COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robinson, 2014 ONCA 63

DATE: 20140124

DOCKET: C51957 and C51958

Laskin, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Robinson

Appellant

 

AND BETWEEN

Her Majesty the Queen

Respondent

and

Jamal Andre Johnson

Appellant

 

Joseph S. Wilkinson, for the appellant Robinson

Michael W. Lacy and Anida Chiodo, for the appellant Johnson

Robert Gattrell, for the respondent

Heard: June 19-21, 2013

On appeal from the conviction for first degree murder entered against Jamal Andre Johnson by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury, on June 26, 2009; and on appeal from the conviction for second degree murder entered against Eric Robinson by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury, on June 26, 2009, and the sentence imposed on November 13, 2009.

Simmons J.A.:

 

A.           Overview

[1]          The main issue on appeal concerns whether the trial judge erred in instructing the jury that they could find that Jamal Johnson and Eric Robinson had, through their silence, adopted certain statements made by their co-accused, Omari White.

[2]          Johnson, Robinson and White were among a group of young people partying outside the home of Mekeela Lye in late September 2007. The three young men and one other companion noticed 16-year-old Akila Badhanage walking down the street wearing headphones. They decided to rob him – and so, followed him as he walked through a catwalk that connected Lye’s subdivision to an adjacent street near the northwest corner of a busy intersection.

[3]          A witness at the southwest corner of the intersection saw Akila come running out of the catwalk. Next, the witness saw Johnson grab Akila around the chest from behind and hold him in a bear hug. Two or three seconds later, as Akila struggled with his arms to free himself, White ran up from behind and made two jabbing motions towards Akila’s chest.

[4]          A couple of seconds after White stabbed Akila, Robinson and the fourth young man caught up to the group. Almost immediately, Johnson, Robinson and White fled back down the catwalk to Lye’s basement apartment.

[5]          In the meantime, Akila was taken to hospital where he was pronounced dead. An autopsy revealed that he died of a penetrating stab wound to the chest and that he had also recently suffered a small cut to the tip of the ring finger of his right hand.

[6]          Back at Lye’s apartment, Johnson and Robinson berated White for stabbing the victim and told him he was stupid. At some point, either at Lye’s house or later that night at Johnson’s house[1], White told Lye that he stabbed the victim because the youth was “wiling out” and yelling, “I don’t have it”. At Johnson’s house, White explained to Lye that he got “heated up” because, just the day before, he robbed another kid and came away with only $20. White also told Lye he did not intend to kill the victim; he only meant to “poke” him.

[7]          Johnson, Robinson and White were tried together for first degree murder.

[8]          Relying heavily on Lye’s evidence of White’s statements about why he stabbed Akila and why he was so angry, the Crown theorized that the four young men accosted Akila in the catwalk. When Akila refused to comply with their demands for money or property, an angry White pulled a knife for all to see and cut Akila on the finger. Akila managed to break free and run away. Angered at Akila’s defiance, the four young men chased him intending to teach him a lesson. Johnson caught and restrained Akila in a bear hug. White then stabbed Akila with such force that he left a bruise on Akila’s chest.

[9]          The Crown alleged first degree murder under s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46, claiming that Akila’s death was caused in the course of an actual or attempted unlawful confinement.

[10]       At the close of the Crown’s case, the trial judge granted Robinson’s application for a directed verdict of not guilty on the charge of first degree murder, holding that no evidence existed that Robinson played an essential, substantial or integral role in the killing as required under R. v. Harbottle, [1993] 3 S.C.R. 306.

[11]       None of Johnson, Robinson or White called evidence at the trial. In their closing addresses to the jury, counsel for all three young men invited the jury to convict their clients of manslaughter but acquit them of any form of murder.

[12]       In his charge to the jury, the trial judge instructed the jury on the doctrine of adoption by silence. Among other things, he instructed the jury that they could use Lye’s evidence of White’s statements to her for the truth of their contents against Johnson and Robinson if they were satisfied it was likely that, had Johnson and Robinson disagreed with White’s statements, Johnson and Robinson would have expressed their disagreement in some fashion.

