Overview
A mistrial should only be declared in the clearest of cases which cannot be cured by any lesser remedial measure. The evidence heard by the jury had not compromised the entire trial to the point that no other remedy will do, short of a new trial.
Ontario Judgments
Ontario Superior Court of Justice
[REDACTED] J.
Heard: April 18, 19 and 23, 2018.
Judgment: May 3, 2018.
Court File No.: [REDACTED]
[2018] O.J. No. [REDACTED] |
Between Her Majesty the Queen, Respondent/Crown, [REDACTED], Applicants/Accuseds
(166 paras.)
Counsel
[REDACTED], for the Crown.
[REDACTED], for the Accused, [REDACTED].
[REDACTED], for the Accused, [REDACTED].
[REDACTED], for the Accused, [REDACTED].
[REDACTED], for the Accused, [REDACTED].
RULING ON MISTRIAL APPLICATION No.
2 HEARSAY - ADOPTIVE ADMISSION BY
SILENCE
[REDACTED] J.
THE MOTION
1 The defence brings a mistrial application.
2 During the evidence in chief of Crown witness, [REDACTED], he testified about a meeting he had with [REDACTED] and the Accused, [REDACTED], at Mr. [REDACTED]'s apartment in Bradford, Ontario, after the incident of September 12, 2015.
3 In the indictment, it is alleged that that the accused persons, [REDACTED], [REDACTED], [REDACTED] and [REDACTED], did unlawfully kill [REDACTED] and thereby commit manslaughter.
4 It is further alleged that the same accused persons committed assault with a weapon upon [REDACTED] and did further commit an assault on [REDACTED], causing him bodily harm.
OVERVIEW
5 Mr. [REDACTED] testified that at the meeting at Mr. [REDACTED]'s apartment, Mr. [REDACTED] told Mr. [REDACTED] in the presence of Mr. [REDACTED] that the police would be contacting Mr. [REDACTED]. Mr. [REDACTED] wanted Mr. [REDACTED] to say what happened between Mr. [REDACTED] and some individual at the incident was self-defence. Mr. [REDACTED] said okay. Nothing further was discussed.
6 After this evidence was given by Mr. [REDACTED], the defence (primarily by counsel for Mr. [REDACTED] and also by all other defence counsel) raised an objection on the grounds that the testimony of Mr. [REDACTED] about what was said to him by Mr. [REDACTED] in the presence of Mr. [REDACTED] was hearsay evidence, was not admissible and was extremely prejudicial. As a result, the defence submitted that a mistrial ought to be declared.
7 The Crown submits that what Mr. [REDACTED] and Mr. [REDACTED] said were statements made in the presence of Mr. [REDACTED]. In the circumstances, the Crown submits Mr. [REDACTED]'s silence constitutes an adoptive admission. The Crown also submits Mr. [REDACTED]'s specific testimony about the discussions at Mr. [REDACTED]'s apartment involving Mr. [REDACTED], Mr. [REDACTED] and Mr. [REDACTED] was not hearsay evidence. Rather, the Crown submits the evidence is admissible to the extent that Mr. [REDACTED] assented to the truth of the statements inferred from his silence. Accordingly, the mistrial application ought to be dismissed.
8 Unfortunately, the impugned testimony of Mr. [REDACTED] was not the subject of any pretrial motion at the request of either side. Apparently, it was not discussed at any judicial pretrial. Neither was there any objection taken by the defence before the subject of the discussion at Mr. [REDACTED]'s apartment took place with Mr. [REDACTED] and Mr. [REDACTED] after the incident.
9 The Crown submits that the defence ought to have been aware from the proceedings at the preliminary inquiry that such an area of questioning would have taken place at trial with this witness and that the defence should have objected before the evidence was given.
10 The defence submits that if the Crown intended to tender this evidence, the Crown ought to have obtained an admissibility ruling by way of a voir dire before Mr. [REDACTED] testified about the meeting and what was said in the presence of Mr. [REDACTED].
11 In this case, we are not dealing with the timeliness of evidence that was "blurted out" at trial. The jury has already heard this evidence. Now, after the fact, we must deal with evidence which has become problematic, both by its timing of introduction and by its very nature. Engaging in a determination as to which of the parties is responsible for the problem at this stage does not assist the court in the ultimate ruling of whether or not the statements amount to an adoptive admission, probative value versus prejudicial effect, and admissibility.
12 The defence submits the evidence of Mr. [REDACTED] creates a mistrial not curable by instruction to the jury. The Crown submits there is no basis for mistrial. Rather, an instruction ought to be given to the jury at this time.
13 In advance of any ruling, I decided that the court should hear by way of voir dire (of course, in the absence of the jury) all of Mr. [REDACTED]'s evidence, including his evidence-in-chief. He would be cross-examined and re-examined. The Crown would be permitted to ask some further questions in-chief, now that this objection has arisen and submissions by all counsel had been made to the court. The defence agreed, but with further questioning by the Crown in-chief, only limited to this narrow issue. Also, the defence would be entitled to cross-examine with the appropriate latitude, given the issue presented to the court.
14 A voir dire was conducted, after which further submissions were made by counsel.
EVIDENCE OF [REDACTED] ON THE VOIR DIRE
15 Mr. [REDACTED] is 22 years of age. He was originally a United States Citizen but moved to Canada in May of 2015. After he arrived, he became a student at Seneca College taking a social service worker course. He is now employed as a personal support worker.
16 His course of studies at Seneca College involved a 2 year program. He graduated from that program in 2016.
17 Mr. [REDACTED] was interviewed by police in respect of events which occurred on September 11 and 12, 2015.
18 He was shown a series of 10 photographs of persons in the lobby of [REDACTED]'s apartment. These photos were marked Exhibit 11 (1 to 10 inclusive). Mr. [REDACTED] testified that he met Mr. [REDACTED] on the evening of the incident. He described what he saw in each of the photographs. He described seeing Mr. [REDACTED], Mr. [REDACTED], Mr. [REDACTED], Ms. [REDACTED] (described as [REDACTED]), Mr. [REDACTED] and himself in those photos. Mr. [REDACTED] identified Mr. [REDACTED], Ms. [REDACTED] and Mr. [REDACTED] in court as being those persons that were depicted in the photographs.
19 He first met Mr. [REDACTED] during orientation week at school. On September 11, 2015, he met with Mr. [REDACTED] to attend a get-together in Bradford. They went to Mr. [REDACTED]‘s apartment in Bradford. Mr. [REDACTED] had consumed no alcohol. He was introduced to Mr. [REDACTED]. Mr. [REDACTED] left the apartment to go and pick up a friend. He returned about 30 minutes later with that friend. They went to the Village Inn in Bradford. Mr. [REDACTED] drove with Mr. [REDACTED] and 2 other individuals. Mr. [REDACTED] drove with [REDACTED] and her friend. He did not know who [REDACTED]'s friend was, as he had not seen her before. He did not go to any other place before going to the Village Inn. He had never been to the Village Inn before.
20 Upon arriving at the Village Inn, Mr. [REDACTED] walked around. He stayed there for 15 minutes. He wanted to leave, but Mr. [REDACTED] told him to wait because he had to go and pick up a friend. During the 15 minutes, Mr. [REDACTED] did not consume any alcohol.
21 Mr. [REDACTED] returned and they went back to Mr. [REDACTED]'s apartment. At that time, Mr. [REDACTED], Ms. [REDACTED], her friend, Mr. [REDACTED], Mr. [REDACTED] and Mr. [REDACTED] were there. Mr. [REDACTED] said he was going to pick up Mr. [REDACTED].
