Holly A. Akin

During a criminal jury trial, the defence challenged testimony suggesting that the accused was known by a nickname, arguing the evidence was inadmissible hearsay.

The Crown contended the statement was admissible as an adoptive admission by silence because it was allegedly made in the accused’s presence.

The court reviewed the governing principles for adoptive admissions, including the requirement that the accused must have heard the statement and reasonably been expected to respond.

Because the evidentiary record did not establish that the accused was present or heard the statement, the foundational requirements were not met.

The jury was therefore prohibited from using the testimony as substantive evidence.

The accused challenged the admissibility of evidence consisting of a name and phone number stored in a third party’s cell phone, arguing that it constituted hearsay.

The Crown sought to admit the evidence as circumstantial evidence of the state of mind of the person who recorded the contact information and its connection to events relevant to the prosecution.

The court held that the entry of a name and phone number in a cell phone constituted non-verbal conduct rather than hearsay and could be admitted for the limited purpose advanced by the Crown.

Alternatively, the evidence satisfied the principled exception to the hearsay rule due to circumstantial guarantees of trustworthiness and necessity where the phone’s owner had absconded.

The issue of the ultimate reliability and weight of the evidence was left to the jury.

The applicant sought to exclude eyewitness identification evidence arising from a photo line‑up.

Evidence revealed that police had shown the witness several mug shots of suspects prior to conducting the formal photo line‑up and failed to keep notes or records of that interaction.

The court held that the undocumented pre‑line‑up exposure created a serious risk that the witness’s identification had been tainted and could not be meaningfully tested through cross‑examination.

Given the uncertainty surrounding the circumstances of the earlier photographs and the witness’s statements during the line‑up indicating influence from them, the probative value of the identification evidence was outweighed by its prejudicial effect.

The identification evidence was therefore excluded.