R. v. Calnen

R. v. Calnen Court Supreme Court Date 2015-11-04 Citation 2015 NSSC 319 Docket CRH 426776 Judge/Registrar/Adjudicator Chipman, James L. (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Calnen - 2015 NSSC 319 - 2015-11-04 - Library Sheet Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. Calnen, 2015 NSSC 319 Date: 2015-11-04 Docket: CRH No. 426776 Registry: Halifax Between: Her Majesty the Queen v. Paul Trevor Calnen Judge: The Honourable Justice James L. Chipman Heard: November 3, 2015 in Halifax, Nova Scotia Counsel: Eric R. Woodburn and Susan MacKay, for the Crown Peter D. Planetta and Sarah M. White, for Mr. Calnen Orally by the Court: [1] This is the third voir dire in this matter. I have considered the evidence tendered in the previous voir dires – namely, the exhibits consisting of the video/audio and transcripts of Mr. Calnen’s statements – in deciding the issue that is now before me. I have also considered the evidence of Wade Weeks in the trial proper and in this trial within a trial in coming to my decision. As well, I have considered Exhibits VD-1, VD-2, VD-3 and VD-4 tendered in this voir dire. Finally, I have considered the oral arguments of the parties and various case authorities. [2] The question before the Court is whether a series of text messages obtained from Mr. Weeks’ cell phone records between March 1 and April 14, 2013, should be admitted into evidence. The Crown says they should all go in and the Defence argues none should be placed before the jury. Alternatively, both sides envision a scenario whereby the Court could permit some but not all of the texts to go into evidence. [3] Taken together, the text messages are classified as hearsay evidence because the presumptive author or declarant of one side of the texts is Reita Jordan and she is deceased. Hearsay is presumptively inadmissible and as such, the Crown (who is seeking to introduce the hearsay evidence) must bring the texts within an exception to the hearsay rule if they wish to rely upon the hearsay. [4] The modern Canadian definition of hearsay is found in R. v. Khelawon, 2006 SCC 57 at para. 35, where Justice Charron identified the two defining features of hearsay: 1) The fact that the statement is adduced to prove the truth of its contents; and 2) The absence of a contemporaneous opportunity to cross-examine the declarant. [5] As noted in Khelawon at para. 35, the central concern underlying the hearsay rule is the “difficulty of testing the reliability of the declarant’s assertion.” When a declarant’s statement is introduced for the truth of its contents through a third party recipient, (a) the statement is generally unsworn, (b) it is impossible for the trier of fact to assess the declarant’s demeanor when the statement was made, and (c) the declarant cannot be contemporaneously cross-examined. (See R. v. Starr, 2000 SCC 40 at para. 159, Khelawon at para. 35, and McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Carswell, 2013) at paras. 7:10-7:30.) The veracity and reliability of the declarant’s statement is insulated from meaningful challenge because of the limited ability to probe potential sources of error when only the recipient is cross-examined. [6] This is precisely the situation we have here as the texts are unsworn, the jury will not be able to assess Ms. Jordan’s demeanor and she cannot be cross-examined. Nevertheless, Canadian law has evolved in that courts must adopt a functional approach in their assessment of proffered hearsay. As Justice Charron held in Khelawon, on the admissibility inquiry a functional approach should be adopted and all relevant factors should be considered, including the presence of supporting or contradictory evidence in appropriate cases. When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need for the trial judge to inquire further into the likely truth of the statement. However, when reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show whether the statement is true or not. In any event, it is the responsibility of the trial judge to guard against the admission of hearsay evidence the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the trier of fact. [7] Here, of course, we are not dealing with a statement of Reita Jordan’s. Rather, the Court is being asked to consider the admissibility of text messages received by Wade Weeks from the phone number Reita Jordan had, namely 902-210-3146. Without question the necessity requirement has been made out as Ms. Jordan is deceased. Accordingly, the critical question is whether or not the texts are reliable and if they are found to be, whether their probative value is slight and undue prejudice might result to Mr. Calnen if the texts are permitted to be placed before the jury. Positions of the Parties Crown [8] The Crown referred to extracts from Justice Watt’s text along with Khelawon. Mr. Woodburn readily acknowledged that what we have here is unlike a KGB statement which a person swears to under oath. [9] He points out that the texts have not been manipulated by Mr. Weeks. The Crown asserts that the texts are simply reproduced from the moment in times they were sent. The Crown characterizes the texts as a back and forth conversation, that they are natural. [10] With respect to reliability, the Crown points out Mr. Weeks can testify as to his texts