R. v. Baldree

R. v. Baldree
Collection
Supreme Court Judgments
Date
2013-06-19
Neutral citation
2013 SCC 35
Report
[2013] 2 SCR 520
Case number
34754
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 34754
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520
Date: 20130619
Docket: 34754
Between:
Her Majesty The Queen
Appellant
and
Christopher Baldree
Respondent
- and -
Attorney General of Ontario
Intervener
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 77)
Concurring Reasons:
(paras. 78 to 125)
Fish J. (McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ. concurring)
Moldaver J.
R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520
Her Majesty The Queen Appellant
v.
Christopher Baldree Respondent
and
Attorney General of Ontario Intervener
Indexed as: R. v. Baldree
2013 SCC 35
File No.: 34754.
2012: November 7; 2013: June 19.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for ontario
Criminal law — Evidence — Admissibility — Hearsay — Drug purchase call — Implied Assertions — Implied assertion tendered for the truth of its contents — Applicability of hearsay rule — Purposive approach — Principled analysis of its necessity and reliability.
After B was arrested, a caller telephoned B’s cell phone to arrange for a drug delivery. A police officer answered B’s cell phone and agreed to deliver the drugs at the price that B usually charged. The caller gave his address. No effort was made to find and interview him and he was not called as a witness. The trial judge concluded that the police officer’s testimony was not hearsay and admitted the contents of the call. B was convicted of possessing marijuana and cocaine for the purposes of trafficking. A majority of the Court of Appeal allowed the appeal, ordered a new trial, and held that the evidence should not have been admitted.
Held: The appeal should be dismissed and a new trial ordered.
Per McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.: The hearsay rule reflects the value our criminal justice system places on live, in‑court testimony. 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. Hearsay evidence is presumptively inadmissible as a matter of law. The issue here is whether this exclusionary rule applies to express hearsay only, or to implied hearsay as well. An implied assertion tendered for the truth of its contents does not stand on a different footing, with respect to the hearsay rule, than an explicit assertion to the same effect. The principled reasons for their presumptive inadmissibility apply equally to both. There is no principled reason, in determining their admissibility, to distinguish between express and implied assertions adduced for the truth of their content.
Hearsay evidence is presumptively inadmissible unless it falls under a traditional exception to the hearsay rule. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if, pursuant to the principled analysis, sufficient indicia of reliability and necessity are established on a voir dire. Hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion. The need for a functional approach to implied assertions is readily apparent, bearing in mind the core hearsay dangers of the declarant’s perception, memory, narration and sincerity.
Here, no traditional exception applies and the impugned evidence withers on a principled analysis. This was a single drug purchase call of uncertain reliability. No effort was made to find and interview the caller, still less to call him as a witness — where the assertion imputed to him could have been evaluated by the trier of fact in the light of cross‑examination and the benefit of observing his demeanour. Although this drug purchase call does not withstand scrutiny under the principled approach, this need not always be the case with drug purchase calls.
Finally, the curative proviso of s. 686(1) (b)(iii) of the Criminal Code can have no application in this case, since it cannot be said that there is no reasonable possibility the verdict would have been different had the telephone call not been admitted.
Per Moldaver J.: An implied assertion of a factual proposition is part of the “contents” of a statement for purposes of the hearsay rule. Accordingly, the evidence of the drug purchase call was hearsay because it was introduced to prove that B was in fact a drug trafficker. In such cases, however, the real concern under the principled approach is reliability and it should be the focus of the inquiry. The necessity criterion has its purpose, but it is not meant to stifle the admission of reliable evidence. Rather, it is founded on society’s interest in getting at the truth. For that reason, in cases such as this one — where the prospect of locating, identifying, and receiving accurate information from a forthcoming and cooperative caller is remote — if the evidence is reliable, it should be admitted because its reception into evidence will be necessary in order to get closer to the truth. If the evidence is not reliable, it should be excluded.