[13]       The jury found Johnson and White guilty of first degree murder and Robinson guilty of second degree murder. The trial judge sentenced Robinson to life imprisonment with no eligibility for parole for thirteen years.

[14]       We heard Johnson’s, Robinson’s, and White’s conviction appeals together, as well as Robinson’s appeal of his period of parole ineligibility. These reasons address Johnson’s and Robinson’s appeals. I address White’s appeal in separate reasons.

[15]       Johnson and Robinson raise several grounds of appeal. I will address the following ground only as I consider it dispositive of these appeals:

1)   Did the trial judge err in charging the jury that they could find Johnson and Robinson had, through their silence, adopted White’s statements to Lye?

[16]         For the reasons that follow, I would set aside Johnson’s and Robinson’s convictions.  I would order a new trial for Johnson on a charge of first degree murder. I would substitute a conviction for manslaughter against Robinson.

B.           Background

(1)      Events leading up to the stabbing

[17]       The evidence of the events leading up to the stabbing is more fully set out in my reasons relating to White’s appeal. For the purposes of these appeals, suffice it to say that two witnesses, each of whom was in the vicinity of Lye’s house, saw Akila enter the catwalk walking normally and wearing headphones. The same two witnesses saw four young men who had been partying near Lye’s house rush after Akila into the catwalk and then come running back out of the catwalk a few minutes later.

[18]       Another witness, who was walking through the catwalk from the adjacent street, encountered a group of four to six males when she was about halfway through the catwalk. Once she passed the group, she heard their voices getting louder, but they were too far away for her to hear what they were saying.

[19]       A fourth witness, Brad Pollock, who was standing at a bus stop near the south-west corner of the adjacent intersection, saw an “Indian fellow running down from the catwalk” leading to the north-west corner of the intersection. He saw “a black guy come.” The black guy grabbed Akila tightly around the chest with two arms. Within two or three seconds, another black guy came around from the right side and jabbed Akila two times in the heart/chest area. Pollock testified that “it looked like it was a stabbing motion”, but he could not actually see a knife from where he was standing.

[20]       Pollock explained that after the black guy grabbed Akila around the chest, Akila “was, like, trying to, like, with his arms he was trying to get out of it.”

[21]       About two or three seconds after the jabbing motion, Pollock saw two other black guys come running out of the catwalk. Almost immediately, the four guys “all took off up – down the path towards the townhouses.” They were running fast.

[22]       Pollock did not hear any conversation between the “grabber” and the “jabber” or between them and Akila.

(2)      Lye’s evidence about statements by Johnson, Robinson and White

[23]       In her evidence, Lye testified about two sets of statements made by Johnson, Robinson, and White that were the subject of the trial judge’s adoption by silence instruction – one set at Lye’s basement apartment shortly after the stabbing, and the other set later that evening at Johnson’s house.

[24]       In her evidence-in-chief, Lye described Johnson, Robinson and White as “frantic” when they arrived back at her apartment. She testified that she did not hear White say anything right away, but she did hear Johnson say: “why did you do that? That, that was stupid.” She heard Robinson repeat the same thing.

[25]       Lye saw White in her bathroom washing off a knife. He told her he had stabbed a youth. She asked him why but he did not tell her at that time. She said, “[White] was just angry.”

[26]       The Crown and Lye then had the following exchange:

Q. [D]id [White] say anything to you or anyone there about, about, you know, anything that this, this youth, I’m going to call him, was doing just prior to being stabbed?

 

A. He was yelling, I think, well, wiling [sic] out, as he said.

Q. Okay. And, do you remember if [White] said anything to you as to what this, what this boy was, was yelling prior to being stabbed? What things he was saying?

A. I don’t have it.

Q. Okay. I don’t, I don’t have it?

A. Yeah.

 

[27]       The Crown asked Lye to explain what she meant by “wiling out.” She replied: “[g]etting rowdy, I guess, getting loud, getting loud, rowdy, irritated.” The exchange continued:

Q. Okay. And, and … did [White] say anything about, you know, whether this boy wiling out had any relationship to the boy being stabbed?

