Il n'y a aucune distinction entre une clé USB et d’autres dispositifs informatiques qui stockent des données dans l'appréciation de l'expectative de vie privée

Croisetière c. R., 2022 QCCA 980

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[78]      À mon avis, et avec égards, il est déraisonnable de conclure que la bonne foi de la policière pouvait, dans les circonstances, écarter la règle énoncée dans l’arrêt R. c. Fearon, 2014 CSC 77 (CanLII), [2014] 3 R.C.S. 621, rendue plus de 30 mois auparavant. La juge a eu tort de faire reposer la conduite de la policière sur la bonne foi. En l’espèce, l’erreur est déraisonnable et révèle une méconnaissance de l’étendue de ses pouvoirs et du droit : R. c. Grant, 2009 CSC 32 (CanLII), [2009] 2 R.C.S. 353, par. 75, 133 ; R. c. Tim, 2022 CSC 12, par. 85.

[79]      Il est aussi douteux que la policière aurait découvert les photographies. La juge ne s’en explique pas et la preuve démontre plutôt que la possession de pédopornographie n’était pas une préoccupation des policiers avant la découverte d’images sur la clé. L’intérêt pour les ordinateurs et autres supports numériques n’avait jamais effleuré l’esprit de la policière qui n’avait jamais demandé à saisir autre chose que le téléphone cellulaire en lien avec les photographies concernant le plaignant. Dans un second temps, le mandat pour les obtenir était tout aussi vicié par la fouille illégale de la clé USB et ne pouvait autrement, dans les circonstances, se justifier. Les faits ne permettent pas d’établir avec certitude que les éléments de preuve auraient été découverts sans violation de la Charte : R. c. Grant, 2009 CSC 32 (CanLII), [2009] 2 R.C.S. 353, par. 122 ; R. c. Tim, 2022 CSC 12, par. 94.

[80]      L’arrêt Fearon précise qu’une fouille sans mandat d’une clé USB est possible si elle est strictement accessoire à l’arrestation et que les policiers conservent des notes détaillées de la fouille et des raisons pour le faire : R. c. Fearon, 2014 CSC 77 (CanLII), [2014] 3 R.C.S. 621, par. 4, 82. Toutefois, l’État doit expliquer pourquoi la fouille ne pouvait pas être effectuée après l’obtention d’un mandat : R. c. Fearon, [2014] 3 R.C.S. 621, par. 80. La Cour suprême rappelle que, sauf lorsque l’enquête en serait paralysée ou sérieusement entravée, un mandat est nécessaire. Autrement, l’atteinte importante à la vie privée l’emporte sur l’objectif de la découverte d’éléments de preuve : R. c. Fearon, [2014] 3 R.C.S. 621, par. 80.  L’absence d’urgence sera, en principe, fatale : R. c. Fearon, [2014] 3 R.C.S. 621, par. 81.

[81]      Comme la Cour d’appel de l’Ontario, je ne crois pas utile de faire des distinctions entre une clé USB et d’autres dispositifs informatiques qui stockent des données : R. v. Tuduce, 2014 ONCA 547; R. v. Balendra, 2019 ONCA 68.

[82]      Je suis d’avis que la violation elle-même était grave tout comme son incidence sur les droits de l’appelant. Ce dernier a raison de souligner les préoccupations particulières en matière de respect de la vie privée que soulèvent la saisie et la fouille des appareils qui stockent des données : R. c. Vu, 2013 CSC 60 (CanLII), [2013] 3 R.C.S. 657; R. c. Fearon, 2014 CSC 77 (CanLII), [2014] 3 R.C.S. 621; R. c. Morelli, 2010 CSC 8 (CanLII), [2010] 1 R.C.S. 253. 

