Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. MACKINNON, 2022 ONCA 81, NOVEMBER 25, 2022.

FACTS: The accused was convicted of murder.  At trial, the Crown presented a “spontaneous declaration” made by the victim (Mr. Taylor) before he died. The accused appeal from conviction, arguing in part, that this evidence was inadmissible.

HELD: The appeal was dismissed. The Ontario Court of Appeal concluded that the trial judge did not err in admitting Mr. Taylor’s statement pursuant to the spontaneous exclamation exception.

The Court of Appeal indicated that “statements falling within traditional exceptions to the hearsay rule, such as spontaneous utterances, are presumptively admissible… In ‘rare cases’ however, evidence falling within a traditional exception may be excluded where the indicia of necessity and reliability are lacking in the particular case” (at paragraph 32).

Spontaneous Declarations.

The Court of Appeal noted that “[o]ne 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” (at paragraph 40).  However, “[e]xact 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” (at paragraph 41).

Rare Cases:

The Court of Appeal indicated “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…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…           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’” (at paragraphs 44 and 45).

What Constitutes a Rare Case?

The Ontario Court of Appeal noted that “[d]espite its well-established acceptance, there has been little guidance as to what constitutes a “rare case”… 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…However, “special features” or “rare case” exceptions should not include factors that may give rise to concerns about the declarant’s honesty or sincerity… 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…Nor does the “rare case” exception include weaknesses that go to the ultimate weight of the evidence, which is for the jury to decide” (at paragraphs 46 to 50).

Finally, the Court of Appeal held that 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…There is a high threshold to be met by a party seeking to exclude evidence on this basis” (at paragraph 51).


The Court of Appeal concluded that the trial judge did not err in concluding “that (i) the statement was made in circumstances that were sufficiently spontaneous when Mr. Taylor’s ‘mind was dominated by the shock of the shooting and by his fear that he was dying’; (ii) this is not a ‘rare case’ in which ‘special features’, such as gross intoxication, undermine the inherent reliability of the statement; and (iii) the statement should therefore be admitted to be considered by the jury, along with all the other admissible evidence” (at paragraph 76).