[18] The first question to be considered is whether the phone call to the 911 operator fell within the traditional exception to the hearsay rule as res gestae. In R. v. G.F., 1999 CanLII 3684 (ON CA), [1999] O.J. No. 143 (C.A.), the Court quoted with approval its prior judgment in R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 7 C.C.C. (3d) 46; lta ref'd (1983) [1983] S.C.C.A. No. 253, 7 C.C.C. (3d) 46 n. Res gestae was defined as a "spontaneous exclamation". The Court adopted Professor Wigmore's explanation for the hearsay exception of res gestae:
This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts R. v. Harbin, [2008] O.J. No. 2158 p. 13 [emphasis added]
[19] In R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 27 O.A.C. 142 (C.A.), the Court of Appeal provided a helpful definition of a res gestae statement:
[A] The Court of Appeal provided further context to the notion of res gestae and suggested the stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.[emphasis added]
[20] For a statement to be classified as res gestae three criteria must be met: R. v. Hall, 2011 ONSC 5628 (CanLII), [2011] O.J. No. 5109 – p.17:
1) The statement was made under the ongoing stress or pressure of a dramatic or startling act or event;
2) The statement relates to the occasion that caused the stress or pressure; and
3) There is little if no possibility of concoction or fabrication.
[21] The proximity to the event need not be strictly contemporaneous to the event that caused the statement to be made in order to be classified as a res gestae statement. This point was first adopted into Ontario law in R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 42 O.R. (2d) 609 (C.A.). In that case, the Court of Appeal accepted the reasoning of Lord Wilberforce in Ratten v. R., [1972] A.C. 378 (P.C.) at pp. 806-807, where he stated:
[T]he test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.
[22] Excited utterances is an exception under the common law and is to be considered consistent with the principled exception to the hearsay rule: R. v. Mackenzie, 2011 ONSC 6770 at para 10, 2011 CarswellOnt 12578. The reliability of "excited utterances" comes from the absence of an opportunity to concoct a story. It is true that the mere making of a 911 call does not necessarily bring that call within the "excited utterances" exception. The defence might well argue, as it did here, that the fact the call was made is equally consistent with the fact it was concocted. That is why a trial judge must assess all the relevant evidence relating to the call, including the content, timing and circumstances of a 911 call, and determine whether in light of all the evidence, it properly falls within the "excited utterances" category. R. v. Sylvain, 2014 ABCA 153 (CanLII), [2014] A.J. No. 444 p.32 [emphasis added].
Aucun commentaire:
Publier un commentaire