Un exemple de volonté réaffirmée d’utiliser son véhicule / risque réaliste

Lyna c. R., 2014 QCCA 1650

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[13]        La preuve présentée en première instance a démontré, à partir des agissements de l’appelant, l'existence d'un risque réaliste de danger de mettre son véhicule en marche et ainsi le rendre dangereux pour autrui[6].

[14]        L’appelant a expliqué, lors de son procès, avoir demandé l'aide d'un passant pour dégager son véhicule du fossé en vue de pouvoir ensuite reprendre la route. Cette tentative ayant échoué, il a demandé à la même personne de faire venir une dépanneuse toujours dans l’intention de quitter les lieux au volant de son véhicule. Ces différentes manifestations constituent la démonstration d’une volonté réaffirmée d’utiliser son véhicule, ce que l’appelant a reconnu à plusieurs reprises lors de son procès.

La preuve d’expert est essentielle pour soutenir une défense d’automatisme sans aliénation mentale

Zamiara c. R., 2020 QCCA 841

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[75]        À titre préliminaire, je rappelle que la défense d’automatisme sans aliénation mentale (c’est ce dont il s’agit ici) est reconnue par notre droit[48], mais qu’elle est particulièrement difficile à établir vu la nature de la double charge de présentation et de persuasion incombant à celui qui l’allègue[49].

[76]        Une preuve d’expert est à cet égard essentielle[50].

Comment apprécier la valeur probante d'une expertise en psychiatrie

R. v. Neve, 1999 ABCA 206

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[189]      What considerations potentially impact on a court’s weighing of psychiatric evidence? These include:

 

1. the qualifications and practice of the psychiatrist;

 

2. the opportunity the psychiatrist had to assess the person, including: length of personal contact, place of contact, role with ongoing treatment, and involvement with the institution in which the person is a patient or prisoner;

 

3. the unique features of the doctor-patient relationship, such as hostility or fear by the patient (or the psychiatrist) arising from the personalities, the circumstances of the contact, and the role of the psychiatrist;

 

4. specifically and precisely what documents the psychiatrist had available and reviewed, for example, from earlier court proceedings, institutional records, other medical consultations, or treatment;

5. the nature and scope of consultations (this could include: personal contact with third parties, information from other health care professionals, prison authorities, police, lawyers, family);

 

6. specifically and precisely what the psychiatrist relies on in coming to an opinion; and

 

7. the strengths and weaknesses of the information and material that is relied on.

 

[190]      There is one dimension to this evaluative task which merits comment and that is the nature and extent of the relationship between the doctor and the offender. It is important to recognize that psychiatrists, like any other doctors called as experts, can be expected to come to their opinions about a person after personal contact, performing some tests, reviewing documents and consulting with others. The psychiatrists and the offender have a type of doctor-patient relationship. The psychiatrist is, after all, a physician and the offender is, in many cases, suffering from a mental illness or behavioural disorder and is being assessed, as a result, as a possible danger to society. Indeed, the psychiatrist may actually be a doctor who is treating the offender as a patient. The court must be interested primarily in each psychiatrist’s assessment of the person under scrutiny. That is not to say that secondary sources, documents, discussions with third parties are not valid and important for the psychiatrist to review. However, taking the offender out of the psychiatrist-patient relationship may leave the psychiatrist in the role of interpreter only.

 

[191]      With respect to an expert’s reliance on secondary sources of information, whether documents or consultation with third parties, this has always been the subject of critical scrutiny by courts. Given the uniqueness of the dangerous offender proceedings and the special and mandated role of expert psychiatric evidence, such scrutiny is very important. Because weaknesses can result in an opinion which should be given little or no weight, the sentencing judge must be alive to the areas of possible weakness. Such weaknesses may include: incomplete records; lack of reliability such as might occur where a document is created for one purpose but used for another (e.g., a prison incident report being used to predict future behaviour); lack of trustworthiness such as where the subject of an interview is lying or describing fantasies as if they were realities (including in diaries); and lack of objectivity or first-hand knowledge by the author of a report. For the court to accept an expert opinion without scrutinizing and assessing its foundation is, effectively, to put that expert in the role of judge.

 

[192]      Another area of potential weakness arises from the information provided by the offender. The psychiatrists must, when coming to an opinion, deal with the possibility that the patient may be lying or fantasizing. Where the sentencing judge has heard the testimony of the offender, he or she must make a finding of credibility. Thus, in effect, both psychiatrist and judge have the responsibility of determining whether the offender is talking about what actually happened, or only what might have happened, or indeed, what never happened. The judge has the further responsibility of weighing the opinion evidence in light of such a determination.

 

[193]      Another reality which should be recognized is that psychiatrists spend far more time dealing with patients in treatment than in dangerous offender proceedings. And usually, the psychiatrists are not lawyers. Hence their “diagnosis” for treatment purposes may have different parameters and meaning to them than an assessment for the purposes of a dangerous offender hearing. Given the critical function assigned to psychiatrists by the Code, it is necessary therefore that the court be satisfied that a psychiatrist testifying in a dangerous offender hearing understand the significance of the expert opinion and the determinations to which it is directed.

 

[196]      In summary, there was a wide range and pattern of contact time between Neve and the various experts. Dr. Brooks had by far the greatest contact time, having been in touch with Neve from the time she was 15 years of age until the hearing – a period of six years. It was he whom Neve phoned when she needed help. He was the psychiatrist who treated her and he was her choice as designated psychiatrist for the dangerous offender hearing. Dr. Singh’s contact was also significant. By contrast, the contact between Neve and all of the other experts was not of long duration and seemed to be primarily of a consultative and forensic nature. The majority of the contacts with, for example, Drs. Flor-Henry and Cadsky, would seem to have been in preparation for the dangerous offender hearing.

 

[197]      We are not saying that the evidence of those experts who see an offender the longest, whether in terms of hours or over time, should be accepted or given more weight than the evidence of other experts. We mention this to flag the fact that it is a consideration which goes onto the scale in evaluating conflicting psychiatric evidence. That said, an offender cannot tip the scale in favour of his or her psychiatrist by refusing to cooperate with the Crown expert’s assessment. This too would be a factor for the sentencing judge to take into account. [We recognize that to some extent this concern has been obviated by the new dangerous offender legislation which contemplates a court-ordered assessment: s.752.1. However, since this does not preclude the calling of expert evidence by either side, the central point remains.]

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.