R. v. J.F., 2011 ONCA 220 (CanLII)
[46] There was sufficient evidence from which it can be inferred that the appellant adopted the statement about his supplying the Tylenol 3. Silence alone is evidence that the person adopted the statement, if the circumstances are such that the person could reasonably have been expected to have replied to them: R. v. Baron 1976 CanLII 775 (ON CA), (1976), 14 O.R. (2d) 173, [1976] O.J. No. 2304 (C.A.), at pp. 187-88 O.R. Given AS's evidence set out above, there was a foundation for finding that the appellant adopted the statement on the basis of silence. But, there was more; it was AS's evidence that they were all involved in the conversation about the Tylenol 3. Given this record and the absence of objection, there was no reason for the trial judge to conduct a voir dire. Evidence establishing on a balance of probabilities that he adopted the statement was sufficient to render it admissible against the appellant: R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, [1993] S.C.J. No. 115, at pp. 667-68 S.C.R.
[47] It would have been preferable for the trial judge to direct the jury that it was for them to find whether the appellant adopted the statement as true: R. v. Warner1994 CanLII 842 (ON CA), (1994), 21 O.R. (3d) 136, [1994] O.J. No. 2658 (C.A.), at p. 145 O.R. However, in my view, the failure to direct the jury as to the test for adoptive admissions did not prejudice the appellant. The only evidence on the issue was from AS and that uncontradicted evidence established that the appellant probably adopted the statement.
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