
    examine the admissibility of the indictment and transcript, and their contents,
    through the prism of the common law principles relating to the admissibility of
    public documents or records of court proceedings (as Weiler J.A. preferred to
    call similar records and documents, in
R. v. C. (W.B.)
(2000), 130
    O.A.C. 1 (C.A.), at para. 30). Such records are admissible as public documents
    without further proof because of their inherent reliability or trustworthiness
    and because of the inconvenience of requiring public officials to be present in
    court to prove them:
R. v. P. (A.)
(1996), 109 C.C.C. (3d) 385 (Ont.
    C.A.), at p. 390:
C. (W.B.)
, at paras. 30-31.

[38]

To be admissible in this sense, the documents or records must meet the
    four criteria necessary for the admissibility of a public document or judicial
    record:

(a) the document must have been made by a public official, that
    is a person on whom a duty had been imposed by the public;

(b) the public official must have made the document in the
    discharge of a public duty or function;

(c) the document must have been made with the intention that it
    serve as a permanent record, and

(d) the document must be available for public inspection.

See
P.(A.)
, at p.
    390;
C. (W.B.)
, at para. 32.

[39]

However, as noted above, the admissibility of the contents of the
    records for substantive purposes is driven by the scope of the duty of the
    public or court official making the record in question. If it is the recorders
    duty to validate the truth of the contents, they will be admissible for that
    purpose (if otherwise relevant), but if it is not within the scope of the
    recorders duty to do so, they will not be.  Weiler J.A. explained this principle
    in
C. (W.B.)
, at paras. 33-34:

Like a public document, the admissibility of a judicial
    proceeding is limited to the precise scope of the recorders duty. Ewart, in
Documentary
    Evidence in Canada
, Carswell, 1984, at 153 terms this a strict
    requirement. He says:

In all cases, it will be necessary to determine the precise
    scope of the recorders duty, since that will delimit the admissibility of the
    contents of the document he prepared. For example, since duty determines
    admissibility, baptismal records are admissible to prove the fact, date, and
    place of the baptism, but any statements therein concerning the age of the
    child will not be admissible. Similarly death certificates are admissible to
    prove the fact, time, and place, but not the cause of death.

The court reporter [has] a duty to transcribe what was said. That
    is the extent of the admissibility of the transcript. The transcript would not
    answer the question of whether what was said was true.

[40]

The appeal can be resolved on the application of the foregoing
    principles, but the appellant seeks to rely as well on two additional avenues
    of proof: s. 23(1) of the
Canada Evidence Act
and the common law
    doctrine of exemplification. I accept that evidence of a court proceeding or
    record may be given in another proceeding by an exemplification or certified
    copy of the proceeding or record, under s. 23(1) (provided notice is given), or
    under the common law doctrine of exemplification (even without notice in
    appropriate circumstances):
C. (W.B.); R. v. Tatomir
, 1989 ABCA 233,
    69 Alta. L.R. (2d) 305, leave to appeal to the Supreme Court of Canada refused
    (1990), 53 C.C.C. (3d) ii;
Bailey
;
R. v. John
, 2015 ONSC 2040,
    [2015] O.J. No. 1719. Like the admissibility of public documents and judicial
    records, however, and absent the recorders duty to validate the truth of the
    contents, these avenues of proof are just that, in my view  procedural mechanisms
    whereby evidence of the court proceeding or record may be proved, without
    having to provide proof of the authenticity of the document by calling the
    court officer or stenographer who made the record. In other words, they provide
    a shortcut to proof of authenticity. However, they do not render the hearsay content
    of court proceedings or records admissible for the truth of their contents
    where they would not otherwise be admissible for that purpose in the
    circumstances.

[41]

This view is confirmed by s. 36 of the
Canada Evidence Act
:

This Part shall be deemed to be in addition to and not in
    derogation of any powers
of proving
documents given by any existing Act,
    or existing law. [Emphasis added.]

[42]

The same theme is reflected in the following observation made by J.
    Douglas Ewart, Michael Lomer and Jeff Casey, in
Documentary Evidence in
    Canada
(Agincourt, ON: Carswell Legal Publications, 1984), at p. 183, with
    respect to the common law doctrine of exemplification:

At common law, judicial documents
    must
be proved
by the production of the original record or an
    exemplification under the seal of the court to which the record belongs. No
    notice is required. [Emphasis added.]

