R. v. Cunsolo, 2011 ONSC 1349 (CanLII)
Lien vers la décision
[257] A person has possession of a thing, in fact and law, when he or she has it in his or her physical custody with a power of control over the thing, coupled with knowledge of the thing’s existence and nature: Criminal Code, s. 4(3)(a).
[258] It is common for the prosecution to prove possession by circumstantial evidence. Possession “is a question of fact capable of proof by inference”: R. v. Caccamo (1975), 21 C.C.C. (2d) 257 (S.C.C.), at p. 273.
[259] The ‘documents in possession’ doctrine “is purely a creature of the common law” and “provides one of most frequently used methods of admitting documents into evidence”: J.D. Ewart, Documentary Evidence (Toronto: Carswell Legal Publications, 1984), at p. 232.
[260] The most widely accepted articulation of the documents in possession doctrine is found in Phipson on Evidence (15th ed.) (London: Sweet & Maxwell Ltd., 2000), at p. 30-10:
Documents which are, or have been, in the possession of a party will, as we have seen, generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e. exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognized, adopted or acted upon them. [footnotes omitted; emphasis in original]
This passage, repeated from prior Phipson editions, has received wide-spread approval: (références omises)
[261] In British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3, at para. 47, the Supreme Court mentioned two aspects of the doctrine in the context of its discussion on compulsion and s. 7 of the Charter:
In some cases, the production of documents from the possession of a person may have communicative aspects. Possession of a document may permit an inference of knowledge of the contents of the document. See R. v. Container Materials Ltd., [1940] 4 D.L.R. 293 (Ont. S.C.). Furthermore, if the party in possession has recognized, adopted or acted on the document an admission of acceptance of its contents as true may be inferred. See R. v. Famous Players, [1932] O.R. 307 (S.C.).
[262] Once possession of a document is established, even in the absence of evidence of the accused possessor having recognized, adopted or acted on the document, a trier of fact may circumstantially infer from the possession itself that the accused had knowledge and involvement in the subject matter or transactions described therein. In R. v. Morris 1983 CanLII 28 (SCC), (1984), 7 C.C.C. (3d) 97 (S.C.C.), at p. 99, the court stated:
In my view, an inference could be drawn from the unexplained presence of the newspaper clipping among the possessions of the appellant, that he had an interest in and had informed himself on the question of sources of supply of heroin, necessarily a subject of vital interest to one concerned with the importing of the narcotic.
. . .
Depending on the view of the trier of fact and the existence of other evidence, an inference could possibly have been drawn or could have been supported to the effect that preparatory steps in respect of importing narcotics had been taken or were contemplated.
The evidence of the newspaper clipping is similar in nature to the cheque forms of certain banks and the list of banks found in possession of the accused and admitted in evidence on a charge of fraudulently endorsing and cashing a cheque in R. v. Gaich (1956), 24 C.R. 196 (Ont. C.A.), or the list of burgled premises found upon one of the accused which was admitted in evidence on a charge of unlawful possession of house-breaking implements in R. v. Hannam, [1964] 2 C.C.C. 340 (N.B.C.A.) Other cases which have dealt with this issue are: (références omises).
[263] A Crown appeal succeeded in R. v. Turlon, supra, against an acquittal for possession of marihuana for the purpose of trafficking. When Turlon was arrested, his briefcase was opened. The receptacle contained a sealed envelope (containing the “Palmer” letter) and a document written by Turlon. On appeal, the court stated at pp. 188-190:
When the envelope was opened, it was found to contain a letter addressed “Dear Maureen” and signed by “Wesley Stubbs”. In the letter the writer states:
So I give Loxley 2 lb weight of herb 1 lb is for you and the other lb is for me.
So I’m asking you kindly to take the list from Loxley with the things and set me up and set yourself also. I have seen for myself that Loxley had a very slow attempt, if you don’t push him he will not get along with the things. So I am asking you...and I ask him to get a delko plant and a T.V. and a power cut saw. The kind of herb that I give Loxley to give you is the best type and you can get $2,000 a lab weight for it.
In the briefcase there was also found a handwritten list prepared by the respondent. The items set out on that list were as follows:
1) 2 Honda 500 watt Delco 2) 2 Colour T.V. 20” 3) Tape Dec with Cassette 4) Set Up Camera 5) Sanda 6) Battry Charger 7) Moter Saw with blate for board and three
It will be seen that this list contains items referred to in the Miss Palmer letter.
. . .
Knowledge of the contents of the letter was not a condition precedent to evidentiary value of the letter. Possession of the letter was evidence of knowledge or complicity in the scheme of drug importation and distribution. On the other hand, the respondent’s denial that he knew the letter was in his briefcase was evidence to the contrary. The possession of the letter and the denial by the respondent were both part of the evidence as a whole to be considered by the jury.
