Les principes de droit applicables à la preuve d’identification

 Amiri c. R., 2018 QCCA 417

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[30]        Comme la Cour l’écrivait dans R. c. Chrétien, « chaque témoignage comporte son lot d’imprécisions, de nuances, et parfois même d’incohérences ou de contradictions[3] », dont il appartient au juge qui entend un procès de faire l’évaluation.

[31]        Une cour d’appel doit faire preuve de retenue, sauf erreur manifeste et déterminante du juge de première instance, à l’égard de toute conclusion tirée par ce dernier au sujet de la crédibilité des témoins et de la fiabilité de leurs propos[4]. Elle ne doit pas oublier que « l’appréciation de la crédibilité est un exercice difficile et délicat qui ne se prête pas toujours à une énonciation complète et précise[5] ».

[32]        L’analyse d’une preuve d’identification par témoins oculaires requiert attention et prudence. Sincérité d’un témoin et fiabilité de ses propos quant à l’identification ne vont pas forcément ni nécessairement de pair : un témoin sincère, dont les propos paraissent fiables, peut se tromper et sa mémoire lui jouer des tours[6].

[33]        Évaluer la fiabilité à accorder à l’identification proposée par un témoin requiert l’examen de toutes les circonstances qui l’entourent. Ainsi, lors de l’analyse, des facteurs tels la durée de l’observation, la distance, la luminosité, le mouvement relatif, la présence d’obstacles à la vue, l’acuité visuelle du témoin, son état psychologique pendant l’observation, sa connaissance préalable de la personne identifiée et la précision de la première description et sa ressemblance avec l’accusé de même que l’environnement dans laquelle se déroule toute parade d’identification à laquelle il participe, doivent être pris en compte[7].

[34]        À la suite de l’affaire Sophonow[8], une série de recommandations a été élaborée[9] au sujet de la préparation et du déroulement d’une parade d’identification. Les voici :

•         The photo pack should contain at least 10 subjects.

•         The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.

•         Everything should be recorded on video or audiotape from the time that the officer meets the witness, before the photographs are shown through until the completion of the interview. Once again, it is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line-up.

•         Before the showing of the photo pack, the officer conducting the line-up should confirm that he does not know who the suspect is or whether his photo is contained in the line-up. In addition, before showing the photo pack to a witness, the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect. The photo pack should be presented by the officer to each witness separately.

•         The photo pack must be presented sequentially and not as a package.

•         In addition to the videotape, if possible, or, as a minimum alternative, the audiotape, there should be a form provided for setting out in writing and for signature the comments of both the officer conducting the line-up and the witness. All comments of each witness must be noted and recorded verbatim and signed by the witness.

•         Police officers should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced.

•         It was suggested that, because of the importance of eyewitness evidence and the high risk of contaminating it, a police force other than the one conducting the investigation of the crime should conduct the interviews and the line-ups with the eyewitnesses. Ideal as that procedure might be, I think that it would unduly complicate the investigation, add to its cost and increase the time required. At some point, there must be reasonable degree of trust placed in the police. The interviews of eyewitnesses and the line-up may be conducted by the same force as that investigating the crime, provided that the officers dealing with the eyewitnesses are not involved in the investigation of the crime and do not know the suspect or whether his photo forms part of the line-up. If this were done and the other recommendations complied with, that would provide adequate protection of the process. [10]

[35]        Ces recommandations et les écarts notés avec elles ainsi que le processus suivi dans un cas d’espèce offrent une grille utile et pertinente à l’analyse de la valeur probante qu’il y a lieu d’accorder à une parade d’identification et aux résultats qui en découlent.

[36]        Cela dit, le seul fait qu’une parade d’identification s’écarte de l’une ou l’autre de ces recommandations n’invalide pas le processus suivi et l’identification qui en résulte[11]. Ce qui importe c’est de s’assurer que le processus ne soit pas biaisé par des éléments intrinsèques ou extrinsèques[12]. Bref, qu’il s’agisse d’un processus équitable.

Admissibilité de la preuve documentaire en common law - comment faire la preuve orale d'un relevé de paye

R. v Clarke, 2016 ONSC 575 (CanLII)

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[35]           The Supreme Court of Canada in Ares v. Venner sets out the common law criteria that can allow a business record to be admitted as an exception to hearsay.  The record must be: 
(a)        an original entry [or an oral statement];

(b)        made contemporaneously [with the thing recorded]

(c)        in the routine of business

(d)               by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it

(e)               who had a duty to make the record, and

(f)               who had no motive to misrepresent

[Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608 (S.C.C.)]

