Traditional Exceptions to Hearsay Rule

2. Res Gestae, Spontaneous Utterances, & Dying Declarations

A spontaneous statement relevant to an issue, made by the victim of an attack or a bystander, is admissible provided that the risk of concoction or distortion can be excluded

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  Admissible if:
  

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  Relates to starting event or condition
  
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  Made when declarant under stress of excitement caused by event or condition
  
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  Testimonial factors satisfied
  
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  Idea that something said closely following event is likely reliable, less chance of reflection/fabrication
  
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    But often our first impression is wrong, and some people are inveterate liars
    

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  Not relevant to admissibility
  

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  Unavailability of declarant: hard to say when “startling” event starts and ends
  
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  Statement doesn’t have to be made exactly contemporaneous to attack, but must be connected to act
  

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  Res gestae: things done, what’s been done
  

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  Ex. Accused found in possession of stolen item, Crown must prove item is proceeds of crime and accused knew it was stolen; if they say when apprehended that they didn’t know, accused can lead that self-serving basically oath helping statement through apprehending officer and not even take stand himself
  

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  Dying declaration is made where declarant is under hopeless fate of death, and is admissible
  
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    Why? Theory is that because people know they are dying they will tell the truth Woodcock
    
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    Need: 1) Settled, hopeless expectation of almost immediate death
    

3) Statement would be admissible if declarant could testify (can’t be opinion, double hearsay)

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  B had threated to kill deceased, went to her house, shortly after she ran outside, throat had been slit, and she cried out something, then died; Bedingfield said she stabbed me first, I stabbed her back
  
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  Words were something like “look what Harry has done”; court said not dying declaration, no direct evidence she knew she was dying (this part is crap, has not been followed)
  

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  Court said not res gestae/spontaneous, as it happened afterward; not said while something was being done; suggesting she’s concocting story he did it first not her and getting it out before he tells his
  

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  Today it would be different, time and situational parameters expanded
  

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  Retired army officer’s wife shot to death with one of his guns – was shooting accidental or intentional
  
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  He says cleaning gun, 1:09 call from accused’s father; 1:15 hysterical sobbing woman (only woman in house is wife) says to operator get me police; 1:20 police call house, Ratten says oops accidently shot my wife
  
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  Court says “get me police please” in hysterical tone is evidence with two aspects:
  

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  Circumstantial: speaking in hysterical tone in sequence with innocent call, frantic call for police, and confirmation that he shot her – inference he was pointing gun at her, no reason she’d call police if it was accident; like Baldree I want to buy some drugs; truth of statement she “wants police” has value
  
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  Testimonial value: hearsay concern is risk of concoction, which is slight if there’s little time in between; doesn’t have to be immediately contemporaneous but if statements made after event judge must make preliminary decision that they’re spontaneous enough to fit exception, go in
  

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  C went to ex’s house, got into altercation with his new wife (deceased), she’s a stalker; neighbour witness said heard/saw deceased yell that she had been murdered/stabbed at top of driveway “I’ve been murdered, stabbed”
  
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  Statement is sometime after the incident, and is kind of biased by characterizing it as murder
  
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  Court found statement to be spontaneous and likely dying declaration, overturns Bedingfield, statements do not have to be exactly contemporaneous to the act
  
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  What matters is inherent credibility coming with these statements; frequently it’s 911 calls for res gestae phoning after assault giving details to operator, that call can often be led because close enough in time to event so low risk of concoction – like here with neighbour
  

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  Witness said: I said what’s the matter Andy, did somebody cut you? And he said hi Billy, no cut, Jake shoot (Polish guy); witness said are you hurt, I’ll get a doctor; he says “no doctor Billy, me die”; true belief in death; “Jake shoot” is dying declaration; but “me die” might fit into exceptions about how you feel
  
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  He gave statement before he proclaimed imminent demise, so did he have belief when he gave statement? Court said whatever it was so close to when he died, this falls into exception
  
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  Underlying necessity is that guy is dead now; reliability is that you apparently don’t lie when you think you’ll die; court focussing stupidly on whether it was very last minute or not
  

3. Statements Against Pecuniary and Penal Interest

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  Who is not a party to the proceedings,
  
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  Who is now deceased or otherwise unavailable, and
  
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  Statement is incriminating or against the persons interest, inculpatory to accused not exculpatory Lucier
  
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  Admissible if:
  

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  Declarant is unavailable - necessity
  
