Supreme Court

R. v. Wilson No.2, 2015 NWTSC 30	S-1-CR-2014-000060






IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. - JAMES WILSON

_________________________________________________________ Transcript of the Ruling on Admissibility of Complainant's Utterance by The Honourable Justice L. A. Charbonneau, at Inuvik in the Northwest Territories, on 28th May A.D.,
2015.

_________________________________________________________ APPEARANCES:
Ms. A. Piché,:	Counsel for the Crown

Mr. C. Davison:	Counsel for the Accused

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Charges under s. 271, 145(1)(a) Criminal Code of Canada

Ban on publication of the Complainant/Witness pursuant to Section 486.4 of the Criminal Code






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1	THE COURT:	Now I am going to move to

2	the ruling on the admissibility of the utterance

3	of S.R.	S.R. lived in Fort McPherson at the time

4	of the events that form the subject matter of the

5	charge against Mr. Wilson.	She is related to the

6	complainant through her grandmother.	She did not

7	testify at the voir dire but counsel were content

8	in the ruling being made based on a transcript of

9	her evidence at the preliminary hearing.

10	That evidence was that she ran into the

11	complainant at about 2:30 in the morning on the

12	night of these events in September 2013.	It was

13	dark out and she saw her walking around with a

14	flashlight.	S. asked her why she was out so late

15	and why she was not at home.	The complainant

16	replied that somebody was bothering her at her

17	house.

18	The Crown wishes to adduce this utterance

19	for the truth of its contents.	The Crown says it

20	is admissible pursuant to the res gestae

21	exception to the inadmissibility of hearsay, and

22	if the prerequisites for that exception are not

23	made out it is admissible under the principled

24	exception to the inadmissibility of hearsay

25	because it is both necessary and reliable

26	evidence.

27	The interaction between the traditional

1	exceptions to the inadmissibility of hearsay and

2	the admissibility of hearsay under the principled

3	approach developed over the last twenty years or

4	so by the Supreme Court of Canada was explained

5	in the case of R. v. Mapara 2005 SCC 23.	That

6	analysis has been applied in this jurisdiction

7	in relation to the res gestae exception	in the

8	case of R. v. Courouble 2012 NWTSC 8 and

9	R. v. Paulette 2014 NWTSC 14 among others.	I

10	adopt the reasoning outlined in those cases and

11	will not repeat it here.	Defence does not

12	challenge the validity of the res gestae

13	exception but rather argues that the

14	prerequisites are not met here, particularly in

15	terms of the timing of the utterance in relation

16	to the timing of the events that the utterance is

17	about.

18	Dealing first with res gestae, there are not

19	a lot of details about the circumstances of this

20	utterance in the evidence that was called at the

21	voir dire.	What I have already referred to above

22	is essentially it.	S. was cross-examined about

23	the complainant's speech impediment and about how

24	well she could understand what she was saying.

25	S. said she did understand the complainant to be

26	saying someone was bothering her, and she

27	confirmed that to her this word sometimes means

1	sexual contact.

2	The Defence takes the position that there is

3	too much uncertainty about the timing of events

4	and about when the utterance was made in relation

5	to the alleged incident for the situation to be

6	captured by the res gestae exception.	Defence

7	points out to a comment made in the case of R. v.

8	Khan 1990 CarswellOnt 108 many years ago by the

9	Supreme Court of Canada when that court commented

10	that an utterance made by a child 30 minutes

11	after the commission of an alleged assault was

12	not admissible under the traditional tests

13	dealing with spontaneous assurances.	R. v. Khan

14	paragraph 19.

