Il n'existe aucun consentement implicite entre époux au contact physique durant une algarade

R. v. Downey, 2002 NSSC 226 

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[9]     The Appellant argues that the learned trial judge misdirected himself on the issue of “implied consent” as defined by s. 265(4) of the Criminal Code, which states:

 

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defense, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.           

[10]   In R. v. Stewart, [1996] O.J. No. 2704 (Ont. C.J. (Prov. Div.), Renaud Prov. J. discussed “implied consent” in the spousal context at paragraph 26:

 

Little authority is required to sustain the proposition that in modern life, one may subject to all kinds of unwanted physical contact, be it the jostling for position on the subway, the unwanted “glad-handing” of politicians on the “hustings”, et cetera. However, no persuasive argument has been advanced to sustain the submissions that a spouse consents to any form of violence in a domestic argument. Nothing in the decision in R. v. Jobidon ... or subsequent decisions interpreting it appear to countenance such an extension of the law.

 

[11]   In R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714, the Supreme Court of Canada held that mutual consent in a fist-fight between adults was vitiated where there is intent to apply force causing serious or non-trivial bodily harm.

[13]   In R. v. Shand (1997), 1997 CanLII 3459 (NS SC), 164 N.S.R. (2d) 252 (S.C.), application for leave to appeal refused, (1998), 1998 NSCA 65 (CanLII), 166 N.S.R. (2d) 74 (C.A.), after pleading guilty to assault, the accused’s husband encouraged her to assault him in turn. As he was getting out of his vehicle she threw rocks at him. Charged with assault, she relied upon the defense of consent. MacDonald J. (as he then was) held that the reasoning in Jobidon was not restricted to barroom brawls. On the contrary, the Court had left open the possibility that the defense of consent could be vitiated on a case-by-case basis. Justice MacDonald wrote, at paragraphs 14 and 20:

 

It is clear to me that the Jobidon ... principle should apply to assaults flowing from domestic violence. If there was ever a need for Canadians to treat each other humanely and with respect it is in the area of domestic disputes....

 

Domestic violence is just too serious a problem to allow consent to be a defense in circumstances such as these. This was a volatile situation which could easily have escalated into something much more serious than one might expect from a barroom brawl.

 

 

[14]   Justice MacDonald concluded that the wife’s actions had the potential to cause severe bodily harm, and consent was vitiated. He commented at paragraph 15:

 

Furthermore I feel the need to deter family violence is so great that the Jobidon principle should be extended so as to vitiate consent where domestic assaults have only the potential of creating non-trivial harm.

 

 

[15]   With respect, I find that the learned trial judge erred in holding that there is an implied consent to physical contact during an argument between spouses. I agree with the reasoning in Stewart, supra to the effect that nothing in Jobidon, supra or subsequent case law supports the proposition that marriage automatically creates such implied consent.

 

[16]   As to actual consent, the Criminal Code, in subsection 265(4), requires that a belief by the accused that the complainant consented can only serve as a defense if the belief is both honest and reasonable. Shand, supra suggests that consent will be vitiated between spouses where the conduct has even the “potential of creating non-trivial harm”.

 

[17]   At trial, the evidence of the complainant was that she did not consent to the Respondent pulling on her coat, and her behaviour, as recounted in her own evidence and that of the Respondent, supports this conclusion. She stated that she repeatedly pulled away and told him she did not want to go with him, in an angry tone of voice. The learned trial judge’s findings of fact bear out this version of events, and the Respondent, on cross-examination, stated that he knew his wife was upset, that she pulled away from him and that he wanted to “calm her down”. Mr. Downey knew his wife was upset and that she did not want to go home with him. With respect, there is little or nothing in the evidence to support an honest and reasonable belief in consent. It was clear that Ms. Downey did not consent.

Comment apprécier l'emploi de la force lors de la pratique d'un sport ''sans contact'' relativement à une accusation de voies de fait

R. v. Adamiec, 2013 MBQB 246

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[42]      Soccer is accepted to be a contact team sport.  While not as violent a sport as rugby, American football, lacrosse, or ice hockey, physical contact is an essential element of soccer and its rules permit contact.  See Brown at pp. 592‑93.  The referee explained in his evidence that extreme forms of physical contact between players are not necessarily contrary to the rules of soccer, let alone beyond its playing culture particularly in a competitive league such as the MMSL.

