COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Young, 2021 ONCA 535

DATE: 20210726

DOCKET: C66183

Juriansz, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shauvonne Latoya Young

Appellant

Breana Vandebeek, for the appellant

Xenia Proestos, for the respondent

Heard: December 7, 2020 by video conference

On appeal from the conviction entered on
    October 16, 2018 by Justice Jennifer Woollcombe of the Superior Court of
    Justice, sitting with a jury.

Jamal J.A.:

A.

Introduction

[1]

On April 5, 2017, the appellant, Ms. Shauvonne
    Young, was arrested at Toronto Pearson International Airport on her return from
    Jamaica and charged with importing 1.9 kilograms of cocaine. Canadian Border
    Services Agency (CBSA) officers found the cocaine inside four containers of
    Metamucil, a fibre supplement, as soon as they opened her suitcase.

[2]

At trial, the
only issue was knowledge  whether the appellant knew that she was
    importing cocaine. She testified that a family friend had given her the containers
    as a gift for her grandmother. She believed they contained Metamucil blended
    with roots and seeds to form a Jamaican herbal remedy.

[3]

The appellant applied before trial to introduce
    a hearsay statement that her late father allegedly made to her half-sister. Their
    father was a cocaine addict and convicted drug dealer and trafficker with a
    long criminal record. He allegedly confessed to the appellants 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 appellants 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.

[4]

The application judge, Andr
é
J. (application judge), refused to admit
    the statement under the declaration against penal interest exception to the hearsay
    rule or under the principled approach to hearsay:
R. v. Young
, 2018
    ONSC 5480. The appellant was then tried by judge and jury and convicted of importing
    cocaine.

[5]

The appellant raises two grounds of appeal from
    her conviction. First, she says the application judge erred by refusing to
    admit the hearsay statement under either the penal interest exception to the
    hearsay rule or the principled approach to hearsay and that he should have applied
    a relaxed standard for the admissibility of defence evidence to avoid a miscarriage
    of justice. Second, she says the trial judge, Woollcombe J. (trial judge), erred
    by instructing the jury on wilful blindness as a pathway to a guilty verdict without
    any air of reality to the claim that she
was
    suspicious of
what was inside the Metamucil containers and deliberately
    failed to inquire further.

[6]

For the reasons that
follow, I would allow the appeal and order a new trial. The 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 appellants defence, its exclusion led to a miscarriage of
    justice. It is unnecessary to address the appellants other arguments.

B.

background

(a)

The hearsay evidence

[7]

The appellants pretrial application to admit the
    hearsay statement of her late father, Mr. Orville Young, was supported by the
    affidavit of her half-sister, Ms. Toni Winchester. Ms. Winchester had no
    criminal record and was not cross-examined on her affidavit. She made these key
    points in her affidavit:

·

The appellant travelled to Jamaica to attend her
    uncles memorial service and returned to Canada on April 5, 2017. On April 5, Ms.
    Winchester received calls from her father, who wanted to know if she had heard
    from the appellant. He was unusually persistent. Because this worried Ms. Winchester,
    she called the appellant but could not reach her.

·

Ms. Winchester and the appellant had a difficult
    relationship with their father. He was in and out of jail and used crack
    cocaine. He lived with Ms. Winchester briefly in 2015, but they had a falling
    out because of his drug use. In April 2017 she did not even know where he lived.

·

Several days after the appellant returned from
    Jamaica, Ms. Winchester learned that the appellant had been arrested for
    importing drugs. Ms. Winchester was surprised because she and the
    appellant strongly disapproved of their fathers drug use.

·

Ms. Winchester confronted her father and asked
    him to tell [her] the real deal about why he kept asking about the appellant
    when she was delayed at the airport. She explained her fathers response as
    follows:

He
began crying and
    telling
me
that
he put her in a bad
    position. He told me
that
he owed a lot of
    money to his drug dealer. They had given him a large quantity of drugs, and
    without money to pay them back, he was forced to provide them services. He told
    me
that
he had agreed to have someone hide
    drugs in a package in Jamaica while [the appellant] was there, and to use her
    to bring it back to Canada. He told me that his drug dealer had promised him
    that no one would ever
find out
, and that this
    wasnt the first time he had done something like this. He expressed
to me
that he was afraid for his own safety now.

He 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. He told me
that
he was
    concerned for his own safety. I did not tell [the appellant] anything about
    this
conversation at the time
. I was afraid
    that
if I were to tell
her, it might cause
    danger to my dad, or [the appellant]. As much as my father and I had not seen
    eye to eye, I believe that if circumstances were different he would do the
    right thing, come to Court, and tell the truth about what had happened.

My father was born on July 25
th
,
    1964. On July [27
th
], 2017, he passed away from an overdose. It was [two]
    days after his 53
rd
birthday. At his funeral in August of 2017, I
    told [the appellant] for the first time what he had told me. I wish I had said
    something sooner, but I never imagined that we would lose our father so soon.

[8]

The application to admit the hearsay statement
    included as exhibits Mr. Youngs lengthy criminal record from 1981 to 2017,
    which included at least nine convictions for drug possession and trafficking,
    and a coroners report confirming that he died of a cocaine and fentanyl overdose.

(b)

The application judge refuses to admit the
    hearsay statement

[9]

The application judge refused to allow the hearsay
    statement to be admitted
at trial
. He found:

·

The statement was not admissible as a declaration
    against penal interest because Mr. Young did not
make
    the statement to
a person and in such circumstances
that
he apprehended a vulnerability to penal
    consequences and that any such vulnerability was remote.

·

The statement did not meet the criteria for
    admission under the principled approach to hearsay. Although the necessity
    requirement was met because Mr. Young was dead, nothing about the circumstances
    in which the statement was made attested to its reliability. The truth and
    accuracy of the statement could not be sufficiently tested given the
    circumstances in which it was made, and the circumstances in which the
    statement was made did not substantially negate the possibility that the
    declarant was untruthful or mistaken. It was unknown whether Mr. Young had a
    motive to lie, there was reason to doubt his credibility given his long
    criminal record of dishonest acts, and there was no evidence confirming the statement.

(c)

The trial

(i)

The prosecution case

[10]

The Crown argued that the appellant knew that the
    Metamucil containers contained cocaine when she imported the drugs into Canada.
    A CBSA agent found the drugs in her suitcase during a secondary customs
    inspection. When the agent opened the suitcase, the Metamucil containers were right
    on top in a black plastic bag. The containers had no security seal and were
    abnormally solid. The agent opened a container and saw a layer of Metamucil on
    top of a plastic bag. The substance inside the plastic bag was tested and was cocaine.

[11]

The Crown claimed that the appellants motive
    was financial. It was an agreed fact that the street value of the drugs sold at
    the gram level was between $155,000 and $194,000 and that a drug courier would typically
    make between $1,000 and $5,000, plus expenses, or sometimes a percentage of the
    product as payment instead. At the time of trial, the appellant was a 34-year-old
    single mother with five children (four when she was charged), ranging in age from
    18 years to 2 months, and had a $2,500 monthly mortgage payment
that
she split with her mother. Trial counsel (not
    appeal counsel) put to her that having four children live with you is pretty
    expensive for groceries and clothes and all the things that teenagers need and
    getting an extra few thousand dollars here or there would be a big assistance
    to you in helping you raise your kids and pay for your mortgage: Transcript,
    October 12, 2018, at p. 96. Although the appellant agreed that money was pretty
    tight, she was reluctant to agree with the suggestion that an extra few
    thousand dollars would have been a big assistance, explaining that she had
    family support. Crown counsel pressed the point, putting to her that [h]aving
    an extra thousand or five thousand dollars given to you at that time would have
    been of assistance to you: Transcript, October 12, 2018, at p. 97. Like most
    people would, she agreed.
[1]

(ii)

The defence case

[12]

The appellant testified in her own defence. Her evidence
    was that she flew to Jamaica on March 31, 2017 for a celebration of the life of
    her uncle. He had recently died in Canada, but because many family members
    could not travel from Jamaica a celebration of life was organized to take place
    there on April 1, 2017. The appellant would then return to Canada the next day.

