Admission is admissible only against the party making the statement.
Admissions of a party is the most important exception to the old rule against hearsay
Beware “admissions” also used:
For agreed statement of facts, a.k.a. “formal admissions” e.g. the accused admits he stabbed her
For “confessions” – statements by accused to person in authority or agent of state
Good rule of thumb: “Anything the other side ever said or did will be admissible so long as it has something to do with the case”. Huge amounts of hearsay are admitted in this way and often important for showing state of mind, and chances of the courts changing this under Smith unlikely (since usually sufficiently reliable and necessary etc.) and the party (e.g. accused) can always testify against it)
This admissions exception includes each of the following:
Statement made by the opposing party
Example: law suit between two parties in a car accident – driver states “I’m so sorry, it was my fault”
Act of the opposing party
Admissions may be implied / inferred from a party’s conduct. Generally admissible, but will depend on the inferences likely to be drawn.
E.g. Accused flees from the scene of a crime or when police visits accused’s home. Inference being this is an admission of guilt. Probative value considered low compared to potential for prejudice, so likely inadmissible (at least in criminal cases).
Statement by a third person which is expressly or impliedly adopted by the opposing party i.e. “adoptive statements” (really “adopted” statements):
Express adopted admission by words or conduct
I.e. the party in some way indicates an acceptance or belief in the truth of the hearsay statement
E.g. party says “I agree with what John said” then makes what John said admissible for the truth of John’s statement.
E.g. Streu, R. v. (1989) (S.C.C.) accused charged with possession of stolen tires, Crown needs to prove they actually were stolen and relied on certain admissions made by the accused (“my friend told me he ripped them off”) to the police, accused held to have expressly adopted views of his friend they were stolen, so words of friend admissible for their truth
Streu - where an accused makes an out of court admission, the test for whether or not the accused clearly adopts the admission is whether the accused treats the admission as true and acts upon it.
Admissions by silence or some other non-express conduct that implies party adopted the statement I.e. a third person says or does something amounting to a statement, either in the presence of the party or it is brought to the party’s attention, then infer by what the party does or says that they accept that statement
If a reasonable person would have said something, then silence may be considered as accepting the statement as true.
However, cannot use the right to silence as a response – Chambers – cannot used the silence of the accused as an admission of guilt
Fairly high burden on offering party to show strong basis for inferring party accepted the statement (party should generally be allowed to remain silent) so generally inadmissible unless it cried out for a response or party’s behaviour so unusual as to be suspicious
Law of Agency (“vicarious admissions”): statement by opposing party’s agent (e.g. employee, partner)
For principle to be bound by the statement of the agent, and hence to fall under admissions exception, requires:
An agency relationship (e.g. employer-employee) with opposing party being the principle
Statement made within the scope of that agency relationship i.e. statement within the scope of the authority of the agent
Statement made during the existence of that agency relationship
Common example of agency is partnerships, where each partner is in an agency-principle relationship with each of the other partners
Confessions
Unlike normal admissions, confessions are special - an admission is a confession if its made to a person in authority.
Admissibility of a “confession” is determined exclusively by the law of confessions. A “confession” is evidence of a statement by an accused made out of court offered by the Crown to a person in authority or agent of the state
A statement
Includes words spoken, document written, assertive conduct that conveys meaning / substitute for words (e.g. pointed to where the body is buried)
By an accused
By the accused (so only dealing with criminal law here) on trial right now, includes any statement made by them during their entire life
Made out of court
Made in any setting outside a court of law or (perhaps) administrative tribunal, coroner’s inquest, etc.
So a statement by accused in a previous trial does not fit here (instead see protection against self-incrimination)
Made to a person in authority or agent of the state
If statement made by accused to anyone else, admitted under the admissions exception to the old rule against hearsay (see above)
Because its made to a person in authority, a whole bunch of other rules kick in - special kind of admission.
Person of authority = someone officially involved in the arrest, examination of prosecution of the accused.
Offered in evidence by the Crown
Statements by accused can’t usually be offered by accused since self-serving
Subjective test to determine who is a person in authority:
Rothman v. R. (1981) (S.C.C.)
Facts: accused in custody told police he didn’t want to talk to them. Police put undercover P.O. in cell with him, and he made inculpatory statements to undercover P.O. not realizing he was a P.O.
Decision: A person in authority is a person whom the accused subjectively perceived could affect criminal proceedings against them. Not so here, so statements admitted.
Comment: has since been overruled on it’s facts by Hebert & Broyles, but subjective test is still good law
Hodgson,R v. (1998) (S.C.C.)
Facts: parents of sexual offence claimants dissatisfied with police progress, so acted as vigilantes and roughed-up accused resulting in accused making inculpatory statements.
