Les critères d'admission des déclarations spontanées (res gestae) résumés par la Cour d'appel de l'Ontario

R. v. Nicholas, 2004 CanLII 13008 (ON CA)

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[88] In R. v. Dakin (1995), 1995 CanLII 1106 (ON CA), 80 O.A.C. 253, [1995] O.J. No. 944 (QL) (C.A.), the accused was charged with the murder of two women who died as a result of burns. The Crown sought to introduce statements made by one of the women an hour after the fire. The Court of Appeal upheld the trial judge's decision to admit the statement under the spontaneous statements exception referred to in R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 42 O.R. (2d) 609, 7 C.C.C. (3d) 46 (C.A.), citing R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197, 27 O.A.C. 142 (C.A.) at p. 207 C.C.C.:

[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 or 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. [page23 ]

[89] In my view, the trial judge did not err in classifying the 911 call as falling within the res gestae exception. The call was made within ten minutes of the attack and there has been no suggestion that G.W. had any motive for misrepresenting what happened that night.

[90] Nor do I see any error in the trial judge's finding that the statements she made in the 911 call or in her videotaped statement were necessary and reliable.

[91] With respect to reliability, the 911 call was made approximately ten minutes after the attack, indicating that there was little time to fabricate. It was audiotaped and the police statement was videotaped. The police statement, although not under oath, was not elicited by leading questions. The location of the statement, taken at the police station and made to a person in authority is also indicative of reliability (see R. v. Fleet (2001), 2001 NSCA 158 (CanLII), 48 C.R. (5th) 28, 198 N.S.R. (2d) 228 (C.A.)). The trial judge found that G.W.'s demeanour was credible. Perhaps most significantly, he found an absence of any motive to fabricate and that G.W.'s statement was not consistent with other hypotheses. (See Justice David Watt, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2002) at pp. 368-72).