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Evidence - Hearsay Exclusion - Co-conspirators Exception

Evidence - Relevance - General

Evidence - Post-Offence Conduct

R v Kler (Ont CA, 2017)

In this Court of Appeal case the court comments usefully on the evidentiary issues of the co-conspirator's exception to the hearsay rule, and the concept of 'relevance' both generally and in the context of post-offence conduct (further down):
The Co-conspirators' Exception

[63] The co-conspirators' exception to the hearsay rule permits statements made by a person engaged in an unlawful conspiracy to be received as admissions against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object: Mapara, at para. 8.

[64] From the statement of the rule, we learn several things.

[65] First, not every statement made by a fellow conspirator can be enlisted in proof of another conspirator's membership in the conspiracy: R. v. Yumnu, 2010 ONCA 637 (CanLII), 260 C.C.C. (3d) 421, affirmed, 2012 SCC 73 (CanLII), [2012] 3 S.C.R. 777, at para. 341. The statement must be made by a "person engaged in an unlawful conspiracy". And as we shall see, for these purposes, a person is "engaged in an unlawful conspiracy" if his or her own acts or statements establish his or her probable membership in it.

[66] Second, a matter of timing, or better said "contemporaneity". The statement must be made by the conspirator "while the conspiracy was ongoing": Mapara, at para. 8; Carter, at p. 947. That said, on some occasions, statements made after the offence object of the conspiracy has been committed may be admissible under this exception: Yumnu, at para. 341; R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), leave to appeal refused, [2005] 1 S.C.R. xv, at paras. 115-18.

[67] Third, the statement of the co-conspirator must be made "in furtherance of" the offence object of the conspiracy, that is to say, for the purpose of achieving its goal: R. v. Puddicombe, 2013 ONCA 506 (CanLII), 299 C.C.C. (3d) 503, leave to appeal refused, [2013] S.C.C.A. No. 496, at para. 116. Provided there is evidence capable of sustaining a finding that a statement of a co-conspirator was "in furtherance" of the common offence object, the ultimate decision about whether the statement is "in furtherance" is for the jury: Puddicombe, at para. 116. See also R. v. Mota (1979), 46 C.C.C. (2d) 273 (Ont. C.A.), at pp. 282-83.

[68] A final point concerns the scope of the co-conspirators' exception. Here, we are concerned with a specific statement, but the exception extends beyond statements to acts done by co-conspirators during the currency of the conspiracy in furtherance of its objects: see e.g. R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont. C.A.), at pp. 135-36, reversed on other grounds, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; R. v. Baron (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.), at p. 533.

The Co-conspirators' Exception and the Principled Approach

[69] Despite the ascendency of the principled approach to the admissibility of hearsay, the traditional or category exceptions remain presumptively in place, including the co-conspirators' exception to the hearsay rule: Mapara, at para. 15.

[70] A hearsay exception, such as the co-conspirators' exception, can be challenged to determine whether it is supported by the indicia of necessity and reliability, required by the principled approach. If necessary, the traditional exception may be modified to bring it in line with the principled approach: Mapara, at para. 15.

[71] In Mapara, the co-conspirators' exception to the hearsay rule was challenged as failing to accord with the fundamental criteria that underlie the exceptions to the hearsay rule and are the twin requirements of the principled approach – necessity and reliability. The Court concluded that the co-conspirators' exception met the necessity and reliability requirements of the principled approach. The continued vitality of the co-conspirators' exception was affirmed: Mapara, at para. 31.

[72] The Mapara court found the indicium of necessity established because of the combined effect of:
i. the non-compellability of a co-accused declarant, Wasfi, who's case was severed from that of Mapara at the end of the case for the Crown;

ii. the undesirability of separate trials for alleged co-conspirators; and

iii. the evidentiary value of contemporaneous declarations made in furtherance of an alleged conspiracy.
See Mapara, at para. 18; R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 105.

