The Alberta Court of Appeal has ordered a new trial for Kirandeep Toor who was convicted of drug smuggling by a Lethbridge jury and was serving a nine year sentence along with her twenty-two month old daughter who was born during her incarceration. In a split 2-1 ruling the court allowed her application to produce the affidavit of her co-accused husband who said he wanted to purge his guilt. She knew nothing about the 84 kilograms of cocaine located in his truck by Canadian border agents at Coutts, Alberta. It was reported as the largest cocaine seizure by Canadian border authorities in Alberta at the time.

1. Introduction

On June 3, 2024, the Alberta Court of Appeal released the split 2-1 ruling in R. v. Kirandeep Kaur Toor allowing an application by the appellant to adduce fresh evidence and ordering a new trial. (here and here) Writing for the majority, Justice Peter Martin held that the fresh evidence was not found to be true, only that it was, “reasonably capable of belief, and if believed, could reasonably be expected to affect the result.” Justice Jolaine Antonio, in dissent, would have dismissed the appeal for contrary reasons on that pivotal finding. She concluded that the test whether a properly instructed jury “could reasonably have reached a different result” was not met in this case. The starkly contrasting opinions present an opportunity to discuss the statutory powers of appellate courts in Canada and the case law that governs the admissibity of fresh evidence on appeal.

2. Background

On April 26, 2021, Ms. Toor was convicted of importing and possession. Mr. Toor was convicted of importing and possession for the purpose of trafficking. A year later, on April 14, 2022, Ms. Toor was sentenced to concurrent terms of nine years and two years imprisonment respectively. Mr. Toor was sentenced to concurrent terms of ten years and two years. (here) The border agents had located the cocaine in the sleeping compartment of the truck and Mr. Toor testified at trial that he knew nothing about it. He said the cocaine must have been planted in the vehicle during a stopover in Great Falls, Montana. Following the verdict, however, Mr. Toor told authorities that he knew the drugs were in the truck. He then swore an affidavit attesting to Ms. Toor’s innocence. “I have chosen to confess to the lies I said in court and admit to my true involvement with the drugs because of the guilt I was feeling,” he said. The admissibility of the affidavit was the crux of Ms. Toor’s appeal.

3. Two Stories

On December 2, 2017, Mr. Toor stopped at the U.S.-Canada border crossing at Sweet Grass, Montana and Coutts, Alberta. Ms. Toor was the passenger. Mr. Toor testfied at trial that the cocaine must have been “planted by strangers” who planned to somehow recover the drugs after he crossed the border. Ms. Toor testified that she was, “an innocent, uninformed passenger accompanying her husband on a road trip.” Mr. Toor wrote the appellant a letter of apology following the jury’s verdicts, “for having placed her in such jeopardy”. And, in the contested affidavit, he said, “My grandfather arranged for my marriage to Kirandeep. I was close to him. Although he died in 2016, I still feel guilty towards him for having lied at the trial and allowing Kirandeep to be convicted for a crime I committed. I also feel guilty about the situation I have created for Kirandeep. I thought she would be found not guilty at the trial, as I had heard very good things about the lawyer who was representing her and I thought she would be safe, and I wanted to protect myself from going to jail.”

4. Applying the Palmer Test

The appellate courts of Canada do not exercise inherent jurisdiction but derive their powers from statutory authority. It is well established in the jurisprudence of the Supreme Court of Canada that the specific power to receive fresh evidence is contained in s. 683 of the Criminal Code. In R. v. Hay, a unanimous seven member panel held that the “overriding consideration” on a motion to adduce fresh evidence is “the interests of justice”. (here) Most recently, in R. v. Tayo Tompouba, Chief Justice Richard Wagner described the overarching interests of justice as, “the cardinal principle governing the admissibility of fresh evidence”. (here) It is not contentious that the interests of justice require consideration of the factors developed over forty years ago in R. v. Palmer. (here) First, evidence is generally not admitted on appeal if, by due diligence, it could have been adduced at trial. Second, the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. Third, the evidence must be credible in the sense that it is reasonably capable of belief. Fourth, the evidence must be such that it could reasonably, when taken with the other evidence at trial, be expected to have affected the result.

The Crown conceded that the first two factors of due diligence and relevance were met but argued that the third and fourth factors of credibility and impact on the result were not. The Crown asserted that the affidavit was “not reasonably capable of belief” and, even if it was, it would not have affected the result. “The Crown submits that Mr. Toor’s credibility is so lacking that anything he now says regarding the offence and his wife’s involvement in it is simply not capable of belief,” said Justice Martin. “There is no serious dispute that Mr. Toor is a liar,” said Justice Antonio. But the appeal was about more than Mr. Toor’s veracity. The Palmer test requires contextual analysis. The veracity issue had to be assessed “with the other evidence adduced at trial”. And, contextually, the absence of evidence was no less critical.

There was no direct evidence implicating Ms. Toor in the offence such as fingerprints on the packaging, drug paraphernalia in her possession or a witness who implicated her. “There is only circumstantial evidence from which the appellant’s knowledge may be inferred,” said Justice Martin, “but that circumstantial evidence cannot exclude other reasonable inferences, including the prospect that Mr. Toor intentionally kept the appellant in the dark about the drugs and that she did not know there were drugs in the vehicle.” It therefore followed that, if Mr. Toor’s evidence was believed or left the jury with a reasonable doubt as to Ms. Toor’s knowledge, it would affect the result.

5. Conclusion

The undercurrent that runs through the Toor debate was the risk of a wrongful conviction. I say undercurrent because that prospect is not mentioned by either Justice Martin or Justice Antonio. There was no dispute that Mr. Toor is a liar. All were agreed on that. Justice Martin described his evidence at trial as “fanciful and unworthy of belief.” Justice Antonio agreed and, as she said, “it appears the jury also shared this view.” But Ms. Toor was not charged with Mr. Toor being a liar. She was charged with two drug offences that both contain the essential element of possession. And proof of guilt required a reasonable jury to find that she had knowledge and control of the cocaine jointly with her husband. Justice Martin specifically did not find that Mr. Toor’s “recantation and affidavit evidence are true” but only that they are “reasonably capable of belief”. A new trial, then, was the only way to protect the interests of justice.