Res Gestae and Dying Declarations: Difference between revisions
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{{seealso|Traditional Exceptions to Hearsay}} | {{seealso|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.<ref> | 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.<ref> | ||
See R v Schwartz (1978) NSR (2d) 335, [http://canlii.ca/t/htvqf 1978 CanLII 2477] (NS CA) at para 15<br> | See R v Schwartz (1978) NSR (2d) 335, [http://canlii.ca/t/htvqf 1978 CanLII 2477] (NS CA){{perNSCA| JA}} at para 15<br> | ||
R v Magloir [http://canlii.ca/t/57pp 2003 NSCA 74] (CanLII)<br> | R v Magloir [http://canlii.ca/t/57pp 2003 NSCA 74] (CanLII){{perNSCA| JA}}<br> | ||
R v Slugoski, [http://canlii.ca/t/22kj8 1985 CanLII 631] (BC CA), [1985] BCJ 1835<br> | R v Slugoski, [http://canlii.ca/t/22kj8 1985 CanLII 631] (BC CA), [1985] BCJ 1835{{perBCCA| JA}}<br> | ||
R v Khan, (1988), 42 CCC (3d) 197, [http://canlii.ca/t/gbs0g 1988 CanLII 7106] (ON CA), at p. 207, aff'd on other grounds [http://canlii.ca/t/1fsvb 1990 CanLII 77] (SCC), [1990] 2 SCR 531<br> | R v Khan, (1988), 42 CCC (3d) 197, [http://canlii.ca/t/gbs0g 1988 CanLII 7106] (ON CA){{perONCA| JA}}, at p. 207, aff'd on other grounds [http://canlii.ca/t/1fsvb 1990 CanLII 77] (SCC), [1990] 2 SCR 531{{perSCC| J}}<br> | ||
R v Head, [http://canlii.ca/t/g7cpp 2014 MBCA 59] (CanLII) at para 29<Br> | R v Head, [http://canlii.ca/t/g7cpp 2014 MBCA 59] (CanLII){{perMBCA| JA}} at para 29<Br> | ||
</ref> | </ref> | ||
It has been characterized as words that are contemporaneous with some action. Statements are admitted at times as "words brigaded to action".<ref>R v Ly, [http://canlii.ca/t/2dd5q 1996 ABCA 402] (CanLII), (1996), 193 A.R. 149; [1996] A.J. No. 1089 (C.A.) at para 3</ref> | It has been characterized as words that are contemporaneous with some action. Statements are admitted at times as "words brigaded to action".<ref>R v Ly, [http://canlii.ca/t/2dd5q 1996 ABCA 402] (CanLII), (1996), 193 A.R. 149; [1996] A.J. No. 1089 (C.A.){{perABCA| JA}} at para 3</ref> | ||
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".<ref> | 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".<ref> | ||
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</ref> | </ref> | ||
Requirements to the exception usually include:<ref> R v Hamilton, [http://canlii.ca/t/fmg7r 2011 NSSC 305] (CanLII) at para 20</ref> | Requirements to the exception usually include:<ref> R v Hamilton, [http://canlii.ca/t/fmg7r 2011 NSSC 305] (CanLII){{perNSSC| J}} at para 20</ref> | ||
# utterance made soon after underlying offence | # utterance made soon after underlying offence | ||
# speaker was in state of upset or trauma | # speaker was in state of upset or trauma | ||
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</ref> | </ref> | ||
The utterance does not need to be strictly contemporaneous "so long as the stress or pressure created by it is ongoing".<Ref>See R v Khan, (1988), 42 CCC (3d) 197, [http://canlii.ca/t/gbs0g 1988 CanLII 7106] (ON CA) at p. 207, aff'd on other grounds at SCC </ref> | The utterance does not need to be strictly contemporaneous "so long as the stress or pressure created by it is ongoing".<Ref>See R v Khan, (1988), 42 CCC (3d) 197, [http://canlii.ca/t/gbs0g 1988 CanLII 7106] (ON CA){{perONCA| JA}} at p. 207, aff'd on other grounds at SCC </ref> | ||
The judge should apply a "functional" analysis to its consideration of whether the statement is "contemporaneous".<ref> | The judge should apply a "functional" analysis to its consideration of whether the statement is "contemporaneous".<ref> | ||
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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. | 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. | ||
<ref> | <ref> | ||
Schwartzenhauer v The King, [1935] SCR 367, [http://canlii.ca/t/21v2x 1935 CanLII 18] (SCC) | Schwartzenhauer v The King, [1935] SCR 367, [http://canlii.ca/t/21v2x 1935 CanLII 18] (SCC){{perSCC| J}} | ||
</ref> | </ref> | ||
For a dying declaration to be admissible it must satisfy four criteria:<Ref> | For a dying declaration to be admissible it must satisfy four criteria:<Ref> | ||
R v Praljak, [http://canlii.ca/t/fst70 2012 ONSC 5262] (CanLII)<Br> | R v Praljak, [http://canlii.ca/t/fst70 2012 ONSC 5262] (CanLII){{perONSC| J}}<Br> | ||
R v Hall, [http://canlii.ca/t/fnv5l 2011 ONSC 5628] (CanLII)<Br> | R v Hall, [http://canlii.ca/t/fnv5l 2011 ONSC 5628] (CanLII){{perONSC| J}}<Br> | ||
</ref> | </ref> | ||