[83]      Rien dans la preuve n’indique qu’avant la fouille illégale, les policiers avaient l’intention de fouiller la clé et les ordinateurs de l’appelant. Négliger d’obtenir un mandat pour fouiller une clé USB dans ses circonstances est de nature à miner à long terme l’intégrité du système de justice et de la confiance du public à son égard. La preuve des photographies devait être exclue : R. c. Reilly, 2021 CSC 38; R. c. Stairs, 2022 CSC 11, par. 158; R. c. Tim, 2022 CSC 12, par. 75 et 98; R. c. Le, 2019 CSC 34 (CanLII), [2019] 2 R.C.S. 692, par. 141-142 ; R. c. McGuffie, 2016 ONCA 365, par. 62-63 ; R. c. Stevens, 2016 QCCA 1707, par. 89 ; R. c. Cormier, 2021 QCCA 620, par. 24.

Revue du droit quant à la preuve d'identification

R. v. Wilband, 2011 ABPC 298 

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[13]           Defence counsel supplied me with two authorities as to the law on eyewitness identification evidence. The first, R. v. Spatola, [1990] 3 O.R. 74 (Ont. C.A.) deals with directions to a jury and is not helpful. The second, R. v. Powell (2007), 2007 CanLII 45918 (ON SC), 76 W.C.B. (2d) 101 from the Ontario Superior Court, involves eight victims of sexual assault and robbery where only three victims were capable of identifying their assailant, with no other direct evidence of identification. It is a case of applying similar fact evidence and bears no resemblance to the facts before me. However, the court does review important factors in assessing the strength of eyewitness identification evidence which I have reviewed.

 

[14]           I will now set out the law of eyewitness identification as I understand it. Direct evidence of eyewitnesses to a crime is preferable to circumstantial evidence but many grave injustices have occurred on the basis of such direct evidence. The Commissioner reported at page 250 of the Commission of Inquiry into the Beck trials:

 

“...evidence as to identity based on personal impressions, however bona fide, is perhaps of all classes of evidence the least to be relied upon, and therefore, unless supported by other facts, an unsafe basis for the verdict of a jury.”

 

[15]           In R. v. Burke (1996), 1996 CanLII 229 (SCC), 105 C.C.C. (3d) 205 the Supreme Court of Canada revisited the frailties of eyewitness identification at page 224-5:

 

“The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of ‘the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection.”

 

[16]           Fundamental factors affecting the weight of eyewitness evidence are:

 

-           opportunity to observe

-           the duration of the observation

-           light conditions

-           the distance from the witness to the person

-           the eyesight of the witness

-           colour perception

-           previous acquaintance by eyewitness with the person

-           presence or absence of distinctive features or appearance of the person.

 

All these factors have been set out by various authorities over the years.

 

[17]           In R. v. MacDonald (1951) 1951 CanLII 416 (BC CA), 101 C.C.C. 78 (B.C.C.A.) Justice O’Halloran stated at pages 81-2:

 

“The opportunity for honest mistake in cases of identification is too well known to require elaboration.”

 

[18]           In R. v. Quercia (1990) 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.) the accused was charged with sexual assault. The attack lasted for a half-hour and took place at 7:30 a.m. The complainant had an adequate opportunity to view the attacker’s face. She gave a detailed description of him including build, hair colour and style, eyebrows, and colour of eyes. The description did not match the accused in two respects. The complainant told the police that her attacker’s left eye was noticeably different from his right eye and that he had acne marks or pockmarks on his face. She picked the accused out of a photo line-up. The photograph clearly showed the accused did not have any acne marks or pockmarks and his eyes were normal. The accused was subsequently arrested and remained in custody until his trial. He did not exhibit these two identifying features. He was convicted of aggravated sexual assault.

 

[19]           The Court of Appeal said at page 387:

 

“The fact that the victim, with absolute certainty, picked the appellant out of a properly constituted and conducted photograph line-up enhances the reliability of her identification evidence. The fact that the appellant’s photograph did not reveal two of the most prominent features of her description of her assailant detracts from the reliability of her identification evidence.”

