File Number: 34754

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

HER MAJESTY THE QUEEN

Appellant (Respondent)

-and-

CHRISTOPHER BALDREE Respondent (Appellant)

-and-

ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO

Intervener

______

FACTUM CHRISTOPHER BALDREE, RESPONDENT ______

MICHAEL DAVIES FOORD DAVIES LLP Barristers & Solicitors 200 Cooper Street, Suite 4 Ottawa, ON K2P 0G1 Tel: (613) 564-0006 Fax: (613) 564-0400 [email protected] COUNSEL AND OTTAWA AGENT FOR THE RESPONDENT

JAMES C. MARTIN BRIAN SAUNDERS BRIAN G. PUDDINGTON DIRECTOR OF PUBLIC PROSECUTIONS PUBLIC PROSECUTION SERVICE OF CANADA per: François Lacasse 1400-5251 Duke Street 284 Wellington Street, 2nd Floor Halifax, NS B3J 1P3 Ottawa, ON K1A 0H8 Tel: (902) 426-2484 Tel: (613) 957-4770 Fax: (902) 426-1351 Fax: (613) 941-7865

[email protected] [email protected]

[email protected] COUNSEL FOR THE APPELLANT OTTAWA AGENT FOR THE APPELLANT

JOHN McINNES ROBERT HOUSTON ONTARIO MINISTRY OF THE BURKE ROBERTSON ATTORNEY-GENERAL 720 Bay Street, 10th floor 441 MacLaren Street, Suite 200 Toronto, ON, M7A 2S9 Ottawa, ON, K2P 2H3 Tel: (416) 326-4594 Tel: (613) 236-9665 Fax: (416) 326-4656 Fax: (613) 235-4430 [email protected] [email protected] COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE ATTORNEY-GENERAL OF ONTARIO INTERVENER ATTORNEY-GENERAL OF ONTARIO

i

TABLE OF CONTENTS PART I – OVERVIEW AND STATEMENT OF FACTS ...... 1 1. Overview ...... 1 2. Respondent’s Summary of the Facts ...... 2 a) Circumstances leading up to the police search of Lepage’s apartment ...... 2 b) The police search of Lepage’s apartment ...... 3 c) The testimony of Eric Lepage...... 5 d) The testimony of Christopher Baldree ...... 6 e) The testimony of Trevor Butler ...... 7 f) The phone call ...... 8 g) The argument and ruling on the admissibility of the phone call at trial ...... 9 PART II – QUESTIONS IN ISSUE ...... 11 PART III – ARGUMENT ...... 12 1. Hearsay Defined ...... 12 2. The rationale for the hearsay rule/the hearsay dangers ...... 13 3. For the truth, or not for the truth; that is the question ...... 14 4. Circumstantial Evidence ...... 15 5. Implied assertions and the rule against hearsay ...... 16 6. The hearsay dangers and implied assertions ...... 16 7. Canadian Precedent ...... 17 8. Commonwealth Cases ...... 17 9. Academic Criticism ...... 19 10. R v Ly ...... 20 12. Application of the principles to the call in this case ...... 23 13. Principled Approach to Necessity and Reliability ...... 25 a. Necessity ...... 25 b. Reliability ...... 26 14. Probative value versus prejudicial effect of the call ...... 29 15. Application of Probative v. Prejudice Analysis in this Case ...... 30 16. The Curative Proviso should not be applied in this case ...... 31 PART IV: SUBMISSIONS CONCERNING COSTS ...... 33 PART V: ORDERS REQUESTED ...... 33 PART VI – TABLE OF AUTHORITIES ...... 34

1

PART I – OVERVIEW AND STATEMENT OF FACTS

1. Overview

[1] The Respondent, Christopher Baldree, was convicted, after trial, of possession of marijuana and cocaine for the purpose of trafficking. These convictions were overturned by a majority of the Court of Appeal for Ontario. A new trial was ordered. The Crown appeals to this Court as of right. [2] At issue in this appeal is the admissibility of a single telephone conversation. That conversation took place between an unknown caller and a sergeant of the Cornwall Police. The call was made to the Respondent’s cell phone. When the call was made, however, the cell phone was in the possession of the police and the Respondent was under arrest. The unknown caller asked for the Respondent and was seeking to buy some marijuana. The call was admitted at trial over defence counsel’s objections that it was hearsay. [3] The majority of the Court of Appeal for Ontario found that the admission of the call violated the rule against hearsay. The majority also found that the probative value of the call was minimal and was outweighed by its prejudicial effect. The dissent found that the call was properly admitted. [4] The Respondent submits that the majority of the Court of Appeal for Ontario was correct in reaching the following conclusions: a. The contents of the telephone call were admitted for a purpose that violated the rule against hearsay; b. As hearsay, the contents of the call were presumptively inadmissible and did not meet the criteria for admissibility under the principled exception to the hearsay rule; c. The prejudicial effect of the call outweighed its probative value; and d. The error in admitting the call cannot be saved by application of the curative proviso.

2

2. Respondent’s Summary of the Facts

[5] The Respondent accepts the facts as set out by the Appellant and also relies on the following facts. [6] In the afternoon of May 11, 2006, the police were called by the landlady to investigate a suspected break and enter at her property at 310 Eighth Street East in Cornwall. There was, in fact, no break and enter. Rather, the police found Christopher Baldree and some friends in the apartment. The leaseholder, Eric Lepage, was away at work at the time. In searching the two-bedroom apartment for potential burglars, the police came across a significant amount of cocaine and marijuana in a closet in a seemingly unoccupied bedroom. All of the occupants were arrested for “possession for the purpose”, as was Eric Lepage later that same day. At the Respondent’s trial, both he and Lepage (who was called as a Crown witness, having been charged separately, and who was still awaiting trial) denied any knowledge of the drugs. Lepage claimed that the room where the drugs were found had been rented by Baldree some days earlier, although Baldree was still sleeping on the couch and had yet to move into it. Baldree testified he had not rented the room, that he was simply an overnight guest, and that he lived with his uncle at a different address. a) Circumstances leading up to the police search of Lepage’s apartment

[7] About two weeks prior to the police attendance at the apartment, it was occupied by Eric Lepage and his cousin, Frank Billard. The landlady, Ms. Valerie Stanley, had received complaints from a neighbour indicating that marijuana was being smoked in the apartment. As a consequence, she asked Billard to leave.1 Although Lepage had also been smoking marijuana, she had known him longer and decided to let him stay. Lepage assured Ms. Stanley that he would not smoke anymore. Nevertheless, Ms. Stanley put Lepage “on probation”.2 The landlady attended the apartment block three or four times a week during this period and did not see anyone she didn’t recognize going into the apartment. She also received no information from Lepage

1 Appellant’s Record (AR), vol II, p 30, l 10 – p 31, l 8 and p 36, l 2-8. 2 AR, vol II, p 42, l 28 – p 44, l 14. 3

regarding a new roommate moving in, although he was obliged to provide this information pursuant to his lease.3 [8] On May 11, 2006 around 1:00pm, Ms. Stanley attended on her elderly mother who lived at the same building as Eric Lepage. Her mother was concerned about a black Cadillac that had been seen going in and out of the driveway all morning. It was still there when Ms. Stanley arrived, so she approached the driver who indicated he was looking for Eric’s roommate. Ms. Stanley did not believe Eric Lepage had a roommate since Billard had just been evicted and she hadn’t been told about any new person moving in.4 [9] Ms. Stanley went to the door of Lepage’s apartment and knocked. No one answered and she advised the driver of the Cadillac that no one was home. The man left. Ms. Stanley returned to the apartment building a little later to check up on it. She saw the black Cadillac parked nearby and observed that the patio door to Lepage’s apartment was open. It was closed earlier. Ms. Stanley, concerned that a break and enter may be taking place, called the police. [10] When the occupants of the apartment were subsequently led outside by police, Ms. Stanley recognized one of them, later identified as Christopher Anderson, as being the driver of the Cadillac. b) The police search of Lepage’s apartment

[11] Two Cornwall police officers, Sgt. Martelle and Cst. Ouellett, attended the apartment. Christopher Baldree answered the door. He was brushing his teeth. [12] Sgt. Martelle indicated that Baldree was cooperative, that he identified himself, and said that he was there visiting a friend. Baldree also told the police that he lived with his uncle, a police officer with the Cornwall Police, on Lochiel Street in Cornwall. He told the police that no one else was present in the apartment. Baldree then let the police in. [13] Sgt. Martelle detected an odour of freshly burned marijuana coming from the apartment when Baldree opened the door. When the officers walked into the apartment, they first came into the kitchen where they found an ashtray with some

