R v Pelletier, 2024 SKCA 12
[21] While out-of-court statements are presumptively inadmissible for the truth of their contents, the law continues to recognize an exception to this rule for what have come to be called spontaneous or excited utterances. The Honourable S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf (Rel 4, October 2023) 5th ed (Toronto: Thomson Reuters, 2023) (WL) at §7:59 [McWilliams], suggests that “now … the test can be stated rather simply – a statement is admissible as evidence of any matter stated if the statement was made by a person so emotionally overpowered by a contemporaneous event that the possibility of concoction or distortion can be disregarded”. They describe two key criteria that must be met; that is, “(1) that the statement be made contemporaneous to an unusual, overwhelming event that (2) left the declarant (at the time of the declaration) under pressure or emotional intensity which would give the guarantee of reliability”. The reason that these conditions are believed to guarantee reliability was more fully explained by Thorburn J.A. in R v MacKinnon, 2022 ONCA 811, 164 OR (3d) 535 [MacKinnon], as follows:
[40] One of the traditional exceptions to the general rule that hearsay evidence is inadmissible is the exception for spontaneous declarations. The requirement that the statement be made spontaneously under the pressure of a dramatic event is specifically geared to minimize the danger of fabrication or distortion because the declarant’s faculty is so overcome by the harrowing event that there is no opportunity for reflection, speculation or concoction. “Statements made under pressure or emotional intensity give the guarantee of reliability upon which the spontaneous declaration rule has traditionally rested”: R. v. Nguyen, 2015 ONCA 278, at para. 145, leave to appeal refused, [2015] S.C.C.A. No. 365; R. v. Khan, [1990] 2 S.C.R. 521, at p. 540; and S. Casey Hill, David M. Tanovich and Louis P. Strezos, 5th ed., McWilliams’ Canadian Criminal Evidence (Aurora: Canada Law Book, 2022), at § 7:59.
[41] Spontaneity and contemporaneity of the utterance are the guarantors of reliability: R. v. Andrews, [1987] A.C. 281, [1987] 1 All E.R. 513 (H.L.), at pp. 300- 1; R. v. Alexander, 2012 ONSC 5873, at paras. 26-27; R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at paras. 78, 83-85; and David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed., (Toronto: Irwin Law Inc., 2020), at p. 231.
[22] In this case, the central issue relates to the requirement for contemporaneity. There was a time when this aspect of what was once called the res gestae exception to the hearsay rule required that a statement had to be effectively part of an unusual, dramatic or overwhelming event to be admissible. In this regard, David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed (Toronto: Irwin Law, 2020) at 229, refers by way of illustration to the case of R v Bedingfield (1879), 14 Cox CC 341. The accused, known as “Harry”, went into a house. Very shortly thereafter, the deceased ran out of the house with her throat slashed and said, “See what Harry has done!” The statement was not admitted because it had not been made until after the attack was over.
[23] This requirement for strict contemporaneity has been long abandoned. However, as I have explained, the requirement for contemporaneity remains. The fact that there has been an unusual, dramatic or traumatic event that emotionally overpowered the declarant is not enough. The declarant must, at the time of the declaration, continue to be under the pressure or emotional intensity that obviates the risk of concoction or distortion; it is this that provides the guarantee of reliability which underpins the exception. For this reason, contemporaneity remains an essential aspect of the functional analysis that must be undertaken by a trial judge. As the Court of Appeal for Ontario explained in R v Hartling, 2020 ONCA 243 at para 59, 388 CCC (3d) 305, “since the sense of pressure or involvement in the event will reduce over time, temporal considerations are not immaterial, but the focus must be on whether the effects of the pressure or involvement from the event are operating at the time the statement is made”.
[24] This analytical framework was explained with admirable clarity by the House of Lords in R v Andrews, [1987] AC 281 at 300–301 (which is reproduced in both McWilliams at §7:59 and The Law of Evidence at 230), as follows:
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 was 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. …
[25] The following statement by Watt J.A. in R v Camara, 2021 ONCA 79, 400 CCC (3d) 490, is also instructive, emphasizing as it does that the declarant cannot have time for reasoned reflection:
[85] The excited utterances aspect of res gestae posits a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction. Contemporaneity of the statement with the event is a matter of degree. For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant’s mind remained under the domination of that event. In other words, the trigger mechanism for the statement – the event – was still operative. Spontaneity and contemporaneity are guarantors of reliability: R. v. Andrews, [1987] A.C. 281 (H.L.), at pp. 300-1.
