R. v. Baldree (C.), (2013) 445 N.R. 247 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 07, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 445 N.R. 247 (SCC);298 CCC (3d) 425;[2013] 2 SCR 520;JE 2013-1081;445 NR 247;2013 SCC 35

R. v. Baldree (C.) (2013), 445 N.R. 247 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2013] N.R. TBEd. JN.012

Her Majesty the Queen (appellant) v. Christopher Baldree (respondent) and Attorney General of Ontario (intervener)

(34754; 2013 SCC 35; 2013 CSC 35)

Indexed As: R. v. Baldree (C.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

June 19, 2013.

Summary:

The police arrested the accused on drug charges and seized his cell phone. A police officer answered a call made to the accused's phone. The caller wanted to buy and have delivered to a local address an ounce of "weed". Posing as the accused's successor, the officer agreed to deliver the drugs at the price the accused usually charged, but didn't make the delivery. At trial, the evidence adduced included the officer's version of the conversation with the caller. The accused was convicted. He appealed, raising issues as to the admissibility and judge's use of the officer's evidence about the call to buy drugs (i.e., hearsay issues).

The Ontario Court of Appeal, Watt, J.A., dissenting, in a decision reported 287 O.A.C. 327, allowed the appeal and ordered a new trial. The Crown appealed, arguing that implied assertions were not caught by the hearsay rule and the telephone conversation was presumptively admissible.

The Supreme Court of Canada dismissed the appeal.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The Supreme Court of Canada stated that "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 ... [T]he hearsay rule reflects the value our criminal justice system places on live, in-court testimony ... 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 ..." - See paragraphs 30 and 31.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The Supreme Court of Canada stated that "The hearsay rule, like many others, is easier to state than to apply. 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" - See paragraphs 35 and 36.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The Supreme Court of Canada, per Fish, J., stated that "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. It is undisputed on this appeal that hearsay evidence is presumptively inadmissible as a matter of law. 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. 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. 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" - See paragraphs 1 to 5.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The police arrested the accused (Baldree) on drug charges and seized his cell phone - A police officer answered a call made to the accused's phone - The caller wanted to buy drugs from the accused - The Crown argued that the implied assertion that the accused was a drug dealer was not caught by the hearsay rule and the telephone conversation was presumptively admissible - The Supreme Court of Canada, per Fish, J., stated that "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' ... 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. 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" - See paragraphs 41 to 44.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The Supreme Court of Canada stated that "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." - See paragraph 48.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The police arrested the accused on drug charges and seized his cell phone - A police officer answered a call made to the phone - The caller wanted to buy drugs from the accused - The trial judge determined that the officer's testimony respecting the conversation with the caller was not hearsay, but admissible circumstantial evidence - The accused was convicted - He appealed, raising admissibility and hearsay issues - The Ontario Court of Appeal allowed the appeal - The Crown appealed, arguing that implied assertions were not caught by the hearsay rule and the telephone conversation was presumptively admissible - The Supreme Court of Canada agreed with the Court of Appeal that the impugned evidence ought to have been excluded by the trial judge - The officer's evidence was adduced as proof of the truth of its contents - Since the declarant was not called to testify, the officer's testimony constituted hearsay and was therefore presumptively inadmissible - The trial judge erred in failing to subject the evidence to a principled analysis - It fell within no traditional exception to the hearsay rule and lacked the indicia of necessity and reliability that might otherwise render it admissible - Here no effort was made to secure the evidence of the declarant - Nor was the single telephone call in this case sufficiently reliable - The court noted that the situation might have been different had there been several drug purchase calls - See paragraphs 67 to 77.

Evidence - Topic 1507

Hearsay rule - General principles and definitions - What constitutes hearsay - Implied assertions - [See third, fourth, fifth and sixth Evidence - Topic 1504 ].

Evidence - Topic 1525

Hearsay rule - Hearsay rule exceptions and exclusions - General - The Supreme Court of Canada stated that "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 ..." - The court noted that beginning with R. v. Khan (SCC 1990), the court had moved away from a set of judicially created exceptions to the hearsay rule, and instead mandated a purposive approach, governed by the principled framework set out by McLachlin, C.J., in R. v. Mapara (SCC 2005) - See paragraphs 33 and 34.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See sixth Evidence - Topic 1504 ].

Cases Noticed:

R. v. Ly (C.), [1997] 3 S.C.R. 698; 219 N.R. 237; 206 A.R. 309; 156 W.A.C. 309, affing. (1996), 193 A.R. 149; 135 W.A.C. 149 (C.A.), refd to. [paras. 15, 119].