[13]

One of the appellants cousins picked her up from
    the airport in Jamaica and they went to the family home. There, a man named
    Haja introduced himself to her. He said he knew her parents and that she
    looked a lot like her father. The appellant had not met Haja before. She later
    learned his real name was Simian Elliott.

[14]

The appellant saw Haja again the next day at the
    celebration of life but did not speak to him. He was talking to her family
    members and seemed like a nice guy. The appellants cousins asked her to extend
    her stay in Jamaica. She agreed and believed Haja may have overheard this. She later
    changed her plane ticket to return on April 5.

[15]

On April 5, Haja came to the family home and
    said he was happy to catch the appellant. He gave her a black plastic bag containing
    four Metamucil containers and said it was for her Grandma Pat, her fathers
    mother. The appellant did not think this was unusual because she said in Jamaica
    people blend ginger root, beetroot, mango seed, and June plum seed with
    Metamucil to ward off evil spirits and as a form of rejuvenation for the body.
    The appellant looked in the plastic bag, saw the Metamucil containers, and put everything
    in her suitcase. Although she did not use this herbal remedy herself, the
    elderly did, so she thought her grandmother would be happy for the gift. The
    appellant was not suspicious. Haja was a friend of the family and she had no
    reason to distrust him. She testified that she had no idea that the containers
    contained drugs.

[16]

When the appellant landed at Pearson Airport, she
    was selected for secondary screening. The CBSA agent inspected her suitcase and
    found the cocaine.

[17]

The appellant was permitted to introduce evidence
    of a third-party suspect  her father. She suggested that he had a motive, the opportunity,
    and the disposition to be responsible for the importation. Her fathers lengthy
    criminal record was admitted into evidence, which included many convictions for
    drug possession and trafficking. It was also an agreed fact that he died from a
    cocaine and fentanyl overdose.

[18]

The appellant testified that she believed her
    father had arranged for Haja to transport the drugs through her without her
    knowledge. She did not have a close relationship with her father. He had drifted
    in and out of her life because of his drug addiction and criminal lifestyle. But
    they were trying to rebuild their relationship and she had spoken to him about
    her upcoming trip to Jamaica.

[19]

The appellants mother was supposed to pick her
    up at the airport in Toronto. The appellant would have taken the Metamucil
    containers to her Grandma Pat, where her father and several other family
    members would have had access to them. The appellant believed none of these other
    family members knew about the drugs. Like the appellant, they all hated drugs
    because of how they had destroyed her fathers life.

[20]

After the appellant was arrested, many of her family
    members contacted her, but her father did not. She tried to contact him, without
    success, and felt he was ignoring her. He died on July 27, 2017.

C.

Discussion

(a)

Applicable principles for admitting hearsay

[21]

The applicable legal principles governing the admissibility
    of Mr. Youngs alleged statement to Ms. Winchester are not in dispute.

[22]

All
relevant
evidence
    is admissible, subject to certain exceptions, one of which is the rule against hearsay
    evidence. An out-of-court statement of a declarant is hearsay if (1) the
    statement is adduced to prove the truth of its contents and (2) there is no
    contemporaneous opportunity to cross-examine the declarant. Hearsay evidence is
    presumptively inadmissible unless it falls under an exception to the hearsay
    rule:
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 34-35,
    42, and 56.

[23]

The Supreme Court summarized the framework governing
    the admissibility of hearsay evidence in
Khelawon
, at para. 42 and
R.
    v. Mapara
, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15:

(a) Hearsay evidence is presumptively
    inadmissible unless it falls under an exception to the hearsay rule. The
    traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to
    determine whether it is supported by indicia of necessity and reliability,
    required by the principled approach. The exception can be modified as necessary
    to bring it into compliance.

(c) In rare cases, evidence falling within
    an existing exception may be excluded because the indicia of necessity and
    reliability
are lacking in
the particular
circumstances of the case
.

(d) If hearsay evidence does not fall under a
    hearsay exception, it may still be admitted if indicia of reliability and
    necessity are established on a
voir dire
.

[24]

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 380, 306 O.A.C. 173, at para. 88:

The principles that
govern
    the admissibility of declarations against penal interest
are these:

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
    courts processes extends.

R. v. Demeter
,
    [1978] 1 S.C.R. 538, at p. 544;
R. v. OBrien
, [1978] 1 S.C.R. 591, at
    p. 600; and
R. v. Lucier
, [1982] 1 S.C.R. 28, at pp. 32-33.

[25]

As the Supreme Court has noted, exceptions to
    the hearsay rule, such as the exception for declarations against penal
    interest, developed for statements carrying certain guarantees of inherent
    trustworthiness, often because of the circumstances in which they were made:
R.
    v. Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 20.

[26]

See also Sidney N. Lederman, Alan W. Bryant
    & Michelle Fuerst,
Sopinka, Lederman & Bryant:

The Law of
    Evidence in Canada
, 5th ed. (Toronto: LexisNexis Canada, 2018), at
§
6.183-6.205; S. Casey Hill, David M. Tanovich
    & Louis P. Strevos,
McWilliams Canadian Criminal Evidence
,
    loose-leaf, 5th ed. (Toronto: Thomson Reuters, 2013), at para. 7:200.20.

(b)

Application to this case

[27]

The focus of the argument in this court was
    whether the application judge erred in refusing to admit the hearsay statement as
    a declaration against penal interest because it failed to meet criteria (i) and
    (ii) in
Tash
. The Crown did not challenge the application judges
    ruling that criteria (iii), (iv), and (v) of
Tash
were met. As the
    application judge found, the entirety of the declaration was not in favour of Mr.
    Youngs interest because he took responsibility for arranging to have someone
    hide drugs in a package which he brought to Canada (criterion (iii)); there
    were other circumstances connecting Mr. Young to the crime because he had an
    extensive criminal record from 1981 to 2017 with at least nine convictions for
    possession of a controlled substance and possession for the purpose of
    trafficking (criterion (iv)); and Mr. Young was unavailable to testify because
    he was dead (criterion (v)).

[28]

On the first disputed point  whether Mr. Young
    apprehended a vulnerability to penal consequences (criterion (i))  the
    application judge ruled:

Regarding the first criterion, I am not
    persuaded that the declaration was made to such a person and in such
    circumstances that the declarant should have apprehended a vulnerability to
    penal
consequences as a result
. Mr. Young
made a statement to
his daughter
who had a very difficult relationship
with him
    growing up; however, he lived with her from July 2015 to November 2015 before
    having a falling out due to his continued drug use.

Mr. Young 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.

Furthermore, there
is nothing in the circumstances in which the statement was allegedly
    made that Mr. Young should have apprehended a vulnerability to penal
consequences as a result
.

[29]

On the second disputed point  whether Mr.
    Youngs vulnerability to penal consequences was not remote (criterion (ii))  the
    application judge ruled:

[I]t seems to me that the vulnerability to
    penal consequences were remote given that Mr. Young told Ms. Winchester not to
    tell [the appellant] about what he had stated to her. He clearly did not
    contemplate any penal consequences as a result of his statement to Ms.
    Winchester. To that extent, this criterion has not been met in this case.

[30]

The standard of review of the application
    judges ruling is not disputed. A ruling on the admissibility of hearsay evidence
    is a question of law reviewable for correctness, but factual findings that go
    into that determination attract deference:
Youvarajah
, at para. 31;
R.
    v. Couture
, 2007 SCC 28,
[2007] 2 S.C.R. 517
, at
    para. 81;
R. v. S.S.
, 2008 ONCA 140, 233 O.A.C.
    342, at paras. 29-30;
and
Hill, Tanovich & Strezos, at para. 37:100.
No deference is owed if the lower court materially misapprehended evidence
that is
central to the ultimate assessment of
    the admissibility of the hearsay statement:
R. v. Dupe
, 2016 ONCA 653,
    340 C.C.C. (3d) 508, at para. 50.

[31]

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. Winchesters 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.

