R. v. N.W., 2018 ONSC 774
[18] In my view, this case demonstrates that the existing common-law rule relating to spontaneous utterances is not in step with the principled approach set out by the Supreme Court of Canada, particularly in relation to the principle of necessity. When a declarant testifies in court, as M.M. did in this case, the necessity of the hearsay should no longer be presumed. The party wishing its admission should bear the onus of proving necessity and reliability. If the evidence is not necessary, it may be admitted simply as part of the narrative as circumstantial evidence.
[19] Let me first set out the framework for analysis regarding the admissibility of these text messages. There are two rules governing their admissibility:
1) The hearsay rules. The general rule governing out-of-court statements, or “hearsay”, is that such statements cannot be admitted as evidence of the truth of their contents. The principle behind this rule is that such statements are unreliable. However, there are a number of situations where historically judges have found that admitting such statements is generally necessary and the statements are generally reliable enough to admit. These are known as the traditional, categorical exceptions. One of these exceptions is the res gestae or spontaneous utterance exception.
2) The rule against prior consistent statements. In general, prior consistent statements cannot be admitted because they do nothing to add to the value of a witness’ testimony.
In this case, the defence objected to the admission of the texts for the truth of their contents but agreed that the texts could be admitted for narrative purposes. The trial judge ruled that the text messages were admissible hearsay and not simply narrative. Once admissible as a hearsay exception, the statement is not barred by the rule against prior consistent statements: see David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right”, (2013) 17 Can. Crim. L. Rev. 181 at p. 192.
A. Res Gestae/Spontaneous Utterances
[20] Lawyers and judges frequently resort to the phrase res gestae to describe this traditional hearsay exception. I am not the first to say this, but this Latin phrase is confusing and unhelpful. A more specific and meaningful way to identify the categorical exception to the hearsay rule is excited or spontaneous statement/utterance. The following definition of this exception was outlined by Robins J.A. in R. v. Khan, (1988) 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont. C.A.), affirmed 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at para. 21:
[A] spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. 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. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.
This exposition was more recently affirmed in R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321, at para. 146. See also R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at p. 540, and R. v. Nicholas, 2014 ONCA 56, 237 A.C.W.S. (3d) 224, at para. 88.
[21] The requirements for admission under this traditional hearsay exception are strict: see R. v. Moore, 2014 ONSC 650, 9 C.R. (7th) 194 at paras. 16-18. The statement must be made contemporaneous to an overwhelming event that has left the declarant under such pressure or emotional intensity that statement has a guarantee of reliability. I find the factors set out in the English case of R. v. Andrews, (1987) 84 Cr. App. R. 382 at p. 391, very helpful in applying this definition to the facts of a case:
1. The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded?
2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance as an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
3. In order for the statement to be sufficiently “spontaneous” it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.
4. Quite apart from the time factor, there may be special features in the case which relate to the possibility of concoction or distortion.
[22] I would like to spend a few moments on the Alberta Court of Appeal’s decision in D. (D.L.). This case figured prominently at trial and in this appeal. It is one of the few reported Canadian cases that specifically deals with this hearsay exception as applied to text messages. In that case, the accused and the complainant, who had met in high school, went to an empty parking lot where they eventually had sexual intercourse in the back seat. The complainant testified that it was non-consensual. The trial judge found the complainant credible and that her evidence was confirmed by other evidence including text messages she sent to her friend while she was with the appellant in the car. These statements were consistent with her testimony at trial. The Alberta Court of Appeal allowed the appeal and ordered a new trial. They concluded that the text messages had not been initially admitted for the truth of their contents as a spontaneous utterance exception to the hearsay rule. They were admitted without objection, as defence counsel believed their use would be limited to refreshing the complainant’s memory. There was no discussion about the possible uses of that evidence. No voir dire was conducted. The trial judge did not analyze whether these text messages could be admissible under this hearsay exception. The Court of Appeal sent the matter back for a new trial so that a trial judge could create an evidentiary record and conduct a proper analysis.
[23] The respondent is correct that the decision does not support the proposition that text messages could never qualify as spontaneous utterances. The Court explicitly left open the possibility that some of the text messages could qualify.
[24] The key issue considered by the Alberta Court of Appeal was whether the texts were reasonably contemporaneous with the alleged sexual assault and made in circumstances of stress or pressure and of such emotional intensity to assure their reliability. The Crown on that appeal argued that these texts were a form of an electronic cry for help as in the case of R. v. Sylvain, 2014 ABCA 153, 575 A.R. 59, and Nicholas, cases dealing with 911 calls. In finding that they could not determine this based upon the evidentiary record, the Court made comments about the distinct nature of text messages. The appellant in this case relies upon those comments. The texts sent by the complainant in D. (D.L.) about how she was being sexually assaulted were interspersed with other messages between the complainant and her mother about more mundane issues. She further never asked her mother for help. In addition, while the complainant expressed her misgivings to her friend, she did not directly ask for assistance nor did she ever stop her texting during her time in the back seat. The Court was reluctant to characterize these texts as a cry for help. In addition, the issue of whether there was the requisite stress or pressure could not be readily demonstrated by the emotional state of the sender of a text message as it could in the case of a recorded 911 call. Another concern was the 45 minutes from the time she complained she was scared and her statement that the appellant was making her do things she really did not want to. From this, the Court was not sure when the sexual activities were in relation to the texts in order to determine if the texts were spontaneous.
[25] In my view, some of the factors that concerned the Court in D. (D.L.) have resonance on this appeal. Thus, the appellant tries to rely upon them. And the respondent tries to distinguish them. Much of the appeal and indeed the trial was focused on whether these text messages amounted to a cry for help in order to determine whether the text messages could be admitted under the categorical hearsay exception.
[26] After some careful reflection, I find that this is not only unhelpful but it obscures the analytical process best suited to arriving at the correct decision. Merely distinguishing or following D. (D.L.) would ignore the Supreme Court of Canada’s determination that the modern, principled approach should work in harmony with the traditional exceptions to the hearsay rule. It would also artificially limit my approach to the facts of this case based on the form the statements happened to take (in this case, text messages). Therefore I believe it important to return to first principles.
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