The starting point is that a long line of cases have admitted evidence similar to that at issue here on the basis that it was non-hearsay. Because judges are not in the habit of admitting evidence they deem unreliable, these earlier cases appear to rest on the conclusion that drug purchase calls are reliable more often than not and, thus, can safely be categorized as non-hearsay. Even where such evidence was excluded, the concern was reliability. The common thread in these cases is that the evidence’s reliability dictated the answer with respect to admissibility — and that is the assessment courts should focus on.
The majority’s analogy to an earlier decision of this Court to support its conclusion that the police should have tried to find and interview the caller breaks down upon scrutiny. There, the police were dealing with a known declarant who was fully cooperative and forthcoming. Here, the declarant was unknown. Apart from officer safety concerns, the likelihood of the police finding the declarant would seem slim. And the prospect of the declarant being forthcoming and cooperative, if found, would seem even slimmer. The necessity criterion was thus met.
Although it is perfectly consistent with the principled approach that even a single drug purchase call may meet the threshold test for reliability, the Crown failed in this case to establish that the call meets the test justifying its admission as substantive evidence that B was engaged in drug trafficking. Even if the caller was entirely sincere in his belief that B was a drug dealer, that does not address why the caller believed what he believed — and whether his belief was in fact true or not. This is not a case of multiple calls, where common sense tells us that the probability of numerous callers all being mistaken is unlikely. Nor do we have sufficient indicia of reliability, either within the statement or in the form of confirmatory evidence outside the statement. Had the circumstances been somewhat different, there may well have been a satisfactory basis for evaluating whether the caller believed B was a drug dealer and whether that belief was in fact true. That is what threshold reliability requires.
Cases Cited
By Fish J.
Distinguished: R. v. Ly, [1997] 3 S.C.R. 698, aff’g (1996), 193 A.R. 149; referred to: R. v. Edwards (1994), 91 C.C.C. (3d) 123, aff’d [1996] 1 S.C.R. 128; R. v. Kearley, [1992] 2 All E.R. 345; R. v. Wilson (1996), 29 O.R. (3d) 97; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358; R. v. Fialkow, [1963] 2 C.C.C. 42; R. v. Lucia, 2010 ONCA 533 (CanLII); R. v. Cook (1978), 10 B.C.L.R. 84; R. v. Nguyen, 2003 BCCA 556, 188 B.C.A.C. 218; R. v. Parchment, 2004 BCSC 1806 (CanLII); R. v. Williams, 2009 BCCA 284, 273 B.C.A.C. 86; R. v. Graham, 2013 BCCA 75 (CanLII); R. v. Ramsum, 2003 ABQB 45, 329 A.R. 370; R. v. Bannon (1995), 132 A.L.R. 87; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Bevan, [1993] 2 S.C.R. 599.
By Moldaver J.
Distinguished: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; referred to: R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. Owad (1951), 102 C.C.C. 155; R. v. Fialkow, [1963] 2 C.C.C. 42; R. v. Cook (1978), 46 C.C.C. (2d) 318; R. v. Edwards (1994), 19 O.R. (3d) 239; R. v. Nguyen, 2003 BCCA 556, 188 B.C.A.C. 218; R. v. Williams, 2009 BCCA 284, 273 B.C.A.C. 86; R. v. Lucia, 2010 ONCA 533 (CanLII); R. v. Graham, 2013 BCCA 75 (CanLII); R. v. Wilson (1996), 29 O.R. (3d) 97; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Woodcock (1789), 1 Leach 500, 168 E.R. 352; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Ly, [1997] 3 S.C.R. 698.
Statutes and Regulations Cited
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 686(1) (b)(iii), 693(1) (a).
Criminal Justice Act 2003 (U.K.), 2003, c. 44, s. 115.
Evidence Act 1995 (Aust.), No. 2, s. 59(1).
Federal Rules of Evidence (U.S.), Rule 801.
Authors Cited
Birch, Di. “Criminal Justice Act 2003 (4) Hearsay: Same Old Story, Same Old Song?”, [2004] Crim. L.R. 556.
Bryant, Alan W., Sidney N. Lederman and Michelle K. Fuerst. The Law of Evidence in Canada, 3rd ed. Markham, Ont.: LexisNexis, 2009.
