



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bridgman, 2017 ONCA 940

DATE: 20171204

DOCKET: C62323

Pardu, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arthur George Bridgman

Appellant

Andrew Furgiuele and Cara Barbisan, for the appellant

Brian G. Puddington, for the respondent

Heard: September 22, 2017

On appeal from the convictions entered by Justice
    Harrison S. Arrell of the Superior Court of Justice, sitting with a jury, on September
    22, 2015.

Fairburn J.A.:

OVERVIEW

[1]

On September 22, 2015, a jury found the
    appellant guilty of three counts of possession for the purpose of trafficking
    in oxycodone, percocet, and clonazepam. He appeals his convictions.

[2]

The charges arose from evidence seized during
    the execution of a search warrant at the appellants home. The police located
    numerous prescription drugs. A search incident to the appellants arrest
    produced a cell phone. The police later extracted text messages said to be
    related to drug trafficking from the phone. The trial judge admitted the
    messages and instructed the jury that they could be used for the truth of their
    contents.

[3]

This appeal turns on two questions:

1.

Were the text messages properly admitted into
    evidence?

2.

Was the jury properly instructed regarding the
    use of the text messages?

[4]

The answer to both of these questions is yes. I
    would dismiss the appeal for the reasons that follow.

BACKGROUND

[5]

The police watched the appellants home over a
    number of days. They saw people coming and going from his residence. A car
    would arrive, someone would quickly enter the residence, then leave, get back
    into the vehicle, and the car would drive away. The police believed this
    recurring activity to be consistent with drug trafficking. They obtained a
    search warrant.

[6]

The appellant was home when the police executed
    the warrant. The police located oxycodone, percocet, and clonazepam pills
    throughout the residence. Some of the pills were in the wrong pill bottles and
    some were in bottles that did not correspond to the appellants name. The
    police also located drug paraphernalia. The appellant took responsibility for
    possession of the drugs.

[7]

The appellant was arrested at home during the
    execution of the warrant. A search incident to the appellants arrest uncovered
    more pills, $5,000 cash, and a cell phone that was located in his pocket.

THE TEXT MESSAGES
VOIR DIRE

(a)

The Facts

[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, totaling 30 incoming and 10
    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] 3 S.C.R. 653, at pp. 668-69. 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), 62 O.R. (3d) 204 (C.A.), at para. 37, leave to appeal
    refused, [2003] S.C.C.A. No. 199;
R. v. Osmar
,
    2007 ONCA 50, 84 O.R. (3d) 321, at para. 53, leave to appeal refused, [2007]
    S.C.C.A. No. 157; and
Evans
,

at pp. 664-69. 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.

[12]

The incoming text messages originated from nine different
    phones. They included messages like:

·

Can I come by at lunch for a few ps?

·

[D]o you whant those things the p.

·

[Y]ou dont sell harder than oxys right?

·

[C]an i buy a few sleeping pills off you
    tomorrow? if u cant teext call moms cell love n miss u.

[13]

The Crown elicited evidence during the trial
    proper that p is a common street term for percocet and that oxy is a common
    street term for oxycontin.

[14]

During the second day of trial, in the absence
    of the jury, Crown counsel expressed his intention to produce the text messages
    the following morning and then close his case. The next morning, defence
    counsel voiced his objection to the admissibility of the text messages for the first
    time, maintaining that they were implied assertions, the same as those at issue
    in
R. v. Baldree
,

2013 SCC 35, [2013] 2 SCR 520. Defence counsel took the position
    that they were presumptively inadmissible hearsay.

[15]

When the trial judge expressed understandable
    concern about the timing of the defence objection, defence counsel said that he
    made a tactical decision not to raise the matter earlier out of concern that
    the Crown could take steps to remedy perceived deficiencies in establishing why
    the text messages should be admitted. As defence counsel put it: it was my job
    to remain silent for fear that things could have been rectified.

[16]

The trial judge excused the jury for the day and
    embarked upon an admissibility
voir dire
the following
    morning.