22 Mr. [REDACTED], Mr. [REDACTED], Mr. [REDACTED] got into Mr. [REDACTED]'s car. At that time, Ms. [REDACTED] was in the front passenger seat, Mr. [REDACTED] was driving. Mr. [REDACTED], Mr. [REDACTED] and Mr. [REDACTED] were in the back seat. About 5 minutes later, they arrived at Mr. [REDACTED]'s house. Mr. [REDACTED] changed places with Ms. [REDACTED]. She sat in the back and Mr. [REDACTED] sat in the front passenger seat. Mr. [REDACTED] identified Mr. [REDACTED] in Court. There were 6 people travelling in the 2-door Honda Civic driven by Mr. [REDACTED]. Ms. [REDACTED] was seated in the back seat behind the front seat passenger. Mr. [REDACTED] sat to her left, Mr. [REDACTED] was to the left of Mr. [REDACTED] and to the left of Mr. [REDACTED] was Mr. [REDACTED].
23 They were on their way back to Mr. [REDACTED]'s apartment. It was after midnight. Again, Mr. [REDACTED] had not consumed any alcohol and had not seen anyone in the car consuming alcohol. As they were driving back to Mr. [REDACTED]'s apartment in Bradford, shortly after they left Mr. [REDACTED]'s house, he observed 3 individuals walking.
24 He testified that Mr. [REDACTED] yelled something out the window of the car. They yelled something back. Mr. [REDACTED] suggested they turn around and Mr. [REDACTED] made a U-turn.
25 Mr. [REDACTED] next testified that Mr. [REDACTED] opened the side passenger door and stood up. There was a verbal back and forth between Mr. [REDACTED] and the 3 men. 1 of the 3 got physical with Mr. [REDACTED], another individual got physical. Mr. [REDACTED] got out of the car and went over to where Mr. [REDACTED] was and they started fighting.
26 Mr. [REDACTED] told [REDACTED] (Ms. [REDACTED]) that they should get out of the car. Ms. [REDACTED] was struggling on how to get out of the car. Eventually, she moved the front seat forward. She got out of the car along with Mr. [REDACTED], Mr. [REDACTED] and Mr. [REDACTED].
27 Mr. [REDACTED] testified that he saw 1 of the 3 individuals run to the back of the house and then return with a weapon. Mr. [REDACTED] testified that Ms. [REDACTED] intervened and was trying to break up the fight. Mr. [REDACTED] testified that one of the 3 backed up as he was intoxicated. He testified that Ms. [REDACTED] was knocked down but got up again and tried to intervene again. Mr. [REDACTED] told Mr. [REDACTED] that one of the individuals had a weapon. Mr. [REDACTED] testified that Mr. [REDACTED] went over and prevented that person from bringing that weapon to the fight. Mr. [REDACTED] was not sure of how to describe the weapon. He was not sure if it was a stick or some kind of broom handle. He did not recall how the stick was carried by one of the men. He did not recall that person striking anyone and he did not recall that person saying anything.
28 He did recall that Mr. [REDACTED] went over to that person and said: "Hit me! Hit me!" The individual with the weapon backed away and did not say anything. Although he had a hard time remembering, he recalled that Mr. [REDACTED], Mr. [REDACTED], Mr. [REDACTED] and 1 of the 3 men were struggling in a scuffle with Ms. [REDACTED] trying to break it up. Mr. [REDACTED] did not see what happened with the weapon. When they left, he knew that Mr. [REDACTED] had the weapon but he did not see how he obtained it. Mr. [REDACTED] was not sure if it was the same weapon. He knew that Mr. [REDACTED] had some object similar to the object brought to the fight. When he saw the object, Mr. [REDACTED] was seated in the back seat of the car, as Mr. [REDACTED] was driving away. Mr. [REDACTED] drove straight to Mr. [REDACTED]'s apartment without stopping. Along the way to Mr. [REDACTED]'s apartment, Mr. [REDACTED] dropped the weapon out the window of the car.
29 At the apartment, everybody was talking about what had happened.
30 Mr. [REDACTED] was then taken back to when he first noticed the 3 individuals. He testified they were walking on the side of the road. He described 2 of the men as being in their 20s to 30s and one was in his 40s. He was not sure of their ages. He saw the 2 younger men holding the older man up. They were walking side by side, holding him up and helping him walk. Both the younger men had their arms around the older man. The older man seemed to be intoxicated. He did not know about the level of intoxication regarding the other 2 men. He saw these 3 men up until Mr. [REDACTED] turned the car around and got out of the car.
31 He recalls Mr. [REDACTED] yelling at these 3 men from where Mr. [REDACTED] was seated in the front passenger seat. He does not recall if any music was playing in the vehicle. He does not recall any of the 3 men yelling at the car before Mr. [REDACTED] yelled: "You guys are drunk as fuck!" When Mr. [REDACTED] yelled this out, the car was close enough for the 3 men to hear what he said. One of the 3 men responded, but he did not know what was said and he did not know if he heard 1 or more voices.
32 The next thing that happened was that Mr. [REDACTED] turned the car around. It was Mr. [REDACTED] who suggested that Mr. [REDACTED] turn the car around. Mr. [REDACTED] did not recall any verbal response from Mr. [REDACTED]. He could not recall if anything else was said in the car.
33 After the car was turned around, he did not recall seeing the 3 people do anything specific. Although he does recall a verbal altercation between Mr. [REDACTED] and the 3 individuals, he could not recall exactly which one of those 3 had the verbal exchange with Mr. [REDACTED].
34 He testified that Mr. [REDACTED] exited the vehicle and then 1 of the individuals got physical with him. He testified that the 3 men approached Mr. [REDACTED], who was next to the car. Shortly after the car stopped, Mr. [REDACTED] got out of the car. Before the verbal exchange with these 3 men, everyone else was still in the car.
35 One of the 3 men got into Mr. [REDACTED]'s personal space and touched him. Mr. [REDACTED] believes that Mr. [REDACTED] was shoved as he saw his body go back towards the car door. He testified that the 3 men were positioned with 1 man in front and 2 behind. One of the younger men shoved Mr. [REDACTED]. After the shove, Mr. [REDACTED] saw Mr. Mr. [REDACTED] start to fight back. At that point, Mr. [REDACTED] testified that another 1 of the 3 men gets involved. He is the other younger man. He did not see what that other person was doing. Mr. [REDACTED] got out of the car to assist Mr. [REDACTED]. Mr. [REDACTED] testified that he did not see what happened in the fight. At the time that Mr. [REDACTED] exited the car, it was still running. He saw Mr. [REDACTED] exit the vehicle and become involved in a physical altercation. At this time, his focus was in getting out of the car and he did so. He did not know why he decided to get out of the car and he does not recall any conversations which occurred with others in the back seat at that time.
36 Ms. [REDACTED] succeeded in pushing the front passenger seat forward to enable the back seat passengers to get out of the car. Mr. [REDACTED] had never been in this car before.
37 Mr. [REDACTED] testified that it was not clear what was going on, but there was a scuffle. He saw bodies moving fast. He heard swear words but could not recall anything specific. He could not tell who was swearing and he testified that after the seat was moved, all of the back seat passengers got out. However, Mr. [REDACTED] and Mr. [REDACTED] were already out of the car.
38 Mr. [REDACTED] testified that 1 of the 3 men -- one of the younger guys -- took off. He went towards the house in front of which the altercation was taking place. He was gone for less than a minute and then came back from around the house with a weapon. He believes that while this was happening, Ms. [REDACTED] was yelling: "Stop!" at the individuals who were fighting.
