ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CRIMJ(F)1898/12
Date: 2014-08-25
Parties
HER MAJESTY THE QUEEN
Holly A. Akin, for the Crown
Respondent
- and -
PHILIP SARGEANT
Mr. P. Aubin, for the Applicant
Applicant
RULING RE: ADMISSIBILITY OF RASTA’S PHONE NUMBER IN
MR. ERNEST WILSON’S CELL
Fragomeni J.
[1] I am satisfied that the Crown is permitted to lead the evidence found on the cell phone seized from Mr. Wilson relating to the name Rasta and the phone number associated to that name. I am satisfied that the evidence is admissible.
[2] This is a non-verbal communication and I cannot agree with the defence position that it is hearsay. The purpose for which admission is sought as articulated by the Crown is to establish the state of mind of the person who put in the phone the name Rasta and the associated phone number.
[3] In R. v. Baldree, 2013 SCC 35, [2013] S.C.J. No. 35 the Court set out the following at paras. 36 to 40 and 62 to 63:
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.
37 Plainly, in this case, the Crown adduced Stg. 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.
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 t]he 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).
[4] In R. v. Ticknovich, [2003] A.J.No. 1292 Watson J. set out the following at paras. 374 to 379:
374 Detective Shorter confirmed that Harry had phone records which included all the numbers in Exhibit 54. One of those numbers was for "Nickole" at 709-4449. Exhibit 54 was a piece of paper with names and phone numbers which Detective Kirtio took off the menu of Lance Harry's cell phone in his handwriting as they drove downtown.
375 The phone number 974-2126 was a number written on Exhibit 54 with a circle around it. Det. Kirtio did not recall what that number was. The name Lance was also on there with his handwriting. All the rest was his handwriting including the reference to "Nickole" and the related phone number 709-4449. Detective Kirtio at trial did not recall the type or make of the cell phone. He did not recall if he wrote everything done from the cell phone. He had no notes prepared in connection with this matter.
376 As with the statements of Harry to Detective Shorter and his selection of the Defendant from a photo lineup, I must be cautious as to this evidence of what was on his telephone as it also is largely hearsay. However, as compared with the photo lineup identification evidence, which existed because of police interview and was thus created under circumstances not proven to involve circumstantial guarantees of trustworthiness, I consider the Harry phone number and the "Nickole" phone number in the list to be admissible hearsay in this case.
377 In light of other evidence that the Defendant was associated with phone number 709-4449, the discovery of a cell phone in the possession of Harry which had a record of a name comparable to the Defendant's and with the same phone number is, in my view, some circumstantial evidence that the possessor and user of that phone, Lance Harry, was familiar with someone named "Nikole" with that phone number. The Defendant's fingerprints located on documents found in Harry's vehicle should not be isolated from this.
378 In my view, the recording of a phone number and name on a cell phone no one would assume would fall into police hands has a measure of ordinariness and resort to a convenience by Lance Harry which, in my view, conveys a circumstantial guarantee of trustworthiness to it related to its coming into existence within the meaning of Starr.
379 Moreover, the default of appearance by Harry - whom, I concluded, had been made aware of the subpoena for his attendance - is sufficient to establish the level of necessity that the admissibility test contemplates. In this respect, I also bear in mind that this evidence is a comparatively small but not insignificant piece of a larger circumstantial evidence package offered by the Crown. I do not discern prejudice or unfairness to the Defendant arising from admission of this evidence that exceeds the probative force of this evidence.
[5] I am satisfied that this evidence would also be admissible under the principled exception as the circumstantial guarantee of trustworthiness is met, as was the case in Ticknovich.
[6] Necessity is met by the fact that Mr. Ernest Wilson absconded during the preliminary hearing so he is not before the Court. The reliability issue is also met in this case.
[7] The police seized the phone from under the bed in which Mr. Wilson was sleeping. The Rasta number is the number used to send the text to Mr. Fraser at the time she was arrested. In addition to that, Mr. Datta testified that the person who bought the travel tickets from him used that cell phone number as well.
[8] The ultimate reliability of this piece of evidence will be left to the jury and the jury will make that determination having heard the totality of the evidence called at trial.
Fragomeni J.
Released: August 25, 2014
COURT FILE NO.: CRIMJ(F)1898/12
DATE: 20140825
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
PHILIP SARGEANT
RULING RE: ADMISSIBILITY OF RASTA’S PHONE NUMBER IN
MR. ERNEST WILSON’S CELL
Fragomeni J.
Released: August 25, 2014