Principes généraux relatifs aux déclarations spontanées (res gestae)

R v Badger, 2021 SKCA 118 

Lien vers la décision

[27]           Out-of-court statements are presumptively inadmissible for the truth of their contents: R v Starr, 2000 SCC 40 at para 162, [2000] 2 SCR 144; R v Durocher, 2019 SKCA 97 at paras 56–57, 380 CCC (3d) 511; and R v Bear, 2020 SKCA 86 at para 51, 389 CCC (3d) 437. One of the exceptions to this rule is res gestae, with its most common category more modernly and usefully referred to as spontaneous utterance: R v Nurse, 2019 ONCA 260 at paras 58–59 and 78, 145 OR (3d) 241; R v Hall, 2018 MBCA 122 at para 41, [2019] 1 WWR 612 [Hall]; R v Head, 2014 MBCA 59 at para 25, 310 CCC (3d) 474; and R v Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531 at 540.

[28]           The general nature and test for admissibility of a spontaneous utterance was described in Hall as follows:

[41] A spontaneous (or excited) utterance is one of the categories of res gestae recognised to be a traditional exception to the hearsay rule … . 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 … . The circumstances of the making of the statement provide the circumstantial guarantee of trustworthiness to alleviate any hearsay danger … .

[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 … .

…

[58] While hearsay evidence is presumptively inadmissible, if the evidence meets the criteria of a traditional exception to the hearsay rule, it is presumptively admissible because the traditional exceptions “incorporate an inherent reliability component”… .

…

[63] Under the principled approach, questions of admissibility focus on threshold reliability as opposed to the ultimate reliability of the statement which is for the trier of fact to decide. The requirement of reliability is about ensuring the integrity of the trial process. The trial judge must decide whether the given circumstances “sufficiently overcome” the inability to test the hearsay evidence in the regular way … .

[29]           A further description of the exception for spontaneous utterances, with an expansion of the analysis to be applied regarding the necessary contemporaneity, is set out in R v Mullin, 2019 ONCA 890, 383 CCC (3d) 16:

[41] The law permits the introduction of excited or spontaneous utterances as an exception to the rule against hearsay: a “statement relating to a startling event or condition … may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement cause by the event or condition”: David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 191. In order for a statement to be admissible, “[t]he 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”: R v. Khan (1988), 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont. C.A.), at 207 … .

[30]           The authors of McWilliams’ list two key criteria for admission: “(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” (footnotes omitted, at para 7:120.20).

[31]           For a spontaneous utterance to be admissible, the circumstances in which the statement was made must be carefully examined in order to determine if the statement in question meets the test of threshold reliability. Trial judges should ask themselves whether the event was so unusual or startling that it would dominate the thoughts and expressions of the person making the utterance. Exact contemporaneity of the startling event or condition is not required, as spontaneity resides on a spectrum and is dependent on the circumstances, but it must be reasonably contemporaneous and the nature of the event must be such that it would still be dominating the mind of the declarant when the statement is made. Some of the cases also require that there be an absence of special features that could likely result in an error by the declarant. For these principles, I rely on the above noted authorities, plus R v Khan, 2017 ONCA 114 at para 15, 45 CCC (3d) 419, leave to appeal to SCC refused, 2017 CanLII 49991; R v Liard, 2015 ONCA 414 at paras 63–64, 327 CCC (3d) 126, leave to appeal to SCC refused, 2016 CanLII 13758; and R v Andrews, [1987] 2 WLR 413 (HL) at 424 [Andrews].