3 AR, vol II, p 37, l 9-25 and p 44, l 24 – p 46, l 15. 4 AR, vol II, p 28, l 18 – p 30, l 9 and p 40, l 17 – p 41, l 31. 4

debris that appeared to be marijuana buds. Cst. Ouellette dealt with the buds while Sgt. Martelle searched the apartment.5 [14] The apartment was a two-bedroom unit. When police arrived, the door to the master bedroom was closed but the door to the smaller bedroom was open. When Sgt. Martelle went into the master bedroom, he found three individuals. One, Adam Peace, was on the computer. Sitting on the bed were Christopher Anderson and Karyne Sauvé.6 Peace and Sauvé were unknown to the officer. Anderson was, however, known to him from past dealings by his street name “the Mexican”.7 The officer also had some “source information that Christopher Anderson deals in…drugs”.8 The master bedroom clearly had someone living in it, as it was full of clothes and toiletries.9 [15] At this point, Sgt. Martelle went into the smaller bedroom. The only items in the room were two lazyboy chairs and a tote bag with some clothes in it. There was no bed. Nothing in the room indicated anyone was living there. There were no toiletries, no hangers, no clothes, etc. The officer didn’t look through the bag for identification.10 [16] There was a closet in the room, the door of which was closed. When the sergeant opened it, he saw a small safe on the floor. The safe was open with the key inside. Also in the safe was a Ziploc bag containing 90.3g of cocaine. Next to the safe he found a cardboard box with 511.3g of marijuana sitting inside it. With the marijuana were some Ziploc bags. Next to the safe there was also a pocket digital scale and a spoon with what appeared to be cocaine residue on it. Next to the spoon was what the officer described as a debt list. No fingerprints were found on any of these items.11 [17] All the individuals in the apartment were arrested. The sergeant searched Christopher Baldree and seized a cell phone from him.12

5 AR, vol II, p 31, l 9 – p 33, l 26 6 AR, vol II, p 49, l 14-32. 7 AR, vol II, p 52, l 30 – p 54, l 25. 8 AR, vol II, p 54, l 10 – p 55, l 10. 9 AR, vol II, p 58, l 1-10. 10 AR, vol II, p 61, l 3-13; p 113, l 4-20; p 114, l 20-29. 11 AR vol II, p 62, l 29 – p 69, l 21; p 118, l 23 – p 120, l 30. 12 AR, vol II, p 73, l 5 – p 75, l8. 5

[18] Two of the individuals arrested, Peace and Sauvé, were later released unconditionally. Baldree, Anderson, and Lepage (who was arrested later that same day) were all charged with offences in relation to the cocaine and marijuana.13 [19] Cst. Ouellette, who was with Sgt. Martelle, gave a somewhat different version of the conversation that took place when Christopher Baldree answered the door. The Constable asked him who he was and he said Chris. Cst. Ouellette then asked Baldree who lived there, and Baldree replied “a friend, Eric Lepage”. When the officer asked Baldree what he was doing, Baldree said he was staying with Eric for the rest of the month. The officer then asked if he and Sgt. Martelle could come in and Baldree allowed the officers in.14 [20] Cst. Ouellette agreed with Sgt. Martelle that there was an odour of smoked marijuana and that he found what appeared to be a small amount of marijuana on the dining room table. He flushed the marijuana down the toilet. He also went into the master bedroom where the three individuals were found and indicated that “it smelled like pot back there”.15 c) The testimony of Eric Lepage

[21] Eric Lepage testified that he had known Christopher Baldree since they were children, as they lived in the same neighborhood. In May of 2006, Lepage lived at 310 Eighth Street, Apt. 4, in Cornwall. Lepage claimed that Baldree moved in around May 5th or 6th and had been living there for about 6 or 7 days prior to his arrest.16 The reason for the move was that Baldree was having problems where he was currently living with his uncle and wanted more freedom.17 Baldree had slept there each of the 6 or 7 nights.18 [22] Lepage agreed that his former roommate and cousin, Frank Billard, had been asked to move out on May 1st. He claimed, however, that the reason for Billard’s eviction was because Billard would quickly pull in and out of the driveway late at night and

13 AR, vol II, p 99, l 17 – p 100, l 30; p 102, l 2-22. 14 AR, vol II, p 150, l 15 – p 151, l 2; p 165, l 30 – p 167, l 3. 15 AR, vol II, p 148, l 24 – p 151, l 15. 16 AR, vol II,I p 104, l 18 – p 105, l 11. 17 AR, vol III, p 123, l 4 – p 124, l 1; p 151, l 15-24. 18 AR, vol III, p 108, l 15-17. 6

would walk heavily up and down the stairs. A neighbour had complained about the noise.19 Lepage claimed he was unaware that a complaint had been made about marijuana smoking in the apartment. He claimed that neither he nor Billard had smoked drugs in the apartment.20 [23] Lepage agreed that he had failed to advise the landlady about Baldree moving in. He didn’t let her know because she was on vacation.21 [24] According to Lepage, Baldree had been sleeping on the couch. He was supposed to be bringing a bed into the apartment and was to occupy the smaller bedroom. Lepage said that the black bag found by police belonged to Baldree.22 [25] Lepage knew Christopher Anderson, Karyne Sauvé, and Adam Peace, but had not invited them over to the apartment. They had, however, been at the apartment a couple of times since Baldree had moved in.23 He also stated that he had cleaned the entire apartment after Billard moved out and before Baldree moved in.24 Lepage claimed that had no knowledge of any drugs in the smaller bedroom’s closet and that he had never engaged in the use or trafficking of cocaine or marijuana.25 [26] While testifying at Baldree’s trial, Lepage stood charged with the same offences. His trial was set for April the following year.26 d) The testimony of Christopher Baldree

[27] Christopher Baldree was 20 in May, 2006. He had grown up in and around Cornwall. His mother moved to Kingston to pursue a job opportunity when he had a year of high school remaining. He decided to stay in Cornwall for that year, living with his aunt and uncle at 1328 Lochiel Street. He stayed there for the next year or so, mostly working in grocery stores. He had no criminal record.27 [28] Baldree knew both Anderson and Peace from high school. He knew Karyne Sauvé because she had previously dated a friend of his. He only met Lepage through

19 AR, vol III, p 105, l 14 – p 106, l 16. 20 AR, vol III, p 130, l 9 – p 131, l 3. 21 AR, vol III, p 132, l 13-19. 22 AR, vol III, p 107, l 17 – p 108, l 5. 23 AR, vol III, p 120, l 2 – p 123, l 4. 24 AR, vol III, p 136, l 23 – p 138, l 12. 25 AR, vol III, p 117, l 2 – p 120, l 1. 26 AR, l III, p 124, l 9-19. 27 AR, vol III, p 159, l 6 – p 160, l 14. 7

Anderson and had no idea what Lepage meant by claiming that they had grown up in the same neighborhood.28 [29] On May 11, 2006 Baldree was present in Lepage’s apartment because he had slept over the night before, after being at a bar with Lepage. Baldree’s uncle had a rule that if he was out after 1:00am, Baldree had to spend the night elsewhere, and Baldree was abiding by that rule.29 [30] Baldree never moved in with Lepage and did not make any arrangements to do so. He did not bring any personal property or clothing into the apartment other than the clothes he was wearing. He did not see a black bag in the apartment and he did not bring one with him. He was just there that one night. He otherwise lived with his aunt and uncle on Lochiel Street. He paid them rent and enjoyed living there. He did not have any difficulties or problems with his uncle.30 [31] When the officers came to the apartment on May 11, 2006, Adam Peace, Karyne Sauvé, and Chris Anderson were also there. Baldree did not tell the officers he was alone in the apartment, nor did he tell them that he was staying there the rest of the month.31 Peace, Sauvé, and Anderson had not stayed the night. They had only been there some half an hour to 45 minutes prior to the arrival of the police. During that time, all the guys had smoked marijuana that Peace and Anderson had brought with them. Baldree had a shower just prior to the officers’ arrival to freshen up.32 [32] The drugs found in the apartment did not belong to Baldree and he was unaware of their presence. The police seized his cell phone from him upon his arrest.33 e) The testimony of Trevor Butler

