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General Principles

An admission is evidence presented in trial that consists of either a written or oral statement by the Accused admitting some fact made to a witness. This form of admission is a categorical exception to the hearsay rule of inadmissibility. This applies regardless of whether the admission is exculpatory or inculpatory. The main determiner for admissibility is the discretionary balance of probative value and prejudicial effect.[1]

An admission can be made by actions/conduct rather than simply words.[2] The most often seen example is post-offence conduct such as flight or demeanour at arrest.

  1. R v Hodgson, 1998 CanLII 798 (SCC), [1998] 2 SCR 449, per Cory J
    R v Wells, 1998 CanLII 799 (SCC), [1998] 2 SCR 517, per Cory J
  2. eg. R v Hubin, 1927 CanLII 79 (SCC), [1927] SCR 442, per Aniglin CJ

Third Party Admissions

See also: Traditional Exceptions to Hearsay#Adoptive Admissions and Confessions

A third party admission is evidence given from a non-accused witness with respect to a statement given by the accused at some time in the past. The two main forms of third party admissions are adoptive admissions and vicarious admissions.

An adoptive admission is where the admission arises by the Accused's adoption of a 3rd party's statement. The adoption can be made by words, actions, or demeanour. The adoption is only to the extent the Accused accepts the statement by words, conduct or demeanour.[1]

This admission can apply where the accused makes a statement, action or is silent in the face of a criminal accusation. The weight depends on whether the accused had a duty to speak and was expected to say something. [2]

This does not apply where the accused fails to reply to accusations under caution.[3]

A vicarious admission is one where an admission of the Accused is relayed by a third party. The admission can be by words, actions, or demeanour. This form of admission is often taken from a co-conspirator of the Accused.

Statements that were made in the presence of the accused are not admissible unless the accused assents to them by words, conduct, action or demeanour.[4]

  1. R v Emele (1940), 1940 CanLII 203 (SK CA), 74 CCC 76 (SKCA), per MacKenzie JA
  2. R v Sigmund (1968), 1 CCC 92 (BCCA), 1967 CanLII 686 (BC CA), per Davey JA
  3. R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 SCR 1293, per Cory J
    R v Cripps [1968] 3 CCC 323 (BCCA), 1968 CanLII 814 (BC CA), per Davey CJ
  4. R v Thomas, 2013 ONSC 1640 (CanLII), per O'Marra J, at para 11
    R v Taggert [1999] OJ No 1273 (O.C.A.)(*no CanLII links) , at para 8
    R v Pleich, (1980) 55 CCC (2d) 13 (O.C.A.), 1980 CanLII 2852 (ON CA), per Morden JA, at para 68
    R v Dubois, (1986) 27 CCC (3d) 325 (O.C.A.), 1986 CanLII 4683 (ON CA), per Morden JA, at para 47

Admissions to Undercover

An undercover officer posing as an inmate within a prison may only listen and not actively seek a confession.[1]

An undercover officer who is in contact with an accused out of custody, such as during a "Mr. Big" operation, may listen and activity attempt to elicit confessions.[2]

  1. R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151, per McLachlin J
    R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595, per Iacobucci J
  2. R v Grandinetti, 2005 SCC 5 (CanLII), [2005] 1 SCR 27, per Abella J

Admissions During "Mr. Big" Operations

Admission by Co-accused

It is generally well established that an accused's statement is admissible only against the person making making it. It is not admissible against a co-accused.[1]

It is for this reason that co-accused can have separate trials.[2]

  1. R v Ward, 2011 NSCA 78 (CanLII), per Saunders JA, at paras 28 to 40 R v BC,
    McFall v The Queen, [1980] 1 SCR 321, 1979 CanLII 176, per Ritchie J
    R v Starr, 2000 SCC 40 (CanLII), per Iacobucci J, at para 217
    R v Kelawon, 2006 SCC 96 (CanLII), per Charron J, at para 96
  2. Guimond v The Queen, [1979] 1 SCR 960, 1979 CanLII 204, per Ritchie J

Guilty Plea of Co-Accused

A guilty plea of a co-accused or uncharged accomplice will usually no relevancy to the issue of guilt of the accused.[1] The prejudicial effect of the evidence will often outweigh any probative value of such evidence.[2]However, where it is permissible, such as for the purpose of credibility assessment, it should usually be accompanied by instructions warning of its use.[3]

As Relevant to Credibility of Co-Accused

Where a co-accused testifies, the Crown may be able to tender evidence of the guilty plea as relevant the credibility of that witness.[4]

Jury Instructions

Where evidence of an accomplice's guilty plea is tendered, there will ordinarily be a caution to the jury on its use. However, the failure to do so is not fatal absent prejudice to the accused.[5]

  1. R v Berry, 1957 CanLII 115 (ON CA), [1957] O.R. 249 (C.A.), per Laidlaw JA
    R v Buxbaum (1989), 33 O.A.C. 1 (C.A.), leave to SCC refused
    R v Lessard (1979), 50 CCC (2d) 175 (Que. C.A.), 1979 CanLII 2901 (QC CA), per Rinfret CJ
    R v Caesar, 2016 ONCA 599 (CanLII), 350 O.A.C. 352, per Blair JA
  2. R v Berry, 2017 ONCA 17 (CanLII), per Blair JA, at para 35
  3. Berry, ibid., at para 36
  4. R v Granados-Arana, 2018 ONCA 826 (CanLII), per curiam
  5. R v MacGregor (1981), 1981 CanLII 3351 (ON CA), 64 CCC (2d) 353, per Martin JA, at p. 358
    R v Simpson, 1988 CanLII 89 (SCC), [1988] 1 SCR 3, per McIntyre J, at p. 19
    Granados-Arana, supra, at para 7

See Also