15	As it turns out, of course, the Khan case

16	marked a pivotal moment in the development by the

17	Supreme Court of Canada of a new approach to the

18	admissibility of hearsay, one that focuses on

19	principles of necessity and reliability instead

20	of a list of exceptions defined by specific and

21	rigid criteria.	The Crown argues that

22	notwithstanding this comment in Khan, the timing

23	of the utterance is not determinative, and I

24	agree.	As noted in the case of Paulette,

25	referred to by the Crown, there have been cases,

26	including cases in this jurisdiction, where the

27	res gestae exception has been found to be

1	applicable for statements made not just minutes

2	but more than an hour after the event.

3	R. v. Oliver (1996) N.W.T.J. No. 69 from this

4	jurisdiction is a good example of that.

5	I agree with the court's comments in

6	Paulette.	The focus of the inquiry should be on

7	the circumstances of the utterance including the

8	spontaneity of the statement, the possibility for

9	concoction, and whether the individual is still

10	under the stress or pressure from the events.	In

11	Paulette the elements of evidence which the court

12	found were significant in this regard were that

13	the declarant had left the accused's residence

14	without a jacket, leaving her cell phone behind.

15	She arrived at the witness's home hysterical,

16	visibly upset, crying and bleeding, and she

17	spontaneously told the witness that her cousin

18	had raped her.	When asked which cousin she

19	identified the accused.	The court concluded, at

20	paragraph 29 of the decision, that the

21	circumstances in which the utterances were made

22	were close in time to the event when the

23	complainant appeared to still be under the stress

24	or pressure of the event and the utterances were

25	spontaneous and the risk of fabrication or

26	concoction were minimal in the circumstances.

27	I find similarly that here there are

1	elements to suggest that the risk of fabrication

2	or concoction are minimal and that the

3	complainant was still under the pressure and

4	stress of the events she told Ms. R. about when

5	she encountered her.	There was no evidence here

6	of the complainant being hysterical or physically

7	injured when she came upon Ms. R., but there are

8	other aspects of the evidence that to me suggest

9	that she was still under the pressure and the

10	stress of the events complained of.	The first is

11	that she was walking around the community in the

12	middle of the night.	This was not a usual or

13	normal thing for her to do as evidenced by the

14	reaction of S.R. when she saw her.	The utterance

15	was not completely spontaneous.	It was in

16	response to the question - "What are you doing

17	outside your house at this hour?" - but it was

18	also not an answer to a leading question such as

19	"Has someone hurt you?" or "Has something

20	happened to you?" or "Is somebody bothering you?"

21	The question put to the complainant by Ms. R. was

22	fairly open-ended, and she immediately answered

23	that someone was bothering her at her house.	The

24	complainant was in essence seeking assistance

25	from Ms. R. that night.	She then went back with

26	her to the house and identified who had done this

27	to her.

1	Based on all of that I find that even

2	without clear evidence as to timing there is

3	enough evidence here to conclude that the

4	complainant was still under the stress or

5	pressure or effects of those events, and that she

6	had a limited opportunity for concoction before

7	she ran into Ms. R.	These circumstances are

8	different, admittedly, from the ones that existed

9	in the Paulette case, but in my view looking at

10	it from the point of view of overall

11	circumstances as opposed to strictly a question

12	of timing or time line, the features that are

13	central to the res gestae exception are met

14	despite that lack of clarity about the timing.

15	I conclude that this evidence is admissible under

16	the res gestae exception.

17	If I am wrong about that I would consider

18	the evidence to be admissible in any event

19	pursuant to the principled exception.

20	Defence has argued that the necessity

21	criterion is not met here because the complainant

22	was to be called as a witness to testify at the

23	trial, and as such it was not necessary to have

24	what she said outside the courtroom adduced

25	through another witness.	I disagree that the

26	concept of necessity should be interpreted as

27	narrowly as Defence suggests.	I find support for

1	this proposition in the decisions of R. v. Rockey

2	1996 CanLII 151 (SCC) and R. v. Pearson 1994

3	CanLII 8751 (BC CA) referred to by the Crown.	It

4	is true that necessity is often made out because

5	the declarant is unable or unavailable to

6	testify, but at page 840 of the Rockey decision

7	the Supreme Court of Canada itself said:

