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Abstract: Transcript of the Ruling on the admissibility of utterances as res gestae
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R. v. Paulette, 2014 NWTSC 14 S-1-CR2012000138 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - JASON FRANK PAULETTE _________________________________________________________ Transcript of the Ruling on the admissibility of utterances as res gestae by The Honourable Justice S. H. Smallwood, at Fort Smith in the Northwest Territories, on January 17th A.D., 2014. _________________________________________________________ APPEARANCES: Mr. A. Godfrey: Counsel for the Crown Ms. K. Lakusta: Mr. M. Hansen: Counsel for the Accused An order has been made banning publication of the identity of the Complainant/Witness pursuant to Section 486.4 of the Criminal Code of Canada Official Court Reporters 1 THE COURT: Earlier in this trial, a 2 voir dire was to held to determine the 3 admissibility of evidence of an utterance 4 allegedly made by the complainant Rayuka 5 Paulette to Ashleigh Stokes. I ruled that the 6 evidence was admissible and said that I would 7 provide reasons later in the trial so as not 8 to delay the continuation of the proceedings 9 before the jury at that time. These are those 10 reasons. 11 The charge that the accused is facing is 12 sexual assault causing bodily harm. The 13 complainant and Ashleigh Stokes testified on 14 the voir dire and three exhibits were filed: 15 Two were agreed statements of facts. One 16 related to the injuries and condition of the 17 complainant as observed by members of the RCMP 18 and medical personnel and another which 19 related to DNA evidence which was discovered 20 as a result of a sexual assault examination 21 which was performed on the complainant during 22 the course of the investigation. The DNA 23 evidence located the accused's DNA in the 24 vaginal pool of the complainant. The third 25 exhibit was photographs which were taken of 26 the complainant which showed the injuries that 27 she had when the photographs were taken Official Court Reporters 1 1 following the alleged incident. 2 In the voir dire, the complainant 3 testified that she went to the accused's 4 residence. The accused is her cousin and she 5 went over because she knew his common-law 6 spouse was away for medical treatment and she 7 thought that she would help him out with his 8 children. She spent the evening at his 9 residence and they smoked marijuana and drank 10 alcohol. 11 The complainant testified that she went to 12 the accused's residence before 5 p.m., they 13 smoked a joint, had supper and did the dishes, 14 then smoked another joint. She was asked to 15 go to the liquor store to get a 15 pack of 16 beer which she did. When she returned, she 17 and the accused smoked another joint. After 18 this the accused had a tattoo gun and offered 19 to touch up a tattoo that she had on her 20 ankle. She agreed and the accused proceeded 21 to work on her tattoo and they also began to 22 drink the beer. The complainant estimated 23 that she had seven beer and the accused had 24 about the same amount of the 15. 25 While the accused was working on the 26 complainant's tattoo, the complainant was 27 texting a friend. She testified that she Official Court Reporters 2 1 texted this friend throughout the evening. 2 After the accused finished touching up her 3 tattoo, they smoked another joint. At some 4 point the complainant testified that there was 5 a discussion about going to the bootlegger to 6 get a 26-ounce bottle of vodka but she does 7 not remember if they did so. 8 Following this, the accused got mad at the 9 complainant for being constantly on the phone. 10 She testified that she thought it was a joke 11 at first but she realized he was serious when 12 he slapped the back of her head. She was 13 scared and put her phone away. 14 The complainant then went to the bathroom 15 upstairs. When she was in the bathroom, she 16 blacked out. When she came to again, the 17 accused was choking her. She faked being 18 unconscious so he would get off of her. He 19 went downstairs and she pulled up her pants 20 and went downstairs. She stated she was 21 "freaking out" and asking how he could do this 22 to her. The accused then punched her in the 23 face cutting her chin. Blood went all over 24 her clothes and floor. The complainant 25 started yelling at the accused again and he 26 grabbed her by the neck and pushed her to the 27 floor and used her hair to mop up the blood. Official Court Reporters 3 1 The accused told her to "shut the fuck up you 2 stupid bitch". 3 The complainant testified that she blacked 4 out again and the next thing that she 5 remembered was putting on her shoes and 6 running out the door, leaving behind her cell 7 phone, jacket, Ipod, and a bag of clothes. 