ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F)1898/12
DATE: 20140825
B E T W E E N:
HER MAJESTY THE QUEEN
Holly A. Akin, for the Crown
Respondent
- and -
PHILIP SARGEANT
Mr. P. Aubin, for the Applicant
Applicant
RULING RE: ADOPTION BY SILENCE
Fragomeni J.
[1] This issue relates to the testimony of Ms. Fraser as to her knowledge that Mr. Sargeant is known as Rasta. The defence took the position that the evidence Ms. Fraser gave in this regard was hearsay and the jury could not use that evidence for the truth of its contents. The jury would have to be told further that the jury could not use that evidence for any purpose.
[2] The Crown took the position that the testimony was admissible as it was said while Mr. Sargeant was present. As such he has adopted it by his silence so it is not hearsay.
[3] The testimony that forms the subject matter of this ruling is found in the following cross-examination of Ms. Fraser by Mr. Aubin, Mr. Sargeant’s counsel:
Q. And I believe you told us you only knew him as Rasta, which was some sort of nickname; correct?
A. Yes.
Q. And that’s the only name you ever heard anybody call him; correct?
A. During that time, yes.
Q. Do you recall who introduced you to Mr. Sargeant?
A. No, I do not.
Q. Do you recall when you were introduced to him whether he was introduced – whether he was introduced to you as Rasta or is that just something you heard people calling him?
A. No, that’s what I was introduced as.
Q. And did Mr. Sargeant say, you know, I’m Rasta, or did some – or did whoever introduced the two of you say this is Rasta?
A. I don’t believe he introduced himself, no.
[4] In R. v. Robinson 2014 ONCA 63 Simmons J.A. set out the following at paras 48 to 58:
[48] David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Carswell, 2013), at para. 36.04 sets out the general principles relating to adoptive admissions by silence, in part, as follows:
An adoptive admission is a statement made by a third party in the presence of and adopted by D. There is only adoption 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, silence may constitute an adoptive admission.
The respective roles of judge and jury in adoptive admissions are controversial. Consistent with basic principle, where an issue 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. [Emphasis omitted.]
[49] Under the heading “Related Provisions and Principles”, Watt J.A. sets out additional requirements where an accused’s silence is alleged to constitute an adoptive admission:
Where silence is the manner of an alleged adoption, there are several conditions that must be met:
i. D must have heard the statement;
ii. the statement must be about a subject matter of which D was aware;
iii. D must not have been suffering from any disability or confusion;
iv. the declarant must not be someone to whom D would be expected to reply, as for example, a child.
[50] These principles are derived, at least in part, from the seminal case R. v. Christie, in which Lord Atkinson held, at p. 554, that a statement made in the presence of an accused person is not evidence against him of the facts stated except to the extent that he accepts it by words, conduct, action or demeanour to make it in effect his own:
[T]he 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…. He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement was made amounts to an acceptance of it.
[51] In addition to the actions of an accused that might lead to an inference of adoption that are referred to in Christie, this court has consistently held that an accused’s silence may lead to an inference of adoption of a statement made in the accused’s presence in circumstances where the accused could reasonably have been expected to reply.
[52] In R. v. Eden (1970), 1969 329 (ON CA), 2 O.R. 161 (C.A.), Gale C.J.O. explained the principle this way, at pp. 163-164:
The right of a trial Court to conclude that an accused adopted an inculpatory statement made in his presence rests upon the assumption that the natural reaction of one falsely accused is promptly to deny or assert his innocence. It follows that before such an assumption can be acted upon the circumstances surrounding the making of the statement must be such that it would be normal conduct for the person involved by the statement to deny it. When the circumstances are such that the failure to protest can be attributed to some circumstance justifying such failure, the probative value of the failure to protest is lessened and may be entirely negatived.
[53] In R. v. Govedarov, Popovic and Askov (1974), 1974 33 (ON CA), 16 C.C.C. (2d) 238 (Ont. C.A.), Martin J.A. cited, at p. 278, Phipson on Evidence, 11th ed. (1970), at p. 767, for the more general proposition that:
The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances be such that he could reasonably have been expected to have replied to them.
[54] Martin J.A. repeated this basic formulation of the test in R. v. Baron and Wertman (1976), 1976 775 (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.), at pp. 539-40:
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 reply to them. Silence in such circumstances permits an inference of assent. [Citations omitted.]
[55] In R. v. Warner (1994), 1994 842 (ON CA), 94 C.C.C. (3d) 540, 21 O.R. (2d) 136 (C.A.), Griffiths J.A. expressed the test as follows, at p. 549:
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; Butterworth’s, 1992). In R. v. Baron, Martin J.A. put the principle as follows at pages 539-40:
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 reply to them. Silence in such circumstances permits an inference of assent.
[56] 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.
[57] This court’s most recent discussion of adoption by silence confirms the Baron and Wertman formulation of the test. In R. v. F.(J.), 2011 ONCA 220, 269 C.C.C. (3d) 258, aff’d without reference to this point, 2013 SCC 12, 293 C.C.C. (3d) 377, Rosenberg J.A. said the following, at para. 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 and Wertman. 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. … Evidence establishing on a balance of probabilities that he adopted the statement was sufficient to render it admissible against the appellant: R. v. Evans. [Citations omitted, emphasis added.]
[58] Finally, I note that in S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Canada Law Book, 2013), the authors recommend a cautionary approach to the doctrine of adoption by silence at p. 7-137:
One must approach adoption by silence with great care. In many cases the inference of adoption is based on perceptions of how the accused should respond in what are often extreme and unusual situations. Jury suppositions about how an accused “should” behave in such circumstances may be inaccurate. They should be cautioned to use care before finding that an accused has implicitly adopted a statement by virtue of his failure to respond in a particular way. [Citations omitted.]
[5] It is important to note that the Crown did not re-examine Ms. Fraser with respect to this line of cross-examination to clarify whether Mr. Sargeant was present and heard what was being said and what the circumstances were. It is difficult to say with any certainty that Mr. Sargeant was present or if he was present whether he heard what was being said.
[6] Having considered this testimony, I determined that the jury could not use this testimony for a substantive purpose. I acknowledge that where there is evidence on which a jury could find adoption, that factual determination should be left to them with appropriate instructions. However, without cogent evidence that Mr. Sargeant was even present it would be dangerous to permit the evidence to be used by the jury.
Fragomeni J.
Released: August 25, 2014
COURT FILE NO.: CRIMJ(F)1898/12
DATE: 20140825
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
PHILIP SARGEANT
RULING RE: ADOPTION BY SILENCE
Fragomeni J.
Released: August 25, 2014