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Evidence - Hearsay - Dying Declarations Exception

. R v Nurse

In R v Nurse (Ont CA, 2019) the Court of Appeal considered dying declarations as a hearsay exception:

(i) Dying Declaration

[66] As discussed above, one of the two traditional exceptions relied upon by the Crown was the dying declaration exception. The dying declaration exception is often traced back to The King v. Woodcock (1789), 1 Leach 500, 168 E.R. 352 (K.B.). Chief Baron Eyre explained the principle underlying the exception in Woodcock, at p. 502:

Now the general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice. [Emphasis added.]

In an early decision from this court in The King v. Sunfield (1907), 13 C.C.C. 1 (Ont. C.A.), Moss C.J.O. followed a similar approach, relying on another English case, The Queen v. Jenkins (1869), L.R. 1 C.C.R. 187, at p. 192. He accepted “any one or all” of the following formulations as capturing the essence of the exception: “every hope of this world gone”; “settled, hopeless expectation of death”; and “any hope of recovery, however slight, renders the evidence of such declarations inadmissible”: at pp. 5-6.[1]

[67] The Supreme Court has discussed the dying declaration exception from time to time. In Chapdelaine v. The King, 1934 CanLII 46 (SCC), [1935] S.C.R. 53, Duff C.J. pronounced the test for admissibility in the following way, at p. 58:

First of all, he must determine the question whether or not the declarant at the time of the declaration entertained a settled, hopeless expectation that he was about to die almost immediately. Then, he must consider whether or not the statement would be evidence if the person making it were a witness.

See also Schwartzenhauer v. The King, 1935 CanLII 18 (SCC), [1935] S.C.R. 367.

[68] In the ensuing years, the Supreme Court has occasionally made reference to the dying declaration exception; however, the court has not been called upon to apply this hearsay exception: see R. v. McGloan, 1975 CanLII 149 (SCC), [1976] 2 S.C.R. 842, at pp. 849-850, per Ritchie J., where the exception was referred to in passing.

[69] Reference is most often made to dying declarations in the Supreme Court’s developing jurisprudence on the principled approach to hearsay, providing a handy example of the former approach, based on categories or pigeon-hole exceptions: see e.g. R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at p. 540; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 34.

[70] In Starr, Iacobucci J. referred to dying declarations as an example of a hearsay exception that does not negate hearsay dangers, but “provides circumstantial guarantees of reliability”: at para. 212; see also Khelawon, at para. 64. In her majority reasons in Bradshaw, Karakatsanis J. said, at para. 22: “These traditional exceptions are based on admitting types of evidence that were considered necessary and reliable, such as dying declarations”. Pursuing a similar theme in R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, Karakatsanis J. said, at para. 20: “Exceptions to the hearsay rule developed for statements carrying certain guarantees of inherent trustworthiness, often because of the circumstances in which they were made (for example, dying declarations and declarations that are adverse in interest).”

[71] In Canada, academics have operationalized this hearsay exception in slightly different, but essentially similar ways. In Sidney L. Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis, 2018), the authors list the following three requirements, at pp. 377-379: (a) a settled or hopeless expectation of death; (b) the accused must be charged with homicide; and (c) the injuries are those of the declarant and are the subject of the charge.

[72] In The Law of Evidence, Paciocco and Stuesser list four requirements, at p. 177: (a) the deceased had a settled, hopeless expectation of almost immediate death; (b) the statement was about the circumstances of the death; (c) the statement would have been admissible if the deceased had been able to testify; and (d) the offence involved is the homicide of the deceased. This formulation was favoured by the trial judge in this case.

[73] Dying declarations can be very powerful. After all, the statements come from the very person who was killed, speaking about the circumstances of their death, often moments before the solemn event of their death. However, these inherent strengths are counterbalanced against the obvious inability to cross-examine the declarant. It is for this reason that the “courts have insisted on strict adherence to the prerequisites of the exception before granting admissibility”: see Lederman, Bryant & Fuerst, at p. 377. Davis J. in Schwartzenhauer, at p. 369, underscored this caution by adopting the following passage from Byles J. in Reg. v. Jenkins (1869), 11 Cox’s Cr. C. 250:

These dying declarations are to be received with scrupulous, I had almost said with superstitious, care. The declarant is subject to no cross-examination. No oath need be administered. There can be no prosecution for perjury. There is always danger of a mistake that cannot be corrected.

[74] In recent times, at least in Canada, this exception is not engaged very often: see, however, R. v. Aziga (2006), 2006 CanLII 38236 (ON SC), 42 C.R. (6th) 42 (Ont. S.C.); R. v. Hall, 2011 ONSC 5628. Nevertheless, there is no reason to question the continued legitimacy of this hearsay exception. This is demonstrated in the concurring reasons of Moldaver J. in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, in which he rejected the defence suggestion that the drug purchase call in question was a disingenuous, fabricated call, designed to deflect attention away from the true drug dealer. Moldaver J. said the following, at para. 115:

I caution thus against inferring suspicious circumstances in these types of cases absent any evidence suggesting as much. If that were our approach, many of our time-tested hearsay exceptions would unravel. To state the obvious, a dying man does not lose his ability to lie. And yet, in the case of dying declarations, we do not indulge in speculation about potential fabrication. Instead, the law recognizes that a motive to lie in such circumstances is at best remote (R. v. Woodcock (1789), 1 Leach 500, 168 E.R. 352 (K.B.), at p. 353). In other words, we recognize a norm of human behaviour for what it is — a norm.

[75] I acknowledge that this passage focuses on declarant sincerity, which is not the issue in this case. Nevertheless, this passage stands as a compelling recent endorsement of underlying principles for the dying declaration exception to the hearsay rule as enunciated in Woodcock.

[76] There can be no doubt that the trial judge correctly identified and applied the test for admissibility under this exception. Apart from this case involving an assertion by conduct, the attending circumstances were paradigmatic of a dying declaration at common law. Mr. Kumar’s gestures were admissible under this exception.