Les deux options que permettent la doctrine des documents trouvés en possession de l'accusé

Canadian Natural Resources Limited v Wood Group Mustang (Canada) Inc. (IMV Projects Inc.), 2018 ABCA 305

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[19]           The classic statement of the “documents in possession” exception to the hearsay rule is found in H.M. Malek, Phipson on Evidence, 19^th ed, (Thomson Reuters, 2018: London) at para. 37-10:

37-10   Documents which are, or have been, in the possession of a party will, as already 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 recognised, adopted or acted upon them. (Emphasis in original)

There are thus two branches to the doctrine: first to show knowledge of the contents of the document, and second to imply an admission of the truth of the contents of the document.

[20]           The first branch of the doctrine has primarily been used in criminal prosecutions, or conspiracy actions, to show participation by the defendant in a transaction. If the defendant is in possession of documents disclosing the existence and execution of a conspiracy or a criminal transaction, that is circumstantial evidence that the defendant knew of it, or participated in it: R. v Bridgman, 2017 ONCA 940 at paras. 67-9, 138 OR (3d) 721; R. v Gausal, 2017 BCSC 1194 at paras. 63-5. As such, this branch of the doctrine is a variant of the “admissions against interest” exception to the hearsay rule.

[21]           The first branch of the doctrine can also be used to prove knowledge of the existence of the document or the information in it, but not as proof of the truth of the contents of the document: e.g. Dassen Gold Resources Ltd. v Royal Bank of Canada (1993), 1993 CanLII 16393 (AB KB), 138 AR 275, 12 CPC (3d) 141; D.E. (Guardian ad litem of) v British Columbia, 2003 BCSC 1013 at para. 43, 18 CCLT (3d) 169. The second branch of the doctrine, on the other hand, can extend to implying an admission that the contents of the document are true. For example, in Mask v Silvercorp Metals Inc., 2015 ONSC 5348 at appendix para. 2 an exchange of letters with the Securities Commission was evidence, in the nature of an admission, that there were deficiencies in the issuer’s disclosure statements.