R. v. Scott, 2013 MBCA 7
10 Surprisingly, I am unaware of any decisions from this court on the issue of adopted or implied admissions and, while other appellate courts have considered this issue, the Supreme Court of Canada has said very little on it since Stein v. The King, 1928 CanLII 67 (SCC), [1928] S.C.R. 553, and Chapdelaine v. The King, 1934 CanLII 46 (SCC), [1935] S.C.R. 53.
11 The fundamental principles surrounding the law of adopted or implied admissions, and approved in the two above-referenced Supreme Court of Canada decisions, originally came from the House of Lords in Rex v. Christie, [1914] A.C. 545. In Christie, the House of Lords generally discussed when statements made in the presence of an accused will be admissible against the accused, and the procedure a court should follow when faced with such evidence. Lord Atkinson stated as follows (at pp. 554-55):
… [T]he rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own. …. He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement was made amounts to an acceptance of it in whole or in part. It by no means follows, I think, that a mere denial by the accused of the facts mentioned in the statement necessarily renders the statement inadmissible, because he may deny the statement in such a manner and under such circumstances as may lead a jury to disbelieve him, and constitute evidence from which an acknowledgement may be inferred by them.
Of course, if at the end of the case the presiding judge should be of opinion that no evidence has been given upon which the jury could reasonably find that the accused had accepted the statement so as to make it in whole or in part his own, the judge can instruct the jury to disregard the statement entirely. ….
[emphasis added]
12 Lord Atkinson considered whether an instruction to the jury to disregard a statement not accepted by the accused would be effective, or whether this would result in a grave injustice, as the jury, having heard the statement, might not rid its mind of it. Ultimately, he determined that a jury instruction to disregard the statement would effectually guard the accused against injustice, but stated that it would be a desirable rule of practice (at p. 555):
.… … [T]hat such a statement is not be admitted in evidence until a foundation has been laid for its admission by proof of facts from which, in the opinion of the presiding judge, a jury might reasonably draw the inference that the accused had so accepted the statement as to make it in whole or in part his own ….
13 The Supreme Court of Canada first considered Christie in Stein. In that case, a police officer explained that the accused was present during the questioning of two thieves who implicated the accused as the recipient of stolen goods. The officer testified that the accused said nothing in response to the accusation. Anglin C.J.C., after referring to Christie, stated (at p. 557-58):
.... 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. In the present case there is no evidence in the record from which a jury might infer anything in the nature of an admission by the accused of the accuracy of what was incriminating in the statements of the thieves given in evidence by [the police officer] ....
14 In Chapdelaine, the accused was convicted of the murder of her husband by poisoning. At trial, several civilian witnesses testified that they heard the deceased pointedly accuse his wife, in her presence, of poisoning him. The witnesses testified that the accused said nothing in response. One witness testified that the accused appeared indifferent, while another said she simply smiled and changed the subject. The trial judge failed to tell the jury, however, that the deceased’s statements were not evidence against the accused as to the facts contained therein, unless they found that she accepted the statements as her own. Duff C.J., for the majority, applied Christie, and allowed the appeal. He also set out, with apparent approval, the following practice recommended by Pickford J. in Rex v. Norton, [1910] 2 K.B. 496 (C.C.A.) (which had also been endorsed in Christie) (at p. 56):
The fact of a statement having been made in the prisoner’s presence may be given in evidence, but not the contents, and the question asked, what the prisoner said or did on such a statement being made. If his answer, given either by words or conduct, be such as to be evidence from which an acknowledgment may be inferred, then the contents of the statement may be given and the question of admission or not in fact left to the jury; if it be not evidence from which such an acknowledgment may be inferred, then the contents of the statement should be excluded. To allow the contents of such statements to be given before it is ascertained that there is evidence of their being acknowledged to be true must be most prejudicial to the prisoner, as, whatever directions be given to the jury, it is almost impossible for them to dismiss such evidence entirely from their minds. It is perhaps too wide to say that in no case can the statements be given in evidence when they are denied by the prisoner, as it is possible that a denial may be given under such circumstances and in such a manner as to constitute evidence from which an acknowledgement may be inferred, but, as above stated, we think they should be rejected unless there is some evidence of an acknowledgment of the truth. Where they are admitted we think the following is the proper direction to be given to the jury: - That if they come to the conclusion that the prisoner had acknowledged the truth of the whole or any part of the facts stated they might take the statement, or so much of it as was acknowledged to be true (but no more), into consideration as evidence in the case generally, not because the statement standing alone afforded any evidence of the matter contained in it, but solely because of the prisoner’s acknowledgment of its truth; but unless they found as a fact that there was such an acknowledgment they ought to disregard the statement altogether.
[emphasis added]
15 The effect of Stein and Chapdelaine is that the Supreme Court of Canada has held that Christie applies in Canada. The law accepted by the Supreme Court of Canada was summarized in Chapdelaine (at p. 55), quoting Lord Atkinson in Christie (at p. 554):
… [A] statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own. ….
