Evidence - Hearsay - Res Gestae Exception. R. v. MacKinnon
In R. v. MacKinnon (Ont CA, 2022) the Court of Appeal extensively considered the 'spontaneous utterance' hearsay exception:
i. The Traditional Hearsay Exception for Spontaneous Utterances. R. v. Camara
 One of the traditional exceptions to the general rule that hearsay evidence is inadmissible is the exception for spontaneous declarations. The requirement that the statement be made spontaneously under the pressure of a dramatic event is specifically geared to minimize the danger of fabrication or distortion because the declarant’s faculty is so overcome by the harrowing event that there is no opportunity for reflection, speculation or concoction. “Statements made under pressure or emotional intensity give the guarantee of reliability upon which the spontaneous declaration rule has traditionally rested”: R. v. Nguyen, 2015 ONCA 278, at para. 145, leave to appeal refused,  S.C.C.A. No. 365; R. v. Khan,  2 S.C.R. 521, at p. 540; and S. Casey Hill, David M. Tanovich and Louis P. Strezos, 5th ed., McWilliams’ Canadian Criminal Evidence (Aurora: Canada Law Book, 2022), at § 7:59.
 Spontaneity and contemporaneity of the utterance are the guarantors of reliability: R. v. Andrews,  A.C. 281,  1 All E.R. 513 (H.L.), at pp. 300-1; R. v. Alexander, 2012 ONSC 5873, at paras. 26-27; R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at paras. 78, 83-85; and David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed., (Toronto: Irwin Law Inc., 2020), at p. 231.
 Exact contemporaneity is not required, as spontaneity depends on the circumstances, but the statement and the event must be reasonably contemporaneous such that the event would still be dominating the mind of the declarant when the statement is made: R. v. Badger, 2021 SKCA 118, 468 D.L.R. (4th) 610, at para. 31, aff’d 2022 SCC 20, 468 D.L.R. (4th) 607; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 15, leave to appeal refused,  S.C.C.A. No. 139; and Nurse, at paras. 80-81.
 The question is whether the event was so unusual or startling that it would “dominate the thoughts and expressions of the person making the utterance”, such that there is no real risk of concoction or distortion: Badger, at para. 31; see also, Camara, at para. 85.
 In some cases, a spontaneous utterance should not be admitted if there are “special features” that could give rise to an error by the declarant: Badger, at para. 31; see also, Andrews, at p. 301; R. v. Hall, 2018 MBCA 122, at paras. 41, 53-55. Courts have also recognized that, in “rare cases”, even traditional exceptions to hearsay – including spontaneous utterances – can be challenged on the basis that, in a particular case, the indicia of necessity and reliability are lacking Starr, at para. 214; Mapara, at para. 15; and Khelawon, at para. 42; see also, Nurse, at para. 92. Given the potential overlap of these inquiries and the fact that they are both directed at ensuring the reliability of a statement, the “special features” of a case are, in my view, best considered together with the analysis of whether the “rare case” exception applies. Stated otherwise, in rare cases, special features may render a statement considered under the traditional exception for spontaneous utterances unreliable and therefore inadmissible.
 Such cases are expected to be few and far between, as evidence that satisfies the requirements of a traditional exception is presumptively admissible precisely because these exceptions “traditionally incorporate an inherent reliability component”: Starr, at para. 212; Nurse, at paras. 63, 89.
 Despite its well-established acceptance, there has been little guidance as to what constitutes a “rare case”. Andrews provides that “special features” are “circumstances of particular difficulty” beyond the ordinary fallibility of human recollection: at p. 301.
 In the context of the spontaneous utterance exception, “rare cases” may include circumstances of gross intoxication, highly impaired vision, and exceptionally difficult viewing conditions. When there is evidence strongly pointing to the presence of such circumstances, trial judges cannot exclude the real possibility of error and inaccuracy, and the hearsay statement will not meet the threshold reliability requirement under the principled approach: see Andrews, at pp. 300-301; R. v. Hall, 2011 ONSC 5628, at paras. 29, 58-62; Badger, at paras. 34, 37 and 40-42; Hall (MBCA), at paras. 53-54, 96, 98 and 118-19; and McWilliams, at § 7:59.
