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Evidence - Admissions

. R v Scott

In R v Scott (Ont CA, 2021) the Court of Appeal considered different forms of admission in a criminal case:
[66] This admission does not purport to state an objective fact: rather, it records the observations Mr. Cameron said that he made. It was an admission that, if asked about the matter during his testimony, Mr. Cameron would have provided that information. Exhibit #8 contained further admissions along these same lines.

[67] This type of admission has been called an informal admission: see R. v. Stennett, 2021 ONCA 258, at para. 57; R. v. Korski, 2009 MBCA 37, 236 Man. R. (2d) 259, at paras. 114-128, 137; R. v. Falconer, 2016 NSCA 22, 372 N.S.R. (2d) 186, at para. 49. Discussing the difference between admissions as to objective facts (formal admissions) and admissions as to the anticipated evidence of a witness (informal admissions), Watt J.A. said in Stennett, at para. 58, “An agreement about what a witness could say or would have said is not an agreement that what they say is true”: Korski, at para. 125.
. Paletta International Corporation v. Liberty Freezers London Ltd.

In Paletta International Corporation v. Liberty Freezers London Ltd. (Ont CA, 2021) the Court of Appeal considered an evidentiary admission:
[29] The trial judge’s ruling that the deemed admissions by the other defendants would not be admissible against the respondents also rests on solid ground. An admission made by one party in a judicial proceeding is not admissible against other parties to that judicial proceeding: Correia v. Canac Kitchens, 2008 ONCA 506, at para. 110; R. v. C.(P.), 2015 ONCA 30, at paras. 39-45.
. Champoux v. Jefremova

In Champoux v. Jefremova (Ont CA, 2021) the Court of Appeal considered the nature of an admission:
[28] The trial judge then went on to apply the test from Antipas v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.), as recently endorsed in Liu v. The Personal Insurance Company, 2019 ONCA 104, 89 C.C.L.I. (5th) 195, at para. 13. That test directs courts to first consider whether the admission is one purely of fact, law, or mixed fact and law (since questions of law can be more easily withdrawn than questions of fact), and then apply a three-part conjunctive test regarding when an admission could be withdrawn, being:
(a) Does the proposed amendment raise a triable issue in respect to the truth of the admission?;

(b) Is there a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions?; and,

(c) Has the party wishing to withdraw the admission established that the withdrawal will not result in any prejudice that cannot be compensated for in costs?

[34] A trial judge has the freedom to interpret what an admission means: Allto Construction Services Ltd. v. Toronto and Region Conservation Authority, 2017 ONCA 488, at para. 11. But that interpretive exercise cannot morph into an analysis of the veracity of the admission. A formal admission is not like other pieces of evidence led at trial that a judge can weigh at their discretion. A formal admission is conclusive of the matter admitted. The court is bound to act on formal admissions before it, even if other evidence contradicts the admission: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 106.
. R v Lo

In R v Lo (Ont CA, 2020) the Court of Appeal engages in a useful review of the evidence rule of admissions:
The Governing Principles

[63] Evidence is receivable in a criminal trial if it is relevant, material, and admissible. Neither at trial nor in this court is there any controversy about the relevance or materiality of this evidence. The issue is one of admissibility, more specifically, whether the evidence in question satisfies the rule governing admissions.

What is an Admission?

[64] In traditional terms, an admission could be described as a statement of an opposing party offered in evidence against that party. A statement can include an express oral or written assertion or implied from nonverbal conduct intended by the party as an assertion. See, Federal Rules of Evidence, 28 U.S.C. rr. 801(a) & 801(2) (5th Supp 2011). See also, Robert P. Mosteller et al, McCormick on Evidence, 8th ed. vol 2 (Thomson Reuters, 2020), at pp. 273-74.

The “against interest" Requirement

[65] At trial and in this court, the parties referred to the admissibility rule as that which governs “admissions against interest". This qualified descriptive sometimes appears in decisions of courts of high authority. See, for example, R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207, at para. 28.

