La preuve de l’authenticité d'un vidéo peut être directe et/ou circonstancielle

R v Bulldog, 2015 ABCA 251

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(2) Can video evidence only be authenticated by an eyewitness or a member of one of the other classes which the appellant posits?

[34]           It will be recalled that the appellants say that, because Reddick does not fit into any of the four categories identified by Goldstein as persons capable of authenticating video evidence, it follows that the Crown could not authenticate the video recording. We assume that the appellants also maintain that none of the other Crown witnesses would fit into those categories, although we observe that Hodge would have fallen into Goldstein’s second category as an eyewitness, had he viewed the video in court and testified that it accurately depicted what he saw. In any event, these categories are not exhaustive in the sense that, if the Crown does not call one of these four kinds of witnesses, the video recording is inadmissible. Rather, other kinds of evidence or different combinations of witnesses may be employed to satisfy a court of the video recording’s substantial accuracy and fairness.

[35]           In particular, circumstantial evidence may be used to authenticate real evidence: David M Paciocco & Lee Stuesser, The Law of Evidence, 6^th ed (Irwin Law, 2011) at 466; Graham Underwood & Jonathan Penner, Electronic Evidence in Canada (Carswell, 2010) at 11-34; David M Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age”, 11:2 CJLT 181 at 197-98; EG Ewaschuk, Criminal Pleadings & Practice in Canada, 2d ed (Carwright, 2010) at 16:104-105; R v Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653 at 663, 108 DLR (4th) 32; R v Lempen, 2008 NBCA 86 at para 24, 338 NBR (2d) 377; Liang; R v Schertzer, 2011 ONSC 579 at para 12, [2011] OJ No 6524 (QL).

[36]           For example, in Evans, the Supreme Court quoted with approval this passage from a US textbook on evidence law: “authentication may be accomplished by circumstantial evidence pointing to X’s identity as the caller, such as if the communication reveals that the speaker had knowledge of facts that only X would be likely to know”. In Liang, this Court upheld a trial judge’s decision to admit into evidence an audio recording of a 911 call because its contents were consistent with the trial evidence of other witnesses, and because the trial judge found as a fact that the voice on the tape belonged to the complainant. In Lempen (at para 26), the New Brunswick Court of Appeal overturned a trial judge’s decision not to admit a letter when a witness stated the signature looked like his but that he did not recall writing it because it was possible to “authenticate the letter by other means, including but not limited to, inviting comparisons with the signature on the previously admitted letter …, evidence of the letter to which the author was allegedly responding, and other circumstantial evidence surrounding the alleged execution of the letter”. And, in Schertzer, the trial judge found that a variety of evidence including handwriting comparisons and drug squad document-keeping practices were sufficient to authenticate the contents of certain drug squad case files.

[37]           While none of these authorities are specifically about video recorded evidence, we see no principled reason why it should be treated differently. A trial judge is entitled to authenticate a video recording by using circumstantial evidence of one or more witnesses, provided such evidence establishes to the requisite standard of proof that the video in question is a substantially accurate and fair depiction of what it purports to depict. We now turn to consider whether the trial judge in this matter had sufficient evidence upon which to admit the video recording.

Le document en possession de l'accusé et sa reconnaissance ou son adoption par ce dernier

R. v. Kalai, 2020 NSSC 351

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   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.

Le ouï-dire est permis pour qu'un juge puisse déterminer si la crainte du dénonciateur est basée sur des motifs raisonnables de croire en matière d'engagement de ne pas troubler l’ordre public

R. v. Schafer, 2020 YKCA 3 

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[41]        As the appellant points out, the Court observed that the firearm prohibition application was not directly analogous to other hearings including peace bond hearings (see page 1385) and the evidentiary requirements under those hearings was not determinative of the issue before the Court. Nonetheless, the discussion of the Court is instructive, and a number of points are relevant to the assessment of this appeal.

[42]        First, Justice Sopinka found that the nature of the judge’s role on a prohibition hearing suggests that the rules of evidence were not intended to strictly apply. He said, at 1385:

Section 98(4) enables a peace officer acting on reasonable grounds to apply to the provincial court judge for an order prohibiting a particular person from possessing a firearm. Clearly, the peace officer is not required to act solely on the basis of evidence that would be admissible at a trial (see Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, at p. 745; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 279). At the hearing of the application pursuant to s. 98(6), the provincial court judge must be satisfied that there are reasonable grounds to believe that it is not desirable in the interests of the safety of the person or of others that the subject of the prohibition application should possess a firearm. The provincial court judge thus confirms the existence of the reasonable grounds which led the peace officer to launch the application. In my opinion, it was not intended that the provincial court judge strictly apply the rules of evidence. The provincial court judge must simply be satisfied that the peace officer had reasonable grounds to believe as he or she did: in other words, that there is an objective basis for the reasonable grounds on which the peace officer acted. [Emphasis added.]