[44]      According to the evidence of the complainant (an experienced goalkeeper), it is foreseeable that a goalkeeper in a competitive amateur soccer game faces the risk of being stepped on or kicked in a struggle for control of the ball.  It had happened to the complainant many times before the game with Polonia resulting in broken bones and medical attention.

[45]      Such physical contact would be less tolerated in a recreational or developmental league or a league with “no contact” rules.  See R. v. Krzysztofik (G.) (1992), 1992 CanLII 13029 (MB KB), 79 Man. R. (2d) 234 at para. 10 (Q.B.).  However, the evidence before the trial judge was that injuries that would constitute “bodily harm” as defined in section 2 of the Criminal Code occur frequently during play in the MMSL.

[50]      According to the evidence of the referee and Messrs. Sheridan and Heral, which the trial judge accepted, part of Adamiec’s kicking was due to the fact the complainant had grabbed his right leg as part of attempting to grab the ball.

[51]      Struggle for control of the ball is part of the essence of soccer, particularly close to a goal.  In such a competitive setting as was the match here, it cannot be said that players do not consent to the high risk of injury and the potential of receiving reckless force from an opponent in such a struggle for a loose ball in the penalty area proximate to one side’s goal.  Adamiec was quite within his rights under the playing culture of soccer to pursue his scoring chance, particularly as he was being grabbed at the same time by the complainant.

[52]      It is undisputed that the degree of force employed by Adamiec during his kicking was significant.  The injuries of the complainant amounted to “bodily harm” within the meaning of section 2 of the Criminal Code.

[54]      There was no intent to injure the complainant or to use force for anything but a legitimate sporting purpose, albeit done in a manner contrary to the rules of soccer.  Adamiec’s use of force was not motivated by a non-sporting purpose such as an intentional retaliatory attack designed to injure an opponent, as opposed to advance play.  See R. v. Owen, [2004] O.J. No. 1410 (Sup. Ct. J.) (QL).  Again, context is important in consideration of the risk of collision and resulting injury in a 50/50 ball in the course of a potential scoring play.  The evidence before the trial judge was that the risk of serious injury is high in such situations.  This does not excuse Adamiec’s conduct but does place it in the correct frame of reference.  See Owen at para. 70.

[55]      The trial judge erred in law in concluding the Crown negated consent for the purpose of section 265(1)(a) of the Criminal Code.  A proper cumulative consideration of all of the objective criteria applied to the facts as found by the trial judge leads to the conclusion that although the conduct of Adamiec was contrary to the rules of soccer, it was not beyond soccer’s playing culture, let alone gravely so, which is required for sporting misconduct to be a crime.

Une modification qui rehausse la qualité d’une preuve audiovisuelle, tout en préservant son exactitude et sa fidélité, est permise, car la Couronne n’a pas à faire la preuve que la vidéo n’a pas été altérée, les règles d’admissibilité n’exigeant pas que la vidéo soit exempte d’altérations

R v Bulldog, 2015 ABCA 251

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  (1) Must the Crown prove that the video recording has not been altered or changed?

[26]           As already noted, the appellants say that Nikolovski creates a two-part test which must be met before admitting video evidence, requiring the Crown to show not only that the video recording accurately depicts the facts, but also that it has not been altered or changed. This is incorrect.

[27]           It must first be borne in mind that Nikolovski was not a case about the admissibility of a video recording (which had been conceded), but rather about identity (specifically, whether a trier of fact could identify the accused beyond a reasonable doubt as the offender by relying solely upon that video recording). The critical passage from Nikolovski, para 28 upon which the appellants rely, is found under a heading discussing “Use That Can Be Made of Photographs or Videotapes”, which clearly presupposes admissibility.

[28]           Further, the passage itself fails to support the appellants’ contention. It reads as follows: 

“Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence.”

This statement does not state a necessary condition for admission, but rather a sufficient condition. It does not, even implicitly, preclude admission of video recordings under other circumstances. Indeed, where an alteration enhances a video recording, its accuracy might well be served by such an alteration: R v Jamieson, [2004] OTC 369 at paras 36-37, [2004] OJ No 1780 (QL) (SCJ).

