R. v. Black, 2014 BCCA 192
[27] The Crown relies in this case on the first part of the rule: the Note, found in possession of the appellant (in the grow operation in the outbuilding of which the trial judge found she had full knowledge and control) is admissible to prove the appellant’s knowledge of and connection with the transactions (the operation of the grow operation) to which the document relates. Crown counsel says the Crown does not seek to admit the Note for the truth of its contents; there is no evidence the appellant acted on or adopted them (for example, that she moved the upstairs plants or set the button referred to in the Note).
[28] The Crown cited a number of cases where the documents in possession rule was applied. In Caccamo v. The Queen, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786, the Supreme Court of Canada held that a document found in a kitchen cupboard containing what was described as a mafia “constitution” was admissible as evidence connecting the accused with the criminal organization and thus of the accused’s purpose in possessing a weapon “dangerous to the public peace”.
[29] In R. v. Turlon (1989), 1989 CanLII 7206 (ON CA), 49 C.C.C. (3d) 186 at 190, the Ontario Court of Appeal discussed the roots of the rule, citing Phipson on Evidence, 13th ed. (1982), para. 21-09:
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. [emphasis in original]
[30] In Turlon, the Court of Appeal applied the rule to a letter found in the accused’s possession which referred to drugs found in the accused’s suitcase and in a list in the accused’s handwriting. Justice Zuber for the Court said (at 190):
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.
[31] Turlon was applied by this Court in R. v. Au-Yeung, 2010 BCCA 367 at para. 21.
[32] The roots of the rule and examples of its application were discussed more fully in R. v. Wood, 2001 NSCA 38 at paras. 111-123 and R. v. Cunsolo, 2011 ONSC 1349 at paras. 257-270.
[33] The rule applies where the Crown can establish that the document in question was in the possession of the accused. This was an issue in Caccamo, where the document was found in a kitchen cupboard in the accused’s home. The majority of the Supreme Court applied the definition of “possession” now found in s. 4(3) of the Criminal Code, R.S.C. 1985, c. C-46 which would apply to documents in the actual, joint or constructive possession of the accused.
[34] Possession was inferred from circumstantial evidence in R. v. Davis, 1969 CanLII 987 (AB CA), [1970] 3 C.C.C. 260 (Alta.C.A.) (photographs found in a hotel room registered in the name of the accused); R. v. Gilson, 1965 CanLII 350 (ON CA), [1965] 4 C.C.C. 61 (Ont. C.A.) (documents found in the hub cap discs of a car parked in front of the appellant’s home; the car was registered in the name of the appellant’s brother-in-law); and R. v. Bastien (1975), 1968 CanLII 880 (BC SC), 20 C.C.C. (2d) 562 (B.C. Co. Ct.) (notepad seized from a wastebasket outside the accused’s apartment with indentations matching the writing on a letter recovered from the post office containing money obtained from a bank robbery).
[38] The documents in possession rule provides that the contents of a document found in possession of the accused may be used as circumstantial evidence of the accused’s involvement in the transactions to which the documents relate. In this case, the contents of the Note, which relate to the operation of the grow operation, are circumstantial evidence of the involvement of “Chrissy”, found by the trial judge to be the accused, in those transactions.
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