[43]

The view I take is also confirmed by the manner in which resort to s. 23
    of the
Canada Evidence Act
has been treated in the jurisprudence.

[44]

For example, in
R. v. Duong
(1998), 29 O.R. (3d) 161, where the
    accused was convicted of being an accessory-after-the-fact to second degree
    murder, this Court had to consider whether the guilty plea of the principal who
    committed the crime was admissible against the accused at the accuseds trial. The
    Court held that it was. The Crown sought to prove the principals conviction by
    way of a certified copy of the indictment recording the plea through s. 23 of
    the
Canada Evidence Act
. However, it was only after concluding that
    the conviction was otherwise substantively admissible against the accused  as
    some proof that the crime of which he was alleged to have been accessory after
    the fact, had been committed  that Doherty J.A. turned to consider the method
    by which the conviction could be
proved
, namely through resort to s.
    23 (para. 47).

[45]

R. v. Byrnes
, 2012 ONSC 2090, [2012] O.J. No. 1454, is also
    illustrative.  In that case, the accused was charged with the attempted murder
    of his ex-wife and with breaking and entering her home with intent to commit an
    indictable offence. The Crown sought to introduce the transcript of a prior
    family law proceeding between the two, relying on the submission that s. 23 of
    the
Canada Evidence Act
provided a statutory exception to the hearsay
    rule. Drawing on the passage from this Courts decision in
C. (W.B.)
referred to above
, R.D. Gordon J.
    declined to admit the evidence on that basis, although he did admit portions
    that did not infringe the hearsay rule. Responding to the Crowns statutory
    exception argument, he said
, at para. 15
:

I do not necessarily agree. As
    stated in
R. v. W.B.C.
[2000] O.J. No. 397, the admissibility of a
    transcript of a judicial proceeding is limited to the precise scope of the
    recorders duty. In a case such as the one before me, the court reporters duty
    was to transcribe what was said and nothing more. Accordingly, the transcript
    can be tendered under the Canada Evidence Act as evidence of what was said at
    the hearing, but not for the purpose of establishing the truth of what was
    said.  Admissibility of the transcript will therefore require a consideration
    of whether it is relevant,
and whether it contains evidence that might
    otherwise be inadmissible as hearsay
.
[Emphasis added.]

[46]

Gordon J. went on to analyse the purposes for which the statements
    contained in the transcript were being entered: if not for the truth of their
    contents, they were admissible (no hearsay issue); if as his own admission,
    they were admissible against the accused (as was the case in
C. (W.B.))
;
    but if for the truth of their contents or for reasons that were otherwise
    inadmissible, they were not admitted. See also
R. v. McDonald
, 2013
    BCSC 1977, at paras. 66-67.

[47]

As the tenor of these decisions indicates, the transcripts of a court
    proceeding  including the transcript of a guilty plea  may be admissible to
    prove what was actually said or what actually happened at an earlier
    proceeding, but they are not rendered admissible for the truth of their
    contents simply because they are a judicial record or are tendered under s. 23
    of the
Canada Evidence Act
or under the common law doctrine of
    exemplification. There may be circumstances where they are admissible for the
    truth of their contents, but they will not be admissible for that purpose
    unless it was the recorders duty to validate the truth of their contents or
    unless they are otherwise admissible under the principled exception to the
    hearsay rule and the prejudice of their admission does not outweigh their
    probative value.

[48]

The underlying basis upon which the records in question in the
    authorities relied on by the appellant, and other authorities, were admitted
    confirms this view. In
C. (W.B.)
, the accuseds guilty plea as
    reflected in the transcript of an earlier sexual assault matter was admitted
    into evidence against him in a subsequent sexual assault trial as an admission
    against interest and as similar fact evidence, but the transcript would not
    otherwise have been admissible for the truth of its contents. In
Tatomir
,
    the record was a prior driving prohibition order in subsequent proceedings
    involving a charge of driving while prohibited. It was the duty of the maker of
    the order to ensure the validity of the prohibition order and its terms. In
Bailey
and
John
, the accused faced charges of failing to comply (breach of
    recognizance and breach of probation, respectively), and what the Crown sought
    to introduce were certified copies of the relevant informations, indictments,
    bail orders and probation orders. Again, it was the duty of the maker of the
    court records to ensure the validity of their contents.

[49]

There was no issue in any of these cases about whether the evidence contained
    in the records was substantively admissible. It was. The issue was whether it
    could be
proved
on one of the foregoing bases.