 

At page 390-1, the Court said this:

“In my analysis, two features of the evidence are potentially capable of placing this verdict beyond the limited review permitted by s. 686(1)(a)(i). The first is the victim’s good opportunity and sustained effort to observe and mentally record the appearance of her assailant during the attack. The second is the selection of the appellant from the photograph line-up. After very anxious consideration, I am satisfied that both are fatally flawed. The victim’s opportunity to observe and her determination to mentally record the appearance of her attacker magnify the significance of the marked differences between her initial recollection of what her assailant looked like and the actual appearance of the appellant. I refer particularly to the pock-marked facial skin and the askew left eye. On the victim’s evidence, these inconsistencies cannot be explained by difficulties inherent in her opportunity to see her attacker or in her ability to mentally record the appearance of her attacker. Nor did the victim testify that her initial description was in error, although she suggested that the prominence of these two features were being over-emphasized by counsel for the appellant. These two differences remain totally unexplained. One must conclude that, in at least two vital respects, the appellant quite simply does not fit the description initially given by the victim and verified by her as accurate at trial.

 

The selection of the appellant in the photograph line-up suffers from the same difficulty. Accepting the fairness of the line-up procedure, the reality remains that the photograph of the appellant is inconsistent with the description given by the victim of her assailant in two significant material respects. One is driven to the conclusion that either her initial discription (sic) was accurate in its main features, in which case the appellant could not have been her attacker, or that her recollection of what her assailant looked like had inexplicably changed significantly in the several days between the attack and the photograph line-up. If the latter conclusion is drawn, it is difficult to accept her subsequent and different recollection at the time of the photograph line-up as totally reliable.

 

I acknowledge the victim’s honesty and integrity and I applaud her courage, but I am driven to conclude that her evidence of identifying the appellant as her assailant was significantly flawed and could not, standing alone, justify a conviction. There is virtually no other evidence confirming her identification. The weight of the remaining evidence points away from the appellant’s involvement in the attack. In my judgment, the verdict is unreasonable and cannot be supported by the evidence. I would allow the appeal, quash the conviction and enter an acquittal.

 

[20]           In R. v. Miaponoose (1996) 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.) the accused was charged with sexual assault of a 12-year old girl. He was a stranger. A comprehensive description was given. A few days later a suspect was located. The police officer obtained the accused’s consent to come into the police vehicle with him and by prior arrangement drove by a location where the complainant and her father were waiting. She fully expected to see her assailant at that time. She recognized the accused as her assailant although she only had a view of him from the chest up. She did not see him again until the preliminary hearing. At trial the accused was convicted on this identification.

 

In overturning the conviction and entering an acquittal, the court stated at page 450-1:

 

“The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment. We must, however, never regard these principles as trite. They are fundamental. They merit repeating. One of the many useful writings on this subject can be found in the Law Reform Commission of Canada Study Paper (1983) on ‘Pretrial Eyewitness Identification Procedures.’ The Commission concludes in its study that ‘the need for comprehensive police guidelines is particularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable’ (at p. 7).

 

In discussing the dangers inherent in eyewitness testimony, the Commission reviews actual cases of wrongful conviction based on eyewitness testimony; psychological studies that reveal the inherent unreliability of this kind of evidence; and the reasons why eyewitness testimony is difficult to assess through courtroom procedures. The study reiterates the fact that it has long been recognized by commentators that, of all types of evidence, eyewitness identification is most likely to result in wrongful conviction and this even in cases where multiple eyewitnesses have identified the same accused.”

 

and at pages 456-7:

 

“The trial judge described the viewing of the appellant by the complainant as having been ‘achieved in a most unusual manner.’ The police officer, a man with almost twenty-four years of experience as a police officer, conceded that the procedure he adopted was inappropriate. He agreed that he was taught and was aware of proper identification procedures and that the method chosen in this case did not in any way meet appropriate standards. There were no exigent circumstances preventing the use of non-suggestive methods. He conceded that he knew that the method he chose was wrong and ‘probably’ unfair to the appellant, yet he still chose to proceed in this fashion.

