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Canadian Criminal Evidence/Admissions and Confessions/Admissions

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General Principles

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An admission is evidence presented in trial that consists of either a written or oral statement by the Accused admitting some fact made to a witness. This form of admission is a categorical exception to the hearsay rule of inadmissibility. This applies regardless of whether the admission is exculpatory or inculpatory. The main determiner for admissibility is the discretionary balance of probative value and prejudicial effect.[1]

An admission can be made by actions/conduct rather than simply words.[2] The most often seen example is post-offence conduct such as flight or demeanour at arrest.

  1. ↑ R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 SCR 449
    R. v. Wells, 1998 CanLII 799 (SCC), [1998] 2 SCR 517
  2. ↑ eg. Hubin, [1927] SCR 442

Third Party Admissions

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See also Adoptive Admissions

A third party admission is evidence given from a non-accused witness with respect to a statement given by the accused at some time in the past. The two main forms of third party admissions are adoptive admissions and vicarious admissions.

An adoptive admission is where the admission arises by the Accused's adoption of a 3rd party's statement. The adoption can be made by words, actions, or demeanour. The adoption is only to the extent the Accused accepts the statement by words, conduct or demeanour.[1]

This admission can apply where the accused makes a statement, action or is silent in the face of a criminal accusation. The weight depends on whether the accused had a duty to speak and was expected to say something. [2]

This does not apply where the accused fails to reply to accusations under caution.[3]

A vicarious admission is one where an admission of the Accused is relayed by a third party. The admission can be by words, actions, or demeanor. This form of admission is often taken from a co-conspirator of the Accused.

  1. ↑ R. v. Emele (1940) 74 CCC 76 (SKCA)
  2. ↑ R. v. Sigmund, 1968 1 CCC 92 (BCCA)
  3. ↑ R. v. Chambers [1990] 2 SCR 1293; R. v. Cripps [1968] 3 CCC 323 (BCCA)

Admissions to Undercover

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An undercover officer posing as an inmate within a prison may only listen and not actively seek a confession.[1]

An undercover officer who is in contact with an accused out of custody, such as during a "Mr. Big" operation, may listen and activity attempt to elicit confessions.[2]

  1. ↑ R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151
    R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595
  2. ↑ R. v. Grandinetti, 2005 SCC 5 (CanLII), [2005] 1 SCR 27

Statements Made Upon Arrest

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Exculpatory statements of the accused upon arrest are admissible as an exception to prohibiting self-serving evidence when tendered by the Crown. [1] However, it has been held that such exculpatory statements can be admitted by the accused’s testimony. [2]

  1. ↑ Sopinka on Evidence at p. 319 para (f) and R. v. Knox (1968), 2 C.C.C. (2d) 348 at 360;
    see also R. v. Keller, (1977) 36 CCC (2d) 9
  2. ↑ The King v. Hughes, [1942] SCR 517 1942 CanLII 22 and R. v. Lucas

Admission by Co-accused

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It is generally well established that an accused's statement is admissible only against the person making making it. It is not admissible against a co-accused.[1]

It is for this reason that co-accused can have separate trials.[2]

  1. ↑ R v Ward 2011 NSCA 78 paras 28 to 40 R v C.(B),
    McFall v. The Queen, [1980] 1 SCR 321 1979 CanLII 176
    Starr 2000 SCC 40 at para 217
    Kelawon 2006 SCC 96 at para 96
  2. ↑ Guimond v. The Queen, [1979] 1 SCR 960 1979 CanLII 204

See Also

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