Adoptive and Implied Admissions: Difference between revisions
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{{seealso|Traditional Exceptions to Hearsay}} | {{seealso|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.<ref>R v Stein, [http://canlii.ca/t/fslp2 1928 CanLII 67] (SCC), [1928] SCR 553{{perSCC|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 …”)<br> | A categorical exception to the hearsay rule is where the accused adopts a hearsay statement by words, conduct, action or demeanour.<ref>''R v Stein'', [http://canlii.ca/t/fslp2 1928 CanLII 67] (SCC), [1928] SCR 553{{perSCC|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 …”)<br> | ||
see also Chapdelaine v The King, [http://canlii.ca/t/fslqd 1934 CanLII 46] (SCC), [1935] SCR 53{{Plurality}}<br> | see also Chapdelaine v The King, [http://canlii.ca/t/fslqd 1934 CanLII 46] (SCC), [1935] SCR 53{{Plurality}}<br> | ||
R v Scott, [http://canlii.ca/t/fvxcg 2013 MBCA 7] (CanLII){{perMBCA|Chartier JA}} - comprehensive review of law</ref> | ''R v Scott'', [http://canlii.ca/t/fvxcg 2013 MBCA 7] (CanLII){{perMBCA|Chartier JA}} - comprehensive review of law</ref> | ||
The exception involves two elements:<ref>R v Dimetro (1945), 85 CCC 135, [http://canlii.ca/t/htvhz 1945 CanLII 435] (ON CA){{perONCA|Laidlaw JA}}, at para 4 (Ont CA)</ref> | The exception involves two elements:<ref>R v Dimetro (1945), 85 CCC 135, [http://canlii.ca/t/htvhz 1945 CanLII 435] (ON CA){{perONCA|Laidlaw JA}}, at para 4 (Ont CA)</ref> | ||
# whether there is “evidence from which the Court could reasonably infer that the accused by their behaviour acknowledged their guilt?” <ref> See also R v Warner, [http://canlii.ca/t/6k72 1994 CanLII 842] (ON CA), (1994), 21 O.R. (3d) 136{{perONCA|Griffiths JA}} at 144-145 (OR)</ref> | # whether there is “evidence from which the Court could reasonably infer that the accused by their behaviour acknowledged their guilt?” <ref> See also ''R v Warner'', [http://canlii.ca/t/6k72 1994 CanLII 842] (ON CA), (1994), 21 O.R. (3d) 136{{perONCA|Griffiths JA}} at 144-145 (OR)</ref> | ||
# whether such an inference should be drawn? | # 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” | 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” | ||
<ref>R v Harrison, [1946] 3 DLR 690, 62 BCR 420, [hhttp://canlii.ca/t/gwbxj 1945 CanLII 314] (BC CA){{perBCCA|Robertson JA}} at 430 (BCCA)</reF> | <ref>''R v Harrison'', [1946] 3 DLR 690, 62 BCR 420, [hhttp://canlii.ca/t/gwbxj 1945 CanLII 314] (BC CA){{perBCCA|Robertson JA}} at 430 (BCCA)</reF> | ||
A speculative interference based on ambiguous conduct is not sufficient to fit the exception. <ref>R v Briscoe, [http://canlii.ca/t/fqfhw 2012 ABQB 158] (CanLII){{perABQB| Yamauchi J}}, a nod in response to an utterance of “I helped with [a murder]” appealed at [http://canlii.ca/t/gfv1v 2015 ABCA 2] (CanLII) on other grounds </ref> | A speculative interference based on ambiguous conduct is not sufficient to fit the exception. <ref>''R v Briscoe'', [http://canlii.ca/t/fqfhw 2012 ABQB 158] (CanLII){{perABQB| Yamauchi J}}, a nod in response to an utterance of “I helped with [a murder]” appealed at [http://canlii.ca/t/gfv1v 2015 ABCA 2] (CanLII) on other grounds </ref> | ||
A foundation requires at a minimum that:<ref>R v Tanasichuk, [http://canlii.ca/t/1tg0f 2007 NBCA 76] (CanLII){{perNBCA|Richard JA}} at para 110</ref>: | A foundation requires at a minimum that:<ref>''R v Tanasichuk'', [http://canlii.ca/t/1tg0f 2007 NBCA 76] (CanLII){{perNBCA|Richard JA}} at para 110</ref>: | ||
# the statement must have been made in the accused’s presence, in circumstances such that the accused would be expected to respond; | # the statement must have been made in the accused’s presence, in circumstances such that the accused would be expected to respond; | ||
# the accused’s failure to respond could reasonably lead to the inference that, by his silence, the accused adopted the statement; and | # the accused’s failure to respond could reasonably lead to the inference that, by his silence, the accused adopted the statement; and | ||
# the probative value of the evidence outweighs its prejudicial effect. | # 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.<ref>R v Dubois, (1986), 27 CCC (3d) 325, [http://canlii.ca/t/g96q5 1986 CanLII 4683] (ON CA){{perONCA|Morden JA}}, at 341-342 (Ont CA)</ref> | The mere presence of the accused at the time of the statement is not sufficient to prove an adoption of the statement.<ref>''R v Dubois'', (1986), 27 CCC (3d) 325, [http://canlii.ca/t/g96q5 1986 CanLII 4683] (ON CA){{perONCA|Morden JA}}, at 341-342 (Ont CA)</ref> | ||
'''Jury Instructions'''<br> | '''Jury Instructions'''<br> | ||
