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Simon Shields,
LLB

Barrister and Solicitor
(Retired)
LSUC #37308N


simonshields@isp.com

Legal Writing and Research



Evidence - Hearsay

Evidence - Hearsay - Documents in Possession Rule

R v Bridgman (Ont CA, 2017)

Principle features of the hearsay rule are set out in this case:
[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 (CanLII), 349 C.C.C. (3d) 429, at para. 1; R. v. Khelawon, 2006 SCC 57 (CanLII), [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 declarant’s 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.
As for the documents-in-possession exception to the hearsay rule, the court states:
[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), 1931 CanLII 170 (ON CA), 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 (CanLII), 330 C.C.C. (3d) 105, at para. 116; and B.C. Securities Comm. v. Branch, 1995 CanLII 142 (SCC), [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 (CanLII), 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 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.”

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