A. Yes.

Q. What – tell us about that.

A. He said the reason being for stabbing the kid was because the child was wiling out.

 

[28]       Lye testified that White, Johnson and Robinson left her house after less than five minutes – or within about two to three minutes of arriving – following the stabbing. Shortly after their departure, the police knocked on Lye’s door and took her to the police station to give a statement.

[29]       Lye described her apartment as a bachelor apartment that contained a bedroom, a bathroom and a kitchen. She said White washed off the knife in her bathroom and that Johnson washed some blood off his hand in the kitchen. She said White took off two layers of clothing, Johnson took off his sweater and then the three young men left. She was not asked in-chief about Robinson’s whereabouts in the apartment. Nor was she asked in-chief exactly when White told her why he stabbed the victim.

[30]       Early in her cross-examination by Johnson’s counsel, Lye confirmed that the first thing she heard when the three young men returned to her apartment was Johnson and Robinson asking White: “What the fuck?”, “Why would you do that?” and “When did you do that?” Lye was unsure who said, “What the fuck?” She agreed she heard a question, “Why did you do that?” She said it was Johnson who asked that. She also agreed she heard a question, “When exactly did you do that?”, and said both Johnson and Robinson said that. Later in her cross-examination, Lye confirmed that both Johnson and Robinson called White stupid repeatedly:

Q. When they come, the three gentlemen here, the accused come running into the house, you told us about some of the things they had said, about [Robinson] and [Johnson] were calling [White] stupid; correct?

A. Yes.

Q. Repeatedly; correct?

A. Yes.

Q. And it was in reference to – because he had stabbed this guy, correct?

A. That’s correct.

 

[31]        Johnson’s counsel also cross-examined Lye about when she asked White “why he did it”. The following exchange took place:

Q. Okay, and the Crown asked you about you asked [White] why he did it – you asked him then and there when they had come running down, and he did not give you an answer at that time; correct?

A. Correct.

Q. And then you asked him – was it later that evening?

A. Correct.

Q. Sorry?

A. Correct, later that evening I did ask him and I was able to get an answer then.

Q. Thank you, and that was at [Johnson’s] house; correct?

A. Yes.

Q. And his answer was – what was it?

A. His answer – to tell you – he was heated up from the night before.

Q. Okay. Heated up from the night before.

A. Yes.

Q. He told you about having done a robbery the day before, some – mugging some kid and only getting $20.

A. Correct.

[32]       Later that evening, Lye, White, Johnson and Robinson, along with some other friends, met at Johnson’s house. At some point, Lye asked White why he was “heated up” earlier in the day. He replied that he had robbed a student from Sandalwood Heights Secondary School the day before and only got $20. By that time the group had learned that Akila had died. Lye said White also mentioned that he honestly did not mean to kill the victim – that was not his intention at all. In response to a question from the Crown, Lye confirmed that Johnson and Robinson were present when White told her why he was so heated up that afternoon.

(3)                   The admission of White’s statements to Lye against Johnson and Robinson

 

[33]       The issue whether White’s statements to Lye were admissible against Johnson and Robinson for their truth arose initially on the defence directed verdict applications.

[34]       As I explained above, in support of its theory of an attempted robbery at knifepoint in the catwalk, the Crown relied heavily on Lye’s evidence of White’s statements that he stabbed the victim because the youth was “wiling out” and yelling “I don’t have it” and that he was “heated up” because he had obtained only $20 from a robbery committed the day prior to the killing.

[35]       The Crown relied on this evidence to support inferences that White had a motive to commit a robbery and that he became angry to the point of drawing a knife when Akila resisted the young mens’ demands for money or property in the catwalk.

[36]       Accordingly, in his responding submissions on the directed verdict applications, the trial Crown included Lye’s evidence of White’s explanation for stabbing Akila as part of the evidence that demonstrated Johnson and Robinson were involved in an attempted robbery in the catwalk.

[37]       The trial judge asked if the statement was admissible automatically against Johnson and Robinson because they were present when the statement was made. The trial Crown submitted that the statement was admissible because it was “a statement made in the presence of the other accused.” He said the principle derived from R. v. Christie, [1914] A.C. 545. Counsel for Johnson responded, “[t]hat’s agreed.” The trial Crown also clarified that the evidence could operate both for and against the accused.

