Her Majesty the Queen v. Bridgman

[Indexed as: R. v. Bridgman]

Ontario Reports

Court of Appeal for Ontario

Pardu, Huscroft and Fairburn JJ.A.

December 4, 2017

138 O.R. (3d) 721 | 2017 ONCA 940

Case Summary

Criminal law — Evidence — Hearsay — Accused convicted of possession of prescription drugs for purpose of trafficking — Search warrant of accused's phone resulting in finding incoming and outgoing texts — Outgoing texts admissible under party admission exception to hearsay rule — Probative value of outgoing texts very low without context of incoming texts — Trial judge not erring in admitting multiple incoming text messages to accused's cellphone requesting drugs under principled exception to hearsay rule — Trial judge erring in admitting all incoming text messages under documents in possession rule — Accused adopting only one series of text messages by responding to request for drugs — Mere arrival of text messages on accused's phone not constituting adoption — Trial judge properly instructing jury on use to be made of text messages.

The accused was convicted of possession of oxycodone, Percocet and clonazepam for the purpose of trafficking. The police seized his cellphone when they executed a search warrant at his residence and arrested him. They extracted text messages said to be related to drug trafficking. The admissibility of the outgoing messages was not in issue at trial, but the defence objected to the admissibility of the incoming messages, arguing that they were presumptively inadmissible hearsay. The trial judge admitted the incoming messages under the principled exception to the hearsay rule. Relying on the number of text messages and the unlikelihood that the declarants would testify about their desire to purchase drugs, the trial judge concluded that the criteria of reliability and necessity had been met. He found that the text messages were highly probative and had no prejudicial effect. He also admitted the text messages under the rule relating to documents in the possession of the accused. The accused appealed.

Held, the appeal should be dismissed.

When assessing the admissibility of the incoming texts, it would have been preferable to first focus on the purpose for which the evidence was tendered. The Crown had supported their admission under the documents in possession rule as original circumstantial evidence and alternatively using the principled hearsay approach. In this case, the initial lack of focus on the purpose for admitting the evidence caused no prejudice as both parties assumed the evidence was tendered for a hearsay purpose. The trial judge did not err in admitting the incoming text messages under the principled exception to the hearsay rule. The accused testified that he never used the text feature on his phone and asserted that the messages must have been sent and received by someone else. The quantity of the messages, repeating patterns of requests for different types of drugs, and one message directed to "Art" (the appellant's name was Arthur) enhanced their threshold reliability. On the issue of necessity, the trial judge accepted and relied on the evidence of the officer in charge of the investigation that he did not take any steps to locate the individuals associated with the phone numbers for the incoming messages as, in his experience, people in the drug subculture often have fake names assigned to their phones and in any event were unlikely to be willing to testify as they would be afraid to be labelled as "snitches". Moreover, threshold reliability and necessity work in tandem; the more reliable a statement, the less important the necessity analysis may become. The trial judge did not err in finding that to be the case here. Finally, the trial judge made no error related to the ultimate balancing of probative value against prejudicial effect.

The trial judge erred in admitting all of the incoming text messages under the documents in possession rule. Where evidence exists that documents found in the possession of an accused person were recognized, adopted or acted upon by the accused, the documents may be admitted as an exception to the hearsay rule. In this case, the accused adopted only one series of incoming text messages by responding to a request for drugs. The mere fact that a text message arrives on the accused's cellphone does not mean that it has been adopted. Even where it can be said that a message has been read, that does not constitute adoption sufficient to generate an exception to the presumptive rule of inadmissibility. However, the text messages were properly admissible under the principled exception to the hearsay rule, and the charge to the jury accorded with that purpose. The jury was properly instructed on the use to be made of the text messages. By the end of the charge on hearsay, the jury knew to treat the incoming text messages with caution, knew the dangers associated with them and knew that they had to consider whether the messages were even meant for the accused.

Authorities Referred To

Cases:

Textbooks:

Dennis, I.H., The Law of Evidence, 4th ed. (London: Thomson Reuters/Sweet & Maxwell, 2010)
Hill, S. Casey, David M. Tanovich and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, looseleaf, 5th ed. (Toronto: Canada Law Book, 2013)
Malek, Hodge M., Phipson on Evidence, 18th ed. (London: Sweet & Maxwell, 2013)
Paciocco, David M., and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law Inc., 2015)
Watt, David, Watt's Manual of Criminal Evidence (Toronto: Thomson Carswell, 2013)

Proceedings

APPEAL by the accused from the convictions entered by Arrell J. of the Superior Court of Justice, sitting with a jury, on September 22, 2015.

Counsel:

Andrew Furgiuele and Cara Barbisan, for appellant
Brian G. Puddington, for respondent

The judgment of the court was delivered by

FAIRBURN J.A.:

Overview

[1] On September 22, 2015, a jury found the appellant guilty of three counts of possession for the purpose of trafficking in oxycodone, Percocet and clonazepam. He appeals his convictions.

[2] The charges arose from evidence seized during the execution of a search warrant at the appellant's home. The police located numerous prescription drugs. A search incident to the appellant's arrest produced a cellphone. The police later extracted text messages said to be related to drug trafficking from the phone. The trial judge admitted the messages and instructed the jury that they could be used for the truth of their contents.

