Wednesday, December 5, 2012

Hearsay cannot be avoided by claiming state of mind is circumstantial evidence

In Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854 the argument was made that an otherwise hearsay statement was adduced to show state of mind only and that state of mind was circumstantial evidence of the truth of the statement – the Court rightly rejected the argument:

(ii) State of Mind as Non-hearsay Circumstantial Evidence

[42] It may be argued that there is no hearsay problem at all. This is because evidence is only hearsay when it is adduced to prove the truth of the contents and there is no contemporaneous cross-examination of the declarant: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 56. The respondents argue they do not tender the statement to prove the truth of the contents, i.e. that the policies were purchased and were still in force, but only to prove Mr. Brisco's belief that they were in force. Viewed this way, the respondents do not need a hearsay exception at all. However, in my view, the limitations on the use of utterances of present state of mind apply whether the statements are explicit statements of state of mind or merely statements from which an inference as to the declarant's state of mind can be inferred. In P. (R.), at pp. 341-43, Doherty J. referred to both methods of proving state of mind. The passage from that decision at p. 344, approved in Starr and cited above, does not distinguish between the two methods of proof of state of mind.

[43] The respondents' argument for the use of Mr. Brisco's statements is not unlike the argument dealt with by this court in Baldree. As I have indicated, this court asked for further submissions on the application of Baldree to this case. In Baldree, the Crown sought to rely upon a telephone call from an anonymous caller to the appellant's cell phone asking to buy some marijuana. There was no direct assertion in the statement that the appellant was a drug dealer, but this was the inference sought to be drawn. Feldman J.A. dealt with the issue in the following way, at paras. 140-41:

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. When there are a significant number of calls, the analysis of the minority in that case, that the fact of the calls requires an explanation which comes from the content of the calls, which content is admitted to show the operation of a market in drugs, becomes cogent. However, even on that analysis, in my view, it is still the truth of the content of the calls that is being relied on. With respect to those of the contrary view, it is not circumstantial evidence from which an inference can be drawn that the accused is a drug dealer. The evidence gets its probative value from the belief of the callers, which may or may not be accurate. [Emphasis added.]

[44] Similarly, the evidence here gets its probative value from the belief of Mr. Brisco, which may or may not be accurate. It may be that the evidence could be admitted on a principled application of the hearsay rule on the basis that the statements were necessary, because Mr. Brisco was deceased, and reliable, because it was unlikely Mr. Brisco was mistaken or lying about his own insurance, a matter to which I turn below.

[45] In his concurring reasons, Blair J.A., at paras. 160-62, adopted a different approach to analyzing the evidence in Baldree, but he agreed it should be excluded: However, if the hearsay nature of the prospective testimony is particularly difficult to pinpoint, courts should consider falling back on the newer, more principled tools of reliability and prejudice/probative value assessments to resolve the question of admissibility. Such a situation may arise where – as here, for example – the purpose for which the evidence is tendered is ambivalent or open to more than one usage, but the evidence, at least on its face, has many of the hearsay-danger characteristics that make courts cautious about receiving it. "Necessity" is less of a factor in these circumstances. If evidence lacks sufficient reliability it will have little probative value in any event, but even if the proffered evidence meets the reliability threshold for admissibility a judge may still conclude, in his or her discretion, that the evidence ought to be excluded because its prejudicial potential outweighs any probative value it may have: Khelawon, at para. 3; R. v. Seaboyer, [1991] 2 S.C.R. 577. Like Feldman J.A., I conclude that the trial judge erred in admitting the evidence of the one drug-purchase call on the basis that it showed the appellant was in the drug-dealing business. I agree with her analysis at paras. 144‑49 of her reasons, in this regard. If the phone call evidence was hearsay, it ought to have been subjected to a necessity/reliability analysis, which, in my view, it would fail. If, as the trial judge concluded on the basis of the authorities he followed, it was not hearsay, it ought nonetheless to have been subjected to a prejudice/probative value balancing exercise, which the trial judge did not do. Like my colleague, I do not think the fact that defence counsel did not seek to have the phone call excluded on Khelawon principles is fatal in the circumstances. In circumstances such as this, trial judges should be alive to their discretion to exclude evidence on the prejudice vs. probative value ground.

[46] The fundamental difficulty with the respondents' claim is that any declaration can be converted to a statement of belief, tendered not for the truth of the assertion. A majority of this court has rejected that approach in Baldree. I see no reason to revisit the issue on the facts of this case.

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