 However, “special features” or “rare case” exceptions should not include factors that may give rise to concerns about the declarant’s honesty or sincerity. Although the House of Lords in Andrews considered malice as a potential “special feature”, which might give rise to the possibility of concoction or distortion, this consideration has formed part of the determination of whether the statement is admissible as a spontaneous utterance wherein spontaneity and contemporaneity are guarantors of the statement’s reliability: Nurse, at para. 63; R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 42 O.R. (2d) 609, leave to appeal to S.C.C. refused,  S.C.C.A. No. 253.
 In other words, any reliability concern relating to truthfulness is inherently captured and addressed in the requirements of the spontaneous utterance exception and, in light of the principled approach jurisprudence, cannot form the basis for exclusion under the “rare case” exception. The “rare case” exception must extend beyond the reliability concerns inherently captured in the traditional hearsay exception to be unique to the case at hand: Mapara, at para.36; Nurse, at para. 92.
 Nor does the “rare case” exception include weaknesses that go to the ultimate weight of the evidence, which is for the jury to decide.
 The onus is on the party wishing to invoke the “rare case” exception to demonstrate that there are special features in a given case such that the presumptively admissible hearsay evidence does not meet the principled requirements of necessity and reliability: Mapara, at paras. 15, 37; Nurse, at para. 91. There is a high threshold to be met by a party seeking to exclude evidence on this basis: see Starr, at paras. 212, 214; R. v. Kler, 2017 ONCA 64, 345 C.C.C (3d) 467, at para. 79; and Nurse, at para. 91.
In R. v. Camara (Ont CA, 2021) the Court of Appeal (Watt JA) states basics of res gestae evidence:
 Res gestae is a long-established concept in the law of evidence. Despite its antiquity, its precise doctrinal significance at common law eludes clarity and precision. In translation for forensic purposes, it approximates “the events at issue in the litigation”. This adds little to our basic concepts of relevance and materiality. Its passing would not be mourned. All the more so when we have substituted principle for shibboleth.. R. v. Borel
 Whether they are received as a true exception to the hearsay rule - thus as evidence of the truth of what was said - or as original evidence not reached by the hearsay rule, statements admitted under res gestae include:
i. spontaneous statements or excited utterances;See, Sheri, at paras. 107-10. See also, Criminal Justice Act 2003 (UK), s. 118(1), para. 4.
ii. statements accompanying and explaining an act which can be properly evaluated as evidence only if considered in conjunction with the statement; and
iii. statements relating to a physical sensation or mental state, such as intention or emotion.
 The excited utterances aspect of res gestae posits a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction. Contemporaneity of the statement with the event is a matter of degree. For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant’s mind remained under the domination of that event. In other words, the trigger mechanism for the statement – the event – was still operative. Spontaneity and contemporaneity are guarantors of reliability: R. v. Andrews,  A.C. 281 (H.L.), at pp. 300-1.
 In connection with statements accompanying and explaining an act, the act must be relevant in the absence of the statement. The justification for admitting the statement is that it may explain the precise significance of the act by showing its nature or the state of mind that accompanied it. See, for example, R. v. Kearley,  A.C. 228 (H.L.), at p. 246.
In R. v. Borel (Ont CA, 2021) the Court of Appeal commented critically as follows on the term 'res gestae', and preferred the term 'spontaneous utterance':
 The modern expression for the “res gestae” exception to the hearsay rule is “spontaneous utterance”: R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, n. 2. There is serious criticism of the use of the term “res gestae” to describe this exception. Indeed, the authors of James H. Chadbourn, ed., Wigmore on Evidence, vol. 6 (Toronto: Little, Brown and Company, 1976), at §1767, p. 255., have this to say on the use of the term:. R. v. Hartling
The phrase res gestae has long been not only entirely useless, but even positively harmful.… Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision. That said, I do not accept that the evidence could be properly admitted on the basis of spontaneous utterance because, on the evidence before us, there was nothing apparently spontaneous about the complainant’s conduct regarding the list of categories of possible attackers. Rather, the nodding or shaking of her head was the result of repeated questioning by the EMS attendant – repeated questioning that neither of the firefighters recollects having occurred. As Catzman J.A. said in R. v. Aguilar (1992), 1992 CanLII 7727 (ON CA), 10 O.R. (3d) 266 (C.A.), at para. 34:
Assuming, without deciding, that Ms. Cooper's submission is correct, I do not consider the statements in the present case to fall within the spontaneous declaration exception to the hearsay rule, for they do not attain the level of spontaneity that is an essential element of that exception. They were made in response to very particular questions. [Emphasis added.]
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.