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  Statement was against declarant’s interest at time it was made
  
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  Declarant knew statement against his interests (but not necessarily that it’d be used as evidence against him) at time he made it – reliability is no one will say they owe debt when they don’t
  
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  Declarant had personal knowledge of facts stated
  
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  If against penal interests: declarant must have been aware he was opening himself to criminal liability
  

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  Presumed trustworthiness: highly unlikely a person would make false statement against their own interest O’Brien
  

1. 
   Fact stated was within peculiar knowledge of the declarant
   
2. 
   Fact was one to immediate prejudice of deceased
   
   1. 
      If it can be construed as either for or against interests, or only against interests in certain future events, doesn’t qualify and is inadmissible
      
3. 
   Declarant subjectively knew the fact to be against his interests when it was made
   

1. 
   Made to person in circumstances where declarant would have apprehended vulnerability to penal sanctions as a result – distinguished statement made to police from that made to family/lawyer
   
2. 
   The vulnerability of penal sanctions is not too remote
   
3. 
   Consider declaration in totality – if overall tenor is in favour of declarant, not admissible Pelletier
   
4. 
   Are there other circumstances connecting declarant with crime, any connection between declarant and accused
   
5. 
   The declarant is not available to testify Pelletier
   

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  O’B and J charged with possession for trafficking; O’B arrested, J fled; J admits to lawyer that just J did, agreed to testify – J then dies; J told lawyer 10 months after O’B convicted, 6 months after charges against J dropped
  
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  Demeter Factor not met: Despite statement being to J’s prejudice, no indication J intended it to be
  

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  Circumstances: Made to lawyer after charges against him dropped, in lawyer’s office, not furnishing evidence against himself
  

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  D, C and P roommates, C killed, D told police C had fist fight w/C, D charged, dropped, P charged, D disappears
  
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  Statement by D admissible as statement against penal interests, despite D raising it for self-defence, it also incriminated him; Demeter factors only #3 and #5 considered
  
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  #3: admission of assault to police when investigating manslaughter by assault, places body where found by police, declaration regarded in light of all evidence shows declaration of D is against his interest
  
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  #5 Not exhaustive, D unavailable, “ any reason why declarant can’t be brought should suffice, physical incapacity, absence from jurisdiction, or inability of party to find him (McCormick)
  
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  D was practicably unavailable, and more incriminatory than exculpatory: hearsay admitted
  

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  L charged with arson, D (burned in fire) made statement to police that it was his fault because L had paid him to set fire – D then dies
  
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  Limit on hearsay exception for statements against interest, for purpose of inculpating accused, weird; no possibility to cross examine D, there was issue of trial fairness
  

4. Business Records (Declarations in Course of Duty)

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  S.29 CEA: a copy of an entry in a book or record kept by a financial institution is admissible as proof, in absence of evidence to contrary, of the entry and of all the matters/transactions recorded therein, provided that the entry was made in the normal course of business, was an ordinary record of the financial institution, and was in the custody/control of the institution and is a true copy
  
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  S.30 CEA: where oral evidence of a matter would be admissible, a record made in the usual and ordinary course of business that contains info in respect of that matter is admissible
  

Ares v. Venner

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  Ares skiing in Jasper, fractured leg, Dr. Venner took him at hospital, under anaesthetic, cast; nurse recorded Ares had no feeling in foot, didn’t improve, Dr checked a few times; leg amputated; Ares suing for negligence
  
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  Modern rule makes admissible a record containing: (i) an original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as result of having done or observed or formulated it (vi) who had duty to make record and (vii) has no motive to misrepresent
  
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  “Original entry” need not be made personally by a recorder with knowledge of thing recorded, it’s enough that recorder is functioning in usual and ordinary course of system in effect for preparation of business records Wilcox
  
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  Nurse’s notes meet modern conditions: hospital records contemporaneous, personal knowledge of matters recorded and under duty to record is evidence prima facie of proof of facts; party can challenge accuracy still
  

R v. Martin 1997 SKCA

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  Martin charged with defrauding Canadian Wheat Board of $1000, overstated amount of wheat and barley on hand so CWB would advance him more money; using evidence of average crop yields in cities where he farmed, looked at Statistics of gov’t departments, TJ said No, Martin can’t say how Stats Can collected info
  

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  S.30(1) CEA double hearsay: info in record given to keeper who had no knowledge of its accuracy is ok
  
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  S.30(6) CEA court can consider circumstances where info written, exclude double hearsay documents
  