[32]

This crucial part of Mr. Youngs 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. Youngs complete statement is considered, Mr. Young
    certainly should have apprehended a vulnerability to penal consequences by
making his statement to
Ms. Winchester.

[33]

Nor was Mr. Youngs 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.

[34]

Finally, that Mr. Youngs 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. Youngs 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.

[35]

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.

[36]

The respondent did not seek modification of the
    declaration against penal interest exception or argue
that
this was a rare case where evidence falling within an existing
    exception should be excluded because the indicia of necessity and reliability
are lacking in
the particular circumstances of this
    case: see
Khelawon
, at para. 42;
Mapara
, at para. 15. A finding
    that the evidence in this case falls within the declaration against penal
    interest exception to hearsay is thus conclusive as to its admissibility, without
    resort to the principled approach:
Khelawon
, at para. 60;
Mapara
,
    at para. 34; and
R. v. Carty
, 2017 ONCA 770, 356 C.C.C. (3d) 309, at
    para. 10.

[37]

It is also unnecessary to address the
    appellants other arguments that the application judge erred by not applying a
    relaxed standard to the admissibility of defence evidence or in instructing the
    jury on wilful blindness as a pathway to a guilty verdict.

(c)

Conclusion

[38]

The hearsay statement was admissible under the declaration
    against penal interest exception to the hearsay rule. Its exclusion impaired
    the appellants right to make full answer and defence to the criminal charge
    against her and led to a miscarriage of justice. I would allow the appeal on
    this basis alone.

D.

Disposition

[39]

I would allow the appeal, quash the conviction, and
    order a new trial.

M.
    Jamal J.A.

I
    agree. R.G. Juriansz J.A.

Coroza J.A. (concurring):

A.

OVERVIEW

[40]

The appellant raises the following three grounds
    of appeal:

I.

Did the application judge err in concluding that
    Orville Youngs statement was not a declaration against penal interest?

II.

Did the application judge err in concluding that
    Mr. Youngs statement was not admissible pursuant to the principled exception
    to the rule against hearsay?

III.

Did the trial judge err in leaving wilful
    blindness as a route to a guilty verdict?

[41]

I have had the advantage of reviewing Jamal
    J.A.s reasons. I agree with his proposed disposition of the appeal, albeit on
    different grounds. My colleague would allow the appeal and order a new trial on
    the first issue. While I agree that Mr. Youngs statement should have been
    admitted at trial, in my respectful view, the statement was not admissible as a
    declaration against penal interest.

[42]

Instead, I conclude that the application judge
    erred by refusing to admit the statement pursuant to the principled exception
    to the rule against hearsay. The application judges ruling discloses a
    material misapprehension of the evidence. He also failed to consider the
    appellants argument that the application judge should apply a relaxed standard
    to the admissibility of the hearsay evidence, to avoid a miscarriage of justice
    or to ensure a fair trial.

[43]

In light of the proposed disposition of the
    appeal, I agree with my colleague that it is unnecessary to address the
    appellants third argument.

B.

ANALYSIS

(1)

Did the Application Judge Err in Concluding that
    Mr. Youngs Statement Was Not a Declaration Against Penal Interest?

(i)

Background

[44]

My colleague has thoroughly reviewed the factual
    background, the principles applicable to admitting hearsay, and the criteria
    for the declaration against penal interest exception to the hearsay rule
    discussed by this court in
R. v. Tash
,
2013
    ONCA 380
, 306 O.A.C. 173. I need not repeat that discussion. There is no
    dispute that the application judge correctly outlined the applicable principles
    in his ruling.

[45]

The focus of the parties arguments before the
    application judge was on whether Mr. Youngs statement met the first two
    criteria set out in
Tash
, at para. 88. For ease of reference, I
    repeat the first two criteria for the declaration against penal interest
    exception to the hearsay rule:

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; and

II.

The vulnerability to penal consequences must not
    be remote.

[46]

The assumption underlying this exception is that
    people do not readily make statements that admit acts contrary to their
    interests, unless those statements are true. It is also essential that the
    statement should be to the declarants immediate prejudice; that is, the
    declarant must realize, at the time the statement is made, that it may be used
    against them:
R. v. OBrien
, [1978] 1 S.C.R. 591, at pp. 599, 601;
R.
    v. Kimberley
(2001), 157 C.C.C. (3d) 129 (Ont. C.A.), at para. 68, leave
    to appeal refused, [2002] S.C.C.A. No. 29;
R. v. Underwood
, 2002 ABCA
    310, 170 C.C.C. (3d) 500, at para. 42. As counsel for the appellant aptly put
    it during her submissions before the application judge:

Its [Mr. Youngs] apprehended fear of what
    Ms. [Toni] Winchester could do.
And that happens the moment he tells the information
    to Ms. Winchester
. Its not something that, it doesnt, its irrelevant to
    whether or not what he intends to do at some later date. [Emphasis added.]

[47]

Jamal J.A. finds that the application judge
    materially misapprehended evidence because he ignored a critical sentence in
    Ms. Winchesters affidavit. In this sentence, Ms. Winchester stated that Mr.
    Young had 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. He
    concludes that Mr. Young did not make a request to Ms. Winchester to never
    disclose that he was responsible for the drugs, but only to delay disclosure.
    According to my colleague, the crucial part of the statement not to tell [the
    appellant] yet materially changed the nature of the statement from one in
    which Mr. Young expected it would be kept confidential to one that only
    directed Ms. Winchester to delay telling the appellant until he could publicly
    confess his crime in court. He reasons that the obvious inference is that Mr.
    Young understood, were he to renege on his promise to confess, that
    Ms. Winchester would come forward with the information Mr. Young allegedly
    told her.

[48]

I agree that the application judge did not
    address Mr. Youngs specific request to delay telling the appellant. However, I
    do not agree that this is a material misapprehension of the evidence permitting
    this court to interfere with the application judges finding that, at the time
    he made the statement, Mr. Young must have had confidence that his statement to
    Ms. Winchester would remain confidential given his caution to her that she
    should not tell the appellant. The application judges finding appropriately
    turned on his assessment of the relationship between Mr. Young and Ms. Winchester.
    Furthermore, the evidence led on the application about the nature of Mr.
    Youngs concern supported the application judges conclusion that any
    apprehension of penal consequences was remote.

(ii)

The Relationship Between Mr. Young and Ms.
    Winchester

[49]

In his ruling, the application judge quite
    properly focused on the relationship between Mr. Young and Ms. Winchester. Mr.
    Young was not disclosing what he had done to a complete stranger. This was a
    family member. Their relationship had to be considered. The application judge
    held:

Mr. Young made a statement to his daughter
    whom had a very difficult relationship with him growing up.
However, he
    lived with her from July 2015 to November 2015 before having a falling out due
    to his continued drug use
. Mr. Young must have had confidence in the fact
    that this statement to Ms. Winchester would remain confidential, [given] his
    caution to her that she should not tell [the appellant] about what he said to
    her. [Emphasis added.]

[50]

I read this as the application judge holding
    that Mr. Young did not apprehend any real vulnerability to penal consequences
    because he was telling his own daughter to keep what he had told her
    confidential. The application judge recognized that they had a difficult
    relationship. But in the passage cited above, the application judge also
    observed that they were not completely estranged. It is worth noting that Ms.
    Winchesters affidavit referred to the fact that Mr. Young contacted her, and
    that she appeared to know how to contact him.

[51]

In these circumstances, it was open for the
    application judge to conclude that Mr. Young did not apprehend or believe that
    Ms. Winchester would act on his confession by going to the authorities at the
    time he made the statement. In other words, the core of the application judges
    reasoning is that the combination of the relationship between Mr. Young and Ms.
    Winchester and his direction to her to remain silent revealed that Mr. Young
    did not really apprehend a vulnerability to penal consequences.

(iii)

The Nature of Mr. Youngs Concern

[52]

Nor do I agree with my colleague that the
    obvious inference is that Mr. Young understood, were he to renege on his
    promise to come to court and confess, that Ms. Winchester would come forward to
    the authorities and expose him to prosecution.