8 She testified that when she left the residence 9 she wasn't thinking about her stuff; she just 10 wanted to get out of there. When she left the 11 residence she did not know where the accused 12 was. 13 The complainant testified that she ran 14 over to her friend Ashleigh Stokes' residence, 15 which was a street over, approximately three 16 minutes away. When she left the accused's 17 residence, it was cold out and the complainant 18 testified that it was minus 40. 19 At Ashleigh Stokes' residence, the 20 complainant knocked on the door. When there 21 was no immediate answer, she began banging on 22 the door yelling and crying. Ashleigh Stokes 23 answered the door. The complainant testified 24 that Ashleigh Stokes asked her what happened 25 and she tried her best to explain. She 26 testified that she was still kind of drunk. 27 The complainant was unable to recall the words Official Court Reporters 4 1 that she said when she was talking to Ashleigh 2 Stokes. She went into the residence and went 3 into the washroom and tried to wash the blood 4 off her hair. She testified that Ashleigh 5 Stokes told her to stop and then they went to 6 the hospital. 7 The complainant testified that when she 8 blacked out during the evening, she did so 9 because she had been consuming alcohol and 10 marijuana. 11 The complainant also testified that there 12 were portions of the night that she did not 13 remember as a result of blacking out due to 14 alcohol and marijuana consumption. 15 She testified that she did not recall any 16 sexual relations with the accused that night 17 and she did not consent to any sexual 18 relations with the accused that night. 19 That is essentially the complainant's 20 evidence regarding the evening on the voir 21 dire. 22 The Crown also called Ashleigh Stokes to 23 testify. She testified that she was sleeping 24 at her residence that morning. At around 4:30 25 in the morning, she heard knocking on her 26 door. Initially she was not going to answer 27 the door. She then heard yelling and Official Court Reporters 5 1 screaming and realized that it was the 2 complainant. She got up and answered the 3 door. She testified that when she opened the 4 door she saw the complainant who was crying, 5 her hair was messy. There was blood on her 6 face and she was shivering. She was wearing a 7 sweater and jeans and her clothing was not 8 appropriate for the cold weather. 9 She testified that the complainant said to 10 her "my cousin raped me" over and over again. 11 She asked the complainant "your cousin who?" 12 to which the complainant responded "my cousin 13 Jason raped me". 14 Ashleigh Stokes described the complainant 15 as being in a frantic state. She testified 16 the complainant went and laid down on her 17 couch. When the complainant came inside, 18 Ashleigh Stokes noticed the cut on her chin. 19 While inside Stokes' residence, they had a 20 further conversation about what happened. 21 With respect to the complainant's 22 intoxication, Ashleigh Stokes said she noticed 23 the smell of alcohol on the complainant but 24 did not observe any other signs of 25 intoxication. There was no slurring of 26 speech, her walking was fine, but she was 27 shivering and frantic. Ashleigh Stokes Official Court Reporters 6 1 herself had not been drinking or consuming 2 drugs that evening. 3 Ashleigh Stokes denied the complainant 4 used the washroom while at her residence. 5 The Crown is seeking to adduce the 6 utterances made to Ashleigh Stokes "my cousin 7 raped me", "my cousin raped me", "my cousin 8 Jason raped me" for the truth of its contents 9 as an exception to the hearsay rule. The 10 Crown argues that the evidence is admissible 11 because it falls under one of the traditional 12 exceptions to hearsay evidence being 13 inadmissible. That is the res gestae 14 exception which refers to what is also called 15 spontaneous utterances. 16 The Crown has also argued that the 17 utterances meet the principled exception to 18 hearsay which has developed, which is that the 19 utterances are necessary and reliable and thus 20 admissible on that basis as well. The 21 position of the defence is that the utterances 22 were not admissible and that they did not 23 satisfy either res gestae or the principled 24 exception and the arguments focused on the 25 reliability of the evidence. 26 The utterances are hearsay. There is no 27 dispute regarding that. As hearsay, they are Official Court Reporters 7 1 presumptively inadmissible. There have been 2 traditional exceptions to the hearsay rule for 3 many years, res gestae being one of them. 4 More recently the Supreme Court of Canada has 5 developed what has been called the principled 6 exception to hearsay which focuses on the 7 necessity and reliability of the evidence. 