R v Aitkens, 2019 ABPC 30
[22] The “documents in possession” doctrine is frequently cited and applied to enter documents for the truth of their contents. It is a recognized exception to the hearsay rule. An excellent description of the doctrine can be found in Phipson on Evidence (M.N. Howard et al., 15th Edition, 2000 at s 30-10). I reproduce, in part, the following passage from Phipson, describing the doctrine, as cited in R v Wood, 2001 NSCA 38.
“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 original)
[23] R v Wood is a factually similar case to the case at bar. It is particularly relevant to the definition of, and legal requirements for, “possession”. It also provides an example of how documents can be “recognized, adopted or acted upon”.
[24] After citing the Phipson commentary in Wood the Nova Scotia Court of Appeal went on to observe that there are three elements to the doctrine:
i) First, it must be shown that the document was actually or constructively in the possession of the accused.
ii) Second, if possession is established, the document is admissible to show the accused’s knowledge of its contents and his connection and state of mind with respect to the transactions to which it relates.
iii) Third, if it is established that the accused has recognized adopted or acted on the document it becomes admissible for the truth of its contents under the “admissions exception” to the hearsay rule.
[25] It is the first and third prongs of the doctrine that are the most relevant and most often the subject of comment by the courts. The first and third prongs of the test are the relevant issues in the case at bar as well.
[26] The facts of Wood are particularly relevant to the case at bar. Wood, a lawyer, was charged with several counts of theft or conversion of monies held in trust for his clients. At Wood’s trial, the court admitted several copies of banking statements and other documents (such as client ledgers). These were records that the accused was required to keep under rules governing the legal profession in Nova Scotia. The Nova Scotia Court of Appeal rejected the accused’s ground of appeal that these hearsay documents were improperly admitted.
[27] The Court found that there were two types of documents in Wood’s case that were admissible under the doctrine of documents in possession. The first were documents actually found in the possession of the accused. They were personally provided by him to an accountant (Mr. Brookfield). Brookfield was assigned to conduct an audit of Wood’s trust accounts on behalf of the Nova Scotia Barristers Society, the professional body governing lawyers in that province. The court found that in addition to actually possessing the documents Wood had adopted or acted upon them by providing the documents to Brookfield for the purposes of the official audit. The Nova Scotia Court of Appeal found that all three elements of the Phipson test had been met and admitted the documents.
[28] The court also found that the accused adopted or acted on a second group of documents that were in his “constructive possession.” Constructive possession is defined in section 4(3) of the Criminal Code. Constructive possession is frequently applied in the application of the documents in possession rule. These documents were copies of client ledgers kept at the offices of the accounting firm Coopers and Lybrand. They were sent to the accounting firm on a yearly basis. This was done to comply with the accused’s obligations to the Barristers Society to participate in an annual review of his accounts. The accountant Brookfield obtained copies of these documents from Coopers and Lybrand with the knowledge and consent of the accused. Brookfield had requested these documents from Coopers and Lybrand. Brookfield did so as they were missing from the records received directly from the accused and he felt that they were important to the audit process.
[29] The Nova Scotia Court of Appeal applied the wording of section 4(3) of the Criminal Code to these client ledgers. It agreed that a person can be in “constructive possession” if they knowingly have a document in the possession or custody of another person or at another place for the benefit and use of himself or another person. The Nova Scotia Court of Appeal made this finding notwithstanding that the documents in question, which were copies, were kept off-site at an accounting firm. It held that the doctrine of documents in possession applied when the accused consented to their release to the accountant Brookfield, from Coopers and Lybrand. In other words, the court found that he acted on or adopted these documents when he agreed to their release. The court observed...
“the documents obtained from Coopers at Mr. Wood’s direction stand in the same position as those obtained directly from him and are, therefore, admissible for the truth of their contents.” (R v Woods, supra, at par. 42).
[30] In my view, Wood stands for the following:
i) First, the documents in possession doctrine is a legitimate and commonly used exception to the rule against hearsay evidence.
ii) Three elements to the exception have developed, with the first and third elements being the most important.
iii) Possession, the first element, may be established through evidence of actual or constructive possession. Constructive possession is defined in section 4(3) of the Criminal Code. This includes situations where the party allows the document to be in the actual possession or custody of another person, (for example an accountant).
iv) There is no meaningful difference in the operation of the doctrine when constructive possession is the method of satisfying the first element.
v) Finally, recognition or adoption of a document may be established by proof that a party knowingly allowed the document to be used for professional purposes, including accounting and bookkeeping functions.
[31] Wood is not the only case which has applied the doctrine of documents in possession. In fact, the documents in possession doctrine is a frequently used exception to the hearsay rule. Its application has been widespread in Canadian jurisprudence. A few examples of this are: R v Turlon (1989), 1989 CanLII 7206 (ON CA), 49 CCC(3d) 186 (Ont. C.A.), where the Court of Appeal allowed a Crown appeal and sent the matter back for a new trial. The Court of Appeal held that the trial judge had failed to instruct the jury on the doctrine of documents in possession and its application to the accused’s knowledge and acceptance of an unopened letter carried in his briefcase. The Ontario Court of Appeal referred to the description of the documents in possession doctrine in Phipson on evidence as an “accurate statement of law”. In R v Tam and Ye, 1998 ABPC 124, the accuseds were committed to stand trial on a preliminary inquiry. The court concluded that the documents in possession doctrine could be applied to admit a car rental agreement for the truth of its contents. The court found that the car rental agreement provided sufficient evidence upon which a jury could infer possession of the vehicle and narcotics contained within it. In R v Caccamo [1976] S.C.R. 786, where constructive possession was applied to a document located in a kitchen cupboard of a house the accused shared with his wife.
[32] In Caccamo the document was an interesting and unusual one. It was a series of handwritten notes, in Italian, that an expert testified amounted to a form of “constitution” for a secret Italian criminal organization, similar to the Mafia. The Supreme Court observed that possession through constructive possession is a question of fact and is capable of proof by inference (R v Caccamo supra at par. 57). It follows that direct proof of “actual possession” is unnecessary. Indeed, in almost all of the cases considering this doctrine, no direct proof of possession exists. Rarely is the subject seen holding, reading, or working with the document itself. Rather, logical and reasonable inferences are the most frequently used methods of connecting the possession of a document with a particular party.
[33] Such a conclusion was reached in R v Morris (1984) 1983 CanLII 28 (SCC), 7 CCC(3d) 97 (SCC), where a newspaper article on heroin production and shipping was found in a night table drawer located in the accused’s bedroom. The majority held that this could potentially support an inference that preparatory steps in respect of importing narcotics had been taken or contemplated.
[34] Similarly in R v Cunsolo, 2011 ONSC 1349, affirmed at 2014 ONCA 364 (a mortgage fraud allegation where numerous documents were at issue), it was observed that proof of possession by circumstantial evidence is common (R v Cunsolo at par. 258). The court in Cunsolo reviewed several cases where the proof of possession of documents were inferred or gleaned from circumstantial evidence (R v Cunsolo at par. 262-269). The court ultimately found that Mr. Cunsolo was in possession of many of the items seized from his vehicle, demonstrating his knowledge of the contents of the documents and that he recognized and acted on them in terms of complicity in the fraud.
[35] The court in Cunsolo also cited with approval a legal scholar (JD Ewart, Documentary Evidence Toronto Carswell Legal Publications, 1984), for the conclusion that the doctrine “provides one of the most frequently used methods of admitting documents into evidence.” It also relied on Caccamo supra, for the position that “possession” may be proven by circumstantial evidence. Accordingly, “possession” is a question of fact capable of proof by inference.
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