39 Mr. [REDACTED] was asked what the 2 individuals were doing. He testified that 1 was in a fight with Mr. [REDACTED] and Mr. [REDACTED]. The older man was trying to stand up and back away from the fight. Mr. [REDACTED] testified that he looked like he was having problems standing up. He was swaying. He was identified by Mr. [REDACTED] as the same person that he saw being assisted by the 2 other younger males earlier. Mr. [REDACTED] testified that the older man backed away from the individuals who were fighting.
40 At this point, Mr. [REDACTED] was standing next to Mr. [REDACTED]. They were both next to the car. Mr. [REDACTED] was on the other side of the car. Ms. [REDACTED] was trying to break up the fight and was trying to get in between the people in the fight to break it up. He did not see her push anyone. He did not hear anything. He did not say anything. He was just standing there next to the car.
41 When he saw one of the younger men return to the fight, that person had an object in his hand. Mr. [REDACTED] told Mr. [REDACTED] about it. Then, Mr. [REDACTED] ran towards the guy with the stick. Mr. [REDACTED] testified that the guy with the stick backed away. Mr. [REDACTED] testified that it was Mr. [REDACTED] and Mr. [REDACTED] fighting with one of the younger men. He recalls one of the younger men returning with an object. When he returned, he heard Mr. [REDACTED] say: "Hit me! Hit me!" Mr. [REDACTED] was close by and had no difficulty hearing Mr. [REDACTED] say this. The person with the stick hesitated and started to back away from Mr. [REDACTED] in the same direction from which he had come. He did not recall what Mr. [REDACTED] did or how he moved.
42 Next, Mr. [REDACTED] looked over to his left to see the scuffle between Mr. [REDACTED], Mr. [REDACTED] and another individual. [REDACTED] was still trying to break it up. At this point, Mr. [REDACTED] dealt with the guy who had the weapon. Ms. [REDACTED] was still trying to break up the fight. Mr. [REDACTED] was not in Mr. [REDACTED]'s field of vision. Mr. [REDACTED] was standing by the car.
43 He next recalls that members of his group returned to the car.
44 Of the 3 men that he had seen initially, the older man was seen on the ground, one of the younger men was over top of him and he is not sure where the third man was. The man overtop of the older man was saying, "Dad!" He did not know if the man was being touched. The older man was on the concrete driveway of the house. That person was located closer to the street than to the house.
45 As the vehicle left the scene, he could not recall if anything was said in the vehicle amongst his group. He had not been on that street before and they returned to Mr. [REDACTED]'s apartment which took 5 minutes or less. He was asked if there were any conversations in the car along the way. He recalled that while they were still driving Mr. [REDACTED] still had the object taken from the fight in the car, and Mr. [REDACTED] suggested that Mr. [REDACTED] drop it out the window. Mr. [REDACTED] said: "Get rid of it!" He did not recall if Mr. [REDACTED] made any response, but Mr. [REDACTED] did drop that object out the window. He did not recall anyone saying anything else as part of that conversation.
46 At Mr. [REDACTED]'s apartment, the people from Mr. [REDACTED]'s car were discussing the fight. Mr. [REDACTED] was not involved in the fight. He did not push anyone nor was he pushed. He did not punch anyone, nor was he punched. He did not believe that Mr. [REDACTED] was involved in the fight either. He did not see Mr. [REDACTED] strike or be struck by anyone. Mr. [REDACTED] was just an observer. Mr. [REDACTED] did not participate in any verbal exchange, nor did he recall Mr. [REDACTED] being involved in any verbal exchange. Mr. [REDACTED] was asked why he told Mr. [REDACTED] to get rid of the object. Mr. [REDACTED] testified that he was not sure.
47 At Mr. [REDACTED]'s apartment, everyone from the car went over what happened. He was there for 10 to 15 minutes before Mr. [REDACTED] took him home. To the best of his recollection, they were talking about who said what. Mr. [REDACTED] said he could not believe that he was pushed. They discussed the older individual being knocked out. Mr. [REDACTED] was talking about how his left hand was hurting. He could not recall if there was any discussion about how the older man got knocked out. It was Mr. [REDACTED]‘s understanding that Mr. [REDACTED] knocked the older man out. Mr. [REDACTED] could not remember the gist of what was said.
48 In response to Mr. [REDACTED] saying that his left hand hurt, he could not recall Mr. [REDACTED] saying anything else. He could not recall anyone else saying anything. Mr. [REDACTED] did not say anything.
49 Mr. [REDACTED] testified that 2 days later, he saw Mr. [REDACTED] at Seneca College. They had a conversation as to what happened. Mr. [REDACTED] said something was in the news. He had no further conversation with Mr. [REDACTED] to this day.
50 On that same day, Mr. [REDACTED] met with Mr. [REDACTED] and Mr. [REDACTED] at Mr. [REDACTED]'s apartment in Bradford. Mr. [REDACTED] was asked what was said during that meeting. Mr. [REDACTED] testified that Mr. [REDACTED] said the police would be contacting Mr. [REDACTED]. Mr. [REDACTED] wanted Mr. [REDACTED] to say what happened between Mr. [REDACTED] and some individual at the scene was self-defence. Mr. [REDACTED] said okay. Nothing further was discussed.
51 Since then, Mr. [REDACTED] has not had any discussions with any of the other people that were in the car. He testified that he was in the same class as Ms. [REDACTED]. She told him that she was not allowed to speak to him.
52 Marked as Exhibit 12 were videos of [REDACTED] foyer. This is the foyer of Mr. [REDACTED]'s apartment building. Two clips were shown. The time of these videos were 2:19 AM and 2:20 - 2:21 AM. These were the videos of the same still photographs that were marked as Exhibit 11 (1 to 10). Mr. [REDACTED] was asked questions as to who was in the videos and what he saw. He was not able to recall or able to say what people were doing in the videos, although he did identify himself looking at his cell phone. He did identify people walking around. In the video, he did identify Mr. [REDACTED], Mr. [REDACTED], Mr. [REDACTED], Mr. [REDACTED] and Ms. [REDACTED]. He testified that both video clips were an accurate depiction of what transpired in the entranceway to Mr. [REDACTED] 's apartment building after the incident.
53 Mr. [REDACTED] was cross-examined by Ms. [REDACTED]. He testified that he spoke to police on two occasions on September 16, 2015. He also gave a statement to police on October 8, 2015 and he testified at the preliminary inquiry on March 27, 2017.
54 He had an opportunity to review his materials before coming to court to give evidence. When he spoke with police, he told them the truth and did not lie or give them information that was incorrect. He testified that this was the same when he testified in court at the preliminary inquiry. He agreed that his memory was better closer to the incident than 2 1/2 years later. He agreed that his statement could be useful to assist him in refreshing his memory.
55 He testified how he came to live in Bradford and how he met Mr. [REDACTED] at Seneca College. He may have first met Mr. [REDACTED] a week before the incident at school. Both men were in the same social worker program. Both men lived in Bradford. Mr. [REDACTED] testified that Mr. [REDACTED] was not a lifelong friend and that he did not owe him anything.
56 He was cross-examined about the evening of the incident. He agreed that when he observed the lobby videos of Mr. [REDACTED]'s apartment building, Mr. [REDACTED] was wearing a light colour hooded sweatshirt, white and blue in colour. Mr. [REDACTED] was wearing a hoodie with a bandana pattern, black and gray in colour, khaki pants and sneakers. Mr. [REDACTED] testified that Mr. [REDACTED] was not wearing a green and yellow basketball jersey. Mr. [REDACTED] was also not wearing a green and yellow basketball jersey. Mr. [REDACTED] believed that Mr. [REDACTED] was wearing the same clothing that he wore earlier in the evening and had not changed clothes.