[emphasis added]
16 As far as I am aware, the only other case from the Supreme Court of Canada in which the issue of adopted or implied admissions was discussed is R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151. In that case, there was no issue regarding adopted or implied admissions. The main issue concerned the constitutionality of putting undercover officers in an accused’s jail cell to obtain incriminating admissions. In a separate judgment, Sopinka J. wrote, in obiter, that the court’s historical solicitude for an accused’s silence is evidenced by its application of cases such as Christie and Stein. He stated (at p. 198):
…. The essence of the Christie rule is that even if the circumstances of an accusation cry out for an explanation or denial, the accused’s silence, without more, is not evidence against him: there must be ‘word or conduct, action or demeanour’ pointing to an adoption of the statement by the accused.
[emphasis added]
17 Sopinka J. also noted in Hebert that the Chapdelaine decision supported the practice of holding a voir dire before admitting evidence of an alleged adopted or implied admission.
18 While most of the Christie principles have been consistently applied by appellate courts, there is some inconsistency with respect to the issue of how the silence of accused persons is to be regarded. Some suggest that an accused’s mere silence may be sufficient to render the accusatory statement made in his or her presence evidence of its truth, if the circumstances are such that a response could reasonably have been expected. See for example R. v. Eden, 1969 CanLII 329 (ON CA), [1970] 2 O.R. 161 at 164 (C.A.); R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 14 O.R. (2d) 173 (C.A.) at 186; R. v. Warner (J.R.) (1994), 1994 CanLII 842 (ON CA), 75 O.A.C. 288 at para. 21; and R. v. J.F., 2011 ONCA 220 at para. 46, 276 O.A.C. 292. This last case is pending before the Supreme Court of Canada.
19 In my respectful view, these decisions do not quite accord with the principles set out in Christie, Stein and Chapdelaine, which indicate that a statement made in the presence of an accused, “even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence” (Chapdelaine at p. 55) of the facts stated, unless he or she accepts the statement as his or her own. Put another way, mere silence, even where it would be reasonable to expect a denial in the face of an accusation, will not constitute an admission. There must be something more in the circumstances than the mere silence of the accused and an expectation that he or she would have said something. In essence, these three decisions stand for the proposition that, when the accused’s own silence is the only evidence that the accusatory statement was adopted, the statement is to be excluded because its prejudicial effect outweighs its probative value.
20 In R. v. Tanasichuk (D.D.), 2007 NBCA 76, 321 N.B.R. (2d) 44, leave to appeal to the S.C.C. dismissed, [2009] S.C.C.A. No. 18 (QL), Richard J.A., in a helpful and comprehensive analysis, reviewed much of the case law discussed above and dealt with issues similar to the present case. The decision makes clear that evidence of the accused’s silence, on its own, will not constitute evidence of an adoption of the statement; further evidence of the circumstances surrounding the alleged adoption must be elicited. As to admissibility considerations, Richard J.A., expounded on Christie, Stein and Chapdelaine, stating that (at paras. 110, 116-17):
1) The trial judge, after looking at all the circumstances, must find sufficient evidence from which the jury might reasonably infer that the conduct of the accused amounted to the adoption of the statement in order to leave the issue with the jury;
2) The trial judge should weigh the probative value of the evidence against its prejudicial effect prior to determining its admissibility;
3) Although it is “sufficiently entrenched in the law of evidence” (at para. 117) that a trial judge should hold a voir dire, the failure to do so will not always constitute an error that vitiates a conviction.
21 In summary, the authorities make it clear that great caution should be exercised when considering a question of adopted or implied admission by silence as there may be other reasons for an accused’s silence. A statement made in the accused’s presence is not evidence of the facts contained therein, even if it is reasonable to expect an explanation or denial, unless the accused accepts or adopts the statement, either expressly or by inference, as his or her own.
22 A trial judge has a gatekeeper function and must be satisfied that the accused had the state of mind to hear and comprehend the accusatory statement and adopted it in some verbal or non-verbal way. A trial judge should hold a voir dire to determine the admissibility of the statement as an adopted admission. The decision on admissibility entails a consideration of all of the circumstances under which the statement was made and possibly adopted by the accused. On the voir dire, the trial judge must determine whether there is sufficient evidence from which a jury might reasonably draw the inference that the accused adopted the statement. Even when there is sufficient evidence, the trial judge should balance the probative value and the prejudicial effect before determining whether to allow the statement to go to the jury.
23 The Supreme Court of Canada authorities also establish that the mere silence of the accused, after hearing a statement made in his or her presence, will not permit an inference that the accused adopted the statement as his or her own. More is needed. It is only when an accused by “word or conduct, action or demeanour” (Christie at p. 554) has accepted the truth of the statement made by another person in his or her presence that the statement can have evidentiary value against the accused as to its truth. In the absence of any such acceptance by the accused of the truth of the statement made in his or her presence, the jury should be told that the statement has no evidentiary value as to its truth, and should be entirely disregarded.
24 Finally, if there is sufficient evidence from which a jury could infer that the accused adopted the statement made in his presence, notwithstanding the failure to hold a voir dire, there will be no error involved in admitting the evidence. In other words, if the trial judge would inevitably have admitted the evidence had a voir dire been held, no harm would result. However, where there is a lack of evidence, the failure to hold a voir dire will constitute a serious procedural error.
