Le silence de l'accusé lorsqu'un tiers fait une déclaration le concernant en sa présence

R. v. Warner, 1994 CanLII 842 (ON CA)

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Silence may be taken as an admission "where a denial would be the only reasonable course of action expected if that person were not responsible": Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Markham: Butterworths, 1992), at p. 286. In R. v. Baron 1976 CanLII 775 (ON CA), (1976), 14 O.R. (2d) 173 at p. 187, 31 C.C.C. (2d) 525 at pp. 539-40 (C.A.), Martin J.A. put the principle as follows:

The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to have replied to them. Silence in such circumstances permits an inference of assent.

Whether or not the silence of the accused constitutes an implied admission depends upon whether, in all of the circumstances, such an expectation is reasonable. The trial judge should determine in advance whether there is sufficient evidence from which a jury might reasonably find that the conduct amounted to an acknowledgement of responsibility. In R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 at p. 196, 57 C.C.C. (3d) 1 at pp. 11-12, Sopinka J., although in dissent, said on points not in issue:

This court has consistently applied the English case of R. v. Christie, [1914] A.C. 545 (H.L.), in which Lord Atkinson stated at p. 554:

. . . the 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.

In Stein v. The King 1928 CanLII 67 (SCC), (1928), 50 C.C.C. 311 at p. 313, [1929] 1 D.L.R. 143, [1928] S.C.R. 553, this court held, on the basis of Christie, that a trial judge had erred in failing to direct the jury that, "in the absence of any assent by the accused either by word or conduct to the correctness of the statements made in his presence, they had no evidentiary value whatever as against him and should be entirely disregarded" (emphasis added). Later, in Chapdelaine v. The King 1934 CanLII 46 (SCC), (1934), 63 C.C.C. 5 at pp. 9-10, [1935] 2 D.L.R. 132, [1935] S.C.R. 53, Duff C.J.C. (Crocket and Cannon JJ. concurring), held that it would be desirable as a rule of practice in cases in which statements made in the accused's presence are sought to be adduced to require evidence of the accused's adoption of the statements to be led before the admission of the statements themselves.