An estimated three billion human beings own cell phones, sending more than a trillion text messages every year. Not all of these messages are benign.
Sometimes, when an accused is arrested, his/her cellphone is searched, either incident to arrest or under the authority of a search warrant (or both). And, as you might expect, the messages and pictures on that cellphone sometimes end up as Crown evidence in a criminal trial.
Here’s how.
Are Text Messages Hearsay?
As with all admissibility questions, the first issue to be addressed is the purpose for which the evidence is sought to be tendered.
Text messages are documents containing out-of-court statements. However —
No evidence is hearsay on its face. Admissibility depends on the purpose for which the evidence is sought to be admitted. Evidence is hearsay — and presumptively inadmissible — if it is tendered to make proof of the truth of its contents.
R. v. Baldree, 2013 SCC 35 (CanLII), at para. 36.
So then, text messages are not necessarily hearsay: it depends on the purpose for which they are tendered. Text messages can also be admitted, for instance, as circumstantial evidence under the documents in possession rule,for the non-hearsay purpose of connecting the accused to a location, transactions, or people, or demonstrating knowledge, state of mind and so on. But where that occurs, the texts may not be used to prove the truth of their contents.
R. v. Bridgman, 2017 ONCA 940, at para. 76.
Out-going text messages
Hearsay is presumptively inadmissible because of the accepted dangers arising from this type of evidence. The presumption can be displaced only where the evidence fits within a categorical exception to the rule or satisfies the principled exception:
R. v. Khelawon, 2006 SCC 57, at para. 42.
One categorical exception to the hearsay rule is the admissions exception.
Admissions, in the broad sense, refer to any statement made by a litigant and tendered as evidence at trial by the opposing party. Admissions are presumptively admissible against the accused.
R. v. Foreman, 2002 CanLII 6305 (ON CA), at para. 37.
Outgoing text messages, assuming relevance, may be admissible under the admission exception to the hearsay rule:
For more on the admissions exception generally see 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.
See also Stuart O’Connell Criminal Law Blog, Rap Lyrics as Evidence,
Standing on their own, however, outgoing text messages will likely have no or little probative value, as their relevance will rest on their relationship to the incoming messages.
See for instance R. v. Baldree, 2013 SCC 35 (CanLII).
And as incoming messages are not statements from the accused, they do not –- without more—constitute an admission on the accused’s part. Thus, the distinction as to whether the text messages are out-going (being sent from the phone) or incoming (being sent to and received by the phone) becomes important.
Incoming Text Messages
Incoming messages may be admissible under the documents in possession rule, a long-standing rule which applies to paper and electronic documents alike.
The rule is designed to permit the admission of documents in two different circumstances for two different purposes:
1. Admissible as Circumstantial Evidence
Documents which are, or have been, in the possession of a party will generally be admissible against the accused as original(circumstantial) evidence to show the accused’s knowledge of their contents, the accused’s connection with or complicity in, the transactions to which they relate, or the accused’s state of mind with reference thereto.
2. Admissible for a Hearsay Purpose
Documents will further be receivable against a party as admissions (an exception to the hearsay rule) to prove the truth of their contents if the accused has in any way recognised, adopted or acted upon them.”
R. v. Turlon (1989), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 190;
See also R. v. Baldree, at para. 69;
B.C. Securities Comm. v. Branch, [1995] 2 S.C.R. 3, at p. 33.
This rule is really just a restatement of the adopted admissions rule, with the added requirement that the document must be found in the accused’s possession.
Adopted Admissions
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, Watt’s Manual of Criminal Evidence (Toronto: Thomson Carswell, 2013), at para. 36.04.
But just because a text message arrives on a cell phone does not mean it has been adopted. An accused should not be rendered vulnerable to the whims of others and messages they may send by way of electronic communication.
Bridgman, at para. 87, 88.
For a classic example of an adopted admission see R. v. Bridgman, where an individual texted the accused that he wanted to come over to obtain drugs—which impliedly asserts that the accused sells drugs. By agreeing to allow the person to come by, the accused impliedly assents to the truth of that assertion. Adoptive admission.
