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Evidence - Hearsay - Party Admission Exception. R. v. N.G.
In R. v. N.G. (Ont CA, 2023) the Court of Appeal considered the evidentiary status of phone 'text messages', which bears of hearsay exceptions for both 'context' and 'admissions':[56] Where an accused person has engaged in a text conversation with another person, the statements by the accused are admissible as an exception to the hearsay rule. The statements by the other party to the conversation are generally admissible only as context − to understand what the accused person was saying − but not for the truth of their contents. But if it is apparent that the accused is adopting the other person’s statements, or the factual premises of them, as true, those statements can also be treated as an admission by the accused and therefore as admissible for their truth: David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013) 11 CJLT 181, at p. 213. . R. v. Schneider
In R. v. Schneider (SCC, 2022) the Supreme Court of Canada considers the 'party admission' exception to the hearsay rule:[52] The exception at issue in this case is a party admission. These include any “acts or words of a party offered as evidence against that party” (Paciocco, Paciocco and Stuesser, at p. 191 (emphasis added)). Although there has been debate as to whether party admissions are hearsay, I agree with the prevailing view set out by Charron J.: “. . . admissions from an accused fall within a well-recognized exception to the hearsay rule” (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 75; see also Paciocco, Paciocco and Stuesser, at p. 192).
[53] In criminal trials, a party admission will be evidence that the Crown adduces against an accused. As explained in Evans, the common law justifies allowing party admissions into evidence on the basis that a party cannot “complain of the unreliability of his or her own statements” (Evans, at p. 664). Unlike many other exceptions, justification for allowing party admissions does not relate to necessity or reliability (Vauclair and Desjardins, at p. 911). This is one aspect in which party admissions do not conform to general rules.
[54] This was confirmed by Charron J. in Khelawon: “Some of the traditional exceptions stand on a different footing, such as admissions from parties . . . . [T]he criteria for admissibility are not established in the same way” (para. 65). See also Hart, at para. 63; Couture, at para. 75; S.G.T., at para. 20; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 82.
[55] Accordingly, party admissions are admissible without reference to necessity and reliability (R. v. Gordon Gray, 2021 QCCA 882, at paras. 27-28 (CanLII); R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 169 C.C.C. (3d) 489 (Ont. C.A.), at para. 37; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, at para. 53; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609, at para. 81). Thus, with the exception of the “rare cas[e]” where judges retain discretion to exclude any hearsay evidence on the basis that it is unreliable or unnecessary (Mapara, at para. 15), reliability and necessity are not relevant to the admissibility of a party admission.
[56] I digress briefly to underline a point. The party admission exception to the hearsay rule should not be confused with other exceptions that bear some similarity, for example a declaration against interest by a non-party. See Lo, at paras. 65-66; Paciocco, Paciocco and Stuesser at p. 192. Party admissions include “acts or words of a party offered as evidence against that party” (Paciocco, Paciocco and Stuesser, at p. 191 (emphasis added)). In contrast, declarations against interest are not adduced against the person who made the statement, as that person is not party to the litigation. Party admissions and declarations against interest have unique foundations. Courts began to permit the admission of declarations against interest on the presumption that “people do not readily make statements that admit facts contrary to their interests, unless those statements are true” (Paciocco, Paciocco and Stuesser, at p. 208). As stated earlier, courts allow party admissions on the basis 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” (Evans, at p. 664). The unique foundation of each leads to different preconditions for admission.
[57] In this appeal the party admission was something the accused said, that the witness overheard, and that the Crown tendered as evidence of the accused’s guilt (Evans, at p. 664; Paciocco, Paciocco and Stuesser, at pp. 191-92). However, party admissions can constitute more than words; the common law has held party admissions to include, inter alia, silence, actions, and demeanour (see, e.g., R. v. Scott, 2013 MBCA 7, 288 Man. R. (2d) 188; see also Lederman, Fuerst and Stewart, at ¶¶6.470-6.512; Vauclair and Desjardins, at p. 911). As noted by Professor I. Younger, a rule of thumb is that “[a]nything the other side ever said or did will be admissible so long as it has something to do with the case” (An Irreverent Introduction to Hearsay (1977), at p. 24, cited in Paciocco, Paciocco and Stuesser, at pp. 191-92). I do not seek to describe here the precise boundaries of party admissions, as that is not at issue.
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