Admissions of Fact

From Criminal Law Notebook
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General Principles

Factual admissions are made under s. 655.

Admissions at trial

655 Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.
R.S., c. C-34, s. 582.

– CCC

Note up: 655

Though the language refers to indictable offences, it is accepted that this applies to summary convictions as well under s. 795.

Making an Admission

When a factual admission is made pursuant to s. 655 it is for the Crown to state the facts. It is not open to the accused to frame the Crown's allegations so as to conform to his own purpose and then require the Crown to admit it.[1]

There is no obligation upon the Crown to accept any admission framed by the accused.[2]

A factual admission can be made by counsel in court. Counsel can state for example that: “I admit that the accused did X. I admit that when he did that act, he knew Y. I admit that at that time, the accused thought or intended Z.”

The accused can waive "strict compliance" with the rule of evidence that requires sworn testimony. Instead the accused can permit the "taking of their evidence by admitting what their evidence would be as regards certain facts if those witnesses were called".[3]

Form of Admission

This form of admission is “proper and sufficient” for findings of fact by the court under s. 655 and remove the need to adduce evidence on those issues. [4]

An agreed statement of fact should be "clear, unambiguous, precise and unequivocal before acceptance by the court".[5]

Formal admissions cannot be made until there has been an allegation put against them. [6]

Effect of an Agreed Statement of Facts

If the Crown and Defence put forward evidence by submission that constitutes an agreed statement of facts, then it should be accepted by the trial judge as “conclusive of the admitted facts".[7]

If the accused makes an admission of fact, the Crown should not be allowed to refuse to accept it and then lead evidence on the issue. Once admitted, it is no longer a issue at trial.[8] The evidence covering the admitted facts and therefore must be excluded as irrelevant.[9]

Once an admission is made, it becomes part of the record. Unless changed by consent, it is "not easily disturbed"[10]

The process used to generate an agreed statement of fact does not satisfy threshold reliability to be admissible for the truth of its contents under the principled exception to hearsay.[11]

Consequence of Contradictory vica voce Evidence

Where a witness testifies to a matter that appears to contradict the agreement of facts, the Crown would then be required to call evidence on the points in issue.[12]

Withdraw of Admission

Once an admission of fact is made it cannot be withdrawn without leave of the court.[13]

Deviation From Admission

It is an error of law for a trial judge to depart from any formal admission without first notifying counsel and giving them an opportunity to make submissions on the issue.[14]

Subsequent Use of Admission

An admission under s. 655 can be used as an ordinary admission in a subsequent hearing for a mistrial.[15]

Contrast with Admission of Law

An admission of law or mixed fact and law is not binding upon a judge.[16] Such an admission can be withdrawn at any time, including on appeal.[17]

Admission of law includes opinion of whether evidence satisfies the legal requirements of legislative provision.[18]

