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Decision information:
Abstract: Transcript of the Ruling on the admissibility of utterances as res gestae
Decision Content
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
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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