 

The pre-trial identification procedure in this case was totally unjustifiable in the circumstances. There may be situations where a confrontation between a single suspect and a complainant is the only possible way to ascertain whether the suspect can be recognized. Even in such exigent circumstances, every effort should be made to maintain as much impartiality as possible and to clearly document all details, and all statements made by all parties, from the beginning of the identification process to the end. In all cases, the suspect should be presented to the complainant in circumstances that minimize any suggestion that the police believe the suspect is the offender. Here, there were no exigent circumstances. No efforts were made to ensure some fairness to the process. The highly inappropriate procedure adopted can only have resulted in grave prejudice to the appellant. It also did nothing to assist the complainant and the community as a whole, both of whom have a substantial interest in correctly identifying the perpetrator of this offence.”

 

[21]           In R. v. Robertson (2003) ABPC 64, a decision of this court, the accused was charged with stealing a truck, driving it dangerously, running over another vehicle causing injury and damage, and leaving the scene. The driver drove into a shopping mall, abandoned the truck and ran. He was observed by a witness coming out of a bank. The truck came within three feet of him when the driver got out and ran. His description included a pock-marked face. A person matching his description was stopped and detained. A police officer interviewed the witness and upon hearing someone was detained a few blocks away, asked the witness if he could identify the driver and drove him by the police car where the accused was apprehended and detained. He identified him as the driver of the truck. Subsequently, a photo lineup was shown to the witness and he readily identified the accused as the driver. He said he was absolutely certain that was the person. The witness identified the accused in the dock. When asked if he could see the pockmarks on his face he could not.

 

A police officer also identified the accused as the driver when he passed the truck going in the opposite direction. He was six feet from him. He turned and pursued the truck. He also described the driver as having pockmarks on his face. Later, the same officer interviewed the apprehended accused. He did not notice any pockmarks on the accused. Nor did he see any on the accused in the dock.

 

The court found the identification evidence of the witness to be very credible. His identification at the photo lineup was strong and he was absolutely certain. There was no doubt he believed the accused was the person driving the truck. However, because of the tainted intervening act of driving him by the accused apprehended in the back seat of a police car, the court could not be sure whether he was identifying the driver or the person in the police car when he identified him in the lineup and in the dock. There was an unfairness to the intervening act. As well the pockmarked feature was problematic. The witnesses’ excellent identification evidence was contaminated and there was no strong corroborating evidence.

Les circonstances pertinentes pour évaluer la fiabilité d'une preuve d'identification

R. v. Anderson, 2014 BCPC 71

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[31]        In assessing the strength and reliability of eyewitness identification evidence, the trier of fact must consider the totality of the circumstances surrounding that identification. The Supreme Court of Canada, in R. v. Hibbert 2002 SCC 39 (CanLII), [2002] 2 S.C.R. 445, cautioned against “the danger of wrongful conviction arising from faulty but apparently persuasive eyewitness identification.” In the Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001) (known as the “Sophonow Inquiry”) ,the commission  made recommendations regarding the conduct of live and photo line-ups, and called for stronger warnings to the jury on the dangers of eyewitness identification.

[32]        In McWilliams Canadian Criminal Evidence, 5^th edition, at paragraph 32:40:10, the authors have compiled a list of factors for consideration by the trier of fact in considering the reliability of eyewitness identification:

“Accordingly, assessment by the trier of fact must primarily focus on reliability having regard to a number of non-exhaustive factors:

•         Time lapse between the event and identification;

•         Prior knowledge;

•         Opportunity, capacity to observe and conditions surrounding the observation;

•         The presence of distinctive features;

•         Duration of observation;

•         Emotional state, including stress or the presence of violence;

•         Collusion, intentional or not;

•         Contamination by improper identification procedures such as a show-up or suggestive photo arrays;

•         Cross-racial identification;

•         The amount of detail, including physical descriptors which may increase reliability as opposed to generic descriptions;

•         Cross-witness comparison of identification and descriptors;

•         The absence or existence of corroborative evidence.”