and his understanding of what he received. They point out Mr. Weeks is subject to cross-examination. [11] The Crown asserts that when considered in the context of Mr. Weeks’ testimony, the texts must be taken to be Mr. Weeks’ and Ms. Jordan’s, albeit Mr. Woodburn cites one example where he says it is the Crown’s belief that Mr. Calnen was texting with Ms. Jordan’s phone. [12] The Crown says the texts may be regarded as accurate because they can be shown – through Mr. Weeks’ testimony – to be talking about things that came to fruition. [13] In all of the circumstances, the Crown says, the texts meet the test of threshold reliability and should not be taken from the jury. Defence [14] The Defence agrees that the Court must take a principled approach to considering hearsay admissions, as set forth by the Supreme Court of Canada. While conceding necessity has been made out, the Defence contends the issue is reliability and further that the prejudicial effect of admitting the texts outweighs any probative value. [15] The Defence asserts that Ms. Jordan’s phone could have gotten into someone else’s hands. Mr. Planetta points to certain of the texts such as “He put his hands on me I don’t think I’m safe here” (March 10, 2013 at 6:58:53) to be highly prejudicial to Mr. Calnen. [16] The Defence adds that Ms. Jordan may have had motive to lie and that her texts should not be considered reliable. He adds that he obviously cannot cross-examine the declarant, Ms. Jordan, the author of the texts. [17] In all of the circumstances, the Defence says, the proposed texts do not meet the threshold reliability test. Law [18] In R. v. Bonnell, 2012 NBQB 289, the accused was charged with first degree murder of his cousin. The Crown pretrial motion dealt with the admissibility of text messages sent from the cell phone of the deceased, Hilary Bonnell. Justice Ferguson considered the identity of the author of the text messages in question and found as follows: [9] Without reviewing the various text messages they exchanged that evening, it is abundantly clear that they had a virtually uninterrupted long series of communications from their cellular telephones during that evening and night. It was also clear from the testimony given at the hearing by Haylie Bonnell that she had no doubt she was communicating with the deceased that evening and the next morning even though she was several days receiving the latter text messages because her cellular telephone battery went dead and she was several days finding a charger to recharge it. [10] That text and cellular telephone identity evidence is also consistent with the testimony given by the deceased’s mother, Pam Fillier, who communicated with her daughter during the night of September 4th and 5th,2009 through the deceased’s cellular telephone. In the course of sending and receiving the multitude of text messages with Haylie Bonnell that night, Hilary Bonnell also called her mother at 3:00 a.m. to remind her that they were going shopping the next day. The mother described her mood at that time as happy. She testified that her daughter ordinarily used both cellular telephone calls and texting to communicate with her. It was Pam Fillier who bought the cellular telephone for her. [11] There were others who text messaged or received messages from Hilary Bonnell that evening including Derek Joe who was originally invited by the deceased to the party at Ward’s by Hilary Bonnell in a text message. He took up her invitation. … [16] As shall become evident, other evidence, captured both on the security video recordings at the 4D Convenience store or seen by one of the eye witnesses, Theodore Barnaby, who saw the deceased on the Micmac Road that morning, confirm that the deceased was seen using or referring to her cellular telephone between 7:30 and 8:00 a.m. that morning. [17] When the totality of the evidence is considered, especially the many text messages sent between Haylie Bonnell and Hilary Bonnell on the evening of the 4th of September and the morning of the 5th of September 2009, it is reasonable to conclude that the author of the text messages sought to be introduced into evidence, that were received on the morning of September 5th, 2009 by Haylie Bonnell from who she thought was Hilary Bonnell, were indeed from her. The messages sent and received by Hilary Bonnell were from and to her telephone number (506) 625-4463, with Bell Telephone being the service provider for her cellular telephone. [19] In R. v. Howell, 2014 BCSC 2196, Justice Griffin made several helpful comments regarding the reliability and probative value of text messages: [34] Because text messages are in written form, the Nova Scotia Court of Appeal in Gerrior found them to have a higher measure of reliability than hearsay evidence of oral cell phone conversations (at para. 46). Because of this, in the circumstances of that case, the requirement of necessity was relaxed (at para. 54), applying Baldree at para. 72. … [51] But the point of referring to the above passage in Baldree is that written messages are inherently more reliable than oral statements repeating someone else’s statement because the written form reduces the risk that an intermediary will have made an error in repeating the statement. Here, five of the text messages suggest involvement in the sale of