It would also be open to the jury to accept the list prepared by the respondent as a form of adoption of the letter. In other words, the jury might conclude that the list prepared by the respondent reflected the items that were being sought in the letter. If the jury accepted this list as a recognition or adoption of the Miss Palmer letter, then the letter could be received as an admission to prove the truth of its contents.
The Miss Palmer letter and the list prepared by the respondent were important pieces of evidence.
[264] In R. v. Gaich (1956), 116 C.C.C. 34 (Ont. C.A.), a fraud prosecution, the Crown led evidence of the seizure of documents from Gaich’s truck at the time of his arrest including various cheque forms from the Royal Bank of Canada, a cheque with an endorsement, counter-cheques of the Bank of Nova Scotia, a cheque book on the Province of Ontario Savings office at Brantford, Ontario, and a sheet of paper on which was written a list of banks. The accused’s appeal against conviction was dismissed with the court stating, at p. 39:
Under the circumstances the Court cannot see that it was irrelevant to the issue that several of such documents necessary and essential to such an illegal enterprise were found on the person and property of the appellant.
[265] In a different case, in two searches of the home of an accused, the police seized items alleged to be instruments for house-breaking. The accused was convicted at trial. On appeal (R. v. Gilson, [1965] 2 O.R. 505 (C.A.), at pp. 506, 513) the court rejected the appellant’s submission that the prosecution ought not to have been allowed to lead certain documentary evidence also uncovered in the search:
In front of the house, between the road and sidewalk, an old Monarch car was parked on the boulevard. A search of the vehicle disclosed in the hub cap discs two separate sheets of paper and a single piece of paper which contained a list of motels in the Niagara Falls area indicating the kind of security devices each of the motels had.
. . .
As to the third point, the lists of motels would be some evidence, in view of all the circumstances surrounding the finding of the lists...
[266] In the Container Materials Ltd. case, a prosecution for conspiracy in restraint of trade, the Crown introduced a quantity of documentation including books of account, correspondence, official minutes, executed agreements and cheques. The trial judge stated at pp. 130, 131-2:
...documents in his possession are receivable against him...
. . .
...all of these documents are receivable in evidence as against the party from whose possession they come, as having been found in the possession of that particular accused and therefore it is presumed that that accused had a knowledge of the contents thereof.
. . .
These copies and letters having come from the possession of the accused parties, present, in my opinion, a very much more reliable type of evidence than if viva voce evidence of some witness who had been present by chance and had overheard conversations between the accused or their proper representative, had been produced by the Crown. Such latter type of evidence would undoubtedly be received, although subject to the frailties of human recollection and transmission. A fortiori, this correspondence which I consider to be fully and sufficiently authenticated, should be received.
[267] In a conspiracy to commit fraud case, the prosecution adduced evidence of documents seized from the business premises of the accused: R. v. Smart and Young (1931), 55 C.C.C. 310 (Ont. C.A.). At pp. 312-3, Latchord C.J. stated:
It was strongly urged that the books of account, records and other documents of the appellants did not constitute evidence against them. These documents were seized by the Crown on the business premises of the accused in January, 1930, when they were in use as formal records of the transactions of the businesses of the accused as they had been throughout 1928 and 1929, and, at the date of seizure carried on.
. . .
What was relied on was that the books and papers being in the custody of the accused, and made use of by them for their own purposes and in the conduct of their businesses, are prima facie evidence as against the accused of the methods, systems and devices of which they continuously availed themselves in their own speculations, and in their transactions with their customers and with other brokers.
"All papers found in the possession of a man are, prima facie , evidence against him, if the contents of them have application to the subject under consideration:" per Eyre, L.C.J., in Rex v. Horne Tooke , 25 How. St. Tr. 120.
[268] In R. v. Russell (1920), 33 C.C.C. 1 (Man. C.A.), at p. 6, the court observed:
Writings found in a man's hands are prima facie evidence against him. It will be inferred that he knows their contents and has acted upon them.
[269] In her reasons for judgment in the Drakes fraud trial, Epstein J. (as she then was) observed at paras. 78-80:
Are the documents admissible for the truth of their contents on the basis that the applicants recognized, adopted them or acted on them?
Since this third element requires an assessment of whether the document has been recognized in some fashion, the documents found at Dean Park must be examined separately to determine whether they are admissible for the truth of their contents.
In his text on Documentary Evidence in Canada (Carswell: 1984), J. Douglas Ewart gives in depth consideration to the uses to which documents in evidence can be put irrespective of whether they have been adopted. He concludes that documents in possession are admissible to prove such things as knowledge of their contents, involvement in a conspiracy, connection with the transactions to which they relate, membership in an organization, design in the sense of intention, and interest in activities described in the document.
[270] It is, or course, not possible to exhaustively delineate the type of circumstances which will amount to recognition, adoption or acting on documents.
Aucun commentaire:
Publier un commentaire