(4)         The trial judge’s instructions to the jury concerning adoption by  silence

[38]       The trial judge instructed the jury that the general rule regarding an accused person’s statements made in the presence of a witness outside the courtroom is that the statement “is only evidence concerning the person who said it.”

[39]       However, the trial judge went on to instruct the jury about an exception to the general rule “when the accused are together and speaking in each other’s [sic] presence.” He said, “[t]here is evidence this occurred in [Lye]’s apartment immediately after the stabbing, and at [Johnson]’s that evening.”[2]

[40]       The trial judge told the jury they could use a statement made by one accused in the presence of the other accused persons for the truth of its contents against all the accused if:

·        the accused persons in whose presence the statement was made were silent in the sense that they did not take issue with the statement; and

·        the jury was satisfied that the circumstances were such that it was likely that, if the other accused persons did not agree with the statement, they would have been expected to make some observation, explanation or denial.

[41]       The trial judge gave the jury two sets of examples of situations where this instruction could apply:

a) Lye’s evidence of White’s explanation that he stabbed the youth because the youth was “wiling out” and saying “I don’t have it”;

b) Lye’s evidence of Johnson’s question to White when the three young men returned to her apartment, “Why did you do that, that was stupid”, and Lye’s evidence that, on their return to her apartment, Johnson or Robinson said to White, “What the fuck”.

[42]       In relation to his first example, the trial judge instructed the jury they could use the evidence of White’s statement for the truth of its contents in relation to Johnson or Robinson if they were satisfied it was likely that, had Johnson or Robinson “disagreed with White’s description of what occurred, they would have expressed that disagreement in some manner.”

[43]       In relation to his second example, the trial judge told the jury that they could use Johnson’s and Robinson’s statements, “which suggest[ed] that [White] did it and that what occurred was unexpected”, for the truth of their contents in relation to White if they were satisfied it was likely that if White disagreed with the statements “he would have expressed that disagreement in some manner.”

[44]       Similarly, in relation to his second example, the trial judge instructed the jury that they could consider Johnson’s statement for the truth of its contents in reaching their decision concerning Robinson if they were satisfied it was likely that, “if [Robinson] disagreed with [Johnson’s] statement, he would have expressed that disagreement in some manner.” [3]

(5)      Objections to the trial judge’s adoption by silence instructions

[45]       Johnson’s counsel raised two issues at the pre-charge conference concerning an earlier draft of the trial judge’s adoption by silence instructions.[4]

[46]       First, he asked that the trial judge modify his description of the second requirement for adoption by silence. He asked that the jury be instructed that to find a statement was adopted by silence, the jury must be satisfied that the circumstances were such that it was likely that an accused in whose presence a statement was made would have made some response if the accused did not agree with or know about why White stabbed the youth.

[47]       Second, he asked that the trial judge clarify that, in relation to Lye’s evidence about White’s explanation for stabbing the youth, even if Johnson and Robinson adopted White’s factual statement about what happened, that did not mean they adopted his state of mind.

C.           analysis

(1)     Did the trial judge err by charging the jury that they could find Johnson and Robinson had, through their silence, adopted White’s statements?

(a)         General Principles relating to Adoptive Admissions By Silence

[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.[5]

[52]       In R. v. Eden (1970), 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), 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), 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), 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, 269 C.C.C. (3d) 258, aff’d without reference to this point, 2013 SCC 12, 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.] 

(b)      Johnson’s and Robinson’s positions on appeal

[59]       Johnson and Robinson submit that White’s statements to Lye were not admissible against them under the doctrine of adoption by silence because White’s statements did not accuse them of anything. They say that the doctrine of adoption by silence is built on the theory that an unreasonable failure to respond to an accusation implies agreement. Moreover, an inference of adoption by silence should be made only where a denial is the only reasonable course of action that can be expected if the person in whose presence the statement is made is not responsible for what is alleged.

[60]       In this case, rather than accusing Johnson and Robinson of something, White’s initial statement concerning why he stabbed Akila was a response to what were essentially accusations by them and to a question from Lye – it did not imply Johnson and Robinson had done anything or call out for a response from them. White’s subsequent explanation to Lye about why he was heated up related solely to his state of mind and conduct. His statement was unrelated to Johnson and Robinson.  