Decision:
Parents were not agents of the state.
No evidence that accused perceived parent was a person of authority (even though parents had talked to police)
Thus the statement was not a confession (and so admissible under the admissions exception).
Test for admissibility for person in authority who is not an agent of the state: common law voluntariness = old voluntariness + admitting evidence will not being administration of justice into disrepute
Up until the 1960’s mostly concerned with reliability:
Ibrahim (1914) (J.C.P.C.)
Involuntary if obtained by
Fear of prejudice (e.g. violence or threats of violence) or
Hope of advantage (e.g. allow food or sleep, offers a deal to lessen charge, won’t charge your brother, and certain phrases became taboo for police such as “it would be better if” or “there is a hard way and an easy way”) and
held out by a person in authority and inducement caused the statement
In 1960’s and 1970’s expanded beyond mere reliability to concerns of due process (i.e. rights / fairness to accused) and some courts used a separate oppression test that made statements inadmissible due to atmosphere of oppression even though no inducement held out to the accused (i.e. no fear of prejudice or hope of advantage).
Rothman v. R. (1981) (S.C.C.)
Facts: accused in custody told police he didn’t want to talk to them. Police put undercover P.O. in cell with him, and he made inculpatory statements to undercover P.O. not realizing he was a P.O.
Decision: police can use tricks (such as undercover P.O. here) to get a confession from accused but not dirty tricks (so no dressing up as a priest and going into cell, nor as a lawyer or social worker).
Modern era:
KGB, R. v. (1993) (S.C.C.)
Decision: Lamer C.J. in obiter said admissible only if voluntary, which involves two things:
Facts: Accused questioned about 8 fires set offered help if confesses, encouraged to confess, police officers lie to him about polygraph, refer to fiancé, minimize legal consequences of confessing etc.
Held: Courts say this is not a problem (i.e. to breach CL confession rule have to really cross the line)
But case useful in that gives a clear articulation on rule Crown must establish BRD that choice to speak to the authority was voluntary in the sense that it was note overborne by inducements, oppressive circs, or the lack of an operating mind so concern with voluntariness broadly defined (look to entire circs – context)
Court states that questioning can be: persistent, accusatorial, suggesting benefits of confession OK, moral inducements OK, developing sense of trust OK
Notes that accused reminded of rights many times, told he could leave etc., never told that he could only get help if confessed (no quid pro quo offered)
Questioning cannot be hostile, aggressive, intimidating, cannot imply threats or hold out promises, fabricate evidence
Who is an agent of the state?
E.g. anyone working for the state, such as police officers (uniformed and undercover), prison guards, Crown counsel, etc.
Hebert, R v. (1990) (S.C.C.)
Facts: after accused said he didn’t want to make a statement, undercover P.O. went into cell of accused
Decision:
Doesn’t matter that accused didn’t subjectively know undercover P.O. was agent of the state. To determine if agent of the state, use objective test. Here, undercover P.O. clearly an agent of the state.
Recognizing the power imbalance between accused and state, especially when accused in custody, if:
Accused under arrest / charged / detained / a suspect, and
Accused indicated they didn’t want to make any statements.
Then Charter s.7 implies a right to silence, and a right not to have state use it’s coercive power to get any statements
Sweeney (2000) (Ont. C.A.):all common law on voluntariness has been subsumed into Charter s.7 analysis i.e. if involuntary under common law, then violates s.7.
Mandatory voir dire for admissibility of “confessions”, may waive, burden of proof varies
A voir dire is mandatory to determine admissibility of statements by accused to person in authority or agent of the state. If Crown doesn’t request a voir dire before asking witness about statement, judge should immediately order one.
If statement made to person in authority:
Crown must prove beyond a reasonable doubt it was made voluntarily
If a subtle case: burden on defence to show Charter violation, so must show on a balance of probabilities that it was an agent of the state, that the statements were actively elicited, etc.
But if question of oppression / traditional notion of voluntariness (i.e. fear of prejudice or hope of advantage)
Crown gets to decide whether or not they will put the statement is in once its determined to be voluntary. But the whole statement must go in, subject to editing for fairness – some elements may hurt the accused, others may help.
Oickle (2000) (S.C.C.)
Facts: concerned arson, accused took polygraph test and failed it, police immediately afterwards interviewed him and obtained statements that helped their investigation against him.
Issue: was whether these statements were voluntary or made in an atmosphere of oppression, and who had burden in voir dire to show this.
Decision: where there is a question of whether an agent of the state acting oppressively, burden in voir dire will be on the Crown to show statements were made voluntarily (and this was the case here).
R. v. Spencer (2007)
Facts: Accused charged with robbery. Wanted to make a deal with the cops so that his girlfriend would not be accused.