[17]

The Crown called two witnesses. Sgt. Vuyk, the
    officer who had performed the work on the cell phone, was qualified on consent
    as an expert in the area of extracting text messages. Sgt. Vuyks evidence was largely
    directed at the question of threshold reliability. He testified that he had
    used two tools in the extraction exercise, one for outgoing and one for
    incoming messages. He then took the extracted messages and merged them into a
    single document in chronological order. He testified that the document
    contained every text message located on the phone.

[18]

Det. Bell, the officer-in-charge of the
    investigation, also testified. Det. Bells evidence was largely directed at the
    question of necessity. He testified that he did not take any steps to locate
    the individuals associated to the phone numbers for the incoming messages. He acknowledged
    that once the text messages had been located, he did not think it was necessary
    to follow-up with those who had sent the messages to the appellants phone.

[19]

Det. Bell had been involved in hundreds of drug
    investigations over the course of his career. While he acknowledged that a
    subscriber check could have been done on the numbers for the incoming messages,
    he stated that, in his experience, people operating in the drug subculture
    often have fake names assigned to their phones.

[20]

Det. Bell testified that at most he could think
    of three times when he had successfully convinced someone to provide a
    statement to the police and could think of no situation where a person had come
    to court to testify that they had purchased drugs from an accused. He explained
    that for those living in the drug subculture, its almost the worst thing that
    you can be identified as, as a snitch or informant, so they stay well clear of
    that.

(b)

The Admissibility Ruling

[21]

Defence counsel maintained that, because the
    Crown was seeking the admission of presumptively inadmissible hearsay evidence,
    it was for the Crown to bring an application for admission. The trial judge rejected
    this position, construing the application as one brought by the defence to
    exclude evidence. Accordingly, the application was dismissed with written
    reasons to follow before the end of the trial.

[22]

The written reasons were delivered two days following
    the conclusion of the trial. The admissibility analysis largely focused on the
    principled exception to the hearsay rule. Relying heavily on the number of text
    messages involved, and the unlikelihood that the declarants would testify about
    their desire to purchase drugs, the trial judge concluded that the twin
    criteria of threshold reliability and necessity had been met. He also found
    that the text messages were highly probative and had no prejudicial effect. The
    text messages were admitted as hearsay statements.

[23]

The written ruling also appears to hold that the
    text messages were admissible as original circumstantial evidence, constituting
    evidence of trafficking under the rule relating to documents in possession of
    the accused. It should be noted, however, that the parties agree that the jury
    was only charged on a hearsay purpose for the messages.

ISSUES AND ANALYSIS


I.

Were the Text Messages Properly Admitted?

(a)

The Parties Positions

[24]

The appellant maintains that
because the
    messages contain implied assertions, akin to the implied assertion in
Baldree
, the only route to admissibility was the principled approach to the
    hearsay rule. According to the appellant, the trial judge erred in respect to
    both threshold reliability and necessity when he applied the rule. The
    appellant also claims that he was prejudiced by not learning the purpose for
    which the text messages were admitted until receiving the draft jury charge.

[25]

The Crown takes the view that, although the text
    messages were used for a hearsay purpose, there was no need to consider
    admissibility under the principled approach to the hearsay rule. He encourages
    this court to find that text messages found on an electronic device located in
    the possession of an accused are
prima facie
admissible
    for the truth of their contents under the documents in possession rule. If he
    is found to be wrong in this submission, then the Crown maintains that the
    trial judge committed no error in his analysis of threshold reliability and
    necessity.

[26]

Finally, Crown counsel argues that the
    parties knew from the outset that the messages were admissible for the truth of
    their contents and, in any event, even if there was uncertainty around this
    use, no prejudice resulted.

[27]

The submissions raise three discrete, but
    interrelated issues. I propose to address them in the following order.

[28]

I will first consider the appellants submission
    that the lack of clarity about the purpose for which the text messages were
    admitted created unfairness and, essentially, resulted in a miscarriage of
    justice. Second, I will consider whether the incoming texts were admissible
    under the principled exception to the hearsay rule. This analysis leans heavily
    on
Baldree.
The analysis is of particular importance on appeal given
    that the texts were left with the jury as admissible for the truth of their
    contents. Third, I will consider whether the texts were admissible as documents
    found in the possession of the appellant.

