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Evidence - Hearsay - Documents in Possession Exception. R v Bridgman
In R v Bridgman (Ont CA, 2017) the Court of Appeal sets out the 'documents-in-possession' exception to the hearsay rule:[66] I now turn to the Crown’s primary argument, that the text messages were admissible under the documents in possession rule and that the trial judge was right to admit them on this basis.
[67] The documents in possession rule is one of long-standing: see Rex v. Smart & Young (1931), 1931 CanLII 170 (ON CA), 55 C.C.C. 310 (Ont. C.A.), at p. 313; R. v. Turlon (1989), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 190; R. v. Ansari, 2015 ONCA 575 (CanLII), 330 C.C.C. (3d) 105, at para. 116; and B.C. Securities Comm. v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3, at p. 33. The rule applies to paper and electronic documents alike: Ansari, at para. 154; and R. v. An, 2015 ONCA 799 (CanLII), at paras. 15, 17.
[68] The rule is designed to permit the admission of documents in two different circumstances for two different purposes.
[69] First, the rule allows for the admission of documents found in personal, constructive or joint possession of an accused as original circumstantial evidence of their contents to establish the accused’s connection to or complicity in the matter to which the documents relate: Ansari, at para. 116. Second, where evidence exists that the accused has recognized, adopted or acted upon the documents found in possession, the documents may be admitted as an exception to the hearsay rule, allowing the trier of fact to consider them for the truth of their contents. As noted in B.C. Securities Comm., at p. 33, “if the party in possession has recognized, adopted or acted on the document an admission of acceptance of its contents as true may be inferred.”
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