# the deceased had settled, hopeless expectation of almost immediate death; | # the deceased had settled, hopeless expectation of almost immediate death; | ||
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The statement must have been admissible if the person was alive to give the statement as evidence.<ref> | The statement must have been admissible if the person was alive to give the statement as evidence.<ref> | ||
Rex v Buck et al., [http://canlii.ca/t/g1386 1940 CanLII 107] (ON CA) | Rex v Buck et al., [http://canlii.ca/t/g1386 1940 CanLII 107] (ON CA){{perONCA| JA}} | ||
</ref> | </ref> | ||
The first criteria is determined on what would be the expectations of a reasonable person.<REf> | The first criteria is determined on what would be the expectations of a reasonable person.<REf> | ||
R v Buffalo, [2003] AJ No 1738 (QB){{NOCANLII}}<Br> | R v Buffalo, [2003] AJ No 1738 (QB){{NOCANLII}}<Br> | ||
R v Mulligan, (1973) 23 CR (NS) 1 (ONSC) aff'd at (1974) 18 CCC (2d) 270 (ONCA), [http://canlii.ca/t/htw5q 1974 CanLII 1662] (ON CA)<Br> | R v Mulligan, (1973) 23 CR (NS) 1 (ONSC) aff'd at (1974) 18 CCC (2d) 270 (ONCA), [http://canlii.ca/t/htw5q 1974 CanLII 1662] (ON CA){{perONCA| JA}}<Br> | ||
</ref> | </ref> | ||
This is often inferred from the extent of the injuries that were present. <Ref> | This is often inferred from the extent of the injuries that were present. <Ref> | ||
E.g. R v Nurse, [http://canlii.ca/t/gf28m 2014 ONSC 2340] (CanLII) at para 33 -- victim had an almost severed neck with intestines spilling out</ref> | E.g. R v Nurse, [http://canlii.ca/t/gf28m 2014 ONSC 2340] (CanLII){{perONSC| J}} at para 33 -- victim had an almost severed neck with intestines spilling out</ref> | ||
An "implied statement" is "any assertion not expressed by language, but rather is revealed through action".<Ref> | An "implied statement" is "any assertion not expressed by language, but rather is revealed through action".<Ref> | ||
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Assertions by conduct include pointing.<REf> | Assertions by conduct include pointing.<REf> | ||
Nurse{{supra}} at para 37<Br> | Nurse{{supra}} at para 37<Br> | ||
R v Perciballi [http://canlii.ca/t/1fbs7 2001 CanLII 13394] (ONCA), 154 CCC (3d) 481 at p. 520 to 521 (ONCA)</ref> | R v Perciballi [http://canlii.ca/t/1fbs7 2001 CanLII 13394] (ONCA), 154 CCC (3d) 481{{perONCA| JA}} at p. 520 to 521 (ONCA)</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 12:29, 24 December 2018
General Principles
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]
- utterance made soon after underlying offence
- speaker was in state of upset or trauma
- 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]
- ↑
See R v Schwartz (1978) NSR (2d) 335, 1978 CanLII 2477 (NS CA), per JA at para 15
R v Magloir 2003 NSCA 74 (CanLII), per JA
R v Slugoski, 1985 CanLII 631 (BC CA), [1985] BCJ 1835, per JA
R v Khan, (1988), 42 CCC (3d) 197, 1988 CanLII 7106 (ON CA), per JA, at p. 207, aff'd on other grounds 1990 CanLII 77 (SCC), [1990] 2 SCR 531, per J
R v Head, 2014 MBCA 59 (CanLII), per JA at para 29
- ↑ R v Ly, 1996 ABCA 402 (CanLII), (1996), 193 A.R. 149; [1996] A.J. No. 1089 (C.A.), per JA at para 3
- ↑
Head, supra, at para 31
- ↑ R v Hamilton, 2011 NSSC 305 (CanLII), per J at para 20
- ↑ Head, supra at para 33
- ↑
Head, supra at para 30
- ↑ See R v Khan, (1988), 42 CCC (3d) 197, 1988 CanLII 7106 (ON CA), per JA at p. 207, aff'd on other grounds at SCC
- ↑
Head, supra at para 31
- ↑
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]
- the deceased had settled, hopeless expectation of almost immediate death;
- the statement was about the circumstances of death;
- The statement would have been admissible if the deceased had been able to testify; And
- 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]
- ↑ Schwartzenhauer v The King, [1935] SCR 367, 1935 CanLII 18 (SCC), per J
- ↑
R v Praljak, 2012 ONSC 5262 (CanLII), per J
R v Hall, 2011 ONSC 5628 (CanLII), per J
- ↑ Rex v Buck et al., 1940 CanLII 107 (ON CA), per JA
- ↑
R v Buffalo, [2003] AJ No 1738 (QB)(*no CanLII links)
R v Mulligan, (1973) 23 CR (NS) 1 (ONSC) aff'd at (1974) 18 CCC (2d) 270 (ONCA), 1974 CanLII 1662 (ON CA), per JA
- ↑ E.g. R v Nurse, 2014 ONSC 2340 (CanLII), per J at para 33 -- victim had an almost severed neck with intestines spilling out
- ↑
Nurse, ibid. at para 37
Paciocco and Stuesser, The Law of Evidence, 6th Ed (Toronto: iRwin Law, 2011) at p. 108
- ↑
Nurse, supra at para 37
R v Perciballi 2001 CanLII 13394 (ONCA), 154 CCC (3d) 481, per JA at p. 520 to 521 (ONCA)