Summary of the Rule:

In a widely cited passage, Phipson on Evidence provides one of the best summaries of the Documents in Possession Rule (“DIP”):  

Elements of the DIP:

1. What can you use it for?

 The DIP can be used to authenticate documents,2 and prove their admissibility.
 
 The first branch of the DIP allows a document to be admitted as circumstantial evidence of a person’s knowledge of, complicity in, or state of mind towards its contents.3 Evidence of adoption is not necessary for the first branch of the DIP.

• R v. Black, 2014 BCCA 192 (CanLII): A handwritten note, addressed to “Chrissy” (the trial judge found that this referred to the accused) and containing a “to-do” list of tasks related to a marijuana grow-op, was found in plain view during a police search of a building filled by the grow-op. The day of the search, the accused had been seen exiting the building and manipulating the lock. The BCCA affirmed the trial judge’s admission of the note as circumstantial evidence that the accused was complicit in the grow-op.4
• Dassen Gold Resources v. Royal Bk. (1993), 1993 CanLII 16393 (ABKB): Documents in a bank’s possession were admissible as circumstantial evidence that the bank’s employees had knowledge of the transactions described therein, and had it at or about the documents’ respective dates.5

The second branch of the DIP allows a document to be admitted for the truth of its contents if there is evidence that the person has adopted them. This is a species of the admissions exception to the rule against hearsay.6

2. Limits of the DIP:

A document admitted under either branch of the DIP must still be relevant and not excluded (e.g. by privilege).7 The trial judge still retains his or her residual discretion to exclude it or limit its use.8

The DIP cannot be used to admit documents that are clearly in the nature of expert evidence; it is not a means to bypass the unique evidential rules required for introducing expert evidence.9Canadian Natural Resources Limited v Wood Group Mustang (Canada) Inc. (IMV Projects Inc.), 2018 ABCA 305 (CanLII) leave to appeal refused 2019 CanLII 45277 (SCC): Canadian Natural Resources Limited sued IMV Projects Inc. and others because their emulsion pipeline failed prematurely. IMV sought to admit, for the truth of their contents under the second branch of the DIP, three scientific reports from a subcontractor that had investigated the failure. The trial judge refused this, and the Court of Appeal of Alberta affirmed. The reports were clearly a form of expert evidence; they were technical, and the facts they contained were uninformative without expert opinion explaining their meaning. It would have been inappropriate for the trial judge to interpret the reports’ facts without expert opinion.10

3. How do you prove that a natural person possessed a document?

 Possession for the DIP is a question of fact that can be inferred from the circumstances.11 The court may examine the document to determine whether possession is established.12

The standard for constructive possession in criminal cases is defined in s. 4(3) of the
Criminal Code of Canada:
 

• a person has anything in possession when he has it in his personal possession or knowingly
  1. has it in the actual possession or custody of another person, or
  2. 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; and
• where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.13

4.How do you prove that a corporation possessed a document?

 The mere fact that a document is on a corporation’s premises or in its files is not enough to prove that the corporation possessed the document under the DIP,15 nor is listing the document in an Affidavit of Documents.16

Corporate possession requires proving what I call “authoritative notice”. That is, that the document was brought to the attention of a person having authority to deal with its contents.17 Authoritative notice can be inferred from the circumstances.18

• Ontario v. Rothmans et al., 2011 ONSC 5356 (CanLII) affirmed 2013 ONCA 353 (CanLII) leave to appeal refused 2013 CanLII 83800 (SCC): Ontario sued tobacco manufacturers to recover the costs of health care services for tobacco related diseases. The motion judge admitted numerous documents under the DIP. The motion judge examined the documents in the context of all the admissible evidence, and inferred authoritative notice for any document “authored by a Responsible Official; … addressed to a Responsible Official; … relating to corporate structure, regulatory matters or policy guidelines for the company or its subsidiaries; or … a report of a meeting, visit or conference attended by a Responsible Official or in which a Responsible Official is listed as an attendee.” The ONCA affirmed.19
• Cambie Surgeries Corporation v British Columbia (Attorney General), 2017 BCSC 861 (CanLII): Plaintiffs alleged that excessive healthcare wait times in British Columbia violated their constitutional rights. Certain documents disclosed by the Ministry of Health relating to excessive wait times passed the test of authoritative notice because they were authored by employees of the Ministry with the requisite authority. They were admissible to prove that certain Ministry staff were aware of excessive wait times for certain procedures at certain dates.20
• Ault v. Canada (Attorney General), 2007 CanLII 55359 (ONSC): Former civil servants sued the federal government for failure to disclose issues with their pension plan before they resigned and failure to transfer the plan to their new employer pursuant to a transfer agreement. The plaintiffs sought to admit documents disclosed by the government that were related to events, discussions, deliberations and decisions involving the plaintiffs. All but one was authored by a government employee. These met the test of authoritative notice and were admissible to prove what statements were made to or by the government, what information was provided to whom and at what time, and the government’s state of mind, through its agents, at particular times.21

 

5.What counts as adoption?