[61]       In the alternative, Johnson and Robinson submit that the trial judge’s instructions on adoption by silence were inadequate to provide the jury with the proper tools for determining whether they could use White’s statements against them.

(c)      The Crown’s position on appeal

[62]       The Crown accepts that Lye’s evidence of White’s statements does not fit the classic paradigm for admissibility under the doctrine of adoption by silence because White’s statements did not incriminate Johnson and Robinson directly.

[63]       However, the Crown submits that the doctrine of adoption by silence is not so watertight that it is limited to accusatory statements. Rather, the doctrine also can apply where a statement made in the presence of an accused relates to an offence: see R. v. Kim, R. v. Kim (2005), 199 C.C.C. (3d) 372 (C.A.)[6]; and R. v. Mariani, 2007 ONCA 329, 220 C.C.C. (3d) 74[7]. Although the case law makes it clear that mere silence is not enough to constitute an adoption, the additional factor that will lead to a finding of adoption is fact-specific. It may derive from the narrow circumstances in which the statements were made, or from the wider context.

[64]       Further, the relevant authorities do not require that the circumstances be such that the only reasonable course of action is a response to the statement that was made. Rather, the test is whether the circumstances were such that an accused in whose presence a statement was made could reasonably have been expected to respond.

[65]       In this case, the Crown relies on the context in which White’s statements were made to support their admissibility against Johnson and Robinson. Evidence demonstrated that the three young men were acting together. They left together planning to rob Akila and they returned together after the stabbing. The statements the trial judge left with the jury were part of a group conversation. It would have been an artificial exercise to permit the jury to look at the questions posed by Johnson and Robinson but not permit the jury to gauge their reactions to the answers they elicited.

[66]       Further, White’s initial statements were statements about the victim’s behaviour – namely, that he was “wiling out” and refusing to hand over his property. Given the context, the Crown contends it was appropriate to invite the jury to find that Johnson and Robinson would have said something in response if that were not an accurate statement about the victim’s behaviour.

[67]       As for White’s later statement explaining why he was heated up, the Crown submits that the trial judge’s instructions would not have led the jury to transpose White’s state of mind to Johnson and Robinson.  

(d)      Discussion

[68]       I conclude that the trial judge erred in instructing the jury that they could use Lye’s evidence of White’s statements to her made in the presence of Johnson and Robinson for the truth of their contents against Johnson and Robinson. I reach this conclusion for three reasons.

[69]       First, on my review of the record, no adequate factual foundation existed to support the use of White’s statements to Lye as adoptive admissions against Johnson and Robinson.

[70]       White’s statements to Lye explaining why he stabbed Akila and why he was “heated up” did not accuse Johnson and Robinson of any wrongdoing.

[71]       I acknowledge that the case law in Ontario may not be so watertight as to restrict adoptive admissions by silence to accusatory statements. However, I would leave resolution of that issue for another day.

[72]       Even assuming a non-accusatory statement can be adopted by silence, to support its admissibility, the Crown must lead evidence to establish that the factual circumstances surrounding the making of the statement were such that an accused in whose presence a statement was made could reasonably have been expected to respond. On my review of the record, in this case the Crown did not do so.

[73]       In relation to White’s statement to Lye explaining why he stabbed Akila, the Crown failed to elicit specific evidence concerning when, where and in what context the statement was made. Was it made in Lye’s apartment? If so, precisely when?

[74]       According to Lye, the first thing she heard when the three young men returned to her apartment was Johnson and Robinson berating White repeatedly. She first asked White why he stabbed the victim when White was in the bathroom of her apartment washing off his knife, or shortly thereafter. He was angry and did not reply. The three young men left her apartment quickly. When did she have the opportunity to pose the question again? Where were she and White when she did so? Were Johnson and Robinson part of the conversation at that time? Where in her apartment were Johnson and Robinson when she asked the question a second time? What were Johnson and Robinson doing when she did so?