[33] Trevor Butler is the Respondent’s uncle and a Cornwall police officer. Baldree moved in with him in 2004 when Baldree’s mother was transferred to work in Kingston. Baldree remained in Cornwall to finish his last year of high school.34

28 AR, vol III, p 170, l 14-30. 29 AR, vol III, p 161, l 25 – p 162, l 8. 30 AR, vol III, p 161, l 10 – p 164, l 18; p 169, l 27-30. 31 AR, vol III, p 183, l 29 – p 184, l 2. 32 AR, vol III, p 162, l 22 – p 163, l 16. 33 AR, vol III, p 165, l 16-30; p 166, l 20-21. 34 AR, vol IV, p 2, l 7 – p 3, l 10. 8

[34] As far as Butler was concerned, Baldree was living with them in May, 2006, right up to the day of his arrest. Baldree had never said anything about moving out, nor was there any sign that he had moved any belongings from the house. There were no difficulties between Baldree and the Butler family. There was an unofficial 1:00am curfew. Baldree was expected to sleep elsewhere if he didn’t make it home by that hour. Although Baldree would occasionally be gone for a day or two, he would usually advise Butler of his whereabouts. Trevor Butler could not recall whether Baldree was there the night or two before his arrest.35 f) The phone call

[35] At the station, while Sgt. Martelle was processing the property seized from the apartment, the phone taken from Christopher Baldree rang. Sgt. Martelle answered the phone:36

A. A male voice on the other end of the, of the phone advised that he was at 327 Guy Street and that he was a friend of Megan and asked for Chris. Knowing that there were two Chris that I had just arrested, I asked, “Chris who?” the male advised, “Baldree” and requested one ounce of weed. I then stated that I was now running the, the show here and that Mr. Baldree was not here and I was gonna take his….

THE COURT: All right, sorry, asked for Chris.

A. Yes, I’m sorry Your Honour.

THE COURT: Yes.

A. And I questioned him, I asked him, “Chris who?” and he answered, “Baldree”.

THE COURT: Yes.

A. He asked for one ounce of weed. I then asked him how much Chris charges him, he says he pays $150. I then advised him I would deliver same, 327 Guy, and that was the end of the conversation.

THE COURT: You said you’d taken over the business?

A. That’s correct, yes.

35 AR, vol IV, p 3, l 29 – p 6, l 5 – p 7, l 10 – p 15, l 3. 36 AR, vol II, p 76, l 12 – p 77, l 5. 9

THE COURT: Yes.

MS. LAHAIE: Q. Then what happened?

A. I just told him I would deliver and that was the end of the conversation. g) The argument and ruling on the admissibility of the phone call at trial

[36] When the Crown sought to lead evidence of the call taken by Sgt. Martelle, there was an objection from defence counsel that it was hearsay. The Crown indicated the following:

MS. LAHAIE: I’m not asking that it’d be entered for the truth of its content but just simply to demonstrate the activity on the cellular phone and not for the truth of its content in that the caller but what he was requesting, that he was actually requesting the product, but that the telephone call placing the order was made on the telephone.37

[37] The trial judge agreed to hear the evidence of the phone call, subject to later argument. During the subsequent argument on the issue, the trial judge made the following comments on why he took the view that the contents of the call were not hearsay:

…the Canadian law seems to suggest that those cell phone conversations are admissible for the fact that they were made. Not for the truth of their contents but the fact that they were made and provide circumstantial evidence of drug trafficking.38

…

It’s not admitted for the proof of the fact that your client is a drug trafficker, it’s admitted for proof of the fact, it’s a circumstance that your client might have been involved in the trafficking of drugs…that’s the basis of admissibility.39

…

What the Supreme Court of Canada is saying is that it’s not hearsay because it’s not being offered for the truth of its contents. It is a

37 AR, vol II, p 75, l 27 – p 76, l 2. 38 AR, vol II, p 142, l 20-25. 39 AR, vol II, p 143, l 20-25. 10

circumstance which, given all the other circumstances, can be used to infer that someone was drug trafficking.40

[38] During the course of his judgment, the trial judge made the following comments about the contents of the call:

While back at the station ticketing items for delivery to the property room, Sergeant Martelle testified that the cell phone belonging to Mr. Baldree rang. The person making the phone call was a male. The male stated that he was a friend of Megan’s and that he wished to purchase some marijuana. He asked for “Chris”. Sergeant Martelle, having arrested two persons by the name of Chris, namely Chris Baldree and Chris Anderson, asked “Chris who?”, the male voice said, “Chris Baldree”. Sergeant Martelle then stated that he had taken over Baldree’s business and would himself be delivering the marijuana. He asked the male caller how much he had paid for an ounce and the person said $150.00.

Earlier in this trial, I held that the evidence of the drug call was admissible evidence relying on the authorities of R. v. Ly [1997] 3 S.C.R. 698 and R. v. Edwards (1994) 91 C.C.C. (3d) 123 (Ont. C.A).

Whether these calls can be referred to as admissible hearsay or simply statements of state of mind, the law holds that they are admissible as circumstantial evidence to indicate a person engaged in drug trafficking. They are not tendered in evidence for the truth of the fact that the individual phoning is in fact the individual whom the individual states to be or that the individual in fact will carry out the trafficking of the drugs. As stated, it is circumstantial evidence of an individual engaged in the trafficking of drugs.41

…

Needless to say, I accept Sergeant Martelle’s evidence that he received a telephone call from a male person saying he was a friend of Megan’s and wished to buy an ounce of marijuana from Chris Baldree. I reject Mr. Baldree’s half-hearted assertion that this telephone call may not have occurred.42

40 AR, vol II, p 144, l 16-21. 41 Reasons for Judgment, AR, vol I, p 22, l 6 – p 23, l 7. 42 Reasons for Judgment, AR, vol I, p 31, l 24-30. 11

PART II – QUESTIONS IN ISSUE

[39] The Respondent agrees with the Appellant that the questions in this appeal are as follows: a. Did the admission of the telephone call between an unknown caller and Sgt. Martelle violate the rule against hearsay? b. If the telephone call was hearsay, and therefore presumptively inadmissible, should it nevertheless be admitted under the principled exception to the hearsay rule? c. Did the prejudicial effect of the call outweigh its probative value? d. If the call was inadmissible, should the conviction nevertheless be restored pursuant to the curative proviso? 12

PART III – ARGUMENT

1. Hearsay Defined

[40] The starting point for the law of evidence is that all relevant evidence is admissible. A significant exception to this basic premise is the rule against hearsay. The authors of The Law of Evidence in Canada note, however, that hearsay is not easy to define, but offer up the following working definition:

Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceedings in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.43

[41] Watt’s Manual of Criminal Evidence also observes that it is “nearly impossible” to make any general statement concerning the hearsay rule that is entirely accurate.44 Justice Watt goes on to lament that “we lack an authoritative and exhaustive statement of the exclusionary rule from the Supreme Court of Canada”.45 [42] Professors Paciocco and Stuesser also note the difficulty in defining hearsay and adopt this Court’s definition in Evans as the most “simple, yet most workable” definition:

Hearsay is (1) an out-of-court statement, (2) which is admitted for the truth of its contents.46

[43] Despite the difficulty in defining hearsay, the learned authors cited above agree with this Court’s holding in Khelawon that the essential 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.47

43 Alan W Bryant, Sidney N Lederman, and Michelle K Fuerst, The Law of Evidence in Canada, Third Edition (Markham: LexisNexis Canada Inc, 2009) at pp. 229-237. 44 David Watt, Watt’s Manual of Criminal Evidence (United States: Thomson Reuters, 2011) at pp.327- 328. 45 Ibid. at 327. 46 David Paciocco and Lee Stuesser, The Law of Evidence, Sixth Edition (Toronto: Irwin Law Inc, 2011) at pp. 103-112; R v Evans (1993), 24 CR (4th) 46 at 52 (SCC). 47 R v Khelawon, [2006] 2 SCR 144 at para 35. 13

2. The rationale for the hearsay rule: The hearsay dangers

[44] Hearsay is not excluded because it is irrelevant. Indeed such evidence may well be highly probative of the issues at trial. Rather, hearsay evidence is excluded because of the difficulty of testing it. Where a witness testifies in court, the trier of fact can assess the credibility and reliability of the witness directly and thereby decide what weight, if any, should be given to the testimony. Where the evidence of a witness is given indirectly, i.e., not in person but through another party, it is difficult or impossible for the trier to assess the credibility and reliability of the witness.48 The rule against hearsay therefore exists to regulate the quality of evidence received by the trier of fact. The rule also protects the adversary against the admission of evidence that he or she cannot test. The hearsay rule is designed to achieve fair trials and accurate verdicts. The rule promotes trials where evidence is given under oath, in the presence of the trier of fact, where each party has a full opportunity to test the evidence put forward by the adversary.49 As noted by Dickson J. in Abbey:

The principle justification for the exclusion of hearsay evidence is the abhorrence of the common law to proof which is unsworn and has not been subject to the trial by fire of cross-examination. Testimony under oath, and cross-examination, have been considered to be the best assurances of the truth of the statements and facts presented.50

[45] The weight to be assigned to the testimony of a witness will depend primarily on four factors: i) perception; ii) the memory of the witness; iii) the narration by the witness; and iv) the sincerity of the witness.51 [46] When the witness is present in court, these so called testimonial dangers can be tested through cross-examination. The cross-examiner will probe for errors of perception by the witness, errors of ambiguity in narration, errors caused by faulty memory, as well as insincerity and deceit. If the witness is not in court, and the evidence is introduced through a third party, it becomes difficult or impossible for

48 Ibid. paras 1-3, 34-41; Alan W Bryant et al, supra note 43, pp. 229-232; Paciocco, supra note x, pp. 103- 105; Watt, supra, note x, page 327. 49 RJ Delisle and Lisa Dufraimont, Canadian Evidence Law in a Nutshell, 3rd ed (Toronto: Carswell, 2009) pp. 87-89; Alan W Bryant, supra note x, pp. 229-231. 50 R v Abbey [1982] SCJ No 59, 2 SCR 24 at 41. 51 Delisle & Dufraimont, supra note 49 at page 87, Reasons of the Court of Appeal for Ontario, para 43, per Watt J.A. dissenting. 14

the cross-examiner to expose these testimonial dangers and, therefore, difficult or impossible for the trier of fact to assess the value of the evidence. When the witness is not present for cross-examination, these testable testimonial dangers (perception, memory, narration, and sincerity) become untestable “hearsay dangers”.52

3. For the truth, or not for the truth; that is the question

[47] Not all out of court statements are hearsay. The rule against hearsay only applies when the party seeking to have the out of court statement admitted is doing so “for the truth of its contents”. In other words, whether an out of court statement runs afoul of the hearsay rule depends upon the purpose of its admission. If that purpose depends on the truth of what the declarant said, the statement is presumptively inadmissible as hearsay. If the purpose of admitting the statement is for some other non-truth dependent purpose, then it is not hearsay and is therefore admissible, subject to other evidentiary rules. The distinction between “for the truth of its contents” and “not for the truth of its contents” is easily stated but often difficult to apply. [48] Advocates are often heard to say that a statement is not being offered for its truth “but for the fact that it was said”. In such cases, the words themselves have relevance that is independent of whether they are true or not. Common examples include situations where the words matter to show that somebody was given notice of something, or to demonstrate someone had particular knowledge, or where the uttering of the words may be a criminal offence, or give rise to civil damages53. No doubt other examples may be given. It is not always easy, however, to distinguish statements that are relevant because they were said from statements that are relevant only if they are true. Indeed Professors Delisle and Dufraimont suggest that often the attempt to get statements into evidence “because they were said” merely disguises the fact that the words are only relevant if assumed true.54

52 Delisle, supra note 49, pp. 87-88; Bryant et al, supra, note 43, pp. 231-232; CR Williams, “Implied Assertions in Criminal Cases” (2006) 4 MonashULawRw 32(1) at 49-51; Khelawon, supra note 47, paras 1-2, 34-41. 53 Bryant et al, supra note 43, pp.236 to 238, Paciocco & Stuesser, supra, note 46, pp.105 to 107. 54 Delisle & Dufraimont, supra note 49, pp. 89-90. 15

[49] The law has fallen into a somewhat technical, category-based approach to separating truth from non-truth purposes of words, much like the old technical categories of exceptions to the hearsay rule. These categories include investigative hearsay, explanation of special knowledge, state of mind, and so on. It is submitted, however, that just as there is now a principled approach to the exceptions to the hearsay rule, there ought to be a principled approach to what constitutes hearsay. In other words, there ought to be a principled or functional approach to whether the words are being used for their truth or not. [50] In difficult cases, where it is unclear whether or not the words or statements are being admitted for the truth of their contents, the following approach should be taken: The words in question should be examined by focusing on the hearsay dangers, and an inquiry should be made to determine whether there are “relevant, meaningful questions that the adversary might wish to ask of the person who made the out of court statement.”55 In other words, are there relevant, meaningful questions to be asked about the declarant’s perception, memory, narration, or sincerity? If the answer is yes, then the out of court statement is hearsay and presumptively inadmissible. This principled or functional approach to determining what is or is not hearsay is far preferable to the old fashioned, categorical approach advocated by the Appellant. Under the principled approach, the focus always remains on the fairness of the trial and the quality of the evidence. This approach helps ensure that a party is not disadvantaged by the presentation of untestable evidence put forward by the adversary.

4. Circumstantial Evidence

[51] It is sometimes claimed that an out of court statement is not hearsay but, rather, is circumstantial evidence of a matter in issue.56 There is, however, no principled basis upon which to distinguish direct and circumstantial evidence when it comes to hearsay analysis. The out of court statement, whether it amounts to direct or circumstantial evidence, should be subject to the same hearsay analysis. In other

55 Delisle & Dufraimont, supra note 49 at 90-92. 56 e.g. R v Lucia, [2010] OJ No 3154 (OCA) at para 7. 16

words, the out of court statement should be scrutinized to determine whether it is being used for the truth of its contents or not.

5. Implied assertions and the rule against hearsay

[52] Implied assertions are statements “that imply (but do not explicitly assert) the proposition that the proponent wishes the fact finder to draw from the evidence”.57 There is no issue that an assertion that “Mr. X is a drug dealer” or “Mr. X has access to drugs” is subject to the rule against hearsay. A question that arises on this appeal is whether a statement that asserts something else but contains within it the implication that “Mr. X is a drug dealer” is also subject to the hearsay rule.

6. The hearsay dangers and implied assertions

[53] It is submitted that the hearsay dangers are present with implied assertions. The dangers of faulty perception and deficient memory exist to exactly the same extent in implied assertions as they do in express assertions.58 While the danger of insincerity may play a lesser role in implied assertions, it remains a significant concern. Lying by implication is not impossible. On the other hand, errors associated with narration are heightened in the context of implied assertions:

Further, in cases of implied assertions, the danger of ambiguity on the part of the declarant is far greater than in cases of express assertions. First, it must be determined that the statement is in fact an implied assertion, i.e. that the declarant was not intending to make an assertion about the matter in issue. This may be unclear from the statement itself. Second, an inference must be drawn from the statement that the declarant believed some fact to be true. Since by definition the declarant is not making an express statement about the matter in issue, the statement is inevitably to some extent, and very often to a very considerable extent, ambiguous in respect of the matter it is being tendered to prove.59

57 Richard B Kuhns, “Implied Assertions on the Hearsay Rule: A Functional View” (1995) 16 Miss CL Rev 139 at 141. 58 Decision of the Court of Appeal for Ontario, para 82 per Watt JA dissenting 59 CR Williams, supra note 52 at 55, see also decision of the Court of Appeal for Ontario, para 82, per Watt JA dissenting. 17

[54] Since the hearsay dangers exist with implied assertions, the rule against hearsay should also apply.60 Indeed, the creation of a special pigeon-hole in order to exclude implied assertions from the hearsay analysis would be a huge step backwards. It would lead to trial judges conducting a grammatical analysis of an utterance (i.e. Is the utterance a statement? Are the assertions implicit or explicit?) instead of conducting a principled, legal analysis into the presence or absence of the hearsay dangers.61

7. Canadian Precedent

[55] Despite the Appellant’s claim of a near unanimous rejection of the concept of implied assertions in Canadian law, there are several examples where the concept has been accepted.62 Moreover, as Watt JA points out, the role of implied assertions is “not free from difficulty.” The case law in this area has not involved a “principled analysis” of the relationship between implied assertions and hearsay and the cases “do not achieve even the most modest level of consistency or clarity”.63