Held 5-2: A promise renders a statement involuntary if the quid pro quo raises a strong enough inducement to raise a reasonable doubt that the will of the suspect was overborne.
Ruled that the accused will had not been overborne.
R. v. Singh (2007)
Facts: Accused was in custody. Stated that he didn’t want to talk, but the police persisted at great length. Eventually, accused does make some admissions that are useful to the Crown though not fully inculpatory.
Issue: Accused did not contest the trial judges finding that the confession was voluntary. Only issue was whether even though the confession was voluntary, his section 7 right to silence nonetheless meant that it should be excluded.
Held5-4: in a situation like this, the common law confessions rule and the section 7 right to silence are essentially equivalent. Having determined that the confession was voluntary, the section 7 right to silence has therefore not been violated – his will had not been overborne.
Para 38:Summary of Oickle – reminds us that the common law confessions rule is important and has certainly not been overshadowed by s. 7 right to silence:
Has a broader scope: while the Charter is only triggered upon arrest or detention, the CL confessions rule kicks in whenever the accused is questioned by a person in authority.
Charter has a different burden and standard of proof. For the confessions rule, the burden is on the state to prove beyond a reasonable doubt that the statement was voluntary. For s. 7, accused must show on a balance of probabilities that there was Charter violation.
Remedies are different: if a Charter right to silence is violated, still discretion to admit it under s. 24. However, if the common law confessions rule is violated, there is an automatic exclusion
Para 39 – describes situations where there is clear distinction between the confessions rule and s. 7
Turcott: pre-trial right to silence
S. 7 may be invoked to prevent cross-examination on your silence
Hebert – cannot use police trickery to undermine your choice not to speak. Cannot actively elicit, but may passively observe.
Sweeney – derivative evidence - ??
Common Law Confessions Rule
Charter Rights to silence
More procedural advantages – easier for the accused to prove
More protections – tends to catch more
Burden of Proof
Crown has to prove that confession was obtained voluntarily
Accused has to prove that there was a breach of rights
Evidence
Evidence is excluded no matter what
If breach of rights – must go through 24.2 exclusion of evidence analysis
Standard
Key is if accused thought that the person was an authority – beyond a reasonable doubt
Objective test of whether accused was denied the real choice – balance of probabilities
Goal
Reliability and fairness
Protection of rights
Prior Inconsistent Statements
Background to KGB:
Transitional case in determining exceptions – i.e. this case came down between Smith and Starr
So this case shows us how the categorical approach fits the principled approach
Issue over Prior inconsistent statements:
Subject to Collateral Facts Bar and s. 9 and 11 of CEA
You can impeach a witness on a prior inconsistent statement – but what was the use you could make of a prior inconsistent statement? Credibility only prior statement does not snap in as truth (this statement is not raised for that “truth”) – this was the CL rule up to KGB – prior inconsistent statements admissible for credibility and not for truth since they are hearsay
May be able to get around the hearsay rule though following KGB
Declarant in stand:
But hearsay dangers do arise with prior inconsistent statements even when declarant is on the stand
If cannot get witness to adopt the prior inconsistent statement then:
No oath on original statement
No opportunity to observe the making of statement
No cross-examinaiton of original statement
Analogous to a declarant-less statement
R v. B(KG) “KGB” (1993)
Facts: Street fight death 4 men involved: accused and 3 “witnesses” who are questioned by police (videotaped) but change story on stand regarding accused’s incriminating statement; on s. 9 admission of tape Crown impeaches with prior statement – cannot use though since they want to rely on this statement as truth (it is their best evidence) – prior to KGB inadmissible they say that they had lied during investigation – trial judge holds that evidence can go to credibility not identity later the 3 plead guilty to perjury
Issue: Substantive admissibility of prior inconsistent statements by witness other than accused
Held: Court decides to analyse in light of Kahn and Smith (pre-Starr)
Affirm reliability and necessity and articulate that prior inconsistent statements will be admissible for their truth if they are necessary and reliable
Necessity: how do you determine necessity? Where else can we get the statements’ truth from – no other way it can be relied upon – i.e. no other way to get evidence of same value since witness now refuses to cooperate
Reliability:Most analysis occurs under this branch – indicia of reliability – i.e. looking to Smith – this is a Q of law and not fact.
If you have statement under oath, solemn affirmation, after a warning about consequences of not telling truth,
and if it is video-taped in its entirety this is sufficiently reliable – although have only seen this applied to videos, could apply elsewhere;
And if the opposing part, has a full opportunity to cross-examine the witness now on the stand respecting this prior statement
So new categorical exception with principles of Smith in mind
KGB provided criteria to even allow prior inconsistent statement of ordinary witnesses to go in.