[50]

In short, where records of judicial proceedings are sought to be
    admitted into evidence to prove the truth of their contents, two questions must
    be addressed: (i) do the records meet the criteria for admission without
    further proof of authenticity through one of the avenues advanced by the
    appellant; and (ii) if so, are their contents substantively admissible either
    because it was the recorders duty to verify their validity or because they are
    otherwise admissible through the principled exception, or some other exception,
    to the hearsay rule?

[51]

Here, there is little dispute that the original indictment and the
    transcript of the guilty plea proceedings could themselves be proved either
    through the principles relating to the admissibility of public
    documents/judicial proceedings or through the common law mechanism of
    exemplification (proof through s. 23 of the
Canada Evidence Act
is
    problematic because of the absence of notice).  However, as the foregoing
    review demonstrates, the substantive admissibility of their contents is another
    matter.

The
    Principles Applied


[52]

Why, then, do I conclude that the evidence of Mr. Andersons guilty plea
    alone, as recorded on the back of the original indictment is admissible to
    prove the plea and conviction, but the evidence that the plea was based on his
    having arrived in Canada carrying his own bag with two kilograms of cocaine in
    it, as recorded in the transcript of the plea, is not admissible to prove that
    fact? The answer lies in the public documents/judicial records analysis and in considerations
    of necessity, reliability, trial fairness, and prejudice.

The
    Guilty Plea Alone

[53]

The fact that Mr. Anderson pled guilty is recorded on the back of the
    original indictment. In terms of the public documents/judicial records
    analysis, the indictment itself is admissible as a reliable document meeting
    the test of necessity without further proof of authenticity. It is also
    admissible for proof of the truth of its contents because it is the duty of the
    recorder (the judge) to assure the validity of the finding of guilt. As Doherty
    J.A. observed in
Duong
, para. 42:

A previous judicial determination of guilt beyond a reasonable
    doubt, whether based on a plea, or following a full trial is, in my view,
    sufficiently reliable to warrant its admissibility in a subsequent proceeding as
    some evidence of the facts essential to the finding of guilt.

[54]

The Crown argues that proof of the guilty plea is simply inadmissible,
    relying for that proposition on such authorities as:
R. v. Berry
(1957)
, 118 C.C.C. 55 (Ont. C.A.), at p.
    60;
R. v. P.C.
, 2015 ONCA 30, 321 C.C.C. (3d) 49, at paras. 44-46;
R.
    v. Simpson
,

[1988] 1 S.C.R. 3, at pp. 18-19; and
R. v.
    MacGregor
(1981), 64 C.C.C. (2d) 353 (Ont. C.A.), affd [1982] S.C.C.A.
    No. 246. I agree that these authorities stand for the proposition that
the
    Crown
is generally not entitled to lead such evidence. It does not follow
    that
the defence
(or even the Crown) may never be entitled to do so,
    however.

[55]

The reason for the general proscription against the Crown tendering such
    evidence is that the guilty plea of the first co-accused  an admission against
    his or her own interest only  is just an admission of guilt to the offence
    charged and that there is some evidence to support the finding, but it is not
    an admission of the truth of the contents stated in the facts underlying the
    plea. The first guilty plea is therefore generally irrelevant to the guilt of
    the second co-accused from that point of view and may be severely prejudicial
    to that co-accused:
Berry
, at p. 60;
R. v. Vinette
, [1975] 2
    S.C.R. 222.

[56]

Cases such as
Duong
demonstrate, however, that such a plea is
    not always irrelevant,
[1]
and an accused is entitled to wide latitude in crafting his or her defence.
    Different considerations are in play when it is the second co-accused accused
    (the appellant here) who seeks to enter the guilty plea of the first co-accused
     most notably the presumption of innocence and the right to make full answer
    and defence. The concerns about unfairly trammeling the accuseds fair trial rights
    that arise when it is the Crown seeking to admit the evidence do not necessarily
    arise where it is the accused seeking to do so.

[57]

For these reasons, I do not accept that the authorities relied upon by
    the Crown preclude the admission of the guilty plea into evidence on the basis
    of the public documents/judicial records analysis.

[58]

The authorities recognize  as did the trial judge  that the court
    always retains a discretion to exclude even admissible evidence where its
    admission would render the trial unfair: see
C. (W.B.)
, at para. 45. However,
    no considerations of trial fairness or prejudice to the appellant weigh against
    the admission of the indictment recording the guilty plea here.

