L'accusé peut faire sienne une déclaration d'un tiers vu son silence dans certaines circonstances

R. v. Saulter, 2011 CanLII 61107 (NL PC)

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[20]   It is well established that an accused person can adopt a statement made by another person as her or his own and if adopted it will be admissible against the accused (see R. v. Streu 1989 CanLII 52 (SCC), (1989), 48 C.C.C. (3d) 321 (S.C.C.), at paragraphs 19 to 21, R. v. Govedarov (1974), 16 C.C.C. (2d) 238 (Ont. C.A.), at paragraph 148, R. v. Baron (1976), 31 C.C.C. (2d) 525 (Ont. C.A.), at paragraph 36 and R. v. P.K. 1980 ABCA 23 (CanLII), (1980), 52 C.C.C. (2d) 523 (Alta. C.A.), at paragraph 34).  Adoption can occur by various means, even by silence (see R. v. Christie, [1914] A.C. 545 (H.L.) and R. v. Warner 1994 CanLII 842 (ON CA), (1994), 94 C.C.C. (3d) 540 (Ont. C.A.)).  In R. v. Tanasichuk 2007 NBCA 76 (CanLII), (2007),  227 C.C.C. (3d) 446, the New Brunswick Court of Appeal noted, at paragraph 102, that it “has long been a recognized principle in the law of evidence that ‘[a]n accused can adopt the statement of another either explicitly by words indicating [his or] her agreement, or implicitly by [his or] her silence in a situation where one could have expected [him or] her to have made some protest to a statement made within [his or] her hearing.’"  However, any statement by an accused person which the Crown seeks to introduce must be shown to have a “discernable meaning” (see R. v. Ferris, 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756) and if adoption is argued the Crown must prove that the accused accepted that statement as her or his own (see R. v. Stein (1928), 50 C.C.C. 311 (S.C.C.)).  Mere presence when another makes a statement is not, standing alone, sufficient to establish adoption (see R. v. Duboisreflex, (1986), 27 C.C.C. (3d) 325 (Ont. C.A.)). In Tanasichuk, the New Brunswick Court of Appeal summarized the law applicable to adoption of another’s words by the accused in the following manner (at paragraph 110):

In summary, the law requires that before an allegedly adopted statement can be put to a jury, the trial judge must find that there is sufficient evidence from which the jury might reasonably infer that the conduct of the accused amounted to an adoption of the statement. Before admitting such a statement in evidence, the judge must be satisfied that the statement was made in the presence of the accused, in circumstances such that the accused would be expected to respond, that the accused's failure to respond could reasonably lead to the inference that, by his silence, the accused adopted the statement, and that the probative value of the evidence outweighs its prejudicial effect. In determining whether the silence of an accused could support an inference that the accused assented to a statement, the trial judge must have regard to all of the circumstances, including whether the evidence establishes that the accused heard and understood the statement, whether the accused made any non-verbal response and the emotional state of the accused. If, upon considering all of the circumstances, the trial judge is not satisfied that the silence of the accused could support an inference that the accused assented to the statement, the evidence has no probative value, is highly prejudicial, and ought not be put to the jury. If, on the other hand, the judge concludes that the silence of the accused can support such an inference, the evidence is admissible, but it is nevertheless imperative that the judge instruct the jury as directed in Warner. The jury must be instructed that "it is for them to decide 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," and that, in so deciding, they must "consider all of the circumstances under which the statement was made": See Warner, at 145. Moreover, the jurors must be instructed that "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": SeeR. v. Andrews (1962), 133 C.C.C. 347 (Ont. C.A.), at 348.