La doctrine des documents en possession de l'accusé et les messages texte

R. v. Trosky, 2015 BCSC 1419

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[20]        Baldree was considered by Madam Justice Levine in Black, cited above. She concluded that the Court in Baldree did not intend to displace the “documents in possession rule.” 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”: Black at para. 38. In Black, the document was a to-do list directed to someone with a first name similar to the accused and found inside an outbuilding dedicated solely to a grow operation from which the police saw the accused exiting. Levine J.A. determined the accused had constructive possession of the note due to the presence of the accused in the outbuilding where the note was found, as she was observed by police exiting the building. Levine J.A. concluded the note was admissible as circumstantial evidence of the accused’s involvement in the transactions to which the document related.

[22]        I am satisfied that both the contents of the post-arrest phone calls answered by Cst. Morton and the screen shots of the text messages located on the seized phone are admissible in evidence: the former pursuant to the principled approach to the hearsay rule outlined in Baldree and the latter as documents in the possession of the accused.

[24]        As for the text messages, I have concluded, for the same reasons as Griffin J. in Howell, that the messages constitute documents in the possession of the accused.

[25]        In combination, the post-arrest phone calls and the text messages constitute a body of circumstantial evidence from which an inference that drug trafficking was taking place can be made. Defence counsel argues that these pieces of circumstantial evidence should be excluded on the basis that their probative value is outweighed by the prejudicial effect of receiving such evidence. I will not give effect to this argument. While I have concerns with the police evidence regarding the physical location of the cell phone, noting the frailty of the police officer’s observation, this is an issue to be dealt with at trial in considering the weight to be attributed to the cell phone evidence.

[26]        There is no reason to exclude the evidence on the basis advanced by defence counsel. The post-arrest phone calls and the text messages do not give rise to problems regarding general propensity reasoning. There is no prior surveillance or other evidence concerning this accused which might create “moral prejudice”. The accused was not seen in the Audi prior to the arrival of the police officer at the scene. There is also no submission that the character of this accused is that he is the type of person to commit this offence. Nothing about his character or propensity for bad deeds was even broached in the evidence or submissions. Upon review, the potential prejudice from admitting this evidence at the trial is very slight: R. v. Rowe, 2012 ONSC 2600. As I see it, the issue is the weight to be attributed to the cell phone evidence. This is a matter that is properly determined at trial when an ultimate decision can be made.

Conclusion

[27]        The contents of the post-arrest phone calls answered by Cst. Morton are admissible for the truth of their contents pursuant to the principled approach to the hearsay rule. The exhibited screen shots of text messages are admissible as circumstantial evidence of the accused’s knowledge of or involvement in the transactions to which the text messages relate.