SCC Declines to Distinguish Between Express and Implied Verbal Statements for the Purpose of Hearsay Analysis and Applies a Principled Approach to Admitting Drug Purchase Calls in R v Baldree
In May 2006, two police officers responded to a report of a possible break-and-enter. Inside an apartment they found a pound of marijuana alongside an open safe containing 90 grams of cocaine. Four people were arrested. At the station, a cellphone belonging to one of the detainees rang and was answered by a police officer. During the trial, the officer who had answered the phone testified that the caller had identified the detainee by name and had made a request to purchase marijuana. The detainee was eventually convicted of possession of cocaine and marijuana for the purpose of trafficking.
Despite defense counsel’s objection, the trial judge allowed the officer’s description of the contents of the phone call to be tendered as circumstantial evidence supporting the allegation that the accused was engaged in drug trafficking. The Ontario Court of Appeal was asked to decide whether the phone call was properly admitted as evidence (2012 ONCA 138). Feldman J.A. ruled that the evidence was inadmissible hearsay. Watt J.A., in dissent, determined that the evidence was not hearsay and upheld the conviction. Blair J.A. found that while he was uncertain whether the evidence was hearsay it should have been excluded because it was too prejudicial to warrant consideration. A new trial was ordered. Shortly thereafter, the prosecution was granted leave to appeal to the Supreme Court of Canada. In June 2013, Canada’s highest court ruled that the phone call evidence was inadmissible hearsay and should have been excluded (R v Baldree, 2013 SCC 35 [Baldree]).
WHY WAS IT IMPROPER TO ADMIT THE “DRUG PURCHASE CALL” AS EVIDENCE?
The SCC unanimously decided in Baldree that the phone call evidence was presumptively inadmissible hearsay—a statement tendered to prove the truth of its contents in the absence of a contemporaneous opportunity to cross-examine the declarant. The assertion that the accused was a drug dealer was implicit in the caller’s verbal request to purchase marijuana. Thus, the contents of a verbal assertion by an unknown third party had been tendered as true without the opportunity to test the reliability of the unknown party.
The Court rejected the argument that implied assertions should avoid the hearsay rule. The typical dangers of relying on hearsay evidence—erroneous perception or memory and unintentionally misleading or knowingly false assertions—are operative regardless of whether the assertion is part of the explicit or implicit contents of a verbal communication. While jurisdictions like England and Australia have passed legislation exempting implied assertions from the hearsay rule, Canadian courts have avoided the need for legislative intervention by adopting a more flexible “principled approach” to the exclusion of hearsay evidence. According to the principled approach, drug purchase phone calls may be admissible if they are reliable enough to mitigate the typical dangers associated with hearsay statements and if the evidence is necessary in the sense that reliance on hearsay is the only reasonable option available.
Eight of nine members of the Court found that the evidence did not meet the necessity standard because the police had failed to explain why they had declined to make any effort to discover the identity of the caller despite the officer’s testimony that the caller had supplied them with an address during the call. The entire Court agreed that while the evidence did not meet the reliability standard in this case, a drug purchase call might meet this standard in other circumstances. For instance, if a significant number of drug purchase calls were made to the same phone, a court may determine the evidence is reliable enough to warrant consideration.
1. This was a case about verbal communication
Watt J.A. raises potentially valid concerns about an overbroad application of the hearsay rule. Almost any inference from human conduct could be framed as an implied assertion. The SCC was careful to explicitly restrict the scope of its decision to verbal conduct. Non-verbal conduct might amount to an implied assertion tendered to prove the truth of a fact. But, given the scope of Baldree, it would be dangerous to assume that non-verbal conduct would be treated as hearsay, with the possible exception of head nods and other forms of explicitly communicative non-verbal conduct.
2. Hearsay analysis is contextual
Rather than defining a rule or presumption for drug purchase calls, the SCC continues to apply a “principled” approach to hearsay analysis. The concepts of necessity and reliability are tools that judges apply when determining whether the admission of evidence is consistent with the societal interests in truth-seeking and maintaining trial fairness.
3. Necessity has teeth
Baldree suggests that courts continue to place a premium on in-court testimony. The principled approach to exclusion is not an invitation to rely on hearsay evidence. Failure to make reasonable efforts to secure evidence in a manner that allows for contemporaneous cross-examination could be punished by excluding that evidence.
4. Reliability goes to the core of admissibility
The two appellate court judges who ordered a new trial found that the evidence should have been excluded as a matter of judicial gatekeeping (despite the fact that counsel for the accused failed to raise the issue). Even if the question of reliability is not raised as a hearsay issue, unreliable evidence may still be excluded because the probative value of the evidence does not exceed its prejudicial effect.