4. Implied Statements

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 108-112

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An out-of-court statement may be verbal, written, or implied. An "implied statement" is any assertion that is not expressed by language, but

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rather is revealed through action. The nod of the head or the pointing of a finger speak loudly and are intended to communicate a message. These are assertions by conduct and are treated the same as a spoken or written statement.¹²For example, in R. v. Perciballi the Crown wanted to prove that a co-accused had made a 911 call from a doughnut shop.¹³The intent of the call was to divert the police from the scene of an armoured car robbery. The Crown called a witness, who had earlier taken the police to the donut shop and pointed to two phones where he had seen the co-accused make a phone call the night of the robbery. At trial the witness denied pointing anything out to the police. The Crown then called a police officer who testified as to the witness’s act of pointing. The Ontario Court of Appeal agreed that this pointing amounted to an assertion by conduct.

A more difficult question, and one where there is no unanimity, concerns "implied statements" that are not intended to be communicative. Sometimes a person’s belief in a state of facts is apparent from his conduct, even though he does not consciously wish to communicate that belief. In such cases it can be said that the existence of that state of fact is an "implied statement" inherent in his conduct. For example, from your office window you observe a line of cars stopped at an intersection below. You cannot see the traffic lights, but you then observe the cars proceed through the intersection. From this you conclude that the light has turned green. In coming to this conclusion you are drawing a common-sense inference from the conduct of the drivers in moving their cars. But break that common-sense inference down. You are effectively concluding that since people tend to move their cars into an intersection only when they know the light has turned green, the light must have turned green. What you are doing is treating the conduct of the drivers as evidencing their knowledge that the light is green, so in forming your conclusion you are relying on what they seem to know. You are treating the conduct of each driver as an implied assertion by each driver that the light is green. Now, if one of the drivers via a cell-phone was talking to you and said, "Got to go; the light just turned green," this statement would be hearsay if it was offered to prove that fact. Since the express statement is hearsay, the argument holds that the implied statement flowing from the conduct should also be hearsay.

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