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===Non-Accused=== | ===Non-Accused=== | ||
The adoption of out-of-court statements by a witness is most commonly seen during the impeachment process during cross-examination.<ref> | The adoption of out-of-court statements by a witness is most commonly seen during the impeachment process during cross-examination.<ref> | ||
R v Toten, [http://canlii.ca/t/1p79f 1993 CanLII 3427] (ONCA){{perONCA|Doherty JA}}<br> | ''R v Toten'', [http://canlii.ca/t/1p79f 1993 CanLII 3427] (ONCA){{perONCA|Doherty JA}}<br> | ||
R v Smith, [http://canlii.ca/t/fpxpt 2012 ONSC 910] (CanLII){{perONSC|Trotter J}} at para 8<br> | ''R v Smith'', [http://canlii.ca/t/fpxpt 2012 ONSC 910] (CanLII){{perONSC|Trotter J}} at para 8<br> | ||
</ref> It is also available when dealing with evidence of prior identification.<ref> | </ref> It is also available when dealing with evidence of prior identification.<ref> | ||
R v Tat (1997), [http://canlii.ca/t/6hgr 1997 CanLII 2234] (ON CA){{perONCA|Doherty JA}}<br> | R v Tat (1997), [http://canlii.ca/t/6hgr 1997 CanLII 2234] (ON CA){{perONCA|Doherty JA}}<br> | ||
R v Swanston (1982), [http://canlii.ca/t/23p10 1982 CanLII 423] (BC CA), 65 CCC (2d) 453 (BC CA){{perBCCA|Nemetz CJ}} at para 3 (“...it 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.”)<br> | R v Swanston (1982), [http://canlii.ca/t/23p10 1982 CanLII 423] (BC CA), 65 CCC (2d) 453 (BC CA){{perBCCA|Nemetz CJ}} at para 3 (“...it 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.”)<br> | ||
R v Seymour, [http://canlii.ca/t/g8kjp 2014 BCCA 301] (CanLII){{perBCCA|Bennett JA}}<Br> | ''R v Seymour'', [http://canlii.ca/t/g8kjp 2014 BCCA 301] (CanLII){{perBCCA|Bennett JA}}<Br> | ||
</ref> | </ref> | ||
Where the witness adopts a prior statement as true then the statement will be incorporated into the witness's evidence at trial.<Ref> | Where the witness adopts a prior statement as true then the statement will be incorporated into the witness's evidence at trial.<Ref> | ||
R v Deacon, [http://canlii.ca/t/fsmm3 1947 CanLII 38] (SCC){{perSCC|Kerwin J}} at p. 534<br> | ''R v Deacon'', [http://canlii.ca/t/fsmm3 1947 CanLII 38] (SCC){{perSCC|Kerwin J}} at p. 534<br> | ||
Smith{{supra}} at para 8<br> | Smith{{supra}} at para 8<br> | ||
</ref> | </ref> | ||
Revision as of 20:25, 12 January 2019
General Principles
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]
- whether there is “evidence from which the Court could reasonably infer that the accused by their behaviour acknowledged their guilt?” [3]
- 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]:
- the statement must have been made in the accused’s presence, in circumstances such that the accused would be expected to respond;
- the accused’s failure to respond could reasonably lead to the inference that, by his silence, the accused adopted the statement; and
- 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]
- 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;
- consider all of the circumstances under which the statement was made
- “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”
- ↑ 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 - ↑ R v Dimetro (1945), 85 CCC 135, 1945 CanLII 435 (ON CA), per Laidlaw JA, at para 4 (Ont CA)
- ↑ See also R v Warner, 1994 CanLII 842 (ON CA), (1994), 21 O.R. (3d) 136, per Griffiths JA at 144-145 (OR)
- ↑ R v Harrison, [1946] 3 DLR 690, 62 BCR 420, [hhttp://canlii.ca/t/gwbxj 1945 CanLII 314] (BC CA), per Robertson JA at 430 (BCCA)
- ↑ 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
- ↑ R v Tanasichuk, 2007 NBCA 76 (CanLII), per Richard JA at para 110
- ↑ R v Dubois, (1986), 27 CCC (3d) 325, 1986 CanLII 4683 (ON CA), per Morden JA, at 341-342 (Ont CA)
- ↑ Tanasichuk, supra
Non-Accused
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]
- ↑
R v Toten, 1993 CanLII 3427 (ONCA), per Doherty JA
R v Smith, 2012 ONSC 910 (CanLII), per Trotter J at para 8
- ↑
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 (“...it 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
- ↑
R v Deacon, 1947 CanLII 38 (SCC), per Kerwin J at p. 534
Smith, supra at para 8
- ↑ R v McCarroll, 2008 ONCA 715 (CanLII), per Epstein JA
- ↑ McCarroll, ibid.