[53]

Ms. Winchesters affidavit stated that on the
    date that the appellant was scheduled to arrive from Jamaica, Mr. Young
    repeatedly called Ms. Winchester to find out if the appellant had contacted
    her. Ms. Winchester found this behaviour odd, since Mr. Young typically had no
    interest in her or the appellants whereabouts. Ms. Winchester then tried to
    contact the appellant. She was unsuccessful.

[54]

However, several days after the appellant had
    arrived in Canada, Ms. Winchester found out that the appellant had been
    arrested for importing drugs. She confronted Mr. Young. According to Ms.
    Winchester, Mr. Young told her that he feared for his safety because his drug
    dealer had forced him to assist with importing the large quantity of drugs to
    Canada from Jamaica to repay a debt.

[55]

The overall tenor of Mr. Youngs statement is
    that he was fearful of the drug dealer. An obvious inference from this is that
    he was afraid because he had been forced to bring drugs into Canada and the
    scheme had failed. It is in this context that Ms. Winchester stated in her
    affidavit that Mr. Young specifically begged her not to tell the appellant yet
    and promised he would attend court for her. As she put it:

He told me that he was concerned for his
    own safety
. I did not tell [the appellant] anything
    about this conversation at the time. I was afraid that if I were to tell her,
it
    might cause danger to my dad
, or [the appellant]. [Emphasis added.]

[56]

I do not agree with my colleague that we can
    infer that Mr. Young understood Ms. Winchester would go to the authorities were
    he to renege on his promise to go to court. In my view, the affidavit discloses
    that Mr. Young wished to keep his statement confidential until he could
    disclose it in a manner that was acceptable to him, given his concerns. Ms. Winchesters
    affidavit reveals that Mr. Young was afraid for his safety and Ms. Winchester
    did not tell the appellant because she was afraid for both her father and
    half-sister.

[57]

There was also no evidence led on the
    admissibility
voir dire
that, had the appellant been told what her
    father had disclosed, she would have gone to the authorities and exposed the
    declarant to prosecution. Accordingly, I do not accept that the application
    judge erred in finding that, in the circumstances, the vulnerability to penal
    consequences was remote.

[58]

In conclusion, the suggestion that the
    application judge materially misapprehended the evidence and that Ms.
    Winchester would obviously go forward to the police if Mr. Young did not follow
    through on his promise is not borne out by the evidence on the application. The
    application judge did not err in finding that Mr. Youngs statement did not
    meet the criteria set out in
Tash
. Therefore, I would not give
    effect to this ground of appeal.

(2)

Did the Application Judge Err in Concluding that
    Mr. Youngs Statement Was Not Admissible Pursuant to the Principled Exception
    to the Hearsay Rule?

(i)

Background

[59]

The appellant advanced an alternative argument
    before the application judge and repeats that argument before this court. She
    contends that if Mr. Youngs statement did not fit the criteria for a
    declaration against penal interest, then it was nevertheless admissible under
    the principled approach to hearsay. Further, she argues that where hearsay
    evidence is tendered by an accused, the court has the discretion to take a more
    relaxed view of the prerequisites to admissibility.

[60]

Under the principled approach, Mr. Youngs
    statement could have been exceptionally admitted into evidence if the appellant
    had demonstrated that the twin criteria of necessity and threshold reliability
    were met on a balance of probabilities:
R. v. Bradshaw
, 2017 SCC 35,
    [2017] 1 S.C.R. 865, at para. 23;
R. v. Khelawon
, 2006 SCC
    57, [2006] 2 S.C.R. 787, at para. 47.

[61]

In this case, the necessity for Mr. Youngs statement
    was established by his death from a drug overdose and his resulting
    unavailability for trial. The Crown did not challenge this evidence and the
    parties therefore focused their arguments before the application judge on
    whether threshold reliability had been met.

[62]

Threshold reliability is established when the
    hearsay statement is sufficiently reliable to overcome the dangers arising from
    the difficulty of testing it:
Khelawon
, at para. 49. In assessing
    threshold reliability, the trial judge must identify the specific hearsay
    dangers presented by the statement and consider any means of overcoming them:
Bradshaw
,
    at para. 26. The hearsay dangers can be overcome and threshold reliability can
    be established by demonstrating that (i) there are adequate substitutes for
    testing truth and accuracy (procedural reliability) or (ii) there are
    sufficient circumstantial or evidentiary guarantees that the statement is
    inherently trustworthy (substantive reliability):
Bradshaw
, at para.
    27.

[63]

The application judge identified the primary
    hearsay danger as flowing from the fact that the truthfulness of Mr. Youngs
    statement could not be tested. The statement was not written or recorded and
    there were no persons present at the time the statement was made other than Ms.
    Winchester. Obviously, the Crown could not cross-examine Mr. Young before the
    trier of fact.

[64]

However, as mentioned above, threshold
    reliability may also be established by demonstrating substantive reliability,
    meaning that the statement has sufficient circumstantial guarantees of
    reliability or an inherent trustworthiness. To determine inherent
    trustworthiness, a court can consider the circumstances in which the statement
    was made and evidence that corroborates or conflicts with the statement:
Bradshaw
,
    at para. 30. The standard for substantive reliability is high, but absolute
    certainty about the reliability of the statement is not required:
Bradshaw
,
    at para. 31. If the statement is admitted, it remains for the trier of fact to
    assess the ultimate reliability of the statement; that is, to determine
    whether, and to what degree, the statement should be believed, and thus relied
    on to decide issues in the case:
Bradshaw
, at para. 39.

[65]

There is also strong authority to support the
    appellants argument that, where hearsay evidence is tendered by an accused, a
    court should take a more relaxed view of the prerequisites to admissibility
    where it is necessary to do so in order to prevent a miscarriage of justice:
Tash
,
    at para. 89. This court in
R. v. Caesar
, 2016 ONCA 599, 339
    C.C.C. (3d) 354 reviewed the authorities and cited the earlier decision of this
    court in
R. v. Williams
(1985), 18 C.C.C. (3d) 356 (Ont. C.A.), at p.
    378, leave to appeal refused, [1985] S.C.C.A. No. 168, where Martin J.A.
    stated:

It seems to me that a court has a residual
    discretion to relax in favour of the accused a strict rule of evidence where it
    is necessary to prevent a miscarriage of justice and where the danger against
    which an exclusionary rule aims to safeguard does not exist.

[66]

Blair J.A., writing for this court in
Caesar
,
    then summarized the authorities in the following way, at paras. 70-71:

What I draw from these authorities is that if
    the defence can point to evidence  even hearsay evidence  that is logically
    relevant to an allowable defence, and a case can be made for adopting the
Williams
approach, the defence will be entitled to lead that evidence unless the
    prejudicial effect of the evidence substantially outweighs its probative value.

Not all relevant evidence is admissible, however,
    and hearsay evidence is presumptively inadmissible. Inadmissible hearsay does
    not become admissible hearsay simply because it is proffered by the defence in
    support of its right to make full answer and defence and because an accused is
    entitled to the presumption of innocence, in my opinion. The evidence must
    either fall within one of the recognized exceptions to the hearsay rule or pass
    the test of the necessity/reliability analysis under the principled exception,
taking
    into account the foregoing reservation regarding the exceptional circumstance
    where there is some evidence of reliability, in particular, and where rigid
    adherence to the strict rules of evidence would hinder a fair trial or lead to
    a miscarriage of justice
. If the evidence meets one of these tests, and it
    is logically relevant to a tenable defence, and its prejudicial effect does not
    substantially outweigh its probative value, it is admissible. [Emphasis added.]

[67]

The question of whether Mr. Youngs statement
    ought to have been admitted is a question of law. A ruling on the admissibility
    of hearsay evidence, if informed by correct principles of law, is owed
    deference by this court:
R. v. Blackman
, 2008 SCC 37, [2008] 2 S.C.R.
    298, at para. 36. However, deference ends if the application judge materially
    misapprehended evidence that is central to his ultimate assessment of the
    reliability of the hearsay statement:
R. v. Dupe
, 2016 ONCA 653, 340
    C.C.C. (3d) 508, at para. 50.

