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Evidence - Hearsay - Principled Exception (7). R. v. Buoc
In R. v. Buoc (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions "by a jury on two counts of second degree murder and one count of attempted murder".
Here the court considered the res gestae hearsay exception, noting that it may fail when it does not "meet the requirements of threshold reliability" - as that concept is used in the principled hearsay exception:[32] The third alleged error relates to the trial judge’s admission of Talal’s res gestae statements, which is a form of hearsay evidence. The admissibility of hearsay evidence is a question of law, to be reviewed on a standard of correctness. However, an appellate court must accord deference to the findings of fact underlying the admissibility ruling. Further, trial judges are “well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them”: R. v. Charles, 2024 SCC 29, 496 D.L.R. (4th) 581, at para. 41, citing R. v. Youvarajah, 2013 SCC 41, 2 S.C.R. 720, at para. 31. Therefore, absent an error in principle, a trial judge’s determination of threshold reliability is entitled to deference.
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[65] As a general rule, spontaneous utterances made during or in the aftermath of a shocking event are admissible as an exception to the hearsay rule: R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at para. 78; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 212. This is because such statements are inherently reliable where the surprise and stress of the event remove the possibility of concoction or deception: 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), [1990] 2 S.C.R. 531; Ratten v. The Queen, [1972] A.C. 378, (P.C.), at pp. 389-90. In deciding whether to admit a spontaneous utterance for the truth of its contents, the court is not to just look at the timing of the utterance, but at all of the circumstances at the time of the utterance, including the circumstances that diminish the possibility of concoction or distortion: R. v. Dakin (1995), 1995 CanLII 1106 (ON CA), 80 O.A.C. 253 (C.A.), at para. 20; Nurse, at para. 82.
[66] The Supreme Court has recognized that, in rare circumstances, evidence that fits within one of the traditional exceptions to the hearsay rule can nevertheless be excluded on the basis that it does not meet the requirements of threshold reliability: Starr, at para. 214; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 42. . Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333)
In Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) (Fed CA, 2026) the Federal Court of Appeal considered seven appeals, all relating to "a dispute between the parties that dates from 2017 when Grain Workers’ Union Local 333 ILWU (the Union) filed two policy grievances alleging violation by Viterra Canada Inc. (Viterra) of the maximum work hours provisions of the Canada Labour Code".
Here the courts notes that where business records provisions don't allow evidence to be admitted, the principled hearsay exception rule may allow it regardless:[139] .... The Court noted the primacy of reliability in the origins of the rules regarding hearsay at the beginning of the Second Admissibility Order:[12] In circumstances where a business record does not satisfy the requirements for admissibility under either the common law or statute, the hearsay statement may nonetheless be admitted where necessary and reliable in accordance with the principled approach to hearsay (R v Ramratten, 2015 ONCJ 567 at paras 89 and 90 [Ramratten], citing R v Wilcox, 2001 NSCA 45 at paras 58 and 61).
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