57 He testified that there was some time spent at Mr. [REDACTED]'s apartment, after which the group went to the Village Inn. Nobody was drinking at the Village Inn. They stayed there for a short time and then went to pick up Mr. [REDACTED]. Nothing happened out of the ordinary at that time. Everyone was in a good mood. When they went to pick up Mr. [REDACTED], everyone in the car was in a good mood. Mr. [REDACTED] was driving with his passengers, Ms. [REDACTED], Mr. [REDACTED], Mr. [REDACTED] and Mr. [REDACTED]. There were 6 people in the car after they picked up Mr. [REDACTED]. Everyone was still in a good mood.
58 He testified that the incident had happened shortly after they left Mr. [REDACTED]'s house, which was a couple of blocks away from the location of the incident. Mr. [REDACTED] testified that, from his vantage point in the back seat of the car, he observed 3 men walking down the road, which he could see through the front windshield. He could see 3 persons walking - 1 man in the middle with his arms around the other 2. It appeared that the other 2 men were holding up the person in the middle. Throughout the other parts of the interaction, he testified that he saw the middle man walking and standing unassisted.
59 Mr. [REDACTED] agreed that his conclusion that the 2 persons had to hold the other person up was not quite accurate because later on he did not need assistance. He agreed that it was fair to say that men were walking down the road, doing the "I love you man!" thing.
60 He testified that there was an older man and 2 younger men. He based this conclusion on the way the older man appeared. Mr. [REDACTED] was able to look at his face. The other 2 men moved faster and because they moved quicker he concluded they were both younger. He agreed that perhaps there were not 2 younger men.
61 Something was said by Mr. [REDACTED]. He agreed that Mr. [REDACTED] said: You guys are drunk! This was said when the car passed the men walking down the road. He agreed they were walking on part of the road. He testified that it was not a very wide road. He agreed that if they were walking on one side of the road and a car passed, that car would be about 5 feet away and that they were quite close to the car when it passed by.
62 Something was yelled back by the men on the road. He did not hear what was said as their car passed by. The car was not travelling very fast. Because he was sitting in the middle of the back seat, he could not hear as well as he could have if he were closer to the window. He agreed that a person sitting closer to the window would hear better.
63 Mr. [REDACTED] spoke to an officer on September 16, 2015. He told that officer that people were on the road at the driver's side of the car driven by Mr. [REDACTED]. Mr. [REDACTED] testified that Mr. [REDACTED] and Mr. [REDACTED] were the only black people in the car that night. Everyone else was white.
64 It was suggested to Mr. [REDACTED] that what was yelled back by the men on the street was the word "nigger". Mr. [REDACTED] denied this, but also agreed that he was not in the best part of the car to hear things as perhaps other people in the car.
65 He could tell that something was said because people in the car reacted. He could not see the people on the road mouthing words. However, they did say something but he did not know what.
66 Mr. [REDACTED] told Mr. [REDACTED] to turn the car around. Mr. [REDACTED] said nothing. Neither did anyone else in the car. There was no conversation while the car turned around. There was no discussion in the car about any plan as to what was going to happen. There was no discussion about going to show these guys something. He only knew that Mr. [REDACTED] said to turn the car around.
67 He testified that as soon as the car turned around, the people on the street were right there and came to the passenger side of the car. He agreed that those people made a "bee-line" toward the car and that they were intentionally coming up to the car quickly. He testified that as soon as those people came to the car, they were yelling at Mr. [REDACTED] before Mr. [REDACTED] got out of the car.
68 At that point, he agreed that Mr. [REDACTED] said to these people: "What did you say?" He did not hear any response from the people outside the car.
69 At that point, Mr. [REDACTED] got out of the car and a verbal exchange took place between Mr. [REDACTED] and the people outside the car. At this point, no one else gets out of the car.
70 After Mr. [REDACTED] gets out of the car and after the verbal exchange, Mr. [REDACTED] is pushed back into the car door and he is cornered between the car door and the body of the car. At this time, Mr. [REDACTED] testified that there are 2 or 3 people from outside the car on Mr. [REDACTED]. A younger man, who ultimately ended up with the stick, engaged with Mr. [REDACTED]. Then Mr. [REDACTED] started to fight back. At this point in time, Mr. [REDACTED] got out of the car.
71 It was suggested that Mr. [REDACTED] got out of the car, went around to the back of the car, stopped for a moment and then went on to help Mr. [REDACTED]. Mr. [REDACTED] testified that Mr. [REDACTED] was not out of the car until the people outside the car were physically involved with Mr. [REDACTED]. This is what he told PC [REDACTED] in the telephone conversation he had with him on September 16, 2015.
72 Mr. [REDACTED] testified that Mr. [REDACTED] went to assist Mr. [REDACTED], who was in an altercation with the young man with a stick and at least 1 other person. He agreed this was not an evenly matched fight. There was pushing and shoving going on and he described those persons as being involved in a scuffle.
73 Then, Mr. [REDACTED] testified that the 4 people involved in the scuffle moved away from the car. He and others were still in the car and were somewhat stunned as to what was going on. They did not do anything at this point in time. He asked Ms. [REDACTED] to let them out of the car. They wanted to see what was going on and he was worried about what was going on with Mr. [REDACTED] and Mr. [REDACTED].
74 Mr. [REDACTED] testified that there was no plan to do anything nefarious. They just wanted to get out of the car and help Mr. [REDACTED] and Mr. [REDACTED]. The 4 people involved in the scuffle moved towards the driveway of a house. Mr. [REDACTED] was not certain if the 4th person was the man who ended up on the ground. At the very end, as Mr. [REDACTED] is leaving, he sees a drunk man on the ground. When Mr. [REDACTED] got out of the car, the drunk man was not involved in the fighting. Mr. [REDACTED] was able to see what happened. He described the younger man running away and coming back with a stick. Mr. [REDACTED] saw this person run away and no one was chasing him.
75 When the person with the stick came back, Mr. [REDACTED] and Mr. [REDACTED] were not chasing him, but rather, they were walking away. The young man with the stick returned to where Mr. [REDACTED] and Mr. [REDACTED] were located.
76 The stick eventually ended up in Mr. [REDACTED]'s car. Mr. [REDACTED] had the stick. Mr. [REDACTED] does not remember how he got it. He recalls telling the police that Mr. [REDACTED] grabbed the stick from the younger guy who brought it to the fight. Neither Mr. [REDACTED] nor Mr. [REDACTED] took the stick away from this other man.
77 Mr. [REDACTED] agreed that the man with the stick brought the stick to the fight in order to attack Mr. [REDACTED] and Mr. [REDACTED]. Mr. [REDACTED] did not know what the man with the stick was yelling. However, he testified that the man with the stick returned to the fight and was moving towards Mr. [REDACTED] and Mr. [REDACTED]. Then, Mr. [REDACTED] was able to take the stick away from this man.
78 Mr. [REDACTED] testified that Mr. [REDACTED] then returned to the car. He never saw Mr. [REDACTED] hit the person who had the stick, or anyone with that stick. They got in the car and drove away.
79 Just as they were leaving, Mr. [REDACTED] saw the older drunk man lying on the ground. He had no idea how he got there. He had no idea how serious the incident was until he spoke with Mr. [REDACTED] a few days later at school. It had been reported in the news that someone was hurt badly and 2 black people were involved.