8 The case of R. v. Mapara, [2005] 1 S.C.R. 9 358, a decision of the Supreme Court of 10 Canada, discussed how the principled exception 11 and the traditional exceptions are to be 12 considered. At page 42, which is quoted in 13 R. v. Courouble 2012 NWTSC 8, they say: 14 (a) Hearsay evidence is presumptively inadmissible unless 15 it falls under an exception to the hearsay rule. The traditional 16 exceptions to the hearsay rule remain presumptively in place. 17 (b) A hearsay exception can be 18 challenged to determine whether it is supported by indicia of 19 necessity and reliability required by the principled approach. The 20 exception can be modified as necessary to bring it into 21 compliance. 22 (c) In "rare cases", evidence falling within an existing 23 exception may be excluded because the indicia of necessity and 24 reliability are lacking in the particular circumstances of the 25 case. 26 (d) If hearsay evidence does not fall under a hearsay exception, it 27 may still be admitted if indicia of reliability and necessity are Official Court Reporters 8 1 established on a voir dire. 2 So as I understand it, the traditional 3 exceptions to hearsay such as res gestae 4 remain presumptively in place. In this case 5 the defence has not challenged the exception 6 but focused on the reliability of the evidence 7 to argue that the issues with reliability are 8 such that neither res gestae nor the 9 principled exception have been met. 10 In the case of R. v. Oliver, a decision 11 from 1996 of this Court sitting as a summary 12 conviction appeal Court, the requirements of 13 res gestae were considered. At paragraph 12, 14 quoting from the Ontario Court of Appeal 15 decision in Khan, res gestae is defined as 16 A spontaneous statement made under the stress or pressure of a 17 dramatic or startling act or event and relating to such an occasion 18 may be admissible as an exception to the hearsay rule. The stress 19 or pressure of the act or event must be such that the possibility 20 of concoction or deception can be safely discounted. The statement 21 need not be made strictly contemporaneous to the occurrence 22 so long as the stress or pressure created by it is ongoing and the 23 statement is made before there has been time to contrive and 24 misrepresent. The admissibility of such statements is dependent on 25 the possibility of concoction or fabrication. Where the 26 spontaneity of the statement is clear and the danger of 27 fabrication is remote, the evidence should be received. Official Court Reporters 9 1 2 It was noted in Courouble at paragraph 11 3 that the issue of reliability, unless there 4 were special features of concern, was better 5 left to the trier of fact to determine. 6 In this case, the utterance is alleged to 7 have occurred shortly after the incident in 8 question. It is not clear how long as the 9 complainant has no memory of the event but she 10 does remember fleeing the accused's house. If 11 a violent sexual assault had occurred which 12 left her bleeding and scared, then it is 13 reasonable to assume that she left the house 14 shortly after the event so that the utterance 15 could be considered contemporaneous. 16 Contemporaneousness is not required. 17 There have been cases where utterances have 18 been admitted where they were made not just 19 minutes but in some cases hours after the 20 event. So the focus is really on the 21 circumstances, including the spontaneity of 22 the statement, the possibility of concoction, 23 and whether the individual is still under the 24 stress or pressure of the event. 25 In my view, the statement meets the 26 requirements of res gestae. 27 The complainant fled Jason Paulette's Official Court Reporters 10 1 house. She did not stop to put her jacket on, 2 left her cell phone behind and went to 3 Ashleigh Stokes' residence which is a short 4 distance from the accused's home. She arrived 5 hysterical, visibly upset, bleeding, and 6 spontaneously told Ashleigh Stokes that her 7 cousin had raped her, repeating it twice. In 8 response to one question "my cousin who?", she 9 said her cousin Jason raped her. In the 10 circumstances, the utterances were made close 11 in time to the event when Rayuka Paulette 12 appears to still be under the stress or 13 pressure of the event and her utterances were 14 spontaneous. In my view, the risk of 15 fabrication or concoction are minimal in the 16 circumstances. 17 The concerns raised by defence regarding 18 the reliability of Rayuka Paulette's evidence, 19 (there did not appear to be much issue taken 20 with Ashleigh Stokes' evidence and the 21 accuracy of what she heard) relate to whether 22 what Rayuka Paulette said to Ashleigh Stokes 23 is reliable. The defence says that Rayuka 24 Paulette's mind appears to be one that has 25 been overwhelmed by a startling event as 26 opposed to a focused mind. He submitted that 27 Rayuka Paulette did not have time to get Official Court Reporters 11 1 control of her mind and focus but was 2 overwhelmed by events. 