(ii)

The Statement Was Admissible Under a Relaxed
    Application of the Principled Approach to Hearsay

[68]

In his ruling, the application judge found that
    threshold reliability had not been met because, in part, there was nothing
    about the circumstances in which the statement was made that attested to its
    reliability.

[69]

As I read his reasons, the application judge
    found that it was unknown whether or not Mr. Young had a motive to lie. The
    application judge reasoned that the evidence shedding light on Mr. Youngs
    motive was ambiguous and the circumstances in which the statement was made did
    not negate the possibility that he was untruthful or mistaken.
If Mr. Young wanted to come to the appellants assistance,
    there would have been no reason to tell Ms. Winchester to keep his confession
    from the appellant. Furthermore, he personally could have chosen to contact the
    authorities about his involvement in the offence with which the appellant was
    charged.

[70]

The application judge also held that Mr. Young
    had a history of dishonesty, as disclosed by his lengthy criminal record, and that
    this was a factor to be considered in assessing the reliability of the
    statement.

[71]

Finally, the application judge held that there
    did not appear to be any confirmatory evidence of what Mr. Young allegedly told
    Ms. Winchester, other than the fact that he reportedly made the comments on the
    date of the appellants arrest.

[72]

In my view, the application judges ruling
    discloses a material misapprehension of the evidence led at the pretrial
    application and is therefore not entitled to the customary deference otherwise
    afforded to rulings of this nature. The application judge misapprehended the
    evidence about the context in which Mr. Young made the statement which,
    contrary to the application judges conclusions, tended to support the
    reliability of the statement. Given that this context offers some indicia of
    reliability, and bearing in mind the fact that this evidence was a crucial part
    of the appellants defence, the statement was admissible under the relaxed
    approach to admissibility outlined in
Caesar
.

[73]

To be clear, Ms. Winchesters evidence was not,
    as the application judge held, simply that Mr. Young had made comments on the
    date that the appellant had been arrested. Rather, her affidavit disclosed that
    Mr. Young made his statement after he had initiated contact with Ms. Winchester
    by repeatedly asking her if she had heard from the appellant on the date that
    the appellant was due to arrive. Ms. Winchester stated that it was several days
    after the appellant had returned from Jamaica that she became aware that the
    appellant had been arrested. Ms. Winchester then confronted Mr. Young and asked
    him to tell her the real deal about why he kept asking about the appellant.
    As I have set out above, Mr. Youngs response to Ms. Winchester demonstrated
    concern and fear of his drug dealer. His proposal was to control the disclosure
    of this information.

[74]

In my view, the fact that Mr. Young made the
    statement immediately after Ms. Winchester confronted him with the appellants
    arrest for importing cocaine; that it was Mr. Young who initiated first contact
    and acted in a suspicious manner when the appellant was initially due to arrive
    to Canada; and that Mr. Young was fearful of his drug dealer and begged Ms.
    Winchester not to tell the appellant so that he could control the disclosure of
    this information were all circumstances that supported the substantive
    reliability of the statement.

[75]

The application judges misapprehension of the
    evidence regarding the context in which Mr. Young made his statement also
    infected his conclusion that Mr. Youngs motive was ambiguous. Ms. Winchester
    stated that Mr. Young was fearful and concerned for his own safety. These
    circumstances support the inference that Mr. Youngs motive to keep this
    information confidential until he could reveal the scheme at the appellants
    trial, was to protect both himself and the appellant from his drug dealer. I
    therefore disagree with the application judge that Mr. Young may have been
    lying given the alleged inconsistency between his expressed desire to help and his
    request that Ms. Winchester not yet disclose this information to the appellant.

[76]

As I have explained, and contrary to the
    application judges conclusions, the statement bore some indicia of
    reliability. I acknowledge that, given the high standard for threshold
    reliability described in
Bradshaw
, the statement would not be
    admissible on a strict application of the rules. However, the application judge
    also failed to address the appellants submission that he should relax the
    assessment of threshold reliability, since the evidence of Mr. Youngs
    statement was crucial to the only issue that was going to be litigated at
    trial: the appellants knowledge. I conclude that this was a case where a
    strict adherence to the rules of threshold reliability was not warranted.

[77]

This evidence was central to the defence. As my
    colleague points out, at trial, the appellant was permitted to lead evidence of
    Mr. Youngs propensity to commit the offence as a third-party suspect. For
    example, his lengthy criminal record was admitted into evidence. It contained
    entries for drug possession and trafficking. The jury was also told that he
    died from a cocaine and fentanyl overdose before trial. Finally, the trial
    judge explained to the jury in her charge that, if there was evidence demonstrating
    that Mr. Young organized a scheme for the appellant to unknowingly commit the
    offence, then that evidence, taken together with the rest of the evidence, may
    leave them with a reasonable doubt about whether the appellant had the
    knowledge required to convict her.

[78]

It seems to me that there is a substantial
    disconnect between the application judges ruling rendering Mr. Youngs
    statement to Ms. Winchester inadmissible and the fact that the appellant was
    subsequently permitted by the trial judge to point to Mr. Young as a viable
    third-party suspect. In my view, it was manifestly unfair to the appellant that
    she was prevented from introducing the most crucial piece of evidence to
    support her defence. Ms. Winchester was available to be cross‑examined
    before the jury. The jury could decide whether or not to accept
    Ms. Winchesters evidence that Mr. Young had made the statement after
    being confronted by her, in the circumstances described in her affidavit, as
    well as whether or not to believe the statement and rely on it to decide the
    issue of the appellants knowledge. The probative value of Mr. Youngs
    statement outweighed any prejudice to the Crown in adducing it, in light of the
    viable third-party suspect defence advanced at trial.

[79]

In fairness to the application judge, the
    third-party suspect application was brought later in the trial, after he had
    already given his evidentiary ruling. He had not been asked to rule on the
    third-party suspect application by the time of his evidentiary ruling. However,
    had that successful application been brought before the application judge, it
    likely would have been an important consideration in the analysis.

[80]

I would give effect to this ground of appeal.
    Rigid adherence to the strict rules of evidence in this case led to an unfair
    trial. The statement was admissible under the relaxed approach to the
    principled exception to the hearsay rule outlined in
Caesar
.

(3)

Did the Trial Judge Err in Leaving Wilful
    Blindness as a Route to a Guilty Verdict?

[81]

It is unnecessary to deal with this ground of
    appeal.

C.

DISPOSITION

[82]

I agree with Jamal J.A.s proposed disposition
    of this appeal. I would allow the appeal and order a new trial.

Released: July 26, 2021 R.G.J.

S.
    Coroza J.A.

[1]
Outside
    the presence of the jury, appellants trial counsel objected to this line of
    questioning as suggesting that poverty in other words is tantamount to motive
    to commit an offence: Transcript, October 12, 2018, at p. 145. The trial judge
    stated that this was for the jury to decide: Transcript, October 12, 2018, at
    p. 146. Because this line of questioning was not raised as a ground of
    appeal, I will not address it further.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : Amrane c. Abraham, 2021 ONCA 536

DATE : 20210722

DOSSIER : M52655 (C68905)

La juge Thorburn (juge saisie de
    la motion)

ENTRE

Tahar Amrane

Requérant

et

Carolee Abraham

Intimée

Tahar Amrane, en personne

Nicholas Rolfe, pour lintimée

Date de laudience : le 21 juillet
    2021 par visioconférence

INSCRIPTION

[1]

Le requérant, Tahar Amrane, se représente lui-même.
    Il présente une requête en prorogation de délai pour réviser la décision de la
    juge Benotto de cette cour. Elle a rejeté la requête en prorogation pour mettre
    son appel en état.

[2]

Lappel porte sur une ordonnance rejetant sa
    poursuite en vertu des règles 21 et 25 des
Règles de procédure civile
,
    R.R.O. 1990, Règl. 194.

