R v Cudney, 2023 ABCA 279
[130] The general principles of adoptive admissions are set out in David Watt, Manual of Criminal Evidence (Toronto: Thomson Reuters Canada, 2022) at 36.04:
An adoptive admission is a statement made by a third party in the presence of and adopted by D. Adoption occurs only to the extent that D assents to the truth of the statement expressly or impliedly. Assent may be inferred from D's
i. words;
ii. actions;
iii. conduct; or
iv. demeanour.
Assent may also be inferred from D's silence, or an equivocal or evasive denial where the circumstances give rise to a reasonable expectation of reply.
The respective roles of judge and jury in adoptive admissions are controversial. Consistent with basic principle, where an issue about adoptive admissions arises, the trial judge should first determine whether there is any evidence of assent or adoption by D, before permitting the evidence to be adduced before the jury. Where there is evidence on which the jury could find adoption, the factual determination should be left to them with appropriate instruction.
[131] This court recently considered the sufficiency of evidence of an accused adopting a statement by silence in R v SKM, 2021 ABCA 246 at para 39 where the court cited with approval R v Scott, 2013 MBCA 7 at paras 19 and 21:
. . . [M]ere 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… [W]hen 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.
. . .
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.
[132] In SKM, the appellant was charged with a historical sexual assault of his niece. The impugned evidence was the evidence of the complainant’s husband. The husband testified that he made two phone calls to the appellant, both while belligerent and intoxicated. In the first call, the husband stated that he was intoxicated when he demanded of the appellant - “what did you do to my wife . .”; the appellant replied “. . . I’m sure your wife would have told you everything I did to her by now”. In a second phone call to the appellant, the husband testified that after forming the belief the appellant’s wife was listening in on the phone call, he asked her “did you know that your husband’s a pedophile, a child rapist”, to which no response was forthcoming from the appellant. This court held that it was not reasonable in the circumstances of being faced with a name-calling belligerent, intoxicated caller that non-responsiveness amounted to an admission.
[133] An example where a statement by one co-accused was found to be an adoptive admission of the other co-accused is in R v Millard, 2023 ONCA 426. The court described the rule this way at para 91:
The theory of the adopted admissions rule is simple. If an accused person “adopts” as true a statement made by a co‑accused person, that statement may be used as evidence against them as well, since they have adopted that statement as their own. An accused person can adopt a statement made by their co-accused if they “expressly adopt the statement or where, by [their] words, action, conduct or demeanour [they] may be taken to have inferentially adopted it” as true: R. v. Dubois (1986), 1986 CanLII 4683 (ON CA), 27 C.C.C. (3d) 325 (Ont. C.A.), at p. 341; Chapdelaine v. The King, 1934 CanLII 46 (SCC), [1935] S.C.R. 53, at pp. 55-56, citing R. v. Christie, [1914] A.C. 545 (H.L.), at p. 554-55; R. v. Gordon, 2022 ONCA 799, at para. 49.
[134] The court in Millard, in applying the rule, found that a jury is entitled to draw reasonable inferences from all of the circumstances, even in the absence of direct evidence, to find that a co-accused has adopted a statement of the other co-accused as true. Obviously, the same rule applies to the trial judge in respect of their determination of admissibility.
[135] We do not accede to the appellant’s argument. The evidentiary context before the trial judge included the following:
• Mr. Cudney or Mr. Brady or both men told Chad they were coming to the acreage, and Mr. Cudney told Chad to put out tarps.
• Mr. Brady was not a friend of Chad’s; rather, Mr. Cudney was the friend and the one who had been to the acreage in the past.
• Mr. Cudney and Mr. Brady arrived at the acreage to dispose of Mr. Young’s body.
• Mr. Cudney was the one who “barked orders”.
• Mr. Cudney was described as “nervous” while Mr. Brady was described as “freaked right out”.
[136] These pieces of evidence taken together with Mr. Brady saying in Mr. Cudney’s presence the appellant had shot Mr. Young, and no denial by Mr. Cudney, provide the evidentiary foundation for the trial judge to leave to the jury that they might find an adoption of the statement by Mr. Cudney.
[137] A trial judge’s gatekeeping role and obligation to provide jury with proper instructions was set out in SKM at para 44 citing with approval from R v Robinson, 2014 ONCA 63 at para 56 citing R v Warner (1994), 1994 CanLII 842 (ON CA), 94 CCC (3d) 540, 21 OR (2d) 136 (CA):
In Warner, Griffiths J.A. went on to hold that a trial judge should make a preliminary determination that some evidence of adoption exists before leaving the issue with the jury. Further, if the issue is left with the jury, the trial judge should instruct them that they must consider all the circumstances under which the statement was made before making a finding of adoption, stating, at pp. 549-550:
Whether or not the silence of the accused constitutes an implied admission, depends on whether, in all of the circumstances, such an expectation [of a reply] 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.
. . .
Where the trial judge concludes that the evidence should go before the jury, he is still obliged to instruct the jury 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. In this respect, the jury must consider all of the circumstances under which the statement was made.
See also Millard at para 92.
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