La preuve directe est celle qui, si elle est crue, tranche la question en litige

R. c. Arcuri, 2001 CSC 54

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22                              Le critère demeure inchangé qu’il s’agisse d’une preuve directe ou circonstancielle :  voir Mezzo c. La Reine, 1986 CanLII 16 (CSC), [1986] 1 R.C.S. 802, p. 842‑843;  Monteleone, précité, p. 161.  La nature de la tâche qui incombe au juge varie cependant selon le type de preuve présenté par le ministère public.  Lorsque les arguments du ministère public sont fondés entièrement sur une preuve directe, la tâche du juge est claire.  Par définition, la seule conclusion à laquelle il faut arriver dans une affaire comme l’espèce, concerne la véracité de la preuve :  voir Watt’s Manual of Criminal Evidence (1998), §8.0 ([traduction] « [l]a preuve directe est celle qui, si elle était crue, tranche la question en litige »); McCormick on Evidence (5^e éd. 1999), p. 641; J. Sopinka, S. N. Lederman et A. W. Bryant, The Law of Evidence in Canada (2^e éd. 1999), §2.74 (la preuve directe s’entend de la déposition d’un témoin quant au [traduction] « fait précis qui est au cœur du litige »). Il incombe au jury de dire s’il convient d’accorder foi à la preuve et jusqu’à quel point il faut le faire : voir Shephard, précité, p. 1086‑1087.  Donc, si le juge est d’avis que le ministère public a présenté une preuve directe à l’égard de tous les éléments de l’infraction reprochée, son travail s’arrête là.  Si une preuve directe est produite à l’égard de tous les éléments de l’infraction, l’accusé doit être renvoyé à procès.

Le contre-interrogatoire d'un témoin quant à sa déclaration antérieure n'introduit pas celle-ci en preuve

R. v. L.J.R., 2018 BCPC 387

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[13]        It should be noted that s. 10 of the CEA provides discretion to the trial judge as to what, if any, portions of the statement to admit into evidence.

[14]        Section 10 of the CEA is triggered when a party intends to introduce a previous inconsistent statement to prove a contradiction to the testimony at trial (or current testimony).  It does not apply to situations where a question is asked to get the witness to adopt the statement by reminding the witness of the statement, or to situations where it is intended to refresh the witness’s memory by showing him or her the previous prior inconsistent statement.  If adoption of the statement is obtained, then there is no need to contradict the witness and the section does not apply.

[15]        The majority of the excerpts referred to in this case, contradict to some degree the in-court testimony of Ms. R.  As such, the majority by their nature are prior inconsistent statements.  However, defence is not the party seeking to tender the statement as evidence.  As in R. v. Bartley, it is the Crown who is seeking to tender the statement as evidence for the purposes of credibility assessment and not for truth of its content.  Unlike Bartley, Crown is seeking to tender the entire statement (not just portions referred to in cross-examination).  Essentially, Crown is seeking to show the statement generally does not contradict the complainant’s testimony at trial.  To this extent therefore, Crown is seeking to use it as a prior consistent statement.

[16]        It is mainly on the basis of R. v. Smith that Crown is seeking to enter the complainant’s statement as an exhibit.  In the case of Smith at para. 17:

Here, Scrivens acknowledged that he had made the statement and acknowledged, also, that there were differences between his testimony at the trial and what he had said, or had not said, in his statement.  A corollary of the right to contradict a witness by a previous statement in writing is that the witness has the right to show that the writing generally, not merely the parts referred to by counsel, does not necessarily contradict his testimony.

[17]        It is clear that the purpose of cross-examining a witness on his or her previous statement is to contradict his/her testimony at trial.

[18]        A statement is not evidence and does not become so, merely because it is cross-examined upon: R. v. Rodney and R. v. Rowbotham.

