[80] The authors of The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis Canada Inc, 2018) explain at para 6.29:
... if the out-of-court statement, merely because it was made, is relevant to an issue apart from its truth, it is being tendered for a non-hearsay purpose and is admissible for that limited purpose.
[81] The Crown sought to rely upon the text messages only for the fact they were made notwithstanding the fact that some of the text messages sent by Dubroy-Clement himself might provide inculpatory evidence of his knowledge of and involvement with the robbery of Butt, which would otherwise constitute admissible hearsay against him: R v Cabrera, 2019 ABCA 184 at para 223 (in dissent); R v Taylor, 2013 ONCA 656 at para 26.
[82] The text messages are therefore admissible to prove that a text message was sent, by whom and to whom it was sent, when it was sent, and that the words communicated in the message were made: R v Monroe, 2016 NSCA 16 at paras 12 and 16; R v Seruhungo, 2015 ABCA 189 at para 73, rev’d by 2018 SCC 2, with the majority relying upon the dissent of O’Ferrall JA. They are not admissible for the truth of their contents.
[83] Text messages are documents containing out-of-court statements. Under the documents in possession rule, documents that are or have been in the possession of a party are generally admissible against that party as original circumstantial evidence to show the party’s knowledge of their contents, his or her connection with or complicity in, the matter to which they relate, or his or her state of mind with reference thereto: Canadian Natural Resources Limited v Wood Group Mustang (Canada) Inc (IMV Projects Inc), 2018 ABCA 305 at paras 19-21; R v Bridgman, 2017 ONCA 940 at paras 70, 72, and 77; R v Black, 2014 BCCA 192 at para 29 [Black]; R v Turlon (1989), 1989 CanLII 7206 (ON CA), 49 CCC (3d) 186, 70 CR (3d) 376 (Ont CA) at para 11.
[84] In Bridgman, the Ontario Court of Appeal explained at para 77:
... 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...
[85] Whether their content is true or not, I have considered the text messages sent to and from Dubroy-Clement’s cell phone to the extent that they provide circumstantial evidence of the accused’s knowledge of and state of mind regarding their contents and that they enable me enable me to draw an inference with respect to the accused’s connection to or involvement in the robbery of Butt. See: Black at paras 38, 39 and 41.
[86] The text messages sent to and from Murphy’s cell phone to someone other than the accused, whether their content is true or not, provide narrative or context with respect to the sequence of events that transpired prior to and following the robbery and killing of Butt. See: R v Tsega, 2016 ONSC 3772 at paras 5 and 8 (reversed on other grounds, 2019 ONCA 111, leave to appeal to the SCC denied). I have accepted the text message sent to Burkinshaw while she returned from the campsite washroom for the truth of its contents.
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