(b)

Clarity Around the Purpose for Admission

[29]

Crown counsel at trial advanced two alternative arguments for the
    admission of the incoming text messages at the
voir dire
:

(a)
    admissibility for a hearsay purpose under the principled approach; or (b)
    admissibility under the documents in possession rule for a hearsay purpose and
    as original circumstantial evidence.

[30]

After the trial judge ruled the messages
    admissible, with written reasons to follow,
defence counsel asked for
    clarification on the purpose for which the evidence could be used. He
    specifically noted that the Crown had advanced a dual purpose for admission.
    The trial judge replied that it would be for whatever purpose the Crown is
    going to allege its going to be called for, ruling that the evidence would be
    heard first.

[31]

On a few occasions over the next few days, defence counsel
    renewed his request for an articulation of the use to which the text messages
    could be put. The trial judge said that it would depend on submissions after
    all of the evidence had been heard.
It was only after the
    draft jury charge had been distributed, at the end of trial, that it became
    clear that the jury would be permitted to use the text messages for a hearsay
    purpose.

[32]

As with all
admissibility
questions, the first issue to be addressed is the purpose for which
    the evidence is sought to be tendered. The answer to this question will necessarily
    inform the relevance of the evidence, the admissibility analysis to be
    conducted, and the legal conclusion reached: S. Casey Hill, David M. Tanovich
    & Louis P. Strezos,
McWilliams Canadian Criminal Evidence
, loose-leaf,

5th ed. (Toronto: Canada Law Book, 2013), at para. 24:30.

[33]

I
agree
with the
    appellant that the answer to this question remained elusive until the end of
    trial, when the draft charge made it clear that the evidence was admissible for
    a hearsay purpose. Even so, I see no prejudice arising from the after-the-fact articulation
    of the purpose for which the evidence could be used. The record reveals that
    everyone proceeded on the assumption that the text messages were being elicited
    for a hearsay purpose. Moreover, the appellant has not suggested that he would
    have done anything differently had the trial judge earlier stated that the jury
    would be permitted to use the text messages for a hearsay purpose.

[34]

Whether the messages were admitted for a hearsay
    purpose or as original circumstantial evidence, the appellants position would
    have been the same. He testified that he did not use the text messaging
    function on his phone. He denied any involvement in the text messages,
    suggesting someone else must have been using his phone for this purpose.
    Regardless of whether the text messages were admitted for a hearsay purpose or
    as original circumstantial evidence, it is hard to imagine that the appellants
    evidence would have been any different or that the defence would have unfolded
    any differently. No suggestion to the contrary has been advanced. Quite simply,
    no prejudice resulted from the lack of clarity on this point.

[35]

This is not to say, however, that this manner of
    proceeding should be encouraged. Although it is understandable and even
    laudable that the trial judge was concerned about moving this jury trial
    forward, and that defence counsels late-in-the-day objection to the admission
    of the text messages threatened its efficient progress, the purpose for admission
    should have been addressed at the outset and guided the approach to
    admissibility.

[36]

One can well imagine situations where a lack of
    precision on the purpose for admissibility might well cause prejudice. For
    instance, prejudice might result where a party takes a step that would not have
    been taken had the party known the purpose for admission in the first place. While
    the purpose for admission of evidence may evolve with the fluidity of a trial,
    it is open to the parties to raise these evolving issues as they arise. Although
    prejudice did not result in this case, this finding should not be construed as supporting
    a free-floating approach to admissibility.

(c)

The Principled Exception to the
    Hearsay Rule

(i)

Standard of Review

[37]

The standard of review for a hearsay admissibility ruling is one
    of correctness:
R. v. Duong
,

2007 ONCA 68, 84 O.R. (3d) 515,
    at para. 54. Absent manifest error, the findings of fact upon which the ruling
    rests must be accepted.

[38]

A correctness standard applies to the ultimate question of
    whether the trial judge properly applied the criteria relevant to the
    admissibility of the evidence to the facts as found by the trial judge:
R.
    v. Merz
(1999), 127 O.A.C. 1, at para. 49, leave to appeal refused, [2000]
    S.C.C.A. No. 240. Absent a demonstrated error, decisions regarding whether the
    circumstances support threshold reliability and necessity, and the balance
    between probative value and prejudicial effect, are owed deference:
R. v.
    Carroll
,

2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 112, leave to
    appeal refused, [2014] S.C.C.A. No. 193.