[73] The Court in Mapara found the reliability requirement met because the conditions imposed by Carter on the use of evidence admitted under the co-conspirators' exception provided sufficient circumstantial guarantees of trustworthiness necessary to permit the evidence to be received:
i. proof of the conspiracy alleged beyond a reasonable doubt;

ii. probable participation in the conspiracy by the accused based on his or her own words and conduct; and

iii. the requirement that the acts and declarations of other likely conspirators be in furtherance of the conspiracy to be available in proof of an individual member's guilt.
See Mapara, at paras. 22-26.

[74] It does not always follow, however, that evidence that falls within the co-conspirators' exception (which we have seen meets the requirements of the principled approach) will be received at trial. The indicia of necessity and reliability, while generally satisfied under the exception and the regime in Carter, may be lacking in the particular circumstances of the case: Mapara, at para. 15.

[75] Two brief points should be made about the specific challenge just mentioned. First, the Mapara court characterized the exception as available in "rare cases". And second, the onus falls upon the party seeking exclusion to establish that the evidence, admissible under the co-conspirators' exception, does not meet the requirements of necessity and reliability and, thus, should be excluded: Mapara, at paras. 15, 37; R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144, at para. 214.

[76] Something should also be said about the requirements of necessity and reliability.

[77] First, necessity. This indicium refers to the availability of the evidence, not the availability of the hearsay declarant as a witness: R. v. N.Y., 2012 ONCA 745 (CanLII), 294 C.C.C. (3d) 313, at para. 78. The factors mentioned in Mapara, adopting paragraph 105 of this court's decision in Chang, do not foreclose other means of establishing necessity: N.Y., at para. 78. This court has declined to adopt a bright line rule that the physical availability of the declarant puts paid to any claim of necessity: N.Y., at paras. 75-76.

[78] Second, reliability refers to threshold reliability, not ultimate reliability, which is a determination to be made by the jury. Indicia of reliability are found in the Carter rule for a conspiracy proved beyond a reasonable doubt, membership of the accused in it on a balance of probabilities and the rule that any statements made in furtherance of the conspiracy are admitted to complete the proof against an individual accused.

[79] A final point. It is difficult to conclude that evidence falling under the Carter rule would lack the indicia of necessity and reliability required for the admission of hearsay under the principled approach. Apart from the most exceptional cases, the argument is exhausted where the traditional exception is found to be compliant with the principled approach: Mapara, at para. 34.

And on the issues of relevance and post-offence conduct the court continued:
[122] The principles that control the decision on this ground of appeal are familiar and not in need of repetition. A few brief points about relevance and evidence of post-offence conduct will suffice.

[123] Relevance is not an inherent characteristic of any item of evidence. It exists as a relation between an item of evidence and a proposition of fact that the party introducing the evidence proposes to establish by its introduction. Relevance is relative and contextual. It is a matter of everyday experience and common sense and is assessed in the context of the entire case and the positions of counsel: R. v. Luciano, 2011 ONCA 89 (CanLII), 267 C.C.C. (3d) 16, at paras. 204-6.

[124] An individual item of evidence may give rise to more than one inference. That it does so does not render it irrelevant, or call for its exclusion on the basis of some rule of admissibility. Individual items of evidence are not to be subjected to piecemeal evaluation, or rejected as irrelevant or inadmissible because they fail to satisfy the criminal standard of proof. It is the whole of the evidence, often greater than the sum of its individual parts, that is subjected to the criminal standard of proof.

[125] Whether the descriptive used is post-offence conduct or after-the-fact conduct, the designation tells us that what is involved is evidence of things done or said after an offence has been committed: not before and not at the same time, but after. This is circumstantial evidence to which no special rule attaches: R. v. White, 2011 SCC 13 (CanLII), [2011] 1 S.C.R. 433, at paras. 31, 105, 185.

[126] As with circumstantial evidence generally, jury instructions about the use of evidence of post-offence conduct must not invite the jury to apply the criminal standard of proof to the individual items of evidence: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 42-49.

[127] The courts eschew a list or category approach to determine whether things done or said after an offence has been committed may be relied upon as evidence of post-offence conduct. It all comes down to relevance. Examples of relevant evidence abound, among them, evidence than an accused destroyed or attempted to destroy objects that tended to link him or her to the commission of the offence charged. See e.g. R. v. Vant, 2015 ONCA 481 (CanLII), 324 C.C.C. (3d) 109, at para. 129.

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