R. v. Edwards (C.) (1994), 73 O.A.C. 55; 91 C.C.C.(3d) 123; 19 O.R.(3d) 239 (C.A.), affd. in part [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [paras. 15, 85].

R. v. Kearley, [1992] 2 All E.R. 345; 136 N.R. 81 (H.L.), refd to. [para. 21].

R. v. Wilson (R.) (1996), 90 O.A.C. 386; 29 O.R.(3d) 97 (C.A.), refd to. [paras. 21, 93].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [paras. 30, 83].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [paras. 31, 116].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 33].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 34].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 34].

R. v. Fialkow, [1963] 2 C.C.C. 42 (Ont. C.A.), refd to. [paras. 54, 85].

R. v. Lucia (K.F.), [2010] O.A.C. Uned. 357; 2010 ONCA 533, refd to. [paras. 54, 85].

R. v. Cook (1978), 10 B.C.L.R. 84; 46 C.C.C.(2d) 318 (C.A.), refd to. [paras. 54, 85].

R. v. Nguyen (B.H.) et al. (2003), 188 B.C.A.C. 218; 308 W.A.C. 218; 2003 BCCA 556, refd to. [paras. 54, 85].

R. v. Parchment (O.C.), [2004] B.C.T.C. Uned. 840; 2004 BCSC 1806, refd to. [para. 54].

R. v. Williams (L.A.M.) (2009), 273 B.C.A.C. 86; 461 W.A.C. 86; 2009 BCCA 284, refd to. [paras. 54, 85].

R. v. Graham (R.E.) (2013), 334 B.C.A.C. 108; 572 W.A.C. 108; 2013 BCCA 75, refd to. [paras. 54, 85].

R. v. Ramsum (T.A.) et al. (2003), 329 A.R. 370; 2003 ABQB 45, refd to. [para. 54].

R. v. Bannon (1995), 132 A.L.R. 87 (Aust. H.C.), refd to. [para. 55].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [paras. 72, 96].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [paras. 72, 96].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 74].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 83].

R. v. Owad (1951), 102 C.C.C. 155 (Ont. C.A.), refd to. [para. 85].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 103].

R. v. Woodcock (1789), 1 Leach 500; 168 E.R. 352 (K.B.), refd to. [para. 115].

Authors and Works Noticed:

Birch, Di, Criminal Justice Act 2003 (IV) Hearsay: Same Old Story, Same Old Song?, [2004] Crim. L. Rev. 556, pp. 564, 565 [para. 61].

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), p. 244 [para. 81].

Canada, Law Reform Commission, Report on Evidence (1975), p. 69 [para. 90].

Dennis, Ian H., The Law of Evidence (4th Ed. 2010), pp. 707 [para. 94]; 708 [paras. 71, 94]; 709 [para. 94]; 710 [para. 89].

Dufraimont, Lisa, Annotation to R. v. Baldree, 2012 CarswellOnt 1741, generally [para. 42].

Finman, Ted, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence (1961-1962), 14 Stan. L. Rev. 682, pp. 689 [para. 47]; 693 [para. 66].

McCormick, Charles, T., The Borderland of Hearsay (1930), 39 Yale L.J. 489, p. 490 [para. 91].

McCormick on Evidence (7th Ed. 2013), vol. 2, pp. 208, 209 [para. 89].

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2012 Looseleaf Update, Release 22), p. 7-21 [para. 60].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (6th Ed. 2011), pp. 111, 112 [para. 94].

Phipson on Evidence (17th Ed. 2010), p. 889 [para. 46].

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, pp. 531 [para. 46]; 534 [para. 46]; 536 [para. 63].

Schiff, Stanley, Evidence - Hearsay and the Hearsay Rule: A Functional View (1978), 56 Can. Bar Rev. 674, p. 683, fn. 33 [para. 92].

Weinstein, Jack B., and Berger, Margaret A., Weinstein's Federal Evidence: Commentary on Rules of Evidence for the United States Courts and for State Courts (1983) (1990 Looseleaf Update, Release 38), vol. 4, § 801(a)(01) [para. 89].

Wigmore, John Henry, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (2nd Ed. 1923), vol. III, § 1420 [paras. 33, 69].

Counsel:

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.

Solicitors of Record:

Public Prosecution Service of Canada, Brampton, Ontario, for the appellant;

Foord Davies, Ottawa, Ontario, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervener.

This appeal was heard on November 7, 2012, by McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. On June 19, 2013, the court delivered the following reasons for judgment, in both official languages, which included the following opinions:

Fish, J. (McLachlin C.J.C., LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner, JJ., concurring) - see paragraphs 1 to 77;

Moldaver, J., concurring reasons - see paragraphs 78 to 125.