L'admissibilité du document trouvé en possession de l'accusé

R. v. Hersi, 2014 ONSC 1368

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[25]      The “Document in Possession” doctrine stipulates that if the Crown can prove that a document was in the actual or constructive possession of an accused, inferences can be drawn concerning his knowledge or intent. Moreover, if the accused has acted on the document, by recognizing or adopting it in some way, then it is admissible for its truth. In R. v. Turlon, 1989 CanLII 7206 (ON CA), [1989] O.J. No. 524 (C.A.), at p. 4, the court adopted the following passage from M.N. Howard et al., eds., Phipson on Evidence, 15^th ed. (London: Sweet & Maxwell, 2000), at para. 30-10:

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.

                                                [Footnotes omitted, emphasis in original]

 

[26]      See also R. v. Savory (1996), 1996 CanLII 2001 (ON CA), 94 OAC 318 (C.A.); R. v Emes 2001 CanLII 3973 (ON CA), 157 C.C.C. (3d) 124 (Ont.C.A.); R. v. Ahmad, 2009 CanLII 84777 (ON SC), [2009] O.J. No. 6154 (Dawson J.), paras. 12- 38.

 

[27]      More recently, in Ahmad, Dawson J. admitted into evidence numerous articles, documents and videos, many of which were found on the computers of individuals charged with terrorism offences. Justice Dawson concluded (at para. 17) that whether an accused had knowledge of the contents of a document is for the jury to decide. It is not an admissibility issue:

 

In my view, once possession of the item is established (which in the case of a document requires proof of knowledge of the item but not of its contents) the doctrine provides that knowledge of the contents of the item may be inferred by the trier of fact based on a consideration of all the evidence. However, this is permissive not mandatory and the trier of fact is free to reject such an inference if they decide it is not warranted: Ewart, pp. 245-246, 255-256.  [emphasis added]

 

[28]      Consequently, knowledge of the contents of a document is not a precondition to its admissibility. Once the Crown has established possession of the document (i.e. proof of knowledge of the item but not of its contents), knowledge of the contents of the document may be inferred by the trier of fact from all the evidence.  In a criminal context, possession of the item is governed by the definition of possession found in s. 4(3) of the Criminal Code: J. Douglas Ewart, Documentary Evidence in Canada (Toronto: Carswell Legal Publications, 1984) at p. 232 – 236.

[29]      Mr. Hersi does not dispute that the documents in issue were on his computer, or that he had the computer with him when he was arrested at Pearson Airport. However, he does not admit knowledge of the contents of the documents, or that he was even aware of their presence on his computer. And he specifically does not admit transferring various documents from his computer to a USB key which he then gave to the undercover officer.

[30]      In my view, whether Mr. Hersi had knowledge of the contents of the computer and what weight, if any, is to be given them is for the jury to decide. At the very least, the evidence is capable of supporting the inference that he was in possession of the documents and that he conducted the internet searches. He had the laptop with him when he was arrested. It revealed a user profile for “Mohamed Hersi”, along with a spreadsheet titled “Hersi” that contained a worksheet of hours worked and pay received. Several of the documents found on the computer are identical to the documents Mr. Hersi copied onto a USB key for the officer. Although Mr. Hersi maintains (through his counsel) that other people had access to the computer and therefore he may not have been aware of all its contents, there is no evidence before me to that effect. The evidence that does exist strongly suggests the opposite, i.e. it was he and he alone who used the laptop. See Ahmad, paras. 18-23.