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SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
and
Christopher
Baldree
Respondent
-
and -
Attorney
General of Ontario
Intervener
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell,
Moldaver, Karakatsanis and Wagner JJ.
Reasons for
Judgment:
(paras. 1 to 77)
Concurring Reasons:
(paras. 78 to 125)
|
Fish J. (McLachlin C.J. and LeBel, Abella, Rothstein,
Cromwell, Karakatsanis and Wagner JJ. concurring)
Moldaver J.
|
R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520
Her Majesty The Queen Appellant
v.
Christopher Baldree Respondent
and
Attorney General of Ontario Intervener
Indexed as: R. v. Baldree
2013 SCC 35
File No.: 34754.
2012: November 7; 2013: June 19.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein,
Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for ontario
Criminal law — Evidence — Admissibility —
Hearsay — Drug purchase call — Implied Assertions — Implied assertion tendered
for the truth of its contents — Applicability of hearsay rule — Purposive approach — Principled analysis of its
necessity and reliability.
After
B was arrested, a caller telephoned B’s cell phone to arrange for a drug
delivery. A police officer answered B’s cell phone and agreed to deliver the
drugs at the price that B usually charged. The caller gave his address. No
effort was made to find and interview him and he was not called as a witness. The
trial judge concluded that the police officer’s testimony was not hearsay and
admitted the contents of the call. B was convicted of possessing marijuana and
cocaine for the purposes of trafficking. A majority of the Court of Appeal allowed
the appeal, ordered a new trial, and held that the evidence should not have
been admitted.
Held:
The appeal should be dismissed and a new trial ordered.
Per
McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Karakatsanis
and Wagner JJ.: The hearsay rule reflects the value our criminal justice
system places on live, in‑court testimony. The defining features of
hearsay are (1) the fact that the statement is adduced to prove the truth
of its contents and (2) the absence of a contemporaneous opportunity to
cross‑examine the declarant. Hearsay evidence is presumptively
inadmissible as a matter of law. The issue here is whether this exclusionary rule
applies to express hearsay only, or to implied hearsay as well. An implied
assertion tendered for the truth of its contents does not stand on a different
footing, with respect to the hearsay rule, than an explicit assertion to the
same effect. The principled reasons for their presumptive inadmissibility
apply equally to both. There is no principled reason, in determining their
admissibility, to distinguish between express and implied assertions adduced
for the truth of their content.
Hearsay
evidence is presumptively inadmissible unless it falls under a traditional exception
to the hearsay rule. If hearsay evidence does not fall under a hearsay exception,
it may still be admitted if, pursuant to the principled analysis, sufficient indicia
of reliability and necessity are established on a voir dire. Hearsay
evidence is presumptively inadmissible because of the difficulties inherent in
testing the reliability of the declarant’s assertion. The need for a
functional approach to implied assertions is readily apparent, bearing in mind
the core hearsay dangers of the declarant’s perception, memory, narration and
sincerity.
Here,
no traditional exception applies and the impugned evidence withers on a
principled analysis. This was a single drug purchase call of uncertain
reliability. No effort was made to find and interview the caller, still less
to call him as a witness — where the assertion imputed to him could have been
evaluated by the trier of fact in the light of cross‑examination and the
benefit of observing his demeanour. Although this drug purchase call does not
withstand scrutiny under the principled approach, this need not always be the
case with drug purchase calls.
Finally,
the curative proviso of s. 686(1) (b)(iii) of the Criminal Code
can have no application in this case, since it cannot be said that there is no
reasonable possibility the verdict would have been different had the telephone
call not been admitted.
Per Moldaver J.:
An implied assertion of a factual proposition is part of the “contents” of a
statement for purposes of the hearsay rule. Accordingly, the evidence of the
drug purchase call was hearsay because it was introduced to prove that B was in
fact a drug trafficker. In such cases, however, the real concern under the
principled approach is reliability and it should be the focus of the inquiry. The
necessity criterion has its purpose, but it is not meant to stifle the
admission of reliable evidence. Rather, it is founded on society’s interest in
getting at the truth. For that reason, in cases such as this one — where the
prospect of locating, identifying, and receiving accurate information from a
forthcoming and cooperative caller is remote — if the evidence is reliable, it
should be admitted because its reception into evidence will be necessary in
order to get closer to the truth. If the evidence is not reliable, it should
be excluded.
The
starting point is that a long line of cases have admitted evidence similar to
that at issue here on the basis that it was non-hearsay. Because judges are
not in the habit of admitting evidence they deem unreliable, these earlier
cases appear to rest on the conclusion that drug purchase calls are reliable
more often than not and, thus, can safely be categorized as non-hearsay. Even
where such evidence was excluded, the concern was reliability. The common
thread in these cases is that the evidence’s reliability dictated the answer
with respect to admissibility — and that is the assessment courts should focus
on.
The
majority’s analogy to an earlier decision of this Court to support its
conclusion that the police should have tried to find and interview the caller
breaks down upon scrutiny. There, the police were dealing with a known
declarant who was fully cooperative and forthcoming. Here, the declarant was
unknown. Apart from officer safety concerns, the likelihood of the police
finding the declarant would seem slim. And the prospect of the declarant being
forthcoming and cooperative, if found, would seem even slimmer. The necessity
criterion was thus met.
Although
it is perfectly consistent with the principled approach that even a single drug
purchase call may meet the threshold test for reliability, the Crown failed in
this case to establish that the call meets the test justifying its admission as
substantive evidence that B was engaged in drug trafficking. Even if the
caller was entirely sincere in his belief that B was a drug dealer, that does
not address why the caller believed what he believed — and whether his belief
was in fact true or not. This is not a case of multiple calls, where common
sense tells us that the probability of numerous callers all being mistaken is
unlikely. Nor do we have sufficient indicia of reliability, either within the
statement or in the form of confirmatory evidence outside the statement. Had
the circumstances been somewhat different, there may well have been a
satisfactory basis for evaluating whether the caller believed B was a drug
dealer and whether that belief was in fact true. That is what threshold
reliability requires.
Cases Cited
By Fish J.
Distinguished:
R. v. Ly, [1997] 3 S.C.R. 698, aff’g (1996), 193 A.R. 149; referred
to: R. v. Edwards (1994), 91 C.C.C. (3d) 123, aff’d [1996] 1 S.C.R.
128; R. v. Kearley, [1992] 2 All E.R. 345; R. v. Wilson (1996),
29 O.R. (3d) 97; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R.
v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Smith, [1992] 2
S.C.R. 915; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Mapara, 2005
SCC 23, [2005] 1 S.C.R. 358; R. v. Fialkow, [1963] 2 C.C.C. 42; R. v.
Lucia, 2010 ONCA 533 (CanLII); R. v. Cook (1978), 10 B.C.L.R. 84; R.
v. Nguyen, 2003 BCCA 556, 188 B.C.A.C. 218; R. v. Parchment, 2004
BCSC 1806 (CanLII); R. v. Williams, 2009 BCCA 284, 273 B.C.A.C. 86; R.
v. Graham, 2013 BCCA 75 (CanLII); R. v. Ramsum, 2003 ABQB 45, 329
A.R. 370; R. v. Bannon (1995), 132 A.L.R. 87; R. v. B. (K.G.),
[1993] 1 S.C.R. 740; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v.
Bevan, [1993] 2 S.C.R. 599.
By Moldaver J.
Distinguished: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; referred
to: R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. Owad
(1951), 102 C.C.C. 155; R. v. Fialkow, [1963] 2 C.C.C. 42; R. v. Cook
(1978), 46 C.C.C. (2d) 318; R. v. Edwards (1994), 19 O.R. (3d) 239; R.
v. Nguyen, 2003 BCCA 556, 188 B.C.A.C. 218; R. v. Williams, 2009
BCCA 284, 273 B.C.A.C. 86; R. v. Lucia, 2010 ONCA 533 (CanLII); R. v.
