



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 Lyes 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 Akilas 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 Lyes 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 Lyes apartment, Johnson and Robinson berated White for stabbing
the victim and told him he was stupid. At some point, either at Lyes house or
later that night at Johnsons house
[1]
,
White told Lye that he stabbed the victim because the youth was wiling out
and yelling, I dont have it. At Johnsons 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 Lyes evidence of Whites 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
Akilas 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 Akilas 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 Akilas death was caused in the
course of an actual or attempted unlawful confinement.

[10]

At
the close of the Crowns case, the trial judge granted Robinsons 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 Lyes evidence of Whites 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 Whites 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 Johnsons, Robinsons, and Whites conviction appeals together, as well
as Robinsons appeal of his period of parole ineligibility. These reasons
address Johnsons and Robinsons appeals. I address Whites 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 Whites statements to Lye?

[16]

For
the reasons that follow, I would set aside Johnsons and Robinsons
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 Whites appeal. For the purposes of these appeals, suffice it to
say that two witnesses, each of whom was in the vicinity of Lyes house, saw
Akila enter the catwalk walking normally and wearing headphones. The same two
witnesses saw four young men who had been partying near Lyes 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)

Lyes 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 judges adoption by
silence instruction  one set at Lyes basement apartment shortly after the
stabbing, and the other set later that evening at Johnsons 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, Im 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 dont have it.

Q. Okay. I dont, I dont 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 Lyes 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 Robinsons 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 Johnsons 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. Thats correct.



[31]

Johnsons
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 [Johnsons] 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 Johnsons 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 Whites statements to Lye against Johnson and
Robinson



[33]

The
issue whether Whites 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 Lyes evidence of
Whites statements that he stabbed the victim because the youth was wiling
out and yelling I dont 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 Lyes evidence of Whites 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]hats
agreed. The trial Crown also clarified that the evidence could operate both
for and against the accused.

(4)

The trial judges instructions to the jury concerning adoption by  silence

[38]

The
trial judge instructed the jury that the general rule regarding an accused
persons 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 others [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) Lyes evidence of Whites
explanation that he stabbed the youth because the youth was wiling out and
saying I dont have it;

b) Lyes evidence of
Johnsons question to White when the three young men returned to her apartment,
Why did you do that, that was stupid, and Lyes 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 Whites 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 Whites 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 Johnsons and Robinsons 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 Johnsons 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 [Johnsons] statement, he would have
expressed that disagreement in some manner.

[3]


(5)

Objections to
the trial judges adoption by silence instructions

[45]

Johnsons
counsel raised two issues at the pre-charge conference concerning an earlier draft
of the trial judges 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 Lyes evidence about
Whites explanation for stabbing the youth, even if Johnson and Robinson
adopted Whites 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 Whites statements?

(a)

General Principles relating to Adoptive Admissions By Silence

[48]

David
Watt,
Watts 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 Ds


i.

words;


ii.

actions;


iii.

conduct;
or


iv.

demeanour.



Assent may also be inferred from Ds 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 accuseds 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 accuseds silence may lead to an inference of adoption of a
statement made in the accuseds 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; Butterworths, 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
courts 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, affd 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)

Johnsons
and Robinsons positions on appeal

[59]

Johnson and Robinson submit that Whites statements to Lye were not
admissible against them under the doctrine of adoption by silence because Whites
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, Whites
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. Whites
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 judges
instructions on adoption by silence were inadequate to provide the jury with
the proper tools for determining whether they could use Whites statements
against them.

(c)

The
Crowns position on appeal

[62]

The
Crown accepts that Lyes evidence of Whites statements does not fit the
classic paradigm for admissibility under the doctrine of adoption by silence
because Whites 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 Whites 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,
Whites initial statements were statements about the victims 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 victims behaviour.

[67]

As
for Whites later statement explaining why he was heated up, the Crown submits
that the trial judges instructions would not have led the jury to transpose
Whites 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
Lyes evidence of Whites 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 Whites statements to Lye as adoptive admissions against Johnson and
Robinson.

[70]

Whites
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 Whites 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 Lyes 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
Lyes question, why did you stab the victim, was asked a second time and
answered at Johnsons 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 Lyes evidence of Whites 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 Whites statement was made.

[77]

According
to Lye, Whites statements to her were made in response to questions posed by
her. As I have said, Whites 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 Whites
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 Whites 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 Whites 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 Lyes 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 Lyes 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 Lyes 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, Lyes 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 Whites explanation that he was heated up because of events the
previous day, Whites 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
Whites 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 Whites 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 judges instruction that the jury could find that Johnson
and Robinson adopted Whites statements to Lye by their silence constitutes
reversible error.

[88]

In
the alternative, if Lyes evidence about Whites 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 Whites 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 Whites 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 Whites 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 Lyes evidence about Whites explanation for stabbing Akila was
capable of being used as an adoptive admission, I conclude that the trial
judges 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 Whites
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 Johnsons and Robinsons 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 Crowns 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
Whites statements by silence, that inference is no longer reasonably available
against Robinson.

[98]

The
Crown does not dispute that Lyes evidence about Whites statements to her was
an important building block in the Crowns 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 Crowns
theory that White pulled his knife in the catwalk when Akila resisted their
efforts. That inference, in turn, was critical to the Crowns 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 Johnsons 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 Pollocks 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 Whites 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 Johnsons 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 Johnsons  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 others presence.  There is evidence this occurred in Lyes 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 dont 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. Johnsons and Mr. Robinsons 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. Johnsons 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. Johnsons 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 persons 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.









[1]

The trial and the appeal hearing proceeded on the basis that
White told Lye why he stabbed the victim at Lyes apartment. On my review of
the record, Lyes evidence is ambiguous about whether that statement was made
at her apartment or later that evening at Johnsons house.



[2]

As I have said, on my review of the record, Lyes evidence is
ambiguous about whether she was at her house or Johnsons house when White told
her why he stabbed the youth. However, the trial judge instructed the jury that
that statement was made at Lyes house. Accordingly, when he referred to a
statement made at Johnsons house, he appears to be referring to Whites
statement about why he was heated up.



[3]

The full text of the trial judges adoption by silence instructions
is included in Appendix A.



[4]

The appeal record does not include a copy of the trial judges
earlier drafts of his jury instructions. Although the earlier drafts were
marked as lettered exhibits at trial, appeal counsel were unable to locate
them.



[5]

Silence is not, however, universally accepted as an available
method of adoption: see
R. v. Scott
, 2013 MBCA 7, 296 C.C.C. (3d) 311,
at para. 19.



[6]
In
Kim
, a statement by an alleged accomplice that the accused injured
his hand smashing a jewellery case was held admissible as an adoptive admission.



[7]
In
Mariani
, evidence of a conversation between two accused and a third
person in which one of the accused spoke of a plan to go to the police and
blame a killing on a fourth party was held admissible as an adoptive admission
by silence capable of demonstrating consciousness of guilt. In that case, the
third party to the conversation was unable to say which of the two accused made
the statement.



[8]

As I explain in my reasons relating to White, his position is completely
different from Johnsons. Lyes evidence of his statements to her was
admissible against him and provided a basis for inferring an attempted robbery
at knifepoint in the catwalk, which Akilia resisted. Moreover, the evidence
supported findings that White brought a knife to the attempted robbery and
ultimately used it to stab Akila in the chest with such force that it left a
bruise on Akilas chest.