[3]

La poursuite est contre Carolee Abraham, une
    employée de la ville de Toronto, pour ne pas avoir fourni des services en
    français. Sa déclaration se base sur la
Charte canadienne des droits et
    libertés
.

[4]

La juge de première instance avait déterminé que
    la poursuite navait aucune chance de succès, et était frivole et vexatoire.

[5]

La juge Benotto a rejeté la requête en
    prorogation pour mettre son appel en état parce que, entre autres, un individu
    ne peut être responsable des dommages en vertu de la
Charte
: voir
Vancouver
    (Ville) c. Ward
, 2010 CSC 27 [2010] 2 R.C.S. 28. De plus, même si M.
    Amrane avait procédé contre la ville de Toronto, une telle poursuite contre la
    ville est interdite par la
Loi de 2006 sur la cité de Toronto
, L.O.
    2006, c. 11, annexe A et la
Loi de 1997 sur le programme Ontario au travail
,
    L.O. 1997, c. 25, annexe A
.
La juge Benotto a donc conclu que

la
    justice de laffaire exige que la prorogation soit refusée.

[6]

Le requérant soumet quil ne cherche pas des
    dommages, mais daméliorer laccès aux services en français. Malheureusement,
    sa déclaration ne comprend quune demande pour les dommages.

[7]

En vertu du fait que la déclaration qui était
    devant la juge Benotto et qui est devant moi est contre lindividu Carolee
    Abraham seul, quun individu ne peut être responsable des dommages en vertu de
    la
Charte,
la justice de laffaire exigeait que la prorogation soit refusée
    par la juge Benotto et la demande de délai pour réviser la décision de la juge
    Benotto est donc rejetée.

J.A.
    Thorburn j.c.a.


COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Union of Postal Workers v. Bnai Brith
    Canada, 2021 ONCA 529

DATE: 20210723

DOCKET: C68030

Tulloch, Nordheimer and Jamal JJ.A.

BETWEEN

Canadian Union of Postal Workers

Plaintiff/Responding Party (Respondent)

and

Bnai
    Brith Canada, Michael Mostyn, Aidan Fishman

and Ran Ukashi

Defendants/Moving Parties (Appellants)

David Elmaleh and Aaron Rosenberg, for the appellants

David Migicovsky and Karin M. Pagé, for the respondent

Heard: April 7, 2021 by video conference

On appeal from the order of Justice Calum U.C. MacLeod of
    the Superior Court of Justice, dated January 16, 2020, with reasons reported at
    2020 ONSC 323.

Jamal J.A.:

Introduction

[1]

The appellants, Bnai Brith Canada, Michael Mostyn, Aidan
    Fishman, and Ran Ukashi, appeal from the order of the motion judge dismissing their
    motion to dismiss an action in defamation brought against them by the
    respondent, Canadian Union of Postal Workers (CUPW), under s. 137.1 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43. Section 137.1 seeks to mitigate the
    harmful effects of strategic lawsuits against public participation (SLAPPs)
    lawsuits that seek to limit freedom of expression on matters of public interest
    rather than to pursue
bona fide
claims:
1704604 Ontario Ltd. v.
    Pointes Protection Association
, 2020 SCC 22, 449 D.L.R. (4th) 1, at para.
    2. Section 137.1 is thus known as an anti-SLAPP provision.

[2]

For the reasons that follow, I would dismiss the appeal.

Background

[3]

CUPW is a public sector union. From time to time, it takes positions on
    political and human rights issues. For many years it has supported a boycott of
    Israeli products, known as the Boycott, Divestment and Sanctions (BDS)
    movement, based on its view that Palestinians are mistreated in the occupied
    territories. CUPW also participates in capacity-building projects and
    cooperates with postal worker unions in other countries, including the
    Palestinian Postal Service Workers Union (PPSWU).

[4]

Bnai Brith is a charitable organization that has served as a primary
    grassroots voice for the Canadian Jewish community since 1875. It regularly
    participates in public debate on topics that impact the Canadian Jewish
    community and the broader public. Michael Mostyn is the CEO of Bnai Brith and Aidan
    Fishman and Ran Ukashi were employees of Bnai Brith and authors of press
    releases about CUPW that CUPW alleged were defamatory.

[5]

The relevant events are as follows.

[6]

A union member of CUPW complained to Bnai Brith about CUPWs support
    for the BDS movement, which Bnai Brith views as a propaganda campaign to
    delegitimize the state of Israel. Bnai Brith then conducted research on CUPWs
    activities and discovered that it had worked on a joint project with PPSWU. Bnai
    Brith found a Facebook page maintained by a person in a leadership role with
    PPSWU containing postings in Arabic praising individuals involved in terrorist
    activity against Israel. Bnai Brith also found postings on the PPSWU page
    appearing to be pro-Palestinian, which Bnai Brith interpreted as implicitly
    calling for the destruction of the state of Israel.

[7]

On July 26, 2018, Bnai Brith e-mailed CUPW and asked for comment on the
    PPSWU Facebook posts and advised CUPW that it intended to publish a story about
    CUPWs association with PPSWU. Bnai Brith asked for a response by the next day.
    CUPW did not respond. On July 31, 2018, Bnai Brith published the first of two press
    releases authored by Mr. Fishman and Mr. Ukashi that became the basis of CUPWs
    defamation action. The first press release, entitled Canadian Postal Workers
    Align with Pro-Terrorism Palestinian Union, stated that PPSWU glorified
    terrorism on its Facebook page and alleged that CUPW leadership has aligned
    itself with the path of violence and extremism. The second press release, published
    on August 2, 2018, stated that CUPWs radical leadership has refused to
    respond to our questions on why it would partner with a terror-supporting
    organization and alleged that CUPWs union dues may be used to support a
    foreign organization that wants to see [CUPWs Jewish and Israeli members]
    murdered.

[8]

CUPW sued the appellants for defamation, alleging that the publications claimed
    that it supports terrorism and that it is anti-Semitic. CUPW also alleged that the
    appellants acted maliciously. The appellants responded by filing a statement of
    defence and, subsequently, bringing a motion under s. 137.1 to have the action
    dismissed.

The motion judges decision

[9]

The motion judge dismissed the appellants motion. He first summarized the
    statutory framework for an anti-SLAPP motion under s. 137.1 and the test for
    defamation at common law. He then found:

·

Using union funds to support political causes that might support
    attacks on Israel is a matter of public interest. Legitimate criticism of these
    practices is protected speech under anti-SLAPP legislation.

·

CUPW has a solid case for
    defamation since the published words referred to CUPW by name. The appellants
    claim that CUPW is motivated by racism and is using union dues improperly to
    support terrorism would easily meet the test of language tending to diminish
    the reputation of [CUPW] in the minds of reasonable people.

·

There are serious flaws in the
    appellants defences:

-

Defence
    of truth or justification:
Interacting with the PPSWU cannot be
    reasonably said to be radical when official bodies like the Government of
    Canada, the European Union, and the United Nations have all sponsored projects
    in Gaza and the West Bank aimed at economic, justice system, or government institution-building
    and capacity-building. It would be difficult to prove that CUPW supports terrorism,
    violence, or anti-Semitism or that PPSWU officially supports terrorism.
    Evidence showed that the Facebook posts were not by the PPSWU but by an individual.
    There is thus a reasonable and distinct possibility that [the] truth and
    justification [defences] will not succeed.

-

Defence
    of fair comment:
There is evidence that Bnai Brith acted on
    assumptions without exercising due diligence by conducting only a cursory
    internet search of Facebook pages. Bnai Brith appeared to have entirely
    ignored CUPWs own policies and declarations against violence and racism and in
    support of a peaceful two state solution in the middle east, which may be
    fatal to any fair comment defence. Bnai Briths choice to attack CUPWs
    involvement with the PPSWU and to blow [the issue] out of proportion is potential
    evidence of malice.

·

The task on a s. 137.1 motion is
    to screen out litigation that is targeted by the legislation, which includes litigation
    of questionable merit or utility brought to stifle public debate on matters of
    public interest. This is a legitimate defamation action brought in
    circumstances where [CUPW] should have the right to pursue a remedy. The
    appellants defences raise significant issues about truth, good faith,
    responsibility and malice.