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  Anthes corporate files from info from person who got it from another; court said OCB, not 2x hearsay
  
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  Penno admitted written record of inventory numbers prepared by person based on other’s info, “
  
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  Grimba expert didn’t make record, no personal knowledge of accuracy, but described FBI repository for fingerprint records, records admitted because systematically stored, produced and regularly relied upon, under s.30 shouldn’t be barred from court, not 2x hearsay
  
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  Biasi: when record made info was received from another party, isn’t inadmissible hearsay; CEA allows such records as proof of facts in them even if record maker got info from other party so long as facts recorded would themselves be admissible; s.30(1) allows document in OCB even if it’s 2x hearsay
  

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  Policy: avoid cost and inconvenience of calling record keeper and the maker, just let documents in OCB in; and matter of necessity document admitted; proof that document made in OCB prima facie fulfils qualification hearsay must be trustworthy to be admitted; S.30 would accomplish little if author of data had to testify
  

R v. C.L. 1999 ONCA

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  Factual statement in [medical records] hearsay and not evidence which you can consider if you read the material: letter supporting abortion being performed; said 13 year old girl (CL’s wife’s sister), had pregnancy from 2 year relationship with 15 year old, but appellant is 26 so evidence would implicate someone else
  
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  Hospital records and letter admissible as business records made in OCB by responsible for making records
  
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  Even if letter isn’t business record, hearsay admissible if reliable and necessary: hospital ppl can’t recall specific event, no reason not to rely on record, not falsely recorded info suggested; judge can’t say it’s hearsay and ignore
  

R v. Larsen 2001 BCSC

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  Autopsy report and other report of Dr. pathologist, Crown wants it in as declaration made in course of duty, or principled approach; defence says hearsay; Dr now dead and unable to testify; another doctor corroborated
  
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  They are records in course of duty: created routinely, relied on for business purposes, no motive to misrepresent, duty to create and fear of dismissal if recorder fabricated; Dr had personal knowledge of info; Supplemental report fails contemporaneous requirement
  
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  Principled exception: necessary since dead, reliable threshold for both reports, circumstantial guarantees of trustworthiness and corroborated by other Dr
  

5. Testimony in Prior Judicial Proceedings

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  S.715 Criminal Code: testimony taken at prior judicial proceeding admissible in current proceeding if:
  
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    Given at previous trial/prelim hearing involving same accused/charged
    
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    Hearsay declarant dead, practicably unavailable, refuses to testify
    
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    Testimony made in front of accused, signed by judge as being reliable/trustworthy
    
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    Accused had full opportunity to cross examine the witness
    
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      If accused chose not to cross examine for strategic reason, too bad
      
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      If given in absence of accused because accused absconded, accused deemed to have been present
      
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    Section confers discretion on judge to still exclude if it would be unfair/prejudicial Potvin
    
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  BC Civil Rules (54): re testimony from prior civil proceedings:
  
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    Witness dead/practicably unavailable, court may permit testimony given under oath from any prior judicial proceedings, whether or not involving same parties, if other party given reasonable notice
    

R. v. Potvin 1989 SCC

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  P, D and T conspired to rob deceased, killed her in process; D testified at prelim hearing but refused to testify at trial; crown applied to have testimony admitted through s. 715; D claimed s. 715 unconstitutional
  
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  S.715 constitutional, doesn’t violate s.7 Charter (fair trial): only allows evidence where accused had opportunity to cross ex aka still “full opportunity” to cross-ex, plus confers a judicial discretion to prevent unfairness
  

6. Prior Criminal Convictions

Criminal conviction of accused can be used offensively as evidence in a civil proceeding where the conviction would be relevant evidence to an issue in the civil matter

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  S. 71 BCEA:
  
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    Person convicted/found guilty of offence and that offence is related to current proceedings, proof the conviction admissible to prove a person committed the offence, whether or not person is a party
    
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    If action is before jury, party has right to voir dire to argue that PV of the conviction is outweighed by its PE and ought to be excluded
    

7. Statements Concerning Bodily and Mental Condition

A statement about declarant’s bodily/mental health, contemporaneous with the condition described, are admissible

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  Person claims to be experiencing a particular physical condition; reliability from spontaneity Youdon
  
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    No other way to determine facts asserted in statements; we don’t know what other pain or feeling or emotion another person is suffering, fact that statement is made at the time by the person feeling it makes it more likely true
    
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    Statements of this made to doctor thought more weighty than otherwise, since you’re unlikely to mislead someone who is giving you treatment or assistance
    
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  Not admissible:
  

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  Statements of past pain
  
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  Statements as to cause of pain
  

Youldon v. London Guarantee and Accident Co 1910

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  Y lifts beam at work, says right after he thinks he hurt himself – subsequently dies of bacterial infection believed to have been caused from work injury; lifting end of 600 lb beam on his own while co-workers together lifting other end; went out later and had ice cream but not well
  
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  Is this worker’s comp covered?
  
