Hearsay - Res Gestae Exception. R. v. Hartling
In R. v. Hartling (Ont CA, 2020) the Court of Appeal stated as follows on the res gestae exception to the hearsay rule:
 I begin with R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 27 O.A.C. 142, at pp. 207-8:. R v Nurse
The test for determining admissibility, as Lord Wilberforce framed it in Ratten v. The Queen, supra at pp. 389-90, is the following: John Henry Wigmore suggests that the phrase “res gestae” which implies contemporaneousness is not correct. Rather, the statement that is made in circumstances of reliability is admissible because there is no opportunity for concoction. Wigmore’s point is that reliability derives not from contemporaneity, per se, but from the fact that the declarant is so overwhelmed with, or shocked by, the pressure or involvement of the event that the declarant would have no real opportunity for the reflection required to concoct a story. My colleague has written that rather than describing this as a res gestae exception the better – and more descriptive – phrase is “spontaneous statement”. To be clear, since the sense of pressure or involvement in the event will reduce over time, temporal considerations are not immaterial, but the focus must be on whether the effects of the pressure or involvement from the event are operating at the time the statement is made.
... [T]he test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.…
The rationale for this hearsay exception lies in the trustworthiness of the utterance which is regarded as furnished by an occurrence of so startling or shocking a nature as to suspend the declarant's ability to reflect and fabricate.
 In R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 70 O.R. (3d) 1 (Ont. C.A.), this court considered a 10-minute gap between the event and the utterance. There, a complainant awoke to find someone standing by her bed. The intruder repeatedly hit her on the head, covered her face with a pillow and had intercourse with her. She made an 11-minute 911 call approximately ten minutes after the intruder left. In determining that the statement was admissible, the court referred to R. v. Dakin (1995), 1995 CanLII 1106 (ON CA), 80 O.A.C. 253. In that case, the accused was charged with the murder of two women who died as a result of burns. The Crown sought to introduce statements made by one of the women an hour after the fire. The court cited Khan, at p. 207:
[A] spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. 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 or misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. [Emphasis added] Therefore, while a temporal connection to the event that triggered the statement is a factor, it is not determinative. The admissibility is an issue to be determined by the trial judge.
In R v Nurse (Ont CA, 2019) the Court of Appeal considered spontaneous utterances (aka res gestae) as a hearsay exception:
(ii) Spontaneous Utterance  . R. v. Mullin
 The gestures were equally admissible under the spontaneous utterance exception to the hearsay rule, although this exception seemed to play a lessor role in the trial judge’s analysis.
 Like the dying declaration exception, the spontaneous utterance exception has long been recognized in Canada. It is sometimes referred to alongside dying declarations, probably because they share certain functional features. The trial judge noted, at para. 22 of the second ruling, that a dying declaration is an example of a spontaneous utterance. While this may not always be the case, the two exceptions sometimes overlap, as they did in this case.
 The rationale for the spontaneous utterance exception was explained in the well-known case of R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont. C.A.), aff’d 1990 CanLII 77 (SCC),  2 S.C.R. 531, in which a medical doctor was accused of sexually assaulting a child in his care. In acquitting the accused, the trial judge excluded a statement made by the child to her mother, shortly after the alleged incident. The trial judge found that the statement lacked sufficient contemporaneity to be admitted as a spontaneous utterance.
 This court allowed an appeal from acquittal, partly on the basis that the trial judge had construed the spontaneous utterance exception too narrowly. Relying on Ratten v. The Queen,  A.C. 378 (P.C.), Robins J.A. described the exception in the following way, at p. 207:
…a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. 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. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. [Emphasis added.]The Privy Council’s decision in Ratten was previously adopted by this court in R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 42 O.R. (2d) 609 (C.A.), leave to appeal refused,  S.C.C.A. No. 253.
 The decision of this court in Khan was upheld by the Supreme Court, but for different reasons. The Supreme Court held that the trial judge had correctly excluded the mother’s evidence as to the child’s statements based on the spontaneous utterance exception. McLachlin J. (as she then was) explained, at p. 540:
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. Nor was it made under pressure or emotional intensity which would give the guarantee of reliability upon which the spontaneous declaration rule has traditionally rested. [Emphasis added.]The court then introduced the principled approach to hearsay evidence, finding that the child’s statement to her mother was nevertheless admissible on the basis of necessity and reliability.
 This court revisited the scope of the spontaneous utterance exception in R. v. Dakin (1995), 1995 CanLII 1106 (ON CA), 80 O.A.C. 253 (C.A.). The appellant argued that Khan had made the test for admission more stringent by insisting on strict contemporaneity. In a judgment released “By the Court”, it was held, 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: McCormick on Evidence, 4th ed. (1992), para. 272, at pp. 218-219.See also R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 70 O.R. (3d) 1, at pp. 22-23 (C.A.), leave to appeal refused,  S.C.C.A. No. 225; R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321, at paras. 144-153, leave to appeal refused,  S.C.C.A. No. 365; R. v. Carty, 2017 ONCA 770, 356 C.C.C. (3d) 309, at paras. 8-12; and R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 15, leave to appeal refused,  S.C.C.A. No. 139.
