Facts implied by out of court statement may be hearsay

R. v. Baldree, 2012 ONCA 138 is an important decision holding hearsay may arise from statements implied by an out of court statement. This is something of a shift in Canadian law.

Hearsay is an out of court statement adduced in court to prove its truth. Generally Canadian courts (unlike English courts) have held only the matters expressly set out in the statement are relevant for truth. Matters implied, such as say the mental capability of the person the statement is directed to, do not make a statement hearsay if the statement is called in support of such implied facts.

This case, however, despite a strong dissent, holds implied statements may create a hearsay problem.

The Court writes:

[140]     I agree with Chief Justice McMurtry in R. v. Wilson that admitting the contents of one call into evidence is admitting that evidence for a hearsay purpose. It is the implied assertion of the caller, untested by cross-examination, that the accused is a drug dealer. That was also the conclusion of the majority of the House of Lords in Kearley, with which I also agree.

In dissent Justice Watt writes:

[82]         The extension of the hearsay rule to implied assertions, to some extent at least, depends upon the extent to which the testimonial dangers, inherent in express hearsay, exist for implied assertions. The dangers of faulty perception and erroneous memory on the declarant's part may not be appreciably different for implied assertions than for express assertions. The danger of lack of sincerity would not seem a significant risk in connection with implied assertions.  But narration, and in particular, ambiguity, may present an enhanced danger for implied assertions, an inevitable consequence of the inference-drawing process.

[83]         On the other hand, it is nearly always possible to impute an assertion to all kinds of evidence, including oral statements, non-verbal conduct, even real evidence. A commonplace example will suffice. A witness testifies that he looked out his window and saw people in the street putting up their umbrellas. Is this admissible evidence from which a jury may infer that it had started to rain, or inadmissible hearsay because it comprises implied assertions of this fact by the passers-by, who are not called as witnesses?  To adopt the latter view is to impute an assertion to the passers-by when, in reality, they are making no assertion about the weather, implied or otherwise. Just like drug purchase callers who do not intend to assert anything about the recipient, the passers-by have no intention of making any statement about the weather. They are simply putting up their umbrellas, presumably to shelter from the rain.