80 Mr. [REDACTED] testified that this was all he knows. He saw people coming after Mr. [REDACTED]. Mr. [REDACTED] tried to help. A younger man came back with a stick to attack one or more of them and Mr. [REDACTED] took the stick away. Mr. [REDACTED] agreed that this was an unusual situation and not one which was intended that night when his group went to pick up Mr. [REDACTED].
81 They were all shaken up in the car. He agreed that they wanted to get away from this situation.
82 Mr. [REDACTED] testified that Mr. [REDACTED] dropped the stick out of the car window. He testified that it was always a stick made out of wood. It was described by Mr. [REDACTED] as looking like a broom handle or a short flagpole. He did not see it in the car, but did see it when it was brought to the fight. He told Mr. [REDACTED] to throw it out the window because he thought it was the right thing to do. He did not know what to do with the stick and just told Mr. [REDACTED] to throw it out the window.
83 After the incident that night at Mr. [REDACTED]'s apartment, there was a conversation going on between others, but not involving Mr. [REDACTED]. Eventually, there was a conversation between Mr. [REDACTED] and Mr. [REDACTED]. Mr. [REDACTED] told Mr. [REDACTED] that he wanted to go home and Mr. [REDACTED] went back to Mr. [REDACTED]'s car.
84 Mr. [REDACTED] was shown Exhibit 5. He saw 3 people walking on the street whom he believed were involved in the incident. He saw the car go by. He saw 2 men holding up a guy in the middle. The car turned around and came back and disappeared from view behind 2 parked cars. Mr. [REDACTED] agreed that the incident happened in that location. He also identified 3 men walking in single file, which accords with his recollection of that evening. He described that none of the people had any difficulty walking towards the open window of the car in which Mr. [REDACTED] was sitting. The video was stopped at 1:40:13, which is when Mr. [REDACTED] testified the 3 people went up to the car window and 1 of them started yelling at Mr. [REDACTED]. Again, that yelling happened at a location where Mr. [REDACTED]'s car was stopped behind the 2 parked cars.
85 He agreed from looking at this video that he sees Mr. [REDACTED] getting out of the car, going to the back of the car, pausing and then going on to help Mr. [REDACTED]. After that, at 1:40:24, Mr. [REDACTED] lost sight of Mr. [REDACTED] who had gone on to help Mr. [REDACTED].
86 Mr. [REDACTED] testified that he was shown a photograph of another person. He did not know who that person was. He believes that person to be [REDACTED] (sp?) Fies. The police told Mr. [REDACTED] that Mr. [REDACTED] was not at the incident that night.
87 Mr. [REDACTED] was cross-examined by Mr. [REDACTED].
88 He testified that after the event, he went back to the [REDACTED] apartment. Ms. [REDACTED] was pretty upset. Mr. [REDACTED] testified that that was her demeanor from the outset.
89 Mr. [REDACTED] testified who was seated in the back seat of the car. He testified that they wanted to get out of the back seat because they did not want things to escalate. He testified that they wanted it to stop. He does not remember what was said to Ms. [REDACTED], but he said that they should get out of the car.
90 Mr. [REDACTED] testified that what was going through his mind was to put an end to this incident. They were getting out of the car, not to join in the event, but to stop it. Ms. [REDACTED] did not say let's get out of the car and beat up these men, or that they should get out of the car to beat these men up. He testified that when Ms. [REDACTED] got out of the car, she tried to stop the fight and not join in anything. He only heard words to stop fighting. She was trying to stop the entire thing.
91 He was shown Exhibit 5A. He was taken through the video. He identifies at 1:21 a person walking in the opposite direction from where other people were going. He described that person as Ms. [REDACTED].
92 He identified a bigger person walking pretty well and not stumbling. He identified this person as the bigger guy in the middle.
93 He was taken to Exhibit 12, the video of [REDACTED]. It showed people walking in and out of the lobby. He described the female in Clip # 2 as Ms. [REDACTED]. She was not wearing UGGs, but wearing low cut shoes. Her hair was tied up at the back and was not hanging down to her chest. Her hair was dark brown, not light brown or blonde. This was the colour of her hair that night and it was not changed in any way after the incident.
94 He described her wearing a light top, black pants. He testified that this was what Ms. [REDACTED] looked like when she got out of the car.
95 After the incident, he had a conversation with Ms. [REDACTED] at school, who said she could not talk to him. Because they were in the same class, she also told their professor that she could not talk to Mr. [REDACTED].
96 In the end, Mr. [REDACTED] testified that Ms. [REDACTED] was just trying to stop the fighting.
97 Mr. [REDACTED] was cross examined by Mr. [REDACTED].
98 Mr. [REDACTED] testified that the atmosphere in the car on the way to pick up Mr. [REDACTED] was lively and everyone was in a good mood. There was no fighting. After they picked up Mr. [REDACTED], they were all still in a good mood. Mr. [REDACTED] was not yelling or acting hostile in any way.
99 When they were in the car, someone from the group of 3 men walking on the street yelled something back at the car. He did not know what was said. He could not disagree that what was said was not a racist comment. Mr. [REDACTED] just did not know. It was possible that the word "nigger" was said, given the reaction by people in the car.
100 After the incident, the mood was subdued. There was no bragging. Mr. [REDACTED] was not bragging during the drive to Mr. [REDACTED]'s apartment. At Mr. [REDACTED]'s apartment, Mr. [REDACTED] was not part of any conversation. He had only met most of these people that day. He knew Mr. [REDACTED] for about an hour. Mr. [REDACTED] could not believe what had happened and he wished that he had not been there. He was engaged in looking at his cell phone and was not able to say what other people were saying. He did not hear anyone raise the subject of racist comments in a conversation at the apartment. When it was suggested it was possible, Mr. [REDACTED] testified that he did not remember.
101 After the car turned around and came back to the 3 drunken men, Mr. [REDACTED] testified that Mr. [REDACTED] said: "What did you say?" Something was said back to Mr. [REDACTED], but Mr. [REDACTED] does not know what was said. Very soon after Mr. [REDACTED] exited the car, he was attacked by 1 of the drunken people. From his vantage point in the car, Mr. [REDACTED] could see the lower half of Mr. [REDACTED]'s body and the same with the attackers.
102 When Mr. [REDACTED] moved back towards the car, Mr. [REDACTED] testified that happened because Mr. [REDACTED] was either pushed or punched.
103 At some point, one of the attackers fell to the ground and people start to move away from the car.
104 Mr. [REDACTED] testified that Mr. [REDACTED] was not the aggressor, but rather the drunk people were the aggressors. One young drunken person was the most aggressive. He is the one who went to get the stick. The only person Mr. [REDACTED] sees Mr. [REDACTED] fighting with is the guy with the stick. He never sees Mr. [REDACTED] fighting with the man on the ground.
105 After leaving Mr. [REDACTED]‘s apartment on September 12, 2015, he never saw or spoke with Mr. [REDACTED] again.
106 The reason they went to pick up Mr. [REDACTED] was that he had some marijuana. He is not sure if they smoked any when they returned to the apartment. He did not hear any conversation on the balcony of the apartment because the persons were outside.
107 He was asked about his observations of Mr. [REDACTED] at the apartment. Mr. [REDACTED] testified that Mr. [REDACTED] was very quiet and thoughtful. He was in shock as to what had just happened. He was not happy about it and was not bragging about it.
108 Mr. [REDACTED] testified that he saw Mr. [REDACTED] re-enacting something that looked like a punch. Mr. [REDACTED] testified that only Mr. [REDACTED] was the one who seemed "amped up" after the fact.