[59]

The existence of the guilty plea is not contentious nor is it open to
    competing inferences as to its meaning. Mr. Anderson was arraigned. He pled
    guilty. This means there is some evidence to support his conviction. That is
    all.

[60]

Even though the plea does not constitute an admission of guilt to the
    offence charged on which the appellant can rely  it is an admission of guilt
    against Mr. Andersons interest only  and even though the plea does not in law
    constitute an admission of the truth of the facts underlying the plea for any
    other purpose (see
Berry
, at p. 60), the appellant argues that proof
    of the fact that Mr. Anderson pled guilty and that there is some evidence to
    support the plea is relevant and important to her case, as outlined above. She
    submits this evidence supports one of the intermediate inferences necessary to
    establish that Mr. Anderson used her as a blind courier, namely that he was
    actually involved in the drug smuggling. In the absence of any explanation as
    to what happened to Mr. Anderson, she submits, the jury may have been led to
    exactly the contrary conclusion, namely that
she
was the perpetrator
    and
he
the blind courier.

[61]

The relevance of the guilty plea, on the defence theory, is not
    seriously contested at this stage, and the trial judge accepted it was relevant.
    Admission of the evidence of the guilty plea is not prejudicial to the Crown or
    to the defence, a consideration accepted by all concerned. Indeed, on the
    defence theory, the failure to admit the evidence of the guilty plea would be
    prejudicial to the defence.

[62]

Proof of this by way of the indictment is reliable and trustworthy and,
    in fact, is probably the best evidence available to establish the guilty plea. It
    was the duty of the judge to assure the validity of the plea and that there was
    some evidence to support it. I am satisfied that it was open to the appellant
    to prove Mr. Andersons guilty plea alone as recorded on the back of the
    original indictment and that she should have been permitted to do so.

[63]

The evidence of the guilty plea was admissible on the public
    documents/judicial records analysis and trial fairness considerations on the
    part of the appellant favour its admissibility as well.

Proof
    of the Facts Underlying the Guilty Plea: The Transcript

[64]

But the same analysis does not flow in respect of the facts underlying
    the guilty plea as recorded in the transcript of the plea proceedings. Similar
    to the indictment, the transcript itself could be proved, for purposes of
    authenticity, either as a public document or record of judicial proceedings or
    through the common law mechanism of exemplification. However, the transcript is
    only admissible to prove what was said, because that is what it was the court
    reporters duty to record; it is not admissible to prove the truth of what was
    said, because the scope of the duty did not extend to validating the truth of
    what was said in the circumstances:
C. (W.B.)
, at para. 34;
Byrnes
,
    at para. 15
.

[65]

For this reason, the truth of the facts underlying the guilty plea, as
    recorded in the transcript, may not be proved under the public documents/judicial
    records analysis. It follows that, if the underlying facts are to be admitted
    for that purpose, another avenue of proof must be found.

[66]

As I have already explained, neither s. 23 of the
Evidence Act
nor the common law doctrine of exemplification automatically renders the
    contents of the tendered documents admissible for substantive purposes when
    they are not otherwise admissible for those purposes. This inevitably leads us
    back, then, to the principled exception to the hearsay rule and to considerations
    of necessity, reliability and trial fairness  an analysis conducted by the
    trial judge.

[67]

In this regard, it is important to keep in mind  as previously noted 
    that an accused is permitted a wider latitude in introducing evidence than is
    the Crown. The Supreme Court of Canada recently canvassed the principles relating
    to the admission of defence evidence in
R. v. Grant
, 2015 SCC 9,
    [2015] 1 S.C.R. 475, at paras. 18-46. Underlining the distinction between
    evidence led by the Crown and evidence led by the accused, the Court said, at
    para. 19:

Evidence led by the Crown will be excluded where its
    prejudicial effects outweigh its probative value.
The presumption of the accuseds
    innocence leads us to strike a different balance where defence-led evidence is
    concerned
. As this Court explained in
Seaboyer
,
[2]
the prejudice must substantially outweigh the value of the evidence before a
    judge can exclude evidence relevant to a defence allowed by law  [Citations
    omitted. Emphasis added.]

[68]

The authorities also recognize that courts may take a somewhat more
    relaxed approach to the necessity/reliability analysis where it is the defence
    seeking to put forward hearsay evidence and the defence will be prejudiced if
    the evidence is not admitted. In
R. v. Williams
(1985), 50 O.R. (2d)
    321 (C.A.) Martin J.A. commented:

It seems to me that a court has a residual discretion to relax
    in favour of the accused a strict rule of evidence where it is necessary to
    prevent a miscarriage of justice and where the danger against which an
    exclusionary rule aims to safeguard does not exist.