(ii)

Hearsay and Implied
    Assertions

[39]

The defining feature of hearsay evidence is that it constitutes an
    out-of-court statement by a non-testifying declarant that is tendered to prove the
    truth of its contents:
R. v. Bradshaw
,

2017 SCC 35, 349
    C.C.C. (3d) 429, at para. 1;
R. v. Khelawon
,

2006 SCC 57, [2006]
    2 S.C.R. 787, at para. 56; and
Baldree
,

at para. 30. The
    unknown people sending the text messages are the out-of-court declarants in
    this case.

[40]

Hearsay is presumptively inadmissible because of the accepted
    dangers arising from this type of evidence. Declarants may have misperceived or
    wrongly remembered facts, been unintentionally misleading in the account given,
    or knowingly made a false statement. Eliciting statements in the absence of
    declarants deprives the trier of fact of the opportunity to observe their demeanour
    and see the potential concerns over reliability fully explored:
Baldree
,

at paras. 31-32;
Khelawon
,

at paras. 2, 35; and
Bradshaw
,
    at paras. 20, 26.

[41]

The presumptive rule against the admission of hearsay evidence applies
    equally to express and implied assertions tendered for the truth of the
    assertion. The truth of an implied assertion hinges on the truth of the
    declarants underlying belief:
Baldree,
at para. 39. Both implied and
    express assertions elicited to prove the truth of what the person not called
    as a witness is alleged to have asserted trigger the application of the hearsay
    rule:
Baldree
, at para. 4.

[42]

For example, in
Baldree
the Supreme Court concludes that
    no meaningful distinction can be drawn between a declarant who says that an accused
    is a drug trafficker and a declarant who asks to buy drugs from the accused. The
    express and implied assertions of fact are the same: the accused is a drug dealer.
    When elicited for the truth of the assertion, they both constitute hearsay
    evidence and they are both presumptively inadmissible.

[43]

The presumption can be displaced only where the evidence fits
    within a categorical exception to the rule or satisfies the principled exception:
Khelawon
,

at para. 42; and
R. v. Mapara
,

2005
    SCC 23, [2005] 1 SCR 358, at para. 15. The principled exception focuses on the well-known
    criteria of threshold reliability and necessity:
Khelawon
,

at
    para. 47. Even where these twin criteria are met, judges retain a residual
    discretion to exclude an out-of-court statement where its probative value is
    outweighed by its prejudicial effect:
Khelawon
,

at para. 49.

[44]

In this case, the trial judge concluded that the text messages were
    admissible under the principled approach.

(iii)

Threshold Reliability

[45]

On the issue of threshold reliability, the appellant maintains
    that the trial judge erred by: (a) failing to consider that there was no
    evidence that the appellant was the intended recipient of the incoming
    messages; and (b) failing to consider that the text messages taken from the
    phone constituted incomplete communications.  I will address the appellants
    arguments in this order.

[46]

The appellant testified
    that he did not use the text message feature on his phone. He testified that
    the messages must have been sent and received by someone else. He relies upon
    this testimony to support his submission that the trial judge erred in his
    assessment of threshold reliability by failing to consider that there was no
    evidence that the appellant was the recipient of the messages.

[47]

This submission cannot
    succeed. The first time the court heard that the appellant did not use the text
    message feature on his phone was when he testified after the Crown had closed
    its case, after the admissibility ruling had been made.

[48]

Even if the appellant had
    testified on the
voir dire,
it would not have made a difference to admissibility. There was considerable
    evidence that the incoming texts were directed to the appellant. It was his
    phone. He was in possession of it at the time of his arrest. The appellants
    first name is Arthur. One of the text messages was directed to Art my friend.

[49]

There was ample evidence
    allowing the matter to be left with the jury for their consideration. The
    appellants suggestion that he was not the intended recipient of the messages
    did not impact threshold reliability or admissibility in general.