[43]        In my opinion, these considerations apply with force to the issue before us. The informant (whether a peace officer or a person concerned about personal safety) is not required to act on the basis of evidence admissible at trial. The issue for the judge is whether there are reasonable grounds for the subjective fear, not whether the facts underlying that fear can be proven beyond a reasonable doubt. In these circumstances, Parliament cannot be taken to have intended that the judge strictly apply the rules of evidence. This latter point is reinforced by noting that the test for granting a peace bond is no different if the application is made by a person concerned about personal safety. It would defeat the purpose of the provisions if such a person could not rely on hearsay evidence to justify a reasonable fear of harm, but could only secure the protection of a peace bond on strictly admissible evidence.

[44]        Second, Justice Sopinka found that the fact that the burden of proof on a prohibition hearing was not proof beyond a reasonable doubt, but only proof on a balance of probabilities, suggested that the hearing was not intended to be conducted in the manner of a criminal trial even though the proceedings arose under the Criminal Code: at 1385–86.

[45]        For these reasons, Justice Sopinka was “prepared to hold that hearsay evidence is admissible at a firearm prohibition hearing under s. 98(6) [now s. 111] unless such a result is precluded by the words ‘all relevant evidence’.”: at 1386. He found that “all relevant evidence” meant “all facts which are logically probative of the issue”, and that the phrase did not address the question of exclusionary rules. He added:

The effect of the exclusionary rules is left to the provincial court judge as part of the whole body of evidence on which the provincial court judge determines whether he or she is satisfied that the reasonable grounds exist. Frailties in the evidence are a matter of weight. In the case at bar, for example, the judge should properly consider what weight, if any, is to be given to the hearsay evidence. In doing so the judge should take into account the explanation, if any, for not making the best evidence available. The Crown bears the burden of proof at a s. 98(6) hearing and… in considering its weight, the judge must scrutinize the evidence to ensure that it is credible and trustworthy.

[46]        Much can taken from the analysis in Zeolkowski that bears on a peace bond hearing. A peace bond hearing is also not a criminal trial. The Supreme Court of Canada recently described a peace bond hearing as resembling “to a certain extent a civil injunction”, given that a peace bond is an instrument of preventive justice and “based on the reasonable fear of the informant, rather than the guilt of the defendant.”: R. v. Penunsi,  2019 SCC 39at para. 61.

[47]        An informant in a peace bond hearing is not required to act solely on the basis of evidence admissible at a trial; it is sufficient to do so on the basis of evidence establishing reasonable grounds. A judge must be satisfied that there are reasonable grounds for the informant’s fear. The role of the judge is to assess whether the grounds tendered in support of the stated fear are objectively reasonable and sufficient to justify the imposition of a recognizance with terms and conditions. In my view, hearsay evidence that is credible and trustworthy is relevant to that question.

[48]        Hearsay evidence is admissible, if it is probative of the existence of reasonable grounds, unless the section evinces an intention to exclude it. Just as the phrase “all relevant evidence” does not exclude relevant hearsay evidence, the use of the phrase “evidence adduced” does not evince an intention to exclude it. Finally, it is for the judge to assess the weight of the evidence and its frailties including any explanation provided for not making the best evidence available.

[49]        It is important to emphasize that the hearsay evidence should be in a form that allows a judge to assess whether it is credible and trustworthy. I do not think such evidence is presumptively inadmissible given the test to meet before a peace bond is ordered. Whether the subjective belief is objectively reasonable, based on credible and trustworthy evidence, is a matter that falls to be decided by the hearing judge, weighing the evidence.

[50]        The applicable standard of proof on a peace bond hearing is also not proof beyond a reasonable doubt. Instead, under s. 810.2(3), a judge must be “satisfied by the evidence adduced that the informant has reasonable grounds for the fear.” This statutory language has been viewed as importing a burden of proof on a balance of probabilities: see Haydock v. Baker, 2001 YKTC 502 at para. 17; R. v. Budreo (1996), 1996 CanLII 11800 (ON SC), 104 C.C.C. (3d) 245 (Ont. Ct. Gen. Div.) at para. 23 [Budreo S.C.]; Vachon v. Hartland, 2018 YKSC 23 at para. 19.