Canada. Law Reform Commission. Report on Evidence. Ottawa: Information Canada, 1975.
Dennis, I. H. The Law of Evidence, 4th ed. London: Sweet & Maxwell, 2010.
Dufraimont, Lisa. Annotation to R. v. Baldree (2012), 92 C.R. (6th) 331.
Finman, Ted. “Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence” (1962), 14 Stan. L. Rev. 682.
Hill, S. Casey, David M. Tanovich and Louis P. Strezos, eds. McWilliams’ Canadian Criminal Evidence, 4th ed. Aurora, Ont.: Canada Law Book, 2003 (loose‑leaf updated March 2012, release 22).
McCormick, Charles T. “The Borderland of Hearsay” (1930), 39 Yale L.J. 489.
McCormick on Evidence, vol. 2, 7th ed. by Kenneth S. Broun, General Editor. Eagan, Minn.: Thomson Reuters, 2013.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 6th ed. Toronto: Irwin Law, 2011.
Phipson on Evidence, 17th ed. by Hodge C. Malek et al. London: Sweet & Maxwell, 2010.
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.
Schiff, Stanley. “Evidence — Hearsay and the Hearsay Rule: A Functional View” (1978), 56 Can. Bar Rev. 674.
Weinstein, Jack B. and Margaret A. Berger. Weinstein’s Evidence: Commentary on Rules of Evidence for the United States Courts and for State Courts, vol. 4. New York: Matthew Bender, 1983 (loose‑leaf updated August 1990, release 38).
Wigmore, John Henry. A Treatise on the Anglo-American System of Evidence in Trials at Common Law, vol. III, 2nd ed. Boston: Little, Brown & Co., 1923.
APPEAL from a judgment of the Ontario Court of Appeal (Feldman, Blair and Watt JJ.A.), 2012 ONCA 138, 109 O.R. (3d) 721, 287 O.A.C. 327, 280 C.C.C. (3d) 191, 92 C.R. (6th) 331, [2012] O.J. No. 924 (QL), 2012 CarswellOnt 1741, setting aside the accused’s conviction and ordering a new trial. Appeal dismissed.
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.
The judgment of McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ. was delivered by
Fish J. —
I
[1] 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.
[2] It is undisputed on this appeal that hearsay evidence is presumptively inadmissible as a matter of law.
[3] 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.
[4] 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.
[5] 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.
[6] For these reasons and the reasons that follow, I agree with the majority in the Court of Appeal that the impugned out-of-court statement in issue here ought to have been excluded by the trial judge. It falls within no traditional exception to the hearsay rule and lacks the indicia of necessity and reliability that might otherwise render it admissible.
[7] Accordingly, I would dismiss the Crown’s appeal to this Court against the judgment of the Court of Appeal.
II
[8] The respondent was convicted at his trial before judge alone of possessing marijuana and cocaine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 .
[9] His appeal was allowed by a majority of the Ontario Court of Appeal and a new trial ordered. The Crown appeals to this Court as of right, pursuant to s. 693(1) (a) of the Criminal Code, R.S.C. 1985, c. C-46 , on the questions of law on which the dissent of Watt J.A. was based.
[10] Since I agree with the Court of Appeal that a new trial is warranted, I shall refer to the facts only to the extent necessary to dispose of this appeal.
[11] On May 11, 2006, Cornwall police officers Sergeant Shawn Martelle and Constable Robert Ouellette responded to a suspected break-in at the apartment of a certain Eric Lepage. They knocked on the door and a man, who identified himself as Chris Baldree, allowed them in. The officers entered and immediately detected an odour of marijuana, and discovered marijuana “joints” and small marijuana buds in an ashtray.
[12] In the closet of the spare bedroom, Sgt. Martelle found an open safe containing a sandwich bag filled with 90 grams of cocaine ― and, beside the safe, a large cardboard box with one ziplock bag containing 511 grams of marijuana.
[13] Mr. Baldree was arrested along with three other people found in the apartment. The police seized from him a cellular telephone and some cash found in his possession.
