R. v. Kalai, 2020 NSSC 351
Documents in Possession
[28] Documents in the accused’s possession are generally admissible in proof of the accused’s knowledge of their contents, pursuant to the “documents in possession” doctrine. Additionally, they may be admissible as proof of the truth of their contents where the accused “has recognized, adopted or acted upon” the documents.[3] The Nova Scotia Court of Appeal summarized the doctrine in R. v. Wood, 2001 NSCA 38, at para. 114:
114 There are three elements of the doctrine. First, it must be shown that the document was actually or constructively in the possession of the accused. Second, if such possession is established, the document will be admissible to show the accused's knowledge of its contents, his connection with and state of mind with respect to the transaction to which it relates. Third, if it is established that the accused has recognized, adopted or acted on the document, it becomes admissible for the truth of its contents under the admissions exception to the hearsay rule...
[29] Pursuant to s. 4(3)(a) of the Criminal Code, a person “has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person.”
[30] The Crown says the accused’s possession of the documents is established by their presence on the computer in his home, so that “the contents of the documents are admissible to connect him circumstantially to the transaction in issue. This is the first permissible use of documents in possession, as “circumstantial evidence of the accused’s involvement in the transactions to which they relate.” (see R. v. Black, 2014 BCCA 192, at para. 40).
[31] As the Ontario Court of Appeal said in R. v. Bridgman, 2017 ONCA 940, in respect of text messages:
[72] If a document found in possession is elicited for a non-hearsay purpose – as original circumstantial evidence showing the accused’s connection to or complicity in a matter – then the hearsay rule is not activated ... This is true even where documents may contain out-of-court statements that can be understood as express or implied assertions if tendered for the truth of the assertion.
....
[76] Of course, resort to this doctrine cannot constitute an end-run-around the hearsay rule. If the circumstantial value of the evidence turns on the truth of the assertion made by the non-testifying texter, then the traditional hearsay concerns will be present.
[77] If, though, the relevance of the evidence does not depend on the truth of the assertion, the text messages may be admitted on the basis that they constitute original circumstantial evidence relevant to an issue at trial. By way of example only, text messages may constitute original circumstantial evidence connecting the accused to a location, transactions, or people, or demonstrating knowledge, state of mind and so on. I emphasize that these are only examples and should not be considered a complete or aspirational list.
[36] Ahmad supports the view that possession can be established by the document’s presence on a storage device, such as a computer, in the accused’s home. R. v. Hersi, 2014 ONSC 1368, stands for the same principle. In Hersi, the Court said:
[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 ... 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.
[Emphasis added]
As such, the documents were admissible for the non-hearsay purpose as documents in possession, subject to relevance.
[37] In summary, the defence position is that possession has not been proven, and therefore admissibility as circumstantial evidence of knowledge of the contents is not established.
[38] Based on the authorities, I find that the presence of documents on a computer in the accused’s home (some of which referenced the accused) is sufficient to connect him to their contents for the purpose of admissibility as documents in possession.
Recognized, Adopted, or Acted Upon
[39] The Crown seeks to use the documents not only for the non-hearsay purpose of connecting the accused to the transfer, but for the hearsay purpose of proving the occurrence of the transfer itself. The Crown stated frankly in the hearing that there is no other evidence of the transaction. The Crown must therefore establish that the accused recognized, adopted, or acted upon the documents.
[40] The “documents in possession” doctrine contemplates admissibility of documents in proof of the accused’s knowledge of their contents. It does not follow that such documents are admissible for the truth of their contents. This is only possible where the accused has “recognized, adopted or acted upon” the document, in which case the document is admissible under the admissions exception to the hearsay rule.[4]
[41] The question then becomes what constitutes “recognizing, adopting, or acting upon” a document?
[47] In my view, the Crown has adduced little or no evidence to support admission of these documents under the “documents in possession hearsay exception”. Something more must be required for a document in possession to be admitted for its truth.