6. Admissions of a Party

AuthorDavid M. Paciocco - Lee Stuesser
ProfessionJustice of the Ontario Court of Justice - Professor of Law, Bond University
Pages146-160

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A party may introduce into evidence against an opposing party any relevant

· statement made by the opposing party;

· act of the opposing party;

· statement made by a third person which is expressly adopted by the opposing party or where it may be reasonably inferred that the opposing party has adopted it;

· statement by a person the opposing party authorized to make the statement, or where the statement was made by the opposing party’s agent or employee concerning a matter within the scope of the agency or employment, during the existence of the relationship; and

· statement made by a co-conspirator in furtherance of a conspiracy.

Admissions are acts or words of a party offered as evidence against that party.128Professor Younger provides this 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."129Often the phrase "admission against interest" is used. Beware. The phrase invites confusion between an admission made by a party and the completely different hearsay exception for "declarations against interest" made by non-parties.130An admission does not require that a party knowingly make a statement against interest. The evidence is "against interest" simply because the opposing side has decided to introduce it at trial against the party. R. v. Evans illustrates the point.131Evans was charged with armed robbery. Identity was at issue. The getaway car was purchased from a couple two

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days prior to the robbery. The couple were unable to positively identify the purchaser, but did recall that the man told them that he worked in chain-link fencing, had a big dog, and that the dog was going to have pups. These statements are innocent enough. At the time it could be said that the man had no intent of making them "against interest." The statements became "against interest" because the Crown now sought to admit them into evidence, along with evidence that Evans also had worked in chain-link fencing and owned a large, pregnant dog.

For our purposes, we have classified admissions as hearsay. This interpretation is open to debate. Wigmore was of the view that admissions were not hearsay at all, in that they passed the gauntlet of the hearsay rule because the party against whom the evidence is being admitted has no need to cross-examine himself.132However, the prevailing view, and one accepted by the Supreme Court of Canada in Evans and in R. v. Couture133is that an admission is an exception to the hearsay rule. We need not resolve this debate since under either view an admission is admissible. Nevertheless, this distinction is important as it may put admissions outside the analytical framework set out in Starr. As noted by Justice Sopinka in R. v. Evans:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements.134Flowing from this, the Ontario Court of Appeal in R. v. Foreman found that admissions are admitted "without any necessity/reliability analysis."135

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Most admissions take the form of statements - written or oral. These statements may be used to impeach the party by way of showing a prior inconsistent statement, and they are admissible for their truth. There is no need to comply with the dictates of K.G.B., which applies to prior inconsistent statements made by non-parties.

Confessions of an accused in a criminal prosecution are a type of admission governed by special rules.136A confession is where the accused makes a statement to "a person in authority." When this occurs the "confessions rule" applies and the Crown bears the onus of proving the voluntariness of the statement beyond a reasonable doubt. Determining voluntariness is usually dealt with in a voir dire. An admission is when an accused makes a statement to ordinary persons; in this case the statements are presumptively admissible without the necessity of a voir dire.137

6. 1) Formal and Informal Admissions

Admissions are either "formal" or "informal." "Formal" admissions dispense with the need to prove a fact in issue. In other words, a party is prepared to concede the particular point. The formal admission, once made, is binding on the party and is not easily withdrawn. For example, in a personal injury action it is quite common to see the defendant admit liability but contest the quantum of damages. Liability is no longer in dispute, and any evidence subsequently sought to be introduced on that point ought to be excluded as irrelevant; the formal admission has conclusively resolved that issue. In civil cases, formal admissions may be made by way of the pleadings, in agreed statement of facts, or by submissions of counsel. In criminal cases the most common "formal" admission is that of the guilty plea. Section 655 of the Criminal Code also allows an accused to admit any fact alleged by the Crown against him. We will primarily be concerned with "informal" admissions. An "informal" admission is not conclusive proof of an issue, nor does it in any way bind the parties; it is always open to be contradicted or explained.138The distinction between formal and informal admissions came to the fore in R. v. Korski where certain witness statements were introduced by consent as "agreed facts." Defence counsel argued that the

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jury ought to have been instructed to accept as fact what was said by the witnesses in their statements. Madam Justice Steel, writing for the Court of Appeal, disagreed. The statements were not going in as "formal" admissions of fact; rather they were "merely agreements as to what the witnesses would have said, not that what they say is necessarily true."139

Counsel need to be mindful of the distinction and clearly put on the record what is agreed to.

6. 2) Admissions Need Not Be Based on Personal Knowledge

An admission need not be based on personal knowledge. A party may accept what others say and, if so, the party is deemed to have adopted those statements. The case of R. v. Streu is a classic illustration.140The accused was charged with possession of stolen tires and rims. The Crown needed to prove that the items were actually stolen and relied on certain admissions made by the accused. In selling the items to an undercover police officer, Streu said: "My friend ripped them off. . . . Well, I know they’re hot and all but they’re his tires." Streu presumably was relying on what he was told by his friend. The Crown had no other proof that the tires and rims were stolen property. Streu’s statements of belief needed to be accepted as statements of fact. The Supreme Court of Canada held that they were. Sopinka J. wrote:

The rationale underlying the exclusion of hearsay evidence is primarily the inherent untrustworthiness of an extrajudicial statement which has been tendered without affording an opportunity to the party against whom it is adduced to cross-examine the declarant. This rationale applies equally in both criminal and civil cases. It loses its force when the party has chosen to rely on the hearsay statement in making an admission. Presumably in so doing, the party making the admission has satisfied himself or herself as to the reliability of the statement or at least had the opportunity to do so.141The party must in some way indicate an acceptance or belief in the truth of the hearsay statement. The value to be attached to the belief, of course, is a matter of weight for the trier of fact. "On the other hand, if the party simply reports a hearsay statement without either adopting

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it or indicating a belief in the truth of its contents, the statement is not admissible as proof of the truth of the contents."142

6. 3) Admissions by Conduct

Admissions may be implied from a party’s conduct. As Professor Younger stated in his rule of thumb, admission includes "[a]nything the other side ever said or did." For example, an accused person can effectively be signalling or acknowledging their guilt by fleeing from the scene of a crime or by lying when confronted with the accusations.143Or, an admission of negligence may be inferred from evidence of subsequent remedial measures taken after an accident.144The issue really is one of relevancy. Courts must be satisfied as to the validity of the inference from the conduct to the alleged admission. For example, in Walmsley v. Humenick, the five-year-old defendant shot an arrow that caused his playmate, the plaintiff infant, to lose his right eye.145The defendant’s parents helped to pay for the plaintiff’s medical bills. The plaintiff now claimed that this act was an admission of liability. The trial judge rejected this argument. On the evidence, the two families were friends and neighbours and the payments could just as easily have been a gesture of compassion, which in the circumstances should not be construed as an admission of liability.

6. 4) Admissions by Silence

Admissions also may be implied from a party’s silence. Certain preconditions must exist: (1) a statement, usually an accusation, is made in the presence of the party; (2) in circumstances such that the party would be expected to respond; (3) that the party’s failure to respond could...

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