8. Commonwealth Cases

[56] The application of the hearsay rule to implied assertions finds support in the highest court sof England and Wales64, Australia65, and New Zealand66, although statutes have since reversed these decisions. [57] In Kearley, the House of Lords considered a case where police were conducting a search of a suspected drug dealer’s flat. Drugs were found but not in sufficient quantities to raise the matter from a simple possession to possession for the purpose of trafficking. While police were searching the flat, however, ten phone calls came in asking for the accused by his nickname, Chippie, and asking for drugs. In

60 CR Williams, supra note 52 at 55-56. 61 Lisa Dufraimont, Annotation to R. v. Baldree, (2012) 92 CR 6th 221. 62 See R. v Wilson (1996), 107 CCC (3d) 86 (OCA); Thompson Estate v Lougheed, [2004] BCJ No 257 (BCSC); R v McNamara (No 1), [1981] OJ No 3254 at paras 734-744. 63 Decision of the Court of Appeal for Ontario at paras 42, 69 per Watt JA dissenting. 64 R v Kearley, [1992] 2 All ER 345 (HL). 65 R v Bannon (1995) 132 ALR 87, pp.108 to 110 (Aust.H.C.). 66 R v Manase [2001] 2 NZLR 197, paras 34-35 (NZCA). 18

addition, while police were at the residence, seven individuals came to the door with the same request. By a 3:2 majority, the House of Lords held that the utterances of the potential purchasers were hearsay and excluded the evidence. It should be noted that the dissenting justices, while rejecting the hearsay argument, were of the view that had there been only one or two calls, they would be excluded under a probative/prejudice analysis. [58] The majority of the Court in Kearley was acutely aware of the quality of the evidence that was being excluded. Lord Oliver concluded that if a lay-person was asked whether large numbers of persons attending a residence with ready money all asking for drugs from the occupant “Chippie” showed, in fact, that Chippie was a drug dealer, the answer would be “Of course it does.” Nevertheless, His Lordship went on to delve a little deeper into the issue:

Indeed, even accepting the layman’s immediate impression, if one goes on to ask, “Why do you say, ‘Of course’?” the matter becomes a little more complex. The answer to that question has to be, “Because, of course, they would not go and ask for drugs unless they expected to get them.” But then if one asks, “Well, why did they expect to get them?”, even the layman is compelled into an area of speculation. They expected to get them either because they had got them before or because they had been told, rightly or wrongly, or had heard or thought or guessed that there was somebody called “Chippie” at 11 Perth Close who supplied drugs. So, straight away, even the layman is, on analysis, compelled to accept that his instinctive “of course” rests upon a process of deductive reasoning which starts from an assumption about the state of mind or belief of a number of previously unknown individuals of whom the only known facts are that they telephoned or called at 11 Perth Close and made offers to purchase drugs.67

[59] Lord Oliver then set out the step by step analysis that led the Court to the conclusion that the statements of the callers contained implied assertions, the use of which violates the rule against hearsay:

To put it, perhaps, more succinctly, a fact to be relevant must be probative, and if one asks whether the fact that a large number of persons called at the premises seeking to purchase from “Chippie” renders probable the existence of a person at the premises called “Chippie” who is willing to

67 Kearley, supra note 64 at pp. 369 to 370. 19

supply drugs, the answer can, I think, only be in the affirmative. But the difficulty here is that it is only the combination of the facts (a) that the persons called, (b) that they asked for “Chippie” and (c) that they requested drugs which renders the evidence relevant. The mere fact that people telephoned or called, in itself, is irrelevant, for it neither proves nor renders probable any other fact. In order to render evidence of the calls relevant and therefore admissible there has to be added the additional element of what the callers said, and it is here that the difficulty arises. What was said—in each case a request for drugs—is, of course, probative of that state of mind of the caller. But the state of mind of the caller is not the fact in issue and is, in itself, irrelevant, for it is not probative of anything other than its own existence. It becomes relevant only if and so far as the existence of other facts can be inferred from it. So far as concerns anything in issue at trial, what the caller said and the state of mind which that fact evinces become relevant and probative of the fact in issue (namely the intent of the appellant) only if, or because, (i) what was said amounts to a statement, by necessary implication, that the appellant has in the past supplied drugs to the speaker (as in two cases in which request were made for “the usual”) or (ii) it imports the belief or opinion of the speaker that the appellant has drugs and is willing to supply them. And here, as it seems to me, we are directly up against the hearsay rule which forms one of the major established exceptions to the admissibility of relevant evidence.68

9. Academic Criticism

[60] There has been academic criticism of Kearley. It is submitted, however, that the problem with Kearley was not the analysis that led the Court to the conclusion that the implied assertions ran afoul of the rule against hearsay. That analysis was correct. Rather, the problem with Kearley was the fact that the evidence was automatically excluded. The law of England and Wales at that time had no equivalent of this Court’s principled exception to the hearsay rule. Under the law of England and Wales, once the evidence had been classified as hearsay, there was no choice but to exclude it. In Canada, classifying evidence as hearsay no longer results in automatic exclusion. As Professors Paciocco and Stuesser have pointed out:

What then is the status of implied assertions? Are they hearsay or not? What is important to keep in mind is that today, in the law of evidence, this question is not an “in or out” proposition. If the evidence is treated as

68 Kearley, supra note 64 at pp. 370 to 380. 20

non-hearsay, this does not mean that the evidence is automatically admissible. The trial judge retains a discretion to exclude otherwise admissible evidence where the potential prejudice outweighs the probative value of the evidence. For example, say that in Kearley, instead of ten calls there was but one. The probative value of the evidence pointing to dealing in drugs is much reduced. Referring to this scenario, Lord Browne-Wilkinson, writing in Kearley, concluded: “The possible prejudice to the accused by the jury drawing the wrong inference would be so great that I would expect a judge in his discretion to exclude it.” In turn, if the evidence is treated as hearsay, it is not automatically excluded. The evidence may well be admitted as a hearsay exception where it is found to be reasonably necessary and sufficiently reliable.69

[61] Other well-known Canadian experts in the law of evidence have been open to the application of the rule against hearsay to implied assertions. The authors of The Law of Evidence in Canada suggest that the proper approach is not to focus on whether the statement or conduct was asserted or was implicit. Rather, each out of court statement should be looked at through the lens of the hearsay dangers:

Perhaps the best approach would be for courts to analyze hearsay-by- conduct evidence in terms of the possibility of the danger of defective perception, insincerity, memory, or communication, and ambiguity of inference raised by such untested evidence. If these hearsay dangers are high, then the evidence should be excluded, but not otherwise.70

10. R v Ly

[62] In a brief decision in R. v. Ly, this Court found that a telephone conversation between an unknown caller and police was admissible in a drug trial. In the conversation, the caller arranged to meet with an undercover police officer to sell drugs. The accused showed up at the pre-arranged meeting point with drugs in his possession. This Court ruled the contents of the call admissible, not for the truth of the contents, but as “a statement of intention, or a statement tendered to establish the alleged drug transaction.” It tended to show that the accused, when he showed

69 Paciocco & Stuesser, supra note 46 at 111-112. 70 Bryant et al, supra note 43 at 244; see also Stanley Schiff, Evidence in the Litigation Process (Toronto: Carswell, 1993) pp. 378 to 394, Ron Delisle, Don Stuart & David Tanovich, Evidence:Principles and Problems, 9th edition (Toronto: Carswell, 2010) pp. 662 to 665, Lisa Dufraimont, supra, note 61, Rob J. Currie, Annotation to R. v. Baldree (2012) 92 CR (6th) 221. 21

up at the agreed upon meeting place with drugs in his possession, did so with the intention of trafficking.71 [63] It is submitted that the call in Ly and the call in this case raise quite distinguishable issues. At issue in Ly was Ly’s intention when he arrived at the designated meeting point with drugs. The call revealed that intention through a clear statement either by Ly himself or a partner. The call and the statement of intention were, in fact, very much part of the offence. In the case at bar, however, the Crown is seeking to use an out of court statement by an unknown caller, who is not involved in the offence, to prove the identity of the individual who possessed the drugs.

11. Other reasons advanced by the Appellant for rejecting the concept of implied assertions a) The Appellant claims that hearsay law is complicated enough.72

[64] Defining what is and what is not hearsay is undoubtedly complicated. That complication, however, does not arise out of whether an impugned assertion is express or implied. It arises because it is often difficult to determine whether an out of court statement (whether express or implied) is being admitted for the truth of its contents or for some other purpose. Implied assertions exist. Pretending they do not exist in order to keep the hearsay rule simple is not the answer. b) The Appellant claims that evidence that contains implied assertions can be valuable.73

[65] Here the Appellant confuses hearsay with relevance and probative value. As this Court noted in Khelawon, hearsay is not excluded because it is not potentially relevant, valuable evidence. It is excluded because its reliability cannot be tested by the opponent and the trier of fact.

