L'opportunité exclusive implique que seul l'accusé a pu commettre le crime, à l'exclusion de toute autre personne

Dion c. R., 2010 QCCA 941

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[54]           Ce principe voulant que l'opportunité exclusive puisse permettre de conclure à la culpabilité sans qu'il soit nécessaire de présenter d'autres éléments de preuve avait déjà été énoncé par la Cour suprême dans l'arrêt Imrich c. R., 1977 CanLII 27 (CSC), [1978] 1 R.C.S. 622, à la page 628.

[56]           Il est utile de rappeler que l'opportunité exclusive impose à la poursuite de démontrer que seul l'accusé a pu commettre le crime, à l'exclusion de toute autre personne.

[57]           L'auteur E.G. Ewaschuk dans son manuel Criminal Pleadings & Practice in Canada, 2^e éd., vol. 2, Aurora, Canada Law Book, p. 16-472 résume ainsi l'état du droit sur cette question :

Where there is no other evidence against the accused, the Crown must prove that the accused had the "exclusive opportunity" to have committed the crime charged. […] Where there is "other evidence", e.g. , motive, the Crown need not prove that the accused had opportunity to the exclusion of all others to have committed the crime charged, […] though proof of "non-exclusive opportunity and motive" without more may result in an unreasonable guilty verdict.

[Références omises.]

La preuve de l'opportunité exclusive peut suffire en soi pour conclure à la culpabilité d'un accusé

R. v. Doodnaught, 2017 ONCA 781

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[70]      Evidence of mere opportunity to commit an offence is one thing, evidence of exclusive opportunity to commit an offence quite another. Indeed, evidence of exclusive opportunity, on its own, may be sufficient to prove the guilt of an accused beyond a reasonable doubt: See, R. v. Imrich, 1977 CanLII 27 (SCC), [1978] 1 S.C.R. 622, affirming (1974), 1974 CanLII 42 (ON CA), 21 C.C.C. (2d) 99 (Ont. C.A.).

Comment imputer la déclaration d'un tiers à l'encontre de l'accusé

R v Cudney, 2023 ABCA 279

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[130]      The general principles of adoptive admissions are set out in David Watt, Manual of Criminal Evidence (Toronto: Thomson Reuters Canada, 2022) at 36.04:

An adoptive admission is a statement made by a third party in the presence of and adopted by D. Adoption occurs only to the extent that D assents to the truth of the statement expressly or impliedly. Assent may be inferred from D's

 

i.     words;

ii.     actions;

iii.     conduct; or

iv.     demeanour.

 

Assent may also be inferred from D's silence, or an equivocal or evasive denial where the circumstances give rise to a reasonable expectation of reply.

 

The respective roles of judge and jury in adoptive admissions are controversial. Consistent with basic principle, where an issue about adoptive admissions arises, the trial judge should first determine whether there is any evidence of assent or adoption by D, before permitting the evidence to be adduced before the jury. Where there is evidence on which the jury could find adoption, the factual determination should be left to them with appropriate instruction.

 

[131]      This court recently considered the sufficiency of evidence of an accused adopting a statement by silence in R v SKM, 2021 ABCA 246 at para 39 where the court cited with approval R v Scott, 2013 MBCA 7 at paras 19 and 21:

. . . [M]ere silence, even where it would be reasonable to expect a denial in the face of an accusation, will not constitute an admission. There must be something more in the circumstances than the mere silence of the accused and an expectation that he or she would have said something…  [W]hen the accused’s own silence is the only evidence that the accusatory statement was adopted, the statement is to be excluded because its prejudicial effect outweighs its probative value.

. . .

In summary, the authorities make it clear that great caution should be exercised when considering a question of adopted or implied admission by silence as there may be other reasons for an accused’s silence. A statement made in the accused’s presence is not evidence of the facts contained therein, even if it is reasonable to expect an explanation or denial, unless the accused accepts or adopts the statement, either expressly or by inference, as his or her own.