Legal Framework

[10]

Subsections
    137.1(3) and (4) of the
Courts of Justice Act
provide the following test
    on an anti-SLAPP motion:

(3) On motion by a person against whom a proceeding is brought,
    a judge shall, subject to subsection (4), dismiss the proceeding against the
    person if the person satisfies the judge that the proceeding arises from an
    expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3)
    if the responding party satisfies the judge that,

(a)
there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the
    proceeding; and

(b) the harm likely to be or have been suffered by the
    responding party
as a result of
the moving
    partys expression is sufficiently serious that the public interest in
    permitting the proceeding to continue outweighs the public interest in
    protecting that expression.

[11]

The
    Supreme Court of Canadas decision in
Pointes Protection
, released
    after the motion judges decision, analyzed the interpretation and application
    of these provisions. At para. 18, Côté J. explained how these provisions
    operate:

1.

Section 137.1 places a threshold burden on the moving party (the defendant)
    to satisfy the motion judge that the proceeding arises from an expression
    relating to a matter of public interest.

2.

If the moving party meets this threshold burden, the burden shifts to
    the responding party (the plaintiff)
to satisfy the
    motion judge
that
there are grounds to believe
    that the proceeding has substantial merit and the moving party has no valid
    defence
, and that the public interest in permitting the proceeding to
    continue outweighs the public interest in protecting the expression. If the
    responding party does not meet this burden, the s. 137.1 motion is granted and
    the proceeding is dismissed.

Issues

[12]

There
    is no dispute that the appellants met their threshold burden to satisfy the
    motion judge that the proceeding arises from expression relating to a matter of
    public interest  the use of union funds to take positions on the conflict in
    the Middle East or to help an organization that allegedly supports attacks on
    Israel.

[13]

The appellants
    assert that the motion judge erred in concluding that CUPW met its burden to
    resist the dismissal of the action. They say that the motion judge erred:

1.

in law and
    fact in several aspects of the s. 137.1(4)(a)(ii) analysis relating to the
    appellants defences to the alleged defamation; and

2.

by failing to undertake
    the balancing required under s. 137.1(4)(b).

[14]

I
    will address each issue in turn.

Issue #1: Did the motion judge err in the s. 137.1(4)(a)(ii) analysis?

[15]

The
    appellants assert that the motion judge erred in law and in fact in concluding that
    there are grounds to believe that the appellants have no valid defence in
    the proceeding under s. 137.1(4)(a)(ii).

[16]

First,
    the appellants claim that the motion judge applied the wrong legal test under
s. 137.1(4)(a)(ii)
when he noted, at the start of his
    reasons, that [t]he defences which have been raised by B[n]ai Brith are not
    certain to be successful. The appellants acknowledge in their factum that the
    motion judge articulated the test differently later in [his] reasons, but
    claim that the incorrect statement of law at the outset coloured the motion
    judges analysis.

[17]

I do
    not accept that the motion judge erred in stating the legal test under s. 137.1(4)(a)(ii).
    I do not read the motion judges statement that the appellants defences are
    not certain to be successful as articulating the legal test under s. 137.1(4)(a)(ii).
    Read in context, that statement merely reflected his finding that there were
    grounds to believe that the defences would fail or, in other words, that there
    was no valid defence. As I explain below, the motion judge articulated and
    applied the correct test, consistent with the Supreme Courts articulation of
    it in
Pointes Protection
. The motion judge stated that CUPW had to
    satisfy him that there are grounds to believe that the appellants have no valid
    defence, which he explained means that a reasonable trier of fact
could
conclude that none of the pleaded defences would succeed at trial (emphasis in
    original). The motion judge emphasized that [i]t is premature to determine
    such a question conclusively at this preliminary stage of the litigation, and highlighted
    that [t]here need only be a basis for believing these conditions may be
    satisfied. The section does not require the motion judge to conclusively
    determine that the claim
will
succeed nor that the defences
will
fail (emphasis in original).

[18]

The
    motion judges articulation of the test under s. 137.1(4)(a)(ii) reflects the
    Supreme Courts articulation in
Pointes Protection
. Côté J. stated that
    s. 137.1(4)(a) asks whether the motion judge concludes from his or her
    assessment of the record that there is a basis in fact and in law  to support
    a finding that the plaintiffs claim has substantial merit and that the
    defendant has no valid defence to the claim: at para. 42. She explained that
    the no valid defence prong requires the plaintiff  CUPW  to show that
    there are grounds to believe that the defences have no real prospect of
    success: at para. 60.

[19]

I
    therefore see no basis to conclude that the motion judge erred in stating the legal
    test under s. 137.1(4)(a)(ii).

[20]

Second,
    the appellants assert that in applying s. 137.1(4)(a)(ii) the motion judge made
    several findings unavailable to him on the record, and that he erred in evaluating
    the defences of justification, fair comment, and responsible communication and
    in finding that the appellants may have acted with malice.

[21]

Before
    addressing the appellants specific objections, I underscore that a motion
    judges determination under s. 137.1(4)(a) attracts appellate deference, absent
    a reviewable error:
Pointes Protection
, at paras. 41, 97;
Bent v.
    Platnick
, 2020 SCC 23, 449 D.L.R. (4th) 45, at para. 77. As I will
    explain, I see no reviewable error justifying appellate intervention. It was
    open to the motion judge to find what he called serious flaws in the
    appellants defences and thus provide grounds to believe that none would succeed.

[22]

I
    will begin with the appellants argument on the defence of justification.

[23]

Once
    a plaintiff makes a
prima facie
showing of defamation, the words
    complained of are presumed to be false. To succeed on the defence of
    justification, the defendant must lead evidence showing that the statement was
    substantially true. Even if the publication is shown to contain accurate facts,
    the defence will fail when the sting of the defamation is shown to be untrue:
Platnick
, at para. 107.

[24]

Regarding
    justification, the appellants say that the motion judge erred by ignoring
    probative evidence on a key issue and by finding that it will be difficult to show
    that PPSWU officially supports terrorism. These arguments essentially ask this
    court to reweigh the evidence before the motion judge. That is not this courts
    role. There was a basis in the record for the motion judge to conclude that it
    may be difficult for the appellants to prove justification because their statements
    rested on problematic source material. As the motion judge found, the Facebook
    posts that the appellants relied on for their allegation that PPSWU supported
    terrorism were made not by PPSWU but by an individual. The motion judge was
    thus entitled to find that there were grounds to believe that the defence of
    justification would fail.

[25]

The
    appellants also say that the motion judge relied on evidence not in the record
    when he noted that the Government of Canada, the European Union, and even the
    state of Israel have sponsored projects in Gaza and the West Bank aimed at institution
    and capacity building. The motion judge made this observation partly to support
    his point that CUPW merely being involved in a project with PPSWU does not mean
    that CUPW is radical or aligned with any and all activities of [PPSWU]. That
    point is self-evident and unassailable even without referring to the impugned
    evidence. I see no reviewable error here.

[26]

The appellants
    also contend that the motion judge erred by holding, without significant
    analysis, that there was evidence that may be fatal to the defences of fair
    comment and responsible communication.

[27]

The following
    principles are relevant in considering the defences of fair comment and
    responsible communication:

·

To rely on the defence of fair comment, the comment must be based
    on
true
facts. If the factual foundation is
    unstated or unknown, or turns out to be false, the defence is unavailable:
WIC
    Radio Ltd. v. Simpson
, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 31.

·

The responsible communication defence has two essential elements:
    (1) the publication must be on a matter of public interest; and (2) the
    defendant must show that the publication was responsible, in that the defendant
    was diligent in trying to verify the allegations, having regard to all the
    circumstances:
Grant v. Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R.
    640, at para. 98;
Armstrong v. Corus Entertainment Inc.
, 2018 ONCA
    689, 143 O.R. (3d) 54, at para. 28.

[28]

I do
    not accept that the motion judge erred regarding these defences.

