Police frequently seize cell-phones when they execute search warrants or arrest suspected drug dealers. Often, the phone rings and callers ask to purchase drugs. The police will also examine the cell phones for incriminating texts.

Can anonymous calls and texts be used to prove that someone was dealing drugs or possessed drugs for the purpose of trafficking? What if the caller was calling the wrong number? What if the language used in the texts or calls is cryptic and open to multiple interpretations?

The law on whether drug calls and texts can be used at trial to show that the accused was dealing drugs is unsettled at this time. A decision from the Supreme Court of Canada is expected on the issue soon in R. v. Baldree. In the meantime judges are divided on the issue, as evidenced by the two recent Ontario Superior Court cases and a British Columbia Court of Appeal case discussed below.

The Ontario Court of Appeal decision in R. v. Baldree

Until recently, drug texts and phone calls were usually admissible in Ontario as circumstantial evidence of drug dealing. In R. v. Baldree (2012 ONCA 138), however, the Ontario Court of Appeal ruled that an anonymous call to purchase drugs was inadmissible.

Baldree was arrested for various drug offences after an apartment was searched. A police officer answered an anonymous call to Baldree’s phone, possessing as his successor. The caller used Baldree’s name and agreed buy drugs for a specific price, but the delivery never took place. At trial, the Crown used the police officer’s testimony about the phone call as evidence to link Baldree to the drugs in the house.

Baldree appealed his convictions, arguing that the phone call was inadmissible. The majority of the Ontario Court of Appeal ordered a new trial. The Court of Appeal ruled that the drug call was either inadmissible hearsay or that its prejudicial effect outweighed its probative value. Justice Watt wrote a strong dissent, stating drug calls should be admissible as circumstantial evidence of drug trafficking.

The B.C Court of Appeal rejects Baldree

The British Columbia Court of Appeal recently rejected the reasoning in Baldree. In R. v. Graham (2013 BCCA 75) an anonymous source told police where and when they would find Graham trafficking drugs. Police went there saw Graham arriving in a van at the predicted time. They arrested him and found cocaine in a hidden compartment in the van.

A cell phone was recovered from the van. When it rang, the caller asked to purchase drugs. Without the anonymous call there was little evidence that Graham knew about the hidden drugs. The B.C. Court of Appeal court found that phone calls to suspected drug dealers’ phones are admissible and probative evidence, contrary to Baldree.

The Ontario Courts are divided on how to apply Baldree

Rowe: Superior Court admits drugs texts evidence

In R. v. Rowe, [2012] O.J. No. 1944, a judge of the Ontario Superior Court declined to follow Baldree.

The police executed a search warrant on an apartment, where Rowe was found near some individually bagged cocaine. It was not Rowe’s apartment, but he was seen there before during police surveillance. Digital scales, cell phones, cash and materials used to sell cocaine were also found in the apartment.

Rowe had sent and received numerous text messages for the last month including possible coded language for cocaine sales. The messages included:

“In 45 min; ave bling”; “bud this is not the bling not the same as last time”(to Rowe); and the reply, “same bud”; “…I take a chick in 20m text u back”(to Rowe); “hey bud need half a chick it was me who was calling call me back”(to Rowe); “need 7g” (to Rowe); “bling bling bud; in twn(from Rowe); 4 other similar messages to 4 different numbers from Rowe); “still ave a bite 4 u; hurry bling bling”(from Rowe); “up and running blingbling”(the last two are on Feb. 17 10:23 and 17:13 (from Rowe); at 14:53 on Feb. 18,to Rowe from a friend Rob,”U not here yet”; (“Ter just went out”( from Rob at 14:53); “Thx bro” (to Rowe from Rob, husband of Terry-Ann at15:09) .

Rowe argued that the text messages should be excluded according to the reasoning in Baldree.

In Rowe, the judge ruled that text messages from the day before the cocaine was discovered were admissible as non-hearsay circumstantial evidence of the nature of the business in which Rowe was involved. The judged ruled that Baldree does not prevent the admission of texts where the messages are numerous and are code for messages of drug purchases or sales.

Superior Court excludes drug texts

By contrast, I recently received an unreported ruling from the Superior Court of Justice, excluding several messages which were arguably consistent with drug dealing. A search warrant was executed on a house and drugs were found hidden in the basement. A cell-phone was seized from my client during the search. The texts on the cell-phone included:

• “Can I get a whole pie? I don’t want a sliced pie.”

• “Can I get a stamp?”

• Repeated texts of, “Can I stop by?”

• Other texts which were clearly not related to drug trafficking.

There was no proof the phone actually belonged to the accused. There were no reply texts sent from the seized phone. The Crown had sought to introduce the text messages as circumstantial evidence that my client was aware of a cache of Fentanyl patches hidden in the basement.

The judge ruled that he was bound by the majority decision in Baldree and that the texts were hearsay. The judge commented, however, that he preferred Justice Watt’s dissent. The judge excluded the alleged drug texts because the police did not investigate the reliability of the texts, for example, by determining who sent the texts. Had it not been for the Baldree decision, he would have admitted the texts as circumstantial evidence of drug trafficking. Ultimately, my client was acquitted because the prosecution could not prove he knew about the drugs hidden in a house.

What will the supreme Court decide in Baldree?

I expect the Supreme Court will adopt the necessity and reliability analysis suggested by Feldman J.A. and Blair J.A. in Baldree. However, I expect that the Supreme Court will rule that numerous texts or phone calls consistent with drug trafficking will be enough to satisfy the reliability criteria, such that the texts can be admitted as exceptions to the hearsay rule.