[132]      In SKM, the appellant was charged with a historical sexual assault of his niece. The impugned evidence was the evidence of the complainant’s husband. The husband testified that he made two phone calls to the appellant, both while belligerent and intoxicated. In the first call, the husband stated that he was intoxicated when he demanded of the appellant - “what did you do to my wife . .”; the appellant replied “. . . I’m sure your wife would have told you everything I did to her by now”. In a second phone call to the appellant, the husband testified that after forming the belief the appellant’s wife was listening in on the phone call, he asked her “did you know that your husband’s a pedophile, a child rapist”, to which no response was forthcoming from the appellant. This court held that it was not reasonable in the circumstances of being faced with a name-calling belligerent, intoxicated caller that non-responsiveness amounted to an admission.

[133]      An example where a statement by one co-accused was found to be an adoptive admission of the other co-accused is in R v Millard, 2023 ONCA 426. The court described the rule this way at para 91:

The theory of the adopted admissions rule is simple. If an accused person “adopts” as true a statement made by a co‑accused person, that statement may be used as evidence against them as well, since they have adopted that statement as their own.  An accused person can adopt a statement made by their co-accused if they “expressly adopt the statement or where, by [their] words, action, conduct or demeanour [they] may be taken to have inferentially adopted it” as true: R. v. Dubois (1986), 1986 CanLII 4683 (ON CA), 27 C.C.C. (3d) 325 (Ont. C.A.), at p. 341; Chapdelaine v. The King, 1934 CanLII 46 (SCC), [1935] S.C.R. 53, at pp. 55-56, citing R. v. Christie, [1914] A.C. 545 (H.L.), at p. 554-55; R. v. Gordon, 2022 ONCA 799, at para. 49.

 

[134]      The court in Millard, in applying the rule, found that a jury is entitled to draw reasonable inferences from all of the circumstances, even in the absence of direct evidence, to find that a co-accused has adopted a statement of the other co-accused as true. Obviously, the same rule applies to the trial judge in respect of their determination of admissibility.

[135]      We do not accede to the appellant’s argument. The evidentiary context before the trial judge included the following:

•         Mr. Cudney or Mr. Brady or both men told Chad they were coming to the acreage, and Mr. Cudney told Chad to put out tarps.

•         Mr. Brady was not a friend of Chad’s; rather, Mr. Cudney was the friend and the one who had been to the acreage in the past.

•         Mr. Cudney and Mr. Brady arrived at the acreage to dispose of Mr. Young’s body.

•         Mr. Cudney was the one who “barked orders”.

•         Mr. Cudney was described as “nervous” while Mr. Brady was described as “freaked right out”.

[136]      These pieces of evidence taken together with Mr. Brady saying in Mr. Cudney’s presence the appellant had shot Mr. Young, and no denial by Mr. Cudney, provide the evidentiary foundation for the trial judge to leave to the jury that they might find an adoption of the statement by Mr. Cudney.

[137]      A trial judge’s gatekeeping role and obligation to provide jury with proper instructions was set out in SKM at para 44 citing with approval from R v Robinson, 2014 ONCA 63 at para 56 citing R v Warner (1994), 1994 CanLII 842 (ON CA), 94 CCC (3d) 540, 21 OR (2d) 136 (CA):

In Warner, Griffiths J.A. went on to hold that a trial judge should make a preliminary determination that some evidence of adoption exists before leaving the issue with the jury. Further, if the issue is left with the jury, the trial judge should instruct them that they must consider all the circumstances under which the statement was made before making a finding of adoption, stating, at pp. 549-550:

 

Whether or not the silence of the accused constitutes an implied admission, depends on whether, in all of the circumstances, such an expectation [of a reply] is reasonable. The trial judge should determine in advance whether there is sufficient evidence from which a jury might reasonably find that the conduct amounted to an acknowledgement of responsibility.

                                                . . .

Where the trial judge concludes that the evidence should go before the jury, he is still obliged to instruct the jury that it is for them to decide whether the accused, by his conduct, adopted the statements made in his presence and only to the extent that they were adopted should the jury accept them as true. In this respect, the jury must consider all of the circumstances under which the statement was made.