[75]       If Lye’s question, why did you stab the victim, was asked a second time and answered at Johnson’s house, were Johnson and Robinson present and part of the conversation at that particular time? If they were present but not directly party to the conversation, what were they doing? Who else was part of the conversation? Where were the parties to the conversation situated? What conversation took place before and after the question was asked and answered?

[76]       These same questions can be asked in relation to Lye’s evidence of White’s statement to her explaining why he was “heated up” earlier in the day on September 28, 2007. The only evidence elicited by the Crown of the specific circumstances in which that statement was made was that Johnson and Robinson were present when Lye asked the question. Again, in my view, the Crown failed to elicit specific evidence concerning when, where and in what context White’s statement was made.

[77]       According to Lye, White’s statements to her were made in response to questions posed by her. As I have said, White’s responses did not accuse Johnson and Robinson of any wrongdoing. In the absence of specific evidence that Johnson and Robinson were even part of the conversation when the questions were asked and answered, and concerning the other aspects of the factual context in which White’s statements were made, I fail to see any evidentiary basis for a finding that the circumstances were such that a response from Johnson and Robinson could reasonably have been expected. 

[78]       An inference can be drawn that an accused person adopted a statement by silence where the circumstances are such that the accused person can reasonably be expected to have responded.

[79]       In appropriate circumstances, an accusatory statement directed at an accused person may be sufficient to permit an inference to be drawn that the accused person could reasonably have been expected to respond. However, assuming a non-accusatory statement can be adopted by silence, evidence concerning the full factual context in which the non-accusatory statement was made is required to permit the trier of fact to draw an appropriate inference concerning whether the accused could reasonably have been expected to respond.

[80]       In this case, in the absence of evidence concerning the full factual context in which White’s statements were made, I see no reasonable basis on which an inference of adoption by silence could have been drawn.

[81]       Second, in relation to White’s explanation for stabbing the victim, even assuming White made the statement as part of a general flow of conversation after the three young men arrived back at Lye’s apartment, I am not persuaded that the record discloses any evidence that the circumstances were such that Johnson and Robinson could reasonably have been expected to respond.

[82]       Five aspects of Lye’s evidence are relatively clear. First, when the three young men arrived back at her apartment after the stabbing they were frantic. Second, when they initially arrived, Johnson and Robinson were berating White. Third, White did not respond initially when Lye asked him why he stabbed the victim. Fourth, for at least part of the time they were in her apartment, White and Johnson were engaged in washing off blood and removing some of their clothing. Five, the three young men were at Lye’s apartment for a relatively brief period of time.

[83]       Considered in this context, even assuming Lye asked White why he stabbed the victim a second time while the three young men were in her apartment, I fail to see any circumstances mandating a response from Johnson and Robinson. If Lye asked the question and White responded, nothing suggests his response was directed at Johnson and Robinson. What the circumstances do suggest is that after they arrived, all three young men made an effort to leave the apartment quickly. This does not suggest that the circumstances in which the statement was made reasonably required a response.

[84]       Equally important, Lye’s question to White was an inquiry concerning his state of mind: why did you do it? Although his response included a factual assertion – the fact that the youth was wiling out and saying he did not have it – any inaccuracy in his factual assertion about why he stabbed Akila would not reasonably require a response from Johnson and Robinson. They did not stab Akila. They had already told White that what he had done was stupid. Considered in this context, I do not see why some additional response from them was reasonably required.

[85]       Third, in relation to White’s explanation that he was heated up because of events the previous day, White’s response related solely to his state of mind and past conduct. It had nothing to do with Johnson and Robinson and was not within their knowledge. Thus no evidentiary basis existed to find Johnson and Robinson adopted this statement by their failure to respond.

[86]       In fairness to the trial judge, it is important to note that Johnson and Robinson did not object to his instruction that the jury could find that they adopted White’s statements by silence. Moreover, none of the trial counsel provided the trial judge with any meaningful assistance concerning the doctrine of adoption by silence. Nonetheless, the trial judge was responsible for determining whether the evidence of the circumstances in which White’s statements were made could support a finding of adoption by silence. In my view, for the reasons I have explained, it could not.

[87]       Accordingly, I conclude that the trial judge’s instruction that the jury could find that Johnson and Robinson adopted White’s statements to Lye by their silence constitutes reversible error.