[3] This appeal turns on two questions:

(1) Were the text messages properly admitted into evidence?

(2) Was the jury properly instructed regarding the use of the text messages?

[4] The answer to both of these questions is yes. I would dismiss the appeal for the reasons that follow.

Background

[5] The police watched the appellant's home over a number of days. They saw people coming and going from his residence. A car would arrive, someone would quickly enter the residence, then leave, get back into the vehicle and the car would drive away. The police believed this recurring activity to be consistent with drug trafficking. They obtained a search warrant.

[6] The appellant was home when the police executed the warrant. The police located oxycodone, Percocet and clonazepam pills throughout the residence. Some of the pills were in the wrong pill bottles and some were in bottles that did not correspond to the appellant's name. The police also located drug paraphernalia. The appellant took responsibility for possession of the drugs.

[7] The appellant was arrested at home during the execution of the warrant. A search incident to the appellant's arrest uncovered more pills, $5,000 cash and a cellphone that was located in his pocket.

The Text Messages Voir Dire

(a) The facts

[8] The police obtained a warrant to search the contents of the seized phone. The lawfulness of the actual search was conceded.

[9] The police located multiple text messages that had been sent and received over a three-day period, totalling 30 incoming and ten outgoing messages. For purposes of this judgment, the term "outgoing message" refers to those messages sent from the phone. The term "incoming message" refers to those messages sent to and received by the phone.

[10] The admissibility of the outgoing messages was not in issue at trial. This was a reasonable position given that there was ample evidence that the outgoing messages constituted admissions by the accused: R. v. Evans, [1993] 3 S.C.R. 653, [1993] S.C.J. No. 115, at pp. 668-69 S.C.R. Although the appellant testified before the jury that he did not use the text message function on his phone, denying any knowledge of the text messages that had been extracted, he accepted that the phone was his and it was on his person when he was arrested. There was also one incoming message addressed to "Art", constituting further circumstantial evidence connecting the appellant to the phone and the text messages.

[11] The outgoing messages in this case were classic admissions and, assuming relevance, would have been admissible as a party admission exception to the hearsay rule: R. v. Foreman (2002), 62 O.R. (3d) 204, [2002] O.J. No. 4332 (C.A.), at para. 37, leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 199; R. v. Osmar (2007), 84 O.R. (3d) 321, [2007] O.J. No. 244, 2007 ONCA 50, at para. 53, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 157; and Evans, at pp. 664-69 S.C.R. Standing on their own, though, the outgoing messages had no probative value. Their relevance rested entirely on their relationship to the incoming messages. As such, the incoming messages became the focus of the admissibility voir dire.

[12] The incoming text messages originated from nine different phones. They included messages like:

"Can I come by at lunch for a few p's?"
"[D]o you whant those things the p"
"[Y]ou dont sell harder than oxys right?"
"[C]an i buy a few sleeping pills off you tomorrow? if u cant teext call moms cell love n miss u"

[13] The Crown elicited evidence during the trial proper that "p" is a common street term for Percocet and that "oxy" is a common street term for oxycontin.

[14] During the second day of trial, in the absence of the jury, Crown counsel expressed his intention to produce the text messages the following morning and then close his case. The next morning, defence counsel voiced his objection to the admissibility of the text messages for the first time, maintaining that they were implied assertions, the same as those at issue in R. v. Baldree, [2013] 2 S.C.R. 520, [2013] S.C.J. No. 35, 2013 SCC 35. Defence counsel took the position that they were presumptively inadmissible hearsay.

[15] When the trial judge expressed understandable concern about the timing of the defence objection, defence counsel said that he made a tactical decision not to raise the matter earlier out of concern that the Crown could take steps to remedy perceived deficiencies in establishing why the text messages should be admitted. As defence counsel put it: "it was my job to remain silent for fear that things could have been rectified".

[16] The trial judge excused the jury for the day and embarked upon an admissibility voir dire the following morning.

[17] The Crown called two witnesses. Sgt. Vuyk, the officer who had performed the work on the cellphone, was qualified on consent as an expert in the area of extracting text messages. Sgt. Vuyk's evidence was largely directed at the question of threshold reliability. He testified that he had used two tools in the extraction exercise, one for outgoing and one for incoming messages. He then took the extracted messages and merged them into a single document in chronological order. He testified that the document contained every text message located on the phone.

[18] Det. Bell, the officer in charge of the investigation, also testified. Det. Bell's evidence was largely directed at the question of necessity. He testified that he did not take any steps to locate the individuals associated to the phone numbers for the incoming messages. He acknowledged that once the text messages had been located, he did not think it was necessary to follow up with those who had sent the messages to the appellant's phone.

[19] Det. Bell had been involved in hundreds of drug investigations over the course of his career. While he acknowledged that a subscriber check could have been done on the numbers for the incoming messages, he stated that, in his experience, people operating in the drug subculture often have fake names assigned to their phones.

[20] Det. Bell testified that at most he could think of three times when he had successfully convinced someone to provide a statement to the police and could think of no situation where a person had come to court to testify that they had purchased drugs from an accused. He explained that for those living in the drug subculture, "it's almost the worst thing that you can be identified as, as a snitch or informant, so they stay well clear of that".

