Comment apprécier l'admissibilité de la preuve démonstrative

R v Kebede, 2022 ABCA 353

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[71]                As for the associated complaint about the use of animation aids, courts have used demonstrative evidence for generations. More recently, in R v Iyamuremye, 2017 ABCA 276, it was observed at para 92 that:

The real world we live in recognizes that there can be reliable and impartial collations or compilations of evidence that merely repeat the source of evidence without editorial: see Kon Construction Ltd. v Terranova Developments Ltd., 2015 ABCA 249 at paras 13-18, 602 AR 327. Such aids may well help a trial judge with what a jury charge is supposed to do, namely to decant and simplify the evidence and the law related to it: see Rodgerson at para 40. As noted, in this case, every page of the Presentation was already admitted as an exhibit in the trial.

[72]           Fairburn J., as she then was, put it well when addressing utility of demonstrative aids in R v Kanagasivam, 2016 ONSC 2250 at paras 48 and 66:

Assistance should be given to a jury where review of the evidence by them would be cumbersome, unduly time consuming, and confusing. Jurors are selected to assess the facts of a case, not so that they can be tested on their abilities to locate needles in haystacks. Any tools that they can be provided to perform their role as fact finders, fairly, with an even hand, and in accordance with the rules of evidence, should be accommodated.

[...]

It was wholly unnecessary put the jury through this exercise when the records could be distilled for them. As with other cases, this case was not about testing this jury, it was about this jury testing the evidence. Providing them with a tool that distilled the copious records that related to the issue of identity facilitated them in doing so.

[73]           Still, the gatekeeping function of trial judges involves circumspection and care when considering the admissibility of demonstrative and other aids intended to facilitate fact-finding: see R v Boulachanis, 2020 QCCA 4 at paras 76-81, leave to appeal to SCC refused, 39645 (16 December 2021). But clearly, use of compendiums is not, per se, anathema to the law: see R v Monkhouse (1987), 1987 ABCA 227 (CanLII), 61 CR (3d) 343 at 347-348, [1988] 1 WWR 725 (Alta CA); R v Choudhary, 2009 ABCA 35 at para 8; R v Crate, 2012 ABCA 144 at para 15. See also R v Ajise, 2018 ONCA 494 at paras 21-24, aff’d 2018 SCC 51 (on grounds of s 686(1)(b)(iii) of the Criminal Code).