Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Scott, 2021 ONCA 625, September 17, 2021, at paragraphs 64 to 77:

A number of admissions were made under s. 655 of the Criminal Code, which provides:

s. 655 Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.

The admission at issue was one of six admissions in Exhibit #7 – Admissions Re Scene. Admissions #2 to #6 purport to state objective facts about what the police did and what the CFS found, mostly in relation to the presence, location, and properties of the brown substance. The contentious admission, #1, is different. It reads as follows:

While taking out his garbage William Cameron noted a sticky brown molasses type substance on the door handle leading to the North Exit stairwell. This happened when Mr. Cameron followed the person that had ran past him into the north exit stairwell. The person went up the stairs and Mr. Cameron went down the stairs to take out his garbage. [Emphasis added.]

This admission does not purport to state an objective fact: rather, it records the observations Mr. Cameron said that he made. It was an admission that, if asked about the matter during his testimony, Mr. Cameron would have provided that information. Exhibit #8 contained further admissions along these same lines.

This type of admission has been called an informal admission: see R. v. Stennett, 2021 ONCA 258, at para. 57; R. v. Korski, 2009 MBCA 37, 236 Man. R. (2d) 259, at paras. 114-128, 137; R. v. Falconer, 2016 NSCA 22, 372 N.S.R. (2d) 186, at para. 49. Discussing the difference between admissions as to objective facts (formal admissions) and admissions as to the anticipated evidence of a witness (informal admissions), Watt J.A. said in Stennett, at para. 58, “An agreement about what a witness could say or would have said is not an agreement that what they say is true”: Korski, at para. 125.

When Exhibit #7 was entered, Mr. Cameron had already testified. It is not apparent from the record why he was not asked about this issue when he gave evidence. Moreover, a police officer also testified about the brown substance and stains but said nothing about the door handle on the second floor.

The trial judge inquired of counsel whether the admission in question was a formal admission. The parties agreed that it was. It would appear that they were mistaken. As Watt J.A. said in Stennett, at para. 58, “Those that recite what a witness would say retain their true character, however they may be styled.”

The trial judge discussed this evidence at para. 36 of her reasons:

The final stain for consideration comes in the form of an admitted fact pursuant to s. 655 of the Criminal Code. It is an admitted fact that Mr. Cameron noted a sticky brown molasses type substance on the second-floor door handle leading to the north stairwell. The evidence is that Mr. Cameron felt the sticky substance on the door handle immediately after a male had run into the stairwell. There is no evidence that the substance was tested or photographed by the police. There is no evidence that this door handle formed part of the police investigation regarding the substance trail from Mr. Dabrowski’s apartment to Mr. Scott’s apartment. Surely if the handle had been covered in a brown sticky substance, the police would have noted it. They did not. Accordingly, I am cautious about the weight I am prepared to attach to this evidence. [Emphasis added.]

The Crown submits that, notwithstanding how the admission is characterized, the trial judge committed an error of law by failing to act on the admission because her rejection was based on speculation about the police investigation. The Crown contends that this admission was critical because, according to the combined force of Mr. Cameron’s evidence and the admission, the brown substance was deposited onto the door handle at 6:37:20 p.m. by the respondent. The Crown submits that this moves the time of the murder forward by three minutes, contrary to the trial judge’s findings on this issue. I have a number of problems with the Crown’s submissions on this issue.

First, the trial judge did not fail to give effect to the admission. This assertion is simply incorrect. She merely expressed caution about how much weight she was prepared to attach to it. The trial judge was entitled to take this approach. The Crown offers no authority to support its position that a trial judge is required to assign any particular weight to admitted facts simply because they are admitted, or to find they assist the Crown in discharging its burden. Essentially, the Crown submits that the trial judge should have regarded this admission as more significant than she did. For the same reasons given in relation to the first ground of appeal, this court is not empowered to engage in this fact-finding exercise.

Second, while it might be said that there is a degree of speculation involved in the trial judge’s treatment of this evidence, it may also be viewed as a valid observation about a lack of evidence on this point. Moreover, it must be considered in conjunction with the trial judge’s more general findings about the evidence concerning the brown substance.

Third, it is difficult to accept the submission that this evidence was crucial, let alone important, to the Crown’s case. After all, police witnesses were not asked about this evidence, nor was Mr. Cameron when he testified.

Fourth, the Crown’s submission on appeal ignores the trial judge’s rejection of Mr. Cameron’s evidence that it was the respondent who ran past him to enter the north stairwell at 6:37 p.m. She did so because Mr. Cameron was unreliable, and the video footage was fleeting and blurry. This critical finding rendered the informal admission about the door handle insignificant.

Lastly, it is unclear how the Crown’s case would have been strengthened by moving the time of death forward to 6:37 p.m. Mr. Dabrowski was last seen alive at 5:32 p.m., leaving a lengthy period of time unaccounted.

I would dismiss this ground of appeal.