In R. v. Young, 2021 ONCA 535, July 26, 2021, the accused was charged with importing a controlled substance.  At her trial, she sought to introduce a statement her late father made to her half-sister concerning the drugs that were found in the accused’s luggage.

The Ontario Court of Appeal indicated that “[t]heir father was a cocaine addict and convicted drug dealer and trafficker with a long criminal record. He allegedly confessed to the appellant’s half-sister that he had arranged for the drugs to be given to the appellant and had used her to bring them back to Canada. He said he owed a lot of money to his drug dealer and had been forced to provide them services. He begged his daughter not to tell the appellant ‘yet’ about what he had done and promised to come to court to confess. He also said he was concerned for his own safety. Because the appellant’s half-sister was concerned that telling the appellant might endanger their father or the appellant, she complied. Less than four months later, their father died from a cocaine and fentanyl overdose” (at paragraph 3).

The application judge refused to admit the statement.  The accused was then tried and she was convicted.  She appealed from conviction.

The appeal was allowed and a new trial ordered. The Ontario Court of Appeal concluded that “[t]he application judge misapprehended the evidence in applying the declaration against penal interest exception to the hearsay rule. On the totality of the evidence, the hearsay statement was admissible under that exception. Because this evidence was critical to the appellant’s defence, its exclusion led to a miscarriage of justice” (at paragraph 6).

Declarations Against Penal Interest:

 The Court of Appeal noted that the “criteria for the declaration against penal interest exception to the hearsay rule were distilled by Watt J.A. in R. v. Tash, 2013 ONCA (at paragraph 24):

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.

This Case:

In ruling that the statement should have been admitted, the Court of Appeal concluded as follows (at paragraphs 31 to 35):

Here, I conclude that the application judge materially misapprehended evidence that was crucial to deciding whether to admit the hearsay as a declaration against penal interest. He concluded that Mr. Young should not have apprehended a vulnerability to penal consequences because he “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 [the appellant] about what he had said to her” (emphasis added). But this finding ignores a critical sentence in Ms. Winchester’s affidavit, in which she stated that her father “specifically begged me not to tell [the appellant] yet and promised he would attend Court for her and let the Court know what he had done” (emphasis added). Thus, Mr. Young did not ask his daughter not to tell the appellant what he had done; he asked her not to tell her yet. It was a request to delay telling, not a request to never tell. More importantly, the delay was to allow Mr. Young to confess his crime in court.

This crucial part of Mr. Young’s statement — which the application judge did not address in his reasons — materially changed the nature of the statement from one in which the declarant had an expectation it would be kept confidential, and thus would not have exposed him to penal consequences, to one in which the declarant only asked the recipient to delay telling the appellant and promised to publicly confess his crime in court. Had Mr. Young reneged on his promise, the obvious inference is that he understood that Ms. Winchester would come forward, which indeed she did when he died. Thus, when Mr. Young’s complete statement is considered, Mr. Young certainly should have apprehended a vulnerability to penal consequences by making his statement to Ms. Winchester.

Nor was Mr. Young’s vulnerability to penal consequences remote. Mr. Young promised to come to court to confess his crime. This was not a vague promise to say something at some indeterminate time. The appellant had been arrested and charged. The legal process had begun. His time to confess would come soon.

Finally, that Mr. Young’s statement was allegedly made to his adult daughter, albeit one with whom he had a difficult relationship, does not detract from these conclusions. Even though Mr. Young’s statement was to his daughter, his qualification as to timing combined with his promise to confess in court showed that he appreciated his vulnerability to penal consequences was real and not remote.

I conclude that the application judge materially misapprehended the evidence relevant to criteria (i) and (ii) of Tash and erred in excluding the hearsay statement.