Preuve de propriété

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• < Droit pénal
• < Preuve des éléments

Principes généraux

Under s. 380, "property" does not relate to ownership. It concerns the lawful possession of some thing which is transferred by some deceitful act.

Certificate of Ownership Under Section 491.2

Photographic evidence

491.2 (1) Before any property that would otherwise be required to be produced for the purposes of a preliminary inquiry, trial or other proceeding in respect of an offence under section 334 [vol], 344 [vol qualifié], 348 [ introduction par effraction ], 354 [possession de biens volés' '], 355.2 [trafic de biens obtenus criminellement], 355.4 [[ [Trafic de biens criminellement obtenus (infraction), 362 [false pretence or false statement] or 380 [fraude] is returned or ordered to be returned, forfeited or otherwise dealt with under section 489.1 [restitution de biens ou rapport par un agent de la paix] or 490 [détention, accès et disposition des choses saisies] or is otherwise returned, a peace officer or any person under the direction of a peace officer may take and retain a photograph of the property.

Certified photograph admissible in evidence

(2) Every photograph of property taken under subsection (1) [preuve photographique], accompanied by a certificate of a person containing the statements referred to in subsection (3) [déclarations faites dans le certificat], shall be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the property would have had if it had been proved in the ordinary way.

Statements made in certificate

(3) For the purposes of subsection (2) [photographie certifiée admissible en preuve], a certificate of a person stating that

(a) the person took the photograph under the authority of subsection (1) [preuve photographique],

(b) the person is a peace officer or took the photograph under the direction of a peace officer, and

(c) the photograph is a true photograph

shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the certificate without proof of the signature of the person appearing to have signed the certificate.

Secondary evidence of peace officer

(4) An affidavit or solemn declaration of a peace officer or other person stating that the person has seized property and detained it or caused it to be detained from the time that person took possession of the property until a photograph of the property was taken under subsection (1) [preuve photographique] and that the property was not altered in any manner before the photograph was taken shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature or official character of the person appearing to have signed the affidavit or solemn declaration.

Notice of intention to produce certified photograph

(5) Unless the court orders otherwise, no photograph, certificate, affidavit or solemn declaration shall be received in evidence at a trial or other proceeding pursuant to subsection (2) [photographie certifiée admissible en preuve], (3) [déclarations faites dans le certificat] or (4) [preuve secondaire d'un agent de la paix] unless the prosecutor has, before the trial or other proceeding, given to the accused a copy thereof and reasonable notice of intention to produce it in evidence.

Attendance for examination

(6) Notwithstanding subsection (3) [déclarations faites dans le certificat] or (4) [preuve secondaire d'un agent de la paix], the court may require the person who appears to have signed a certificate, an affidavit or a solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the facts contained in the certificate, affidavit or solemn declaration.

Production of property in court

(7) A court may order any property seized and returned pursuant to section 489.1 [restitution de biens ou rapport par un agent de la paix] or 490 [détention, accès et disposition des choses saisies] to be produced in court or made available for examination by all parties to a proceeding at a reasonable time and place, notwithstanding that a photograph of the property has been received in evidence pursuant to subsection (2) [photographie certifiée admissible en preuve], where the court is satisfied that the interests of justice so require and that it is possible and practicable to do so in the circumstances.

Definition of photograph

(8) In this section, photograph includes a still photograph, a photographic film or plate, a microphotographic film, a photostatic negative, an X-ray film, a motion picture and a videotape.
R.S., 1985, c. 23 (4th Supp.), s. 2; 1992, c. 1, s. 58; 2010, c. 14, s. 10.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Notice

The Crown must give "reasonable notice of intention to produce it in evidence" before any photos can be admitted into evidence "unless the court orders otherwise". (491.2 (5))

Misc

The Court may require the attendance of the officers who gave the statements for examination. (491.2(6)) The court may also require the returned property be re-acquired to be brought to court for examination. (491.2(7))

Eligible Offences

Any property that is required for a preliminary inquiry or trial for an offence under section 334, 344, 348, 354, 355.2, 355.4, 362 or 380 that has been returned, may by photographed by police.

Those offences consist of:

• Theft (334);
• Robbery (344);
• Break and Enter (348);
• Possession of Stolen Property (354);
• Trafficking in Stolen Property (355.2 and 355.4);
• Obtaining Property by False Pretenses (364); and
• Fraud (380).