Graham, 2013 BCCA 75 (CanLII); R. v. Wilson (1996), 29 O.R. (3d) 97;
R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. U. (F.J.), [1995] 3
S.C.R. 764; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v.
Woodcock (1789), 1 Leach 500, 168 E.R. 352; R. v. Starr, 2000 SCC
40, [2000] 2 S.C.R. 144; R. v. Ly, [1997] 3 S.C.R. 698.
Statutes and Regulations Cited
Controlled Drugs and Substances Act,
S.C. 1996, c. 19, s. 5(2) .
Criminal
Code, R.S.C. 1985, c. C‑46, ss. 686(1) (b)(iii), 693(1) (a).
Criminal Justice Act 2003 (U.K.),
2003, c. 44, s. 115.
Evidence Act 1995 (Aust.), No. 2, s. 59(1).
Federal Rules of Evidence (U.S.), Rule
801.
Authors Cited
Birch, Di. “Criminal Justice Act 2003 (4) Hearsay: Same Old Story,
Same Old Song?”, [2004] Crim. L.R. 556.
Bryant, Alan W., Sidney N. Lederman and Michelle K.
Fuerst. The Law of Evidence in Canada, 3rd ed. Markham, Ont.:
LexisNexis, 2009.
Canada. Law Reform Commission. Report on Evidence.
Ottawa: Information Canada, 1975.
Dennis, I. H. The Law of Evidence, 4th ed. London:
Sweet & Maxwell, 2010.
Dufraimont, Lisa. Annotation to R. v. Baldree (2012), 92 C.R. (6th) 331.
Finman, Ted. “Implied Assertions as Hearsay: Some Criticisms of
the Uniform Rules of Evidence” (1962), 14 Stan. L. Rev. 682.
Hill, S. Casey, David M. Tanovich and Louis P. Strezos,
eds. McWilliams’ Canadian Criminal Evidence, 4th ed. Aurora, Ont.:
Canada Law Book, 2003 (loose‑leaf updated March 2012, release 22).
McCormick, Charles T. “The Borderland of Hearsay” (1930), 39 Yale
L.J. 489.
McCormick on Evidence, vol. 2, 7th
ed. by Kenneth S. Broun, General Editor. Eagan, Minn.: Thomson Reuters, 2013.
Paciocco, David M., and Lee Stuesser. The Law of Evidence,
6th ed. Toronto: Irwin Law, 2011.
Phipson on Evidence, 17th ed. by Hodge
C. Malek et al. London: Sweet & Maxwell, 2010.
Rice, Paul R. “Should Unintended Implications of Speech be
Considered Nonhearsay? The Assertive/Nonassertive Distinction Under Rule 801(a)
of the Federal Rules of Evidence” (1992), 65 Temp. L. Rev. 529.
Schiff, Stanley. “Evidence — Hearsay and the Hearsay Rule: A
Functional View” (1978), 56 Can. Bar Rev. 674.
Weinstein, Jack B. and Margaret A. Berger. Weinstein’s
Evidence: Commentary on Rules of Evidence for the United States Courts and for
State Courts, vol. 4. New York: Matthew Bender, 1983 (loose‑leaf updated August 1990, release 38).
Wigmore, John Henry. A Treatise on the Anglo-American System of Evidence in Trials at
Common Law, vol. III, 2nd ed. Boston:
Little, Brown & Co., 1923.
APPEAL
from a judgment of the Ontario Court of Appeal (Feldman, Blair and Watt JJ.A.),
2012 ONCA 138, 109 O.R. (3d) 721, 287 O.A.C. 327, 280 C.C.C. (3d) 191, 92
C.R. (6th) 331, [2012] O.J. No. 924 (QL), 2012 CarswellOnt 1741, setting
aside the accused’s conviction and ordering a new trial. Appeal dismissed.
James C. Martin
and Brian G. Puddington, for the appellant.
Michael Davies and James
Foord, for the respondent.
John S. McInnes,
for the intervener the Attorney General of Ontario.
The
judgment of McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell,
Karakatsanis and Wagner JJ. was delivered by
Fish J. —
I
[1]
An out-of-court statement by a person not called
as a witness in the proceedings is properly characterized as hearsay where it
is tendered in evidence to make proof of the truth of its contents.
[2]
It is undisputed on this appeal that hearsay
evidence is presumptively inadmissible as a matter of law.
[3]
The sole issue is whether this exclusionary rule
applies to “express hearsay” only, or to “implied hearsay” as well. As a
matter of logic and of principle, I am satisfied that it does.
[4]
In both instances, the relevance of the
out-of-court statement is not that the statement was made, but rather what
the content of the statement purports to prove. And, in both instances,
what the statement purports to prove is the truth of what the person not called
as a witness is alleged to have asserted ― expressly or by implication.
[5]
With respect to their logical relevance, there
is thus no substantive distinction between express and implied hearsay. The
principled reasons for their presumptive inadmissibility apply equally to both.
[6]
For these reasons and the reasons that follow, I
agree with the majority in the Court of Appeal that the impugned out-of-court
statement in issue here ought to have been excluded by the trial judge. It
falls within no traditional exception to the hearsay rule and lacks the indicia
of necessity and reliability that might otherwise render it admissible.
[7]
Accordingly, I would dismiss the Crown’s appeal
to this Court against the judgment of the Court of Appeal.
II
[8]
The respondent was convicted at his trial before
judge alone of possessing marijuana and cocaine for the purposes of
trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act,
S.C. 1996, c. 19 .
[9]
His appeal was allowed by a majority of the
Ontario Court of Appeal and a new trial ordered. The Crown appeals to this
Court as of right, pursuant to s. 693(1) (a) of the Criminal Code,
R.S.C. 1985, c. C-46 , on the questions of law on which the dissent of Watt J.A.
was based.
[10]
Since I agree with the Court of Appeal that a
new trial is warranted, I shall refer to the facts only to the extent necessary
to dispose of this appeal.
[11]
On May 11, 2006, Cornwall police officers
Sergeant Shawn Martelle and Constable Robert Ouellette responded to a suspected
break-in at the apartment of a certain Eric Lepage. They knocked on the door
and a man, who identified himself as Chris Baldree, allowed them in. The
officers entered and immediately detected an odour of marijuana, and discovered
marijuana “joints” and small marijuana buds in an ashtray.
[12]
In the closet of the spare bedroom, Sgt.
Martelle found an open safe containing a sandwich bag filled with 90 grams of
cocaine ― and, beside the safe, a large cardboard box with one ziplock
bag containing 511 grams of marijuana.
[13]
Mr. Baldree was arrested along with three other
people found in the apartment. The police seized from him a cellular telephone
and some cash found in his possession.
[14]
At the police station, Mr. Baldree’s phone was
ringing. Sgt. Martelle answered. At trial, he described the call as follows:
A. A
male voice on the other end of the, of the phone advised that he was at 327 Guy
Street and that he was a friend of Megan and asked for Chris. Knowing that there
were two Chris that I had just arrested, I asked, “Chris who?” the male
advised, “Baldree” and requested one ounce of weed. I then stated that I was
now running the, the show here and that Mr. Baldree was not here and I was
gonna take his . . . .
THE
COURT: All right, sorry, asked for Chris.
A. Yes,
I’m sorry Your Honour.
THE
COURT: Yes.
A. And
I questioned him, I asked him, “Chris who?” and he answered, “Baldree”.
THE
COURT: Yes.
A. He
asked for one ounce of weed. I then asked him how much Chris charges him, he
says he pays $150. I then advised him I would deliver same, 327 Guy, and that
was the end of the conversation. [A.R., vol. II, at p. 76]
The police made no effort
at all to contact the caller at the address he provided.