109 At the apartment after the incident, Mr. [REDACTED] was cross-examined about Mr. [REDACTED] saying that Mr. [REDACTED] punched the guy on the ground. It was put to Mr. [REDACTED] that maybe Mr. [REDACTED] said this and not Mr. [REDACTED]. It was likely that Mr. [REDACTED] said this and not Mr. [REDACTED], based on what was seen on the video.
110 Mr. [REDACTED] testified that Mr. [REDACTED] took the stick away from one of the persons involved in the incident. This happened in the driveway. After the stick was thrown away, Mr. [REDACTED] did not see any further fighting between Mr. [REDACTED] and the person who had the stick taken away from him.
111 When everyone stopped fighting, Mr. [REDACTED] does not hear anyone saying that they wanted to take their father home. He remembers a person screaming "Dad!" at the end of the fight. The person with the stick, during the fight, never screamed that he wanted to get home. He only remembers that person saying curse words and threats.
112 After he got out of the car, he made eye contact with the oldest and drunkest man, who was backing away from the car with his palms up. He described this person with shaggy hair and wearing a blue shirt. Mr. [REDACTED] testified that this person said he did not want any trouble. It was suggested that this person was not a fat or overweight person and Mr. [REDACTED] responded, not that he could remember. He testified that he could not remember whether this person was not on the ground later. He could not tell if the person on the ground was a fatter person. Mr. [REDACTED] denied running at the person who was backing away.
113 Mr. [REDACTED] testified that he never saw Mr. [REDACTED] with the stick. The person with the stick was running towards the fight. Mr. [REDACTED] did not see him swing the stick; maybe this happened when Mr. [REDACTED] was not watching.
114 Mr. [REDACTED] testified that Mr. [REDACTED] was a stranger to him. Mr. [REDACTED] would not lie to the court and if Mr. [REDACTED] was the aggressor he would have said so.
115 Mr. [REDACTED] was cross-examined by Mr. [REDACTED].
116 He testified that no one in the car said: Let's get out and fight. Specifically, when everyone got out of the car, Mr. [REDACTED] was not encouraging anyone to fight and neither was Mr. [REDACTED]. Mr. [REDACTED] testified that neither he nor Mr. [REDACTED] were doing anything. He did not hear either Ms. [REDACTED] or Mr. [REDACTED] encouraging anyone to fight. Mr. [REDACTED] was the person who was excited about this. The lobby video showed Mr. [REDACTED] using his cell phone. Mr. [REDACTED] agreed that Mr. [REDACTED] was saying things in front of Mr. [REDACTED] and Mr. [REDACTED]. He showed his phone to them. Mr. [REDACTED] testified that before things turned physical, he was in the car snap-chatting and capturing what was going on. However, he turned his cell phone off or he locked his phone when things turned physical.
117 He testified that everybody got out of the car to try to break up the fight. He testified there was no master plan to get out of the car and beat someone up. He told the police that things happened quickly.
118 As the group moved towards a driveway, he testified that the fight moved towards a driveway and house. Mr. [REDACTED] testified that Mr. [REDACTED] had no involvement in that fight at all. Rather, Mr. [REDACTED] stood with Mr. [REDACTED] observing the fight. Mr. [REDACTED] testified that he did not see what happened to the man who fell to the ground.
119 Mr. [REDACTED] testified that he did see the lobby video of Mr. v swinging his left hand in front of Mr. [REDACTED] and Mr. [REDACTED]. Mr. [REDACTED], Mr. [REDACTED] and Mr. [REDACTED] discussed what happened. Mr. [REDACTED] was not able to see the events that Mr. [REDACTED] was describing in the lobby.
120 It was suggested that Mr. [REDACTED] was mistaken when he described the events involving the number of people in the altercation. He was not certain. He agreed that he saw3 men as being involved in the fight to the end. He agreed that the man holding the stick was not the same person engaged with Mr. [REDACTED] and Mr. [REDACTED]. He testified that the man who ran away ended up coming back with the stick. It is suggested to him that the man who ran away leaves the incident and does not return. It is suggested that the man with the stick is the original person who got involved with Mr. [REDACTED]. Mr. [REDACTED] testified that this was possible. He agreed that things had happened quickly and may have confused things. He agreed that possibly all 3 men were drunk and possibly 2 of them were really drunk. He agreed that possibly there were 2 older men and 1 younger man. He agreed that possibly 2 of the older men were the most drunk. He did not dispute that the man with the stick was the person who was first engaged with Mr. [REDACTED] and Mr. [REDACTED]. He could not say whether 1 of the 3 men were chased away.
121 Mr. [REDACTED] testified that he could be wrong, that the person on the ground was the man who held his hands up and retreated. He agreed that it was possible that the man who ran off put his hands up and retreated.
122 In his statement to the police on September 16, 2015, he agreed that he told the police that he was standing on the curb. A drunk guy was standing next to a bush. Then 3 people are fighting in the yard - Mr. [REDACTED], Mr. [REDACTED] and one of the other guys. He did not know if someone chased the other guy or why he was running behind the house. But he came back around and there was someone standing next to Mr. [REDACTED]. He described the person as the kid he did not know, the one whose name he didn't know and Mr. [REDACTED] saw that this person had a stick. Then Mr. [REDACTED] told the police that Mr. [REDACTED] ran at the person with the stick, yelling: "Hit me!" Mr. [REDACTED] testified that it is possible he could have said that Mr. [REDACTED] said: Don't hit me!
123 Mr. [REDACTED] testified that he may have ended up mixing up two persons whom he had identified as holding palms up and retreating. He may have mixed up the person on the ground with the person who ran away.
124 He recalled telling the police on September 16, 2015 that Mr. [REDACTED] was checking his GPS during the incident. Mr. [REDACTED] testified that this phone had snap-chat and GPS on it. He admitted lying about checking his GPS.
125 Mr. [REDACTED] did get a ride home after being at Mr. [REDACTED]'s apartment after the incident. It was not true that referring to his GPS was part of the decision making process. Rather, Mr. [REDACTED] just waited in Mr. [REDACTED]'s car for a ride home and did not check his GPS. He did not tell anyone about this until cross-examination.
126 Mr. [REDACTED] was shown Exhibit 12, the lobby video of [REDACTED]. He is shown with Mr. [REDACTED] and Mr. [REDACTED]. He can see himself laughing. He agreed that he didn't understand at that time what actually happened or how serious it was. If he had appreciated the seriousness of what had happened, he likely would not have reacted by laughing.
127 He described the person lying down on the driveway as having shaggy hair. In a statement to the police on October 8, 2015, he described the hair as being long, but not super long. However, it was not short hair. The person was described as being bigger and white. He agreed this was true. He agreed he was possibly mistaken about the man who was chased away. He remembers that person having his hands up. He did not chase this person away. He did not chase anyone. He was not charged by the police in respect of this incident.
128 Mr. [REDACTED] was re-examined by the Crown. He was shown Exhibit 5. He testified that the first time he saw this video was when it was shown to him by Ms. [REDACTED]. He was shown the video at 1:40:20. He sees someone in the background, but he does not know who that person is. He was asked about the stick. He never touched or handled the stick himself. He was re-examined about the intention when he left the vehicle and he wanted to put an end to what was going on. He was asked what he did to put an end to it and Mr. [REDACTED] said he did nothing.
ANALYSIS
Legal Principles
129 In R. v. Sargeant, 2014 ONCA 4926, Fragomeni J., cited the decision of the Ontario Court of Appeal in R. v. Robinson, 2014 ONCA 63. Robinson is the leading case.
