“Drug purchase calls” to accused’s phone answered by police after accused’s arrest are hearsay evidence when tendered to prove accused’s illegal drug trafficking.

R. v. Baldree 2013 SCC 35 – this was an appeal from the Court of Appeal for Ontario.   Two officers responded to a suspected break-in at the
apartment of Lepage. They knocked on the door and a man, who identified himself as Baldree, allowed them in. The officers entered and immediately detected an odour of marihuana, and discovered joints and marihuana buds in an ashtray. In the closet of the spare bedroom, an officer found 90 grams of cocaine and 511 grams of marihuana. The police seized from Baldree a cellular telephone and some cash found in his possession. At the police station, Baldree’s phone rang and an officer answered it. At trial, the officer testified that the caller asked for Baldree and requested an ounce of marihuana for the price of $150. Counsel for Baldree promptly objected to this testimony on the ground that it was inadmissible hearsay. The trial judge disagreed. Having concluded that the officer’s testimony was not hearsay, the trial judge found it unnecessary to weigh its probative value against its prejudicial effect. Baldree was convicted at his trial before judge alone of possessing marihuana and cocaine for the purposes of trafficking. His appeal was allowed by a majority of the Ontario Court of Appeal and a new trial ordered.

The SCC dismissed the Crown’s appeal, stating that an out-of-court statement by a person not called as a witness in the proceedings is characterized as hearsay where it is tendered in evidence to make proof of the truth of its contents. Hearsay evidence is presumptively inadmissible as a matter of law. What the statement purported to prove was the truth of what the person not called as a witness was alleged to have asserted expressly or by implication.  What the SCC said was what that the Crown essentially asked the Court to conclude, based on the officer’s testimony, was that the unknown caller intended to purchase marihuana from Baldree because he believed him to be a drug dealer.

The court was presented with a single drug purchase call of uncertain reliability. The caller gave his address. No effort was made to find and interview him, still less to call him as a witness – where the assertion imputed to him could have been evaluated by the trier of fact in the light of cross-examination and the benefit of observing his demeanour. Crown counsel described the impugned telephone call as the strongest piece of evidence in the case. Moreover, the trial judge referred to the phone call in his reasons for judgment and took it into account when assessing Baldree’s credibility. In this light, the SCC said, it could hardly be stated that the improper admission of this evidence could not have affected the result at trial.

The SCC ruled that although it is perfectly consistent with the principled approach that even a single drug purchase call may meet the threshold test for reliability, the Crown failed in this case to establish that the call met the test justifying its admission as substantive evidence that Baldree was engaged in drug trafficking. Even if the caller was entirely sincere in his belief that Baldree was a drug dealer, that did not address why the caller believed what he believed — and whether his belief was in fact true or not.  The SCC further stated that this is not a case of multiple calls, where common sense tells us that the probability of numerous callers all being mistaken is unlikely, nor did the SCC  have sufficient indicia of reliability, either within the statement or in the form of confirmatory evidence outside the statement. Had the circumstances been somewhat different, there may well have been a satisfactory basis for evaluating whether the caller believed Baldree was a drug dealer and whether that belief was in fact true. That is what threshold reliability requires by the courts.

The SCC said that what was missing in this call was some assurance that Mr. Baldree was in fact a drug dealer. There were insufficient circumstantial guarantees of trustworthiness within the call itself and little or no external confirmatory evidence. However, if the caller had declined the offer of delivery and instead asked “if I can drop by Eric’s apartment to pick up the drugs”, that may have been sufficient because it would have indicated greater familiarity with Mr. Baldree and his activities, including contemporary knowledge of his recent move to Mr. Lepage’s apartment. A debt list at Mr. Lepage’s apartment with Mr. Baldree’s fingerprints on it may also have done the trick because it would have served as confirmatory evidence of Mr. Baldree’s involvement in drug trafficking.  The SCC said that one can imagine other scenarios, but in this case the SCC ruled that accordingly, and absent more, it thus seemed a bridge too far to accept the Crown’s argument that this call met threshold reliability thereby justifying its admission as substantive evidence that Mr. Baldree was engaged in drug trafficking.

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