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Evidence - Hearsay - Spontaneous Utterance. R. v. R.A.
In R. v. R.A. (Ont CA, 2024) the Divisional Court allowed a criminal appeal, here focussing on the hearsay exception for 'spontaneous utterances':(2) Standard of Review
[32] The standard of review is undisputed. The admissibility of a statement as a spontaneous utterance is a question of law; however, when evaluating hearsay evidence, the factual findings by the trial judge regarding the circumstances surrounding a spontaneous utterance are subject to review on a standard of palpable and overriding error. If the trial judge applied the correct principles of law his decision to admit the text as a spontaneous utterance is entitled to deference on appeal: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 36.
(3) Spontaneous Utterances
[33] The trial judge correctly observed that spontaneous utterances are admissible for the truth of their contents as an exception to the rule against hearsay. The reliability of a statement found to meet the test for a spontaneous utterance flows from its closeness in time to a startling, shocking, or emotionally intense event that so “dominates” the declarant’s mind such 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”: R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at para. 85; R. v. Mullin, 2019 ONCA 890, 383 C.C.C. (3d) 16, at para. 41. R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321 at para. 145, leave to appeal refused, [2015] S.C.C.A. No. 365; R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont.C.A.) (“Khan (1988)”), affirmed for other reasons, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531. Put another way, the “spontaneity” of the statement and its (reasonable) “contemporaneity” with the triggering event “are guarantors of reliability”: Camara, at para. 85, citing R. v. Andrews, [1987] A.C. 281 (H.L.), at pp. 300-01. Therefore a trial judge must satisfy themselves, before admitting such a statement as an exception to hearsay, that the statement was so clearly made in circumstances of spontaneity or involvement in the triggering event that the possibility of concoction can be disregarded: R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 42 O.R. (2d) 609 (Ont.C.A.) at p. 621, leave to appeal refused, [1983] S.C.C.A. No. 253, citing Ratten v. R., [1971] 3 All E.R. 801 at p. 807. As this court in Khan (1988) noted at p. 207, “where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received” (emphasis added).
[34] The admissibility of the declaration as a spontaneous utterance is assessed “not simply by mechanical reference to time but rather in the context of all of the circumstances surrounding the utterance at the time, including those which tell against the possibility of concoction or distortion” (emphasis added): R. v. Dakin, (1995) 1995 CanLII 1106 (ON CA), 80 O.A.C. 253 at para. 20; Nguyen, at para. 147.
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(ii) The trial judge did not turn his mind to the risk of “bootstrapping”
[39] Second, the only evidence as to the spontaneity of this text message came from the complainant alone, who was alleged by the appellant to have entirely fabricated it. Accordingly, this was not a straightforward application of the hearsay exception. In many other spontaneous utterance cases the occurrence of the alleged event that triggered the utterance is also supported by some other, independent evidence (e.g., physical injuries, a death, other eyewitnesses, etc.). Moreover, and relatedly, the statement in this case is a text message that is devoid of any context and was not introduced at trial as an exhibit. The trial judge thus could not examine the exact contents of that message, or the data that would provide information as to when the message was sent to Y.A.
[40] In circumstances where the only evidence that a statement was made in a state of emotion generated by a triggering event comes from the very person whose credibility is being challenged, a trial judge has to turn their mind as to whether there is a risk of “bootstrapping”: R. v. N.W., 2018 ONSC 774, at para. 60; and R. v. S.R., 2023 ONSC 350, at para. 35. In R. v. Khelawon, 2006 SCC 57, at para. 100, the Supreme Court quoted Professor Paciocco’s (as he then was) definition of “bootstrapping” in which he used the example of relying upon the contents of a hearsay statement to prove the existence of pressure from a shocking event, when it is that pressure which would have negated the risk of concoction of that hearsay statement:[2]In fact, the "bootstrapping" label is usually reserved to circular arguments in which a questionable piece of evidence "picks itself up by its own bootstraps" to fit within an exception. For example, a party claims it can rely on a hearsay statement because the statement was made under such pressure or involvement that the prospect of concoction can fairly be disregarded, but then relies on the contents of the hearsay statement to prove the existence of that pressure or involvement. [Citations omitted.] [41] I do not suggest that independent evidence is always required before a trial judge can admit a spontaneous utterance. This court in Khan (1988) commented that “whether a startling occurrence which gives rise to a spontaneous statement can be proven by the statement alone may be open to question” (emphasis added). But in Khan (1988) itself, there was forensic evidence of a semen stain on the young child complainant’s sleeve, which constituted independent evidence that supported the fact that a triggering event did occur. This Court thus found it “unnecessary to determine whether in the absence of such evidence the statement [about being sexually assaulted] would be admissible”: Khan (1988), at p. 212.
[42] In this case, it was incumbent on the trial judge to explain why, given that there was no independent evidence as to the startling circumstances giving rise to the making of the statement, he safely discounted the possibility of concoction or distortion. I again highlight that the trial judge prefaced his finding that the complainant’s mind was “dominated” by the incident with the statement “[t]he key point that everyone agrees on is that [the complainant] communicated to Y.A. that R.A. had touched her…”. He could see no reason “to conclude that, out of the blue” the complainant fabricated an allegation of sexual touching and sent a text message about it. The trial judge appears to have reasoned that the basis for thinking there was some startling event that dominated the complainant’s mind was the content of the text message itself.
[43] In these circumstances, when the only source of evidence of a startling event leading to a spontaneous utterance is the evidence of the declarant, the assessment of whether the circumstances of the utterance do not give rise to a risk of concoction and fabrication is extremely important. The absence of this assessment in the trial judge’s reasons resulted in a legal error.
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