130 In Robinson, at paragraphs 48 to 58 inclusive, Simmons J.A., set out the following:
[48] David Watt, Watt's Manual of Criminal Evidence (Toronto: Thomson Carswell, 2013), at para. 36.04 sets out the general principles relating to adoptive admissions by silence, in part, as follows:
An adoptive admission is a statement made by a third party in the presence of and adopted by D. There is only adoption to the extent that D assents to the truth of the statement expressly or impliedly. Assent may be inferred from D's
i. words;
ii. actions;
iii. conduct; or
iv. demeanour.
Assent may also be inferred from D's silence, or an equivocal or evasive denial. Where the circumstances give rise to a reasonable expectation of reply, silence may constitute an adoptive admission.
The respective roles of judge and jury in adoptive admissions are controversial. Consistent with basic principle, where an issue arises, the trial judge should first determine whether there is any evidence of assent or adoption by D, before permitting the evidence to be adduced before the jury. Where there is evidence on which the jury could find adoption, the factual determination should be left to them with appropriate instruction. [Emphasis omitted.]
[49] Under the heading "Related Provisions and Principles", Watt J.A. sets out additional requirements where an accused's silence is alleged to constitute an adoptive admission:
Where silence is the manner of an alleged adoption, there are several conditions that must be met:
i. D must have heard the statement;
ii. the statement must be about a subject matter of which D was aware;
iii. D must not have been suffering from any disability or confusion;
iv. the declarant must not be someone to whom D would be expected to reply, as for example, a child.
[50] These principles are derived, at least in part, from the seminal case R. v. Christie, in which Lord Atkinson held, at p. 554, that a statement made in the presence of an accused person is not evidence against him of the facts stated except to the extent that he accepts it by words, conduct, action or demeanour to make it in effect his own:
[T]he rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own... He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement was made amounts to an acceptance of it.
[51] In addition to the actions of an accused that might lead to an inference of adoption that are referred to in Christie, this court has consistently held that an accused's silence may lead to an inference of adoption of a statement made in the accused's presence in circumstances where the accused could reasonably have been expected to reply.
[52] In R. v. Eden (1970), 1969 CanLII 329 (C.A.), 2 O.R. 161 (C.A.), Gale C.J.O. explained the principle this way, at pp. 163-164:
The right of a trial Court to conclude that an accused adopted an inculpatory statement made in his presence rests upon the assumption that the natural reaction of one falsely accused is promptly to deny or assert his innocence. It follows that before such an assumption can be acted upon the circumstances surrounding the making of the statement must be such that it would be normal conduct for the person involved by the statement to deny it. When the circumstances are such that the failure to protest can be attributed to some circumstance justifying such failure, the probative value of the failure to protest is lessened and may be entirely negatived.
[53] In R. v. Govedarov, Popovic and Askov (1974), 1974 CanLII 33 (Ont.CA), 16 C.C.C. (2d) 238 (Ont. C.A.), Martin J.A. cited, at p. 278, Phipson on Evidence, 11th ed. (1970), at p. 767, for the more general proposition that:
The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances be such that he could reasonably have been expected to have replied to them.
[54] Martin J.A. repeated this basic formulation of the test in R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.), at pp. 539-40:
The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to reply to them. Silence in such circumstances permits an inference of assent. [Citations omitted.]
[55] In R. v. Warner (1994), 1994 CanLII 842 (C.A.), 94 C.C.C. (3d) 540, 21 O.R. (2d) 136 (C.A.), Griffiths J.A. expressed the test as follows, at p. 549:
Silence may be taken as an admission "...where a denial would be the only reasonable course of action expected if that person were not responsible": Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Markham; Butterworth's, 1992). In R. v. Baron, Martin J.A. put the principle as follows at pages 539-40:
The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to reply to them. Silence in such circumstances permits an inference of assent.
[56] In Warner, Griffiths J.A. went on to hold that a trial judge should make a preliminary determination that some evidence of adoption exists before leaving the issue with the jury. Further, if the issue is left with the jury, the trial judge should instruct them that they must consider all the circumstances under which the statement was made before making a finding of adoption, stating, at pp. 549-550:
Whether or not the silence of the accused constitutes an implied admission, depends on whether, in all of the circumstances, such an expectation [of a reply] is reasonable. The trial judge should determine in advance whether there is sufficient evidence from which a jury might reasonably find that the conduct amounted to an acknowledgement of responsibility.
...
Where the trial judge concludes that the evidence should go before the jury, he is still obliged to instruct the jury that it is for them to decide whether the accused, by his conduct, adopted the statements made in his presence and only to the extent that they were adopted should the jury accept them as true. In this respect, the jury must consider all of the circumstances under which the statement was made.
[57] This court's most recent discussion of adoption by silence confirms the Baron and Wertman formulation of the test. In R. v. F.(J.), 2011 ONCA 220 (CanLII), 269 C.C.C. (3d) 258, aff'd without reference to this point, 2013 SCC 12 (CanLII), 293 C.C.C. (3d) 377, Rosenberg J.A. said the following, at para. 46:
There was sufficient evidence from which it can be inferred that the appellant adopted the statement about his supplying the Tylenol 3. Silence alone is evidence that the person adopted the statement, if the circumstances are such that the person could reasonably have been expected to have replied to them: R. v. Baron and Wertman. Given AS's evidence set out above, there was a foundation for finding that the appellant adopted the statement on the basis of silence. But, there was more; it was AS's evidence that they were all involved in the conversation about the Tylenol 3. ... Evidence establishing on a balance of probabilities that he adopted the statement was sufficient to render it admissible against the appellant: R. v. Evans. [Citations omitted, emphasis added.]
[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.]
131 The Court of Appeal has adopted a cautionary approach regarding the doctrine of adoption of silence. At paragraph 89 in Robinson, Simmons, J.A. states:
As a starting point, I agree that a cautionary approach is required to the doctrine of adoption by silence. The need for caution arises from the potential for inaccuracy in jury suppositions about how a person "should" respond in particular circumstances, particularly unusual circumstances or circumstances involving significant stress: see McWilliams' Canadian Criminal Evidence, at p. 7 - 137. In such cases, the need for caution applies as much, if not more, to non-accusatory statements as it does to accusatory statements.
132 Further, at para. 90 in Robinson, Simmons J.A. went on to state:
...Assuming a non-accusatory statement can be adopted by silence, the doctrine can be applied only where the full factual context in which the non-accusatory statement was made demonstrates that an accused could reasonably have been expected to respond. Even with the benefit of a full factual record, a jury should be cautioned about making unfounded assumptions concerning the expected response.
133 Footnote 5 in Robinson is also significant where it is stated:
Silence is not, however, universally accepted as an available method of adoption: see: R. v. Scott, 2013 MBCA 7, 296 CCC (3d) 311, at para. 19.
Findings
134 Based on Mr. [REDACTED]'s evidence, I make the following findings.
Are the Statements Hearsay or Non-Hearsay Evidence?
135 At Mr. [REDACTED]'s apartment, in the presence of Mr. [REDACTED], Mr. [REDACTED] wanted Mr. [REDACTED] to say what happened between Mr. [REDACTED] and some individual at the scene was self-defence. Mr. [REDACTED] said okay. Nothing further was discussed.
136 I find Mr. [REDACTED]'s utterances and the reply of Mr. [REDACTED] to be hearsay evidence. The Crown submits that the utterances are not hearsay evidence and are not being adduced for the truth of their contents. With respect, I do not agree.