  1. ↑ R v Castellani, 1969 CanLII 57 (SCC), [1970] SCR 910, per Cartwright CJ (9:0), at p. 315
    R v Dearborn, 1991 CanLII 7567 (SKQB), 91 Sask R 112, per Hrabinsky J affirmed, (1992) 97 Sask R 282, 1992 CanLII 8215 (SK CA), per Tallis JA
    R v Curry (1980), 38 NSR (2d) 575 (NSCA)(*no CanLII links) , at para 26
    R v Falconer, 2016 NSCA 22 (CanLII), per Beveridge JA (3:0), at para 45 ("Once tendered, formal admissions under s. 655 of the Criminal Code are conclusive for the trier of fact. Subject to relief being granted from the consequence of the admission, the fact admitted is conclusively established. It is not open to challenge.")
  2. ↑ Castellani, supra
  3. ↑ R v Matheson, 1981 CanLII 202 (SCC), [1981] 2 SCR 214, per Lamer J (7:0), at p. 217
  4. ↑ R v Miljevic, 2010 ABCA 115 (CanLII), per curiam (2:1), at para 18
    See also McWilliams’ Canadian Criminal Evidence pp. 22-2 to 22-5, 22-9 to 22-11 (4th ed. 2009); 9 Wigmore, Evidence in Trials at Common Law 822-24 (Chadbourne ed. 1981)
    R v Haimour, 2010 ABQB 7 (CanLII), per Ouellette J, at para 27
    R v Picariello, 1923 CanLII 536 (SCC), [1923] 2 DLR 706, 716 (SCC), 39 CCC 229
    R v Castellani, 1969 CanLII 57 (SCC), [1970] SCR 310, per Cartwright CJ (9:0), at p. 315-17 (SCR)
    R v Park, 1981 CanLII 56 (SCC), per Dickson J (9:0) at 73
    R v Matheson, 1981 CanLII 202 (SCC), per Lamer J (7:0) at 217
    R v Fertal, 1993 ABCA 277 (CanLII), (1993) 145 A.R. 225, per curiam (3:0), at paras 7 to 9
    R v Proctor, 1992 CanLII 2763 (MB CA), (1992) 5 Man. R. (2d) 217, 69 CCC (3d) 436, 447 (CA), per Twaddle JA
    R v Fong, 1994 ABCA 267 (CanLII), (1994) 157 A.R. 73 (CA), per curiam (3:0), at paras 6 to 8
    R v Desjardins, 1998 CanLII 6149 (BCCA), (1998) 110 BCAC 33, per Newbury JA (3:0), at para 18
  5. ↑ R v Asp, 2011 BCCA 433 (CanLII), per Frankel JA (3:0) , at para 40
  6. ↑ Castellani, supra
  7. ↑ R v Baksh, 2005 CanLII 24918, 199 CCC (3d) 201 (Ont. SCJ), per Hill J, at para 84 ("An admission validly made in the context of s. 655 of the Code is an acknowledgement that some fact alleged by the prosecution is true. Such an admission dispenses with proof of that fact by testimony or ordinary exhibit and the accused is not entitled to set up competing contradictory evidence in an attempt to disprove the judicial or formal admission. In other words, the formal admission is conclusive of the admitted fact...")
  8. ↑ R v Proctor, 1992 CanLII 2763 (MB CA), 69 CCC (3d) 436, per Twaddle JA, at p. 447 (“I do not think that Crown is entitled to refuse acceptance where its purpose in doing so to keep an issue alive artificially ...but if the accused is willing to make them, the Crown should not be allowed to gain entry for prejudicial evidence by refusing to accept the admissions.”)
  9. ↑ R v Handy, 2002 SCC 56 (CanLII), per Binnie J
    R v Clermont, 1986 CanLII 26 (SCC), [1986] 2 SCR 131, per Lamer J (7:0), at p. 136
    R v Bosley, 1992 CanLII 2838 (ONCA), C. R. (4th) 347 (Ont. CA), per Doherty JA, at p. 360
    R v Proctor, 1992 CanLII 2763 (MB CA), 69 CCC (3d) 436 (Man. C. A.), per Twaddle JA, at p. 447
  10. ↑ R v Prince, 2017 BCSC 2642 (CanLII), per Ker J, at para 26
  11. ↑ Principled Exception to Hearsay
  12. ↑ R v Coburn, 1982 CanLII 3715 (ONCA), 66 CCC (2d) 463, per Howland CJ, at para 13 Prince, supra, at paras 20 to 21 R v Randhawa, 2020 BCPC 205 (CanLII), per Rideout J, at para 138
  13. ↑ R v RAH, 2017 PECA 5 (CanLII), per Mitchell JA (3:0), at para 51 citing Sopinka, Lederman and Bryan: The Law of Evidence in Canada, 4th Ed. (LexisNexis Canada Inc., at §19.2)
  14. ↑ R v Duong, 2019 BCCA 299 (CanLII), at para
  15. ↑ Baksh, supra, at para 118
  16. ↑ RAH, supra, at para 53
    Serra v Serra, 2009 ONCA 105 (CanLII), per Blair JA (3:0)
  17. ↑ RAH, supra, at para 53
    R v Baty, 1958 CanLII 93 (ONCA), per Morden JA (3:0)
    Highly v CPR, 1929 CanLII 410 (ONCA), [1930] 1 DLR 630, per Fisher JA (4:0)
  18. ↑ eg. RAH, supra, at paras 51 to 53

Youth

Admissions

149 (1) A party to any proceedings under this Act may admit any relevant fact or matter for the purpose of dispensing with proof of it, including any fact or matter the admissibility of which depends on a ruling of law or of mixed law and fact.

Other party may adduce evidence

(2) Nothing in this section precludes a party to a proceeding from adducing evidence to prove a fact or matter admitted by another party.

– YCJA

Note up: 149(1)

See Also

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