71 R v Ly, [1997] 3 SCR 698. 72 Appellant’s factum at para 59. 73 Appellant’s factum at para 60. 22

c) The Appellant claims that implied hearsay would eliminate evidence that is currently described as circumstantial.74

[66] The decision as to what does and does not constitute hearsay should be done on a principled basis. If significant hearsay dangers exist, then it is unfair to an accused person to have that evidence placed before the trier of fact. Moreover, the Appellant’s fears are unfounded. The classification of the evidence as hearsay does not lead to automatic exclusion. Rather, the Crown is given a full opportunity to show that the evidence meets the necessity and reliability criteria set out by this Court. d) The Appellant claims that implied hearsay is a regression into a rigid classification system antithetical to this Court’s recent principled approach to hearsay.75

[67] On the contrary, it is the Appellant’s desire to separate out express and implied assertions that creates a rigid, old-fashioned, category based system. The Respondent takes the view that the focus should be a principled one. If the hearsay dangers do not exist, then the statement should be admitted. If the hearsay dangers exist, a trial court will need to assess whether there are, under the principled exception to the hearsay rule, sufficient grounds to admit the evidence. e) The Appellant claims that the use of implied assertions will often lead to the wrong result.76

[68] It is no answer to a principled approach to the hearsay rule that either the Crown or the defence will not get the outcome on the trial they think they should. The reason for having the rule against hearsay is to have fair trials where both sides can fully cross-examine all the evidence put against them.

74 Appellant’s factum at para 61-62. 75 Appellant’s factum at para 66. 76 Appellant’s factum at para 67. 23

12. Application of the principles to the call in this case

[69] An analysis of the applicability of the hearsay rule to the statement in this case must begin with an understanding of the live issues in the case. Defence counsel had conceded during the course of the trial that whoever was in possession of the drugs was in possession of them for the purpose of trafficking. This admission fairly reflects the quantities of drugs found and the nearby presence of so-called paraphernalia of drug trafficking (scales, baggies, debt list). The main issue at the trial was the identity of the person or persons who possessed the drugs, or, to put it another way, could the Crown prove beyond a reasonable doubt that Christopher Baldree was in possession of the drugs. It is worth noting, therefore, that the issue at play here is quite different from the live issue in either Kearley or Ly. In both those cases the issue was not who possessed the drugs. Rather, the issue was the purpose for which the drugs were possessed, i.e. for the purpose of trafficking or not. [70] How does the call assist with determining the identity of the person in possession of the drugs? The fact of the call alone, without reference to its content, does not assist at all. It is the content of the call and the conversation between the unknown caller and the police officer that matter. [71] There are two significant parts to the content of the call. The first is an expression of a desire to buy an ounce of weed from Christopher Baldree. The second is that the caller pays Christopher Baldree $150 for an ounce of weed. [72] The second part, i.e., words to the effect, “I pay Christopher Baldree $150 for an ounce of weed” presumably means, if taken at face value, that in the past, on one or more occasions, the unknown caller has paid Christopher Baldree $150 for an ounce of weed. The inference to be drawn is that Christopher Baldree is a drug dealer and has access to drugs. This inference is then used to assist the Crown, when considered with the other evidence, in proving that Christopher Baldree had access to and possession of the particular stash of drugs found by police in the bedroom closet. However, these proposed inferences can only be drawn if we assume that the unknown caller is telling the truth, that he did in fact purchase drugs, from Christopher Baldree, in the past, at $150 per ounce. In other words, the 24

value of this part of the statement comes from the truth of its contents and its admission would violate the rule against hearsay. Examined through the lens of the hearsay dangers, it can be seen that the claim that the unknown caller has bought drugs from the Respondent in the past may be subject to problems of perception, memory, narration, and sincerity. There are many legitimate questions to be put to such a witness by defence counsel. [73] The first part of the statement in the phone call is to the effect “I want to buy drugs from Christopher Baldree.” It contains an element of desire for drugs and an element of belief that Christopher Baldree can supply them. The element of desire alone is irrelevant. It alone does not advance the Crown’s case as to the identity of the possessor of the drugs at the apartment. It is only the belief on the part of the caller that it is Christopher Baldree who can supply drugs that has the potential to advance the Crown’s case. Of course, no witness would be permitted to come to court and testify that it is his belief that “X” has access to or supplies drugs without explaining what underlies that belief. If the belief is based on what the witness has been told by others, then it would be inadmissible, falling squarely within the hearsay rule. If the belief depends on personal experience whereby the witness has purchased drugs from “X” in the past, it would not, assuming the witness was in court to testify, constitute hearsay. The probative value of this knowledge, however, depends on its truth. The knowledge or belief that drugs can be obtained from “X” or Christopher Baldree is replete with potential hearsay dangers where the witness is not present in court to answer relevant, probing questions from defence counsel. [74] The Respondent’s position is that any use that can be made of the call to advance the Crown’s case on the issue of identity inherently relies on the truth of either the express or implied assertions made by the caller. Indeed, attaching labels such as express or implied to the statements made in the call does not significantly advance the analysis. Rather, the analysis must revolve around the hearsay dangers of the content of the phone call. Here, the call’s contents are untestable with regard to problems of perception, memory, narration, and sincerity. 25

13. Principled Approach to Necessity and Reliability

[75] If the contents of the telephone call are found to be hearsay, they are presumptively inadmissible.77 It is the Respondent’s position that the call meets neither the necessity nor the reliability criteria under this Court’s principled exception to the hearsay rule. [76] The principled approach to admitting hearsay statements is a case-by-case approach that is based on the rationale underlying the general exclusionary rule against hearsay. Using the principled exception, hearsay evidence will be admitted when the proponent of the evidence can demonstrate to the court, on a balance of probabilities, that the hearsay statement is both necessary and reliable evidence.78 If either of these twin criteria of necessity and reliability cannot be met, the general exclusionary rule to exclude the hearsay evidence will prevail. a. Necessity

[77] The first consideration in the principled exception analysis is whether the hearsay evidence is “reasonably necessary”.79 Necessity is concerned with society’s interest in finding the truth so that justice may be done.80 To establish the necessity of a hearsay statement, the proponent of the evidence must satisfy the trial judge that the hearsay statement is relevant to a live issue, and that there are no other means available to provide similar evidence to the court. [78] The unavailability or reluctance of a witness to testify does not determine the necessity inquiry.81 Rather, the proponent of the hearsay evidence must demonstrate to the court that reasonable efforts have been made to obtain direct evidence from the witness.82 Necessity will therefore be established when the trier of law concludes that, although the hearsay evidence is untested, it would be

77 R v Khelawon, supra, note 47, para 59. 78 R v Khelawon, supra, note 47 at paras 2, 47. 79 R v Khan, [1990] SCJ No 81, 2 SCR 531 at para 29. 80 R v Khelawon, supra, note 47, at para 49. 81 R v Orpin, [2002] OJ No 1541, 165 CCC (3d) 56 (Ont CA) at paras 46-50; R v F(WJ), [1999] 3 SCR 569, SCJ No 61 at para 44. 82 R v O’Connor, [2002] OJ No 4410, 170 CCC (3d) 365 (Ont CA) at para 57; R v Khelawon, [2006] 2 SCR 787, SCJ No 57 at para 104. 26

contrary to the interest of justice to lose the evidence entirely.83 In this way, necessity encompasses a “best evidence” rule, in that the hearsay statement is necessary when the court cannot expect to get evidence of the same value from the same or another source.84 The state, however, cannot create the necessity to have the out of court statements put into evidence by a third party. All reasonable efforts have to be made “to secure the evidence of the declarant in a manner that also preserves the rights of the other party”.85 [79] In this case, the need to put the call in through a police officer was created entirely by the state. During the call Sgt. Martelle made arrangements to meet with the unknown caller to sell him drugs. Despite this, the police did not attend the arranged meeting and made no further attempts to either identify the caller or meet with him and obtain a direct account of his evidence. [80] The Crown now seeks to justify this failure by asking this Court to draw speculative conclusions about the unknown caller. The Crown suggests that the “unknown drug associate” would not be co-operative and truthful and, had he been located, would not likely be a “willing witness against [his] supplier.” This image of a lying, deceitful drug addict who would not turn on his supplier has no basis in the evidence. Equally consistent with the evidence is the theory that the unknown caller was a hard working, honest, middle class student who smoked marijuana from time to time. He may well have been fully co-operative with the police and given testimony before the court in a direct and honest fashion. Because the police took no steps to ascertain his identity we shall never know. Speculation by the Crown adds nothing to the necessity analysis. [81] Necessity was created entirely by the failure of the police to investigate. The Crown should not benefit from that failure. b. Reliability