8	Necessity can be established even if the witness testifies if the trial judge is
9	satisfied that it is reasonably necessary in order to a put a full and frank account of
10	the child's version of the relevant events
before the jury.
11

12	Rockey was a case involving a child witness.

13	Here we	were not dealing with a child witness,

14	but given the anticipated difficulties for the

15	complainant to communicate her evidence, allowing

16	her utterance to Ms. R. to be adduced for the

17	truth of its contents, I find, is reasonably

18	necessary to provide the trier of fact with

19	Ms. K.'s full and frank account of the relevant

20	events.

21	Defence did point out that by doing so a

22	prior consistent statement will be put before the

23	jury, which is something that is not normally

24	permitted.	That is true.	And it is also true

25	that the principled approach to the admissibility

26	of hearsay is not to be used to circumvent other

27	evidentiary rules.	But in this particular

1	situation the consistency of the earlier

2	utterance forms part of why the evidence is found

3	to be reasonably necessary in the first place.

4	I find some comments that were made at the very

5	end of the Rockey decision suggest that again the

6	Supreme Court of Canada supports the notion that

7	in those types of circumstances, prior consistent

8	statements are not only admissible but they

9	bolster the Crown's case.	This is at the very

10	end of the Rockey decision, where the court is

11	talking about the potential effect of an alleged

12	inadequate portion of the instruction to the

13	jury.	The court says that the absence of

14	direction pales to insignificance against the

15	backdrop of the strength of the case of the Crown

16	in that case.	And what follows is what I find

17	interesting.	The court says:

18	With the exception of the two statements in play therapy briefly referring to the
19	presence of his father, the child's statements to many individuals from two days
20	after the alleged event to the date of
the trial, covering a period of two and one
21	half years, were entirely consistent.

22

23	So here we have the Supreme Court of Canada

24	saying that the case was very strong, in part

25	because of all these consistent statements.	I

26	think it suggests that there are situations where

27	that - and it is an exceptional situation in the

1	broader context of the law of evidence - the fact

2	that an utterance amounts to a prior consistent

3	statement is not a reason to not permit the

4	evidence to be adduced.

5	For all of these reasons I am satisfied that

6	the requirement of necessity is met with respect

7	to this utterance.

8	The second criterion that must be applied is

9	reliability, and the focus here is threshold

10	reliability, not ultimate reliability.

11	Everything I have talked about when I was dealing

12	with the res gestae aspect of things, about the

13	circumstances under which the utterance was made,

14	those same things persuade me that this utterance

15	meets the threshold reliability test.	The

16	utterance was made in circumstances where the

17	complainant had left her own home in the middle

18	of the night to get away from what was unfolding

19	there.	She sought assistance from S.R., someone

20	who was known to her, when she encountered her.

21	The utterance was not made in answer to a leading

22	or suggestive question.	The recipient of the

23	declaration reacted immediately to it which

24	suggests that Ms. R. perceived the situation as

25	serious and requiring some sort of intervention.

26	There may well be issues about the reliability of

27	the utterance, about whether Ms. R. accurately

1	heard or understood what the complainant was

2	telling her, and other things going to whether

3	the jury should attach any reliability, any

4	weight to this utterance, but those in my view

5	are for the jury to assess.	Those were my

6	reasons for admitting the utterance made to S.R.

7	into evidence.

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2	CERTIFICATE OF TRANSCRIPT

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6	I, the undersigned, hereby certify that the

7	foregoing pages are a complete and accurate transcript

8	of the proceedings taken down by me in shorthand and

9	transcribed from my shorthand notes to the best of my

10	skill and ability.

11	Dated at the City of Edmonton, Province of

12	Alberta, this 21st, July, 2015.

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14	Certified Pursuant to Rule 723

15	Of the Rules of Court

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18	Darlene Sirman, CSR(A)

19	Court Reporter

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