[14] At the police station, Mr. Baldree’s phone was ringing. Sgt. Martelle answered. At trial, he described the call as follows:
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. [A.R., vol. II, at p. 76]
The police made no effort at all to contact the caller at the address he provided.
[15] Counsel for the accused promptly objected to this testimony on the ground that it was inadmissible hearsay. The trial judge disagreed. He found the evidence to be “non-hearsay”, a convenient term I shall adopt throughout, on the basis of R. v. Ly, [1997] 3 S.C.R. 698, and R. v. Edwards (1994), 91 C.C.C. (3d) 123 (Ont. C.A.), aff’d on other grounds, [1996] 1 S.C.R. 128.
[16] In the judge’s view:
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. [A.R., vol. I, at pp. 22-23]
[17] Having concluded that Sgt. Martelle’s testimony was not hearsay, the trial judge found it unnecessary to weigh its probative value against its prejudicial effect.
III
[18] All three justices in the Ontario Court of Appeal wrote separate reasons. Feldman and Blair JJ.A. allowed the appeal and ordered a new trial; Watt J.A., dissenting, would have dismissed the appeal.
[19] Feldman J.A. disagreed with the trial judge’s characterization of the phone call as circumstantial evidence indicating that Mr. Baldree was engaged in drug trafficking. On the contrary, in her view, “admitting the contents of [the] call into evidence is admitting that evidence for a hearsay purpose. It is the implied assertion of the caller, untested by cross-examination, that the accused is a drug dealer” (para. 140).
[20] Feldman J.A. found that the trial judge thus erred by focusing “on the truth of whether the caller really wanted to purchase drugs, which was of course irrelevant, and not on the implied assertion in the request” (para. 144).
[21] Citing the reasons of the majority of the House of Lords in R. v. Kearley, [1992] 2 All E.R. 345, and the opinion of McMurtry C.J.O. in R. v. Wilson (1996), 29 O.R. (3d) 97 (C.A.), Feldman J.A. concluded that the hearsay analysis should not hinge on whether the assertion is express or implied (para. 140).
[22] She found that the telephone call was hearsay and should not have been admitted as evidence against Mr. Baldree because it could not withstand scrutiny under the principled approach to the hearsay rule. Regarding necessity, the police had the caller’s address, yet made no effort to contact him; as to reliability, there was simply no basis to test the caller’s belief without subjecting him to cross-examination (para. 146).
[23] Feldman J.A. also concluded that the evidence was inadmissible because its probative value was outweighed by its prejudicial effect (para. 147).
[24] Feldman J.A. declined to apply the curative proviso of s. 686(1) (b)(iii) of the Criminal Code and therefore held that the trial judge’s error required a new trial. Particularly in light of Crown counsel’s characterization of the drug purchase call as the strongest piece of evidence against the accused, Feldman J.A. could not conclude that the improper admission of Sgt. Martelle’s testimony had no effect on the verdict (para. 149).
[25] In separate but concurring reasons, Blair J.A. was uncertain whether the impugned evidence constituted hearsay. In any event, he considered it preferable “for jurists to spend less time focusing on the characterization of evidence into ‘hearsay’ or ‘non-hearsay’ categories in these types of close-call scenarios and to spend more effort focusing on the principled criteria of necessity/reliability and prejudice vs. probative value” (para. 155).
[26] Accordingly, Blair J.A. found it unnecessary to “cut the ‘hearsay’ Gordian knot to resolve this appeal” because the impugned evidence failed on both an assessment of its necessity and reliability and on weighing its probative value against its prejudicial effect (para. 156).
[27] In his dissenting reasons, Watt J.A. agreed with the trial judge that this Court’s decision in Ly held that evidence of a single drug purchase call is admissible as non-hearsay (para. 73).
[28] According to Watt J.A., a principled analysis was unnecessary on these facts because the impugned evidence was not hearsay. He disagreed with his colleagues that the evidence should have been excluded on the basis that its prejudicial effect outweighed its probative value (paras. 95-98).