[26] Because reliability is guaranteed by the related factors of contemporaneity to a dramatic event and spontaneity, there is – except in what have been described as “rare cases” – no separate or free‑standing analysis of reliability when considering whether to admit a declaration under this traditional exception to the hearsay rule. Evidence that meets the test for spontaneous utterances is presumptively admissible. In MacKinnon, Thorburn J.A. explained the “rare case” exception as follows:
[44] In some cases, a spontaneous utterance should not be admitted if there are “special features” that could give rise to an error by the declarant: [R v Badger, 2021 SKCA 118, 406 CCC (3d) 459] at para. 31; see also, [R v Andrews, [1987] AC 1 281 (HL)], at p. 301; R. v. Hall, 2018 MBCA 122, at paras. 41, 53‑55. Courts have also recognized that, in “rare cases”, even traditional exceptions to hearsay – including spontaneous utterances – can be challenged on the basis that, in a particular case, the indicia of necessity and reliability are lacking: [R v Starr, 2000 SCC 40, [2000] 2 SCR 144], at para. 214; [R v Mapara, 2005 SCC 23, [2005] 1 SCR 358], at para. 15; and [R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787], at para. 42; see also, [R v Nurse, 2019 ONCA 260, 145 OR (3d) 241], at para. 92. Given the potential overlap of these inquiries and the fact that they are both directed at ensuring the reliability of a statement, the “special features” of a case are, in my view, best considered together with the analysis of whether the “rare case” exception applies. Stated otherwise, in rare cases, special features may render a statement considered under the traditional exception for spontaneous utterances unreliable and therefore inadmissible.
[45] Such cases are expected to be few and far between, as evidence that satisfies the requirements of a traditional exception is presumptively admissible precisely because these exceptions “traditionally incorporate an inherent reliability component”: Starr, at para. 212; Nurse, at paras. 63, 89.
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[47] In the context of the spontaneous utterance exception, “rare cases” may include circumstances of gross intoxication, highly impaired vision, and exceptionally difficult viewing conditions. When there is evidence strongly pointing to the presence of such circumstances, trial judges cannot exclude the real possibility of error and inaccuracy, and the hearsay statement will not meet the threshold reliability requirement under the principled approach: see Andrews, at pp. 300-301; R. v. Hall, 2011 ONSC 5628, at paras. 29, 58-62; Badger, at paras. 34, 37 and 40-42; [R v Hall, 2018 MBCA 122, 368 CCC (3d) 520], at paras. 53-54, 96, 98 and 118-19; and McWilliams, at § 7:59.
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[49] ... The “rare case” exception must extend beyond the reliability concerns inherently captured in the traditional hearsay exception to be unique to the case at hand: Mapara, at para. 36; Nurse, at para. 92.
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[51] The onus is on the party wishing to invoke the “rare case” exception to demonstrate that there are special features in a given case such that the presumptively admissible hearsay evidence does not meet the principled requirements of necessity and reliability: Mapara, at paras. 15, 37; Nurse, at para. 91. There is a high threshold to be met by a party seeking to exclude evidence on this basis: see Starr, at paras. 212, 214; R. v. Kler, 2017 ONCA 64, 345 C.C.C (3d) 467, at para. 79; and Nurse, at para. 91.
(Emphasis added)
[27] R v Badger, 2021 SKCA 118, 406 CCC (3d) 459, affirmed 2022 SCC 20, 468 DLR (4th) 607 [Badger], which was cited by both parties, was one of those rare cases where it was appropriate to consider reliability. There, the admission of the utterance at issue was challenged on the basis that it lacked reliability because of the declarant’s intoxication. Here, there was some evidence of intoxication. However, Mr. Pelletier has not appealed on the ground that the trial judge erred in finding that evidence to be of no significance. The rare case exception is not engaged. It is, accordingly, not only unnecessary, but would be an error of law to separately assess threshold reliability.
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