methamphetamine described as “side”, based on the opinion evidence of Corporal Helgeson. The number of messages to this effect enhances the reliability of the circumstantial evidence that the person in possession of the phone had some knowledge of or involvement in the transactions to which those messages relate. … [56] I am also satisfied that the probative value of the evidence outweighs its prejudicial effect. In this regard, I do observe that some of the evidence in Exhibit A is of little probative value. However, since it is a single report, it is convenient to enter it for a limited purpose for those entries that are probative without attaching any weight to the irrelevant content, such as messages that are merely social and such as the column indicating the time of the messages, which is not accepted as accurate given the confusion with the notations “GMT” and “GMT minus 4”, and of course, the report is not to be given weight with regard to the sequence of the messages. [20] Ultimately the Court found that R. v. Baldree, 2013 SCC 35, was not very helpful because text messages are inherently more reliable than phone calls. In that regard, Justice Griffin stated: [23] Since the evidence in Baldree did not fit within a traditional exception to the rule excluding hearsay evidence, in order to be admitted it needed to be shown it was both necessary and reliable. The Court held that neither aspect of the principled approach to the admission of hearsay evidence was established on the evidence in that case. [24] Here, we are dealing with text messages sent to a cell phone in which the messenger purports to be seeking to buy drugs. At first glance, it would seem counterintuitive to treat text messages seeking to buy drugs differently than oral requests to buy drugs over the same cell phone. Is not the implied assertion raised by this circumstantial evidence the same: that the declarant is asserting that the accused sells drugs? However, there are important differences on the facts and law here: 1. On this voir dire, we are dealing with written statements. In Baldree, the Supreme Court of Canada emphasized that it was dealing with exclusively verbal statements and it was leaving to another day the issue of the applicability of the hearsay rule to inferences that can be drawn from nonverbal conduct (at para. 63). 2. On this voir dire, we are dealing with several statements made in the days or weeks prior to the accused’s arrest. In Baldree, the statement was made by a single person after but close in time to the accused’s arrest. [21] In R. v. Gerrior, 2014 NSCA 76, the Court of Appeal considered the admissibility of post-arrest text messages on the accused’s cell phone. The Court upheld Judge Buchan’s finding that the messages were admissible under the principled exception to hearsay. The appellant urged the Court to find that the trial judge erred in admitting the exchanges, arguing that Baldree changed the law about admissibility of such evidence. [22] Beveridge J.A., MacDonald C.J.N.S. and Bryson J.A. concurring, found that the number of text messages can support reliability: [43] Justice Fish was equally succinct in finding that the single call failed to meet the threshold for reliability: [69] Nor is the single telephone call in this case sufficiently reliable. As Feldman J.A. found in the court below, "[t]here was no basis to say that the caller's belief was reliable without testing the basis for that belief by cross-examination" (para. 146). Indeed, this is not a situation "in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished": Khelawon, at para. 62, quoting Wigmore on Evidence, at s.1420 [44] But in the case at bar, there was not just one call, but three coded conversations, which in the uncontested opinion of Cst. Peddle, were about obtaining cocaine from the appellant. Does this make a difference? In these circumstances, I find that it does. Justice Fish specifically acknowledged that the existence of multiple calls could inform the analysis of necessity and reliability. He wrote as follows: [70] In concluding as I have, I take care not to be understood to have proposed a categorical rule for drug purchase calls. Although the call at issue here does not withstand scrutiny under the principled approach, this need not always be the case. [71] For example, where the police intercept not one but several drug purchase calls, the quantity of the calls might well suffice in some circumstances to establish reliability -- indeed, while "[o]ne or two might [be] mistaken, or might even have conspired to frame the defendant as a dealer", it would "def[y] belief that all the callers had made the same error or were all party to the same conspiracy": I. H. Dennis, The Law of Evidence, (4th ed. 2010), at p. 708. [72] Moreover, the number of callers could also 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 -- as in this case. And it is important to remember that the criteria of necessity and reliability work in tandem: if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed: see Khelawon, at para. 86, citing R. v. B. (K.G.), 1993 CanLII 116 (SCC),[1993] 1 S.C.R. 740, and R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764. [Emphasis added] … [46] Here, two of the out-of-court statements were recorded by the mobile service provider, and reproduced by means of a production order. There could be no dispute about the completeness of the communications or the absent declarant having misperceived the actual exchange of information contained in the text messages, nor accurately recalling what was said. In my opinion, this goes a long way towards satisfying the threshold requirement of reliability. [47] Ultimate reliability, that is, the truth of the implied assertion that the appellant was a person who was trafficking in cocaine is a different issue—although it is clear that other evidence tending to confirm the truth (i.e., the ultimate reliability) of the implied assertion is relevant to the admissibility analysis (R. v. Khelawon, at paras. 