[15]
Counsel for the accused promptly objected to
this testimony on the ground that it was inadmissible hearsay. The trial judge
disagreed. He found the evidence to be “non-hearsay”, a convenient term I
shall adopt throughout, on the basis of R. v. Ly, [1997] 3 S.C.R. 698,
and R. v. Edwards (1994), 91 C.C.C. (3d) 123 (Ont. C.A.), aff’d on other
grounds, [1996] 1 S.C.R. 128.
[16]
In the judge’s view:
Whether these calls can be referred to
as admissible hearsay or simply statements of state of mind, the law holds that
they are admissible as circumstantial evidence to indicate a person engaged in
drug trafficking. They are not tendered in evidence for the truth of the fact
that the individual phoning is in fact the individual whom the individual
states to be or that the individual in fact will carry out the trafficking of
the drugs. As stated, it is circumstantial evidence of an individual engaged
in the trafficking of drugs. [A.R., vol. I, at pp. 22-23]
[17]
Having concluded that Sgt. Martelle’s testimony
was not hearsay, the trial judge found it unnecessary to weigh its probative
value against its prejudicial effect.
III
[18]
All three justices in the Ontario Court of
Appeal wrote separate reasons. Feldman and Blair JJ.A. allowed the appeal and
ordered a new trial; Watt J.A., dissenting, would have dismissed the appeal.
[19]
Feldman J.A. disagreed with the trial judge’s
characterization of the phone call as circumstantial evidence indicating that
Mr. Baldree was engaged in drug trafficking. On the contrary, in her view,
“admitting the contents of [the] call into evidence is admitting that evidence
for a hearsay purpose. It is the implied assertion of the caller, untested by
cross-examination, that the accused is a drug dealer” (para. 140).
[20]
Feldman J.A. found that the trial judge thus
erred by focusing “on the truth of whether the caller really wanted to purchase
drugs, which was of course irrelevant, and not on the implied assertion in the
request” (para. 144).
[21]
Citing the reasons of the majority of the House
of Lords in R. v. Kearley, [1992] 2 All E.R. 345, and the opinion of
McMurtry C.J.O. in R. v. Wilson (1996), 29 O.R. (3d) 97 (C.A.), Feldman
J.A. concluded that the hearsay analysis should not hinge on whether the
assertion is express or implied (para. 140).
[22]
She found that the telephone call was hearsay
and should not have been admitted as evidence against Mr. Baldree because it
could not withstand scrutiny under the principled approach to the hearsay
rule. Regarding necessity, the police had the caller’s address, yet made no
effort to contact him; as to reliability, there was simply no basis to test the
caller’s belief without subjecting him to cross-examination (para. 146).
[23]
Feldman J.A. also concluded that the evidence
was inadmissible because its probative value was outweighed by its prejudicial
effect (para. 147).
[24]
Feldman J.A. declined to apply the curative
proviso of s. 686(1) (b)(iii) of the Criminal Code and
therefore held that the trial judge’s error required a new trial. Particularly
in light of Crown counsel’s characterization of the drug purchase call as the
strongest piece of evidence against the accused, Feldman J.A. could not
conclude that the improper admission of Sgt. Martelle’s testimony had no effect
on the verdict (para. 149).
[25]
In separate but concurring reasons, Blair J.A.
was uncertain whether the impugned evidence constituted hearsay. In any
event, he considered it preferable “for jurists to spend less time focusing on
the characterization of evidence into ‘hearsay’ or ‘non-hearsay’ categories in
these types of close-call scenarios and to spend more effort focusing on the
principled criteria of necessity/reliability and prejudice vs. probative value”
(para. 155).
[26]
Accordingly, Blair J.A. found it unnecessary to
“cut the ‘hearsay’ Gordian knot to resolve this appeal” because the impugned
evidence failed on both an assessment of its necessity and reliability and on
weighing its probative value against its prejudicial effect (para. 156).
[27]
In his dissenting reasons, Watt J.A. agreed with
the trial judge that this Court’s decision in Ly held that evidence of a
single drug purchase call is admissible as non-hearsay (para. 73).
[28]
According to Watt J.A., a principled analysis
was unnecessary on these facts because the impugned evidence was not hearsay.
He disagreed with his colleagues that the evidence should have been excluded on
the basis that its prejudicial effect outweighed its probative value (paras.
95-98).
[29]
In the alternative, Watt J.A. was of the view
that even if the drug purchase call was improperly admitted at trial, the
conviction should nevertheless stand pursuant to the curative proviso (para.
99).
IV
[30]
The defining features of hearsay are (1) the
fact that the statement is adduced to prove the truth of its contents and (2)
the absence of a contemporaneous opportunity to cross-examine the declarant: R.
v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 56. As Justice
Charron explained in Khelawon, at para. 35, the hearsay rule
reflects the value our criminal justice system places on live, in-court testimony:
Our adversary system puts a premium on
the calling of witnesses, who testify under oath or solemn affirmation, whose
demeanour can be observed by the trier of fact, and whose testimony can be
tested by cross-examination. We regard this process as the optimal way of
testing testimonial evidence. Because hearsay evidence comes in a different
form, it raises particular concerns. The general exclusionary rule is a
recognition of the difficulty for a trier of fact to assess what weight, if
any, is to be given to a statement made by a person who has not been seen or
heard, and who has not been subject to the test of cross-examination. The fear
is that untested hearsay evidence may be afforded more weight than it
deserves.
[31]
In short, hearsay evidence is presumptively
inadmissible because of the difficulties inherent in testing the reliability of
the declarant’s assertion. Apart from the inability of the trier of fact to
assess the declarant’s demeanour in making the assertion, courts and commentators
have identified four specific concerns. They relate to the declarant’s
perception, memory, narration, and sincerity: Khelawon, at para. 2; R.
v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 159.
[32]
First, the declarant may have misperceived
the facts to which the hearsay statement relates; second, even if correctly
perceived, the relevant facts may have been wrongly remembered; third,
the declarant may have narrated the relevant facts in an unintentionally
misleading manner; and finally, the declarant may have knowingly
made a false assertion. The opportunity to fully probe these potential
sources of error arises only if the declarant is present in court and subject
to cross-examination.
[33]
Over the years, a number of common law
exceptions were recognized, based on the belief that an overly rigid
application of the exclusionary rule would impede the truth-finding process.
As J. H. Wigmore explains:
The theory of the Hearsay rule
. . . is that the many possible sources of inaccuracy and untrustworthiness
which may lie underneath the bare untested assertion of a witness can best be
brought to light and exposed, if they exist, by the test of cross-examination.
But this test or security may in a given instance be superfluous; it may be
sufficiently clear, in that instance, that the statement offered is free from
the risk of inaccuracy and untrustworthiness, so that the test of
cross-examination would be a work of supererogation. Moreover, the test may be
impossible of employment — for example, by reason of the death of the declarant
—, so that, if his testimony is to be used at all, there is a necessity for
taking it in the untested shape.
(Wigmore on
Evidence (2nd ed. 1923), vol. III, at §1420, quoted with approval in R.
v. Smith, [1992] 2 S.C.R. 915, at p. 929.)
[34]
Beginning with R. v. Khan, [1990] 2
S.C.R. 531, the Court has moved away from a set of judicially created
exceptions to the hearsay rule, and instead mandated a purposive approach,
governed by a principled framework set out this way by McLachlin C.J. in 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.
[35]
The hearsay rule, like many others, is easier to
state than to apply.
[36]
No evidence is hearsay on its face. As
mentioned at the outset, its admissibility depends on the purpose for which
it is sought to be admitted. Evidence is hearsay — and presumptively
inadmissible — if it is tendered to make proof of the truth of its contents.
V
[37]
Plainly, in this case, the Crown adduced Sgt.
Martelle’s evidence as proof of the truth of its contents. Since the declarant
was not called to testify, Sgt. Martelle’s testimony constituted hearsay and
was therefore presumptively inadmissible. Accordingly, in my view, the trial
judge erred in failing to subject the evidence to a principled analysis.