(b) The admissibility ruling

[21] Defence counsel maintained that, because the Crown was seeking the admission of presumptively inadmissible hearsay evidence, it was for the Crown to bring an application for admission. The trial judge rejected this position, construing the application as one brought by the defence to exclude evidence. Accordingly, the application was "dismissed" with written reasons to follow before the end of the trial.

[22] The written reasons were delivered two days following the conclusion of the trial. The admissibility analysis largely focused on the principled exception to the hearsay rule. Relying heavily on the number of text messages involved, and the unlikelihood that the declarants would testify about their desire to purchase drugs, the trial judge concluded that the twin criteria of threshold reliability and necessity had been met. He also found that the text messages were highly probative and had no prejudicial effect. The text messages were admitted as hearsay statements.

[23] The written ruling also appears to hold that the text messages were admissible as original circumstantial evidence, constituting "evidence of trafficking" under the "rule relating to documents in possession of the accused". It should be noted, however, that the parties agree that the jury was only charged on a hearsay purpose for the messages.

Issues and Analysis

I. Were the text messages properly admitted?

(a) The parties' positions

[24] The appellant maintains that because the messages contain implied assertions, akin to the implied assertion in Baldree, the only route to admissibility was the principled approach to the hearsay rule. According to the appellant, the trial judge erred in respect to both threshold reliability and necessity when he applied the rule. The appellant also claims that he was prejudiced by not learning the purpose for which the text messages were admitted until receiving the draft jury charge.

[25] The Crown takes the view that, although the text messages were used for a hearsay purpose, there was no need to consider admissibility under the principled approach to the hearsay rule. He encourages this court to find that text messages found on an electronic device located in the possession of an accused are prima facie admissible for the truth of their contents under the documents in possession rule. If he is found to be wrong in this submission, then the Crown maintains that the trial judge committed no error in his analysis of threshold reliability and necessity.

[26] Finally, Crown counsel argues that the parties knew from the outset that the messages were admissible for the truth of their contents and, in any event, even if there was uncertainty around this use, no prejudice resulted.

[27] The submissions raise three discrete, but interrelated, issues. I propose to address them in the following order.

[28] I will first consider the appellant's submission that the lack of clarity about the purpose for which the text messages were admitted created unfairness and, essentially, resulted in a miscarriage of justice. Second, I will consider whether the incoming texts were admissible under the principled exception to the hearsay rule. This analysis leans heavily on Baldree. The analysis is of particular importance on appeal given that the texts were left with the jury as admissible for the truth of their contents. Third, I will consider whether the texts were admissible as documents found in the possession of the appellant.

(b) Clarity around the purpose for admission

[29] Crown counsel at trial advanced two alternative arguments for the admission of the incoming text messages at the voir dire: (a) admissibility for a hearsay purpose under the principled approach; or (b) admissibility under the documents in possession rule for a hearsay purpose and as original circumstantial evidence.

[30] After the trial judge ruled the messages admissible, with written reasons to follow, defence counsel asked for clarification on the purpose for which the evidence could be used. He specifically noted that the Crown had advanced a dual purpose for admission. The trial judge replied that it would be for "whatever purpose the Crown is going to allege it's going to be called for", ruling that the evidence would be heard first.

[31] On a few occasions over the next few days, defence counsel renewed his request for an articulation of the use to which the text messages could be put. The trial judge said that it would depend on submissions after all of the evidence had been heard. It was only after the draft jury charge had been distributed, at the end of trial, that it became clear that the jury would be permitted to use the text messages for a hearsay purpose.

[32] As with all admissibility questions, the first issue to be addressed is the purpose for which the evidence is sought to be tendered. The answer to this question will necessarily inform the relevance of the evidence, the admissibility analysis to be conducted and the legal conclusion reached: S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, looseleaf, 5th ed. (Toronto: Canada Law Book, 2013), at para. 24:30.

[33] I agree with the appellant that the answer to this question remained elusive until the end of trial, when the draft charge made it clear that the evidence was admissible for a hearsay purpose. Even so, I see no prejudice arising from the after-the-fact articulation of the purpose for which the evidence could be used. The record reveals that everyone proceeded on the assumption that the text messages were being elicited for a hearsay purpose. Moreover, the appellant has not suggested that he would have done anything differently had the trial judge earlier stated that the jury would be permitted to use the text messages for a hearsay purpose.

[34] Whether the messages were admitted for a hearsay purpose or as original circumstantial evidence, the appellant's position would have been the same. He testified that he did not use the text messaging function on his phone. He denied any involvement in the text messages, suggesting someone else must have been using his phone for this purpose. Regardless of whether the text messages were admitted for a hearsay purpose or as original circumstantial evidence, it is hard to imagine that the appellant's evidence would have been any different or that the defence would have unfolded any differently. No suggestion to the contrary has been advanced. Quite simply, no prejudice resulted from the lack of clarity on this point.

[35] This is not to say, however, that this manner of proceeding should be encouraged. Although it is understandable and even laudable that the trial judge was concerned about moving this jury trial forward, and that defence counsel's late-in-the-day objection to the admission of the text messages threatened its efficient progress, the purpose for admission should have been addressed at the outset and guided the approach to admissibility.