 

See also Millard at para 92.

L'authenticité d'un dossier médical déposé sans objection fait preuve prima facie de son contenu

R. v. Nield, 2019 BCCA 27

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[79]        In my view, once a witness had attested to the authenticity of the hospital record and it was admitted into evidence on the voir dire without objection, the judge should have admitted relevant portions of the record as prima facie proof of the facts recorded therein. Those facts included observations made by medical staff regarding the patient’s behaviour and the type and quantity of drugs administered to him.

Comment les policiers doivent se gouverner face à un mandat de perquisition comportant une balise temporelle

R. v. Neill, 2023 ONCA 765

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[11]      In R. v. Branton (2001), 2001 CanLII 8535 (ON CA), 154 C.C.C. (3d) 139 (C.A.), at para. 35, this court held that language on a search warrant form referring to the “suspected commission or intended commission of an offence” exceeded the statutory power of search authorized by s. 487 of the Criminal Code, and rendered the search warrant invalid on its face.

[12]      Before the trial judge, the Crown conceded that, in light of Branton, the form used was in error. However, the Crown argued that the Information to Obtain (the “ITO”) clearly specified in Appendix A that the affiant “had reasonable grounds that the items in Appendix A [the Blackberry] will be found at [the police property bureau]”, thus, specifying the constitutional minimum standard.

[13]      The trial judge found that the police conduct in using the outdated search warrant Form 5 was “careless”. However, he found that, on the record before him, the error was harmless because there was no risk that the overbroad wording on the Form 5 allowed for an overbroad search. The officer who was the informant for the ITO, and who attended pursuant to the warrant to seize the Blackberry from the property bureau and transfer it to the Tech Crimes Unit, was the lead officer on the investigation and one of the officers involved in the initial seizure of the Blackberry from the appellant. His investigation was focused on public posting of images of child pornography. The trial judge found that there was “no chance that [this officer] would have been misled by the error in the form.” Relying on the decision of Fairburn J. (as she then was) in R. v. Nguyen, 2017 ONSC 1341, at paras. 115-16, the trial judge applied the principle of severance and found that the use of the Form 5 with outdated language did not render the warrant invalid.

[14]      The appellant argues that the doctrine of severance should not have been applied; rather, a s. 8 breach should have been found and questions about whether the overbroad language actually had any impact or would have caused confusion about the scope of the search authorized should have been considered in the s. 24(2) analysis.

[15]      In some cases, trial courts have applied the doctrine of severance in circumstances involving a Branton error; in other cases, trial judges have declined to sever the offending portion of a warrant: Nguyen, at paras. 115-16; R. v. Nurse and Plummer, 2014 ONSC 1779, at paras 35-39 (affirmed on other grounds without reference to this issue, 2019 ONCA 260, 145 O.R. (3d) 241); R. v. N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.), at paras. 333-36; R. v. Kramshoj, 2017 ONSC 2951; R. v. Persaud, 2016 ONSC 8110. Whether or not severance is an appropriate remedy is a fact-specific analysis.

[16]      In the circumstances of this case, we see no error in the trial judge’s conclusion that the language of “suspected commission or intended commission of an offence” in the Form 5 was severable from the balance of the search warrant and that there was no risk of an overbroad search. In addition to the reasons given by the trial judge, we note Appendix B to the search warrant particularized the offences for which it authorized the seizure and forensic analysis of the Blackberry to completed offences of possession of and making available child pornography in the past. This removed any risk that an officer acting under the warrant would search for evidence of suspected or intended offences.

[17]      The second argument raised by the appellant in relation to the search warrant is that the police failed to comply with the time period set out in the search warrant. The search warrant authorized seizure of the Blackberry from the police property bureau “between 6:00 a.m. and 8:59 p.m. on April 23, 2015”. The police attended in that time frame to seize the Blackberry from the property bureau. However, the analysis of data from the Blackberry was not completed until May 4, 2015. As noted above, Appendix A, which formed part of the search warrant, included terms and conditions specifying that the warrant authorized analysis of the Blackberry for data involving the listed offences, and included direction as to the types of data. However, there was no time frame specified for the forensic analysis of the Blackberry. On appeal, the appellant maintains the argument made before the trial judge that the warrant should be read as requiring that the forensic analysis of the Blackberry be completed between 6:00 a.m. and 8:59 p.m. on April 23, 2015.