137 I find that the utterances do not go to the narrative of events. Rather, the utterances go to the truth of what was said as evidence of some arguable collaboration between Mr. [REDACTED], Mr. [REDACTED] and Mr. [REDACTED], which speaks to one of the critical issues in this case, namely, self-defence. As the defence suggests, the purpose of these utterances assist the Crown in establishing an anticipated argument that these 3 persons colluded to fabricate evidence about self-defence. That may or may not be so.
138 Nevertheless, the jury heard evidence from Mr. [REDACTED] about these utterances which I find to be hearsay evidence. It is noteworthy that Mr. [REDACTED] did not testify at the voir dire. He was neither called by the Crown nor the defence.
Are the Utterances an Adoptive Admission by Mr. [REDACTED] by his Silence?
139 The legal principles in this regard have been stated above.
140 Justice [REDACTED] set out the general principles relating to adoptive admissions by silence.
141 Again, an adoptive admission is a statement made by a third party in the presence of and adopted by an accused person. There is only adoption to the extent that the accused person assents to the truth of the statement expressly or impliedly. Assent may be inferred from the accused's words, actions, conduct or demeanor.
142 Once again, the recurring theme is adoption only to the extent that the accused assents to the truth of the statement expressly or impliedly.
143 Crown counsel asked me to find that Mr. [REDACTED] did not deny the utterances made between Mr. [REDACTED] and Mr. [REDACTED] and that his failure to do so amounted to an adoption of their truth.
144 In some circumstances, the silence of an individual in the face of assertions by others, can constitute an adoption of those assertions. An examination of the previously stated case law supports said proposition.
145 However, not every situation where an accused remains silent can give rise to an inference of adoption.
146 The Court of Appeal in Robinson, as a starting point, took a cautionary approach in addressing the doctrine of adoption by silence. The Court was very careful to note that one must approach adoption by silence with great care before finding that an accused has implicitly adopted a statement by virtue of his failure to respond in a particular way.
147 In the case at bar, we are dealing with a non-accusatory statement, in which case, the Court of Appeal in Robinson observed that the need for caution applies as much, if not more, to non-accusatory statements as it does to accusatory statements (see R. v. Robinson, supra, at para. 89).
148 At para. 90 in Robinson, the Court of Appeal went on to a consideration of a non-accusatory statement adopted by silence, only assuming that such a statement was capable of being adopted by silence. Although the Ontario Court of Appeal did not definitively decide this question, nevertheless, there is no mistake that this kind of statement in the context of adoptive admissions is extremely problematic, particularly in a jury trial.
149 At para. 92 in Robinson, Simmons J.A. comments that even assuming there exists a non-accusatory statement, a trial judge's failure to provide the jury with adequate instructions concerning how they should apply the doctrine of adoption by silence to a non-accusatory statement amounts to reversible error.
150 The defence submits that the utterances here are the non-accusatory statements of Mr. [REDACTED] and Mr. [REDACTED] in the presence of Mr. [REDACTED]. The defence submits that those utterances, in these circumstances, do not constitute adoption by Mr. [REDACTED]'s silence. For the following reasons, I agree.
151 Guided by the approach of the Court of Appeal in Robinson, I approach the issue of whether there was an adoptive admission on the part of Mr. [REDACTED] by his silence. The authorities are clear that whether silence by an accused constitutes adoption should only be drawn by inference "where a denial would be the only reasonable course of action expected if that person were not responsible". This legal principle emerges from the Warner case in the face of an accusation that can give rise to an inference of adoption. Here, in our case, we have a non-accusatory statement which attracts an even greater degree of caution, as was clearly identified in Robinson.
152 I have considered all of the circumstances in which the utterances said to be adopted were made.
153 In this case, there is evidence that Mr. [REDACTED] was present at the meeting involving Mr. [REDACTED] and Mr. [REDACTED]. There is evidence that the 3 of them were in close quarters outside of Mr. [REDACTED]'s apartment building. There is no evidence that Mr. [REDACTED] heard what was being said between Mr. [REDACTED] and Mr. [REDACTED]. Neither was there any evidence of his capacity or incapacity to hear what was said. Further, Mr. [REDACTED] did not give evidence on the voir dire about this meeting.
154 I am not satisfied that Mr. [REDACTED] heard what was being said. Assuming that he did, did Mr. [REDACTED] implicitly adopt the utterances by virtue of his failure to respond in any particular way?
155 I am not satisfied that by his silence, Mr. [REDACTED] assented that if the police were to contact Mr. [REDACTED], Mr. [REDACTED] should tell the police that Mr. [REDACTED]'s involvement with some individual was self-defence.
156 I conclude that non-accusatory statements attract a higher degree of caution than accusatory statements, which already attract a cautious approach regarding adoptive admission by silence of an accused.
157 In this case, I am not satisfied, that in all of the circumstances, Mr. [REDACTED] assented to the truth of the utterances between Mr. [REDACTED] and Mr. [REDACTED] either expressly or impliedly. I cannot find that assent may be inferred by Mr. [REDACTED]'s words, actions, conduct or demeanour. He said nothing, did nothing, nor did he display anything by way of his demeanour to give rise to his adoptive admissions by silence.
158 Ultimately, I find that there is no adoptive admission by silence by Mr. [REDACTED] in all the circumstances.
Prejudice versus Probative Value
159 In this aspect of the analysis, I have considered whether the utterances found to be hearsay involve a balancing of prejudicial effect versus probative value. I find that the utterances might be prejudicial to Mr. [REDACTED] when viewed through the lens of a presentation of a concocted defence of self-defence. On the other hand, the utterances may not be prejudicial at all to Mr. [REDACTED]. The utterances may very well support that, in the end, Mr. [REDACTED] was indeed acting in self-defence.
160 This having been said, I cannot conclude that the prejudicial effect of the utterances exceeds or outweighs their probative value.
In these Circumstances, Should a Mistrial be Declared?
161 The answer to this question is no.
162 In R. v. Burke, [2002], S.C.J. No. 56, Supreme Court of Canada at para. 75, stated:
In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given the state with all its resources access the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice.
The test ultimately boils down to whether there is a "real danger of prejudice to the accused or danger of a miscarriage of justice". Burke (above) at para. 74.
163 The defence submits that the utterances in question are of such a high degree of prejudice to the accuseds that there can be no curative instruction and only the declaration of a mistrial would be the appropriate remedy. I disagree.
164 The law is well settled that a mistrial should only be declared in the clearest of cases which cannot be cured by any lesser remedial measure. I find the evidence heard by the jury has not compromised the entire trial to the point that no other remedy will do, short of a new trial.
DISPOSITION
165 Accordingly, the application for a mistrial is dismissed.
166 The following curative instruction was given to the jury regarding the hearsay evidence it heard. The jury was given this instruction on April 24, 2018, as follows:
Members of the jury, in his examination-in-chief, Mr. [REDACTED] testified that several days after the incident, he met with Mr. [REDACTED] and Mr. [REDACTED] at Mr. [REDACTED]'s apartment in Bradford.
Mr. [REDACTED] was asked what was said at the meeting. Mr. [REDACTED] testified that Mr. [REDACTED] said the police would be contacting Mr. [REDACTED]. Mr. [REDACTED] wanted Mr. [REDACTED] to say what happened between Mr. [REDACTED] and some individual at the scene was self-defence. Mr. [REDACTED] said okay. Nothing further was discussed.
Members of the jury, Mr. [REDACTED]'s testimony about what Mr. [REDACTED] said to him is hearsay evidence and is not admissible. Although you heard this evidence, nevertheless, I am instructing you to completely ignore this evidence, put it completely out of your minds. Further, I instruct you that you must not use this evidence in any way during your deliberations in arriving at your decision in this case.
[REDACTED] J.