[19]        As to the prior consistent statement: They are generally inadmissible as they lack probative value and are self-serving (R. v. Stirling).  There are exceptions to this rule, none of which are applicable in the case at bar.  Crown is not making the submission that the statement falls into one of the prior consistent statement exceptions.  Prior consistent statements cannot be used to bolster a witness’s credibility (R. v. Kokotailo).

[20]        Section 10 of the CEA is not applicable to prior consistent statements.  In Bartley, the witness was not cross-examined on inconsistencies between the statement and her testimony.  She was cross-examined on her lack of candidness with the police regarding her marijuana operation.  The cross-examination was not extensive.  In R. v. Bartley the court stated at para. 6:

I have ordered a transcript of Ms. Steeves' evidence to ensure that I have a complete picture of her prior statements, her evidence at trial, and her responses to the cross-examination to properly assess the extent to which she was impeached and in regard to what manner she was impeached. In the particular circumstances of this case, to admit the otherwise consistent statements made by the witness would have the effect of allowing the Crown to bolster her credibility by prior consistent statements that were not the subject of cross-examination. I do not believe this is the purpose of s. 10 of the Canada Evidence Act.

[21]        Counsel should be able to cross-examine a witness on his/her prior statement without the concern that the entirety of the statement could be tendered as an exhibit, some of which may be damaging to the accused.

[22]        Assuming that a written statement properly falls under s. 10 of the CEA, all case law suggests that cross-examination on that statement must be extensive before a statement could be admitted into evidence.  Such was the case, for example, in R. v. Smith and R. v. Newall.

[23]        Even if we are dealing with the entry of a prior inconsistent statement into evidence, as set out in R. v. Rodney, the tendency to admit written statements into evidence just because there is some cross-examination should be considered carefully.  If there is extensive cross-examination, as in R. v. Smith and R. v. Newall, supra, then it may be necessary to have the statements marked as exhibits so that the Court and counsel, and possibly the jury if the trial judge orders, may properly understand the extent to which he has been contradicted or impeached.  On the other hand, if the cross-examination has not been extensive, the proper exercise of the discretion under s. 10(1) may lead the judge to permit only edited parts of the writing to be marked or for none of them to be marked.

[24]         In the case at bar, I do not find that cross-examination on the written statement was extensive.  The passages referred to were short, and the lengthier passages were few.  The cross-examination was not on the statement alone; other topic areas were also canvassed such as the complainant’s health, sexual health, and some of the areas of cross-examination touched on the statement.

[25]        There is nothing in the cross-examination of the complainant that makes it impossible for this court to assess her credibility without having the entirety of her statement.  There were no suggestions that the passages read to Ms. R. were out of context or caused confusion and therefore required the entirety of her statement to be entered for the court to be able to see the full context.  Furthermore, this is not a situation where the witness in her in-court testimony had added additional important facts that were never part of her written statement (as was the case in R. v. Rodney).

L'état du droit quant à l'usage d'une déclaration lors du contre-interrogatoire d'un témoin

R. v. Kliman, 1996 CanLII 8454 (BC SC)

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18           There are several principles to be gleaned from the

two cases:

 

1. Cross-examination of a witness on a statement does not give rise

   to automatic admission (Rodney, supra).

 

2. There are concerns about giving a jury testimonial exhibits

   because the jury may unduly emphasize the exhibits (Rodney,

   supra);

 

3. Testimonial exhibits may be admitted and given to the jury where

   it is helpful for the jury to see them in their entirety (e.g.

   to see the context in which some of the questions were asked

   (Newall, supra), or where the cross-examination is very

   extensive (Rodney, supra);

 

4. Even if the statement or document is admitted into evidence, I

   may edit out parts of it before giving it to the jury (Rodney,

   supra); considerations include whether parts of the statement

   are irrelevant, prejudicial to the accused, and whether the

   statement can be said to be a statement of the witness (Rodney

   and Newall, supra);

 

5. In making a decision to mark the statement as an exhibit or to

   edit the statment, I have a wide discretion (Rodney, supra).