[36] One can well imagine situations where a lack of precision on the purpose for admissibility might well cause prejudice. For instance, prejudice might result where a party takes a step that would not have been taken had the party known the purpose for admission in the first place. While the purpose for admission of evidence may evolve with the fluidity of a trial, it is open to the parties to raise these evolving issues as they arise. Although prejudice did not result in this case, this finding should not be construed as supporting a free-floating approach to admissibility.

(c) The principled exception to the hearsay rule

(i) Standard of review

[37] The standard of review for a hearsay admissibility ruling is one of correctness: R. v. Duong (2007), 84 O.R. (3d) 515, [2007] O.J. No. 316, 2007 ONCA 68, at para. 54. Absent manifest error, the findings of fact upon which the ruling rests must be accepted.

[38] A correctness standard applies to the "ultimate question of whether the trial judge properly applied the criteria relevant to the admissibility of the evidence to the facts as found by the trial judge": R. v. Merz (1999), 46 O.R. (3d) 161, [1999] O.J. No. 4309 (C.A.), at para. 49, leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 240. Absent a demonstrated error, decisions regarding whether the circumstances support threshold reliability and necessity, and the balance between probative value and prejudicial effect, are owed deference: R. v. Carroll, [2014] O.J. No. 2, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 112, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 193.

(ii) Hearsay and implied assertions

[39] The defining feature of hearsay evidence is that it constitutes an out-of-court statement by a non-testifying declarant that is tendered to prove the truth of its contents: R. v. Bradshaw, [2017] S.C.J. No. 35, 2017 SCC 35, 349 C.C.C. (3d) 429, at para. 1; R. v. Khelawon, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 2006 SCC 57, at para. 56; and Baldree, at para. 30. The unknown people sending the text messages are the out-of-court declarants in this case.

[40] Hearsay is presumptively inadmissible because of the accepted dangers arising from this type of evidence. Declarants may have misperceived or wrongly remembered facts, been unintentionally misleading in the account given, or knowingly made a false statement. Eliciting statements in the absence of declarants deprives the trier of fact of the opportunity to observe their demeanour and see the potential concerns over reliability fully explored: Baldree, at paras. 31-32; Khelawon, at paras. 2, 35; and Bradshaw, at paras. 20, 26.

[41] The presumptive rule against the admission of hearsay evidence applies equally to express and implied assertions tendered for the truth of the assertion. The truth of an implied assertion "hinges on the truth of the declarant's underlying belief": Baldree, at para. 39. Both implied and express assertions elicited to prove the truth of "what the person not called as a witness is alleged to have asserted" trigger the application of the hearsay rule: Baldree, at para. 4.

[42] For example, in Baldree the Supreme Court concludes that no meaningful distinction can be drawn between a declarant who says that an accused is a drug trafficker and a declarant who asks to buy drugs from the accused. The express and implied assertions of fact are the same: the accused is a drug dealer. When elicited for the truth of the assertion, they both constitute hearsay evidence and they are both presumptively inadmissible.

[43] The presumption can be displaced only where the evidence fits within a categorical exception to the rule or satisfies the principled exception: Khelawon, at para. 42; and R. v. Mapara, [2005] 1 S.C.R. 358, [2005] S.C.J. No. 23, 2005 SCC 23, at para. 15. The principled exception focuses on the well-known criteria of threshold reliability and necessity: Khelawon, at para. 47. Even where these twin criteria are met, judges retain a residual discretion to exclude an out-of-court statement where its probative value is outweighed by its prejudicial effect: Khelawon, at para. 49.

[44] In this case, the trial judge concluded that the text messages were admissible under the principled approach.

(iii) Threshold reliability

[45] On the issue of threshold reliability, the appellant maintains that the trial judge erred by (a) failing to consider that there was no evidence that the appellant was the intended recipient of the incoming messages; and (b) failing to consider that the text messages taken from the phone constituted incomplete communications. I will address the appellant's arguments in this order.

[46] The appellant testified that he did not use the text message feature on his phone. He testified that the messages must have been sent and received by someone else. He relies upon this testimony to support his submission that the trial judge erred in his assessment of threshold reliability by failing to consider that there was no evidence that the appellant was the recipient of the messages.

[47] This submission cannot succeed. The first time the court heard that the appellant did not use the text message feature on his phone was when he testified after the Crown had closed its case, after the admissibility ruling had been made.

[48] Even if the appellant had testified on the voir dire, it would not have made a difference to admissibility. There was considerable evidence that the incoming texts were directed to the appellant. It was his phone. He was in possession of it at the time of his arrest. The appellant's first name is Arthur. One of the text messages was directed to "Art my friend".

[49] There was ample evidence allowing the matter to be left with the jury for their consideration. The appellant's suggestion that he was not the intended recipient of the messages did not impact threshold reliability or admissibility in general.

[50] As for the submission that the trial judge also erred by failing to consider that the text messages were incomplete, I do not agree. During the trial proper, the Crown's expert acknowledged that there may have been missing messages. Although he said that he had retrieved every message stored on the phone, he was unable to say whether there were messages that may not have been saved on the phone. Nor could he say whether the incoming text messages had been read.