3 In my view, this is one of the main 4 features of res gestae - that the declarant is 5 overwhelmed, preoccupied with the event, and 6 is not focused. They do not have time for 7 reflection and it is that preoccupation, that 8 stress or pressure of a recent dramatic or 9 startling event which minimizes the risk of 10 concoction or fabrication. 11 The defence also suggests that she is 12 mistaken about what occurred and because of 13 her level of intoxication that her memory is 14 not reliable. He points to the 15 inconsistencies in her statement and the 16 testimony on the voir dire, her reference to 17 dreams, and that she now thinks that she must 18 have been sexually assaulted. 19 Today, over two years later, the 20 complainant is convinced that she was sexually 21 assaulted. It appears from her testimony on 22 the voir dire that this is as a result of her 23 knowledge of the DNA evidence, her belief that 24 she would not have consented, and her 25 knowledge of the accused's criminal history. 26 That is her belief today. What is relevant is 27 her perception at the time of the events. Official Court Reporters 12 1 The accused's criminal history is not 2 clear. While the complainant knew about his 3 history at the time, she said that she had 4 heard the accused had been convicted of sexual 5 assault in the past. Her evidence was that 6 prior to going to the accused's residence on 7 that night, she didn't know what to believe 8 about the accused's criminal history. She 9 said that she didn't acknowledge his criminal 10 history. She viewed the accused as her cousin 11 and did not believe he would do that to her. 12 While there may be inconsistencies in the 13 complainant's evidence on the voir dire and 14 the statements she gave to the police and the 15 testimony she gave at the preliminary inquiry, 16 none of them relate to the alleged sexual 17 assault. The complainant testified that she 18 has no knowledge of the sexual contact between 19 her and the accused and this has been 20 consistent throughout. That has not changed. 21 Her only statement on this point is that made 22 to Ashleigh Stokes and she acknowledged that 23 she did not remember what she said to Ashleigh 24 Stokes. 25 It is clear that the complainant was 26 intoxicated at the time of the utterance. She 27 acknowledged that her memory had blanks that Official Court Reporters 13 1 evening due to the consumption of alcohol and 2 marijuana. 3 Ashleigh Stokes testified that she smelled 4 alcohol on Rayuka Paulette's breath but made 5 no other observations of intoxication. She 6 indicated that Rayuka Paulette handled her 7 liquor well and she had not seen her get so 8 drunk that she would be falling down. 9 While intoxication is a factor on 10 reliability, in the circumstances I do not 11 view Rayuka Paulette's intoxication that it 12 was such that the utterances should not go 13 before the trier of fact. 14 For these reasons, looking at all of the 15 factors, I conclude that this evidence is 16 admissible as res gestae and that any concerns 17 about the reliability of the evidence are 18 matters that are better determined by the 19 triers of fact. 20 I have gone on to consider the principled 21 exception in the event that I am incorrect 22 about res gestae still being a valid exception 23 to the hearsay rule or that my analysis 24 regarding res gestae is incorrect. 25 Necessity and reliability are the 26 requirements of the principled exception to 27 the hearsay rule. Necessity in this case is Official Court Reporters 14 1 established because although the complainant 2 is available to testify, she has no 3 recollection of the sexual contact between her 4 and the accused. In addition, she recalls 5 speaking to Ashleigh Stokes but she does not 6 recall what she said. 7 So reliability is the other requirement 8 and at this stage we are concerned with 9 threshold reliability. 10 In R. v. Khelawon at paragraph 3, the 11 Supreme Court of Canada said, 12 The distinction between threshold and ultimate reliability reflects 13 the important difference between admission and reliance. 14 Admissibility is determined by the trial Judge based on the governing 15 rules of evidence. Whether the evidence is relied upon to decide 16 the issues in the case is a matter reserved for the ultimate trier of 17 fact to decide in the context of the entirety of the evidence. 