L'état du droit relatif aux déclarations spontanées (res gestae)

R. v. Head, 2014 MBCA 59

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[25]                    The res gestae categories of spontaneous (or excited) utterances and statements explaining acts are both traditionally recognized exceptions to the hearsay rule (see Hodge M. Malek et al., eds., Phipson on Evidence, 18th ed. (London:  Sweet & Maxwell, 2013) at paras. 31-01–31-04; and Hon. Mr. Justice S. Casey Hill, David M. Tanovich & Louis P. Strezos, eds. McWilliams’ Canadian Criminal Evidence, 4th ed., looseleaf (Toronto:  Thomson Reuters Canada Limited, 2012) vol. 1, at para. 7:120:10).  In my view, the established hearsay exception best suited to the admissibility of the “gat” conversation is that of spontaneous (or excited) utterances.

[29]                    The traditional common-law test for the admission of a spontaneous (or excited) utterance as an exception to the hearsay rule was stated as follows by Lord Wilberforce in Ratten v. The Queen, [1972] A.C. 378 (P.C.) (at p. 391):

 

… [H]earsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.

 

(See R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 at 540.)

[30]                    In my view, the judge erred in principle by focussing on the fact that the “gat” conversation was not exactly contemporaneous to the shooting.  While the location and timing of the declarant’s statement are relevant factors, they are not determinative (Ratten at p. 389).  A statement can be sufficiently contemporaneous even if made shortly after a declarant flees the scene of a crime (R. v. Grand-Pierre (1998), 1998 CanLII 13202 (QC CA), 124 C.C.C. (3d) 236 at 242-43 (Que. C.A.)).

[31]                    The analysis as to whether a declarant’s statement is sufficiently contemporaneous is functional. A circumstantial guarantee of trustworthiness comes from the declarant being under such stress or pressure from the triggering event that the possibility of concoction or distortion when making the statement can safely be disregarded (R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 42 O.R. (2d) 609 at 622 (C.A.), leave to appeal to S.C.C. ref’d, [1983] S.C.C.A. No. 253 (QL)).

[32]                    The judge should have weighed all of the surrounding circumstances of the “gat” conversation before deciding whether the possibility of concoction or distortion could be disregarded.  As a result of his error in principle, no deference is owed to his decision on this issue.

[33]                    I am satisfied, based on the record that was before the judge at the time of his decision, that the “gat” conversation was made sufficiently contemporaneous to a shocking and dramatic event: the unanticipated shooting of a rival gang member.  The possibility of concoction or distortion can safely be excluded in such a short period of time where the intervening events do not undermine the statement’s circumstantial guarantee of trustworthiness.  In my view, the “gat” conversation was admissible under the recognized hearsay exception of spontaneous (or excited) utterances.

[34]                    When hearsay evidence satisfies a traditional recognized exception to the hearsay rule, it is admissible unless it is a rare case where it does not satisfy the indicia of necessity and reliability required by the principled approach to the hearsay rule (Mapara at para. 15).  I do not see this as a rare case where there would be reason to not admit potentially exculpatory evidence that satisfied a traditional exception to the hearsay rule.