[82] The second consideration of the principled approach is to determine whether the hearsay evidence is reliable. The ideal way of testing the evidence is to have the

83 David M Paciocco and Lee Stuesser, supra, note 46 at 113 to 122. 84 R v Smith, [1992] 2 SCR 915, 75 CCC (3d) 257 at para 36. 85 R. v. Khelawon, supra, note 47, para 104, R. v. O’Connor [2002] OJ No 4410 para. 57(OCA) 27

declarant appear in court, make the statement under oath, and be subjected to cross- examination. The reliability inquiry is concerned with determining whether the evidence should be admitted despite the absence of this ideal method of testing the evidence. To establish that a hearsay statement is reliable, the proponent of the evidence must either demonstrate that the circumstances under which the statement was made substantially negate the possibility that the declarant was either untruthful or mistaken (and thus negate the need for cross-examination),86 or, alternatively, that there is some alternative way of testing the evidence. The trial judge must therefore be satisfied that the statement is either inherently trustworthy, or that it can be adequately tested by means other than contemporaneous cross- examination.87

i) The contents of the call were not inherently reliable [83] An out of court statement will be inherently reliable if the hearsay dangers are absent and cross-examination would add little to testing of the truth or accuracy of the statement.88 The following factors have been considered in assessing the reliability of hearsay evidence: the spontaneity of the statement; whether the statement was made naturally and/or without suggestion; the declarant’s motive to lie; the possibility that the declarant was mistaken; whether the statement is against the declarant’s interest; the statement’s contemporaneity with the events set out; the existence or lack of corroborating evidence; and the contents of the statement.89 A hearsay statement’s reliability can also be determined by considering whether there were any safeguards in place during the making of the statement. Examples of such safeguards include whether the statement was knowingly made to a public official, whether the statement was recorded, or whether the declarant was under oath when he or she made the statement.90

86 R v Smith, [1992] 2 SCR 915 at paras 3 to 36. 87 R v Khelawon, supra, note 47 at paras 62-63. 88 R. v. Khelawon, supra, note 47, para 62 89 R v Nguyen (2001), 281 AR 91, AJ No 513 (Alta CA); R v Blackman, (2006) 84 OR (3d) 292 (Ont CA), affd [2008] 2 SCR 298 (SCC) at para 53. 90 David M Paciocco and Lee Stuesser, supra, note 46, at 122 to 128. 28

[84] In this case the actual statement or conversation was not before the trier of fact, for example, by way of an audio recording. What we have is a one-sided summary of the conversation given by a police officer. There is only one caller and his identity is unknown. The statement was not under oath. It was not knowingly made to a person in authority nor was it made with a view to it being relied on in court. [85] To determine whether the hearsay dangers - perception, memory, narration and sincerity - are present it is necessary to examine the purpose of putting the call in evidence. That purpose is to identify Christopher Baldree as a person who has access to drugs for sale. The value of the call therefore depends on the reasons underlying the caller’s belief that he does. Those reasons may be cogent but they may equally be speculative. Did he know Baldree? Had he previously bought drugs from Baldree? If so, when, and under what circumstances? Did he only call Baldree because someone else had told him he sells marijuana? Did he, in fact, only call because his friend Megan believed that Baldree had drugs for sale? The answers to these and other equally relevant questions depend upon issues of perception, memory and narration. Indeed, there is also a question of sincerity. This is a single call. Was it made to throw suspicion on Baldree? Even if the caller genuinely wanted to buy drugs, the sincerity of his answer when asked how much Chris charges him is very much at issue. Did he just go along with the officer’s assumption that Chris had sold to him before (contained in the question how much Chris charges him) even though it wasn’t true, because it was more likely to make the transaction take place and because he could then make up a more advantageous price for his drug purchase? The absence of the declarant leaves the accused unable to obtain answers to these critical questions and also leaves the trier of fact unable to assess the value of the call.

ii) There was no other means of testing the evidence [86] The unknown caller was unavailable for cross-examination at trial. He had not been made available for cross-examination at any other point in the proceedings. There was no video statement, under oath or otherwise. There was simply no 29

means by which the defence could inquire into the unknown caller’s perception, memory, narration or sincerity.91

14. Probative value versus prejudicial effect of the call

[87] Trial judges have the discretion to exclude relevant, material evidence where the probative value of that evidence is outweighed by its prejudicial effect. Like the rule against hearsay, the purpose of this discretion to exclude is to promote trial fairness and to assist the trier of fact. The existence of the discretion is consistent with the right to a fair trial guaranteed by s. 11(d) of the Charter.92 [88] The probative value of evidence depends on the issues at play in the trial and the facts to be proven. The probative value to be applied depends on “the weight of the evidence, the strength of the rational connection between the evidence and the material fact to be established.” The analysis requires an assessment of any inferences to be drawn and the strength of reasoning underlying the process of drawing those inferences.93 [89] In the context of similar fact evidence, this Court held that the prejudicial impact of evidence includes moral prejudice and reasoning prejudice. Moral prejudice arises where stigma is attached to an accused, i.e. that he is a person of bad character. Reasoning prejudice arises because of the danger that the trier of fact will follow a forbidden chain of reasoning, i.e. inferring guilt from general disposition or propensity.94 To put the issue more generally, the concern is over the “distorting impact that evidence can have on the finding of fact”.95 Also, as Professors Paciocco and Stuesser point out,96 prejudice can equally arise from the mode of presentation of evidence. They cite as an example this Court’s decision in Potvin97, where it was held that it would be prejudicial to allow the Crown to rely on a

91 R v Khelawon, supra, note 47, at para 2. 92 Delisle & Dufraimont, supra note 49 at 10-12; Paciocco & Stuesser, supra note 46 at 34-42; Bryant et al, supra note 43 at 28-29; R v Seaboyer [1991] 2 SCR 577 at 610; Khelawon, supra note 47 at para 49. 93 Delisle & Dufraimont, supra note 49 at 10-12; Paciocco & Stuesser,, supra note 46 at 32-42; Bryant et al, supra note 43 at 28-29; R v Handy [2002] 2 SCR 908. 94 Handy, supra note 93 at paras 24 to 101, 137 to 152; Bryant et al, supra note 43 at 737-745. 95 Paciocco & Stuesser, supra note 46 at 39-40. 96 Paciocco & Stuesser, supra note 46 at 39-40. 97 R v Potvin (1989) 68 CR (3d) 193 (SCC). 30

transcript of previous testimony of an unavailable witness where the Crown was, in part at least, responsible for the absence of that witness. [90] In weighing the probative value and prejudicial effect of evidence, a court may consider the credibility and reliability of that evidence.98

15. Application of Probative v. Prejudice Analysis in this Case

[91] Even the dissenting judges in Kearley would not have admitted a single call for drugs, believing that a single call, as opposed to multiple calls, had very little probative value and would potentially carry great prejudice to the accused.99 [92] The probative value of a single call is tenuous. The trier of fact is asked to infer from this single call that Christopher Baldree has access to drugs. This has to be done either without knowing the basis upon which the single caller knows that he has access to drugs or, if we accept that there was a previous drug transaction between the caller and Christopher Baldree, when that transaction took place. The previous transaction giving rise to the caller’s expectation that Baldree has access to drugs may be because of a transaction between them a few days ago, months ago, or a year ago. It may be because the caller’s friend Megan told the caller that she did a transaction a few days, weeks, or months ago. Perhaps Megan was simply passing on information from a third party. We simply do not know. Multiple calls from multiple callers could lead one to the conclusion that there is an active, ongoing market for drugs in place. For a single call, the connection between the drug request and the inference sought, that Baldree had access to drugs generally, and the seized drugs in particular, is beyond tenuous. The call has little probative value. [93] Both types of prejudice identified in Handy are present in this case, moral prejudice and reasoning prejudice. The moral prejudice arises if the trier of fact infers from the call requesting drugs that Baldree is a drug dealer. This case was effectively a credibility contest between Lepage and Baldree. Once the evidence goes in indicating that Baldree is a drug dealer, the contest is over. The drug dealer is not worthy of belief.