[29] In the alternative, Watt J.A. was of the view that even if the drug purchase call was improperly admitted at trial, the conviction should nevertheless stand pursuant to the curative proviso (para. 99).
IV
[30] 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: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 56. As Justice Charron explained in Khelawon, at para. 35, the hearsay rule reflects the value our criminal justice system places on live, in-court testimony:
Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose demeanour can be observed by the trier of fact, and whose testimony can be tested by cross-examination. We regard this process as the optimal way of testing testimonial evidence. Because hearsay evidence comes in a different form, it raises particular concerns. The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves.
[31] 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: Khelawon, at para. 2; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 159.
[32] First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination.
[33] 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. As J. H. Wigmore explains:
The theory of the Hearsay rule . . . is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination. But this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation. Moreover, the test may be impossible of employment — for example, by reason of the death of the declarant —, so that, if his testimony is to be used at all, there is a necessity for taking it in the untested shape.
(Wigmore on Evidence (2nd ed. 1923), vol. III, at §1420, quoted with approval in R. v. Smith, [1992] 2 S.C.R. 915, at p. 929.)
[34] Beginning with R. v. Khan, [1990] 2 S.C.R. 531, the Court has moved away from a set of judicially created exceptions to the hearsay rule, and instead mandated a purposive approach, governed by a principled framework set out this way by McLachlin C.J. in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
[35] The hearsay rule, like many others, is easier to state than to apply.
[36] 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.
V
[37] Plainly, in this case, the Crown adduced Sgt. Martelle’s evidence as proof of the truth of its contents. Since the declarant was not called to testify, Sgt. Martelle’s testimony constituted hearsay and was therefore presumptively inadmissible. Accordingly, in my view, the trial judge erred in failing to subject the evidence to a principled analysis.
[38] Sergeant Martelle testified, it will be recalled, that someone claiming to be a resident of 327 Guy Street called the cell phone which Sgt. Martelle had seized from Chris Baldree, asked for Mr. Baldree, and requested an ounce of marijuana for the price of $150.
[39] I agree with Feldman J.A. that the Crown did not offer this testimony as circumstantial evidence that the respondent was engaged in drug trafficking. Rather, the Crown asked the trier of fact to conclude, based on Sgt. Martelle’s testimony, that the unknown caller intended to purchase marijuana from the respondent because he believed the respondent to be a drug dealer. The relevance of the statement thus hinges on the truth of the declarant’s underlying belief. Any inference that can be drawn from the statement necessarily assumes its veracity.
[40] Had the caller stated that he wanted to buy drugs from Mr. Baldree because Mr. Baldree sells drugs, this would have amounted to an express assertion that Mr. Baldree is a drug dealer. Thus framed, the caller’s assertion would doubtless have constituted hearsay.
[41] But the caller stated instead that he was calling because he wished to purchase drugs from Mr. Baldree. His assertion that Mr. Baldree is a drug dealer was no less manifest in substance, though implicit rather than explicit in form. In the Crown’s submission, implied assertions are not caught by the hearsay rule and the telephone conversation was presumptively admissible for that reason.
[42] 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”: L. Dufraimont, Annotation to R. v. Baldree (2012), 92 C.R. (6th) 331, at p. 334.
[43] 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.
[44] 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.
[45] It has been argued that the danger of lack of sincerity is sometimes diminished for implied assertions. This is because “[i]f a declarant possesses no intention of asserting anything, it would seem to follow that he also possesses no intention of misrepresenting anything”: P. R. Rice, “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, at p. 531.
[46] But the other hearsay dangers clearly remain operative, and may in fact increase when an individual “states” something by implication:
Looked at from the point of view of the four hearsay dangers, there is a much reduced risk of lies if the declarant did not intend to convey that which his statement is relied upon to prove, particularly if he it [sic] was not his purpose to make a representation of fact at all. But the other hearsay dangers remain, that is, the risk of misperception, false memory (unless the implied assertion concerns the declarant’s own state of mind) and ambiguity. Indeed the last danger may be magnified. When X says: “Is Z in there?” does this imply that Z is not with X and nothing more, or that Z is not with X and X wants Z, or Z is in danger, or X wants to know where Z is? The upshot is that in many situations implied assertions depend for their value on the reliability of the declarant just as much as express assertions. [Emphasis added.]