[29]

In
    concluding that there were grounds to believe that the defences of fair comment
    and responsible communication would fail, the motion judge stated that [w]ithout
    going into the evidence in depth, he would just hit some of the highlights.
    He found:

1.

CUPW
    merely being involved in a project with PPSWU cannot reasonably be said to mean
    that CUPW supports all of PPSWUs activities;

2.

it would
    be difficult to prove that PPSWU officially supports terrorism, especially because
    there was evidence that the impugned Facebook posts were not made by it; and

3.

there was evidence
    that the appellants had acted on assumptions without exercising due diligence,
    based on only a cursory internet search and review of Facebook pages, and apparently
    ignored CUPWs own policies and declarations against violence and racism.

[30]

Each
    of the above findings is grounded in the record before the motion judge. I see no
    basis for this court to intervene.

[31]

Finally,
    the appellants assert that the motion judge erred in stating that malice may
    undermine the appellants defences. Malice may be established by reckless
    disregard for, or indifference to, the truth, spite or ill-will, or any
    indirect or ulterior motive:
Hill v. Church of Scientology of Toronto
,
    [1995] 2 S.C.R. 1130, at para. 145;
Platnick,
at para. 136. The
    appellants state in their factum that [t]o infer that an advocacy organization
    may have acted with malice by following a lead and uncovering a public interest
    story is not evidence of malice.

[32]

I do
    not accept that the motion judge erred. To be clear, the motion judge stated
    that he was not  making a finding of malice. He merely concluded that there
    was evidence before him that may support such a finding, based on the
    presence of an ulterior motive or recklessness about the truth of the
    underlying facts, or based on an inference from the appellants conduct. He underscored
    that [t]his is not a summary judgment motion and it is not appropriate to take
    a deep dive into the evidence. I see no error in the motion judges approach
    or conclusion.

[33]

I thus
    conclude that the motion judge had a basis in the record to find grounds to
    believe that the appellants defences would fail. He was entitled to find that there
    was evidence that the appellants acted on assumptions without exercising due
    diligence, and that this may be fatal to their defences of responsible
    communication and fair comment. He was also entitled to find that there was evidence
    of malice that would undermine the appellants defences.

[34]

In reaching
    this conclusion, I emphasize that the motion judge did not adjudicate these defences
    on the merits or find malice. All that he decided was that CUPWs defamation
    action may proceed. I see no reviewable error in that conclusion.

Issue #2: Did
    the motion judge err in failing to undertake the balancing required under s.
    137.1(4)(b)?

[35]

The second
    issue raised by the appellants asserts that the motion judge erred in law by
    failing to undertake the balancing required under s. 137.1(4)(b) to determine
    whether the harm likely to have been suffered by CUPW because of the
    appellants expression is sufficiently serious and the corresponding public
    interest in permitting the action to continue outweighs the public interest in
    protecting the appellants expression. The appellants claim that the motion
    judge set out but failed to apply this balancing test, which the Supreme Court
    in
Pointes Protection
described as the crux or core of the s. 137.1
    analysis: at para. 82. The appellants therefore say that the appeal should be
    allowed and the motion remitted to a different judge to conduct the balancing.

[36]

In
    the alternative, the appellants assert that even if this court performs this
    balancing
de novo
on appeal, the appeal should be allowed and CUPWs
    action dismissed because the harm alleged by CUPW is not serious enough to
    allow the defamation action to continue. The appellants say that CUPW has
    suffered only insignificant harm, if any, from the appellants expression and
    has filed no evidence of any specific, provable, quantifiable harm. The appellants
    add that the record shows that their expression has been chilled, because they
    have not published on the subject since being served with the statement of
    claim. They claim that the expression implicated is close to the core values
    underlying freedom of expression and there is therefore a greater public
    interest in protecting it. Finally, the appellants allege that CUPWs lawsuit presents
    several
indicia
of a SLAPP. They say that it seeks to silence the
    appellants from criticizing CUPW in good faith on its partnerships with
    entities in the Middle East.

[37]

Respectfully,
    I do not accept the appellants submissions.

[38]

I
    begin by observing that it is not disputed that the motion judge correctly set
    out the balancing test under s. 137.1(4)(b). He cited this courts decision in
1704604
    Ontario Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R.
    (3d) 161, at para. 45, affd 2020 SCC 22, 449 D.L.R. (4th) 1, which held that a
    plaintiff such as CUPW alleging to have been wronged by a defendants expression
    on a matter of public interest must demonstrate that the public interest in
    vindicating that claim outweighs the public interest in protecting the defendants
    freedom of expression. The motion judge explained that the balancing under s. 137.1(4)(b)
    asks the court to consider if the harm potentially suffered by the plaintiff
    is trivial or not and if it is serious to consider whether it is in the public
    interest to deny the plaintiff a remedy in the name of freedom of speech.

[39]

I am
    satisfied that the motion judge applied this test. There is no doubt that the
    motion judge considered the harm alleged to have been suffered by CUPW to be significant.
    He cited this courts decision in
Lascaris v. Bnai Brith Canada
, 2019
    ONCA 163, 144 O.R. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No. 147, which
    allowed a defamation action against Bnai Brith to proceed when Bnai Brith
    published an article alleging that the official Justice Critic of the Green
    Party of Canada had used social media to advocate on behalf of terrorists who
    had murdered Israeli civilians. This court held, in
Lascaris
,

that
    the balance under s. 137.1(4)(b) clearly favoured the plaintiff, because
    if the action proceeded and the plaintiff were to succeed, the damages to
    which the [plaintiff] would be entitled could be significant.
Accusing any
    person of supporting terrorists is about as serious and damaging an allegation
    as can be made in these times
: at para. 40 (emphasis added). That observation
    applies equally here and no doubt led the motion judge to conclude that this
    was a solid case for defamation and to highlight that [w]ords suggesting
    that a union is using its membership dues improperly, supports terrorism and is
    motivated by racism would easily meet the test of language tending to diminish
    the reputation of the union in the minds of reasonable people. I am therefore
    satisfied that the motion judge found that the harm potentially suffered by
    CUPW because of the appellants alleged defamation was serious.

[40]

I am
    also satisfied that the motion judge weighed the serious potential harm to CUPW
    against whether, in the name of freedom of speech, it was in the public
    interest to deny CUPW the ability to pursue a remedy. This weighing is
    reflected in the motion judges statements that his task on the motion was to
    screen out litigation that is targeted by the legislation, namely,
    litigation of questionable merit or utility brought to stifle public debate on
    matters of public interest. Because of the potentially injurious statements against
    CUPW, the evidence that Bnai Brith acted on assumptions without exercising due
    diligence and that it ignored CUPWs policies against violence and racism, the
    potential for finding that Bnai Brith acted with malice, and the potential
    weakness of the appellants defences, the motion judge was entitled to find that
    this is a legitimate defamation action brought in circumstances where the
    union should have the right to pursue a remedy.

[41]

Nor
    do I see any basis to conclude that the appellants speech has
indicia
of a SLAPP sufficient to materially affect the outcome of the weighing
    exercise. CUPW was
prima facie
entitled to sue the individual
    employees given that the evidence shows that each had direct involvement in the
    authorship and publication of the allegedly defamatory statements: see
Hill
,
    at para. 176. The action also did not have a chilling effect on the appellants
    speech because Bnai Brith did not remove the impugned press releases from its
    website after it was sued and there is evidence that Mr. Mostyn wrote an article
    about CUPW after the appellants were served with the Notice of Libel.

[42]

In
    conclusion, as the motion judge held, CUPWs action does not appear to [be]
    the type of action the legislature contemplated should be stopped in its tracks
    at this preliminary stage. The motion judge correctly stated the test and appropriately
    weighed the relevant considerations. His conclusion therefore attracts
    appellate deference.

Disposition

[43]

I
    would dismiss the appeal, with costs to CUPW in the agreed amount of $15,000 all
    inclusive.

Released: July 23, 2021 M.T.

M. Jamal J.A.

I agree. M. Tulloch
    J.A.

I agree. I.V.B. Nordheimer J.A.