Formal Admissions

April 5, 2018
  • While preparing for a criminal trial, the accused individual and his or her criminal defence lawyer will receive a statement of the prosecution’s case against the accused.
  • Before the trial begins and during the course of the trial, the defendant and his or her defence lawyer may choose to formally admit that some of the facts alleged by the prosecution are true. The decision to make a formal admission is completely at the discretion of the accused person acting on the advice of his or her criminal defence lawyer. Unlike in a civil trial, there is absolutely no obligation to admit anything in a criminal trial.
  • According to s. 655 of the Criminal Code of Canada “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”.
  • Though the section refers to indictable offences, the court has determined that the section also applies to individuals on trial for a summary offence. Based on s. 655, when the defence chooses to make a formal admission the prosecution is relieved of the obligation to tender evidence at trial to prove the fact so admitted. Hence, in the context of a criminal trial, a formal admission leads to proof of the fact admitted.
  • The defendant can only admit to allegations made by the prosecution. In Castellani v. R. the court ruled that the defendant cannot suggest certain facts and then admit to them. The idea of the admission of an allegation involves action by two parties, one who makes the allegation and the other who admits it.
  • There are several factors that the accused person and his or her criminal defence lawyer should consider before choosing to make a formal admission.
  • The primary question is whether of not the admission is in the accused person’s best interest. However, there are several other helpful factors to consider.
  • For example, sometimes formal admissions can be used strategically to help the defence gain credibility with the jury or help to focus the issues before the jury. Thus, it may sometimes be more beneficial for the accused in the long run to make some admissions up front.
  • Several principles underlie the making of an admission. An admission of fact should be clear, unambiguous, precise and unequivocal.
  • It is helpful to include in your admission a statement about how it relates to your legal position, legal results and theory of the case. You should also try to alert the court as to the effect of the admission.
  • The admission should acknowledge certain facts alleged by the prosecution but it need not necessarily include what inferences can be drawn from the admission.
  • This allows the defence to make certain admission but still argue about what facts can be inferred from those admissions.  An admission of facts can be made orally or in writing. It is preferable to make the admission in writing. An admission in writing is usually better thought out, clearer, and easier to reference.
  • In R. v. Baksh the court ruled that formal admission may be admitted at a future trial if the admission is somehow relevant to the trial. In Baksh the accused was charged with abducting a child. At his first trial he made a number of admissions in a written statement known as an “Agreed Statement of Facts”.
  • An Agreed Statement of Fact is a written document the defence sometimes produces which consists of a list of facts alleged by the prosecution and admitted by the defence. The first trial in Baksh – for which the Agreed Statement of Facts was made and entered into evidence - ended in a mistrial (which means that the jury could not agree on the correct verdict).
  • A new trial was ordered. During the second trial, the prosecution tried to admit the Agreed Statement of Fact listing the defendant’s prior admissions. The judge ruled that the prior admissions were admissible at the second trial.
  • However, he also found that the agreed statement of fact and all types of formal admissions are only binding for the purpose of the particular case in which they are made.
  • Accordingly, the agreed statement of fact was admitted but no longer binding at the new trial. The accused was entitled to lead evidence to explain or contradict the previous statement at the new trial.
  • Formal admission can be an important tool for criminal defence lawyers in order to bolster the credibility of their defence and present their case in front of the jury in a clear and concise manner.
  • However, they should be undertaken with caution and with the fully informed consent of the accused individual. If a criminal defence lawyer makes formal admission against the wishes or without the knowledge of his or her client, he or she could be reprimanded by the Law Society of Upper Canada.
  • Thus, it is essential for accused individuals and their counsel to work together to determine what, if any, formal admissions may be helpful to their case.
  • Know your rights! Contact Kostman and Pyzer, Barristers today for your free consultation!
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