L'assouplissement de la règle de la meilleure preuve selon la Cour d'Appel de Colombie-Britannique

R. c. Routhier, 2003 CanLII 55328 (QC CM)

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[181] Les tribunaux ont formulé que la règle de la meilleure preuve, qui est applicable aux preuves physiques, ne doit pas être administrée de façon rigoriste.

[182] Les propos du juge Taggart de la Cour d’appel de la Colombie Britannique dans R. c. Betterest Vinyl Manufacturing et al., reflex, (1989) 52 C.C.C. (3d), 441, à la page 447, sont concluants :

As I read the text writers and the authorities we are no longer bound to apply strictly the best evidence rule as it relates to copies of documents and especially to photocopies of them. Halsbury’s Laws of England, 4th ed., vol. 17, pp. 8-9, states:

The logic of requiring the production of an original document where it is available rather than relying on possibly unsatisfactory copies, or the recollections of witnesses, is clear, although modern techniques make objections to the first alternative less strong.

That passage was referred to in R. v. Cotroni 1979 CanLII 38 (SCC), (1979), 45 C.C.C. (2d) 1 at p. 9, 93 D.L.R. (3d) 161, (1979) 2 S.C.R. 256. I will deal with that decision later.

P.K. McWilliams in Canadian Criminal Evidence, supra, in his discussion on “original” documents, quotes at p. 92 from the decision of Limerick J.A. in R. v. Alward (1976), 32 C.C.C.(2d) 416 at p. 429, 73 D.L.R. (3d) 290, 15 N.B.R. (2d) 551 (C.A.): “I can see no reason why a carbon copy of the memorandum made simultaneously with the original would not be as accurate as the original…” and goes on to say (p. 93): “with the recent development of photocopying devices it is arguable that they should be admitted as originals as well even though they are subsequently made.”

In Phipson on Evidence, 13th ed. (1982), p. 70, the effect of the best evidence rule is said to go more to weight than to admissibility:

In the present day, then, it is not true that the best evidence must, or even may, always be given, though its non-production may be a matter for comment or affect the weight of that which is produced.

The following passage at p.71 also illustrates how the rule is applied:

In Kajala v. Noble, The Times, March 13, 1982 the Divisional Court said that the only remaining instance of the rule was that if an original document was available in one’s hands it must be produced. In that case the court held that justices had been entitled to rely on a copy of a video cassette recording made from an original shown on the BBC television news bulletins. The original was in the possession of the BBC and the copy was produced and identified by an employee of that organisation. The justices had been satisfied that it was an authentic copy. They accepted that the BBC policy of refusing to allow the original to leave their premises was reasonable and that the film crew who took the original was overseas.

The strongest argument by text writers against the strict application of the rule is found in Wigmore on Evidence (Chadboum (page 448) rev. (1972), vol. 4 at Sect.1191, on p. 434) it is contended that where the accuracy of a copy is not disputed there is no justification for refusing its admission:

What is most needed today, for this rule in general, is flexibility. This could be given by the following provisions: Production of the original may be dispenses with, in the trial court’s discretion, whenever in the case in hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.

[183] Cet exposé prenait assise sur le jugement du juge Pigeon de la Cour Suprême dans R. c. Papalia, 1979 CanLII 38 (CSC), (1979) 2 R.C.S. 256.

[184] Plus récemment, la Cour d’appel de la Colombie Britannique statua de nouveau dans R. c. Pham, 1999 BCCA 571 (CanLII), (2000) 139 C.C.C. (3d) 539 (permission d’appeler à la Cour suprême refusée, 1999, S.C.C.A. no. 545). Il s’agissait d’un policier qui témoignait sur des documents qu’il avait vus dans un sac à main mais qu’il n’avait pas saisis. Citant la cause de R. c. Mills (C.A. 770102, B.C.C.A.), l’honorable juge Brajdwood écrit ce qui suit, à la page 544:

I agree with the reasons for judgment of the learned trial judge in her finding that the principles enunciated in the case of R. v. Mills (8 September 1978), CA770102 (B.C.C.A.) have binding authority. In the Mills case, Hinkson J. A. stated:

… The evidence at trial disclosed that in the residence the police officer had found two passports, one of which contained a photograph of the appellant and contained a physical description and other details of the holder of that passport. The police officer did not take the passport into his possession, he testified, but he made notes as to its contents. At trial, the passport was not in the possession of the Crown. The police officer explained that he had not taken it into his possession and then gave evidence as to its contents from his notes. In my view, in those circumstances that evidence was admissible.

The passport in the above case was located in the residence in which the accused was arrested and the officer did not take it into his possession. Also, in R. v. West (8 February 1989), Victoria V00766 (B.C.C.A.) summarised 6 W.C.B. (2d) 424), this Court held that a store manager could testify respecting the store’s inventory from his notes of information that he had called up and displayed on the store’s computer screen. This evidence was tendered in order to prove an inventory from a store in order to prove a theft in a case involving breaking and entering. Hinkson J. A., speaking for the Court, ruled as follows:

It is my view that the evidence of the manager was admissible. It seems to me that he was entitled, as manager to look at the information displayed on the computer screen which he called up from the computer’s memory bank with respect to the inventory of these particular products. He was entitled to testify as to what he read on the screen. He was entitled to testify, of course, about what he observed with respect to the “facing up” of the stock. He was entitled to testify with respect to his physical count of the inventory. In my opinion, dealing with his evidence as to what he read on the computer screen, that evidence was admissible. The objection is that it was really hearsay and, as (page 545) such, inadmissible. But, in my opinion, the evidence was admissible and any question as to its accuracy would go to weight rather than admissibility.