[69]

This passage was approved by Cory J. in
R. v. Finta
, [1994] 1
    S.C.R. 701, at p. 854 and by Rosenberg J.A. in
R. v. Folland
(1999), 132
    C.C.C. (3d) 14 (Ont. C.A.), at para. 48.

[70]

What I draw from these authorities is that if the defence can point to
    evidence  even hearsay evidence  that is logically relevant to an allowable
    defence, and a case can be made for adopting the
Williams
approach,
    the defence will be entitled to lead that evidence unless the prejudicial
    effect of the evidence substantially outweighs its probative value.

[71]

Not all relevant evidence is admissible, however, and hearsay evidence
    is presumptively inadmissible. Inadmissible hearsay does not become admissible
    hearsay simply because it is proffered by the defence in support of its right
    to make full answer and defence and because an accused is entitled to the
    presumption of innocence, in my opinion. The evidence must either fall within
    one of the recognized exceptions to the hearsay rule or pass the test of the
    necessity/reliability analysis under the principled exception, taking into
    account the foregoing reservation regarding the exceptional circumstance where
    there is some evidence of reliability, in particular, and where rigid adherence
    to the strict rules of evidence would hinder a fair trial or lead to a
    miscarriage of justice. If the evidence meets one of these tests, and it is
    logically relevant to a tenable defence, and its prejudicial effect does not
    substantially outweigh its probative value, it is admissible.

[72]

With these considerations in mind, and returning to the facts underlying
    Mr. Andersons guilty plea, what was said in the transcript regarding the
    cocaine is this:

Mr. Anderson was arrested for smuggling under the
Customs
    Act
and the duffle bag was ultimately found to contain 2.02 kilograms of
    cocaine.

[73]

That is all. However, the appellant seeks to draw from the combination
    of the guilty plea and the fact on which the plea was based (i.e., that the
    duffle bag was ultimately found to contain 2.02 kilograms of cocaine), an
    inference enabling her to persuade the jury on this basis that Mr. Anderson
    accepted responsibility for his bag. This is where the admissibility
    considerations between the facts underlying the plea and the mere fact of the
    plea disengage.

[74]

The fact of the plea is not contentious. However, accepted
    responsibility for his bag is a loaded expression and is far from
    uncontentious. Does it mean that Mr. Anderson accepted sole responsibility for
    the two kilograms of cocaine in his bag (a fact that might enhance the
    appellants blind courier/set up defence) or simply that he accepted
    responsibility for his role in bringing in the cocaine in his bag as part of a
    joint enterprise (a fact that might enhance the Crowns case)? These competing
    inferences cannot properly be resolved by reading the text of the transcript. The
    best evidence is that of Mr. Anderson himself; the best way to clarify any
    conflict is through cross-examination on that evidence  a tool taken away from
    the Crown when the transcript alone is put into evidence.

[75]

Fairness considerations on the part of the Crown favour the exclusion of
    this evidence.

[76]

This is precisely the conclusion arrived at by the trial judge in
    considering the case as put to him, namely on the double-barrelled approach
    that evidence of the guilty plea plus evidence of the facts underlying it
    should be admitted. He found on ample evidence that the necessity and
    reliability requirements had not been met and in this regard found that the
    lack of the opportunity for the Crown to cross-examine was an important
    consideration, particularly when its clear that [the] witness is still
    available. This was an important trial fairness issue, attracting as it did
    considerations of both necessity (not met because Mr. Anderson was available to
    testify) and reliability (Mr. Andersons evidence was the best evidence
    available, compared to the evidence of the guilty plea and underlying facts
    which were, at the very least, potentially tainted by the motivation of
    self-interest on Mr. Andersons part).

[77]

The latter point is far from trivial. While the transcript of the guilty
    plea is reliable for purposes of establishing what was said at the guilty plea
    proceedings, the reliability of what was said is a different matter. Courts
    have warned against the dangers of relying on such evidence when it is to be
    used against a co-accused because of the self-interest of the person making the
    plea in accepting as substantially correct a version of the facts most
    favourable to his or her plea bargain: see
R. v. Tran
, 2010 ONCA 471,
    103 O.R. (3d) 131, at para. 43;
R. v. Youvarajah
, 2013 SCC 41, [2013]
    2 S.C.R. 720, at para. 62. The same unreliability concerns exist where evidence
    of this nature is sought to be tendered by the second co-accused in support of
    his or her defence at trial, in my view.

