Hearsay by Implication: R v Baldree
| Published date | 01 April 2014 |
| Date | 01 April 2014 |
| DOI | http://doi.org/10.1350/ijep.2014.18.2.448 |
| Subject Matter | Case Note |
HEARSAY BY IMPLICATION: R v BALDREE
CASE NOTE
Hearsay by implication: R v Baldree
By Chris Hunt* and
Assistant Professor, Faculty of Law, Thompson Rivers University,
British Columbia
Micah Rankin**
Assistant Professor, Faculty of Law, Thompson Rivers University,
British Columbia
Keywords Hearsay; Implied hearsay; Assertive/non-assertive conduct; Probative
value
he question of whether implied statements fall within the ambit of the
hearsay rule has given rise to controversy since the Court of Exchequer
T first contemplatedthe question in Wright v Tatham.1Since that time,
much academic ink has been spent on trying to resolve the question. This has
resulted in a dizzying body of scholarship, as well as conflicting jurisprudence,
emanating from all around the common law world.
The Supreme Court of Canada’s recent decision in R v Baldree2 is the first and only
occasion that Canada’s highest court has pronounced on the subject. The court
held, unanimously, that the hearsay rule may indeed capture an implied assertion
if it is being tendered for a hearsay purpose—that is to say, if the statement is
tendered to prove the truth of that which it implicitly asserts. In so holding, the
court arrived at substantially the same conclusion reached previously by apex
*
Email: chunt@tru.ca.
** Email: mrankin@tru.ca.
1
Wright v Tatham (1837) 112 Eng Rep 488.
2
2013 SCC 35.
doi:10.1350/ijep.2014.18.2.448
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2014) 18 E&P 181–187
181
CASE NOTE
courts in England, Australia and the United States. While Canada has now
adopted an approach that is consistent with its common law peers, the result is
somewhat surprising in light of the way the common law rule has been adapted by
statute in some of these jurisdictions.
The facts of R v Baldree are simple. The police attended an apartment, owned by an
acquaintance of the accused, Baldree, in response to a suspected break-in. Baldree
answered the door and granted the police entry. On entering, the police
discovered large quantities of marijuana and arrested Baldree for possession with
intent to traffic. While at the police station, an unknown person called Baldree’s
mobile phone. An officer answered the phone, and the caller asked for ‘Chris
Baldree’ and requested ‘one ounce of weed’. The officer inquired how much
Baldree usually charged for this amount, and the caller answered ‘$150’. At trial,
the Crown called the officer to testify as to the contents of this conversation.
Baldree’s lawyer objected on the grounds that it was hearsay. The trial judge
disagreed, and characterised the officer’s testimony as ‘circumstantial evidence of
an individual engaged in the trafficking of drugs’ and held that it was admissible
on the basis that it was relevant to the charge, for it helped establish the nature of
Baldree’s drug business.3
The Court of Appeal for Ontario divided sharply on the question of whether the
officer’s testimony was being offered for a hearsay purpose. Watt JA, in dissent,
agreed with the trial judge. In Justice Watt’s view, the evidence was not hearsay,
because the prosecutor did not introduce it to prove the truth of its
contents—namely that the caller believed Baldree was a drug dealer. Rather,
according to Watt JA, the caller’s spoken words were merely circumstantial
‘evidence of conduct’ which, ‘together with other items of evidence, may help to
establish the nature of the appellant’s business’.4 Feldman JA, in the majority,
disagreed with this characterisation. For her, the call was being admitted for a
hearsay purpose: ‘It is the implied assertion of the caller, untested by cross-exami-
nation, that the accused is a drug dealer’.5 Blair JA concluded that, ‘on balance’, he
agreed with the reasons of Feldman JA, although he acknowledged that he was
‘unsure’.6 In a rare example of judicial candour, Justice Blair observed that if 100
lawyers were asked whether this statement was hearsay, 40 would say ‘yes’, 40
‘no’, and the remainder, like him, would fall into the ‘unsure category’.7 Blair JA
held that in...
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