18 19 Later in the paragraph, the Court 20 continues, 21 The trial Judge's function is to guard against the admission of 22 hearsay evidence which is unnecessary in the context of the 23 issue to be decided, or the reliability of which is neither 24 readily apparent from the trustworthiness of its contents, 25 nor capable of being meaningfully tested by the ultimate trier of 26 fact. 27 The Court emphasized that ultimate Official Court Reporters 15 1 reliability is left to the trier of fact and 2 that trial Judges need to be cautious about 3 encroaching on that area. 4 So threshold reliability is not concerned 5 with the truthfulness of the statement; that 6 is for the trier of fact to determine. 7 Threshold reliability is concerned with 8 whether there are circumstantial guarantees of 9 trustworthiness surrounding the making of the 10 statement and consideration can be given to 11 the presence or absence of supporting 12 evidence. 13 In this case, many of the factors with 14 respect to reliability pursuant to res gestae 15 are applicable to the analysis pursuant to the 16 principled exception. As noted in Courouble, 17 the res gestae exception is still a valid one 18 and all of its components mirror very much the 19 concerns that are addressed in the principled 20 approach. 21 In considering other evidence which might 22 corroborate the complainant's utterance, I 23 have considered the DNA evidence which 24 establishes that the accused's spermatozoa was 25 found in the complainant's vaginal pool. With 26 respect to a sexual assault, this evidence is 27 equivocal as it does not establish that there Official Court Reporters 16 1 was nonconsensual sex. However, it does 2 establish that there was sexual contact 3 between the complainant and the accused. 4 At the time that the utterance was made to 5 Ashleigh Stokes, there was no apparent 6 evidence of a sexual assault or sexual 7 contact. To Ashleigh Stokes, the 8 complainant's appearance demonstrates injuries 9 consistent with an assault. The complainant 10 obviously had no knowledge of whether there 11 would be any DNA evidence and only she would 12 have had knowledge of the sexual contact 13 between her and the accused. And the point 14 that I am trying to make is that when the 15 statement was made, at that point, why would 16 Rayuka Paulette say that she was sexually 17 assaulted if that was not true. She had no 18 reason at that point to concoct a story about 19 being sexually assaulted by the accused. 20 Obviously the issue of the truth of the 21 statement, the ultimate reliability of that 22 statement is for the trier of fact to 23 consider, along with all of the other 24 evidence. But I am satisfied, for the reasons 25 given, that threshold reliability and 26 necessity have been established. 27 I have made this decision acknowledging Official Court Reporters 17 1 that there were some concerns. 2 The complainant's lack of memory of the 3 sexual assault and lack of memory of what she 4 told Ashleigh Stokes means that she can only 5 be cross-examined in a limited way. She can 6 still though be challenged, cross-examined in 7 a way that challenges her reliability as a 8 result of lack of memory due to intoxication 9 and potentially having suffered a head injury. 10 Ashleigh Stokes is also available to be 11 cross-examined and her evidence has been 12 consistent throughout about what was said to 13 her by Rayuka Paulette. So I am satisfied 14 that the circumstances in which the statements 15 were made and the evidence of Ashleigh Stokes 16 and Rayuka Paulette are sufficiently reliable 17 so that this evidence should go to the jury. 18 I have also considered that I have a 19 discretion to exclude the evidence if the 20 prejudicial effect outweighs the probative 21 value. 22 The utterance is obviously prejudicial. 23 The Crown would probably not seek to adduce it 24 if it were not. It is evidence of the 25 nonconsensual nature of the sexual contact 26 between the complainant and the accused. It 27 is also highly probative for the same reason. Official Court Reporters 18 1 I am satisfied that the probative value 2 does outweigh the prejudicial effect. The 3 word spoken by Rayuka Paulette shortly after 4 the events in question are very probative in 5 determining what occurred between her and the 6 accused. So in my view this is not a case 7 where the prejudicial effect outweighs the 8 probative value to the point that the 9 otherwise admissible evidence should be 10 excluded. 11 So for these reasons, I conclude that the 12 evidence is sufficiently reliable to be 13 weighed by the jury. 14 All right, counsel, so we will adjourn to 15 await the jury. 16 (ADJOURNMENT) 17 18 ------------------------------------- 19 20 Certified to be a true and accurate transcript pursuant 21 to Rules 723 and 724 of the Supreme Court Rules, 22 23 24 25 26 ____________________________ 27 Lois Hewitt, Court Reporter Official Court Reporters 19
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