[51]        In this case, as noted, the trial judge expressed concern about the sufficiency of the evidence before her. In assessing the evidence, she considered the hearsay evidence alongside the fact that no objection was taken to it, it was not contested, the appellant’s own evidence confirmed the reasonableness of the evidence, and that the live issue was whether the appellant was a changed person who no longer posed the risk reasonably supported by the hearsay evidence. In my view, the judge committed no error in this assessment. Nothing in these reasons should be taken as endorsing the proposition that the peace officer’s evidence, presented in the manner it was here, will always lay a sufficient basis to justify a reasonable fear. Whether it does so is a matter of weight for a trial judge, and is to be assessed robustly given the interests at stake.

[52]        In my view, the admissibility of hearsay evidence in this case is consistent with the rules of admissibility in other circumstances involving reasonable grounds and/or a more relaxed approach to the rules of evidence. These include bail hearings (although the test is different), applications for search warrants, wiretap authorizations, and applications for firearms prohibitions. As explained above, Zeolkowski is an example.

[53]        I also agree with the opinion of the summary conviction appeal judge that the recognition of the admissibility of hearsay evidence in Budreo C.A. can not be lightly set aside as obiter dicta. The relevant statement in Budreo C.A. is:

[52]      Moreover, although an informant's fear triggers an application under s. 810.1, under s-s. (3) a recognizance order can only be made if the presiding judge is satisfied by "evidence" that the fear is reasonably based. Section 810.1(3) therefore requires the judge to come to his or her own conclusion about the likelihood that the defendant will commit one of the offences listed in s-s (1). Although the "evidence" the judge relies on might include hearsay, a recognizance could only be ordered on evidence that is credible and trustworthy.

[54]        This comment was made in the context of assessing the constitutionality of s. 810.1. Given the issues at stake in the constitutional challenge, the scope and nature of the contemplated hearing, the procedural safeguards and basis (including the evidentiary foundations) on which a peace bond could be ordered are all important factors informing the analysis. The observation that the evidence a judge relies on might include hearsay is not incidental to the outcome of the case. At the very least, the comment is highly persuasive. I note too that this conclusion did not attract any adverse comment in the Supreme Court of Canada’s decision in Penunsi.

[55]        This conclusion is also supported by the purposes and objects of peace bonds as they have been explained in Penunsi. The issue in that case was the application of the provisions relating to judicial interim release to the peace bond process. Nonetheless, the Court’s reasoning illustrates the purpose and object of the peace bond regime in a manner that informs the necessary statutory interpretation. Of particular importance is the Court’s affirmation that peace bonds are instruments of preventive justice, not penal justice.

[56]        After describing the origin of common law peace bonds, the Court charted the development of the peace bond within the Criminal Code. The Court recognized that the process involved in ordering peace bonds had become more procedurally robust. The underlying rationale remained however, at para. 38:

[38]      Then J. in Budreo S.C. stated the policy rationale behind peace bonds:

. . . where the reasonably certain commission of an offence can be prevented, it may be in the interest of the likely offender, his potential victim and of society to prevent the offence. This is particularly true when the preventive measures employed are less restrictive than the punishment that might flow from a conviction. [p. 372]

[57]        At para. 50 the Court recognized that a peace bond defendant is not in the same place as an accused person. At para. 53 the Court accepted that a defendant to a peace bond proceeding is of an entirely different character to a defendant to a criminal charge. These comments reinforce the relevance of the approach in Zeolkowski to the current case.

[58]        The court recognized at para. 60 that the interpretation of the peace bond provisions is informed by the context and purpose of peace bonds, and the competing interests of protecting public safety and safeguarding the liberty of the defendant who is not accused of any criminal offence. At paras. 61, 63 and 80, the court said:

[61]      As discussed above, the peace bond is an instrument of preventive justice, based on the reasonable fear of the informant, rather than the guilt of the defendant. I agree with the respondent that though it is a valid expression of the criminal law power, the peace bond resembles to a certain extent a civil injunction (R.F., at para. 8). As noted by de Villiers Prov. Ct. J. in R. v. Gill, [1991] B.C.J. No. 3255 (QL):

It is true that the effect of a recognizance is to restrict the liberty of the defendant somewhat, but, as in the case of a civil injunction that restrains a defendant from committing a tort, that may also be a crime, the recognizance is not in its essence a restriction of lawful activity. [p. 6]

