Court File and Parties

Court File No.: CR-17-0000422 Date: 2018-10-05

Ontario Superior Court of Justice

Between:

Her Majesty the Queen, Applicant (A. Esson and S. Ferrone for the Crown)

- and -

Hassan Salifu, Respondent (J. Kaldas and R. Wong for the Respondent)

Heard: September 11, 2018

Ruling Re Adoption by Silence

D.E. Harris J.

[1] I earlier ruled that the discreditable conduct evidence of Nadira Dindyal was admissible on behalf of the Crown, its probative value outweighing its prejudicial effect: R. v. Salifu, 2018 ONSC 5606.

[2] There is one further aspect that merits attention. In her statement to the police, Ms. Dindyal said that when she asked the deceased whether the accused ever hit her, the deceased said, “Oh Nadira.” The question here is whether this exchange is admissible at trial.

[3] The Crown argues, quite correctly, that the deceased’s response may well pass the admissibility threshold as an adoptive admission by silence: R. v. Robinson, 2014 ONCA 63, [2014] O.J. No. 272, at paras. 48-58. It would be open to the jury to find that in full context, the deceased having not denied that the accused hit her, by her response was saying that he had.

[4] However, in my view, the problem is that the probative value of the evidence is outweighed by its prejudicial effect. Assuming that evidence the accused previously struck the deceased would be admissible, the extra inferential step required in the case of an adoptive admission significantly detracts from the probative value of the evidence.

[5] What comes to mind is the situation described by Justice McIntyre in the important similar fact case of R. v. Sweitzer, [1982] 1 S.C.R. 949, [1982] S.C.J. No. 48. In Sweitzer, 11 previous episodes of sexual assault were admitted into evidence. However, there was no identification of Sweitzer with respect to any of the 11, other than the general similarity of the assaults to the offence charged.

[6] Justice McIntyre held for the court that it was wrong to admit the 11 episodes as they were not shown to be connected to the appellant and were not of sufficient similarity to the other offences in which there was direct identification of him. Therefore they were of no relevance or probative value.

[7] The Sweitzer case, although emerging out of an entirely different factual situation, is instructive. Sweitzer demonstrates that probative value can be reduced or even eliminated by a lack of connection between the previous acts and the conclusion sought to be drawn by the Crown.

[8] The links in the reasoning in the case at hand are weak. Proving previous assaults through the circumstantial means of an adoptive admission attenuates the strength of the conclusion which the Crown is asking the jury to draw.

[9] As Justice Simmons said in Robinson, albeit in the slightly different context of an accused’s adoption by silence,

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.]

[10] Leaving aside the issue of whether the deceased was agreeing by her ambiguous response that she had been assaulted, there are unresolvable questions remaining. What type of hitting are we talking about and in what circumstances? There is no way, on the thin evidence proffered, the jury could possibly answer these questions. Yet the answers are critical to whether there is substantial probative value in the evidence. Furthermore, the open-ended nature of the evidence suggests that a serious risk of wide ranging speculation exists.

[11] The evidence is too vague to be admitted in the face of its obvious prejudicial effect. For these reasons, the evidence is inadmissible. This conversation with the deceased will have to be avoided in the witness’ testimony.

D.E. Harris J.

Released: October 5, 2018