[88]       In the alternative, if Lye’s evidence about White’s explanation for stabbing Akila was capable of being used as an adoptive admission, I conclude that the trial judge erred in failing to provide the jury with adequate instructions concerning how they should apply the doctrine of adoption by silence to a non-accusatory statement.

[89]       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.

[90]       In this case, in my view, the trial judge erred in failing to caution the jury against making assumptions about how Johnson and Robinson should have responded to statements made by White. 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.

[91]       Further, the trial judge should have instructed the jury that:

·        it was for the jury to decide:

o   whether Johnson and Robinson heard any statement made by White in their presence;

o   if they did, whether Johnson and Robinson had any knowledge of the subject matter of any portion of White’s statement that they heard; and

o   if they did, whether the circumstances were such that Johnson and Robinson could reasonably have been expected to respond to that portion of the statement if it was untrue;

·        the jury could use any portion of White’s statement made in the presence of Johnson and Robinson for the truth of its contents against Johnson and Robinson only to the extent that Johnson and Robinson adopted, by their failure to respond, any portion of the statement as true;

·        to determine if Johnson and Robinson adopted, by their failure to respond, any portion of White’s statement as true, the jury must consider all the circumstances under which the statement was made to determine if Johnson and Robinson could reasonably have been expected to respond to it; and

·        the circumstances the jury must consider would include: when and where the statement was made; where Johnson, Robinson and White were when the statement was made; at whom the statement was directed; what Johnson and Robinson were doing when the statement was made; whether Johnson and Robinson were part of the conversation in which the statement was made; what was said before and after the statement was made and by whom.

[92]       Even assuming Lye’s evidence about White’s explanation for stabbing Akila was capable of being used as an adoptive admission, I conclude that the 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.

(e)      Remedy

[93]       In the event their arguments succeeded that the trial judge erred by charging the jury that they could find Johnson and Robinson had, through their silence, adopted White’s statements, Johnson and Robinson both asked that their convictions be set aside and that convictions for manslaughter be substituted.

[94]       In their closing addresses at trial, counsel for both Johnson and Robinson conceded that their clients participated in a common plan to rob Akila by chasing him and invited the jury to find their clients guilty of unlawful act manslaughter.

[95]       Four factors in combination support a verdict of at least unlawful act manslaughter for Johnson and Robinson: i) their counsels’ concessions; ii) the eyewitness evidence concerning the actions of the four young men in rushing into the catwalk after Akila and that one of the young men pulled a hood over his head; iii) the reasonably available inference that carrying out the common plan could result in harm to Akila that was more than minor or trifling; and iv) the evidence that Akila died as a result of White stabbing him.

[96]       In the event Johnson’s and Robinson’s arguments succeeded concerning adoption by silence,  the Crown agreed to a substituted verdict of manslaughter in relation to Robinson. In relation to Johnson, the Crown asked for a new trial. I would accede to the Crown’s position.

[97]       As against Robinson, at trial, the Crown relied exclusively on the inference of the knife coming out in the catwalk to support a finding of the necessary intent for murder. Without the evidence that Robinson adopted White’s statements by silence, that inference is no longer reasonably available against Robinson.

[98]       The Crown does not dispute that Lye’s evidence about White’s statements to her was an important building block in the Crown’s position that Johnson, Robinson and White accosted Akila in the catwalk with a view to obtaining money or property from him. More significantly, the same evidence was crucial to the Crown’s theory that White pulled his knife in the catwalk when Akila resisted their efforts. That inference, in turn, was critical to the Crown’s argument that, when Akila ran, the four young men chased him to teach him a lesson and, ultimately, formed a murderous intent.

[99]       I would therefore agree that the appropriate remedy for Robinson is to set aside his conviction and substitute a conviction for manslaughter. Robinson seeks a sentence of time served. As the Crown did not make submissions on sentence, I would reserve judgment on that issue and direct that the Crown file written submissions on sentence within 14 days following the release of these reasons. Robinson may file written submissions in reply within seven days thereafter.