[78]

Hence the importance of cross-examination on the issue of the facts
    underlying the guilty plea. There was no risk of a miscarriage of justice or
    trial unfairness to the appellant in this respect. Mr. Anderson was available
    to testify.  The fact that it may have been risky for the appellant to call him
    as a witness does not constitute prejudice or unfairness to the appellant in
    this context. An accused person is not guaranteed that a witness who is called
    to give evidence on one particular point helpful to the defence may not give
    harmful evidence on a different, but relevant point.

[79]

On the other hand, trial fairness considerations flowing from the
    Crowns inability to cross-examine on the evidence in the absence of Mr.
    Anderson testifying militates in favour of excluding the evidence of the
    factual circumstances underlying guilty plea.

Conclusions

[80]

On the foregoing analysis, neither the evidence of Mr. Andersons guilty
    plea alone nor the evidence of his plea together with the underlying facts on
    which it was based become admissible automatically pursuant to one or more of
    the three purported exceptions to the hearsay rule advanced by the
    appellant.  Court documents or records of proceedings are themselves admissible
    without further proof of authenticity pursuant the public documents/judicial
    records exception to the hearsay rule, or pursuant to s. 23 of the
Canada
    Evidence Act
or the common law doctrine of exemplification. However, their
    contents are not necessarily admissible for their truth and reliability simply
    because the documents or records may be proved in that fashion. The scope of
    the recorders duty defines the purposes for which the contents may be
    admissible.

[81]

Absent substantive admissibility through the public documents/judicial
    records analysis, and absent the application of some other exception to the
    hearsay rule (an admission against interest, for example), all roads therefore
    lead back to whether the evidence becomes substantively admissible pursuant to
    a necessity/reliability analysis conducted under the principled exception to
    the hearsay rule tempered to the extent it may be by trial fairness
    considerations, particularly in relation to the defence but also in relation to
    the Crown and to the integrity of the administration of justice.

[82]

Here, the substantive admissibility of Mr. Andersons guilty plea alone,
    as recorded on the back of the original indictment, is justified under the
    public documents/judicial records analysis. The information is reliable. The broader
    necessity requirement is satisfied because the indictment provides the best evidence
    of the fact of the plea. And trial fairness to the appellant weighs in favour
    of not leaving her with a vacuum as to any information about what happened to
    her former co-accused.

[83]

As I have explained, however, the same considerations point in the
    opposite direction with respect to the substantive admissibility of the facts
    underlying the guilty plea. In my view, the trial judge did not err by refusing
    to admit that evidence other than through the testimony of Mr. Anderson, who
    was available for that purpose.

THE SENTENCE APPEAL

[84]

Given the foregoing, it is unnecessary to determine the sentence appeal.

DISPOSITION

[85]

For the reasons outlined above, I would allow the appeal and direct a
    new trial on the basis that the evidence of Mr. Andersons guilty plea alone,
    as recorded on the back of the original indictment (with the necessary redactions)
    is admissible. Proof of the facts underlying the guilty plea is not admissible
    save through the testimony of Mr. Anderson or on any other basis that may be
    agreed upon by the Crown and the appellant and approved by the judge at the new
    trial.

[86]

It may be that the court at the new trial should consider whether, in
    fairness to the Crown, the jury should be instructed that even though Mr.
    Anderson has pled guilty it does not necessarily follow that both he and the appellant
    could not be guilty of participating in a joint enterprise. The jury will
    undoubtedly be instructed that the fact of Mr. Andersons guilty plea cannot be
    used by them against the interests of the appellant.

[87]

Finally, I do not view this as a case for the application of the curative
proviso
under s. 686(1)(b)(iii) of the
Criminal Code
.

[88]

In order to dispose of the sentence appeal, I would grant leave to
    appeal but dismiss the appeal.

Released: July 28, 2016

Robert A. Blair
    J.A.

I agree M. Tulloch
    J.A.

I agree G. Pardu
    J.A.





[1]
Recall that
Duong
was a case where the plea of a co-accused was admitted
    at the second accuseds trial for being an accessory-after-the-fact, to prove
    the prior offence.



[2]

R. v. Seaboyer
, [1991] 2 S.C.R. 577.