93-100). [48] In this regard, the Crown points to the evidence within the text messages themselves, and to the considerable body of other circumstantial evidence, including a number of pre-arrest texts for commerce in cocaine, all of which tend to support the reliability of the implied assertion that the appellant was an individual who trafficked in cocaine. I agree. [23] This decision has been cited with approval in the Howell decision referenced above, and in R. v. Savino, 2014 MBQB 221. [24] In R. v. Gayle, 2013 ONSC 5293, text messages from the deceased to her mother were admitted in a first degree murder trial. Necessity was established because the declarant was deceased. The Court’s reasons for admitting the messages were as follows: [56] The text messages from Royena Smeikoe’s cell phone consist of an exchange on June 9, 2010 between Tiffany and her mother Sherine Stephenson-Taylor, who was living in Jamaica. Tiffany informed her mother that she was coming back at the end of June and her mother responded that she would see if Aunt Avnel’s daughter could keep her, and asked Tiffany for her address. Tiffany responded that she could not come to the house and provided her address on Savita Road. [57] Crown counsel argued that the messages are evidence that Tiffany believed that she was going to return to Jamaica at the end of June. Ms Stephenson-Taylor would testify at the trial about telling Tiffany that she was making arrangements for someone else to take her. Crown counsel asserted that the exchange is also evidence of Tiffany’s state of mind – that she was fearful or concerned about people coming over to the house. [58] Defence counsel suggested that the text messages are open to different interpretations. There may be any number of reasons that Tiffany didn’t want Aunt Avnel’s daughter to come to the house. The fact that the evidence is open to different interpretations, however is not a reason to exclude it, nor do I find that the probative value of this evidence (with respect to Tiffany’s belief that she was being sent back home and her concern about someone coming to the house) is outweighed by any prejudicial effect. [59] The text messages between Tiffany’s mother and Tiffany were accordingly admitted at trial in their entirety. [25] Another case I bring to your attention is R. v. Tremblay, 2012 BCSC 2105. Throughout the trial, a large number of text messages were admitted for non-hearsay purposes. The Crown then applied to have the text messages admitted for the truth of their contents. The text messages were deemed admissible under the principled exception to hearsay: [29] I now turn to consider the statements the Crown seeks to admit which do not fall within a traditional exception. For all of the statements, there is no question that the criterion of necessity has been met in the circumstances of this case. The statements which are sought to be admitted are from the two deceased girls. Their statements about their actions, physical condition and state of mind are relevant to the charges. The Crown has no other way to adduce this evidence. [30] The serious issue here is whether the Crown has satisfied the onus of showing that the statements meet the reliability requirement. Of course, as explained in R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043 at para. 75, threshold reliability is distinct from ultimate reliability: 75 The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact. [31] As the Crown’s argument suggests, there are two primary ways in which threshold reliability can be satisfied. The first is by showing there are adequate substitutes for testing the reliability of the hearsay statement. The second is by showing, through the circumstances surrounding the making of the statement, that it has sufficient inherent trustworthiness. As Charron J. noted at para. 92 in Khelawon, the inquiry that must be made on the voir dire is different depending on which approach is taken to the reliability analysis: ... When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not... [32] The circumstances under which the statements were made in this case are not such that I could conclude there is a sufficient basis to assess the statements’ truth and accuracy. That can properly occur only where the statement is made in circumstances where there is a satisfactory guarantee of accuracy and truthfulness. At the very least, the statement would need to have been recorded in some fashion. Casual telephone conversations which do not fall within the traditional exceptions will typically require an examination of both the inherent trustworthiness and the likely