R. v. Ly, [1997] 3 SCR 698

R. v. Ly, [1997] 3 S.C.R. 698

Chieu Ly                                                                                             Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as:  R. v. Ly

File No.:  25746.

1997:  October 17.

Present:  Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for alberta

Criminal law -- Evidence -- Telephone conversation -- Admissibility -- Telephone conversation not hearsay and therefore admissible.

APPEAL from a judgment of the Alberta Court of Appeal (1996), 193 A.R. 149, 135 W.A.C. 149, [1996] A.J. No. 1089 (QL), allowing the Crown’s appeal from the accused’s acquittal of possession of a narcotic for the purpose of trafficking.  Appeal dismissed.

Sid M. Tarrabain and Walter Raponi, for the appellant.

Don R. Beardall and Larry R. A. Ackerl, for the respondent.

//McLachlin J.//

The judgment of the Court was delivered orally by

1                 McLachlin J. -- This is an appeal as of right.  The only point on appeal is the admissibility of a telephone conversation between an unidentified person and a police officer, in which an unidentified person made arrangements to deliver drugs to a police officer at a certain time and place.

2                 The appellant argues that the telephone conversation was properly rejected by the trial judge because it is hearsay and does not fall within any of the exceptions to the hearsay rule.

3                 We are all of the view that the appeal should be dismissed and the Court of Appeal’s order for a new trial confirmed.  The telephone conversation was admissible.  It was a statement of intention, or a statement tendered to establish the alleged drug transaction, and hence not tendered for the truth of its contents.  Accordingly, it was not hearsay.  The telephone conversation is merely one of the circumstances which, combined with others, may suffice to establish that the appellant, when he appeared at the designated time and place, in possession of the drugs, did so for the purpose of trafficking.  Any frailties in relation to the connection between the appellant and the telephone conversation go to weight and not admissibility.

4                 The appeal is dismissed and the order for a new trial confirmed.

Judgment accordingly.

Solicitors for the appellant:  Tarrabain & Company, Edmonton.

Solicitor for the respondent:  The Attorney General of Canada, Edmonton.