[66] The additional “without interest" qualifier confuses admissions with declarations against interest. Each is a discrete exception to the hearsay rule, if admissions are hearsay at all: see, R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at pp. 662-64. Admissions are often against their maker's interest. Were they otherwise, the opposing party would be unlikely to tender them as part of their case. But they need not be against interest. And they need not satisfy any of the requirements for declarations against interest, as for example, the unavailability of the declarant: McCormick at pp. 557-59.

Who can make admissions?

[67] For the most part, admissions are made by the party against whom they are offered in evidence. But they may also be made by an agent within the scope of their authority: R. v. Strand Electric Ltd., 1968 CanLII 421 (ON CA), [1969] 2 C.C.C. 264 (Ont. C.A.), at p. 268; Metro Conference Centre Inc. v. Hunter, 2016 ABCA 83, at para. 42. Counsel acting for an accused may also make admissions on behalf of the accused: English v. Richmond, 1956 CanLII 8 (SCC), [1956] S.C.R. 383, at paras. 4-5. Section 655 of the Criminal Code expressly authorizes counsel to “admit any fact alleged…for the purpose of dispensing with proof thereof".

The Types of Admissions

[68] Admissions may be formal or informal. In criminal proceedings, the Criminal Code recognizes two formal admissions:
• a plea of guilty; and

• an admission of fact under s. 655.
A plea of guilty is a formal in-court admission by an accused that they committed the offence to which the plea has been entered. It also constitutes a waiver of both an accused's right to require the Crown to prove its case beyond a reasonable doubt and related procedural safeguards, some of which are constitutionally protected: R. v. Lopez-Restrepo, 2018 ONCA 887, 369 C.C.C. (3d) 56, at para. 23, citing R. v. T. (R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519.

[69] In the proceedings in which they are entered, formal admissions are conclusive of the facts admitted. They are not subject to contradictory proof. On the other hand, informal admissions are not conclusive: Glover v. Leakey, 2018 BCCA 56, 7 B.C.L.R. (6th) 1, at paras. 28-30.

Admissions Made in Other Proceedings

[70] Sometimes, formal admissions made in prior proceedings may be tendered and received in evidence in later proceedings. For example, a plea of guilty in a prosecution for a provincial or criminal offence may be received in evidence in subsequent civil or criminal proceedings.

[71] In English, English was charged with dangerous operation of a motor vehicle under the Criminal Code. Part way through English’s trial before a magistrate, the Crown Attorney, who considered that the evidence did not support the charge, withdrew the count of dangerous operation. English pleaded guilty to a count of careless driving under the Highway Traffic Act, R.S.O. 1950, c. 167. At the joint trial of three civil actions for damages arising out of the motor vehicle accident, English was cross-examined on his plea of guilty to careless driving in the earlier proceeding. The evidence was held to have been properly admitted as showing conduct by English which, on its face, was inconsistent with his testimony at the civil trial where he denied negligence: at paras. 4, 5, and 24.

[72] In R. v. Dietrich, 1970 CanLII 377 (ON CA), [1970] 3 O.R. 725, (C.A.), leave to appeal to S.C.C. refused [1970] S.C.R. xi, Dietrich pleaded guilty to non-capital murder when arraigned on an indictment charging him with capital murder. A conviction of non-capital murder was entered, and a life sentence was imposed. At the time of trial, no statutory provision, such as current s. 606(4), permitted entry of a plea of guilty to an included or other offence arising out of the same transaction as the offence charged. Dietrich's appeal was allowed, and a new trial ordered: R. v. Dietrich, 1968 CanLII 293 (ON CA), [1968] 2 O.R. 433 (C.A.).