[51] Notably, the admissibility ruling was made before any of the evidence upon which the appellant relies was elicited. During the voir dire, the defence attacked threshold reliability only on the basis that the Crown had not, by that point, called evidence regarding the meaning of the terms used in the text messages, like "p" and "oxy". The completeness of the text message record was not challenged during the voir dire.

[52] Even if the expert had been asked about the completeness of the record during the voir dire, it would not have made a difference to threshold reliability. Although the appellant advances the incontrovertible position that in some situations, where parts of conversations are missing, statements may be taken out of context, this is not one of those cases: R. v. Ferris, 1994 ABCA 20, [1994] A.J. No. 19, 149 A.R. 1 (C.A.), at paras. 17-23, affd , [1994] 3 S.C.R. 756, [1994] S.C.J. No. 97.

[53] Standing alone, many of the text messages are clear and open to little interpretation. For instance, questions like "do you whant those things the p", "you don't sell harder than oxys right", and "can I buy a few sleeping pills off you tomorrow", require little effort by way of interpretation. When considered in context, others also take on clarity. For example: "Cmon bud reply the ol lady is bugging she doesnt get her own til Monday so far ur on our xmas list dont ruin it"; or an incoming message saying "[w]e need u again today" from a person who had written and asked for "p's" the previous day.

[54] It is hard to imagine how a cross-examination would probe any serious issues about perception, memory, narration or sincerity in relation to the above statements. They were committed to a permanent electronic record. Although the expert acknowledged that there could be text messages missing, there was no evidence that the messages retrieved were anything but an accurate reflection of the statements made.

[55] The quantity of the messages, repeating patterns of requests for different types of drugs, only enhances their threshold reliability: Baldree, at para. 71. The majority in Baldree relied upon a passage taken from I.H. Dennis, The Law of Evidence, 4th ed. (London: Sweet & Maxwell, 2010), at p. 708, to make the point that one or two callers might be mistaken, "or might even have conspired to frame the defendant as a dealer, but it defied belief that all the callers had made the same error or were all party to the same conspiracy".

[56] This court has previously accepted that where there are multiple drug calls, threshold reliability may be enhanced: R. v. Malcolm-Evans, [2016] O.J. No. 214, 2016 ONCA 28, at para. 7; see, also, R. v. Belyk, [2014] S.J. No. 120, 2014 SKCA 24, 433 Sask. R. 195, at paras. 24-25. The principle is simple; the more people who write to someone about obtaining drugs, the less likely it is that the declarants are all suffering from the same misperception, wrongly remembering something, engaged in unintentionally misleading behaviour or all knowingly making false statements.

[57] Although every hearsay question is informed by its own facts, one statement about obtaining drugs may be explained by some alternative explanation -- a wrong number, a wrong impression or a wrong understanding. But multiple statements that have the same theme may render implausible any explanations other than that the originators of the communication are asking for drugs.

[58] It was open to the trial judge to conclude that the text messages met the test for threshold reliability. There is no error in his approach.

(iv) Necessity

[59] On the issue of necessity, the appellant alleges that the trial judge erred by failing to properly apply the requirements placed on the police to track down declarants, requirements said to be set out in Baldree.

[60] It must be remembered that Baldree involved a single phone call by a declarant who gave his address to the police officer when they spoke. In these circumstances, the majority maintained that the police should have taken the steps that were open to them at the time that the call took place, to find the declarant.

[61] Yet, as noted by the trial judge, even the majority judgment in Baldree was careful to distance itself from a categorical rule related to necessity when it came to drug-purchase calls: Baldree, at para. 70. The majority in Baldree, at para. 72, commented on the fact that the number of callers may inform necessity: "The Crown cannot be expected, where there are numerous declarants, to locate and convince most or all to testify at trial, even in the unlikely event that they have supplied their addresses." See, also, Baldree, at para. 107; and R. v. Gerrior, [2014] N.S.J. No. 413, 2014 NSCA 76, 348 N.S.R. (2d) 354, at para. 52.

[62] Unlike Baldree, there was evidence in this case regarding why the police did not take steps to locate the declarants. Det. Bell's evidence has been reviewed previously. He had detailed experience with drug investigations. The trial judge relied heavily on this evidence and his findings are entitled to deference.

[63] Moreover, threshold reliability and necessity work in tandem. The more reliable a statement, the less important the necessity analysis may become. The criterion of necessity and reliability are said to intersect and "should not be considered in isolation": Khelawon, at para. 77. As they coexist in this symbiotic relationship, they may impact one another: Khelawon, at paras. 77, 86; and Baldree, at paras. 72, 96. The trial judge did not err in finding this to be the case here.

(v) The balancing exercise

[64] The appellant has not argued that the trial judge made an error related to the ultimate balancing of probative value against prejudicial effect. The appellant does not point to any particular prejudicial effect from the admission of the messages. While prejudice can arise from the risk that a jury may misuse evidence, there was no risk here. The probity of evidence does not create prejudice. I can see no prejudice arising from the evidence in this case.

