Hearsay 2: Specific Exceptions Admissions

Sopinka 6.57 If evidence is hearsay, it is presumptively inadmissible unless: (a) it falls within a traditional exception to the rule; or (b) it is shown to meet the dual criteria of necessity and reliability (principled approach). The onus lies on the proponent of the evidence to establish these criteria on a BOP.

Once identified as Hearsay, the proponent should look for a specific, already recognized exception to the Hearsay Rule: Starr (S.C.C.). This is before proceeding to consideration of the general exception. Of course, it is open under Starr for the opponent to challenge the application of the specific exception in the case at bar, as not complying with the dual requirements of (a) necessity and (b) reliability.

However, there is a general recognition that most/all specific exceptions to the Hearsay Rule arising out of the common law were generated for those dual reasons: ie. they were examples of where it was both necessary to receive the evidence in this form, and where the evidence, although hearsay, was nevertheless reliable.

Admissions (of a party litigant) Rule: where the impugned evidence allegedly derives from a party litigant’s own mouth, then even though the source of the testimonial value may not be on the stand at the time, the evidence is nevertheless admissible under the admissions exception to the Hearsay Rule.

This is a rule of fairness and expediency. It recognizes that the traditional Hearsay dangers are not in play. The witness reporting the alleged admission is a direct witness, having experienced/witnessed the alleged admission. That witness is under oath, subject to cross, and assessment of demeanour by TOF. The law looks at it this way: the admission of hearsay evidence is often unfair, by definition, to the opponent, who lacks a live and direct witness to cross under oath. In the case of admissions, the law recognizes that the party litigants are, by definition, all before the Court. They can cross-examine on alleged admissions, and after all, if they want to deny that they made such an admission, they may take the stand and so refute the allegation.

Notes Where admissible as an admission, the alleged statements of the party litigant are admissible POTOC. They are admissible for and against the alleged admitting party (ie. every admission/confession has its good and bad elements, all are before the TOF to weigh). The entirety of the admission must go in.

Notes Admissibility under this or any other exception for that matter, is a question of law for the trier of law. As is usual, the trier of law is not concerned with a demonstration of proof that the admission was actually made – the witness has so asserted. Whether it was made, and what the admission contained, what words were used and with what intent, and what the admission means, are all issues for the TOF.

Notes If the alleged admitter and party litigant takes the stand and refutes the suggestion made by the witness of an admission being made, or qualifies it, or testifies that it was taken out of context etc., these are all issues for the TOF who can accept all, none, or part of any witnesses’ evidence.

Notes When “confessions” are admitted against an accused in a criminal trial, they are reported by those direct witnesses who heard the confession. They are admissible at the instance of the Crown, and they are admissible as nothing more than a basic application of the admission/party-litigant exception (note: although in criminal law, if they are made to a person in authority, the Crown will also have to prove voluntariness beyond a reasonable doubt as a pre- condition of admissibility).

Notes The same exception, however, applies to civil law. If the Defendant, for example, has allegedly admitted that a contract was in place, and was breached, this can be called through a direct witness by an opposing party.

Notes The admissions do not have to be entirely, or expressly “against interest.” However, admissions of a party litigant are only admissible at the instance of a party adverse in interest, and at their option. IOW, the admissions exception does not operate to alleviate the general rule against oath-helping, including the general rule against prior consistent statements being admitted at the request of the uttering party.

Notes The law includes in the notional definition of “party litigant”, those for whom the action is advanced. For example, in the criminal law, it will include the alleged admissions of the complainant. Imagine, for example, a complainant’s admission to another (who is called as a witness) that the event charged “never happened” or was consensual. The source of the testimonial value is the complainant, but the law allows this evidence to be called through a direct witness, even if it is the accused.

Notes “Admissions” can be verbal, written, express, implied – IOW as simple as a nod or a wink. “Admissions” can also be by conduct, silence, or even by adoption.

Admissions by Adoption If the testimony of the admission witness is that they were present when a party litigant, having heard what another person had to say (even if that person is not called), adopted same, then the words of the other, as well as the adoption of same is admissible as the admission of the party litigant.

Admissions by Adoption Example: person “A” (not a party litigant), says in the presence of “B”, a party litigant, to “C”, a party litigant adverse in interest “we will not stop until your business is run into the ground.” “B” then states, according to witness “X” who witnessed the conversation “yeah, you better believe it”. All of the above words are then admissible for POTOC against party litigant “B” at the instance of “C”.

Sopinka Implied Admissions Any conduct, action or demeanour may amount to adoption of the allegation. Even an express denial – as it may be denied in such a manner and under such circumstances as may lead a jury to disbelieve him, from which an acknowledgment is inferred.

Implied Admissions Sopinka 6.444: TOL to take care, determine admissibility on a “some evidence” standard – ie. could a reasonable jury, properly instructed, find that the conduct amounted to an admission?

Implied Admissions Care Should be Taken: TOL to take into account all of the circumstances, including: (1) that the party clearly heard and understood it; (2) the matter was a subject of which the purporting implied admitting party was aware; (3) the party was not suffering from a physical or mental disability or confusion; (4) who spoke the words of allegation (ie. a child?).

Civil Example Where one person receives a bill for goods sent to another and that person makes no objection after a reasonable lapse of time, the bill and lack of objection are some evidence to the effect that the goods were delivered for the credit of that person,

Admissions by Conduct The admission, of course, may be nothing more than a “wink” in response to an allegation by another, whether or not that other is called as a witness, as long as there is direct evidence of it. e.g. Other person “A” to party litigant “B”, “you sure didn’t give him a chance to fight back”. Party litigant “B”, in response, smiles, and winks. A party adverse in interest may very well want to call this evidence in the assault trial (civil or criminal), especially when the defence is “self-defence.”