[50]

As for the submission
    that the trial judge also erred by failing to consider that the text messages
    were incomplete, I do not agree. During the trial proper, the Crowns expert
    acknowledged that there may have been missing messages. Although he said that
    he had retrieved every message stored on the phone, he was unable to say
    whether there were messages that may not have been saved on the phone. Nor
    could he say whether the incoming text messages had been read.

[51]

Notably, the
    admissibility ruling was made before any of the evidence upon which the
    appellant relies was elicited. During the
voir dire
,

the defence attacked threshold reliability only on the basis that the
    Crown had not, by that point, called evidence regarding the meaning of the
    terms used in the text messages, like p and oxy. The completeness of the text
    message record was not challenged during the
voir dire
.

[52]

Even if the expert had
    been asked about the completeness of the record during the
voir
    dire
,

it would not have made a difference to threshold
    reliability. Although the appellant advances the incontrovertible position that
    in some situations, where parts of conversations are missing, statements may be
    taken out of context, this is not one of those cases:
R. v.
    Ferris
(1994), 149 A.R. 1 (C.A.), at
    paras. 17-23, affd [1994] 3 S.C.R. 756.

[53]

Standing alone, many of
    the text messages are clear and open to little interpretation. For instance,
    questions like, do you whant those things the p, you dont sell harder than
    oxys right, and can I buy a few sleeping pills off you tomorrow, require
    little effort by way of interpretation. When considered in context, others also
    take on clarity. For example: Cmon bud reply the ol lady is bugging she doesnt
    get her own til Monday so far ur on our xmas list dont ruin it; or an incoming
    message saying [w]e need u again today from a person who had written and
    asked for ps the previous day.

[54]

It is hard to imagine
    how a cross-examination would probe any serious issues about
perception, memory, narration, or
    sincerity in relation to the above statements. They were committed to a
    permanent electronic record. Although the expert acknowledged that there could
    be text messages missing, there was no evidence that the messages retrieved were
    anything but an accurate reflection of the statements made.

[55]

The quantity of the
    messages, repeating patterns of requests for different types of drugs, only
    enhances their threshold reliability:
Baldree
,

at para. 71. The majority in
Baldree
relied upon a passage taken from I.H. Dennis,
The
    Law of Evidence
,

4th ed. (London: Thomson Reuters/Sweet & Maxwell,
    2010), at p. 708, to make the point that one or two callers might be mistaken,
    or might even have conspired to frame the defendant as a dealer, but it defied
    belief that all the callers had made the same error or were all party to the
    same conspiracy.

[56]

This court has
    previously accepted that where there are multiple drug calls, threshold
    reliability may be enhanced:
R. v. Malcolm-Evans
,

2016 ONCA 28, at para. 7; see also
R. v. Belyk
, 2014 SKCA 24, 433 Sask.R. 195, at paras. 24-25. The
    principle is simple. The more people who write to someone about obtaining
    drugs, the less likely it is that the declarants are all suffering from the
    same misperception, wrongly remembering something, engaged in unintentionally
    misleading behaviour, or all knowingly making false statements.

[57]

Although every hearsay
    question is informed by its own facts, one statement about obtaining drugs may
    be explained by some alternative explanation  a wrong number, a wrong
    impression, or a wrong understanding. But multiple statements that have the
    same theme may render implausible any explanations other than that the
    originators of the communication are asking for drugs.

[58]

It was open to the trial
    judge to conclude that the text messages met the test for threshold
    reliability. There is no error in his approach.

(iv)

Necessity

[59]

On the issue of necessity, the appellant alleges that the
    trial judge erred by failing to properly apply the requirements placed on the
    police to track down declarants, requirements said to be set out in
Baldree.

[60]

It must be remembered
    that
Baldree
involved
    a single phone call by a declarant who gave his address to the police officer when
    they spoke. In these circumstances, the majority maintained that the police
    should have taken the steps that were open to them at the time that the call
    took place, to find the declarant.

