Adoptive and Implied Admissions

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General Principles

See also: Traditional Exceptions to Hearsay

A categorical exception to the hearsay rule is where the accused adopts a hearsay statement by words, conduct, action or demeanour.[1]

The exception involves two elements:[2]

  1. whether there is “evidence from which the Court could reasonably infer that the accused by their behaviour acknowledged their guilt?” [3]
  2. whether such an inference should be drawn?

The inference should only be drawn where it is a sufficient “foundation” to so as to reasonably infer that the accused intended to accept “the statement as to make it in whole or in part his own”.[4]

A speculative interference based on ambiguous conduct is not sufficient to fit the exception. [5]

A foundation requires at a minimum that:[6]:

  1. the statement must have been made in the accused’s presence, in circumstances such that the accused would be expected to respond;
  2. the accused’s failure to respond could reasonably lead to the inference that, by his silence, the accused adopted the statement; and
  3. the probative value of the evidence outweighs its prejudicial effect.

The mere presence of the accused at the time of the statement is not sufficient to prove an adoption of the statement.[7]

Jury Instructions

Instructions to the jury on the issue of whether the accused agreed to the statement should include informing the jury the following:[8]

  1. 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;
  2. consider all of the circumstances under which the statement was made
  3. “if in their view the accused did not assent [...] to the correctness of the statements made in his presence, these statements would have no evidentiary value [...] and should be entirely disregarded”
  1. R v Stein, 1928 CanLII 67 (SCC), [1928] SCR 553, per Anglin CJ at 558 (“It is only when the accused by "word or conduct, action or demeanour" has accepted what they contain, and to the extent that he does so, that statements made by other persons in his presence have any evidentiary value …”)
    see also Chapdelaine v The King, 1934 CanLII 46 (SCC), [1935] SCR 53
    R v Scott, 2013 MBCA 7 (CanLII), per Chartier JA - comprehensive review of law
  2. R v Dimetro (1945), 85 CCC 135, 1945 CanLII 435 (ON CA), per Laidlaw JA, at para 4 (Ont CA)
  3. See also R v Warner, 1994 CanLII 842 (ON CA), (1994), 21 O.R. (3d) 136, per Griffiths JA at 144-145 (OR)
  4. R v Harrison, [1946] 3 DLR 690, 62 BCR 420, [h 1945 CanLII 314] (BC CA), per Robertson JA at 430 (BCCA)
  5. R v Briscoe, 2012 ABQB 158 (CanLII), per Yamauchi J, a nod in response to an utterance of “I helped with [a murder]” appealed at 2015 ABCA 2 (CanLII) on other grounds
  6. R v Tanasichuk, 2007 NBCA 76 (CanLII), per Richard JA, at para 110
  7. R v Dubois, (1986), 27 CCC (3d) 325, 1986 CanLII 4683 (ON CA), per Morden JA, at 341-342 (Ont CA)
  8. Tanasichuk, supra


The adoption of out-of-court statements by a witness is most commonly seen during the impeachment process during cross-examination.[1] It is also available when dealing with evidence of prior identification.[2]

Where the witness adopts a prior statement as true then the statement will be incorporated into the witness's evidence at trial.[3]

When "a witness adopts a prior statement as true, the statement becomes part of that witness's evidence at trial and is admissible for its truth" The witness must be able to “attest to the accuracy of the statement based on their present memory of the facts referred to in that statement" The witness must acknowledge that he made the prior statement and that his current memory accords with the contents of the prior statement. The trier fact must determine whether the witness adopts part or all of the statement. [4]

Where a witness acknowledges the statement was made and can vouch for the accuracy of the statement based only on the surrounding circumstances of the recording rather than from memory, adoption cannot be made.[5]

  1. R v Toten, 1993 CanLII 3427 (ONCA), per Doherty JA
    R v Smith, 2012 ONSC 910 (CanLII), per Trotter J, at para 8
  2. R v Tat (1997), 1997 CanLII 2234 (ON CA), per Doherty JA
    R v Swanston (1982), 1982 CanLII 423 (BC CA), 65 CCC (2d) 453 (BC CA), per Nemetz CJ, at para 3 (“ is my opinion that the law now is that evidence of extrajudicial identification is admissible not only to corroborate an identification made at trial but as independent evidence going to identity.”)
    R v Seymour, 2014 BCCA 301 (CanLII), per Bennett JA
  3. R v Deacon, 1947 CanLII 38 (SCC), per Kerwin J, at p. 534
    Smith, supra, at para 8
  4. R v McCarroll, 2008 ONCA 715 (CanLII), per Epstein JA
  5. McCarroll, ibid.