R. v. R.A., 2024 ONCA 696, SEPTEMBER 19, 2024.

FACTS: The accused was charged with the offence of sexual assault.  It was alleged that he sexually assaulted his eleven year-old stepdaughter while they were home alone.  At the trial, the complainant testified that after the sexual assault occurred, she sent a text message to her mother describing what occurred. Her mother testified that she returned home and confronted the accused.  The “issues of admissibility and use” of the text message was not raised until submissions (see paragraph 35).

The trial judge ruled that the complainant’s message to her mother was admissible as a spontaneous utterance, and therefore could be relied upon for the truth of its contents.  The trial judge relied upon this evidence in convicting the accused.   

The accused appealed from conviction, arguing that the trial judge “erred by admitting the evidence about the text message as a ‘spontaneous utterance,’ and then using it to reject the appellant’s testimony and to corroborate the complainant’s testimony”.

HELD: The Court of Appeal held that the trial judge erred in ruling that the text message was admissible as a spontaneous utterance and ordered a new trial.

Spontaneous Utterances:

The Court of Appeal indicated 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’…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” (at paragraph 33. Court of Appeal’s emphasis).

This Case:

The Court of Appeal suggested that “because hearsay and prior consistent statements are presumptively inadmissible and the exceptions to this evidence are sometimes difficult to apply, it is important to address the basis for admissibility of such statements when they are first introduced” (at paragraph 35).       

The Court of Appeal indicated that “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’” (at paragraph 35).

The Court pf Appeal stated that it was not suggesting that independent “evidence is always required before a trial judge can admit a spontaneous utterance”, but that 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…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” (at paragraphs 41 to 43).