[36]           Hall, J., as he then was, held:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record, should be received in evidence as prima facie proof of the facts stated therein.  This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. …

[Ares v. Venner, at p. 362, my emphasis]

[37]           The common law requires neither notice nor an affidavit nor a certificate attesting to the authenticity of the record or attesting that it was made by the person who made the copy.  As a general principle, in deciding whether at common law a statement or record can be admitted, the authenticity and the creator of the record must be proven by evidence on the admissibility inquiry.

[38]           Ares v. Venner was decided decades before the common use of computers in a business context.  The requirement to prove the creator of a record in the modern world of electronic record keeping raises new inquiries when considering computer-generated business records.

[39]           A nineteenth century authority recognized a criterion beyond those set down by Ares v. Venner which has been developed and applied in modern times.  The Supreme Court of Canada found a person with the duty had “caused” an entry in a record to be made: [Canadian Atlantic Railway Co v. Moxley, 1888 CanLII 2 (SCC), [1889] 15 S.C.R. 145 (S.C.C.)].

[40]           One can see the applicability of Moxley to modern business records.  These records are frequently compiled from original source data such as sales slips, invoices, purchase orders, or other original data entered by the many often nameless persons routinely tasked to do this in a business context – information that would scarcely have been compiled by the person who prepared the original documents.  In daily business practice records compiled in this way are customarily accepted as valid and reliable sources of information by persons affected by the records.

[41]           The Alberta Court of Appeal echoed Moxley when considering the admissibility of oral evidence of entries in payroll records.  The witness, who was a payroll manager, had extracted portions of a larger payroll record and read them into the record.  The Court found the payroll records admissible even though the payroll manager had no personal knowledge of the information and did not produce the original records.  The Court found the records to have been made in the ordinary and usual course of business: [R. v. Monkhouse, 1987 ABCA 227, at para. 24, (Alta. C.A.)].

[42]           Paciocco and Stuesser commented on the rationale underlying the common law rule on the reliability of business records:
The principle is sound.   The reliability of the records is premised on the notion that they are prepared by persons under “business duty”; where a person provides information gratuitously, the record loses its stamp of trustworthiness.

[Paciocco and Stuesser, The Law of Evidence, p. 162]

[43]           Paciocco comments further in an article on proof of reliability with computer-generated records:
Although in Ares v. Venner the Supreme Court of Canada held that the recorder had to have personal knowledge, in R. v. Monkhouse the Court accepted a compiled record of employment made by someone without personal knowledge where the person originally recording the employment information would evidently have been under a business duty as well.  This is sensible.

[David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age”, (2013) 11 Canadian Journal of Law and Technology, 181, at  214]

L'admissibilité de la preuve documentaire en common law

R. v. Monkhouse, 1987 ABCA 227 (CanLII)

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[15]                       In my view the evidence tendered was admissible under the common law rule and it is not necessary to consider whether it also met the tests of Section 30.

[16]                       Wigmore defined no less than seven criteria to be satisfied at common law for the admission, as evidence of the truth of its contents, of a document containing hearsay. These were that the hearsay portion must be (1) an original entry, (2) made contemporaneously with that which it recorded, (3) in the routine, (4) of business, (5) by a person since deceased, (6) who was under a duty to do the act and record it and (7) who had no motive to misrepresent it. (Wigmore, 3rd Ed., Vol. 5, Sections 1517 and 1521-35.)

[17]                       Wigmore advocated change in this rigid position. Dealing specifically with hospital records (3rd Edition, Vol. 6, Section 1707) he urged admission despite the hearsay. He said:

“There is a Circumstantial Guarantee of Trustworthiness for the records are made and relied upon in affairs of life and death. Moreover, amidst the day-to-day details of scores of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the Court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.”

[18]                       In Ares v. Venner (1970) 1970 CanLII 5 (SCC), 14 D.L.R. (3d) 4, the Supreme Court of Canada after a review of the case law, ruled such records admissible. Mr. Justice Hall, for the Court, referred to the decision of the House of Lords in Myers v. D.P.P. [1965] A.C. 1001 where the majority refused to modify the common law leaving that task to Parliament. He adopted what had been the minority view in the House of Lords that the common law, as judge made law, could and should be modified by the Courts. With retroactive effect for the case before the Court he then modified the rules. At page 16 he said:

“Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses’ notes, the nurses were present in Court and available to be called as witnesses if the respondent had so wished.”