[29]           We do agree with the appellants, however, that in some cases Nikolovski has been taken as requiring the tendering party to show an absence of alteration or change: Penney; R c MacNeil, 2008 QCCS 915 at para 11, [2008] QJ No 1784 (QL); R v Chevannes, 2011 ONCJ 754 at para 16, [2011] OJ No 5937; R v Ellard, 2004 BCSC 780 at para 11, [2004] BCJ No 2914. In Penney, for example, the Newfoundland and Labrador Court of Appeal (at para 17) cited Nikolovski as authority for the statement that “[e]vidence establishing that the video has not been altered or changed is a precondition to its admission as evidence.” With respect, we do not read Nikolovski as stating so broad a proposition, and we see no principled reason to support it. Indeed, taken to its extreme, it could render almost any DVD left unattended next to a computer inadmissible. And, in any event, Penny is distinguishable, since exclusion of the video in that case was grounded in its lack of probative value and in its potential inaccuracy (the video was selectively shot and did not include a time stamp, which was vital since the charge was that the accused did not kill a seal “quickly”).

[30]           Other courts have taken a different view of Nikolovski, to the effect that a video recording may be admitted into evidence, even if it has been altered in some way, so long as it is shown to be a substantially accurate depiction of the event in question. In R v Brown, [1999] OTC 213, [1999] OJ No 4865 (CJ), where the Crown sought to tender at trial a security surveillance videotape and enhanced copies, the court stated (at para 3) that, when a videotape has been altered, the test for admissibility is:

“one of substantial accuracy. … [T[he Crown must … prove on a balance of probabilities the substantial accuracy of the original tape and the enhancements of it to obtain the permission of the court to tender them in accordance with [Nikolovski] ….”

(Emphasis added.) 

[31]           Similarly, in R v Crawford, 2013 BCSC 2402 at para 48, [2013] BCJ No 2879 (emphasis added), the court said that Nikolovski should be interpreted in a “purposive” manner, such that a video recording’s admissibility is not precluded, even if “complete accuracy” no longer subsists, so long as “the alteration of the recorded event is not so substantial as to be misleading” or “if the image is distorted or otherwise changed in a material way.” What matters, said the court in Crawford, is that the video recording “accurately and fairly presents he information that it is to convey”. Other courts, including this Court, said much the same thing prior to Nikolovski: R v Leaney, 1987 ABCA 206 at para 45, 81 AR 247 (per Harradence JA, dissenting on other grounds; R v Maloney (No 2) (1976), 1976 CanLII 1372 (ON CJ), 29 CCC (2d) 431, [1976] OJ No. 2446 (QL) (Co Ct); R v Taylor, [1983] OJ No 3354 at paras 17-18 (QL) (Prov Ct); and R v Creemer and Cormier (1968), 1967 CanLII 711 (NS CA), 1 CCC 14, [1967] NSJ No 3 (QL) (SC) (dealing with photographs).

[32]           There is an important distinction between recordings (video or audio) and other forms of real evidence (such as a pistol or an article of clothing found at a crime scene) which supports a test of “substantial” accuracy over the appellants’ preferred test of “not altered”. It will be recalled that “authentication” simply requires that the party tendering evidence establish (to the requisite standard of proof, which we discuss below) the claim(s) made about it. What authentication requires in any given instance therefore depends upon the claim(s) which the tendering party is making about the evidence. In the case of most real evidence, the claim is that the evidence is something – the pistol is a murder weapon, or the article of clothing is the victim’s shirt. Chain of custody, and absence of alteration will be important to establish in such cases. In the case of recordings, however, the claim will typically be not that it is something, but that it accurately represents something (a particular event). What matters with a recording, then, is not whether it was altered, but rather the degree of accuracy of its representation. So long as there is other evidence which satisfies the trier of fact of the requisite degree of accuracy, no evidence regarding the presence or absence of any change or alteration is necessary to sustain a finding of authentication.

[33]           Put simply, the mere fact of alteration does not automatically render a video recording inadmissible. It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show. All this is, of course, subject to the standard framework for admission, under which a video recording may be excluded on the basis of irrelevance (Penney), where its prejudicial effect exceeds its probative value (R v Veinot, 2011 NSCA 120 at paras 24-27, 311 NSR (2d) 267), or where there is reasonable doubt that the video identifying the accused is a fabrication.

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.