…

[63]      When exercising the discretion whether to hold a hearing, the justice must consider whether the fear sworn to in the Information is reasonably held. It was raised before this Court that the peace bond under s. 810.2 is a “tool . . . often used when an offender is nearing their warrant expiry”, or shortly after an individual has completed a custodial sentence, as was the case with Mr. Penunsi himself (I.F., Attorney General of Ontario, at para. 13; see also R. v. Schafer, 2018 YKTC 12, at paras. 38-39). Initiating a s. 810.2 peace bond proceeding upon a person’s release from prison risks a further deprivation of liberty after the completion of a sentence already determined to be proportionate. Without further evidence that the feared conduct will occur (for example, the existence of threats or other violent conduct while in custody) a fear based solely on the offence for which a defendant is serving a sentence will not be sufficient. A s. 810.2 peace bond ordered on that basis alone would be improper. It would serve as a de facto probation order, not as a prospective tool of preventative justice.

…

[80]      Practically speaking, the interim conditions regarding public safety placed on a peace bond defendant will likely form the basis for the recognizance following a meritorious peace bond application. These conditions will address, inter alia, concerns regarding the safety of the person whose protection is the objective of the peace bond. Judges should be mindful that a breach of interim conditions will result in a peace bond defendant — not accused of any crime — becoming subject to a criminal charge. It bears repeating that any public safety conditions should have a nexus with the specific fear sworn to in the Information. I underline this with respect to the imposition of conditions prohibiting the consumption of drugs and alcohol. Where the condition is not demonstrably connected to the alleged fear, it may merely set the defendant up for breach, especially where the defendant is known to have a substance use disorder [citation omitted]. Any condition should not be so onerous as effectively to constitute a detention order by setting the defendant up to fail [citation omitted].

[59]        The Court clearly endorsed the use of peace bonds as instruments of preventive justice, recognizing that a defendant is not in the same position as a person accused of a criminal offence. This commentary on the purpose of peace bonds informs the interpretation of types of evidence admissible on a peace bond hearing. In my view, hearsay evidence is presumptively admissible in order for a judge to assess whether reasonable grounds exist for the informant’s subjective fear that a defendant will commit a serious personal injury offence.

Même si le juge ne tient pas un examen approfondi de la qualité du plaidoyer de l'accusé, cela ne constitue pas en soi un élément justifiant le retrait d'un plaidoyer de culpabilité

Larrivée c. R., 2017 QCCA 105

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[13]      Que l’appelant ait douté de sa décision d’enregistrer des plaidoyers de culpabilité, qu’il ait éprouvé des regrets ou encore de la crainte face à la peine à venir, cela ne constituait pas pour autant des éléments justifiant le retrait des plaidoyers. Or, un retrait de plaidoyer ne doit pas être autorisé à la légère.

[21]      Il est vrai que la juge de première instance n’a pas demandé à l’appelant si ses plaidoyers étaient volontaires et informés. La jurisprudence est à l’effet que le tribunal n’est pas obligé de tenir une enquête[5], les circonstances du dossier, selon le cas, pouvant lui permettre de s’assurer autrement de la validité d’un plaidoyer[6]. En l’espèce, le tribunal, à partir de l’ensemble du dossier et des circonstances de l’affaire[7], pouvait conclure à la validité des plaidoyers qui lui étaient présentés. Rien ne permet de croire que les plaidoyers n’ont pas été enregistrés en toute connaissance de cause, l’appelant étant dûment représenté par avocat, ce qui crée une présomption de validité des plaidoyers[8].  

[22]      Cela dit, avant de conclure, quelques remarques s’imposent.

[23]      La juge reconnaît à deux reprises que la procédure suivie pour l’enregistrement des plaidoyers de culpabilité était loin d’être idéale. On peut comprendre que dans les salles à volume le déroulement d’une telle procédure puisse être expéditive à l’occasion. Mais, cette pratique, si tant est qu’elle existe, est à proscrire. En effet, rappelons qu’au cœur d’un plaidoyer de culpabilité, il y a une renonciation de la part de l’accusé à la présomption d’innocence et à une défense pleine et entière à faire valoir lors d’un procès. Les enjeux sont d’une importance évidente, de sorte que le juge a l’obligation de s’assurer que le plaidoyer de culpabilité découle du choix libre et volontaire de l’accusé, à qui les chefs d’accusations auxquels il s’apprête à plaider coupable devront dans les circonstances habituelles lui être lus, les faits pertinents à leur soutien dûment résumés et admis par lui.

[24]      Même si le Code criminel n’exige pas un examen approfondi de la qualité du plaidoyer, un examen incomplet de cette question ne correspond pas au but poursuivi par le Code criminel et aux prescriptions de la jurisprudence.[9]