truth of the statement. Of course, the latter inquiry must be limited to threshold reliability and not intrude on the question of ultimate reliability. [33] In Khelawon at para. 4, the Court concluded that all factors which may be relevant can be considered on an admissibility inquiry including the presence of supporting or contradictory evidence. The decision in R. v. Blackman, 2008 SCC 37 (CanLII), confirms that corroborative evidence can be used to assess threshold reliability. [34] With these principles in mind, I turn to consider the relevant factors relating to the hearsay statements which are not covered by the traditional exceptions. [35] I will start by examining the text messages in Conversations 3 to 8 inclusive. These are all conversations between Ms. Jackson or Ms. Lalonde and their friends. The circumstances of the messages have similarities to the circumstances which apply to the traditional exceptions. The statements are spontaneous and were made in response to inquiries from friends. The statements deal with simple subjects, including what they are doing and where they are. Examples of statements dealing with what the girls are doing include: “waiten 4 justine”; “DRINKING HBU?”; “They bein drunk”; “drinkin hbu?” and “Justine is fucking hammered”. Examples of statements discussing where the girls are and where they are going include: “we at the gazebo”; “Near metro, what u doing?”; “Me Kayka and Justine, well wanna meet at 22nd?” and “were wit god.” [36] These text messages are spontaneous statements made in friendly, casual conversation. Such statements are typically made quickly with little forethought. It is evident that the text messages were sent contemporaneously with the activities described. All of these factors give a degree of reliability to the statements. [37] There is, of course, a downside to spontaneity and informality. There is no need to be truthful in this kind of communication. It is common to joke, be imprecise, inarticulate or sarcastic in text messages. For example, A.D. asks Ms. Jackson, after being told that the girls are being drunk, “Are you as drunk as them?” and she replies, “Ha ha no.” Is this sarcasm or a truthful statement? The informality of the medium can clearly impede clarity and, perhaps, reliability. [38] However, there is no evidence before the court that the girls have any reason to be untruthful about the content of the messages. Quite simply, these were innocuous statements about routine activities for the girls. They are telling their friends what they are doing, where they are going and who they are with. [39] There is also corroborating evidence from the information provided by the cell phone providers about the movement of the girls from Broadway out to Central Park and down to Richmond. There are also photographs which allow for corroboration regarding the activities of the girls and their location throughout the afternoon. The direct evidence of Ms. Gambler and A.D. provides some corroboration of the drinking that took place earlier in the day, and the photographs from the phones provide some additional corroboration of the activities. [40] I note that the statements in the text messages have some similarity to the kinds of statements that were admitted in R. v. Kembo, 2009 BCSC 1880 (CanLII). Madam Justice Stromberg-Stein’s comments at para. 9 are applicable here: ... The reported utterances were made in trustworthy circumstances obviating the requirement to cross-examine the declarant. The declarants had no motive to lie or mislead about their relatively innocuous communications with the various recipients of those communications. [41] When I weigh all of these factors, I conclude that the statements in these text messages about the activities of the girls, where they are and where they were going, are sufficiently reliable to be admissible in evidence. In arriving at that conclusion, I have taken into account the presence of the corroborating evidence as well as the circumstances under which the statements were made. [Emphasis added] Analysis and Disposition [26] Having regard to the voir dire evidence and case law, I am of the view that the texts in question ought to be admitted. To my mind they offer an unvarnished and therefore reliable account of the situation between Mr. Weeks and Ms. Jordan in mid-March 2013. This is obviously a critical time period in relation to this case and the texts are highly probative in terms of the deceased’s last days on Earth. [27] I adopt the arguments set forth by the Crown and will not now repeat all of them. From the case law it is clear that Canadian courts have generally seen fit to allow the admission of texts as an exception to the hearsay rule. [28] Having reviewed the evidence of Mr. Weeks and read through all of the texts, I would make similar comments as were made in Tremblay (see paras. 36-38). To the extent the Defence wishes to challenge the texts, he will have ample opportunity through cross-examination, with the jury present. [29] I again refer to Justice Beveridge’s observations in R. v. Gerrior, 2014 NSCA 76, and in particular his remarks at paras. 46-48. [30] In conclusion, the Crown has satisfied me beyond a reasonable doubt that all of the text messages (Exhibits VD-1, VD-2, VD-3 and VD-4) should be placed before the jury. Chipman, J.