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EVIDENCE - Hearsay rule - Exceptions - Co-conspirators or agency

Tuesday, December 17, 2019 @ 6:18 AM  


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Appeal by the accused from convictions for trafficking in cocaine, heroin and methamphetamine. The charges arose out of an undercover investigation in which an undercover officer purchased drugs from two co-accused supplied by a third co-accused. It was the Crown’s theory that the appellant was the mastermind of the conspiracy to traffic in illegal drugs with his co conspirators. The case against the appellant was entirely circumstantial. Police found a large amount of cash in his residence. The trial judge did not accept that the money constituted repayment of a motorcycle loan but found that it was money to pay the co-conspirator. The trial judge found that in certain text-messages the appellant participated in the price being set for drug purchases. While the admissibility of co conspirator hearsay was a significant issue at trial, the judge did not expressly rule on the matter and made no essential findings necessary to admit the statements. The trial judge refused to grant a stay due to delay. After deducting defence delay, the net delay was 50 months. The judge considered delay resulting from two adjournments to be attributable to exceptional circumstances. The first trial adjournment occurred due to the unavailability of counsel for co-accused who was engaged in another trial that was rescheduled to a time conflicting with the date scheduled for voir dire applications in this trail. Another trial adjournment occurred because counsel for the co-accused had to attend to an unexpected urgent family illness. Once the delay caused by these exceptional circumstances was subtracted from the net delay, the remaining delay for purposes of Jordan was 31 months.

HELD: Appeal allowed. New trial ordered. The trial judge misapprehended the evidence of certain text messages. He erred in assuming that certain text messages were from the appellant. The judge also overlooked the fact that the Crown expressly admitted that the conversation in one text did not refer to the five-ounce cocaine transaction involving the undercover agent. The appellant’s alleged active participation in the five-ounce cocaine transaction was one of the pillars of the judge’s reasons for conviction, mentioned twice in his brief discussion leading to conviction. The trial judge erred in failing to rule on the admissibility of co conspirator hearsay. He did not make the essential findings necessary to admit the statements. There was a critical absence of reasons in an important issue that denied the Court the ability to conduct a proper appellate review. In the circumstances of this case, an express ruling was clearly required. The trial judge also erred in placing the burden on the defence to prove alternative inferences, effectively reversing the burden of proof. In specifically dealing with the alternate inference proffered by the appellant for the cash in his residence, the judge appeared to test it based on a balance of probabilities. The judge did not address the question of whether the evidence of a motorcycle loan supported a reasonable inference leading to a conclusion other than guilt. The judge’s treatment of this issue demonstrated reversible error. The trial judge did not err in refusing to grant a stay. The Crown could rely on delay caused by the two trial adjournments. Both were unforeseen. The Crown pushed the case forward and was not complacent about delay. Delay caused by a co accused could be considered an exceptional circumstance. The judge did not err in concluding that the Crown followed a plan to minimize delay. There was no error in the judge’s conclusion that the one month delay beyond the 30 month ceiling under the Jordan framework could be justified as a transitional exceptional circumstance.

R. v. Rai, [2019] B.C.J. No. 2055, British Columbia Court of Appeal, R.J. Bauman C.J.B.C. and M.E. Saunders and S.A. Griffin JJ.A., November 1, 2019. Digest No. TLD-December162019003