 
Adoption requires an express or implied assent to the truth of a statement, which can be done by various means, including words, actions, conduct or demeanor.22

• R. v. Raaman, 2020 ONSC 1673 (CanLII): The accused was charged with holding back taxes on import transactions. The Crown sought to use invoices and emails for the truth of their contents, which was the statement that the accused’s company owed money arising from the transactions described. They were adopted by the accused because they recorded debts due which the accused paid.23
• R. v. Bridgman, 2017 ONCA 940 (CanLII): The accused was charged with possession of prescription medication for the purpose of trafficking. The accused’s phone contained texts asking to come to the accused’s house for “p’s” and outgoing texts agreeing for the sender to come. The Crown adduced evidence that “p’s” is a common street term for Percocet. The incoming texts were admissible for the truth of their contents. They contained an implied assertion that the accused sold Percocet, and the accused had impliedly assented to the truth of this assertion by agreeing for the sender to come to his home.24

The mere act of filing, storing or otherwise preserving a document will almost never be sufficient for adoption.25

• Bukshtynov v. McMaster University, 2019 ONCA 1027 (CanLII): A runner ran into the plaintiff from behind while the plaintiff was running on the McMaster indoor track. The day of the accident, a McMaster secretary who had not witnessed the accident emailed her supervisor and recounted being told by another person that the runner’s coach had instructed him to run into the plaintiff. The plaintiff sought to admit the email under either branch of the DIP. The trial judge refused and the ONCA affirmed. The email was only valuable for the truth of its contents, but there was no evidence that the defendants had adopted it. The supervisor’s only action with regard to the email was to file it.26

 
1 Dassen Gold Resources v. Royal Bk. (1993), 1993 CanLII 16393 (ABKB) at para 11 [Dassen]; Ault v. Canada (Attorney General), 2007 CanLII 55359 (ONSC) at para 11 [Ault]; R. v. Ansari, 2015 ONCA 575 (CanLII) at para 116 [Ansari].
2 Ontario v. Rothmans et al., 2011 ONSC 5356 (CanLII) at para 56 [Rothmans ONSC] affirmed 2013 ONCA 353 (CanLII) [Rothmans ONCA] leave to appeal refused 2013 CanLII 83800 (SCC).

 
3 Dassen, supra note 1 at para 12. Edmonton (City of) v. Lovat Tunnel Equipment Inc., 2000 ABQB 249 (CanLII) at paras 19–28.
4 2014 BCCA 192 (CanLII) at paras 1–2, 35, 40–41.
5 Dassen, supra note 1 at paras 11–12, 21–23.
6 British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 SCR 3 at p. 33;
Bukshtynov v. McMaster University, 2019 ONCA 1027 (CanLII) at para 24 [Bukshtynov].
7 Murphy Oil Company Ltd. v. The Predator Corporation Ltd., 2002 ABQB 403 (CanLII) at para 35.
8 Ansari, supra note 1 at para 160.
9 Canadian Natural Resources Limited v Wood Group Mustang (Canada) Inc. (IMV Projects Inc.), 2018 ABCA 305 (CanLII) leave to appeal refused 2019 CanLII 45277 (SCC), at para 26.

 
10 Ibid at paras 1, 14–28.
11 Cambie Surgeries Corporation v British Columbia (Attorney General), 2017 BCSC 861 (CanLII) at para 28 [Cambie Surgeries].
12 Dassen, supra note 1 at para 15.
13 Criminal Code of Canada, RSC 1985, c C-46 at s. 4(3).
14 Dassen, supra note 1 at para 11.
15 Rothmans ONCA, supra note 2 at para 22; Cambie Surgeries, supra note 11 at para 122.
16 Dassen, supra note 1 at paras 13–14.

 
17 Rothmans ONCA, supra note 2 at para 22; R. v. Raaman, 2020 ONSC 1673 (CanLII) at para 17 [Raaman].
18 Rothmans ONSC, supra note 2 at para 58.
19 Ibid at paras 61, 64–65; Rothmans ONCA, supra note 2 at paras 1–4, 24.
20 Cambie Surgeries, supra note 11 at paras 1–3, 122, 144–147, 152, 181, 192.
21 Ault, supra note 1 at paras 5, 8–9, 11–12.