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

JAKE FROM STATE FARM, THE ADMISSIBILITY OF SPONTANEOUS UTTERANCES

In R. v. Badger, 2021 SKCA 118, September 1, 2021, the accused was convicted of the offence of aggravated assault, arising out of the victim having been shot.

The evidence at the trial indicated that the accused’s nickname was “Jake from State Farm”.  During a 911 call, when asked who had shot him, the victim said: “Jake from State Farm”.  While being taken to the ambulance, the victim looked at the accused and said: “That’s the fucker who shot me”.

When the victim testified, he indicated that he did not know who shot him.  The Crown successfully applied to have the victim’s comments identifying the accused, entered as spontaneous utterances. The accused was convicted.  He appealed.  The appeal was dismissed.  

The Saskatchewan Court of Appeal indicated that “[o]ut-of-court statements are presumptively inadmissible for the truth of their contents…One of the exceptions to this rule is res gestae, with its most common category more modernly and usefully referred to as spontaneous utterance…For a spontaneous utterance to be admissible, the circumstances in which the statement was made must be carefully examined in order to determine if the statement in question meets the test of threshold reliability. Trial judges should ask themselves whether the event was so unusual or startling that it would dominate the thoughts and expressions of the person making the utterance. Exact contemporaneity of the startling event or condition is not required, as spontaneity resides on a spectrum and is dependent on the circumstances, but it must be reasonably contemporaneous and the nature of the event must be such that it would still be dominating the mind of the declarant when the statement is made. Some of the cases also require that there be an absence of special features that could likely result in an error by the declarant” (at paragraphs 27 and 31).

In this case, the Court of Appeal held that the trial judge “did not err in determining the utterances met the threshold of reliability required for admission” (at paragraphs   41 and 42):

It is obvious that the trial judge carefully and thoroughly examined Mr. Ray’s level of intoxication and considered it to be a special circumstance that had to be evaluated to determine if it prevented the admission of the spontaneous utterances. Despite the small misstatement in the introductory portion of paragraph 3 of the Badger Voir Dire, the analysis conducted by the trial judge thoroughly canvassed all of the evidence and meticulously examined its potential effect on the reliability of the utterances. After this rigorous assessment, the trial judge concluded he was satisfied that Mr. Ray’s level of intoxication did not create a situation where the evidence was unreliable. I can find no fault in that determination.

While I have analyzed the arguments regarding the circumstances in which the identification evidence arose and the issue of intoxication separately, it is the combination of these factors, in conjunction with all of the circumstances, that must be examined to determine if the trial judge erred in his assessment of threshold reliability regarding the utterances. In my view, the trial judge did not err in determining the utterances met the threshold of reliability required for admission. He applied the correct test, carefully considered all of the circumstances and determined the utterances met the threshold reliability required for admission into evidence. There is no room for this Court to interfere with that determination. This ground of appeal cannot be sustained.