R v Hall, 2018 MBCA 122
Discussion and Conclusion
Standard of Review—Hearsay Rulings
[40] Hearsay decisions, if informed by the correct principles of law and reasonably supported by the evidence, are entitled to deference on appeal (see Reg v Andrews (Donald), [1987] 1 AC 281 at 302 (HL (Eng)); R v Blackman, 2008 SCC 37 at para 36; R v Youvarajah, 2013 SCC 41 at para 31; and R v Head, 2014 MBCA 59 at para 24, leave to appeal to SCC refused, 36036 (29 January, 2015)).
Spontaneous (or Excited) Utterance Exception to the Hearsay Rule
[41] A spontaneous (or excited) utterance is one of the categories of res gestae recognised to be a traditional exception to the hearsay rule (see Head at para 25; and S Casey Hill, David M Tanovich & Louis P Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters, 2013) (loose-leaf updated 2018, release 3), pt III, ch 7 at para 7:120.10 (online: WLNext Can (date accessed 14 November 2018)). A spontaneous utterance resulting from a startling event is admissible if the circumstances in which it was made exclude the possibility of concoction or distortion and there are no special features of the case that give rise to a real possibility of error (see Ratten v The Queen (1971), [1972] AC 378 at 388-91 (PC (Eng)); Andrews at pp 300-301; and Head at para 31). The circumstances of the making of the statement provide the circumstantial guarantee of trustworthiness to alleviate any hearsay danger (see James H Chadbourn, ed, Wigmore on Evidence: Evidence in Trials at Common Law (Boston: Little, Brown and Company, 1976) vol 6 at para 1747; Sidney N Lederman, Alan W Bryant & Michelle K Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at paras 6.364-6.365; R v Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531 at 540; R v Starr, 2000 SCC 40 at para 212; and R v Khelawon, 2006 SCC 57 at paras 62-64).
[42] Consideration of this traditional exception is not a mechanical process. Rather, a functional analysis of the surrounding circumstances of the statement should be undertaken (see R v Dakin, 1995 CanLII 1106 (ON CA), 1995 CarswellOnt 4827 at para 20 (CA); and Head at para 31).
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