Photographs

Photograph "includes a still photograph, a photographic film or plate, a microphotographic film, a photostatic negative, and X-ray film, a motion picture and a videotape." (491.2 (8))

Photographs were taken under s. 491.2 that are accompanied by a certificate containing the statements are admissible with the same "probative force" as the property was proved the ordinary way absence evidence to the contrary. (491.2(2))

Elements of Certificate

Under s. 491.2(3), the certificate should contain a statement outlining that:

1. the person took the photograph under the authority of 491.2(1)
2. the person is a peace officer or took the photograph under the direction of a peace officer, and
3. the photograph is a true photograph

There must also be an affidavit or solemn declaration that "the property was not altered in any manner before the photograph". (491.2(4))

Affidavit of Ownership

Under s. 657.1, evidence regarding the property, such as value and ownership, can be given by way of affidavit or solemn affirmation from the lawful owner absent evidence to the contrary.

Proof of ownership and value of property

657.1 (1) In any proceedings, an affidavit or a solemn declaration of a person who claims to be the lawful owner of, or the person lawfully entitled to possession of, property that was the subject-matter of the offence, or any other person who has specialized knowledge of the property or of that type of property, containing the statements referred to in subsection (2) [preuve de propriété et de valeur du bien – contenu de l'affidavit], shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature of the person appearing to have signed the affidavit or solemn declaration.

Statements to be made

(2) For the purposes of subsection (1) [preuve de propriété et de valeur du bien], a person shall state in an affidavit or a solemn declaration

(a) that the person is the lawful owner of, or is lawfully entitled to possession of, the property, or otherwise has specialized knowledge of the property or of property of the same type as that property;

(b) the value of the property;

(c) in the case of a person who is the lawful owner of or is lawfully entitled to possession of the property, that the person has been deprived of the property by fraudulent means or otherwise without the lawful consent of the person;

(c.1) in the case of proceedings in respect of an offence under section 342 [vol et falsification de carte de crédit], that the credit card had been revoked or cancelled, is a false document within the meaning of section 321 [Infractions contre les droits de propriété – définitions] or that no credit card that meets the exact description of that credit card was ever issued; and

(d) any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (a) to (c.1) .

Notice of intention to produce affidavit or solemn declaration

(3) Unless the court orders otherwise, no affidavit or solemn declaration shall be received in evidence pursuant to subsection (1) [preuve de propriété et de valeur du bien] unless the prosecutor has, before the trial or other proceeding, given to the accused a copy of the affidavit or solemn declaration and reasonable notice of intention to produce it in evidence.

Attendance for examination

(4) Notwithstanding subsection (1) [preuve de propriété et de valeur du bien], the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration.
R.S., 1985, c. 23 (4th Supp.), s. 3; 1994, c. 44, s. 63; 1997, c. 18, s. 79.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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The affidavit must state:

1. that the person is the lawful owner of, or is lawfully entitled to possession of, the property, or otherwise has specialized knowledge of the property or of property of the same type as that property;
2. the value of the property;
3. in the case of a person who is the lawful owner of or is lawfully entitled to possession of the property, that the person has been deprived of the property by fraudulent means or otherwise without the lawful consent of the person;
4. in the case of proceedings in respect of an offence under section 342, that the credit card had been revoked or cancelled, is a false document within the meaning of section 321 or that no credit card that meets the exact description of that credit card was ever issued; and
5. any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (a) to (c.1).

When relating to theft of property it can be important for the affidavit to include details as to when, where and in what circumstance the items were stolen.

Notice

Parties must be given "reasonable notice of intention to produce" this evidence by affidavit.(657.1(3)) The court may still order that the affiant attend court to be examined.

See also rules of civil procedure in proving exhibits.

Ownership

588. The real and personal property of which a person has, by law, the management, control or custody shall, for the purposes of an indictment or proceeding against any other person for an offence committed on or in respect of the property, be deemed to be the property of the person who has the management, control or custody of it.
R.S., c. C-34, s. 517.

– CCC (CanLII), (Jus.)

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Proof of ownership in a charge of possession of stolen property only requires the Crown to prove that ownership exists in some person "other than the accused."

Voir également

• Theft (Offence)
• Real Evidence