[73] At Dietrich's second trial, Crown counsel closed his case by reading to the jury portions of the transcript of the first trial, including the plea of guilty to non-capital murder and some details about the reasons for its entry. On an appeal from the conviction entered at the conclusion of the second trial, this court held that this evidence had been properly received as an admission: Dietrich, at p. 56. See also, R. v. W.B.C. (2000), 2000 CanLII 5659 (ON CA), 142 C.C.C. (3d) 490 (Ont. C.A.), at paras. 59-60, aff’d 2001 SCC 17, [2001] 1 S.C.R. 530.

[74] Leaving to one side its availability in professional disciplinary proceedings, such as those before the CPO, a plea of “no contest" or, more fully, nolo contendere, is not available to an accused in criminal proceedings. As s. 606(1) of the Criminal Code makes clear, an accused called upon to plead in criminal proceedings may plead guilty, not guilty, or the special pleas authorized by Part XX and no others. See, R. v. G. (D.M.), 2011 ONCA 343, 105 O.R. (3d) 481, at para. 39.

[75] Nolo contendere, translated from the Latin, “I do not wish to contend", is a formal plea available in some jurisdictions under specific enabling legislation. By entering this plea, a defendant neither contests nor admits guilt of the offence to which the plea is entered: G. (D.M.), at para. 44. A procedure with some affinity to what ensues after a nolo contendere plea has developed in this province. Its purpose is to preserve a right of appeal from a decision on a contested pre-trial motion that would be lost if a plea of guilty were entered. The procedure involves:
i. a plea of not guilty;

ii. an Agreed Statement of Facts establishing the essential elements of the offence(s) charged;

iii. no submissions on proof of guilt by the accused; and

iv. entry of a conviction.
See, Lopez-Restrepo, at para. 25 citing R. v. Falkner, 2018 ONCA 174, at para. 92.

The Rationale for Admissions

[76] Some controversy exists about the basis upon which admissions are received in evidence in criminal proceedings. Are they received as an exception to the hearsay rule? Or are they not hearsay at all?

[77] In Morgan's view, admissions are received as an exception to the hearsay rule. But this requires proof of necessity and reliability or a listed exception that meets those requirements. However, the admissions rule furnishes no objective guarantee of trustworthiness. The declarations may be self-serving when made. The declarant need not have firsthand knowledge of the matters admitted. And the declarant is available, sitting in the courtroom: Edmund M. Morgan, “Basic Problems of Evidence” Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association (1963), at pp. 265-66.

[78] Wigmore contended that a party's declaration had a special value when offered against the party. Admissions meet the requirement of the hearsay rule. The declaration is that of the opponent who does not need to cross-examine himself: John H. Wigmore, Wigmore on Evidence, volume 4 (Chadbourn Rev., 1972), at § 1048, p. 5.

[79] Strahorn classified all admissions offered against the party, whether words or acts, as conduct offered as circumstantial evidence, rather than for its assertive testimonial value. The circumstantial value lies in its inconsistency with the party’s claim at trial: John S. Strahorn Jr., “A Reconsideration of the Hearsay Rule and Admissions” (1937) 85 U. Pa. L. Rev. 484, at p. 576.

[80] In Evans, Sopinka J. said that the rationale for admitting evidence of admissions has a different basis than the other hearsay exceptions, if the evidence is hearsay at all. Admissions do not require independent circumstantial guarantees of trustworthiness. It is enough that the admissions are tendered against the party making them. Thus, admissibility is grounded on the theory of the adversary system; that what a party has previously said (or done) can be admitted against that party in whose mouth it ill lies to complain of the unreliability of their own statements: Evans, at para. 24.

[81] In subsequent authorities, the Supreme Court appears to confirm that admissions are received as exceptions to the hearsay rule. Unless made to persons in authority, an accused's admissions are presumptively admissible: R. v. T. (S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 20; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 31; R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207, at para. 28; R. v. Waite, 2014 SCC 17, [2014] 1 S.C.R. 341, at paras. 3-4.

[82] An admission tendered by the opposite party that is relevant and material may be excluded where its prejudicial effect exceeds its probative value: Terry, at para. 28.


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