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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

ADMISSIBILITY OF INTERNET SEARCHES

R. v. HANSE, 2022 ONCA 843, NOVEMBER 30, 2022.

FACTS: The accused was charged with firearm offences, contrary to the Criminal Code.  At his trial, The Crown introduced intercepted conversations in which the accused made numerous references to obtaining a “car” and “gas” for that “car”. The Crown’s “theory was that ‘car’ and ‘whip’ were used as code words for firearms, and that ‘gas’ and ‘containers of gas’ and ‘lug nuts’ referred to ammunition”.

The accused sought to counter this evidence by introducing evidence from a “Ms. Keiisha Pillai, who was an articling student at the defence counsel’s office. Ms. Pillai testified that she had done a Google search of the phrase ‘snub nose kush’, which led her to a website ‘weedmaps.com’. She downloaded a page from the website describing ‘AAAA OG Snub Nose Kush’ as a form of marijuana. In addition, defence counsel tendered a webpage retrieved from ‘www.wikileaf.com’, which described ‘gas’ as an informal term for quality marijuana”.

The trial judge ruled that Ms. Pillai’s testimony and the online articles were inadmissible. The accused appealed from conviction.

HELD: The appeal was dismissed. The Ontario Court of Appeal held that the evidence was inadmissible hearsay evidence (at paragraphs 35 and 36):

Pursuant to the rules of hearsay, out-of-court statements being tendered for the truth of their content are presumptively inadmissible. The appellant asserts that it is immaterial whether the contents of the online documents are true or not; what matters is that others have used “snub” and “gas” to describe marijuana.

However, this reasoning is circular. In order for the documents to demonstrate this, one must first assume that it is true that “snub” and “gas” have, at times, been used to mean strains of marijuana. Without verifying the truth of these statements, the online evidence tendered loses all utility, and is inadmissible as irrelevant. While the appellant may have implicitly accepted the truth of these documents, absent proof that the documents meet a traditional or principled exception to the hearsay rule, they are inadmissible.