CITATION: R. v. Browne, 2017 ONSC 5048
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 08 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Alex Cornelius and Greg Hendry, for the Crown
- and -
STEVEN BROWNE, AMAL GREENSWORD and ADRIAN WILLIAMS
Anthony Bryant and Anne Marie Morphew, for Mr. Browne
Nicole Rozier and Leah Gensey, for Mr. Greensword
Maureen Addie and Jamie Kopman, for Mr. Williams
HEARD: Sept 12, 2016 to July 31, 2017
REASONS FOR RULING (EXHIBIT 110 HEARSAY)
COROZA J.
(i) Overview
[1] On March 8, 2017, I released an endorsement that dealt with Ms. Morphew’s argument that the contents of text messages contained in Exhibit 110 could be considered by the jury for a non-hearsay purpose. I disagreed with Ms. Morphew, and undertook that I would deliver written reasons on this ruling.
[2] Exhibit 110 contains cell-phone records (“Telus records”) for a Telus phone number, 647-458-0056. The Telus records contain text messages sent and received on this phone number. The Telus records were introduced by Ms. Morphew during her cross-examination of a Crown witness, Alyssa Azoulay.
[3] Ms. Azoulay is an employee of Wind Mobile, another cell phone provider in Ontario. The Crown called Ms. Azoulay to introduce cell phone records (“Wind records”) for a Wind phone number, 647-606-9424. The Crown’s theory was that the Wind phone number belonged to Scarface (also known as Mr. Greensword).
[4] During her cross-examination of Ms. Azoulay, Ms. Morphew showed her the Telus records. Ms. Azoulay agreed that the records showed a Wind mobile phone number on them. Ms. Morphew then attempted to have the records entered as a numbered exhibit. The Crown objected.
[5] In a ruling released on January 30, 2017, I held that the Telus records would be entered as a numbered exhibit.
[6] During the trial, Ms. Morphew argued that Mr. Browne was the user of the Telus phone number. She attempted to confront the Crown’s theory that Mr. Browne’s phone number at the time of the shooting was 647-862-9200. Counsel sought to do that with the Telus records.
[7] Ms. Morphew successfully articulated this theory during her cross-examination of Ms. Success Akonzee, Mr. Browne’s ex-girlfriend. During her cross-examination, Ms. Akonzee was shown an electronic copy of the Telus records. Ms. Akonzee agreed that her own phone number showed up on these records. Ms. Akonzee stated that she believed she was communicating with Mr. Browne when her number appeared on the records at different times.
(ii) The Text Messages
[8] During a pre-charge conference, the Crown argued that Exhibit 110 posed a potential hearsay problem. The Crown was specifically concerned about the content of some of the messages contained in Exhibit 110.
[9] For example, on October 29, 2012, at 16:19:42, the Telus phone number sent the following text message to a different number:
“Yo famz its cj call me at dis number”.
[10] At this point in the trial, there was evidence that Mr. Browne’s nickname was “CJ”. Mr. Hendry, counsel for the Crown, objected to Mr. Browne’s counsel suggesting that the content of this message could be used to establish that Mr. Browne was in fact CJ.
[11] On October 30, 2012, at 15:28:16, the Telus phone number received a message from 647-862-9200. This message read:
“Yo steven browne”.
[12] Ms. Morphew utilized this message to argue that Mr. Browne was not the user of the 647-862-9200 phone number. She submitted that it would be absurd to suggest that Mr. Browne was sending himself a message from a phone number that was also his.
[13] The Crown again objected to this message being used for the truth of its contents. The Crown therefore argued that the jury should be instructed that the contents of the text messages could not be considered for the truth of its contents because the messages were hearsay.
[14] Ms. Morphew’s position was that the messages were not being introduced for their truth and were only being used as circumstantial evidence to show that Mr. Browne was not the user of the 647-862-9200 phone number. Mr. Morphew helpfully drafted a proposed charge on the non-hearsay use of the text messages (marked as Exhibit CCCC).
(iii) The Law
[15] Hearsay is an of court statement which “is adduced to prove the truth of its contents”. It is problematic because of the inability to contemporaneously cross-examine the declarant of the statement (see: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 35). Without the declarant of the statement available for cross-examination, it may be difficult to “inquire into that person’s perception, memory, narration or sincerity” (see Khelewon at para. 2; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520 at para. 31).
[16] The hearsay rule is only engaged where the statement is tendered for its truth. If the statement is offered for a different purpose, the hearsay rule is not implicated and it will not bar the admissibility of the statement. Where the statement is offered to prove the truth of its contents, however, the hearsay rule is engaged and the statement is presumptively inadmissible.
[17] Hearsay evidence may be written or oral statements, or it may take the form of communicative conduct. Indeed, assertions implied through non-verbal conduct may also be hearsay (R. v. Badgerow, 2014 ONCA 272, 11 O.R. (3d) 399 at para. 107).
[18] As aptly summarized by Watt J.A. in R. v. M.C., 2014 ONCA 611, 314 C. C. C. (3d) 336 at para. 51, the typical hearsay situation involves:
• a declarant (who does not testify);
• a recipient (who does testify);
• a statement (that is offered in evidence); and
• a purpose (proof of the truth of the contents of the statement).
[19] The most relevant authority for this type of hearsay application is Baldree. In that case, the Crown alleged that Mr. Baldree was a drug dealer. He was arrested and charged with possession of the drugs for the purpose of trafficking. After he was arrested, the police took possession of his cell phone. Mr. Baldree’s cell phone rang and one of the officers answered it. The caller asked to speak to Mr. Baldree, and identified him by name. The caller said he wanted “weed”. The officer asked how much Baldree charged him, and the caller said $150. The officer said he could deliver the drugs. There was no further contact with the caller. The caller was never called by the Crown at trial.
[20] The trial judge permitted this evidence to be introduced because it was circumstantial evidence that Mr. Baldree was engaged in trafficking. However, on appeal, Feldman J.A., writing for the majority of the Court of Appeal for Ontario, concluded that the remarks were hearsay. Watt J.A. dissented, arguing that the call was not hearsay.
[21] Upon further appeal to the Supreme Court of Canada based on Watt J.A.’s dissent, Justice Fish, writing for the majority of the Court, agreed with Feldman J.A.’s characterization of the call and viewed the call as an “implied assertion” that “Mr. Baldree sells drugs” (see Baldree at para. 43).
[22] Justice Fish held an implied assertion, tendered for the truth of its contents, is hearsay. At para. 48, Justice Fish summarizes why express and implied assertions should be treated in the same manner. He states:
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.
[23] Justice Fish further outlines four specific concerns related to hearsay evidence:
[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.
(iv) Analysis
[24] There is no controversy that each text message entry has a declarant and a recipient. The declarant is the sender of the text message. In the October 30, 2012 example provided above, the declarant is the person who was using the 647-862-9200 phone number and who sent the Telus phone number a text message. In the same example, the recipient is the person who was using the Telus phone number. Ms. Morphew claimed the recipient was Mr. Browne. The Crown disagreed.
[25] Some of the statements in the text messages are self-explanatory. Others are not. For example, the text message that reads “Yo Steven Browne” appears to be a greeting but I am not sure. In any event, the real controversy lies in the purpose of adducing the declarant’s statement in these records.
[26] Having reviewed Ms. Morphew’s draft charge and considering her submissions, it is my respectful view that Mr. Browne’s counsel is attempting to introduce the text messages for their truth. In other words, they are seeking to admit text messages that convey the “declarant’s” belief. In the October 30, 2012 example provided above, the belief being adduced is that the text message was being sent to Mr. Browne.
[27] The content of the text is crucial to my finding. The content contains a greeting “Yo Steven Browne”. The jury would be asked to infer that Mr. Browne was associated to the Telus phone number because the declarant (the person sending the message from the 647-862-9200 phone number) was greeting him on that phone number when the text was sent.
[28] In this case, the declarant of the text message “Yo, Steven Browne” is not available for cross-examination. The declarant of the text messages sent by the Telus phone number is also not available. Although Ms. Morphew argues that Mr. Browne is the user of Telus phone number, Mr. Browne did not testify. I agree with the Crown that Mr. Browne cannot lead a text message in this fashion, claim that he is the declarant, and then avoid cross-examination.
[29] In my view, these text messages are being tendered for the truth of their contents and they are presumptively inadmissible. Because such text messages do not fall into a traditional exception to the hearsay rule, they may be admitted only if, per the principled analysis, indicia of reliability and necessity are sufficiently established on a voir dire: Baldree at para. 67.
[30] I note this issue was raised during the pre-charge conference. Practically speaking, it was too late to hold a voir dire on this issue. In any event, I find that reliability and necessity would not have been met in this case.
[31] While necessity may have been met with respect to the declarants of text messages sent to the Telus phone number because these individuals cannot be located, the same cannot be said of the declarant of the text messages sent from the Telus phone number. If Mr. Browne is asserting that he is the user of the Telus phone number, he is available to testify. However, he did not testify in this trial. It would have been open for him to testify and be cross-examined on that assertion.
[32] More importantly, I do not find these text messages to be sufficiently reliable. In my view, the text messages are virtually devoid of context. Given their lack of substantive content, they are insufficient to provide confirmation that (i) the Steven Browne is the user of the Telus phone number; and (ii) that Steven Browne is “CJ”. One or two isolated entries in these records has the potential to mislead the trier of fact. The declarants of these messages are not available for cross examination in order to highlight any potential problems with perception, memory, narration and sincerity and to provide context to the messages.
[33] Although text messages are often electronic conversations, these text messages are short and so devoid of context that I think there is a live concern about the completeness of the communications. The examples I have used above, do not shed any light into what, if anything, the declarants imply about Mr. Browne’s connection to the Telus phone. The nature of one or two statements simply does not allow any reliable conclusion as to the implied assertion, if any, contained in the statements. Therefore, these texts are entirely unreliable absent any opportunity to question the declarants under oath. (see R. v. Esrabian, 2013 ONCA 761 at para. 46).
[34] I conclude that the text messages are not admissible pursuant to the principled exception to hearsay.
(v) Conclusion
[35] It is for these reasons that I declined to instruct the jury in the manner suggested by Ms. Morphew. In my view, counsel for Mr. Browne was attempting to use the contents of these text messages for their truth. Although the draft instruction provided by Ms. Morphew suggested that the text messages were not being used for the truth, in reality, the text messages were implied assertions and were thus considered hearsay. I therefore dismissed Ms. Morphew’s application to instruct the jury that the contents of text messages contained in Exhibit 110 could be considered for a non-hearsay purpose.
Coroza J.
Released: August 11, 2017
CITATION: R. v. Browne, 2017 ONSC 5048
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 08 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
STEVEN BROWNE, AMAL GREENSWORD and ADRIAN WILLIAMS
REASONS FOR RULING (EXHIBIT 110 HEARSAY)
COROZA J.
Released: August 11, 2017