Admissions by Silence The law says that if a party litigant is silent in circumstances that “call upon him to respond”, his silence may be treated by the TOF as an admission. The TOL would allow it in as an admission under this exception. Again, assuming a direct witness is available to testify to same.

Admission by Silence Sopinka Silence can be taken as an admission where a denial would be the only reasonable course of action expected. No such assent can be inferred where the accused has a right to silence: ie. during a police investigation.

Admissions by Silence Witness X testifies as follows: I was present when A (not called) approached party litigant “B” and stated “You slept with my spouse and aborted her pregnancy, how could you do that?” X further testifies that party litigant “B”, in a position to hear A’s allegation, simply stood there. The TOF may find this to be an admission by silence.

Admissions: Other Rules General rule: An admission is ONLY admissible against the utterer. IOW, we are only held to our own words. This makes a difference in a multi-party or multi- accused trial. Even if the admission touches on the actions of others, the TOF will be instructed that the admission is only admissible against the alleged uttering party, and not his co-accused or Defendants etc. Just as an utterance of an individual party-litigant may not be admissible against his corporation, which in law, is a separate legal entity (subject to considerations of agency), even if they are both sued for the same delict.

Admissions by Agent Admissions by an agent may be evidence against a [party-litigant] provided that the admission was made while the agent was in fact acting in that capacity and was within his scope of authority. The same exception is at play, the law is just recognizing that you may speak through others – e.g. attorney, or for a corporation, someone authorized to speak on their behalf.

Scope of Agency? Working test: does the declaration fall within the ambit of the agent’s employment? E.g. Morrison-Knudsen Co.: “The errand boy should not be able to bind the corporation with a statement about the issuance of stock …but a truck driver should be able to bind the company with an admission of his careless driving … Similarly, an usher should be able to committ his employer with an observation about a slippery spot on the lobby floor.”

Agency Exception: Co- Conspirator’s Rule The “co-conspirator’s” exception to the Hearsay Rule is probably more complicated than it needs to be. It is simply recognizing that those who are involved in an illegal and common purpose (or legal purposes committed through illegal means), joint venture, or co-venture, are taken in law to have appointed each other as “spokespeople” for the group, so that their words when speaking in furtherance of the conspiracy and during the currency thereof will be admissible against each member of the group.

What this really is, is nothing more than an exception to the previous rule we discussed, namely than an admission is only admissible against the party-litigant utterer. We are broadening that by saying: an admission is only admissible against the utterer, and those he is deemed by law to be speaking for. In this case, his co-conspirators when he is speaking in furtherance of the civil or criminal conspiracy.

What is a Conspiracy? “an agreement among the parties to act in concert in pursuit of a common goal” “…the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means …”

Who can conspire? A husband and wife cannot conspire with each other, but together, can conspire with others. Corporations can conspire with each other or individuals; a corporation can conspire through its officers.

Once the gist of the conspiracy, the agreement, is established, the acts and declarations of one conspirator in carrying out the common design, may be given in evidence as proof against all the conspirators.

Co-conspirator’s Exception This is actually one area where we leave the issue of admissibility to the TOF. On allegation of co-venture, and some proof thereof before the TOL, the TOL allows the acts and declarations of all the conspirators to be heard by the TOF.

Co-conspirator’s Exception The TOF is then told, at the end of the cases for the parties, that they have heard the various acts and declarations of the co-venturer’s and should approach the matter as follows: (a)First, they should be satisfied on all the evidence, and to the appropriate standard of proof, that there was a conspiracy/illegal co- venture; (b)Second, they must find that this accused or party-litigant is a member of the illegal co- venture by his own own act or words (balance of probabilities), not those of the others; (c)Third, they are now allowed to consider the hearsay evidence of the other co-conspirators, to determine the substantive facts in issue.

Notes on Co-Venturer’s Exception the co-conspirator’s exception is not engaged when the evidence is given at trial by a co-conspirator (ie. this is what we did), but is engaged when out of court statements by a co- conspirator are used to prove the case …

IOW, if the co-conspirator, party litigant or not, is simply on the stand as a witness to the substantive events, the Rule is not in play We know this is not Hearsay, as a live, direct witness, is giving evidence under oath, subject to cross and view of his demenour.

Note What is important to the co- conspirator’s rule is not who is a party litigant, but whether the source of the out of court declaration is a co- venturer. This is the grounding for admissibility. The criminal charge need not be conspiracy.

Furtherance of Conspiracy  the acts or declarations sought by the proponent to be admitted must be in furtherance of the co- venture and not merely descriptive or narrative of the conspiracy. post-arrest statements to police officers by co- conspirators are not generally admissible against the others, as they are not made in furtherance of the conspiracy, the same goes for acts and declarations antecedent and subsequent to the conspiracy

Examples Co-conspirator takes stand and gives direct evidence of facts in issue, including involvement of our party litigant: Hearsay Rule not invoked. Court hears evidence of party litigant who confesses/makes an admission post- conspiracy. Heard through person who witnessed admission. Rule at play: admissible under admissions exception, only admissible against utterer. Even where all on trial at the same time.

Examples “A” testifies that he was with B, an alleged co-venturer, when B explained to him that “Myself, X and Y, need explosives. Our plan is to bring down the bridge. Can you assist us in finding what we need?” This comment is arguably in furtherance of an alleged conspiracy. As such, the TOL will allow the TOF to hear same. And then ….

The TOF will be pointed towards the direct evidence and are told to decide first whether there was an illegal co- venture. If there was, did Y (the person before the court) implicate himself through his own acts and declarations in the co-venture on a balance of probabilities? Finally, if they so find, they can use this utterance of B, as if it was Y’s own, to find against Y.