(H. M. Malek et al., eds., Phipson on Evidence (17th ed. 2010), at p. 889)
Moreover, even insincerity remains a concern with implied assertions:
If the justification for the assertive/nonassertive distinction is the absence of the insincerity problem, and through that guarantee of sincerity a reduced level of perception, memory, and ambiguity problems, this justification cannot be applied to implied statements from speech. Speech is a mechanism of communication; it is virtually always used for the purpose of communicating something to someone. It is illogical to conclude that the question of sincerity is eliminated and that the problem of unreliability is reduced for unintended implications of speech if that speech might have been insincere in the first instance, relative to the direct message intentionally communicated. If potential insincerity is injected into the utterance of words that form the basis for the implied communication, the implication from the speech is as untrustworthy as the utterance upon which it is based. [Rice, at p. 534]
[47] In short, “if the standard for comparing express and implied assertions is the quantity of dangers each entails, they are indistinguishable”: T. Finman, “Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence” (1962), 14 Stan. L. Rev. 682, at p. 689.
[48] 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.
[49] In the present matter, the trial judge and the dissenting judge in the Court of Appeal both found that this Court had decided otherwise in Ly. With respect, I disagree.
[50] Ly concerned the admissibility of a telephone conversation between a police officer who had called a suspected “dial-a-dope” operation and the person who answered his call. The officer had called to arrange for the purchase and delivery of drugs. And the appellant, drugs in hand, later showed up at the agreed-upon time and place — where he was promptly arrested and charged with possession of drugs for the purpose of trafficking.
[51] The trial judge characterized as hearsay, and excluded for that reason, evidence of the police officer’s conversation with the person who had answered his call. On an appeal by the Crown, the Alberta Court of Appeal disagreed. It found that the impugned conversation was admissible as “part of the narrative”, since “[i]t was impossible to understand the development of the later events without the evidence of the telephone conversation which preceded them” ((1996), 193 A.R. 149, at para. 3).
[52] In brief oral reasons, this Court agreed with the Court of Appeal that evidence of the conversation was improperly excluded at trial. The Court noted that the conversation was tendered to explain why the appellant appeared at the designated time and place in possession of the drugs — and not, as in the case that concerns us here, for the truth of its contents: Ly, at para. 3.
[53] I see nothing in Ly to suggest — let alone decide — that an implied assertion tendered for the truth of its contents stands on a different footing, with respect to the hearsay rule, than an explicit assertion to the same effect. Unlike Ly, that is the issue here.
[54] And the issue now comes before us for the first time, though it has for at least half a century divided lower courts in several provinces: see, for example, R. v. Fialkow, [1963] 2 C.C.C. 42 (Ont. C.A.); Edwards; Wilson; R. v. Lucia, 2010 ONCA 533 (CanLII); R. v. Cook (1978), 10 B.C.L.R. 84 (C.A.); R. v. Nguyen, 2003 BCCA 556, 188 B.C.A.C. 218; R. v. Parchment, 2004 BCSC 1806 (CanLII); R. v. Williams, 2009 BCCA 284, 273 B.C.A.C. 86; R. v. Graham, 2013 BCCA 75 (CanLII); R. v. Ramsum, 2003 ABQB 45, 329 A.R. 370.
VI
[55] The highest courts of England and Wales, and Australia, have likewise concluded that the hearsay rule governs implied assertions, only to have these decisions reversed by statute: see Kearley; R. v. Bannon (1995), 132 A.L.R. 87 (H.C.); Criminal Justice Act 2003 (U.K.), 2003, c. 44, s. 115; Evidence Act 1995 (Aust.), No. 2, s. 59(1).
[56] In Canada, Parliament has not found it necessary or appropriate to adopt legislation classifying implied assertions as non-hearsay. This is, of course, entirely understandable in view of our principled and more flexible approach to exclusion.