[38]
Sergeant Martelle testified, it will be
recalled, that someone claiming to be a resident of 327 Guy Street called the
cell phone which Sgt. Martelle had seized from Chris Baldree, asked for Mr.
Baldree, and requested an ounce of marijuana for the price of $150.
[39]
I agree with Feldman J.A. that the Crown did not
offer this testimony as circumstantial evidence that the respondent was engaged
in drug trafficking. Rather, the Crown asked the trier of fact to conclude,
based on Sgt. Martelle’s testimony, that the unknown caller intended to
purchase marijuana from the respondent because he believed the respondent to
be a drug dealer. The relevance of the statement thus hinges on the truth
of the declarant’s underlying belief. Any inference that can be drawn from the
statement necessarily assumes its veracity.
[40]
Had the caller stated that he wanted to buy
drugs from Mr. Baldree because Mr. Baldree sells drugs, this
would have amounted to an express assertion that Mr. Baldree is a drug dealer.
Thus framed, the caller’s assertion would doubtless have constituted hearsay.
[41]
But the caller stated instead that he was
calling because he wished to purchase drugs from Mr. Baldree. His
assertion that Mr. Baldree is a drug dealer was no less manifest in substance,
though implicit rather than explicit in form. In the Crown’s submission,
implied assertions are not caught by the hearsay rule and the telephone
conversation was presumptively admissible for that reason.
[42]
In my view, the hearsay nature of this evidence
cannot be made to depend on how the declarant framed his request. Such a
formalistic analysis disregards the purposive approach to the hearsay rule
adopted by this Court. Indeed, “it seems absurd that anything should turn on
the grammatical form of the declarant’s assertions”: L. Dufraimont, Annotation
to R. v. Baldree (2012), 92 C.R. (6th) 331, at p. 334.
[43]
There is no principled or meaningful distinction
between (a) “I am calling Mr. Baldree because I want to purchase drugs from
him” and (b) “I am calling Mr. Baldree because he sells drugs”. In either form,
this out-of-court statement is being offered for an identical purpose: to
prove the truth of the declarant’s assertion that Mr. Baldree sells drugs. No
trier of fact would need to be a grammarian in order to understand the import
of this evidence.
[44]
The need for a functional approach to implied
assertions is readily apparent, bearing in mind the core hearsay dangers of
perception, memory, narration, and sincerity.
[45]
It has been argued that the danger of lack of
sincerity is sometimes diminished for implied assertions. This is because
“[i]f a declarant possesses no intention of asserting anything, it would seem
to follow that he also possesses no intention of misrepresenting anything”: P.
R. Rice, “Should Unintended Implications of Speech be Considered Nonhearsay?
The Assertive/Nonassertive Distinction Under Rule 801(a) of the Federal Rules
of Evidence” (1992), 65 Temp. L. Rev. 529, at p. 531.
[46]
But the other hearsay dangers clearly remain
operative, and may in fact increase when an individual “states” something by
implication:
Looked at from the point of
view of the four hearsay dangers, there is a much reduced risk of lies if the
declarant did not intend to convey that which his statement is relied upon to
prove, particularly if he it [sic] was not his purpose to make a
representation of fact at all. But the other hearsay dangers remain, that is,
the risk of misperception, false memory (unless the implied assertion concerns
the declarant’s own state of mind) and ambiguity. Indeed the last danger may
be magnified. When X says: “Is Z in there?” does this imply that Z is not
with X and nothing more, or that Z is not with X and X wants Z, or Z is in
danger, or X wants to know where Z is? The upshot is that in many situations
implied assertions depend for their value on the reliability of the declarant
just as much as express assertions. [Emphasis added.]
(H. M. Malek et al.,
eds., Phipson on Evidence (17th
ed. 2010), at p. 889)
Moreover, even
insincerity remains a concern with implied assertions:
If the justification for the
assertive/nonassertive distinction is the absence of the insincerity problem,
and through that guarantee of sincerity a reduced level of perception, memory,
and ambiguity problems, this justification cannot be applied to implied
statements from speech. Speech is a mechanism of communication; it is
virtually always used for the purpose of communicating something to someone.
It is illogical to conclude that the question of sincerity is eliminated and
that the problem of unreliability is reduced for unintended implications of
speech if that speech might have been insincere in the first instance, relative
to the direct message intentionally communicated. If potential insincerity is
injected into the utterance of words that form the basis for the implied
communication, the implication from the speech is as untrustworthy as the
utterance upon which it is based. [Rice, at p. 534]
[47]
In short, “if the standard for comparing express
and implied assertions is the quantity of dangers each entails, they are
indistinguishable”: T. Finman,
“Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of
Evidence” (1962), 14 Stan. L. Rev. 682, at p.
689.
[48]
Accordingly, there is no principled reason, in
determining their admissibility, to distinguish between express and implied
assertions adduced for the truth of their contents. Both function in precisely
the same way. And the benefits of cross-examining the declarant are not
appreciably different when dealing with one form of testimony than the other.
If an out-of-court statement implicates the traditional hearsay dangers, it
constitutes hearsay and must be dealt with accordingly.
[49]
In the present matter, the trial judge and the
dissenting judge in the Court of Appeal both found that this Court had decided
otherwise in Ly. With respect, I disagree.
[50]
Ly concerned the
admissibility of a telephone conversation between a police officer who had
called a suspected “dial-a-dope” operation and the person who answered his
call. The officer had called to arrange for the purchase and delivery of
drugs. And the appellant, drugs in hand, later showed up at the agreed-upon
time and place — where he was promptly arrested and charged with possession of
drugs for the purpose of trafficking.
[51]
The trial judge characterized as hearsay, and
excluded for that reason, evidence of the police officer’s conversation with
the person who had answered his call. On an appeal by the Crown, the Alberta
Court of Appeal disagreed. It found that the impugned conversation was
admissible as “part of the narrative”, since “[i]t was impossible to understand
the development of the later events without the evidence of the telephone
conversation which preceded them” ((1996), 193 A.R. 149, at para. 3).
[52]
In brief oral reasons, this Court agreed with
the Court of Appeal that evidence of the conversation was improperly excluded
at trial. The Court noted that the conversation was tendered to explain why
the appellant appeared at the designated time and place in possession of the
drugs — and not, as in the case that concerns us here, for the truth of its
contents: Ly, at para. 3.
[53]
I see nothing in Ly to suggest — let
alone decide — that an implied assertion tendered for the truth of its contents
stands on a different footing, with respect to the hearsay rule, than an
explicit assertion to the same effect. Unlike Ly, that is the issue
here.
[54]
And the issue now comes before us for the first
time, though it has for at least half a century divided lower courts in several
provinces: see, for example, R. v. Fialkow, [1963] 2 C.C.C. 42 (Ont.
C.A.); Edwards; Wilson; R. v. Lucia, 2010 ONCA 533 (CanLII);
R. v. Cook (1978), 10 B.C.L.R. 84 (C.A.); R. v. Nguyen, 2003 BCCA
556, 188 B.C.A.C. 218; R. v. Parchment, 2004 BCSC 1806 (CanLII); R.
v. Williams, 2009 BCCA 284, 273 B.C.A.C. 86; R. v. Graham, 2013 BCCA
75 (CanLII); R. v. Ramsum, 2003 ABQB 45, 329 A.R. 370.
VI
[55]
The highest courts of England and Wales, and
Australia, have likewise concluded that the hearsay rule governs implied
assertions, only to have these decisions reversed by statute: see Kearley;
R. v. Bannon (1995), 132 A.L.R. 87 (H.C.); Criminal Justice Act 2003
(U.K.), 2003, c. 44, s. 115; Evidence Act 1995 (Aust.), No. 2, s.
59(1).
