R. v. Bridgman, 2017 ONCA 940
[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 CanLII 86 (SCC), [1993] 3 S.C.R. 653, [1993] S.C.J. No. 115, at pp. 668-69 S.C.R. [page725] 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), 2002 CanLII 6305 (ON CA), 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.
(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 CanLII 170 (ON CA), [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 CanLII 7206 (ON CA), [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 CanLII 142 (SCC), [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: [page735] 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.
(Emphasis in original)
[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, [page736] 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 CanLII 330 (SCC), [1997] 3 S.C.R. 698, [1997] S.C.J. No. 90, affg 1996 ABCA 402 (CanLII), [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. [page737]
[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), 1976 CanLII 775 (ON CA), 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, [page738] R. v. Eden, 1969 CanLII 329 (ON CA), [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.
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