[61]

Yet, as noted by the
    trial judge, even the majority judgment in
Baldree
was careful to distance itself from a categorical
    rule related to necessity when it came to drug-purchase calls:
Baldree
,

at para. 70. The majority in
Baldree,
at para. 72, commented on the fact that the number of callers may
    inform necessity: The Crown cannot be expected, where there are numerous
    declarants, to locate and convince most or all to testify at trial, even in the
    unlikely event that they have supplied their addresses. See also:
Baldree,
at para. 107; and
R. v. Gerrior
,

2014 NSCA
    76, 348 N.S.R. (2d) 354, at para. 52.

[62]

Unlike
Baldree,
there was evidence in this case regarding why the police did not
    take steps to locate the declarants. Det. Bells evidence has been reviewed previously.
    He had detailed experience with drug investigations. The trial judge relied
    heavily on this evidence and his findings are entitled to deference.

[63]

Moreover, threshold reliability and necessity
    work in tandem. The more reliable a statement, the less important the necessity
    analysis may become. The criterion of necessity and reliability are said to
    intersect and should not be considered in isolation:
Khelawon
,

at para.
    77. As they coexist in this symbiotic relationship, they may impact one
    another:
Khelawon
,

at paras. 77, 86; and
Baldree
,

at paras.
    72, 96. The trial judge did not err in finding this to be the case here.

(v)

The Balancing
    Exercise

[64]

The
appellant has not argued that the trial
    judge made an error related to the ultimate balancing of probative value
    against prejudicial effect. The appellant does not point to any particular
    prejudicial effect from the admission of the messages. While prejudice can
    arise from the risk that a jury may misuse evidence, there was no risk here. The
    probity of evidence does not create prejudice. I can see no prejudice arising
    from the evidence in this case.

(vi)

Conclusion

[65]

The appellant has
    failed to show an error in the approach to the principled exception to the
    hearsay rule.

(d)

The Documents in Possession Rule

(i)

General Approach to the Rule

[66]

I now turn to the Crowns 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), 55 C.C.C. 310 (Ont. C.A.), at p. 313;
R.
    v. Turlon
(1989), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 190;
R. v.
    Ansari
, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 116; and
B.C.
    Securities Comm. v. Branch
,

[1995] 2 S.C.R. 3, at p. 33. The rule
    applies to paper and electronic documents alike:
Ansari
,

at
    para. 154; and
R. v. An
,

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 accuseds 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
B.C. Securities Comm.
,

at p. 33, 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 & Sidney L. Phipson,
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
    accuseds connection to or complicity in a matter  then the hearsay rule is
    not activated:
R. v. Black
,

2014 BCCA 192, 309 C.C.C.
    (3d) 484, at paras. 36-38, 40-41; and David M. Paciocco & Lee Stuesser,
The
    Law of Evidence
, 7th ed., (Toronto: Irwin Law, 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 declarants 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]
    3 S.C.R. 698, affg (1996), 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 declarants 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,
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.

[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 judges 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 Crowns argument of adoption:
Turlon
,

at
    p. 191.

[81]

As above, documents can become admissions for the proof of their
    contents where the accused has adopted the statement:
B.C. Securities Comm.
,

at p. 33; and
Turlon
,

at p. 191. This is really just a
    restatement of the adopted admissions rule, with the added requirement that the
    document must be found in the accuseds 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 ONCA 63, 118 O.R. (3d) 581, at
    para. 48, citing David Watt,
Watts 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
Regina v. Baron and Wertman
(1976)
, 14 O.R. (2d) 173
    (C.A.), at p. 187: 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:
Regina
    v. Eden
(1969), 2 O.R. 161 (C.A.), at pp. 163-64. In
    these circumstances, silence allows for an inference of assent, also referred
    to as adoption.

[84]

Crown counsel relies upon two series of text
    messages to show what is said to be adoption by words:

December 13, 2010: 10:35 a.m. to 1:26 p.m.

Incoming: u awake yet?

Outgoing: I live

Incoming: Can I come by at lunch of a few ps?

Outgoing: What time is lunch

Incoming: 12

Outgoing: Ok

Incoming: Thanks. Cya soon

[The conversation then continues about a different meeting time and
    place.]

December 15, 2010: 10:39  11:29 a.m.

