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dimanche 2 mars 2025

La doctrine du document trouvé en possession et les messages texte de l'accusé

R v Shivak, 2020 ABQB 642

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[27]           Justice Fairburn described the “documents in possession” doctrine as follows, at paras 67-70 of Bridgman:

[67]      The documents in possession rule is one of long-standing: see Rex v. Smart & Young (1931), 1931 CanLII 170 (ON CA), 55 C.C.C. 310 (Ont. C.A.), at p. 313; R. v. Turlon (1989), 1989 CanLII 7206 (ON CA), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 190; R. v. Ansari2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 116; and B.C. Securities Comm. v. Branch1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3, at p. 33. The rule applies to paper and electronic documents alike: Ansari, at para. 154; and R. v. An2015 ONCA 799, at paras. 15, 17.

[68] The rule is designed to permit the admission of documents in two different circumstances for two different purposes.

[69] First, the rule allows for the admission of documents found in personal, constructive or joint possession of an accused as original circumstantial evidence of their contents to establish the accused’s connection to or complicity in the matter to which the documents relate: Ansari, at para. 116. Second, where evidence exists that the accused has recognized, adopted or acted upon the documents found in possession, the documents may be admitted as an exception to the hearsay rule, allowing the trier of fact to consider them for the truth of their contents. As noted in B.C. Securities Comm., at p. 33, “if the party in possession has recognized, adopted or acted on the document an admission of acceptance of its contents as true may be inferred.”

[70] This court addressed the dual nature of the admissibility doctrine in Turlon. The court adopted as correct the following passage from Hodge M. Malek & Sidney L. Phipson, Phipson on Evidence, 18th ed. (London: Sweet & Maxwell, 2013), at 37-10, pp. 1326-27, which remains substantively unchanged today:

Documents which are, or have been, in the possession of a party will …  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 recognised, adopted or acted upon them. [Emphasis in original.]

[28]           I agree with Justice Fairburn’s determinations that text messages, and by extension Facebook Messenger messages, are “documents” for the purposes of this rule. I also agree with Justice Fairburn’s assessment that R v Baldree (2013 SCC 35) does not foreclose the admissibility of such documents through this rule: Bridgman at para 71.

[29]           I find that the Extraction Evidence, communications “in” a cellphone that was clearly within Mr. Shivak’s possession, falls within the scope of the documents in possession rule, a traditional exception to hearsay exclusion.

[30]           Further, I agree with Justice Fairburn that “adoption,” for the purposes of the second branch of the rule, is not made out simply by receipt of a communication or even by simply reading a communication (unless the communication “called out for a reply”): Bridgman at paras 87, 88, 83; see also Bukshtynov v McMaster University2019 ONCA 1027 at para 24. Mr. Shivak, however, responded to the communications in the Extraction Evidence. He was involved in active communication with the third parties. There was no serious argument that Mr. Shivak did not by his words adopt express (or implied) assertions made by third parties in the Extraction Evidence.

[31]           Through the documents in possession rule, then, the Extraction Evidence was not rendered inadmissible by the hearsay rule. As will be discussed, that is not the same as finding that satisfaction of the documents in possession rule rendered the Extraction Evidence admissible.

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