[145] Hearsay statements are generally inadmissible for the truth of their contents. Spontaneous declarations are an established exception to the hearsay rule and are presumptively admissible in evidence. Statements made under pressure or emotional intensity give the guarantee of reliability upon which the spontaneous declaration rule has traditionally rested: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, at p. 540 S.C.R.
[146] In R. v. Khan, 1988 CanLII 7106 (ON CA), [1988] O.J. No. 578, 42 C.C.C. (3d) 197 (C.A.), at p. 207 C.C.C., affd supra (S.C.C.), Robins J.A. explained:3
. . . 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.
[147] In R. v. Dakin, 1995 CanLII 1106 (ON CA), [1995] O.J. No. 944, 80 O.A.C. 253 (C.A.), at para. 20, this court confirmed that strict contemporaneity was not required and noted that admission of the statements is to be assessed "not simply by mechanical reference to time but rather in the context of all of the circumstances obtaining at the time, [page349] including those which tell against the possibility of concoction or distortion".
[148] Thus, to the extent that Morin can be read in the way suggested by the appellants, namely, that as a rule, the statements of bystanders must be more contemporaneous to the occurrence than those of victims, I do not agree.
[149] In my view, whether the statements are made by a bystander or a victim, the inquiry should remain as stated in Dakin: the focus should be not simply on the number of minutes that elapsed between the occurrence and the making of the statement but, rather, on whether, given the totality of the circumstances surrounding the statement, the court can safely discount the possibility of concoction or distortion.
[150] The case law makes it clear that each case must be assessed on its own unique circumstances to determine whether there are sufficient assurances of reliability. So, for example, the Supreme Court held in Khan, at p. 540 S.C.R., that a child's statement made 15 minutes after leaving the doctor's office where she had been assaulted and approximately 30 minutes after the assault itself, was not sufficiently contemporaneous because it was not "made under pressure or emotional intensity which would give the guarantee of reliability". In Dakin, however, statements made by burn victims over 45 minutes after the event (a fire) were admitted as spontaneous declarations. And, in R. v. Michaud, [2004] O.J. No. 2098, 2004 CanLII 7714 (C.A.), a statement made by the victim within an hour and half of the assault was found to be admissible as a spontaneous declaration.
[151] In the present case, there was ample evidence upon which the trial judge could conclude that Quynh's statements to Tran were admissible as a spontaneous declaration. Quynh was so deeply upset by the shooting that she was unable to stand steadily, could not walk properly and appeared to be "panicking".
[152] Furthermore, the statements were made not long after the shooting, while Quynh waited at the restaurant, still uncertain about how the events had concluded and while sufficiently emotionally overpowered by the events so as to discount the possibility of concoction. She was personally acquainted with the victim and present when he was shot. Her husband, Bao, remained in the bar in which an unknown shooter had opened fire on his companion. And Quynh had no way to contact Bao or confirm that he was safe. Indeed, Tran testified that Quynh was still frightened and anxious at the time that she made the statements. [page350]
[153] Finally, I do not accept the appellants' submission that the statements could not be admitted under the spontaneous declaration exception because they described events leading up to the shooting, rather than the shooting itself. The appellants offered no authority for this submission, and I see no principled basis for limiting the exception in such a way. In any event, the reason for the victim's presence in the bar was relevant and directly related to the shooting.
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