[56]
In Canada, Parliament has not found it necessary
or appropriate to adopt legislation classifying implied assertions as
non-hearsay. This is, of course, entirely understandable in view of our
principled and more flexible approach to exclusion.
[57]
As noted by Feldman J.A., the facts in Kearley,
the leading British decision, were similar to the facts in this case. In Kearley,
the police raided the home of the accused on suspicion that he was selling
drugs. Drugs were found, but in insufficient quantities to support an
inference of drug trafficking. While the police were present at the accused’s
residence, they intercepted ten telephone calls from callers asking to purchase
drugs from him. Seven people also came to the apartment seeking to buy
narcotics.
[58]
The majority of the House of Lords concluded
that the drug purchase calls and the in-person statements were inadmissible
hearsay. Because they were phrased as requests for drugs, the statements did
not directly assert but instead implied that the accused was a drug dealer.
However, whether stated expressly or impliedly, their Lordships found the
information communicated to be the same. In Lord Ackner’s words:
.
. . if the inquirer had said in the course of making his request, “I would like
my usual supply of amphetamine at the price which I paid you last week” . . ., the
hearsay rule prevents the prosecution from calling police officers to recount
the conversation which I have described. . . .
If
[however] the simple request or requests for drugs to be supplied by the appellant,
as recounted by the police, contains in substance, but only by implication, the
same assertion, then I can find neither authority nor principle to suggest that
the hearsay rule should not be equally applicable and exclude such evidence.
What is sought to be done is to use the oral assertion, even though it may be
an implied assertion, as evidence of the truth of the proposition asserted.
That the proposition is asserted by way of necessary implication rather than
expressly cannot, to my mind, make any difference. [pp. 363-64]
[59]
Two main reasons have been urged against
applying the hearsay rule to implied assertions.
[60]
First, as Watt. J.A. states (at para. 83) and as
the Crown argues, excluding implied assertions as hearsay has the potential of
broadening the exclusionary rule, given that “[v]irtually every human action is
based on some set of assumptions implicitly accepted and, on this approach,
‘asserted’ by the actor” (A.F., at para. 62, quoting McWilliams’ Canadian
Criminal Evidence (4th ed. (loose-leaf)), at p. 7-21).
[61]
Second, as critics of Kearley have
pointed out, applying the hearsay rule to implied assertions such as drug
purchase calls has the potential to deprive the trier of fact of reliable
evidence and thereby impede the truth-finding process: see, for example, D.
Birch, “Criminal Justice Act 2003 (4) Hearsay: Same Old Story, Same Old
Song?”, [2004] Crim. L.R. 556, at pp. 564-65.
[62]
The short answer to the first argument is that
we are not concerned on this appeal with the application of the hearsay rule to
assertions implied through non-verbal conduct. Our concern, rather, is with a
quintessentially verbal statement.
[63]
The issue of the applicability of the hearsay
rule to inferences that can be drawn from non-verbal conduct is best left for
another day. For present purposes, I find it sufficient to say that “one can
engage in conduct without ever intending to communicate anything to anyone
[but] the same is not true of speech or a combination of speech and conduct
(for example, placing a bet) because the sole purpose of speech is
communication”: Rice, at p. 536 (emphasis in original).
[64]
The second concern mentioned above is greatly
attenuated, I again emphasize, by Canada’s principled approach to hearsay.
[65]
In Kearley, having found the evidence in
that case to be hearsay, it was automatically excluded because it did not fall
within a traditional exception to the hearsay rule.
[66]
The Canadian approach suffers from no such
inflexibility. Under our law, hearsay evidence that is not admissible under a
traditional exception may nonetheless be admitted pursuant to a principled
analysis of its necessity and reliability. This “sensible scheme” recognizes
that “some implied assertions, like some express assertions, will be highly
reliable even in the absence of cross-examination”: Finman, at p. 693.
Pursuant to its terms, implied assertions that are necessary and reliable may
be admitted while those that are unreliable or unnecessary will be excluded.
VII
[67]
On the facts of this case, no traditional exception
applies and the impugned evidence withers on a principled analysis. It
satisfies neither the requirement of necessity nor the requirement of
reliability.
[68]
In Khelawon, necessity was conceded.
Justice Charron nonetheless took care to note that
in an appropriate case, the court in
deciding the question of necessity may well question whether the proponent of
the evidence made all reasonable efforts to secure the evidence of the
declarant in a manner that also preserves the rights of the other party.
[para. 104]
This is the kind of “appropriate
case” contemplated by Khelawon. And the answer is that the police made
no effort at all to secure the evidence of the declarant: they never sought
to interview or even find him, though he gave them his address.
Moreover, there was no explanation offered as to why no efforts were made to
locate the declarant.
[69]
Nor is the single telephone call in this case
sufficiently reliable. As Feldman J.A. found in the court below, “[t]here was
no basis to say that the caller’s belief was reliable without testing the basis
for that belief by cross-examination” (para. 146). Indeed, this is not a
situation “in which it can be easily seen that such a required test [i.e.,
cross-examination] would add little as a security, because its purposes had
been already substantially accomplished”: Khelawon, at para. 62,
quoting Wigmore on Evidence, at §1420.
[70]
In concluding as I have, I take care not to be
understood to have proposed a categorical rule for drug purchase calls.
Although the call at issue here does not withstand scrutiny under the
principled approach, this need not always be the case.
[71]
For example, where the police intercept not one
but several drug purchase calls, the quantity of the calls might well suffice
in some circumstances to establish reliability — indeed, while “[o]ne or two
might [be] mistaken, or might even have conspired to frame the defendant as a
dealer”, it would “def[y] belief that all the callers had made the same error
or were all party to the same conspiracy”: I. H. Dennis, The Law of Evidence
(4th ed. 2010), at p. 708.
[72]
Moreover, the number of callers could also
inform necessity. The Crown cannot be expected, where there are numerous
declarants, to locate and convince most or all to testify at trial, even in the
unlikely event that they have supplied their addresses — as in this case. And
it is important to remember that the criteria of necessity and reliability work
in tandem: if the reliability of the evidence is sufficiently established, the
necessity requirement can be relaxed: see Khelawon, at para. 86, citing
R. v. B. (K.G.), [1993] 1 S.C.R. 740, and R. v. U. (F.J.), [1995]
3 S.C.R. 764.
[73]
Here, we are presented with a single drug
purchase call of uncertain reliability. The caller gave his address. No
effort was made to find and interview him, still less to call him as a witness
— where the assertion imputed to him could have been evaluated by the trier of
fact in the light of cross-examination and the benefit of observing his
demeanour.
VIII
[74]
Manifestly, the curative proviso of s. 686(1) (b)(iii)
of the Criminal Code can have no application in this case, since it
cannot be said that there is no reasonable possibility that the verdict would
have been different had the impugned telephone call not been admitted: R.
v. Bevan, [1993] 2 S.C.R. 599, at p. 617.
[75]
Indeed, in summing up, Crown counsel described
the impugned telephone call as the strongest piece of evidence in the case
(A.R., vol. IV, at p. 127). In counsel’s words, “the cell phone call placing
the order seals the story as far as I’m concerned” (p. 138). Moreover, the
trial judge referred to the phone call in his reasons for judgment and took it
into account when assessing Mr. Baldree’s credibility (A.R., vol. I, at p.
29).
[76]
In this light, it can hardly be stated that the
improper admission of this evidence could not have affected the result at trial.
IX
[77]
For all of these reasons, I would dismiss this
appeal, affirm the judgment of the Court of Appeal, set aside the respondent’s
conviction, and order a new trial.
The
following are the reasons delivered by
Moldaver J. —
I. Overview
[78]
I join my colleague Fish J. in rejecting this
drug purchase call under the principled approach to hearsay, and I agree in
the main with his opinion. In particular, I agree that an implied assertion of
a factual proposition is part of the “contents” of a statement for purposes of
the hearsay rule. Indeed, while the parties disagree, the intervener Attorney
General of Ontario advances that very view.