(vi) Conclusion

[65] The appellant has failed to show an error in the approach to the principled exception to the hearsay rule.

(d) The documents in possession rule

(i) General approach to the rule

[66] I now turn to the Crown's primary argument, that the text messages were admissible under the documents in possession rule and that the trial judge was right to admit them on this basis.

[67] The documents in possession rule is one of long standing: see Rex v. Smart & Young, [1931] O.R. 176, [1931] O.J. No. 406, 55 C.C.C. 310 (C.A.), at p. 313 O.R.; R. v. Turlon, [1989] O.J. No. 524, 49 C.C.C. (3d) 186 (C.A.), at p. 190 C.C.C.; R. v. Ansari, [2015] O.J. No. 4355, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 116; and British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, [1995] S.C.J. No. 32, at p. 33 S.C.R. The rule applies to paper and electronic documents alike: Ansari, at para. 154; and R. v. An, [2015] O.J. No. 6059, 2015 ONCA 799, at paras. 15, 17.

[68] The rule is designed to permit the admission of documents in two different circumstances for two different purposes.

[69] First, the rule allows for the admission of documents found in personal, constructive or joint possession of an accused as original circumstantial evidence of their contents to establish the accused's connection to or complicity in the matter to which the documents relate: Ansari, at para. 116. Second, where evidence exists that the accused has recognized, adopted or acted upon the documents found in possession, the documents may be admitted as an exception to the hearsay rule, allowing the trier of fact to consider them for the truth of their contents. As noted in British Columbia Securities Comm., at p. 33 S.C.R., "if the party in possession has recognized, adopted or acted on the document an admission of acceptance of its contents as true may be inferred".

[70] This court addressed the dual nature of the admissibility doctrine in Turlon. The court adopted as correct the following passage from Hodge M. Malek, Phipson on Evidence, 18th ed. (London: Sweet & Maxwell, 2013), at 37-10, pp. 1326-27, which remains substantively unchanged today:

Documents which are, or have been, in the possession of a party will . . . generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e. exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognised, adopted or acted upon them.

[71] Text messages are documents containing out-of-court statements. I reject the position that Baldree forecloses their admissibility under the documents in possession rule. When text messages are found in possession, they may be considered for admission as either original circumstantial evidence or hearsay. It all comes back to the purpose for admission.

(ii) Documents in possession as original circumstantial evidence

[72] If a document found in possession is elicited for a non-hearsay purpose -- as original circumstantial evidence showing the accused's connection to or complicity in a matter -- then the hearsay rule is not activated: R. v. Black, [2014] B.C.J. No. 1003, 2014 BCCA 192, 309 C.C.C. (3d) 484, at paras. 36-38, 40-41; and David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law Inc., 2015), at p. 117. This is true even where documents may contain out-of-court statements that can be understood as express or implied assertions if tendered for the truth of the assertion.

[73] In Baldree, at para. 36, the majority was careful to point out that "[n]o evidence is hearsay on its face . . . its admissibility depends on the purpose for which it is sought to be admitted" (emphasis in original). The key to the hearsay finding in Baldree is that the court was satisfied that the declarant's statement was elicited for the truth of the implied assertion, that Mr. Baldree was a drug dealer: see Baldree, at para. 37. The majority specifically observed that the evidence was not tendered as "circumstantial evidence that the respondent was engaged in drug trafficking": Baldree, at para. 39.

[74] Accordingly, Baldree does not stand for the proposition that anything that can be construed as an implied assertion is necessarily hearsay. This becomes even more clear when one considers that R. v. Ly, [1997] 3 S.C.R. 698, [1997] S.C.J. No. 90, affg 1996 ABCA 402, [1996] A.J. No. 1089, 193 A.R. 149 (C.A.), remains good law: Baldree, at paras. 52-53. In Ly, the court commented upon the admissibility of an unknown declarant's out-of-court statement, setting up a time and place for a drug drop. The statement was referred to as one of "intention, or a statement tendered to establish the alleged drug transaction, and hence not tendered for the truth of its contents": Ly (S.C.C.), at para. 3.

[75] Baldree does not disentitle a party from seeking the admission of a document found in possession as original circumstantial evidence. This includes text messages. The critical question is the purpose for which the document is tendered. It is up to the party seeking to admit the text messages to clearly articulate the non-hearsay purpose for which they are admissible.

[76] Of course, resort to this doctrine cannot constitute an end-run around the hearsay rule. If the circumstantial value of the evidence turns on the truth of the assertion made by the non-testifying texter, then the traditional hearsay concerns will be present.

[77] If, though, the relevance of the evidence does not depend on the truth of the assertion, the text messages may be admitted on the basis that they constitute original circumstantial evidence relevant to an issue at trial. By way of example only, text messages may constitute original circumstantial evidence connecting the accused to a location, transactions, or people, or demonstrating knowledge, state of mind and so on. I emphasize that these are only examples and should not be considered a complete or aspirational list.

[78] The fact is, though, that at the end of trial in this case, the messages were used for a hearsay purpose. Reasoning backwards from how the text messages were used, the alternative basis for admission endorsed in the trial judge's written reasons -- original circumstantial evidence -- does not accord with the purpose to which the text messages were ultimately put. As such, this basis for admission requires no further comment.

