Res Gestae and Dying Declarations

From Criminal Law Notebook
This page was last substantively updated or reviewed August 2021. (Rev. # 89657)

General Principles

See also: Traditional Exceptions to Hearsay

Spontaneous or excited utterances (res gestae) are a traditional class of exception to the hearsay rule.[1] The traditional rule says that a statement relating to a "startling event or condition" can be admitted where the declarant is under "the stress of excitement cause[d] by the event or condition."[2]

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.[3]

It has been characterized as words that are contemporaneous with some action. Statements are admitted at times as "words brigaded to action."[4]

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."[5]

Elements of Proof

Requirements to the exception usually include:[6]

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

A slightly different formulation states the requirements:[7]

  1. there is a startling occasion;
  2. there is an utterance or statement made before there is time to fabricate;
  3. the utterance must relate to the startling occasion; and
  4. the declarant must personally observe the matter of which they speak.

The requirements must be proven on balance of probabilities.[8]

The res gestae exception to hearsay does not require necessity. Allowing the statement to be admitted even when the declarant testifies.[9]

Purpose of Rule

It recognizes that the risk of concoction and deception is mitigated by the stress or pressure of the act at the time of utterance.[10]

Timing of Utterance

The timing of the utterance is important to determine the reliability of the statement.[11] The location and timing of the declarant who makes an excited utterance is not determinative.[12] "Strict contemporaneity" is not a necessary element.[13]

The utterance does not need to be strictly contemporaneous "so long as the stress or pressure created by it is ongoing."[14]

The judge should apply a "functional" analysis to its consideration of whether the statement is "contemporaneous."[15]

The statement can be considered "contemporaneous" even if made shortly after the declarant flees the scene.[16]

  1. R v Nurse, 2019 ONCA 260 (CanLII), 145 OR (3d) 241, at para 78 ("Like the dying declaration exception, the spontaneous utterance exception has long been recognized in Canada.")
    R v Camara, 2021 ONCA 79 (CanLII), per Watt JA, at para 83 ("Res gestae is a long-established concept in the law of evidence. Despite its antiquity, its precise doctrinal significance at common law eludes clarity and precision. In translation for forensic purposes, it approximates “the events at issue in the litigation”. This adds little to our basic concepts of relevance and materiality. Its passing would not be mourned. All the more so when we have substituted principle for shibboleth.")
    R v Badger, 2021 SKCA 118 (CanLII), per Tholl JA
    R v Nurse, 2019 ONCA 260 (CanLII), 374 CCC (3d) 181, per Trotter JA, at paras 58 to 59 and 78
    R v Hall, 2018 MBCA 122 (CanLII), 368 CCC (3d) 520, per Mainella JA, at para 41
    R v Head, 2014 MBCA 59 (CanLII), 310 CCC (3d) 474, at para 25
    R v Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531, per McLachlin J at p. 540
  2. R v Mullin, 2019 ONCA 890 (CanLII), 383 CCC (3d) 16, per Strathy CJ, at para 41
    David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 191
  3. See R v Schwartz, 1978 CanLII 2477 (NSCA), (1978) NSR (2d) 335, per MacDonald JA, at para 15
    R v Magloir, 2003 NSCA 74 (CanLII), 178 CCC (3d) 310, per Oland JA
    R v Slugoski, 1985 CanLII 631 (BCCA), [1985] BCJ 1835, per Esson JA (2:1)
    R v Khan, 1988 CanLII 7106 (ON CA), 42 CCC (3d) 197, per Robins JA, at p. 207, aff'd on other grounds 1990 CanLII 77 (SCC), [1990] 2 SCR 531, per McLachlin J
    R v Head, 2014 MBCA 59 (CanLII), 310 CCC (3d) 474, per Mainella JA, at para 29
  4. R v Ly, 1996 ABCA 402 (CanLII), 193 AR 149; [1996] AJ No 1089 (CA), per McClung JA, at para 3
  5. Head, supra, at para 31
  6. R v Hamilton, 2011 NSSC 305 (CanLII), 284 CCC (3d) 386, per Rosinski J, at para 20
  7. R v Smart, 2021 ONSC 2825 (CanLII), per Byrne J, at para 18
    R v Campbell, 2021 ONCJ 443 (CanLII), per Marion J, at para 22
    Nurse, supra, at paras 77 to 88
    R v Nicholas, 2004 CanLII 13008 (ON CA), 182 CCC (3d) 393, per Abella JA, at paras 88 to 89
  8. Smart, supra, at para 18
    Campbell, supra, at para 22
  9. Head, supra, at para 33
  10. Nurse, supra, at para 80 R v Clark, 1983 CanLII 1805 (ON CA), , 42 OR (2d) 609 (CA), per Dubin JA citing Ratten v The Queen, [1972] A.C. 378 (P.C.) ("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 and misrepresent. ")
  11. Khan, supra, per McLachlin J("I am satisfied that applying the traditional tests for spontaneous declarations, the trial judge correctly rejected the mother's [evidence as to the child’s] statement. The statement was not contemporaneous, being made fifteen minutes after leaving the doctor's office and probably one-half hour after the offence was committed.")
  12. Head, supra, at para 30
  13. R v Dakin, 1995 CanLII 1106 (ON CA), , 80 OAC 253 (CA), per curiam, at para 20 ("We do not accept the submission that the Supreme Court of Canada decision in Khan - in which there appears no reference to Clark - has changed the law regarding spontaneous declarations as stated in Clark and has reinstated the principle of strict contemporaneity enunciated in some earlier authorities. The admissibility of the declaration is assessed not simply by mechanical reference to time but rather in the context of all of the circumstances obtaining at the time, including those which tell against the possibility of concoction or distortion")
    R v Nguyen, 2015 ONCA 278 (CanLII), 125 OR (3d) 321, per Gillese JA, at paras 144 to 153
    R v Carty, 2017 ONCA 770 (CanLII), 356 CCC (3d) 309, per curiam, at paras 8 to 12
    R v Khan, 2017 ONCA 114 (CanLII), 136 OR (3d) 520, per Hourigan JA, at para 15
  14. See R v Khan, 1988 CanLII 7106 (ON CA), 42 CCC (3d) 197, per Robins JA, at p. 207, aff'd on other grounds at SCC
  15. Head, supra, at para 31
  16. 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 determined 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 CanLII 18 (SCC), [1935] SCR 367
  2. R v Praljak, 2012 ONSC 5262 (CanLII), OJ No 4430, per Dambrot J
    R v Hall, 2011 ONSC 5628 (CanLII), OJ No 5109, per Archibald J
  3. Rex v Buck et al, 1940 CanLII 107 (ON CA), OR 444, per Robertson CJ
  4. R v Buffalo, [2003] AJ No 1738 (QB)(*no CanLII links)
    R v Mulligan, 1974 CanLII 1662 (ON CA), , (1973) 23 CR (NS) 1 (ONSC) aff'd at (1974) 18 CCC (2d) 270 (ONCA), per Martin JA
  5. E.g. R v Nurse, 2014 ONSC 2340 (CanLII), OJ No 5003, per Coroza J, 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 (ON CA), 154 CCC (3d) 481, per Charron JA (2:1), at pp. 520 to 521 (ONCA)