98 Paciocco & Stuesser, supra note 46 at 37-39. 99 Kearley, supra note 64, at 10 to 11, per Lord Griffiths and 390, per Lord Browne-Wilkinson. 31

[94] There is also the danger of reasoning prejudice, that the trier of fact may infer guilt from general disposition or propensity. If Baldree generally had access to drugs or a propensity to sell them, then it may be inferred, improperly, that he had access on the day that the police entered the apartment. Indeed this analysis raises a further issue. Does the use the Crown wishes to make of the call in this case actually violate the rule against calling similar fact evidence?100 Where the issue at trial is one of intent, i.e. whether possession was for the purpose of trafficking or not, the calls have relevance to show intent by showing a business and market for drugs exist. Where the issue is not intent but, as here, identity, then if the calls are admitted to show that a person is, because of past behavior, more likely to be in possession of drugs this time, then the calls violate the rule against admitting similar fact evidence. [95] There is also prejudice that arises over how the evidence was made available to the Court.101 The caller was unavailable to testify because the state, through the police, failed to follow up on the call and investigate the potential purchaser. Had this been done, the caller may well have been available to testify and be subject to full cross- examination. It would be unfair to allow the Crown to take advantage of its own failure to act.

16. The Curative Proviso should not be applied in this case

[96] At trial, the Crown argued that the telephone call was the strongest piece of evidence.102 Before this Court the Crown argues that the telephone call was so insignificant that the curative proviso should apply. [97] The test for applying the curative proviso to uphold a conviction notwithstanding a trial judge’s legal error is “whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made.”103 [98] In cases of errors that are not “harmless on their face or in their effect”, the standard is “substantially higher” than proof beyond a reasonable doubt. The Crown,

100 Paciocco & Stuesser, supra note 46 at 55 to 78; Handy, supra note 93 at para 55. 101 Paciocco & Stuesser, supra note 46 at 39-40. 102 A.R., Vol. IV, p.127, l.20 and p.138, l.20 103 R. v. Bevan, [1993] 2 S.C.R. 599 at para. 42. 32

therefore, bears the onus of showing that the case against the accused is “so overwhelming that any other verdict but a conviction would be impossible.”104 Put differently, the Crown must demonstrate that if the hearsay evidence at issue had been excluded, a conviction would have nonetheless been inevitable. [99] This was not an overwhelming Crown case. The case turned primarily on the credibility of Lepage and Baldree. There were good reasons to view both accounts with skepticism. The evidence of Lepage, when put up against the independent evidence in this case, ran into serious difficulties. His account of his cousin’s departure from the apartment differed significantly from that given by the landlady. His claim never to have possessed or used marihuana was also difficult to reconcile with the landlady’s evidence. Similarly, his account of problems between Baldree and his uncle was inconsistent with the uncle’s evidence. Also, his claim that Baldree had been staying there for 6 or 7 nights did not square with either the appearance of the second bedroom or the evidence of the police officer uncle that Baldree was living with him. It must also be remembered that this was a case with three other occupants in the apartment, none of whom was called to give evidence. [100] The significance of the telephone call is that, like the evidence of both the landlady and Trevor Butler, it is independent of both Lepage’s version and Baldree’s version. In a case where credibility is one of the main issues, any evidence that is independent from that given by the protagonists takes on added significance. No doubt it was this independent nature of the telephone call that lead the trial Crown to claim that it “seals the story.”105 [101] The trial judge refers to the phone call three times in his reasons. First, to conclude that it was evidence that Baldree was engaged in drug trafficking.106 Second, to note Baldree’s answers to questions about it.107 Third, as part of his reasons for rejecting Baldree’s evidence.108 This is hardly the “passing reference” claimed by the Appellant. Indeed, given that a “trial judge is not required to refer

104 R. v. Trochym, [2007] 1 S.C.R. 239 at para. 82; R. v. Van, [2009] 1 S.C.R. 716 at para. 34; R. v. Khan, [2001] 3 S.C.R. 823 at para. 31. 105 A.R., Vol. IV, p.138, line 20. 106 A.R., Vol. I, p. 22, l.5 to p.23, line 6 107 A.R., Vol. I, p. 29, line 1 to 9 108 A.R., Vol. I, p.31, line 24 33

to every item of evidence considered or to detail the way each item of evidence was assessed”109 even a “passing reference” to the call would render the application of the curative proviso unsafe.

PART IV: SUBMISSIONS CONCERNING COSTS

[102] The Respondent does not seek any order respecting costs.

PART V: ORDERS REQUESTED [103] The Respondent asks that the appeal be dismissed.

ALL OF WHICH is respectfully submitted this 5th day of October, 2012.

______

Michael Davies

Counsel to the Respondent

109 R. v. H.(J.M.), [2011] 3S.C.R. 197, para 32. 34

PART VI – TABLE OF AUTHORITIES

Cases Cited Para # R v Abbey [1982] SCJ No 59, 2 SCR 24 44 R v Bannon (1995) 132 ALR 87 56 R v Bevan, [1993] 2 SCR 599 97 R v Blackman, (2006) 84 OR (3d) 292 (Ont CA), affd [2008] 83 2 SCR 298 (SCC) R v Evans (1993) 24 CR (4th) 46 at 52 42 R v F(WJ), [1999] 3 SCR 569, SCJ No 61 78 R v H(JM), [2011] 3 SCR 197 101 R v Handy [2002] 2 SCR 908 88, 94 R. v. Kearley, [1992] 2 All ER 345 (HL) 56, 57, 58, 59, 60, 91 R v Khan, [1990] SCJ No 81, 2 SCR 531 77, 98 R v Khelawon, [2006] 2 SCR 787 43, 44, 46, 75, 76, 77, 78, 82, 86, 87 R v Lucia, [2010] OJ No 3154 (OCA) 51 R v Ly, [1997] 3 SCR 698 62, 63 R v Manase [2001] 2 NZLR 197 56 R v McNamara (No 1), [1981] OJ No 3254, aff’d [1985] 1 55 SCR 662 R v Nguyen (2001), 281 AR 91, AJ No 513 (Alta CA); 83 R v O’Connor, [2002] OJ No 4410 (Ont CA) 78 R v Orpin, [2002] OJ No 1541 (Ont CA) 78 R v Potvin (1989) 68 CR (3d) 193 (SCC). 89 R v Seaboyer [1991] 2 SCR 577 87 R v Smith, [1992] 2 SCR 915 78, 82 Thompson Estate v Lougheed, [2004] BCJ No 257 (BCSC) 55 R v Trochym, [2007] 1 SCR 239 98 R v Van, [2009] 1 SCR 716 98 R v Wilson (1996), 107 CCC (3d) 86 (Ont CA) 55

35

Other References Alan W Bryant, Sidney N Lederman, and Michelle K Fuerst, 40, 44, 46, 48, 61, The Law of Evidence in Canada, Third Edition (Markham: 87, 88, LexisNexis Canada Inc, 2009) Rob J Currie, Annotation, Criminal Reports, Sixth Series, Vol 61 92 Part 2 August 2012, 92 CR (6th) 221 RJ Delisle and Lisa Dufraimont, Canadian Evidence Law in a 44, 45, 46, 48, 50, Nutshell, 3rd ed (Toronto: Carswell, 2009) 87, 88, Ron Delisle, Don Stuart, and David Tanovich, Evidence: 61 Principles and Problems, Ninth Edition (Toronto: Carswell, 2010) Lisa Dufraimont, Criminal Reports, Sixth Series, Vol 92 Part 54, 61 2 August 2012, 92 CR (6th) 221 Richard B Kuhns, “Implied Assertions on the Hearsay Rule: 52 A Functional View” (1995) 16 Miss CL Rev 139 David Paciocco and Lee Stuesser, The Law of Evidence, Sixth 42, 44, 48, 60, 78, Edition (Toronto: Irwin Law Inc, 2011) 83, 87, 88, 89, 90, 94, 95 Stanley Schiff, Evidence in the Litigation Process (Barrie: 61 Carswell, 1993) David Watt, Watt’s Manual of Criminal Evidence (United 41, States: Thomson Reuters, 2012) CR Williams, “Implied Assertions in Criminal Cases” (2006) 46, 53, 54 4 MonashULawRw 32(1)