[18]      The trial judge found that there was no s. 8 breach because the terms of the search warrant provided for a time frame for the seizure of the Blackberry from the property bureau (which the police complied with) but did not specify a time frame for the forensic analysis of the Blackberry. Relying on the decision of Paciocco J. (as he then was) in R. v. Barwell, [2013] O.J. No. 3743 (Ont. C.J.), the trial judge found that where a warrant specifies a time frame for seizure of an electronic device from a police locker or property bureau, but does not specify a time frame for the forensic analysis, the timing of the forensic analysis is governed by ss. 489.1 and 490 of the Criminal Code (reports to a justice and detention of things seized by police). The trial judge found that police complied with the time specified in the warrant to seize the Blackberry from the police property bureau. He further found that the forensic analysis was completed while the detention order made for the Blackberry after it was first seized was still in force. As a result, he found no breach of s. 8 on this basis.

[19]      We see no error in the conclusions of the trial judge that the police complied with the terms of the warrant, which only included a time for when the police were to seize the Blackberry from the property bureau; that the warrant did not specify a time frame for the completion of the forensic analysis; and that the Blackberry was still subject to the detention order after the initial report to a justice at the time the forensic analysis was completed. As with the use of the outdated Form 5, the trial judge’s conclusions were fact-specific findings, grounded in the specific wording of the search warrant in this case. The decisions of R. v. D’Souza, 2016 ONSC 5855, at paras. 162-90, and R. v. Little, 2009 CanLII 41212 (Ont. S.C.), at paras. 154-61, relied on by the appellant, are distinguishable from this case. In each of those cases, based on the specific wording of the warrant – which was different than in this case – the trial judge found that the time frame specified in the warrant applied to the forensic analysis process. The appellant did not argue either before the trial judge or in this court that the absence from the warrant of a specific time frame for the forensic analysis of the Blackberry to be completed violated s. 8 of the Charter.

Comment apprécier la décision policière de ne pas recourir à l'enregsitrement vidéo d'une déclaration extrajudiciaire d'un accusé

R. v. Marshall, 2005 CanLII 30051 (ON CA)

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[98] As noted in Oickle and Moore-McFarlane, the failure to record interrogations does not render them inherently suspect. Rather, a non-recorded interrogation becomes suspect when the following circumstances, which do not exist in this case, are all present: (1) the suspect is in custody; (2) recording facilities are readily available; and (3) the police deliberately interrogate the suspect without giving any thought to making a reliable record. The only custodial interrogation of the appellant took place after his arrest on September 29, 1997. It was completely recorded on videotape. In my view, the finding that the five impugned statements were voluntary was not tainted solely because they were not audio or videotaped, or because some of the attending officers did not testify on the voir dire.

Comment apprécier la possibilité pour un prévenu détenu de quitter la salle d'interrogatoire

R v Saretzky, 2020 ABCA 421

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[46]           The nature of the police conduct – the appellant does not dispute that the officer was polite and respectful throughout. And he agrees he was told he did not have to stay and talk, that he could leave at anytime, but notes that he was then in a locked room in a remand centre.

[47]           That is a significant factor as he had obviously lost his liberty and his movements within the institution were strictly controlled. However, while his incarceration provides important context, it does not answer the relevant question, which is whether the appellant’s freedom to choose to meet and talk with the officer was lost or impaired. In the unique circumstances of this case, the appellant’s refusal to meet with the officer when invited to do so only two months before, and the repeated advice that he need not stay or talk but could return to his cell if and when he wished, overcame any suggestion that his being an inmate denied him the freedom of choice to leave the interview room and return to his cell: see R v Wood, 1992 ABCA 27 at paras 19-20;  R v Heppner, 2019 BCCA 108 at para 68.