[19]                       Subsequent cases have applied these words to records generally: Setak Computer Services Corporation v. Burroughs Business Machines Ltd. (1977) 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750 (Ont. H.C.): R. v. Laverty (1979) 1979 CanLII 3010 (ON CA), 9 C.R. (3d) 288 and 292 (Ont. C.A.).

[20]                       Even prior to Ares v. Venner, the common law rule as enunciated by Wigmore had undergone some change. Mr. Justice Hall cited with approval two previous decisions of this Court: Omand v. Alberta Milling Co. 1922 CanLII 450 (AB CA), [1922] 3 W.W.R. 412 and Ashdown Hardware Co. Ltd. v. Senger 1951 CanLII 268 (AB CA), [1952] 1 D.L.R. 33. In Omand, a witness was permitted to examine the inspection records for flour prepared as part of a government inspection system by a number of officials and to give evidence of the result. In Ashdown, the Plaintiff’s credit manager produced ledger records to prove that goods had been sold and delivered. At page 35, Ford, J.A. said:

“It is true that there was no direct proof of actual delivery to or receipt by the firm of the goods in question, nor evidence by any clerk or servant of the plaintiff who personally sent out the goods, in fulfilment of any specific order; but, in my opinion proof in this way cannot be reasonably required in present-day business in a large commercial concern where clerks and servants are changed from time to time, whose evidence may be difficult, and often impossible to obtain; and who, even if brought before the Court, would have forgotten most of the particular transactions. Of course, the Court must, as always, having in mind the circumstances, decide what is the best evidence available, and the kind or degree of proof required. This view is, I think, in accord with that outlined fully in Wigmore on Evidence, 3rd ed., vol. V, s. 1530. To emphasize the difficulty of proving each specific item of the account, I point out that we have here an example of goods sold an delivered over a period from April 26, 1948, to November 30, 1949, composed of items covering about 40 pages of the appeal book.”

[21]                       It is clear in these cases that the witness gave testimony supporting a document about which he had no personal knowledge though the original documents containing the information recorded in the ledgers were undoubtedly prepared by persons with personal knowledge.

[22]                       An even earlier modification of the common law rules may be seen in a decision in the Supreme Court of Canada in Canadian Atlantic Rwy. Co. v. Moxley (1889) 1888 CanLII 2 (SCC), 15 S.C.R. 145. That case held that the person originally recording the event need not himself have direct personal knowledge of the event recorded. It was held to be sufficient if the person who has a duty to do and record the act “causes” a record to be made by an agent. This case, too, was cited by Mr. Justice Hall in Ares v. Venner.

[23]                       In his useful book, Documentary Evidence in Canada (Carswell Co., 1984), Mr. J. D. Ewart summarizes the common law rule after the decision in Ares v. Venner as follows at page 54:

“the modern rule can be said to make admissible a record containing (i) an original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it (vi) who had a duty to make the record and (vii) who had no motive to misrepresent. Read in this way, the rule after Ares does reflect a more modern, realistic approach for the common law to take towards business duty records.”

[24]                       To this summary, I would respectfully make one modification. The “original entry” need not have been made personally by a recorder with knowledge of the thing recorded. On the authority of Omand, Ashdown, and Moxley, it is sufficient if the recorder is functioning in the usual and ordinary course of a system in effect for the preparation of business records. In Ashdown, for example, the ledger account, introduced in evidence, was said in the judgment to run for 40 pages. It is unlikely that the same person who sent the goods from a shipping dock and sent a memorandum of that to the business office also made the ledger entry which it was sought to admit. Neither the shipping clerk nor the original ledger keeper was before the Court. In Omand, clearly the original entries had been made by a number of different persons. In Moxley, the person with the duty had “caused” the entry to be made. Modern business records are customarily a compilation of original documents such as sales slips or other memoranda and rarely would that compilation be made by the person who prepared the original document. Yet those records are accepted as valid daily by all those affected by them.

[25]                       These hearsay records are not to be accepted in evidence merely to avoid the inconvenience of identifying a witness or because many witnesses would be involved, or even because otherwise no evidence would be available. Rather, they can be admitted only if they have come into existence under circumstances which makes them inherently trustworthy. Where an established system in a business or other organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence.