Tuesday, June 25, 2013

Express or Implied, Hearsay is Hearsay

Christopher Baldree was a small time drug dealer in Cornwall, Ontario. One night in May of 2006, Baldree and three other people were smoking marijuana in his apartment.  The Cornwall police, responding to a suspected break-in, knocked on the door. Baldree inexplicably allowed them to come into the apartment where the police found an open safe containing cocaine, a large cardboard box containing a Ziploc bag of marijuana, as well as the joints that Baldree and his friends had been smoking.  The police arrested Baldree and his companions and seized a mobile telephone and some cash.

At the police station, Baldree's mobile phone rang. The arresting officer answered it. At trial, the police officer described the conversation he had with the caller:

A male voice on the other end of the phone advised that he was at a particular address, that he was a friend of Megan and asked for Chris. The police officer answered, Chris who? The caller answered  "Baldree" and asked for one ounce of weed. The officer asked the caller how much Chris usually charged him.  The caller answered $150. The officer took down the caller's address and said that he would deliver it.

Baldree's lawyer objected to this testimony on the ground that it was inadmissible hearsay. The trial judge disagreed and found that the evidence was "non-hearsay".  He convicted Baldree for trafficking in drugs.

At the Ontario Court of Appeal, two of the three judges on the panel allowed Baldree's appeal and ordered a new trial. One judge found that the officer's evidence was hearsay.  Another judge found that he could not decide whether or not the evidence was hearsay but that it did not matter because the evidence failed on both an assessment of its necessity and reliability and on weighing its probative value against its prejudicial effect. The third judge found that the evidence was admissible as non-hearsay.

The Supreme Court of Canada unanimously dismissed the Crown's appeal and ordered a new trial.

Eight of the nine judges found that the evidence of the police officer was hearsay.  The majority ruling held that 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.

The Court held that hearsay evidence is presumptively inadmissible as a matter of law. The issue in this case was whether this exclusionary rule applied to "express" hearsay only or to "implied" hearsay as well. The court found that an implied assertion intended for the truth of its contents (i.e. that Baldree was a drug dealer)  is no different 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.

If the 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. In this case, no traditional exception applied and the evidence did not hold up to a principled analysis. This was a single drug purchase call of uncertain reliability. The police did not make an effort to find and interview the caller or to call him as a witness - where the assertion imputed to him could have been evaluated by the trial judge or jury in light of cross-examination, and the benefit of observing his demeanour.

Justice Moldaver, the last of the nine judges, concurred with the other eight justices in the result but wrote his own reasons. He found that the evidence of the drug purchase call was hearsay because it was introduced to prove that Baldree was in fact a drug dealer. Justice Moldaver wrote that in such cases, the real concern under the principled approach is reliability and it should be the focus of the inquiry. Reliability is founded on society's interest in getting at the truth. Justice Moldaver found that the evidence was not reliable.  If the evidence is not reliable, it should be excluded.

Regards,

Blair



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