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EVIDENCE - Hearsay rule - Foreign evidence assistance agreements and legislation

Thursday, December 05, 2019 @ 8:02 AM  


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Appeal by the accused from convictions arising from a failed conspiracy to import cocaine from Costa Rica to Toronto. The packages were intercepted in Panama where they tested positive for cocaine. The sole evidence that could identify the substance as cocaine 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. The trial judge had no difficultly in giving the Panamanian 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 prosecutor’s office, and reported to a Panamanian court. The appellant argued the trial judge erred in admitting this evidence.

HELD: Appeal dismissed. Section 36(1) of the Mutual Legal Assistance in Criminal Matters Act made relevant tendered evidence admissible without considering either its necessity or threshold reliability. This advanced the purpose of the Act by facilitating the admission of evidence obtained abroad to efficiently and effectively prosecute international and transnational crime. Section 36(1) did not, on this reading, determine the question of ultimate admissibility. The trial judge did not err in not exercising her residual discretion to exclude the evidence on fair trial grounds. The trial judge’s conclusion that the substance was cocaine was supported by the evidence that the substance found in the parcels was a white powder, and that the intercepted communications made it clear that the substance to be imported was something illegal.

R. v. Boyce, [2019] O.J. No. 5314, Ontario Court of Appeal, G.R. Strathy C.J.O., P.S. Rouleau and B. Miller JJ.A., October 21, 2019. Digest No. TLD-December22019011