R. v. PELLETIER, 2024 SKCA 12, FEBRUARY 12, 2024.

FACTS: The accused was convicted of the offence of aggravated assault.  At the trial, the complainant did not testify. The trial judge ruled that statements made by the complainant were admissible as an exception to the hearsay prohibition: excited or spontaneous utterances.

HELD: The appeal was allowed and an acquittal entered.  The Saskatchewan Court of Appeal concluded that the trial judge erred in admitting the statements.  

Spontaneous utterances:

The Court of Appeal, in considering this area of evidence, stated as follows (at paragraph 21):

While out-of-court statements are presumptively inadmissible for the truth of their contents, the law continues to recognize an exception to this rule for what have come to be called spontaneous or excited utterances. The Honourable S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf (Rel 4, October 2023) 5th ed (Toronto: Thomson Reuters, 2023) (WL) at §7:59 [McWilliams], suggests that “now … the test can be stated rather simply – a statement is admissible as evidence of any matter stated if the statement was made by a person so emotionally overpowered by a contemporaneous event that the possibility of concoction or distortion can be disregarded”. They describe two key criteria that must be met; that is, “(1) that the statement be made contemporaneous to an unusual, overwhelming event that (2) left the declarant (at the time of the declaration) under pressure or emotional intensity which would give the guarantee of reliability”.

The Court of Appeal noted that the “requirement for strict contemporaneity has been long abandoned. However, as I have explained, the requirement for contemporaneity remains. The fact that there has been an unusual, dramatic or traumatic event that emotionally overpowered the declarant is not enough. The declarant must, at the time of the declaration, continue to be under the pressure or emotional intensity that obviates the risk of concoction or distortion; it is this that provides the guarantee of reliability which underpins the exception. For this reason, contemporaneity remains an essential aspect of the functional analysis that must be undertaken by a trial judge” (at paragraph 23).

This Case:

The Court of Appeal concluded that “although the trial judge correctly identified the analytical framework, he committed an error of law by failing to apply it to the evidence…Importantly, the trial judge did not find when the assault had occurred, despite that the timeline was at issue in this case. Indeed, his assessment of this key issue is brief and incomplete not only in this respect, but in general” (at paragraphs 30 and 31).