 Mr. Kumar’s assertions by conduct fell squarely within this exception. His gestures were made within minutes of the attack, just after his attackers had fled. The gestures were made as a direct result of the harrowing event that he continued to experience, while he lay on the road dying. Completely overcome by the events, there was no opportunity for concoction or speculation. Nurse does not submit otherwise. Again, the question returns to the alleged ambiguity of the gesture.
 In considering the application of this exception, I refer to R. v. Andrews,  A.C. 281,  1 All E.R. 513 (H.L.), the facts of which bear some similarity to this case. Donald Andrews was charged with the murder of Alexander Morrow. Mr. Morrow had been stabbed in his apartment. Shortly afterwards, he was found on the landing on the floor below his apartment bleeding profusely from a deep stomach wound. Two police officers arrived and started to perform first aid. Mr. Morrow was asked how he received his injuries. One officer testified that Mr. Morrow identified two attackers, including a man he knew as “Donald”. The other officer, who was not positioned as close to Mr. Morrow, thought that he said “Donovan” and wrote this down in his notebook. Upon seeing this notation, the first officer told the second that he was wrong. When the second officer testified at trial, he said that he heard the name “Don” quite clearly, but Mr. Morrow’s voice “mellowed and got quieter” while completing the name. Moreover, he spoke with a Scottish accent. Ultimately, the evidence was admitted as a spontaneous utterance. The decision of the trial judge was upheld in the Court of Appeal (Criminal Division).
 In further upholding the decision, the House of Lords clarified the law governing the spontaneous utterance exception, going so far as to provide trial judges with guidelines for admissibility on this basis: see pp. 300-301. I need not repeat them here. However, I note that their Lordships endorsed a functional approach. As Lord Ackner said, at p. 301: “Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.” These words have direct application in this case.
 Andrews shares another feature with this case – a dispute between two police officers about what the victim actually said (Andrews) or did (i.e., the sequence of Mr. Kumar’s gestures). Like this case, the two officers in Andrews were primarily focused on their lifesaving efforts. As Lord Ackner said, at p. 301: “As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not the admissibility of the statement and is therefore a matter for the jury.”
 Mr. Kumar made his gestures moments after being viciously attacked. The trial judge acknowledged that there was not strict contemporaneity. He said, at para. 22 of the second ruling: “While not contemporaneous, there is a close enough temporal connection that I am satisfied that the gesture is closely associated to the stabbing.” All other requirements were easily satisfied. Moreover, the admission of these gestures for their truth was well aligned with the rationale of the spontaneous utterance exception – they were made in response to being attacked where there was no realistic concern about concoction or fabrication.
 The trial judge was right to conclude that Mr. Kumar’s gestures were admissible under the spontaneous utterance exception to the hearsay rule.
In R. v. Mullin (Ont CA, 2019) the Court of Appeal sets out this definition of res gestae evidence:
 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 p. 207, aff’d 1990 CanLII 77 (SCC),  2 S.C.R. 531; R. v. Nurse, 2019 ONCA 260 (CanLII), at paras. 77-82; Ratten v. The Queen,  A.C. 378 (P.C.).. Moore v Getahun
In Moore v Getahun (Ont CA, 2015) the Court of Appeal commented as follows on the res gestae hearsay exception:
 The appellant submits that the trial judge erred in her application of the res gestae exception to the hearsay evidence rule. The res gestae exception allows a court to admit, for the truth of their contents, certain utterances which would otherwise be classified as hearsay on the grounds that the contemporaneous circumstances make the utterances reliable and less prone to misinterpretation. The three categories of utterances that may be properly characterized as part of the res gestae are (i) “declarations of bodily and mental findings and conditions”, (ii) “declarations accompanying and explaining relevant acts” and (iii) “spontaneous exclamations”: Bryant, Lederman and Fuerst, at para. 6.299..
 While I agree that the trial judge misused the label “res gestae”, I am not persuaded that she made inappropriate use of hearsay evidence or that any error she made had an impact on the outcome of this trial.
 As I have noted, the trial judge referred to res gestae in relation to two pieces of evidence – first, in relation to the report written by Dr. Orsini giving his opinion on the issues of standard of care and causation, and second, in relation to the statements made by Dr. Orsini to the respondent’s father commenting adversely on the appellant’s treatment of the respondent. In both instances, she clearly stated that she was not admitting the hearsay evidence for its truth, but only as part of the narrative.
 The res gestae doctrine operates as an exception to the hearsay rule and allows a court to admit certain utterances for their truth. The res gestae doctrine has no application to the admission of evidence as part of the narrative. I note, however, that the trial judge’s error is relatively common: see Bryant, Lederman and Fuerst, at paras. 6.300-6.301. In my view, in this case, it was a harmless error of nomenclature rather than substance.