[79]
I write separately, however, to underscore my
reservations with Part VII of my colleague’s reasons, which deal with the
criteria of necessity and reliability under the principled approach. In
particular, I am concerned by my colleague’s approach to necessity. That
criterion has its purpose, but we ought not to approach it as a box that must
invariably be checked off before drug purchase calls like this one can be
admitted. In such cases, the real concern is reliability — and that, in my
respectful view, should be the focus of our inquiry.
[80]
The starting point is the recognition that we
are today characterizing as hearsay — and thus presumptively inadmissible —
evidence which has long been received by the courts as circumstantial
evidence. It is not a step to be undertaken lightly. Nonetheless, I believe
it is the right one. As my colleague observes, the characterization of a particular
piece of evidence as hearsay should not hinge on the declarant’s particular
choice of words (paras. 42-43). Rather, the focus should be on the existence
(or non-existence) of the hearsay dangers having regard to the purpose for
which the out-of-court statement is being tendered.
[81]
Thus, I agree that judges must satisfy
themselves of the reliability of drug purchase calls on a case-by-case basis.
If the evidence is reliable, it should be admitted because its reception
will be necessary in order to get closer to the truth. If it is not
reliable, the evidence should stay out. The only difference between yesterday
and today should be that in characterizing implied assertions as hearsay, we
avoid the thorny debate about what the declarant did or did not intend to
assert and, instead, put the focus on what truly matters in cases such as this
one: “. . . whether the evidence is sufficiently reliable to warrant its
reception” (A. W. Bryant, S. N. Lederman and M. K. Fuerst, The Law
of Evidence in Canada (3rd ed. 2009), at p. 244).
[82]
Here, for reasons I will explain, this call
cannot be said to be sufficiently reliable. Accordingly, I agree that it
should have been excluded.
II. Analysis
A. The Concern Is Threshold Reliability
[83]
It is important to set the stage for the
following discussion by clarifying what is actually at issue. Here, I am
speaking only of threshold reliability, not ultimate
reliability. At this point, a court is concerned only with whether the call
exhibits sufficient indicia of reliability so as to afford the trier of fact “a
satisfactory basis for evaluating the truth of the statement” (R. v. Hawkins,
[1996] 3 S.C.R. 1043, at para. 75). Threshold reliability exists because of a
“fear . . . that untested hearsay evidence may be afforded more weight than it
deserves” (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para.
35).
[84]
But once threshold reliability is established,
ultimate reliability — including what weight, if any, to attach to the evidence
— is a matter for the trier of fact. As Charron J. observed in Khelawon, at para. 50:
Whether the hearsay statement will or
will not be ultimately relied upon in deciding the issues in the case is a
matter for the trier of fact to determine at the conclusion of the trial based
on a consideration of the statement in the context of the entirety of the
evidence.
B. The Historical Treatment of Drug Purchase Calls
[85]
As Watt J.A. observed in his dissenting reasons
at the Court of Appeal, the question about drug purchase calls — in particular,
whether they may contain an implied assertion — “has played little or no role”
in the jurisprudence to date (2012 ONCA 138, 109 O.R. (3d) 721, at para. 53).
Nonetheless, as my colleague Fish J. points out, a long line of cases have
admitted evidence similar to the evidence under consideration here on the basis
that it was non-hearsay (para. 54). See, e.g., R. v. Owad (1951), 102
C.C.C. 155 (Ont. C.A.); R. v. Fialkow, [1963] 2 C.C.C. 42 (Ont. C.A.); R.
v. Cook (1978), 46 C.C.C. (2d) 318 (B.C.C.A.); R. v. Edwards (1994),
19 O.R. (3d) 239 (C.A.); R. v. Nguyen, 2003 BCCA 556, 188 B.C.A.C. 218; R.
v. Williams, 2009 BCCA 284, 273 B.C.A.C. 86; R. v. Lucia, 2010 ONCA
533 (CanLII); R. v. Graham, 2013 BCCA 75 (CanLII).
[86]
These decisions give me pause. Can we have been
wrong for so long?
[87]
Because I think it safe to conclude that judges
are not in the habit of admitting evidence they deem unreliable, I am led to
believe that these earlier cases rest on the conclusion — often unstated, but
sometimes explicit — that drug purchase calls are inherently reliable. It may
be that these decisions reflect an implicit judicial consensus, emerging from
multiple decisions over multiple decades, that because such evidence is
reliable more often than not, it can safely be categorized as non-hearsay.
Feldman J.A. made a similar point in her reasons (para. 131).
[88]
The case of Edwards offers a helpful
example of an explicit conclusion as to the reliability of these calls. In
that case, the issue was whether “a number of calls [to the accused’s phone]
from people ordering small amounts of crack cocaine” were admissible to prove
the accused was a drug dealer (p. 243). Although McKinlay J.A. concluded that
the evidence was not being introduced to prove the truth of its contents and
thus was not hearsay, in the alternative, she held that the evidence was
admissible under the principled approach:
In my view, the evidence in issue
fulfils these criteria. It was necessary to prove the nature of the appellant’s
drug activities, and they could not have been proven in this case in any other
way that was available to the police. They did not know the identity of the
callers, and, in any event, it is unlikely the callers would have testified if
their identity had been known. The evidence is reliable, because it was made
under circumstances which negate the possibility that the requests were
spurious ones. The callers were led to believe that the persons to whom they
were speaking (the police) were speaking on behalf of the appellant.
[Emphasis added; p. 249.]
[89]
To the extent the other cases reflect McKinlay
J.A.’s view about the reliability of such calls, they align with explicit
conclusions to the same effect made by regulation or statute in other
jurisdictions. See, e.g., Federal Rules of Evidence (U.S.), Rule 801; Criminal
Justice Act 2003 (U.K.), 2003, c. 44, s. 115. As one leading treatise on
the U.S. Federal Rules of Evidence observed in explaining the Rules’
blanket exclusion of implied assertions from the definition of hearsay:
. . . when a person acts in a
way consistent with a belief but without intending by his act to communicate
that belief, one of the principal reasons for the hearsay rule — to
exclude declarations whose veracity cannot be tested by cross-examination —
does not apply, because the declarant’s sincerity is not then involved.
[Emphasis added.]
(J. B.
Weinstein and M. A. Berger, Weinstein’s Evidence: Commentary on Rules of
Evidence for the United States Courts and for State Courts (loose-leaf),
vol. 4, at § 801(a)(01))
See also McCormick on
Evidence (7th ed. 2013), vol. 2 (arguing the Rule 801 definition is “a
compromise between theory and the need for a relatively simple and workable
definition in situations where hearsay dangers are generally reduced”, at pp.
208-9); I. H. Dennis, The Law of Evidence (4th ed. 2010) (arguing that
because “hearsay dangers are often significantly reduced in cases of implied
assertions, there is no compelling systemic reason for applying the hearsay
rule to them”, at p. 710).
[90]
Indeed, the Law Reform Commission of Canada’s
proposed Evidence Code of 1975 proceeded on the same basis. Its
definition of hearsay thus excluded implied assertions, whether verbal or
non-verbal. See Evidence Code, s. 27(2)(b) in Report on
Evidence (1975). The commissioners — including Antonio Lamer, who would go
on to become a principal architect of the principled approach to hearsay —
concluded:
Under the definition, . . . a person’s
words or conduct are not hearsay if he did not intend them to be assertive. In
assessing the reliability of such evidence account may have to be taken of the
dangers of hearsay evidence. . . . [U]nlike conscious assertions, a person
is seldom likely to be deliberately misleading when he engaged in non-assertive
activity, which is the most important danger associated with hearsay. In
defining hearsay to exclude non-assertive conduct the Code follows the better
view of the present law. [Emphasis added; p. 69.]