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  Y’s statement to co-worker admissible: contemporaneous, and that action could have been one way of bacteria to invade, so court reasons lifting was cause of injury injury led to bacteria bacteria led to death
  
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  Unlikely to be false, credible, hallmark of spontaneity; there is some flexibility on contemporaneity
  
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  Note: had he said he hurt himself “because he lifted the beam” this wouldn’t be admissible because of the further assertion as to the cause of the injury
  

8. Statements of Intention

Relevant if acted upon; sometimes regarded as aspect of statements of mental condition, intention is like a mental state

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  Admissible where statement is:
  

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  A description of declarant’s own present state of mind (emotion, intent, motive, plan)
  
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  State of mind of declarant is relevant if explicit
  
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  Made in natural manner
  
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  Not under circumstances of suspicion
  

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  How it can be used: can prove declarant’s state of mind, but not someone else’s; in many cases state of mind of declarant relevant because circumstantially it may prove something of state of mind of other person P(R)
  
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  Statements which permit inference as to declarant’s state of mind are original testimonial evidence admitted as circumstantial evidence from which state of mind can be inferred – being offered not for truth of contents but for the fact they are said Ratten
  
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  NOT used to prove past acts or events referred to in the statement
  
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  Ex. Deceased had entry in day planner on morning of his death, “book cruise for anniversary”, wife saying he accidently shot self while cleaning gun, insurance company says its suicide – this is being adduced for its truth sort of: whether he actually did book the trip or mean to doesn’t matter but it shows intention to keep living
  

Mutual Life v. Hillmon 1892 US

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  Mrs. H trying to collect insurance money; issue is whether H is dead, or if body found was W – W had written letter stating he planned to travel to area with H, where his body was then found; maybe was trying to fake death
  

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  H wants letters allowed to prove that W carried out intention to go to Wichita and that H went with him, since if he went it might be H’s body found
  

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  Must be connection between stated intention and act: letter relevant as evidence that shortly before time when other evidence showed he went away he had intention of going away, makes it more probable that he did go there
  

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  Letters were competent not as narratives of facts communicated to writer by others, nor as proof that he actually left Wichita, but as circumstantial evidence that shortly before time when other evidence tended to show that he went away, he had intention of going, and going with Hillman, which made it more probable both that he did go and went with Hillman than if there had been no proof of such intention
  

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  After his death, no other way to prove, and while he’s alive, his own memory of his state of mind at former time is no more likely to be clear and true than a bystander’s recollection of what he then said, and less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation
  

R. v. Wainwright

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  Deceased made statement when leaving her house that she was going to house of HW, the accused
  
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  Statement not admissible, it was only an incidental remark to act of leaving – only a statement of intention, which may or may not have been carried out
  

R. v. P.(R.) 1990 ONHC

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  Court accepted utterances made by deceased to several witnesses showed state of mind that: deceased unhappy with relationship, feared accused, going to end relationship, intended to permanently cease involvement with him
  

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  All those states were established by statements except fear
  

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  Relevance: state of mind permits inferences that she had intention of ending relationship, giving motive for P to kill her when combined with other evidence
  

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  Circumstantially relevant: accused is killer, motive of rage, which goes to prove ID of killer
  
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  Permit inference to her state of mind, as testimonial evidence and admitted as circumstantial evidence from which state of mind can be inferred; hearsay that leads to inferences
  
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  State of mind is circumstantial evidence that she acted in accordance with intention
  

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  Not showing deceased’s state of mind or his reaction to her stated intention, or that past events actually occurred; proving motive NOT his intention, which then goes to ID
  

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  Then PE vs. PV: jury may use evidence of utterances for other than inferences on her state of mind, may infer that accused was tyrannical obsessed with controlling deceased, then infer he’s sort of person who would kill someone who challenges him- which is logical but propensity; supposed to be motive
  

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  Note: even where relevant, remember to weight PV against PE
  

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