(iii) Documents in possession as hearsay

[79] As for the second prong of the documents in possession rule, which constitutes an exception to the hearsay rule, the Crown also argues that all of the incoming text messages constitute admissions that were "adopted". He argues that the adoption crystalized in two specific situations where the appellant is said to have responded to incoming messages.

[80] Crown counsel also argues that by virtue of coming to rest on the phone found in his possession, the messages were adopted within the meaning of the documents in possession rule. Although it is important to recall that the documents in possession rule speaks in terms of documents being "recognised, adopted or acted upon" (emphasis omitted), these reasons focus on the Crown's argument of adoption: Turlon, at p. 191 C.C.C.

[81] As above, documents can become admissions for the proof of their contents where the accused has adopted the statement: British Columbia Securities Comm., at p. 33 S.C.R.; and Turlon, at p. 191 C.C.C. This is really just a restatement of the adopted admissions rule, with the added requirement that the document must be found in the accused's possession.

[82] In the context of oral statements, an adoptive admission is a statement made by another person in the presence of the accused, where the accused can be said to have adopted the statement. Adoption occurs only where the accused expressly or impliedly assents to the truth of the statement. Adoption can occur by a variety of means, including words, actions, conduct or demeanour: R. v. Robinson (2014), 118 O.R. (3d) 581, [2014] O.J. No. 272, 2014 ONCA 63, at para. 48, citing David Watt, Watt's Manual of Criminal Evidence (Toronto: Thomson Carswell, 2013), at para. 36.04.

[83] In circumstances that call out for a reply, adoption may also be interpreted from silence: Robinson, at paras. 48-49. As Martin J.A. noted in R. v. Baron (1976), 14 O.R. (2d) 173, [1976] O.J. No. 2304 (C.A.), at p. 187 O.R.: "The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to have replied to them." See, also, R. v. Eden, [1970] 2 O.R. 161, [1969] O.J. No. 1570 (C.A.), at pp. 163-64 O.R. In these circumstances, silence allows for an "inference of assent", also referred to as adoption.

[84] Crown counsel relies upon two series of text messages to show what is said to be adoption by words:

December 13, 2010: 10:35 a.m. to 1:26 p.m.

Incoming: u awake yet?
Outgoing: I live
Incoming: Can I come by at lunch of a few p's?
Outgoing: What time is lunch
Incoming: 12
Outgoing: Ok
Incoming: Thanks. Cya soon

[The conversation then continues about a different meeting time and place.]

December 15, 2010: 10:39 to 11:29 a.m.

Incoming: hey it is rob you at home
Outgoing: Im home coum by
Incoming: do you whant those things the p 1

[85] As for the first series of exchanged messages on December 13, 2010, there is clear evidence of adoption. The implied assertion is that the person wants to come by for "p's" because the appellant sells Percocet. By agreeing to allow the person to come by, the appellant can be said to have impliedly assented to the truth of the assertion. This is a classic adoptive admission. The documents in possession rule would permit admissibility of this series of text messages for a hearsay purpose.

[86] As for the series of messages exchanged on December 15, 2010, I do not see them in the same light. There was no response to the question "do you whant those things the p". There is simply no basis upon which to construe explicit or implicit adoption.

[87] Just because a text message arrives on a cellphone does not mean it has been adopted. Even where it can be said that a message has been read, this does not constitute adoption sufficient to generate an exception to the presumptive rule of inadmissibility.

[88] Allowing such easy passage of hearsay evidence into a trial, merely because an out-of-court statement lands on an accused's electronic device, would seriously compromise trial fairness. An accused should not be rendered vulnerable to the whims of others and messages they may send by way of electronic communication. It cannot be that the mere act of receiving a message on one's electronic device constitutes the act of adoption, thereby transforming the statement into an adoptive admission.

[89] Other than the one series of messages set out above, there is no evidence of the appellant recognizing, adopting or acting on the messages.

[90] In relation to a few of the messages, there is some evidence to the contrary. Some of the messages were received after the appellant had already been arrested. For example, the message pertaining to whether the declarant could "buy a few sleeping pills" came in following the appellant's arrest. Not only was he not in possession of his phone any longer, but he could not adopt something he could not possibly read.

[91] In the end, only the one series of text messages from December 13, 2010 could be considered adopted admissions under the documents in possession rule. Despite the fact that they could have been admissible on this basis, the jury was not charged respecting how to approach adoptive admissions.

[92] The necessary elements of such a charge are discussed in Robinson, at paras. 48-58; and more recently in R. v. Zvolensky (2017), 135 O.R. (3d) 401, [2017] O.J. No. 1655, 2017 ONCA 273, at paras. 150-53, leave to appeal filed October 19, 2017, [2017] S.C.C.A. No. 403. Had this been the sole basis for admissibility, the jury charge would have fallen short of the mark as the messages were treated as general hearsay and not as adoptive admissions.

(iv) Conclusion

[93] Despite the potential admissibility of some of the text messages under the documents in possession rule, given how the jury was instructed in this case, the rule cannot justify admissibility on appeal. Despite this fact, as discussed previously, the text messages were properly admissible under the principled exception to the hearsay rule and the jury charge accorded with this purpose. I will now discuss the charge.

