R. v. Burgess, 2022 ONCA 577

What you need to know

- ONCA allows conviction appeal. Despite finding that co-conspirator exception to hearsay was inapplicable, trial judge appeared to rely on the hearsay evidence in making credibility findings against the accused.

- Where co-conspirator exception to hearsay clearly at issue, trial judges should self-instruct and explain in their reasons how they used or decline to use the co-conspirators exception to hearsay.

- Correct application of the exception cannot be presumed in the absence of self-instruction.

Background

 The appellant was arrested and charged with several drug trafficking and related drug offences following a police investigation into cocaine trafficking. The investigation was largely driven by information from confidential sources and physical surveillance. In January 2014, a wiretap authorization was granted. Police began intercepting communications of the main targets, including the appellant.

 At trial, the appellant admitted that he trafficked significant quantities of marijuana and conceded he should be found guilty of that. The appellant denied, however, being involved in any trafficking or possession of cocaine or MDMA.

 The appellant was found not guilty of count 1: conspiracy to traffic cocaine; but guilty on several other counts including trafficking and possession for the purpose in relating to cocaine and MDMA.

 The appellant appeals from his convictions and seeks leave to appeal his sentence.

Issues on Appeal

 The appellant raises several grounds of appeal. The court’s judgment, and this summary, however, will focus on the main issue on appeal:

1.    Did the trial judge err in resorting to inadmissible hearsay to convict on all counts?

Disposition – Conviction appeal allowed. Leave for sentence granted, sentence appeal allowed.

Analysis

As noted above, the appellant was found not guilty of conspiracy to traffic cocaine. At trial, the Crown argued that the conspiracy involved the appellant and a number of other individuals (the “co-conspirators”). Defence counsel conceded that there was ample evidence that the others were trafficking cocaine together either as a conspiracy or a joint venture. The issue to be decided was whether the appellant conspired with any or all of them to traffic in cocaine.

In support of their theory, the Crown tendered several wire interceptions and text messages that did not include the appellant as a participant. The Crown submitted that the acts and declarations of the co-conspirators were admissible against the appellant as an exception to the rule against hearsay, under the co-conspirators’ exception to hearsay.

Co-Conspirators’ Exception to the Hearsay Rule

Hearsay refers to out-of-court statements tendered for the truth of their contents. Hearsay evidence is presumptively inadmissible. This is largely due to the inability to test the reliability of the evidence (i.e. through cross-examination).

As with many rules of evidence, however, there are a number of exceptions where hearsay evidence becomes admissible. One of these exceptions is the “co-conspirators’ exception” as outlined by the Supreme Court of Canada in R. v. Carter, [1982] 1 S.C.R. 938. For evidence to qualify for this exception:

1.    The trier of fact must find beyond a reasonable doubt on all the evidence that the conspiracy exists.

2.    The trier of fact must find that the evidence that is directly admissible against the accused, which excludes any hearsay statements by co-conspirators, proves, on a balance of probabilities, that the accused was a member of that conspiracy; and

3.    If these two stages are met, the trier of fact can consider the acts and declarations of a co-conspirator in furtherance of the conspiracy as evidence against the accused on the issue of the accused’s guilt.

See R. v. McGean, 2019 ONCA 604 at para. 6 and R. v. Dawkins, 2021 ONCA 113 at paras. 39-42.

The converse, however, is also true, the trier of fact must keep in mind that where, at the end of the trial, the evidence directly admissible against the accused was insufficient to establish his membership in the conspiracy, the acts and declarations of co-conspirators could not be considered as evidence against the accused.

Application

The trial judge found that the appellant did not share a mutual criminal objective with the other alleged co-conspirators. His sole criminal objective was to be paid for the drugs he provided them; he did not care whether they sold or simply consumed the drugs. As there was no common unlawful goal, the appellant was acquitted on the conspiracy charge.

Given this conclusion, the trial judge was precluded from relying on the alleged co-conspirators’ hearsay evidence (i.e. the wiretap evidence) to convict the appellant on the other counts.

The court reminds trial judges that even in non-jury trials, it is good practice to self-instruct on difficult issues where the risk of error is real (i.e. with complex legal issues such as the admissibility of evidence of co-conspirators).

The trial judge in this case did not expressly self-instruct himself on the co-conspirator exception or its converse. In the absence of self-instruction, appellate courts are left to consider the text of the reasons to discern whether the evidence was misused or not. Correct application of the exception cannot be presumed.

In convicting the appellant on the other counts, the trial judge referred to a number of the hearsay communications. The trial judge’s reasons leave the reader with the impression that the trial judge relied on the inadmissible hearsay evidence to find the appellant guilty. The trial judge also appears to have relied on the inadmissible hearsay evidence in making credibility findings against the appellant. These concerns are heightened by the fact that the trial judge repeatedly noted they were “considering all of the evidence” without any effort to qualify these absolute statements (i.e. that the trial judge was not considering the hearsay communications). As a result, it is difficult to conclude that the trial judge was alive to the hearsay issue, rendering the verdicts unsafe. A new trial is required.

Read the full decision here.

For more information about the co-conspirators’ exception to the hearsay rule and other issues of proof in conspiracy cases, check out Emond’s “Prosecuting and Defending Drug Cases: A Practitioner’s Handbook” – Volume 11 of the Criminal Law Series.