[100]    As against Johnson, the Crown also relied at trial on Johnson’s opportunity to see the knife while he was holding Akila in the bear hug and on his decision to continue to hold Akila as a basis for a finding of the necessary intent for murder. In the absence of evidence admissible against Johnson capable of supporting a finding that White pulled a knife in the catwalk, I consider the bear hug evidence a thin reed on which to make a finding that he had the necessary intent for murder.[8]

[101]    Johnson caught up to Akila before White did and grabbed Akila in a bear hug from behind. It is reasonable to assume that Johnson was in front of White during the chase. According to Pollock’s evidence, within two or three seconds after Johnson grabbed Akila, White came around from the side and stabbed Akila. Two or three seconds – or less – is a short time frame and one within which Johnson had to see the knife, recognize what was happening and form the necessary intent for murder. Nonetheless, I am unable to say that a finding that Johnson had the necessary intent for murder would be unreasonable.

[102]    For reasons I explained in relation to White’s appeal, I conclude that the essentially undisputed evidence that the four young men chased Akila from the catwalk and eventually captured him demonstrated the elements of at least an attempted unlawful confinement. This creates a foundation for a finding of first degree murder in the event of a finding that Johnson had the necessary intent for murder.

[103]    Accordingly, I would allow Johnson’s appeal, set aside his conviction and order a new trial on the charge of first degree murder.

D.           disposition

[104]    Based on the foregoing reasons, I would allow Johnson’s  appeal, set aside his conviction and order a new trial on first degree murder.  In relation to Robinson, I would dismiss his appeal, set aside his conviction, substitute a conviction for manslaughter and reserve judgment on sentence. I would direct the Crown to file written submissions on sentence within 14 days following the release of these reasons. I would permit Robinson to file a written reply within seven days thereafter.

 

 

Released:

 

“JAN 24 2014”                                    “Janet Simmons J.A.”

“JL”                                                    “I agree John Laskin J.A.”

                                                          “I agree E.A. Cronk J.A.”

 

Appendix A

 

 

The general rule is that anything you find a person charged said to or in the presence of a witness or did outside the courtroom, even if it describes what another accused person on trial said or did, is only evidence concerning the person who said it.

…

 

There is an exception to the general rule I just described when the accused are together and speaking in each other’s presence.  There is evidence this occurred in Lye’s apartment immediately after the stabbing, and at [Johnson]’s that evening.

 

If one accused makes a statement in the presence of the other accused persons, and the other accused are silent in the sense that they do not take issue with the statement, in circumstances in which you conclude it is likely that if the other accused did not agree with the statement they would have been expected to make some observation, explanation or denial, then you can consider that statement for the truth of its contents in deciding the case of all the accused. 

 

For example, [Lye] testified that:  (a) when the accused returned to her apartment she asked [White] why he did it and he referred to the youth “wiling out” and saying “I don’t have it”; and (b) on their return to the apartment [Johnson] said to [White] “Why did you do that, that was stupid,” which might suggest the stabbing was unexpected.  Robinson or [Johnson] said, “What the fuck,” directed at [White].

 

You can, therefore, consider [White]’s statement in (a) for the truth of its contents in reaching your decision concerning [Johnson], if you are satisfied that it is likely that, had [Johnson] disagreed with [White]’s description of what occurred, he would have expressed that disagreement in some manner.

 

You can also consider [White]’s statement in (a) in reaching your decision concerning Robinson, if you are satisfied that it is likely that, had Robinson disagreed with [White]’s description of what occurred, he would have expressed that disagreement in some manner.

 

Similarly, you can consider Mr. Johnson’s and Mr. Robinson’s statement in (b), which suggest that Mr. White did it and that what occurred was unexpected, in reaching your decision concerning Mr. White if you are satisfied that it is likely that if he disagreed with Mr. Johnson’s statement he would have expressed that disagreement in some manner. You can consider this statement in reaching a decision concerning Mr. Robinson if you are satisfied that it is likely that if Mr. Robinson disagreed with Mr. Johnson’s statement he would have expressed that disagreement in some manner.

 

It is for you to say how much or little importance you will place on anything a person charged said in deciding that person’s case. It is only part of the evidence. Consider it along with and in the same way as the rest of the evidence relating to that person.