II. Was the jury properly instructed on the use to be made of the text messages?

[94] The appellant raises two matters respecting the charge. He argues that (a) given that by the end of trial the Crown had conceded that he could not prove that the appellant had read or sent the text messages, the trial judge was wrong to leave the text messages for a hearsay purpose; and (b) the charge was inadequate as it related to the dangers associated to the text messages.

(a) The Crown's closing

[95] I do not agree that the Crown's closing undermined the hearsay character of the text messages.

[96] In advancing this position, the appellant latches onto Crown counsel's acknowledgement in the pre-charge conference that he was "very clear" with the jury in his closing that he "did not prove absolutely that Mr. Bridgman read those texts that were incoming and we couldn't say that he's the one that sent them". The relevant passage in the Crown's closing argument is as follows:

[S]omebody must have been comfortable enough to send that type of explicit message to Mr. Bridgman when they know that there is going to be receptiveness to it. Who randomly just sends out to the world a text message that -- where that person wishes to engage in criminal activity. So, does that mean that Mr. Bridgman read it? No, I can't prove that. Does this prove that Mr. Bridgman sent those reply messages? I can't prove that, when you look at it in isolation, but when you look at the totality of it, the $5,000.00 of cash in the pocket, the oxycodone 80s in his pocket. . . . In my submission when you look at it as a whole, again . . . there is an inescapable and irresistible inference of one thing, that Mr. Bridgman is a drug trafficker.

[97] The appellant maintains that this passage demonstrates that the Crown moved away from a hearsay purpose for the messages. I disagree.

[98] In the context of the closing as a whole, the Crown's position is clear. Although Crown counsel noted the obvious, that he could not prove that, standing on their own, the text messages were sent or received by the appellant, considering the evidence as a whole, the jury was well positioned to come to this conclusion. Crown counsel threaded this idea throughout his closing submissions, including posing the following rhetorical question for the jury's consideration in response to the appellant's evidence that someone else must have been using his phone for text messaging:

But I have to ask you, is it reasonable to think that somebody is going to be a drug trafficker of prescription pills and use somebody else's phone to engage in that business, hoping that they have possession of the phone when people reply or that they'll have access to the phone when somebody might text them and say, hey, I need some pills now, at lunch? That defies common sense.

[99] The Crown clearly advanced the position that it was the appellant's phone and that he was the one using the text messaging function. The Crown did not resile from his position that the text messages came back to the appellant. Nor did he resile from his position that they could be used for a hearsay purpose.

(b) The content of the charge

[100] The appellant takes the position that there is a fundamental flaw in the trial judge's charge. He argues that the trial judge erred by leaving the impression that the text messages were reliable hearsay, and that the jury should have been notified of the hearsay dangers affecting the ultimate reliability of the messages. I do not accept this submission.

[101] The question of ultimate reliability is for the jury: Khelawon, at para. 3. Ultimate reliability is determined by the trier of fact, assessing whether and to what degree the statement should be believed and relied upon to determine the issues in the case: Bradshaw, at para. 39. This determination is made against the backdrop of all of the evidence: Khelawon, at para. 3.

[102] The charge brought home to the jury their need to carefully consider the text messages. The trial judge commenced by explaining that hearsay evidence "occurs when one person tells you what another person says and that person is not here to tell you directly". He explained that hearsay evidence is generally excluded because "it is not considered reliable" for the following reasons: "The person is not under oath, is not cross-examined and you cannot watch the person give their testimony in person."

[103] Having explained the dangers of hearsay evidence, the trial judge went on to explain that there "was an exception" in this case -- the text messages. The appellant maintains that by referring to the text messages as an "exception", the jury would have understood this to mean an "exception" to the hearsay dangers. I disagree.

[104] Read in context, the jury would have understood the trial judge to be referring to an "exception" to what he had just described as the typical rule that hearsay is not admissible. His comment was immediately followed by reference to the same hearsay dangers he had just reviewed:

There was an exception that you heard in this trial being the text messages to Mr. Bridgman's cell phone. The people who made these texts are unknown and they were not here to tell you the context in which these texts were sent, what they meant, or even if they were meant for Mr. Bridgman.

[105] The trial judge then reviewed for the jury the Crown and defence positions respecting the messages, positions that were repeated later in the charge when summarizing the global positions of counsel. The trial judge specifically adverted to the defence position regarding the absence of reliability attaching to the record of text messages later in his charge.

[106] The hearsay portion of the charge was completed with the following observation: "It is for you to decide how much or how little you rely on this evidence but I emphasize it is only one part of all the evidence you heard and you must consider all of the evidence in reaching your decision."

[107] By the end of the charge on hearsay, the jury knew to treat the text messages with caution, knew the dangers associated to them, and knew that they had to consider whether they were even meant for the appellant. The jury charge was adequate to the task.

Conclusion

[108] I would dismiss the appeal.

Appeal dismissed.

Notes

1 Although Crown counsel relies upon an outgoing text message following the inquiry about "p" as part of this string of text messages, it is an outgoing message to a different number and, therefore, not part of the same text conversation.

End of Document