R. v. Gerrior (W.A.), (2014) 348 N.S.R.(2d) 354 (CA)

• Judge: MacDonald, C.J.N.S., Beveridge and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 18, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 348 N.S.R.(2d) 354 (CA);2014 NSCA 76

R. v. Gerrior (W.A.) (2014), 348 N.S.R.(2d) 354 (CA);

    1100 A.P.R. 354

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JL.074

Walter Allan Gerrior (appellant) v. Her Majesty the Queen (respondent)

(CAC 418254; 2014 NSCA 76)

Indexed As: R. v. Gerrior (W.A.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Beveridge and Bryson, JJ.A.

July 30, 2014.

Summary:

Police arrested the accused. They seized, inter alia, a small quantity of cocaine and a cell phone found on the accused's person. Subsequent to the arrest, an officer posed as the accused and responded to incoming text messages on the cell phone. An expert opined that the text messages were about buying cocaine. The trial judge admitted the text exchanges into evidence. Based on the texts and other circumstantial evidence, the trial judge found the accused guilty of possession of cocaine for the purpose of trafficking. The accused appealed, arguing that the trial judge erred in admitting the text messages.

The Nova Scotia Court of Appeal dismissed the appeal.

Criminal Law - Topic 5383

Evidence and witnesses - Documents and reports - Telephone records (incl. text messages) - [See Evidence - Topic 1527 ].

Evidence - Topic 1507

Hearsay rule - General principles and definitions - What constitutes hearsay - Implied assertions - [See Evidence - Topic 1527 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - Police arrested Gerrior - They seized, inter alia, a small quantity of cocaine and a cell phone found on his person - Subsequent to the arrest, an officer posed as Gerrior and responded to incoming text messages on the cell phone - An expert opined that the texts were about buying cocaine - The trial judge admitted the texts into evidence - Based on the texts and other circumstantial evidence, the trial judge found Gerrior guilty of possession of cocaine for the purpose of trafficking - Gerrior appealed, arguing that the text messages were inadmissible as implied assertions that offended the hearsay rule - The Nova Scotia Court of Appeal dismissed the appeal - The texts met the threshold requirements of reliability and necessity - The evidence within the texts themselves, and the considerable body of other circumstantial evidence, including several pre-arrest texts for commerce in cocaine, all supported the reliability of the implied assertion that Gerrior trafficked in cocaine - Although the evidence about necessity could have been stronger, it was unlikely that police could have identified and located the communicators or secured their attendance at trial - The evidence was highly probative - Gerrior did not point to any prejudicial effect that might flow from their admission - See paragraphs 33 to 59.

Cases Noticed:

R. v. Baldree (C.) (2013), 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 5].

R. v. Ly (C.), [1997] 3 S.C.R. 698; 219 N.R. 237; 206 A.R. 309; 156 W.A.C. 309, refd to. [para. 30].

R. v. Graham (R.E.) (2013), 334 B.C.A.C. 108; 572 W.A.C. 108; 2013 BCCA 75, refd to. [para. 30].

R. v. Baldree (C.) (2012), 287 O.A.C. 327; 2012 ONCA 138, refd to. [para. 30].

R. v. Poulette (B.A.) (2008), 269 N.S.R.(2d) 314; 860 A.P.R. 314; 2008 NSCA 95, refd to. [para. 37].

R. v. Khelawon (R.) (2006), 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 45].

R. v. Izzard (T.A.) (2013), 332 N.S.R.(2d) 264; 1052 A.P.R. 264; 2013 NSCA 88, refd to. [para. 60].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 61].

Counsel:

Roger A. Burrill, for the appellant;

David Schermbrucker and Scott Millar, for the respondent.

This appeal was heard in Halifax, N.S., on June 18, 2014, before MacDonald, C.J.N.S., Beveridge and Bryson, JJ.A., of the Nova Scotia Court of Appeal. Beveridge, J.A., delivered the following reasons for judgment for the court on July 30, 2014.