[57] As noted by Feldman J.A., the facts in Kearley, the leading British decision, were similar to the facts in this case. In Kearley, the police raided the home of the accused on suspicion that he was selling drugs. Drugs were found, but in insufficient quantities to support an inference of drug trafficking. While the police were present at the accused’s residence, they intercepted ten telephone calls from callers asking to purchase drugs from him. Seven people also came to the apartment seeking to buy narcotics.
[58] The majority of the House of Lords concluded that the drug purchase calls and the in-person statements were inadmissible hearsay. Because they were phrased as requests for drugs, the statements did not directly assert but instead implied that the accused was a drug dealer. However, whether stated expressly or impliedly, their Lordships found the information communicated to be the same. In Lord Ackner’s words:
. . . if the inquirer had said in the course of making his request, “I would like my usual supply of amphetamine at the price which I paid you last week” . . ., the hearsay rule prevents the prosecution from calling police officers to recount the conversation which I have described. . . .
If [however] the simple request or requests for drugs to be supplied by the appellant, as recounted by the police, contains in substance, but only by implication, the same assertion, then I can find neither authority nor principle to suggest that the hearsay rule should not be equally applicable and exclude such evidence. What is sought to be done is to use the oral assertion, even though it may be an implied assertion, as evidence of the truth of the proposition asserted. That the proposition is asserted by way of necessary implication rather than expressly cannot, to my mind, make any difference. [pp. 363-64]
[59] Two main reasons have been urged against applying the hearsay rule to implied assertions.
[60] First, as Watt. J.A. states (at para. 83) and as the Crown argues, excluding implied assertions as hearsay has the potential of broadening the exclusionary rule, given that “[v]irtually every human action is based on some set of assumptions implicitly accepted and, on this approach, ‘asserted’ by the actor” (A.F., at para. 62, quoting McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at p. 7-21).
[61] Second, as critics of Kearley have pointed out, applying the hearsay rule to implied assertions such as drug purchase calls has the potential to deprive the trier of fact of reliable evidence and thereby impede the truth-finding process: see, for example, D. Birch, “Criminal Justice Act 2003 (4) Hearsay: Same Old Story, Same Old Song?”, [2004] Crim. L.R. 556, at pp. 564-65.
[62] The short answer to the first argument is that we are not concerned on this appeal with the application of the hearsay rule to assertions implied through non-verbal conduct. Our concern, rather, is with a quintessentially verbal statement.
[63] The issue of the applicability of the hearsay rule to inferences that can be drawn from non-verbal conduct is best left for another day. For present purposes, I find it sufficient to say that “one can engage in conduct without ever intending to communicate anything to anyone [but] the same is not true of speech or a combination of speech and conduct (for example, placing a bet) because the sole purpose of speech is communication”: Rice, at p. 536 (emphasis in original).
[64] The second concern mentioned above is greatly attenuated, I again emphasize, by Canada’s principled approach to hearsay.
[65] In Kearley, having found the evidence in that case to be hearsay, it was automatically excluded because it did not fall within a traditional exception to the hearsay rule.
[66] The Canadian approach suffers from no such inflexibility. Under our law, hearsay evidence that is not admissible under a traditional exception may nonetheless be admitted pursuant to a principled analysis of its necessity and reliability. This “sensible scheme” recognizes that “some implied assertions, like some express assertions, will be highly reliable even in the absence of cross-examination”: Finman, at p. 693. Pursuant to its terms, implied assertions that are necessary and reliable may be admitted while those that are unreliable or unnecessary will be excluded.
VII
[67] On the facts of this case, no traditional exception applies and the impugned evidence withers on a principled analysis. It satisfies neither the requirement of necessity nor the requirement of reliability.
[68] In Khelawon, necessity was conceded. Justice Charron nonetheless took care to note that
in an appropriate case, the court in deciding the question of necessity may well question whether the proponent of the evidence made all reasonable efforts to secure the evidence of the declarant in a manner that also preserves the rights of the other party. [para. 104]
This is the kind of “appropriate case” contemplated by Khelawon. And the answer is that the police made no effort at all to se