R. v. Howell, 2014 BCSC 2196
[25] In Black, our Court of Appeal confirmed the principle that documents can be admitted where the documents were in possession of the accused. Possession can be established by actual joint or constructive possession (at para. 33) and can be inferred from circumstantial evidence (at para. 34).
[26] The document in Black was a handwritten list directed to someone with a similar first name to the accused which set out tasks to complete that linked the intended recipient to the marihuana grow-op on the premises. This was part of the body of evidence that led to her conviction for production and possession of marihuana for the purpose of trafficking.
[27] In Black, the Court held, at para. 29, that such documents can have two areas of potential purpose:
a) Documents in possession of the accused will be admissible to show his knowledge of the contents or his complicity in or connection with or state of mind in relation to the transactions to which they relate.
b) Documents in possession of the accused will be admissible as admissions to prove the truth of their contents where the accused has in any way recognized, adopted, or acted upon them.
In R. v. Turlon (1989), 1989 CanLII 7206 (ON CA), 49 C.C.C. (3d) 186 at 190, the Ontario Court of Appeal discussed the roots of the rule, citing Phipson on Evidence, 13th ed. (1982), para. 21-09:
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 in original.]
[29] In Black, the Crown sought admissibility for the first purpose which the Court of Appeal characterized as circumstantial evidence. The Crown did not seek admissibility for the second purpose characterized by the Court as the hearsay purpose.
[30] In Black, the Court of Appeal found that the Supreme Court of Canada’s decision in Baldree did not restrict the use of a document in possession of the accused for the first purpose above as circumstantial evidence of the accused’s involvement in the transactions to which they relate, holding, at para. 40:
Baldree did not deal with documents found in possession of the accused. There is no basis to conclude that in holding that implied assertions from hearsay are themselves hearsay, the Supreme Court of Canada intended to overrule the use of such documents as circumstantial evidence of the accused’s involvement in the transactions to which they relate.
[31] The case of Black did not deal with text messages on a cell phone in the possession of the accused.
[32] The Nova Scotia Court of Appeal had occasion to consider the hearsay purpose of post-arrest text messages introduced to prove the truth of implied assertions in R. v. Gerrior, 2014 NSCA 76 [Gerrior]. The Court in Gerrior noted that the trial judge found that the text messages were admissible as circumstantial evidence of possession of the drugs and evidence of the accused’s intention to traffic (at para. 30). Pre-arrest text messages taken from the phone were not admitted by the trial judge (at para. 30).
[33] The trial in Gerrior was before the Supreme Court of Canada’s decision in Baldree, but that decision was rendered before the Gerrior appeal was heard. On appeal, the Nova Scotia Court of Appeal found, on the basis of Baldree, that for the text messages to be admitted, the proponent must demonstrate threshold necessity and reliability (at para. 33).
[34] Because text messages are in written form, the Nova Scotia Court of Appeal in Gerrior found them to have a higher measure of reliability than hearsay evidence of oral cell phone conversations (at para. 46). Because of this, in the circumstances of that case, the requirement of necessity was relaxed (at para. 54), applying Baldree at para. 72.
[35] The Nova Scotia Court of Appeal in Gerrior also found the fact that there were three similar text messages to support the conclusion that the evidence was sufficiently reliable to justify admission (at para. 44).
[36] The Court in Gerrior did not consider Black or the law regarding the admissibility of documents in possession of the accused. This is likely because the text messages at issue on appeal occurred after the arrest of the accused and so were not in his possession.
[37] Also in Gerrior, the disputed text messages, as interpreted by expert evidence, were about obtaining cocaine from the holder of the phone soon after the accused was charged with trafficking and arrested. Likewise in Baldree, the cell phone call was just after the accused’s arrest.
[38] Here, as in Black, the documents at issue predate the arrest.
[43] However, I do not find a reason to distinguish the doctrine relating to documents in the possession of the accused simply because the documents take some steps to access. Documents in possession of the accused have been considered admissible even where the document was in a kitchen cupboard or the document was in a sealed envelope addressed to someone else but in the accused’s briefcase: see, for example, R. v. Caccamo, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786; R. v. Turlon, 1989 CanLII 7206 (ON CA), [1989] 49 C.C.C. (3d) 186. In the latter case, the Court held, at 190-191, in respect of the use of the document as circumstantial evidence:
Knowledge of the contents of the letter was not a condition precedent to evidentiary value of the letter. Possession of the letter was evidence of knowledge or complicity in the scheme of drug importation and distribution. On the other hand, the respondent’s denial that he knew the letter was in his brief-case was evidence to the contrary. The possession of the letter and the denial by the respondent were both part of the evidence as a whole to be considered by the jury.
Possession was inferred from circumstantial evidence in R. v. Davis, 1969 CanLII 987 (AB CA), [1970] 3 C.C.C. 260 (Alta.C.A.) (photographs found in a hotel room registered in the name of the accused); R. v. Gilson, 1965 CanLII 350 (ON CA), [1965] 4 C.C.C. 61 (Ont. C.A.) (documents found in the hub cap discs of a car parked in front of the appellant’s home; the car was registered in the name of the appellant’s brother-in-law); and R. v. Bastien (1975), 1968 CanLII 880 (BC SC), 20 C.C.C. (2d) 562 (B.C. Co. Ct.) (notepad seized from a wastebasket outside the accused’s apartment with indentations matching the writing on a letter recovered from the post office containing money obtained from a bank robbery).
[45] As for the digital form of the text messages and the sheer quantity of them, I do not consider this a reason for not applying the doctrine relating to the admissibility of documents in the possession of the accused, although it certainly may be a factor in considering what ultimate weight to give this evidence.
[46] Numerous documents downloaded from computers in the possession of the accused have been admitted as evidence in other cases under the documents in possession of the accused doctrine: see, for example, two cases involving alleged terrorist activities, R. v. Hersi, 2014 ONSC 1368 [Hersi], and R. v. Ahmad, 2009 CanLII 84777 (ON SC), [2009] O.J. No. 6154 [Ahmad]. The case of Hersi, like Black, was decided post Baldree. These cases do not appear to raise a concern about electronic document production overwhelming or making redundant this doctrine.
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