Res Gestae and Dying Declarations

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General Principles

See also: Traditional Exceptions to Hearsay

Spontaneous or excited utterances are a class of exception to the hearsay rule. An utterance falls in this category where the evidence can characterize it as being a spontaneous exclamation made without premeditation or artifice and before the speaker had time to concoct something.[1]

It has been characterized as words that are contemporaneous with some action. Statements are admitted at times as "words brigaded to action".[2]

The circumstantial trustworthiness of a statement arises where the declarant is under "stress or pressure" from the triggering event that reduces the possibility of "concoction or distortion".[3]

Requirements to the exception usually include:[4]

  1. utterance made soon after underlying offence
  2. speaker was in state of upset or trauma
  3. enough probative value to outweigh any prejudice

The res gestae exception to hearsay does not require necessity. Allowing the statement to be admitted even when the declarant testifies.[5]

Timing of Utterance
The location and timing of the declarant who makes a excited utterance is not determinative.[6]

The utterance does not need to be strictly contemporaneous "so long as the stress or pressure created by it is ongoing".[7]

The judge should apply a "functional" analysis to its consideration of whether the statement is "contemporaneous".[8]

The statement can be considered "contemporaneous" even if made shortly after the declarant flees the scene.[9]

  1. See R v Schwartz (1978) NSR (2d) 335(*no CanLII links) at para 15
    R v Magloir 2003 NSCA 74 (CanLII)
    R v Slugoski, 1985 CanLII 631 (BC CA), [1985] BCJ 1835
    R v Khan, (1988), 42 CCC (3d) 197(*no CanLII links) at p. 207, aff'd on other grounds 1990 CanLII 77 (SCC), [1990] 2 SCR 531
    R v Head, 2014 MBCA 59 (CanLII) at para 29
  2. R v Ly, 1996 ABCA 402 (CanLII), (1996), 193 A.R. 149; [1996] A.J. No. 1089 (C.A.) at para 3
  3. Head, supra, at para 31
  4. R v Hamilton, 2011 NSSC 305 (CanLII) at para 20
  5. Head, supra at para 33
  6. Head, supra at para 30
  7. See R v Khan, (1988), 42 CCC (3d) 197(*no CanLII links) at p. 207, aff'd on other grounds at SCC
  8. Head, supra at para 31
  9. Head, supra at para 30

Dying Declaration

Dying declarations are only admissible where the declarant's death is the issue of the case and where the statement speaks to the circumstances of death. [1]

For a dying declaration to be admissible it must satisfy four criteria:[2]

  1. the deceased had settled, hopeless expectation of almost immediate death;
  2. the statement was about the circumstances of death;
  3. The statement would have been admissible if the deceased had been able to testify; And
  4. the offence involved the homicide of the victim

The statement must have been admissible if the person was alive to give the statement as evidence.[3]

The first criteria is determine on what would be the expectations of a reasonable person.[4] This is often inferred from the extent of the injuries that were present. [5]

An "implied statement" is "any assertion not expressed by language, but rather is revealed through action".[6] Assertions by conduct include pointing.[7]

  1. Schwartzenhauer v The King, [1935] SCR 367, 1935 CanLII 18 (SCC)
  2. R v Praljak, 2012 ONSC 5262 (CanLII)
    R v Hall, 2011 ONSC 5628 (CanLII)
  3. Rex v Buck et al., 1940 CanLII 107 (ON CA)
  4. R v Buffalo, [2003] AJ No 1738 (QB)
    R v Mulligan, (1973) 23 CR (NS) 1 (ONSC) aff'd at (1974) 18 CCC (2d) 270 (ONCA)
  5. E.g. R v Nurse, 2014 ONSC 2340 (CanLII) at para 33 -- victim had an almost severed neck with intestines spilling out
  6. Nurse, ibid. at para 37
    Paciocco and Stuesser, The Law of Evidence, 6th Ed (Toronto: iRwin Law, 2011) at p. 108
  7. Nurse, supra at para 37
    R v Perciballi 2001 CanLII 13394 (ONCA), 154 CCC (3d) 481 at p. 520 to 521 (ONCA)