Incoming: hey it is rob you at home

Outgoing: Im home coum by

Incoming: do you whant those things the p
[1]

[85]

As for the first series of exchanged messages on
    December 13, 2010, there is clear evidence of adoption. The implied assertion
    is that the person wants to come by for ps because the appellant sells
    percocet. By agreeing to allow the person to come by, the appellant can be said
    to have impliedly assented to the truth of the assertion. This is a classic
    adoptive admission. The documents in possession rule would permit admissibility
    of this series of text messages for a hearsay purpose.

[86]

As for the series of messages exchanged on
    December 15, 2010, I do not see them in the same light. There was no response
    to the question do you whant those things the p. There is simply no basis
    upon which to construe explicit or implicit adoption.

[87]

Just because a text message arrives on a cell
    phone does not mean it has been adopted. Even where it can be said that a
    message has been read, this does not constitute adoption sufficient to generate
    an exception to the presumptive rule of inadmissibility.

[88]

Allowing such easy passage of hearsay evidence
    into a trial, merely because an out-of-court statement lands on an accuseds
    electronic device, would seriously compromise trial fairness. An accused should
    not be rendered vulnerable to the whims of others and messages they may send by
    way of electronic communication. It cannot be that the mere act of receiving a
    message on ones electronic device constitutes the act of adoption, thereby
    transforming the statement into an adoptive admission.

[89]

Other
than the one series of messages set out
    above, there is no evidence of the appellant recognizing, adopting or acting on
    the messages.

[90]

In relation to a few of the messages, there is some
    evidence to the contrary. Some of the messages were received after the
    appellant had already been arrested. For example, the message pertaining to
    whether the declarant could buy a few sleeping pills came in following the
    appellants arrest. Not only was he not in possession of his phone any longer,
    but he could not adopt something he could not possibly read.

[91]

In the end, only the one series of text messages from December
    13, 2010 could be considered adopted admissions under the documents in
    possession rule. Despite the fact that they could have been admissible on this
    basis, the jury was not charged respecting how to approach adoptive admissions.

[92]

The necessary elements of such a charge are discussed in
Robinson
,

at paras. 48-58, and more recently in
R. v. Zvolensky
,

2017
    ONCA 273, 135 O.R. (3d) 401, at paras. 150-53, leave to appeal filed October
    19, 2017. Had this been the sole basis for admissibility, the jury charge would
    have fallen short of the mark as the messages were treated as general hearsay
    and not as adoptive admissions.

(iv)

Conclusion

[93]

Despite the potential admissibility of some of the text messages
    under the documents in possession rule, given how the jury was instructed in
    this case, the rule cannot justify admissibility on appeal. Despite this fact,
    as discussed previously, the text messages were properly admissible under the
    principled exception to the hearsay rule and the jury charge accorded with this
    purpose. I will now discuss the charge.


II.

Was the Jury Properly Instructed on the Use to
    be Made of the Text Messages?

[94]

The appellant raises two
    matters respecting the charge. He argues that: (a) given that by the end of
    trial the Crown had conceded that he could not prove that the appellant had
    read or sent the text messages, the trial judge was wrong to leave the text
    messages for a hearsay purpose; and (b) the charge was inadequate as it related
    to the dangers associated to the text messages.

(a)

The Crowns Closing

[95]

I do not agree that the
    Crowns closing undermined the hearsay character of the text messages.

[96]

In advancing this
    position, the appellant latches onto Crown counsels acknowledgement in the
    pre-charge conference that he was very clear with the jury in his closing
    that he did not prove absolutely that Mr. Bridgman read those texts that were
    incoming and we couldnt say that hes the one that sent them. The relevant
    passage in the Crowns closing argument is as follows:

[S]omebody must have been
    comfortable enough to send that type of explicit message to Mr. Bridgman when
    they know that there is going to be receptiveness to it. Who randomly just
    sends out to the world a text message that  where that person wishes to engage
    in criminal activity. So, does that mean that Mr. Bridgman read it? No, I cant
    prove that. Does this prove that Mr. Bridgman sent those reply messages? I
    cant prove that, when you look at it in isolation, but when you look at the
    totality of it, the $5,000.00 of cash in the pocket, the oxycodone 80s in his
    pocket.  In my submission when you look at it as a whole, again  there is an
    inescapable and irresistible inference of one thing, that Mr. Bridgman is a
    drug trafficker.