[91]
The above reasoning, however, suffers from one
important drawback. That is because when we speak about hearsay in a case such
as this one, a distinction must be drawn between the fact that something
is true and the declarant’s belief that it is true. As Professor
McCormick observed:
It is only where the statement
is offered as the basis for the inferences, first, that the declarant believed
it, and, second, that the facts were in accordance with his belief, that the
evidence is hearsay. [Emphasis in original.]
(C. T.
McCormick, “The Borderland of Hearsay” (1930), 39 Yale L.J. 489, at p. 490)
[92]
Our concerns with respect to the reliability of
the hearsay statement are thus two-fold. First, there is the concern that the
declarant may not believe what she is saying and thus may be consciously
lying (the sincerity hearsay danger). Second, even though she may believe what
she says, she may be mistaken about the facts of what she is saying (the
perception, memory, and narration dangers). As some scholars have observed, it
is this second concern that has at times been overlooked. See, e.g., S.
Schiff, “Evidence — Hearsay and the Hearsay Rule: A Functional View” (1978), 56
Can. Bar Rev. 674, at p. 683, fn. 33 (criticizing the Evidence Code
definition for “ignor[ing] every reason for the hearsay rule except the danger
that the declarant may have been insincere”).
[93]
It seems to me that this second ground of
concern is what led to the decision in R. v. Wilson (1996), 29 O.R. (3d)
97 (C.A.). In that case, the Crown sought to tender evidence that while the
police were at the accused’s home, “a man came to the door asking for ‘Rob’ and
seeking to buy drugs” (p. 104). The accused’s name was Robert Wilson. The
trial judge admitted the evidence on the strength of Edwards, but the
Court of Appeal reversed. McMurtry C.J.O. reasoned that it was “dangerous” and
“unsafe” to draw an inference that the accused was a drug dealer from a single
visit (pp. 104-5).
[94]
Significantly, however, McMurtry C.J.O. was
untroubled by the result in Edwards. In his view, the evidence of “ten
separate calls” in that case permitted an “irresistible inference” about
the nature of that accused’s activities (p. 104). Thus, while it is possible
that one individual could be mistaken in believing that the person he called (or
called on) was a drug dealer, one would be hard-pressed to conclude that ten
such people could all be mistaken. See D. M. Paciocco and L.
Stuesser, The Law of Evidence (6th ed. 2011), at pp. 111-12; Dennis, at
pp. 707-9.
[95]
In other words, the distinction between Edwards
and Wilson is that the evidence in one case was judged to be reliable
and the evidence in the other was not. It was that assessment that dictated
the answer with respect to admissibility — and that, as I see it, is the
assessment we should be focusing on.
C. What Is the Role of
Necessity?
[96]
I turn then to the question of necessity. It bears recalling
that “the central reason for the presumptive exclusion
of hearsay statements is the general inability to test their reliability” (Khelawon,
at para. 2 (emphasis added)). That, of course, is not to suggest that we have
ousted necessity as a prerequisite to the admission of hearsay evidence. We
have not. But what we have said is that “necessity and reliability should not
be considered in isolation” because “[o]ne criterion may have an impact on the
other” (para. 77). Indeed, we have recognized that “[i]n the interest of
seeking the truth, the very high reliability of [a] statement [can render]
its substantive admission necessary” (para. 86 (emphasis added), citing R.
v. B. (K.G.), [1993] 1 S.C.R. 740, and R. v. U. (F.J.),
[1995] 3 S.C.R. 764). That is the principle I would apply here.
[97]
My colleague, however, sees a broader role for
necessity in cases such as this one. He quotes Charron J. in Khelawon,
at para. 104, for the proposition that “in an appropriate case, the
court in deciding the question of necessity may well question whether the
proponent of the evidence made all reasonable efforts to secure the
evidence of the declarant in a manner that also preserves the rights of the
other party” (emphasis added). On that basis, he concludes, at para. 68:
This is the kind of “appropriate
case” contemplated by Khelawon. And the
answer is that the police made no effort at all to secure the evidence
of the declarant: they never sought to interview or even find him, though he
gave them his address. [Italics in original; underlining added.]
[98]
With respect, I am not at all sure that this is
the kind of “appropriate case” Charron J. had in mind when she said what she
said in Khelawon.
[99]
The declarant in Khelawon was a frail
81-year-old who was living in a retirement home after having suffered a
stroke. He died before trial and thus could not be called to testify, but the
Crown sought to introduce, under the principled approach, an unsworn videotaped
statement he made to the police during the course of their investigation. It
was in that context that Charron J. observed, at para. 104:
Although Mr. Skupien was elderly and
frail at the time he made the allegations, there is no evidence that the Crown
attempted to preserve his evidence by application under ss. 709 to 714 of the Criminal
Code . He did not testify at the preliminary
hearing. The record does not disclose if he had died by that time. In making
these comments, I do not question the fact that it was necessary for the Crown
to resort to Mr. Skupien’s evidence in hearsay form. Necessity is conceded. However,
in an appropriate case, the court in deciding the question of necessity may
well question whether the proponent of the evidence made all reasonable efforts
to secure the evidence of the declarant in a manner that also preserves the
rights of the other party. That issue is not raised here. [Emphasis added.]
[100]
It seems to me that Charron J. was making the
point that even though the police should reasonably have anticipated that the
declarant might not be able to attend the trial — “Mr. Skupien was elderly and
frail” — they did nothing to secure his evidence in a better form even though
they knew he was likely to be cooperative and forthcoming. As Charron J.
noted, ss. 709 to 714 of the Criminal Code “expressly contemplate
this eventuality and provide a procedure for the taking of the evidence
before a commissioner in the presence of the accused or his counsel thereby
preserving both the evidence and the rights of the accused” (para. 7 (emphasis
added)).
[101]
The facts in Khelawon are thus a far cry
from the facts in the case at hand — and because of that, care should be taken
before we start accepting that a perfectly reasonable request of the police in
one set of circumstances will necessarily translate into an equally reasonable
request in other circumstances.
[102]
And that, in my respectful view, is where the
analogy to Khelawon breaks down. In Khelawon, the police were
dealing with a known declarant who was fully cooperative and forthcoming.
Here, the declarant was unknown and even if the police had been able to find
him — a big “if” — there is no reason to believe that he would have been
forthcoming and cooperative. Indeed, the opposite is more likely to be true.
[103]
With that in mind, it bears recalling that, as
Charron J. herself observed shortly after Khelawon, the test for
necessity is not whether the hearsay statement is the best form of the evidence
(for that will always be live testimony), but whether it is the “best available
form” in the circumstances (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R.
517, at para. 79 (emphasis added)).
[104]
The question that arises then is: Should we be
requiring the police, in the name of necessity, to track down unknown and often
unknowable declarants, who are unlikely to be found and unlikely to be
forthcoming and cooperative in the event they are found?
[105]
The answer, I believe, is found in Edwards,
where McKinlay J.A. observed:
[The police] did not know the identity
of the callers, and, in any event, it is unlikely the callers would have
testified if their identity had been known. [p. 249]
In my respectful view,
McKinlay J.A.’s logic remains sound, even on the facts here.
[106]
Although it is true the police in this case had
the benefit of the caller’s address, the caller’s identity was still unknown.
Surely, the police were not going to show up at 327 Guy St. and ask who there
was looking to buy drugs from Chris Baldree. Apart from officer safety
concerns, the likelihood of the police finding the declarant would seem slim.
And the prospect of the declarant being forthcoming and cooperative, if found,
would seem even slimmer. An undercover drug buy would be even more
problematic, given the number of officers who would be needed to see it through
and the obvious risks to the officer safety inherent in such an operation.