[97]

The appellant maintains
    that this passage demonstrates that the Crown moved away from a hearsay purpose
    for the messages. I disagree.

[98]

In the context of the
    closing as a whole, the Crowns position is clear. Although Crown counsel noted
    the obvious, that he could not prove that, standing on their own, the text
    messages were sent or received by the appellant, considering the evidence as a
    whole, the jury was well positioned to come to this conclusion. Crown counsel threaded
    this idea throughout his closing submissions, including posing the following
    rhetorical question for the jurys consideration in response to the appellants
    evidence that someone else must have been using his phone for text messaging:

But I have to ask you, is
    it reasonable to think that somebody is going to be a drug trafficker of prescription
    pills and use somebody elses phone to engage in that business, hoping that
    they have possession of the phone when people reply or that theyll have access
    to the phone when somebody might text them and say, hey, I need some pills now,
    at lunch? That defies common sense.

[99]

The Crown clearly advanced
    the position that it was the appellants phone and that he was the one using
    the text messaging function.
The Crown did not
    resile from his position that the text messages came back to the appellant. Nor
    did he resile from his position that they could be used for a hearsay purpose.

(b)

The Content of the Charge

[100]

The
    appellant takes the position that there is a fundamental flaw in the trial
    judges charge. He argues that the trial judge erred by leaving the impression
    that the text messages were reliable hearsay, and that the jury should have
    been notified of the hearsay dangers affecting the ultimate reliability of the
    messages. I do not accept this submission.

[101]

The
    question of ultimate reliability is for the jury:
Khelawon
,

at
    para. 3. Ultimate reliability is determined by the trier of fact, assessing
    whether and to what degree the statement should be believed and relied upon to
    determine the issues in the case:
Bradshaw
,

at para. 39. This
    determination is made against the backdrop of all of the evidence:
Khelawon
,

at para. 3.

[102]

The
    charge brought home to the jury their need to carefully consider the text
    messages. The trial judge commenced by explaining that hearsay evidence occurs
    when one person tells you what another person says and that person is not here
    to tell you directly. He explained that hearsay evidence is generally excluded
    because it is not considered reliable for the following reasons: The person
    is not under oath, is not cross-examined and you cannot watch the person give
    their testimony in person.

[103]

Having
    explained the dangers of hearsay evidence, the trial judge went on to explain
    that there was an exception in this case

the text
    messages. The appellant maintains that by referring to the text messages as an
    exception, the jury would have understood this to mean an exception to the hearsay
    dangers. I disagree.

[104]

Read
    in context, the jury would have understood the trial judge to be referring to
    an exception to what he had just described as the typical rule that hearsay is
    not admissible. His comment was immediately followed by reference to the same
    hearsay dangers he had just reviewed:

There was an exception that you heard in this trial being the
    text messages to Mr. Bridgmans cell phone. The people who made these texts are
    unknown and they were not here to tell you the context in which these texts
    were sent, what they meant,
or even if
    they were meant for Mr. Bridgman
.

[Emphasis added.]

[105]

The
    trial judge then reviewed for the jury the Crown and defence positions
    respecting the messages, positions that were repeated later in the charge when
    summarizing the global positions of counsel. The trial judge specifically
    adverted to the defence position regarding the absence of reliability attaching
    to the record of text messages later in his charge.

[106]

The
    hearsay portion of the charge was completed with the following observation: It
    is for you to decide how much or how little you rely on this evidence but I
    emphasize it is only one part of all the evidence you heard and you must
    consider all of the evidence in reaching your decision.

[107]

By
    the end of the charge on hearsay, the jury knew to treat the text messages with
    caution, knew the dangers associated to them, and knew that they had to
    consider whether they were even meant for the appellant. The jury charge was
    adequate to the task.

CONCLUSION

[108]

I
    would dismiss the appeal.

Released: December 4, 2017

Fairburn J.A.

I agree G. Pardu
    J.A.

I agree Grant
    Huscroft J.A.





[1]

Although Crown counsel relies upon an outgoing text message
    following the inquiry about p as part of this string of text messages, it is
    an outgoing message to a different number and, therefore, not part of the same
    text conversation.