[107]
Under either option, the game would hardly be
worth the candle. And that, in my view, provides a full answer to the concern
that the police offered no explanation as to why they made no efforts to locate
the declarant. With respect, no explanation was necessary — common sense
provides one. If there is little chance of finding the declarant, and little
chance that, if found, he or she will be forthcoming and provide the police
with evidence in a better form than the call itself (such as a B. (K.G.)
statement or testimony in court), the necessity criterion will have been met.
[108]
Equally problematic is the suggestion by my
colleague that even where there are multiple callers, the police could
be expected to go out and seek to persuade at least some of them to
testify (para. 72). With respect, absent evidence of collusion, I see that as
being wasteful. It amounts to little more than tipping our hat to necessity
for necessity’s sake. That has not been, and should not be, what the test for
necessity requires.
[109]
At bottom, the point is that the necessity
criterion is not meant to stifle the admission of reliable evidence. Rather,
it is “founded on society’s interest in getting at the truth” (Khelawon,
at para. 49). Necessity should be viewed as a servant of the truth, not its
master. For that reason, in cases such as this one — where the prospect of
locating, identifying, and receiving accurate information from a forthcoming
and cooperative caller is remote — if the evidence is reliable, it should be
admitted because its reception into evidence will be necessary in order to get
closer to the truth. If the evidence is not reliable, it should be excluded.
Either way, in my view, the focus should be reliability.
D. Was This Call Reliable?
[110]
The reliability of a particular hearsay
statement can be tested by looking at, among other things, the circumstances in
which the statement came about. One may look for indicia of reliability within
the four corners of the statement. The law also provides that indicia of
reliability may be found outside the statement in the form of confirmatory
evidence (Khelawon, at para. 100).
[111]
The Crown maintains that this call was
sufficiently reliable to warrant its reception. In particular, the Crown
relies on the absence of any evidence that “the caller was motivated by
anything other than a desire to purchase drugs” and the argument that the
“spontaneity of the conversation was made under circumstances where an
intentional lie was remote” (A.F., at para. 82).
[112]
This argument has something to it. As I
indicated above, there is good reason to believe that the sincerity hearsay
danger is reduced in cases such as this one. That said, Mr. Baldree argues
that the circumstances in which this call came about are sufficient to warrant
concern that this call may have been “made to throw suspicion” on him (R.F., at
para. 85).
[113]
As the record reveals, there was initially some
uncertainty about the respective roles of Mr. Baldree and the other Chris in
this case, Christopher Anderson, as to the drugs found in the apartment. Sgt.
Martelle testified that Mr. Anderson was known to be “deal[ing] in . . . those
types of drugs” (A.R., vol. II, at p. 106). He was apparently a man of some
repute, known “on the streets” as “the Mexican” (p. 59).
[114]
On its own, Mr. Baldree’s argument is
insufficient to impugn the reliability of this call. He has not suggested, for
example, how Mr. Anderson or anyone else could have arranged for a fabricated
call when the police seized all cell phones at the time of the arrests and no
persons were released by the police until after the call was received.
Had either of Mr. Anderson’s two associates been released by the police before
the call was received on Mr. Baldree’s phone, it would have been a
different matter. But those are not our facts.
[115]
I caution thus against inferring suspicious
circumstances in these types of cases absent any evidence suggesting as much.
If that were our approach, many of our time-tested hearsay exceptions would
unravel. To state the obvious, a dying man does not lose his ability to lie.
And yet, in the case of dying declarations, we do not indulge in speculation
about potential fabrication. Instead, the law recognizes that a motive to lie
in such circumstances is at best remote (R. v. Woodcock (1789), 1 Leach
500, 168 E.R. 352 (K.B.), at p. 353). In other words, we recognize a norm of
human behaviour for what it is — a norm.
[116]
In sum, because our rules are not designed
around theoretical possibilities but practical realities, a drug purchase call
by mere dint of being a drug purchase call should not raise suspicions of
fabrication. While the onus remains on the proponent of the evidence to
establish that the evidence is sufficiently reliable to warrant its reception,
I would suggest that “it falls to the person opposing the evidence to show
circumstances of suspicion” (R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R.
144, at para. 8, per McLachlin C.J.). Here, the record does not reveal
a sufficient basis to worry about the circumstances in which the call to Mr.
Baldree’s phone came about.
[117]
Examining the sincerity of this caller’s belief,
however, does not end the matter — and ultimately this is where the Crown’s
argument in this case falls short.
[118]
Here, the Crown sought to introduce the drug
purchase call to establish not merely that the caller believed that Mr.
Baldree was a drug trafficker (evidence of limited value to the Crown’s case),
but that Mr. Baldree was in fact a drug trafficker (evidence of
significant value). Indeed, though he characterized it as circumstantial
evidence, the trial judge here correctly recognized that the evidence was being
used to establish that Mr. Baldree was “engaged in the trafficking of
drugs” (A.R., vol. I, at p. 23 (emphasis added)). It was on the basis of that
fact that the Crown sought an inference that Mr. Baldree was in possession
of the cocaine and marijuana found in the apartment.
[119]
The problem with the Crown’s argument is that it
says little about the reliability of the assertion that Mr. Baldree is in fact
a drug trafficker. The argument is more successful with respect to the fact
that the caller intended to purchase drugs. Accordingly, the
statement would have been admissible as a statement of present intention if the
Crown had sought to introduce it for that purpose (see, e.g., R.
v. Ly, [1997] 3 S.C.R. 698). But, as Feldman J.A. observed, that is not
why the Crown sought to introduce this evidence (para. 144).
[120]
Put another way, the problem with the Crown’s
argument is that even if the caller was entirely sincere in his belief that Mr.
Baldree was a drug dealer, that does not address why the caller believed
what he believed — and whether his belief was in fact true or not.
This is not a case of multiple calls, where common sense tells us that the
probability of numerous callers all being mistaken is unlikely. Nor do we have
sufficient indicia of reliability, either within the statement or in the form
of confirmatory evidence outside the statement.
[121]
Accordingly, and absent more, it thus seems to
me a bridge too far to accept the Crown’s argument that this call meets
threshold reliability thereby justifying its admission as substantive evidence
that Mr. Baldree was engaged in drug trafficking.
E. Can a Single Call Ever Be Reliable?
[122]
Just because the single call here did not meet
the threshold test for admissibility, it does not follow that multiple calls
are required to establish as much. Indeed, it is perfectly consistent
with the principled approach that even a single drug purchase call may
meet that threshold. I will attempt to explain why using the facts of this
call as an example.
[123]
As I mentioned earlier, what is missing in this
call is some assurance that Mr. Baldree was in fact a drug dealer.
There are insufficient circumstantial guarantees of trustworthiness within the
call itself and little or no external confirmatory evidence. However, if the
caller had declined the offer of delivery and instead asked “if I can drop by
Eric’s apartment to pick up the drugs”, that may have been sufficient because
it would have indicated greater familiarity with Mr. Baldree and his
activities, including contemporary knowledge of his recent move to Mr. Lepage’s
apartment. A debt list at Mr. Lepage’s apartment with Mr. Baldree’s
fingerprints on it may also have done the trick because it would have served as
confirmatory evidence of Mr. Baldree’s involvement in drug trafficking. One
can imagine other scenarios.
[124]
My point is simply that had the circumstances
been somewhat different, there may well have been a satisfactory basis for
evaluating whether the caller believed Mr. Baldree was a drug dealer and
whether that belief was in fact true. That is what threshold
reliability requires. Setting aside the facts of this case, we do not know
what the circumstances of some future call might be. I would thus caution against
the notion that only multiple calls can be reliable.
III. Conclusion
[125]
Subject to these comments, I join the reasons of
my colleague. Accordingly, I would dismiss the appeal.
Appeal
dismissed.
Solicitor
for the appellant: Public Prosecution Service of Canada, Brampton.
Solicitors
for the respondent: Foord Davies, Ottawa.
Solicitor for the
intervener: Attorney General of Ontario, Toronto.